Supreme Court of California Justia
Docket No. S016719
People v. Yeoman

Filed 7/17/03




IN THE SUPREME COURT OF CALIFORNIA




THE PEOPLE,

Plaintiff and Respondent,

S016719

v.

) Sacramento

County

RALPH MICHAEL YEOMAN,

Super. Ct. No. 86216

Defendant and Appellant.



A jury found defendant Ralph Michael Yeoman guilty of the first degree

murder of Doris Horrell and found true the special circumstance that the murder

occurred during the commission of a robbery. (Pen. Code, §§ 187, 190.2, subd.

(a)(17)(A).) 1 The jury also found defendant guilty of robbery and false

imprisonment (§§ 211, 236) and found true the allegation that, in each of these

crimes, defendant personally used a firearm (§ 12022.5). The jury found not true

the additional special circumstance that the murder occurred during the

commission of a kidnapping. (§ 190.2, subd. (a)(17)(B).) The jury imposed the

sentence of death. The trial court stayed the convictions for robbery and false

imprisonment under section 654, struck the enhancements under section 1385 and

entered judgment accordingly. This is the automatic appeal from that judgment.

(§ 1239, subd. (b).) We affirm.


1

All further citations to statutes are to the Penal Code, except as noted.

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I. FACTS

A. Guilt Phase

1. The Murder of Doris Horrell

Defendant robbed and murdered Doris Horrell, a 73-year-old resident of

Citrus Heights, on February 13, 1988. Sheriff’s deputies found her body about

9:40 p.m. in an open field west of Interstate 5 in Sacramento County, while setting

flares to direct traffic out of the Arco Arena. Horrell had left a Valentine’s Day

party earlier that evening in her car to pick up an acquaintance at the airport. She

was wearing a bright red dress, jewelry and designer eyeglasses. Police found no

jewelry, eyeglasses, keys or purse. Nor did they find a coat, but they did find

three lavender-colored buttons. Postmortem examination revealed the cause of

death as six gunshot wounds to the head and left side of the body, any of which

could have been fatal. The shots had been fired at close range from a .22-caliber

gun. Horrell’s inoperable car was later towed from the side of the freeway, about

four miles from the place where her body had been found. Investigators

determined that a palm print on the hood of Horrell’s car was defendant’s and that

the fatal bullets had the general characteristics of rounds fired from defendant’s

.22-caliber revolver.

On February 16, 1988, Debra Stafford called the Sacramento County

Sheriff’s office and reported that defendant was Horrell’s killer. Stafford told the

following story, which she repeated at trial. On the evening Horrell died, Stafford

and defendant were visiting defendant’s friend Ron Kegg at his Sacramento

apartment. Defendant left the apartment alone in his pickup truck about 7:30 p.m.,

saying he needed “[t]o go get some money.” He returned about an hour later,

telling Stafford “[w]e have got to hurry, go.” Stafford left with him. On the road,

defendant explained the situation. “He told me,” Stafford testified, “that he

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needed me to help him, that he murdered a lady and he wanted me to drive his

truck while he went to the car that was sitting on the side of the freeway and

needed to drive it off . . . .” Defendant said “he had fingerprints on the car” and

needed to “clean it up.” Defendant had stopped for Horrell “[b]ecause she was

dressed nice and she looked like she might have some money.” She “was broke

down on the freeway and he stopped to help her,” but “he couldn’t get her car

started so she got in the truck. He was going to give her a ride, and he killed her.”

Stafford perceived defendant as calm while he recounted these events.

Arriving at Horrell’s car, defendant found it still would not start. He used

Stafford’s shirt to wipe his fingerprints off the car, and cleaned the windows with

a fire extinguisher and squeegee from the trunk. Driving away, defendant pointed

a gun at Stafford and told her that he had shot Horrell “sitting where you are

sitting.” He said he had used a .22-caliber pistol and had “emptied the clip in her.”

Stafford noticed a very small amount of blood on the floor of the truck. Defendant

then took her to see Horrell’s body. Stafford did not want to go, but defendant

insisted, saying, “well, I want to go see it and see if they found it yet.” On the

way, Stafford looked through Horrell’s purse and noted her name. Defendant

stopped his truck near the Arco Arena, where flares had been set to guide traffic.

Horrell’s body had not yet been discovered. Defendant shone a light, and Stafford

saw the body of an older woman in a red dress with gray hair.

After seeing the body, defendant said he wanted to visit Horrell’s apartment

and try to withdraw money from her bank. Defendant showed Stafford rings and

earrings he had taken from Horrell, along with $20 and a light purple coat. After

stopping briefly at Kegg’s apartment, defendant drove to Horrell’s address in

Citrus Heights using information from her purse. Defendant threatened to kill

Stafford or have her killed if she turned him in. Arriving at Horrell’s apartment

complex, defendant explained that he wanted to “go in, grab the jewelry box and

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TV and leave.” But the area was too brightly lit and too many people were about,

so he abandoned this plan. Next, the two attempted to withdraw money from an

ATM machine using Horrell’s bank card but failed for want of her PIN number.

Finally, they drove to Stafford’s home in Marysville where, after searching the

purse one last time for a PIN number or other useful information, they burned

most of Horrell’s effects. They kept her jewelry, coat and a few other items.

Defendant tried to give the coat to Stafford, but she would not take it. She noticed

bullet holes and powder burns under the left armpit. Buttons were missing.

A day or two later, defendant arrived at Stafford’s house with Kegg. The

two men attempted to persuade her to go with them to Sacramento, but she

refused. Afterwards, defendant called her repeatedly with the same request.

Scared, Stafford spoke with her father. At his suggestion she called the United

States Marshall, who put her in touch with Deputy Sheriff John Cabrera.

Searching Stafford’s house, Deputy Cabrera and other officers found Horrell’s fire

extinguisher, squeegee and lipstick holder, and a brochure for a recreational area

in South Dakota where Horrell’s family owned property. In Stafford’s fire pit,

officers found eyeglasses and documents that, while burned, could still be

identified as Horrell’s. That same day, police arrested defendant and Kegg.

Defendant had the parts of a .22-caliber revolver in his pocket. Kegg subsequently

turned over Horrell’s jewelry to the police.

Stafford, when called by the People as a witness at trial, was serving a 90-

day sentence for a misdemeanor drug offense; she had previously been convicted

of felony failure to appear. She testified that the People had offered no

consideration, promises or help in exchange for her testimony. So far as she

knew, she might still be prosecuted for her conduct with defendant. Kegg, also

called as a witness by the People, had suffered a felony conviction for burglary

and several felony convictions relating to drugs.

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The defense endeavored to show that defendant was under the influence of

methamphetamine at the time he killed Horrell and did not form the intent to steal

until after killing her. On direct examination by the People, both Stafford and

Kegg denied seeing defendant use drugs on the day he killed Horrell. Stafford and

Kegg also testified on direct that defendant appeared to be calm, behaving

normally and apparently making sense. At the preliminary hearing, however,

Kegg had testified that both he and defendant were using methamphetamine

heavily during that general period of time. Kegg had also previously testified that

defendant arrived at his house seeming “wired,” frantic and confused. After

refreshing his memory with this prior testimony, Kegg explained that his own use

of drugs had probably impaired his perception of defendant.

Lorraine Andrews, R.N., called by the defense, described her routine

medical examination of defendant as an inmate at the Sacramento County jail.

Defendant reported to Andrews that he had been on a “drug run,” that he used

cocaine, heroin, methamphetamine, LSD and marijuana, and that he had recently

lost 50 pounds. Defendant had injection scars, or “tracks,” but Andrews could not

say how old they were. Andrews drew a sample of defendant’s blood, but tested it

only for communicable diseases and not for drugs.

A defense expert witness, Dr. Fred Rosenthal, M.D., Ph.D., opined that

defendant “very likely” was using methamphetamine at the time he killed Horrell.

Dr. Rosenthal, a psychologist and psychiatrist, had not interviewed defendant and

did not know his criminal history. Instead, Dr. Rosenthal based his opinion on

factual materials supplied by defense counsel, including the preliminary hearing

transcript, the statements of witnesses, and a videotaped interrogation of defendant

by police on February 16, 1988, three days after the crime occurred. The trial

court permitted the defense to play the videotape for the jury without sound to

show defendant’s demeanor, which Dr. Rosenthal described as sleepy and thus

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indicating long-term methamphetamine use. The trial court also permitted Dr.

Rosenthal to repeat, as part of the basis of his opinion, defendant’s statement on

the tape that he was puzzled about what had happened. In Dr. Rosenthal’s

opinion, a person whose thinking was disorganized by methamphetamine would

not likely be able to form the plan to pose as a good Samaritan in order to rob and

kill a stranded motorist. Dr. Rosenthal acknowledged, however, the “unlikely”

possibility that a methamphetamine user could form the intent to kill and steal.

2. The Robbery and Attempted Kidnapping of Geraldine Ford

During the guilt phase, the People proved that defendant had previously

robbed and attempted to kidnap another female motorist, Geraldine Ford. The

trial court admitted this evidence under Evidence Code section 1101, subdivision

(b), to show defendant’s intent with respect to Doris Horrell.

The crime occurred on January 4, 1988, in the parking lot of a Target store

in Sacramento. Ford, an auditor for the California Highway Patrol, had been

shopping. While she was inside the store, the sun had gone down and the lights in

the parking lot had come on. Backing her car out of a parking slot, she realized

the car had a problem. Defendant approached, pointed out a flat tire and offered to

change it. Ford noted defendant’s general description and a flower tattoo on the

back of his hand. After finishing the job, defendant returned the tools to the trunk

of Ford’s car. Ford saw a gun tucked into the waistband of defendant’s pants and

asked whether he was in law enforcement. He replied that he worked for the

county. Ford thanked him, and he followed her to the open driver’s side door of

her car. He then held a gun and a knife to Ford’s stomach, told her to get into his

truck and said, “don’t run or I will shoot you. And don’t scream or I will stab

you.” Saying, “you’ve got to be kidding; I’m not getting into your truck,” Ford

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backed away, ran and then hid behind another vehicle. Defendant grabbed her

purse from the driver’s seat of her car and fled in his pickup truck.

Ford’s purse contained, among other things, two distinctive rings and a

Sprint telephone card. Defendant gave the rings to Patricia Weers, who sold one

to Debbie Yoast. Defendant later asked Weers to return the ring she had kept,

explaining that it might incriminate him in an offense against a woman who

worked for the California Highway Patrol. Police eventually recovered the other

ring from Yoast. Defendant used Ford’s previously unused Sprint telephone card

to charge calls to his friend Ron Kegg. After police arrested defendant for the

murder of Doris Horrell, Detective Craig Trimble visited him in prison. When the

detective told defendant he was investigating a robbery at a Target store and had a

lead involving the victim’s Sprint card, defendant replied, “You are on the right

track.” That same day, Ford identified defendant as her assailant in a

photographic lineup. She later identified him in court, as well.

The People proved this incident through the testimony of Geraldine Ford,

Patricia Weers and the investigating officers. The defense focused on challenging

Ford’s identification of defendant.

B. Penalty Phase

1. The Aggravating Evidence

The People’s evidence in aggravation consisted of the circumstances of the

capital offense (§ 190.3, factor (a)), three prior felony convictions (id., factor (c))

and five incidents of criminal activity involving violence or a threat of violence

(id., factor (b)). One such incident was the robbery and attempted kidnapping of

Geraldine Ford, which the People had proved at the guilt phase and as to which

they offered no additional evidence at the penalty phase.

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a. The robbery of James Jacobs

On March 2, 1976, defendant entered the home of his 91-year-old neighbor,

James Jacobs, on the ruse of needing to borrow a plunger. Inside, defendant cut

the telephone cord, slit Jacobs’s throat with a four-inch folding knife, ransacked

the house and stole a variety of pain medications and anticonvulsives. Defendant

reported these events to his brother Steve Yeoman, who informed the police over a

year later. Defendant subsequently admitted the crime and, in 1977, pled guilty to

robbery with great bodily harm. (§ 211.) The People proved the crime and its

violent circumstances through official records and the testimony of witnesses.

These included Steve Yeoman, the housekeeper who rendered first aid, the police

officers who responded to the call and investigated the crime scene, and the

detective who interviewed Steve Yeoman and heard defendant’s confession. The

court admitted this evidence as showing both violent criminal activity (§ 190.3,

factor (b)) and a prior felony conviction (§ 190.3, factor (c)).

On direct examination, Steve Yeoman made conflicting statements about

whether defendant had bragged of hurting Jacobs, ultimately acknowledging “[h]e

may have, but it was the drugs that was making him brag.” Defense cross-

examination focused on defendant’s heavy use of drugs and subsequent

expressions of remorse for the crime.

b. The molestation of Sharon C. and Duane C.

At the same time defendant pled guilty to the robbery of James Jacobs, he

also pled guilty to the crimes of lewd and lascivious conduct (§ 288) against his

stepdaughter Sharon C., and oral copulation of Sharon’s brother, Duane C.

(§ 288a). The People proved these prior felony convictions (§ 190.3, factor (c))

through official records. Because defendant’s crime against Sharon had involved

a threat of violence, the court also admitted evidence of its factual circumstances

as showing criminal activity. (§ 190.3, factor (b).) The People proved the

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circumstances through the testimony of Sharon, herself, and of the investigating

officer.

Sharon testified that defendant molested her from the time she was 10 until

she was 13. She did not initially know defendant’s conduct was wrong. At the

age of 13, however, she confronted him. Defendant said that if she told anyone,

her mother would not believe her, the family would be broken up, and this would

be her fault. Defendant also threatened to kill her. Sharon believed him because

he had beaten both her mother and herself. On defense cross-examination, Sharon

acknowledged that she had not reported defendant’s threats to the investigating

officer. On redirect, she explained that she had not done so because the

investigating officer had guaranteed her that defendant would be out of the home

and in jail. The record does not reflect Duane C.’s precise age at the time

defendant molested him. Sharon testified he was four to five years younger than

she.

c. The rape of Linda E.

In 1968, while defendant was in the United States Army, he forcibly raped

the wife of a friend and fellow soldier then serving in Vietnam. The court

admitted this evidence as showing prior violent criminal activity (§ 190.3, factor

(b)) but not a prior felony conviction (id., factor (c)), because the parties had

agreed that convictions in courts martial were not admissible for that purpose. The

People proved the rape through the testimony of the victim, Linda E., portions of

the transcript of the court martial and the stipulation that defendant had in that

proceeding admitted a forcible rape.

The relevant evidence showed that defendant was stationed at Fort Riley,

Kansas, in a special detachment for soldiers who had been absent without leave.

Linda’s husband, who was defendant’s friend, had left for Vietnam a week earlier.

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On August 3, 1968, Linda, defendant and a soldier named Elliot drove Linda’s car

to a park on the base. As planned, the two men spent the afternoon there replacing

the car’s damaged door. The men drank wine as they worked, but Linda did not.

After finishing the work, all three drove to a more remote location on the base

where defendant and Elliot wanted to drink beer. Linda had planned to drop them

off and leave, but defendant would not relinquish her ignition key. She got out of

the car, started walking away and then ran, but defendant caught her. Defendant

threatened her with a hunting knife, and both men raped her. Afterwards,

defendant told Linda he would kill both her and her husband if she turned him in.

Cross-examining Linda, the defense attempted to suggest that the rape was

a ruse intended to support her effort to obtain a hardship discharge for her

husband. The defense also sought to prove that Linda earlier in the day had

implicitly offered defendant consensual sex by agreeing to his proposal that he

would fix the car’s door if she would “supply the beer and the company.” Linda

denied this.

d. The killing of David Hill

On January 14, 1988, a month before killing Doris Horrell, defendant killed

David Hill. Although defendant was not charged with that crime in this

proceeding, the court admitted the evidence as showing criminal activity involving

force or violence. (§ 190.3, factor (b).)

Hill operated an automobile repair business out of his home in Roseville.

He also sold drugs. On January 15, Hill was found dead on his living room floor.

The house had been ransacked in a manner suggesting a search for drugs.

Postmortem examination of Hill’s body revealed two gunshot wounds, one to the

head and one to the neck and shoulder. The fatal slugs had fragmented and could

10

not be identified. A spent slug found in the wall, however, bore marks showing it

could have been fired from any Smith & Wesson .38-caliber weapon.

Hotel records and other evidence showed that defendant had stayed at the

Best Western Roseville Inn from January 14 to January 15, 1988. On January 14,

defendant called his friend Ron Kegg from the motel and asked for a ride. In

defendant’s room, Kegg saw an attaché case full of methamphetamine and a large

amount of cash. Defendant also had a distinctive short-barreled .38-caliber

revolver with custom fat grips and a shrouded hammer (i.e., no spur), similar to a

Smith & Wesson that defendant’s brother-in-law Michael Ayers later reported

stolen. Defendant and Kegg injected some of the methamphetamine and left in

Kegg’s car. Kegg dropped defendant off at a medical building in Roseville, less

than half a mile from Hill’s house. Hill was found dead the next day, January 15.

Hotel records showed that defendant checked out on January 15 at 10:49 a.m. A

blue Mercury Monarch that witnesses had seen at Hill’s house on the afternoon of

January 14, loaded with household goods, was found abandoned at the motel and

subsequently impounded by police.

Four months later, police recovered several items that had belonged to Hill

from the home of defendant’s stepmother, Roberta Yeoman. Roberta had

removed these items from defendant’s rented storage locker at his request. The

items were identified by Hill’s girlfriend, Monique Hubertus. Hubertus had lived

in Hill’s house with her children since 1985 and had moved out only recently,

after Hill developed problems with drugs and alcohol. The items Hubertus

identified included, among many other things, a distinctive handmade knapsack,

Hubertus’s own diaper bag, and a yellow ski vest she had bought for Hill and for

which she still had the receipt. Hubertus also identified as Hill’s several items

found on defendant’s person, including Hill’s San Francisco Forty-Niners wallet

and his black Uniroyal jacket. Keys found at Roberta Yeoman’s house, and other

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keys found in defendant’s possession when he was arrested, fit automobiles that

had been seen on Hill’s property on the day he died. One of these was the blue

Mercury Monarch police had impounded at the Roseville Inn.

At some point before February 16, 1988, when he was arrested for the

murder of Doris Horrell, defendant admitted to his brother-in-law Michael Ayers

that he had shot Hill. Ayers, however, did not believe this. After he was arrested,

defendant twice again admitted the killing in telephone calls from jail to his sister

Linda Ayers. In those conversations, defendant described Hill as “a no good drug

dealer.”

The People proved these events through the testimony of Ron Kegg,

Michael Ayers, Linda Ayers, Roberta Yeoman, Monique Hubertus, other persons

who could identify Hill’s possessions, the manager of the Roseville Inn, the man

who discovered Hill’s body, the investigating officers, medical and firearms

experts, and other witnesses.

The defense focused on suggesting that various persons other than

defendant might have killed Hill. Jason Montgomery visited Hill’s home a few

days after Christmas 1987 and saw him arguing about money with two heavy-set

“Spanish looking” men. The men had driven a white Trans Am. Montgomery

saw the same Trans Am at Hill’s house again on January 13. He described the

driver, whom he could not positively identify, as “similar” to a photograph of

Michael Ayers. On January 14, the day Hill died, Carol Grabowsky saw a stocky,

well-dressed man leaving Hill’s house about 1:00 p.m. Sometime in the early

afternoon, Robert Connors saw a young man with unkempt clothes kneeling down

on the sidewalk across from Hill’s house looking extremely nervous and

frightened. Dawn Worley saw a two-toned blue car driving away from Hill’s

house between noon and 2:00 p.m. Arthur Bracco, a mailman, saw Hill alive at

3:00 p.m., speaking with another man who stepped into the shadows to avoid

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being seen. Finally, Carla Nebeker saw a man with shoulder-length hair

staggering away from Hill’s house about 6:00 or 7:00 p.m. But other witnesses

testified that Hill’s automobile repair business had caused his property to look like

a used car lot, with much traffic during the day and someone working on cars at all

times, day and night.

The defense also called Lori Bakos, who testified that William Summers

and James Baxter had bragged of shooting Hill in the head and using their knives

to remove the bullets. The two men said this, Bakos claimed, on the evening of

January 14 in Bob Bragg’s upholstery shop. But Baxter and Summers, called by

the defense as witnesses, denied this. Bakos’s story also conflicted with the

physical evidence, which showed that the single slug entering Hill’s skull had

fragmented and remained in place until the autopsy. Bakos also claimed to be “an

undercover police officer” but retracted the claim on cross-examination,

describing herself instead as an “informant.” The officers for whom she claimed

to have worked, Officers Frederick Rockholm and Tod Call, described her as

unreliable and tending to fantasize. Bakos had once reported a homicide at a

specific location, but no body could be found and her information could not be

linked with any reported crime. Officer Rockholm had on a single occasion

unsuccessfully attempted to use Bakos to make a controlled buy of narcotics. He

had not, however, contrary to Bakos’s testimony, ever asked a judge to make her a

“legal informant,” a term with which he was unfamiliar.

On rebuttal, the People further challenged Bakos’s credibility. Lieutenant

Joel Neves, who investigated Hill’s death, testified that Bakos had earlier told a

different story. On February 16, 1988, two days after Hill died, Bakos told

Lieutenant Neves, Detective Brian Wilder and Officer Darrell Stump that the

killing had resulted from a drug war between rival organizations led by Bob Bragg

and Robert Welch, and that the actual killer was Kevin Ray Pool. Bakos did not

13

mention Summers or claim that he and Baxter had killed Hill. Later, Bakos said

that she had allowed Pool to move in with her in order to learn more about Hill’s

murder. After a week, she retracted her claim that Pool was responsible and said

she did not know who the murderer was.

2. The Mitigating Evidence

The defense mitigating evidence, in summary, showed that defendant had

suffered serious physical and sexual abuse in childhood that affected his

development and behavior and possibly caused brain damage. Correctional

personnel and former employers testified that defendant was a good worker.

Defendant’s stepdaughter testified that he had saved her daughter’s life.

More specifically, defendant’s family lived in Tyler, California, near

Nevada City. They were extremely poor. They had little to eat and took clothing

and toys from the dump. Defendant’s father, Ralph Yeoman, called defendant a

bastard and claimed his true father was Ralph’s brother, Cliff. Ralph beat his wife

and children, including defendant, frequently and brutally. Defendant’s brother

Terry Lumsdon once saw Ralph break a two-by-four over defendant’s back and

head, and various witnesses saw him kick defendant repeatedly in the head. Ralph

sexually molested both his daughters and defendant. When defendant was nine,

Ralph attempted to penetrate him sexually. Defendant’s uncle Richard gave him

alcohol and engaged him in oral copulation. When defendant was 14, his mother

had sexual intercourse with him after finding her husband in bed with another

woman.

Dr. Mindy Rosenberg, Ph.D., a psychologist, testified extensively about

defendant’s personal and family history and its effect on his personality and

psychological development. Dr. Rosenberg explained that persons who have

experienced very serious physical, sexual and psychological abuse as children are

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at greater risk for experiencing a wide range of later problems, possibly including

violent behavior. While Dr. Rosenberg would not say that defendant’s abusive

childhood had caused his criminal behavior, she did opine that the severity and

brutality of the abuse he suffered had affected him significantly.

Correctional officers and employees who had supervised defendant in

various institutions consistently testified that he was a helpful, good worker who

did not cause trouble. While in custody as a mentally disordered sex offender at

Atascadero State Hospital, defendant held responsible jobs working in an office,

helping to process new arrivals, and assisting with building maintenance. In the

latter job, defendant was cleared for access to sharp tools. While imprisoned at

Soledad State Prison, defendant worked in the kitchen and was considered

sufficiently reliable to be released for work during lock-downs. Two private

employers, both in the roofing business, also testified that defendant was a good

worker. One of these employers, David Petrali, had discussed the Bible with

defendant and believed he had a deep interest in religion.

Dr. Arthur Kowell, M.D., a neurologist, interpreted the results of a BEAM

(brain electrical activity mapping) test performed on defendant. Dr. Kowell

opined that the test results showed a dysfunction in defendant’s temporal or left

parietal lobe consistent with childhood physical abuse.

Cynthia Witt, defendant’s stepdaughter, testified that defendant had helped

to care for her young daughter Brandy during a severe illness and had saved her

life with mouth-to-mouth resuscitation. Out of gratitude, Cynthia named her son

Derek Michael after defendant.

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II. DISCUSSION

A. Guilt Phase Issues

1. Challenges for Cause

Defendant claims the trial court deprived him of due process and a fair trial

by denying his challenges of four prospective jurors for cause.2 None of the four

sat on defendant’s jury because he peremptorily challenged each. Defendant

eventually exhausted his peremptory challenges and expressed dissatisfaction with

the jury. While the claim is thus properly before us, we may reject it without

examining the merits of defendant’s challenges for cause because defendant

cannot show prejudice.

To prevail on such a claim, defendant must demonstrate that the court’s

rulings affected his right to a fair and impartial jury. (People v. Crittenden (1994)

9 Cal.4th 83, 121.) None of the four prospective jurors could possibly have

affected the jury’s fairness because none sat on the jury. (People v. Ramos (1997)

15 Cal.4th 1133, 1159; see Ross v. Oklahoma (1988) 487 U.S. 81, 85-86.) The

harm to defendant, if any, was in being required to use four peremptory challenges

to cure what he perceived as the trial court’s error. Yet peremptory challenges are

given to defendants subject to the requirement that they be used for this purpose.

(People v. Gordon (1990) 50 Cal.3d 1223, 1248, fn. 4.) While defendant’s

compliance with this requirement undoubtedly contributed to the exhaustion of his

peremptory challenges, from this alone it does not follow that reversible error

occurred. An erroneous ruling that forces a defendant to use a peremptory

challenge, and thus leaves him unable to exclude a juror who actually sits on his

case, provides grounds for reversal only if the defendant “can actually show that

2

Rollend F., Larry J., Deborah P. and Laura P.

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his right to an impartial jury was affected . . . .” (People v. Bittaker (1989) 48

Cal.3d 1046, 1087-1088, italics added.) In other words, the loss of a peremptory

challenge in this manner “ ‘provides grounds for reversal only if the defendant

exhausts all peremptory challenges and an incompetent juror is forced upon

him.’ ” (People v. Hillhouse (2002) 27 Cal.4th 469, 487, italics added, quoting

Ross v. Oklahoma, supra, at p. 89; cf. United States v. Martinez-Salazar (2000)
528 U.S. 304, 315-317.) Here, defendant cannot show his right to an impartial

jury was affected because he did not challenge for cause any sitting juror. No

incompetent juror was forced upon him.

2. Wheeler Motion

Defendant claims the trial court erroneously denied his motion for a

mistrial under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). In the motion,

defendant asserted the People had peremptorily challenged four African-American

prospective jurors on account of their race. The motion would more properly have

been brought as a motion to dismiss the venire, but this procedural irregularity has

not prevented us from considering similar claims in other cases. (See People v.

Williams (1997) 16 Cal.4th 635, 662, fn. 9; People v. Mayfield (1997) 14 Cal.4th

668, 722, fn. 7.)

Defendant presented his motion orally, after the 12 trial jurors had been

selected but not yet sworn. Defendant’s entire presentation on the motion

consisted of naming the four prospective jurors in question, noting their juror

numbers, occupations and race, and citing our decision in Wheeler, supra, 22

Cal.3d 258. The court deferred its ruling in order to give the motion “more than

cursory attention” and to review the record. The court thereafter entered a written

order finding no prima facie case of group bias as to three of the four prospective

jurors and directing the prosecutor to explain his reasons for challenging one.

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When the prosecutor offered his explanation, the court declared itself satisfied and

denied the motion. The jury as sworn included 11 jurors who identified

themselves as “White” or “Caucasian” and one who identified himself as “Black.”

In finding that defendant had failed to demonstrate a prima facie case of

group bias as to the first three prospective jurors, the trial court did not err. Such a

demonstration entails, at the least, making as complete a record as feasible of the

relevant circumstances, establishing that the excluded persons belong to a

cognizable group, and showing that the other party has more likely than not

exercised its peremptory challenges because of group association rather than any

specific bias. (People v. Johnson (June 30, 2003, S097600) __ Cal.4th __ [pp. 6,

15, 18]; see Wheeler, supra, 22 Cal.3d 258, 280.) Defense counsel’s cursory

reference to prospective jurors by name, number, occupation and race was

insufficient. It was no more helpful to the court than the similarly cursory

presentation we held insufficient in People v. Howard (1992) 1 Cal.4th 1132,

1154, where counsel relied exclusively on the fact that the prosecutor had

challenged the only two African-American prospective jurors without making

“any effort to set out the other relevant circumstances, such as the prospective

jurors’ individual characteristics, the nature of the prosecutor’s voir dire, or the

prospective jurors’ answers to questions.”

When a trial court denies a motion under Wheeler, supra, 22 Cal.3d 258,

after finding no prima facie case of group bias, we consider the entire record of

voir dire for evidence to support the trial court’s ruling. If the record suggests

grounds upon which the prosecutor might reasonably have challenged the

prospective jurors in question, we affirm. (People v. Johnson, supra, __ Cal.4th

__ [p. 28]; People v. Howard, supra, 1 Cal.4th 1132, 1155.)

Here, the record does indicate grounds on which the prosecutor might

reasonably have challenged each of the three prospective jurors as to which the

18

trial court found no prima facie case of group bias. While each of the three

prospective jurors gave appropriate answers to oral questions intended to confirm

his or her willingness to follow the court’s instructions and to vote for the death

penalty if appropriate, each prospective juror’s written responses to the jury

questionnaire might reasonably have caused the prosecutor to prefer other jurors.

For example, Prospective Juror Margaret B., a 42-year-old surgical nurse,

indicated on her questionnaire that she “would not like to sit as a juror,” “cannot

judge another,” and felt “frustrated” that “the Supreme Court is far to the right.”

Theresa H., a 32-year-old computer system administrator, indicated on her

questionnaire that she had not favored the 1978 initiative reinstating the death

penalty, and that the causes of and solution to “crime problems,” respectively,

were “haves and have nots” and the “possibility of socialism.” Vera Mae M., a

52-year-old seamstress, left blank several of the questions intended to explore her

attitudes towards crime and capital punishment, including the questions “What is

your attitude towards the death penalty?” and “Did you favor the 1978 Briggs

Initiative which reinstated the death penalty in California?” Because the record

suggests these race-neutral reasons why the prosecutor might reasonably have

preferred other jurors, the trial court’s decision not to find a prima facie case as to

these prospective jurors must be affirmed. (People v. Howard, supra, 1 Cal.4th

1132, 1155.)

Defendant disputes this conclusion, asserting that jurors and prospective

jurors the prosecutor did not challenge gave responses comparable to those he did

challenge. Defendant did not, however, present a comparative juror analysis to the

trial court. We recently reaffirmed in People v. Johnson, supra, __ Cal.4th __

[pp. 19-27], our understanding that a reviewing court should not attempt its own

comparative juror analysis for the first time on appeal.

19

Turning to the single prospective juror as to whom the trial court did find a

prima facie case, we find no flaw in the trial court’s subsequent determination that

the People’s peremptory challenge was based on factors other than group bias.

The prospective juror in question was Isaac J., a 43-year-old correctional officer at

the California Medical Facility at Vacaville. Concerning Isaac J., the prosecutor

explained that he had “opted towards jurors, all twelve in that box, who have

stronger death penalty views.” Isaac J., the prosecutor explained, had not

answered written questions intended to explore his attitude toward the death

penalty and had testified on voir dire that he had not given the subject much

thought. For the trial court to accept this explanation was reasonable because the

record supported the prosecutor’s assertions about the prospective juror’s

responses, and because the prospective juror’s apparent ambivalence towards the

death penalty had been the exclusive subject of the prosecutor’s questions to him

on voir dire.

For the first time on appeal, defendant asserts a claim under Batson v.

Kentucky (1986) 476 U.S. 79 (Batson), in which the high court held that the equal

protection clause of the Fourteenth Amendment to the United States Constitution

forbids prosecutors to exclude prospective jurors on account of their race. In the

trial court, defendant cited only Wheeler, supra, 22 Cal.3d 258, which interprets

the representative cross-section requirement of article I, section 16 of the

California Constitution. (Wheeler, supra, at pp. 276-277.) The People contend

defendant waived his federal claim by failing to raise it below. The decisions in

People v. Garceau (1993) 6 Cal.4th 140, 173, and People v. Ashmus (1991) 54

Cal.3d 932, 987, support the People’s position. In more recent cases, however, we

have not held that defendants waived Batson claims by citing only Wheeler at

trial. Instead, we have simply observed that Wheeler and Batson articulate the

same standard and, after deciding the Wheeler claim on its merits, rejected the

20

Batson claim as moot. (People v. Farnham (2002) 28 Cal.4th 107, 139, fn. 11;

People v. Catlin (2001) 26 Cal.4th 81, 117, fn. 4.) More recently, in People v.

Johnson, supra, __ Cal.4th __, we reached the merits of the defendant’s Batson

claim without suggesting that he somehow forfeited that claim by failing to cite

Batson at trial.

Consistently with these recent cases, we believe that to consider

defendant’s claim under Batson, supra, 476 U.S. 79, is more consistent with

fairness and good appellate practice than to deny the claim as waived. As a

general matter, no useful purpose is served by declining to consider on appeal a

claim that merely restates, under alternative legal principles, a claim otherwise

identical to one that was properly preserved by a timely motion that called upon

the trial court to consider the same facts and to apply a legal standard similar to

that which would also determine the claim raised on appeal. Defendant’s Batson

claim is of that type. His motion under Wheeler, supra, 22 Cal.3d 258, required

the trial court to conduct the same factual inquiry required by Batson into the

possibly discriminatory use of peremptory challenges, and to apply a standard

identical to Batson’s for determining whether defendant had stated a prima facie

case. (See People v. Johnson, supra, __ Cal.4th __ [pp. 11-18].) Under these

circumstances, the Batson claim is properly cognizable on appeal by analogy to

the well-established principle that a reviewing court may consider a claim raising a

pure question of law on undisputed facts. (E.g., People v. Hines (1997) 15 Cal.4th

997, 1061; Hale v. Morgan (1978) 22 Cal.3d 388, 394; Ward v. Taggart (1959) 51

Cal.2d 736, 742.) While defendant does dispute the trial court’s resolution of the

factual issues underlying his Batson claim (i.e., whether he stated a prima facie

case and whether the prosecutor’s explanation was adequate), the same factual

issues are properly before us already because of defendant’s timely Wheeler

motion. Under these circumstances, to consider the Batson claim entails no

21

unfairness to the parties, who had an opportunity to litigate the relevant facts and

to apply the relevant legal standard in the trial court.3 Nor does it impose any

additional burden on us, as the reviewing court. Accordingly, we may properly

consider defendant’s Batson claim on the merits. Doing so, we conclude it fails

for the same reason his Wheeler claim fails.

Defendant’s unelaborated citations to the Fifth, Sixth and Eighth

Amendments to the United States Constitution add nothing to his argument.

Holland v. Illinois (1990) 493 U.S. 474, which defendant also cites, provides no

conceivable support for his objection to the People’s use of peremptory

challenges. In Holland, which has been applied retroactively (Bell v. Baker (6th

Cir. 1992) 954 F.2d 400, 401-402, cert. den. (1992) 506 U.S. 984), the high court

held that the Sixth Amendment does not preclude litigants from using their

peremptory challenges to exclude members of cognizable racial groups from petit

juries.

3. Motion for Additional Peremptory Challenges

Defendant moved at trial for additional peremptory challenges to replace

those he had used to dismiss the prospective jurors he unsuccessfully challenged

for cause. (See ante, at p. 16 et seq.) The trial court denied the motion. We

perceive no error. To be sure, we have observed that “an erroneous denial of a

challenge for cause can be cured by giving the defendant an additional peremptory

challenge.” (People v. Bittaker, supra, 48 Cal.3d 1046, 1088.) Yet, while a trial

3

“The general rule confining the parties upon appeal to the theory advanced

below is based on the rationale that the opposing party should not be required to
defend for the first time on appeal against a new theory that ‘contemplates a
factual situation the consequences of which are open to controversy and were not
put in issue or presented at the trial.’ [Citation.]” (Ward v. Taggart, supra, 51
Cal.2d 736, 742.)

22

court that was convinced it had erred might well grant additional peremptory

challenges, the mere claim of error cannot reasonably be thought sufficient to

compel the court to do so. Otherwise, the number of peremptory challenges a trial

court must allow would be limited only by the number of challenges for cause a

party was willing to assert, regardless of merit. In another context, we have held

that “to establish [a] constitutional entitlement to additional peremptory

challenges . . . , a criminal defendant must show at the very least that in the

absence of such additional challenges he is reasonably likely to receive an unfair

trial before a partial jury.” (People v. Bonin (1988) 46 Cal.3d 659, 679 [rejecting

a claim of error based on the trial court’s refusal to allow additional peremptory

challenges to redress the effects of pretrial publicity].) We see no reason the same

standard should not apply in this context. Applying that standard, we conclude

defendant cannot show the trial court’s failure to allow additional peremptory

challenges caused him to receive an unfair trial, because he did not challenge any

sitting juror for cause.

Defendant also claims the trial court should have granted him additional

peremptory challenges to redress what he describes as the court’s error under

Wheeler, supra, 22 Cal.3d 258, and Batson, supra, 476 U.S. 79. The claim lacks

merit, because the court did not err. (See ante, at p. 17 et seq.) Defendant’s

unelaborated citations to the Fifth, Sixth, Eighth and Fourteenth Amendments to

the United States Constitution in support of this claim add nothing to his

argument.

4. Motion for Separate Guilt and Penalty Phase Juries

Before trial, defendant asked the court to empanel separate juries for the

guilt and penalty phases of his trial. The court exercised its discretion to deny the

request. (See People v. Rowland (1992) 4 Cal.4th 238, 268.) Defendant contends

23

the court thereby abused its discretion and prejudiced the defense by forcing it to

disclose information about his prior offenses in voir dire, thus biasing the jury

against him at the guilt phase.

The claim lacks merit. Certainly a court has the power to empanel separate

juries for the various phases of a capital case “for good cause shown.” (§ 190.4,

subd. (c).) Yet the Legislature has expressed a preference for a single jury (ibid.),

and we have repeatedly held that defense counsel’s desire to conduct voir dire one

way for the guilt phase and another for the penalty phase does not constitute good

cause for separate juries. (People v. Rowland, supra, 4 Cal.4th 238, 268; People v.

Nicolaus (1991) 54 Cal.3d 551, 573-574.) Contrary to defendant’s assertion,

California law does not force capital defendants to mention their criminal history

during voir dire. The decision whether to use voir dire to probe the prospective

jurors’ attitudes about other offenses that may be introduced at the penalty phase is

just one of the difficult tactical decisions counsel routinely faces. (People v.

Nicolaus, supra, at p. 573.)

Defendant distinguishes our prior decisions. (People v. Rowland, supra, 4

Cal.4th 238, 268; People v. Nicolaus, supra, 54 Cal.3d 551, 573-574.) In those

decisions, he contends, “defense counsel chose to forgo complete voir dire rather

than risk polluting the guilt phase jury with other crimes evidence.” Here, defense

counsel made the opposite decision. Thus, “for the first time,” defendant

continues, “this Court is in a position to assess the prejudice which flows from

defense counsel’s decision to conduct complete voir dire at the cost of polluting

the guilt phase jury.” The argument is not persuasive. The teaching of People v.

Nicolaus is simply that the decision whether to use voir dire to probe prospective

jurors’ attitudes towards a defendant’s other offenses is a tactical one entrusted to

counsel’s good judgment. Counsel’s decision to use voir dire in this way does not

24

transform into an abuse of discretion the court’s proper order denying separate

juries.4

Defendant also contends that the trial court, by refusing to empanel separate

guilt and penalty phase juries, denied him due process and the right to a jury trial.

(See U.S. Const., 5th, 6th, 8th & 14th Amends.) Defendant relies on Leonard v.

United States (1964) 378 U.S. 544 (per curiam) and Johnson v. Armontrout (8th

Cir. 1992) 961 F.2d 748. But those cases involved jurors who had been exposed

to information about the defendants’ criminality outside of the proceedings in

which they were empanelled. In Leonard v. United States, the prospective jurors

had been permitted to observe a trial in which the defendant was convicted of a

related charge. The United States Supreme Court reversed the conviction in a

brief opinion based on the Solicitor General’s concession of error. (Leonard v.

United States, supra, at p. 545.) In Johnson v. Armontrout, 10 of the prospective

jurors and four of the trial jurors had recently rendered a verdict of guilt against

the defendant’s accomplice in another proceeding. The Eighth Circuit vacated the

conviction because the petitioner on habeas corpus proved, among other things,

that two jurors had harbored actual bias against him. (Johnson v. Armontrout,

supra, at pp. 754, 756.) These decisions suggest no basis for reversing a verdict

rendered by presumably impartial jurors whose knowledge of the facts of the case


4

Defendant does not claim that counsel’s tactical decision to inform the

prospective jurors of defendant’s prior offenses deviated from the standard of care
expected of criminal defense attorneys. To the contrary, he concedes that “[i]t was
necessary to pose the question in order to ferret out attitudes which would have
otherwise affected the penalty phase judgment.” He also concedes that the
exercise did succeed in producing information relevant to jury selection.
According to defendant, the prospective jurors’ answers to the question gave
reason to exclude many, and “[n]o person served on the jury who expressed a
prejudgment based on the defendant’s prior record.”

25

derived solely from information properly presented in the proceeding in which

they have been sworn.

5. Admission of Evidence Concerning the Robbery of Geraldine Ford

to Prove Identity and Intent

Defendant contends the court erred in admitting evidence that he robbed

and attempted to kidnap Geraldine Ford. We find no error.

The evidence relevant to this claim has already been summarized. (See

ante, at p. 6 et seq.) Very briefly, defendant approached Ford in the parking lot of

a department store, offering to change her car’s flat tire. The repair completed,

Ford thanked defendant and stood at the open door of her car. Defendant held a

gun and a knife to her stomach and ordered her into his truck. Ford fled, and

defendant took her purse from the driver’s seat of her car. The People offered this

evidence to show the intent and identity of Doris Horrell’s killer. (Evid. Code,

§ 1101, subd. (b).) The defense moved to exclude the evidence as inadmissible

character evidence (see id., § 1101, subd. (a)) and also as posing a danger of unfair

prejudice substantially outweighing any probative value (see id., § 352). The

court denied the motion.

Defendant’s identity as Horrell’s killer “was never seriously questioned,” as

defendant concedes. The defense did, however, earnestly challenge the People’s

theory that defendant formed the intent to rob Horrell before killing her. The

People were required to prove that defendant harbored such an intent in order to

establish the robbery-murder special circumstance. (People v. Musselwhite (1998)

17 Cal.4th 1216, 1263; § 190.2, subd. (a)(17)(A).) To rebut the People’s theory

was the purpose of the defense evidence that defendant was under the influence of

methamphetamine when he killed Horrell, and of the defense cross-examination of

Debra Stafford, who had testified on direct examination that defendant said he had

26

stopped for Horrell “[b]ecause she was dressed nice and she looked like she might

have some money.”

Recognizing the importance of the issue to both sides, we nevertheless

readily conclude the trial court properly exercised its discretion to admit

defendant’s conduct against Geraldine Ford in order to show his intent to rob

Doris Horrell. Defendant contends the crimes against Ford bore insufficient

common features to be probative of intent. To be admissible to show intent,

however, the prior conduct and the charged offense need only be sufficiently

similar to support the inference that defendant probably harbored the same intent

in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) As the trial court

here explained, defendant’s use of a “good Samaritan ploy” to rob and attempt to

kidnap Ford, a stranded female motorist, was sufficiently similar to his later

conduct against Horrell to support the inference that he probably harbored a

similar intent to rob Horrell when he stopped for her on the freeway. The

probative value of defendant’s prior conduct against Ford was, moreover,

sufficient to outweigh any risk of unfair prejudice. (See Evid. Code, § 352.)

Challenging these conclusions, defendant argues that his conduct against

Ford shows only an intent to kidnap, not to rob. Although he took Ford’s purse,

defendant argues, he must have taken it from the driver’s seat of her car after she

fled and, thus, not from her immediate presence or while she still was under force

or fear, as required for robbery. His conduct and words before Ford fled,

defendant continues, show nothing more than an effort to force her into his truck,

leaving the purse on the front seat of her car. Assuming for the sake of argument

that defendant’s interpretation of the evidence is plausible, at least equally

plausible is the alternative inference that an assailant holding a gun and a knife to

his victim’s stomach may intend to control her while simultaneously reaching a

few feet for valuable property. Ford testified that the purse was within reach as

27

she stood at the car’s open door. Certainly the inference that one of defendant’s

reasons for approaching Ford was to take her property by force or fear was strong

enough to support the court’s discretionary decision to permit the jury to consider

the evidence.

The trial court also admitted the evidence of defendant’s attack on Ford to

show the identity of Doris Horrell’s killer. To be admissible to show identity, the

prior conduct and the charged offense must share common features that are

sufficiently distinctive to support the inference that the same person committed

both acts. (People v. Ewoldt, supra, 7 Cal.4th 380, 403.) The degree of similarity

required to show identity is thus higher than that required to show intent. (Id., at

pp. 402-403.) Here, the People argued that sufficient common features resided in

the evidence already mentioned (i.e., defendant’s use of a good Samaritan ploy to

attempt to kidnap female motorists with car trouble), together with the additional

evidence that defendant, on both occasions, used the same truck and gave to

female friends items of jewelry taken from the victims. We need not decide

whether these common features sufficed to show identity. The court’s ruling

admitting the evidence for that purpose, even if erroneous, could not have

prejudiced defendant because the same evidence was properly admitted to show

intent and because defendant concedes that his identity as Horrell’s killer “was

never seriously questioned.”

Turning to federal law, defendant contends that the trial court’s decision to

admit his prior bad acts against Ford was arbitrary and fundamentally unfair, and

thus violated due process. (See Terranova v. Kincheloe (9th Cir. 1988) 852 F.2d

424, 428-429.) 5 Defendant advanced essentially the same claim at trial, where he

5

Of tangential relevance only are the other authorities defendant cites. (In re

Winship (1970) 397 U.S. 358, 362-364 [due process requires proof beyond a

(footnote continued on next page)

28

argued that to admit the Ford incident would violate due process because it would

permit the jury to find him guilty on insufficient evidence, and that any such error

would affect the reliability of the penalty phase verdict. In support of his position

defendant repeats his previous citations to the Sixth, Eighth and Fourteenth

Amendments to the United States Constitution and adds an unelaborated citation

to the Fifth Amendment. We reject the argument because the trial court’s decision

to admit the evidence was correct under state law (Evid. Code, §§ 352, 1101, subd.

(b); see People v. Ewoldt, supra, 7 Cal.4th 380, 402-403), was neither arbitrary

nor fundamentally unfair, and did not render the death verdict unreliable.

6. Claims Based on Geraldine Ford’s Identification of Defendant

a. Suggestive lineup

Defendant asserts that a suggestive photographic lineup tainted Geraldine

Ford’s identification of him as her assailant. On this basis, he claims the trial

court erred in denying his motion in limine to exclude Ford’s out-of-court

identification and in permitting her to identify him in court. We perceive no error.

Due process requires the exclusion of identification testimony only if the

identification procedures used were unnecessarily suggestive and, if so, the

resulting identification was also unreliable. (Manson v. Brathwaite (1977) 432

U.S. 98, 106-114; Neil v. Biggers (1972) 409 U.S. 188, 196-199; see People v.

Cunningham (2001) 25 Cal.4th 926, 989.) Defendant has not shown that the

identification procedures used in this case were unnecessarily suggestive.


(footnote continued from previous page)

reasonable doubt of criminal charges]; Brinegar v. United States (1949) 338 U.S.
160, 174 [same]; People v. Alcala (1984) 36 Cal.3d 604, 630-636 [reversing a
criminal conviction because admission of other-crimes evidence was prejudicial
under the circumstances of the case].)

29

The following summary of the facts is drawn from the evidence presented

at the hearing on defendant’s motion in limine to exclude Ford’s identification

testimony. On January 4, 1988, the day Ford was robbed, she observed defendant

for 10 to 15 minutes while he changed her car’s flat tire and then confronted her

with weapons. It was just starting to get dark, and the lights in the parking lot

were on. Detective Craig Trimble met with Ford the next day, January 5, to

review her prior statement to the responding officer. At that time, Ford helped to

make a composite sketch of her assailant and mentioned that his left hand bore a

flower tattoo.

On January 8, Trimble showed Ford about 150 photographs in mug shot

books. She did not, however, identify any possible suspects. On February 3, Ford

called Trimble to say she had seen in the newspaper a photograph of a person who

was wanted by the Sacramento Police and who, she thought, might be the person

who had attacked her. The photograph was of Lowell Mugridge, also known as

Dan Bennett. On February 17, Trimble showed Ford a lineup of five color

photographs. The fourth photograph was of defendant and was at least a year, or a

year and a half, old. Ford did not identify anyone as a suspect. In preparing the

lineup, Trimble did not include a photograph of Mugridge because Ford had

already seen his picture in a mug book on January 8 but had not identified him.

On March 18, Trimble showed Ford a second lineup of five color photographs.

This lineup included, again in the fourth position, a different, more recent

photograph of defendant taken after his arrest for the murder of Doris Horrell on

February 16. After viewing this lineup, Ford identified defendant as her assailant.

In selecting the fourth image, Ford told Trimble, “[t]his person here looks just like

him except for the way his hair is combed. His facial features are the same and

color of the hair is the same.” Trimble did not tell Ford she had selected the right

person. Trimble also showed Ford a photograph of the back of defendant’s hands,

30

but Ford was unable positively to identify the flower tattoo in the photograph as

the one she had seen. Trimble did not tell Ford that the hands in the photograph

belonged to the same person she had selected in the lineup. Before each lineup,

Trimble admonished Ford that the suspect’s photograph might or might not be

included and that she should not feel obligated to choose one. Trimble never

suggested or intimated by word or gesture that Ford should pick a particular

photograph.

We perceive nothing unduly suggestive in the identification procedures just

described. To determine whether a procedure is unduly suggestive, we ask

“whether anything caused defendant to ‘stand out’ from the others in a way that

would suggest the witness should select him.” (People v. Carpenter (1997) 15

Cal.4th 312, 367, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1217.)

Defendant emphasizes that his image appeared in both lineups, each time in the

fourth position. To use a suspect’s image in successive lineups might be

suggestive if the same photograph were reused or if the lineups followed each

other quickly enough for the witness to retain a distinct memory of the prior

lineup. But here, different photographs of defendant appeared in each lineup, and

the two lineups were separated in time by a month. Under these circumstances we

see no reason to believe that the use or position of defendant’s image in both

lineups was unnecessarily suggestive.6 Defendant seems to argue that any further


6

We have inspected the two lineups, which were admitted as defendant’s

exhibits M-19-A and M-19-B-1 through 5. Each lineup consists of five identically
sized photographs of Caucasian males of apparently similar age and with similar
facial features. Four of the men depicted in the original color photographs that
comprise exhibits M-19-B-1 through 5 (the March 18 lineup) appear to have
similarly colored light red hair. One man has grey hair. Hair color is not evident
in exhibit M-19-A, which is a black-and-white photocopy of the February 17

(footnote continued on next page)

31

attempt to elicit a positive identification of a particular suspect from an eyewitness

who does not identify the suspect from the first photograph shown must be

considered unduly suggestive. But no such rule exists. Defendant also argues that

the lineups in this case were unnecessarily suggestive because Detective Trimble

did not include in them a photograph of Mugridge, whom Ford had named as a

possible suspect. But this omission has no apparent significance, since no

evidence suggests, and defendant has never claimed, that Mugridge actually

committed the crime against Ford.

Our determination that the identification procedures used here were not

unnecessarily suggestive disposes of defendant’s claim under due process. Only if

the challenged identification procedure is unnecessarily suggestive is it necessary

to determine the reliability of the resulting identification. (People v. Johnson,

supra, 3 Cal.4th 1183, 1216; People v. Gordon, supra, 50 Cal.3d 1223, 1242.)

Defendant also contends that Ford’s identification of him was tainted by

her attendance, in September 1988, at a portion of his preliminary hearing for the

murder of Doris Horrell. As the trial court below expressly found, however,

Ford’s attendance at the September hearing has no conceivable bearing on the

accuracy of her identification of defendant in the March lineup, six months earlier,

or on the dispositive question of whether the lineups were unduly suggestive.


(footnote continued from previous page)

lineup. The color photographs show their subjects against identical blue
backgrounds.


During the motion in limine to exclude Ford’s identification testimony, the

trial court stated that the different photographs of defendant used in the two
lineups appeared to show “two different human beings.” In fact, the two
photographs are significantly different. In the February 17 lineup, defendant is
wearing different clothes than in the March 18 lineup, has a different facial
expression and appears to be looking down at the camera.

32

Ford’s attendance at the September hearing might conceivably have affected her

identification of defendant in court. But testimony at defendant’s motion in limine

revealed that Ford had not been called as a witness at the preliminary hearing, had

attended on her own volition and not at the direction of the People, and had seen

defendant’s back only. Ford’s unilateral decision to attend does not implicate the

rule of Manson v. Brathwaite, supra, 432 U.S. 98, and Neil v. Biggers, supra, 409

U.S. 188, which speaks only to suggestive identification procedures employed by

the People. Thus, Ford’s attendance at the hearing affects only the weight, rather

than the admissibility, of her testimony. Because the court properly permitted the

defense to cross-examine her on this matter before the jury, we see no plausible

claim of error.

b. Sanction for loss of original photographs

The People lost the original color photographs that formed the lineup of

February 17; only a black-and-white photocopy was available for trial. As a

sanction for the original photographs’ loss, defendant asked the trial court to

exclude Ford’s identification testimony. Defendant later changed his request to

one for an instruction that the missing original photograph from the first lineup,

which Ford did not identify, showed a likeness of defendant that was “as good or

better” than the photograph Ford subsequently identified on March 18. The trial

court rejected all of these proposed sanctions as unduly severe because no

evidence suggested the loss was intentional or showed bad faith, because the

People had conducted a search for the originals, and because a photocopy was

available. The trial court did, however, instruct the jury that the People would not

be permitted to suggest that Ford had failed to identify defendant from the lost

photograph because it was a poor likeness, and that it would be unfair for the jury

to draw any such conclusion.

33

In these rulings we find no error. “[C]ourts enjoy a large measure of

discretion in determining the appropriate sanction that should be imposed because

of the destruction of discoverable records and evidence. ‘[N]ot every suppression

of evidence requires dismissal of charges. . . . The remedies to be applied need be

only those required to assure the defendant a fair trial.’ ” (People v. Zamora

(1980) 28 Cal.3d 88, 99.) Despite the loss of the original photographs, the defense

successfully proved with the photocopy and through the testimony of Detective

Trimble that Ford had failed to identify defendant on February 17. The court’s

remedial rulings barred the People from attempting to rebut the defense evidence

by arguing that the original photograph was not a good likeness of defendant. On

this record, we see no reason to doubt that defendant received a fair trial.

Assuming for the sake of argument that the sanction actually imposed was

insufficient, the hypothetical error could not have caused prejudice. This is true

even if, as defendant argues, we must evaluate prejudice under the standard of

Chapman v. California (1967) 386 U.S. 18, based on the assumption that the

People’s loss of the original photographs implicated defendant’s due process

rights. (See U.S. Const., 14th Amend.) In support of this argument, defendant

cites Arizona v. Youngblood (1988) 488 U.S. 51 and California v. Trombetta

(1984) 467 U.S. 479, both of which recognize the People’s obligation to preserve

potentially exculpatory evidence.

The evidence identifying defendant as Ford’s attacker, even disregarding

Ford’s identification testimony, easily justifies the conclusion that the trial court’s

failure to impose the harsher sanctions proposed by the defense was harmless

beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.)

Patricia Weers, to whom defendant gave Ford’s distinctive diamond and pearl

ring, testified that defendant said he had gotten the ring from a woman who

worked for the California Highway Patrol and he wanted it back “because it could

34

incriminate him in a crime.” Police eventually recovered the ring from Debbie

Yoast, who had bought it from Weers. Ford’s telephone bill showed calls to

defendant’s friend Ron Kegg, made on a Sprint card Ford had never used. When

Detective Trimble told defendant he “was investigating a robbery that occurred at

the Target Store on Madison Avenue on or about January 4” and “had a lead

concerning the use of the victim’s Sprint card,” defendant replied, “[y]ou are on

the right track.” Finally, Ford identified a photograph of defendant’s camper as

the one on her assailant’s pickup truck. In view of this evidence, which left no

serious doubt that defendant was Ford’s assailant, the trial court’s failure to

impose the harsher sanctions proposed by the defense was harmless beyond a

reasonable doubt.

7. Sufficiency of the Evidence

Defendant claims the People did not introduce sufficient evidence to prove

the robbery-murder special circumstance. (§ 190.2, subd. (a)(17)(A).) The claim

lacks merit.

In order to prove the special circumstance, the People had to prove that

defendant formed the intent to steal before or while killing Doris Horrell. (People

v. Sakarias (2000) 22 Cal.4th 596, 618-619; People v. Green (1980) 27 Cal.3d 1,

52-53.) The relevant evidence showed that defendant left Ron Kegg’s apartment

shortly before the killing, telling Debra Stafford that he had to get some money.

Defendant then stopped on the highway for Horrell, a well-dressed, stranded

motorist, taking her purse, jewelry, coat, house keys and bank cards before

abandoning her body. Shortly thereafter, defendant explained to Stafford that he

had stopped for Horrell “[b]ecause she was dressed nice and looked like she might

have some money.”

35

This evidence sufficed. When “one kills another and takes substantial

property from the victim, it is ordinarily reasonable to presume the killing was for

purposes of robbery.” (People v. Turner (1990) 50 Cal.3d 668, 688.) Here,

defendant took valuable property from the victim and had no other apparent

reason for killing her. The defense attempted to supply another reason with Dr.

Rosenthal’s opinion testimony that the killing was an irrational act caused by

defendant’s use of methamphetamine. But the jury was not required to accept the

witness’s opinion. In any event, the defense theory that defendant killed

irrationally and only later decided to steal was contradicted by the evidence that he

intentionally selected a vulnerable, well-dressed victim, took valuable property

and immediately afterwards destroyed evidence linking himself to the crime. The

testimony that defendant had recently committed a similar crime against another

stranded motorist (Ford) provided additional circumstantial evidence that his

purpose in stopping for Horrell was to steal.

Although a jury must acquit if it finds the evidence susceptible of a

reasonable interpretation favoring innocence, it is the jury rather than the

reviewing court that weighs the evidence, resolves conflicting inferences and

determines whether the People have established guilt beyond a reasonable doubt.

(People v. Millwee (1988) 18 Cal.4th 96, 132.) When our examination of the

whole record discloses evidence that is sufficiently reasonable, credible and of

such solid value as to permit a reasonable trier of fact to find the defendant guilty

beyond a reasonable doubt, we must affirm. (People v. Johnson (1980) 26 Cal.3d

557, 578.) The record in this case does disclose sufficient evidence, as we have

explained.

The same conclusion disposes of defendant’s claim under the due process

clause of the United States Constitution, which bars criminal convictions except

on proof sufficient to establish guilt beyond a reasonable doubt. (In re Winship,

36

supra, 397 U.S. 358, 362-364; see U.S. Const., 14th Amend.) Defendant also

cites the Fifth, Sixth and Eighth Amendments in support of this claim, but he does

not explain how any of those provisions might support a conclusion different than

we now reach.

8. Failure to Instruct on Theft

Defendant contends the trial court erred in declining his request for an

instruction on theft from a dead human body (§ 642) and in failing to instruct the

jury sua sponte on theft (§ 484), a lesser included offense of robbery. The former

ruling does not support a claim of error. Assuming for the sake of argument the

latter does, we find no possibility of prejudice.

At the conclusion of the guilt phase, the trial court instructed the jury on

robbery (§ 211), murder (§ 187), the robbery-murder special circumstance (190.2,

subd. (a)(17)(A)), various lesser included offenses of murder and other matters not

relevant to this discussion. The court declined to instruct on theft from a dead

human body, explaining that nothing “in the evidence . . . suggests less than

robbery.” The court did, however, instruct the jury that “[r]obbery requires proof

of an intent to steal before or during the application of force, rather than merely

after the application of force. Further, there is no robbery if the intent to steal

arises only after the possessor of the property is dead; that is, the intent to steal did

not arise before or during the act of killing.” Applying these instructions, the jury

convicted defendant of robbery and murder, and found the robbery-murder special

circumstance true.

The trial court’s failure to instruct on theft from a dead human body (§ 642)

does not support a claim of error. That offense is not included within robbery, and

a defendant has no unilateral right to an instruction on an uncharged offense that is

not necessarily included within a charged offense. (People v. Birks (1998) 19

37

Cal.4th 108, 136.) While theft from a dead human body might have been

sufficiently related to robbery to have permitted an instruction under the reasoning

of People v. Geiger (1984) 35 Cal.4th 510, we retroactively overruled Geiger in

People v. Birks, supra, at page 113.

Theft (§ 484), on the other hand, is a lesser offense necessarily included

within robbery. (People v. Ortega (1998) 19 Cal.4th 686, 693-694; People v.

Bradford (1997) 14 Cal.4th 1005, 1055.) Defendant did not, however, specifically

request an instruction on theft, as distinguished from theft from a dead human

body. A duty to instruct sua sponte on a lesser included offense arises only when

evidence exists that would justify a conviction on the lesser offense. (People v.

Bradford, supra, at p. 1055.) In defendant’s view, the record does contain

evidence showing he first formed the intent to take property from Doris Horrell

only after she had died and, thus, was guilty only of theft rather than robbery.

Defendant would find such evidence primarily in the testimony of defense expert

Dr. Rosenthal, who testified that defendant probably killed Horrell under the

influence of methamphetamine and that advanced levels of methamphetamine

intoxication can render a user unable to formulate so complex a plan as to pose as

a good Samaritan for the purpose of killing a stranded motorist and taking her

valuables.

Assuming for the sake of argument this evidence sufficed to require an

instruction on theft, the trial court’s failure to give such an instruction could not

have caused prejudice. This is because the court instructed the jury that “[r]obbery

requires proof of an intent to steal before or during the application of force, rather

than merely after the application of force. Further, there is no robbery if the intent

to steal arises only after the possessor of the property is dead; that is, the intent to

steal did not arise before or during the act of killing.” By finding defendant guilty

of robbery despite this instruction, the jury must have resolved against him the

38

question whether he formed the intent to steal only after Horrell died. Therefore,

any hypothetical error was harmless. (See People v. Turner, supra, 50 Cal.3d 668,

690-691; see also People v. Sedeno (1974) 10 Cal.3d 703, 721.)

Even though the jury must have resolved the question of intent against him

under the proper instruction just quoted, defendant contends the trial court

nevertheless erred under Beck v. Alabama (1980) 447 U.S. 625. The decision in

Beck has nothing to do with this case. In Beck, the United States Supreme Court

held that an Alabama law barring instructions on lesser included offenses of

capital murder violated the Eighth and Fourteenth Amendments to the United

States Constitution. (Beck, supra, at pp. 627, 637-638.) California law is not

similar. Moreover, the trial court below did instruct on several lesser included

offenses of capital murder, including second degree murder, voluntary

manslaughter and involuntary manslaughter. Because the jury thus “was not faced

with an all-or-nothing choice between the offense of conviction (capital murder)

and innocence,” the “central concern of Beck simply is not implicated.” (Schad v.

Arizona (1991) 501 U.S. 624, 647; see also People v. Hawkins (1995) 10 Cal.4th

920, 953-954.) In any event, the high court in Beck did not purport to require

instructions on lesser included offenses of crimes other than capital murder. (See

Beck, supra, at p. 637.)

9. Instructions on Suppression of Evidence and Conscious Possession

of Recently Stolen Property

The trial court instructed the jury in the language of CALJIC No. 2.06 that

an attempt by defendant to suppress evidence tended to show consciousness of

guilt but was, by itself, insufficient to prove guilt.7 The court also instructed, in


7

The court instructed: “If you find the defendant attempted to suppress

evidence against himself in any manner such as by destroying evidence or

(footnote continued on next page)

39

language based on CALJIC No. 2.15, that conscious possession of recently stolen

property did not by itself permit the inference that defendant was guilty of

robbery, but did permit such an inference if corroborating evidence existed.8

Defendant objected to both instructions.

Defendant does not contend that these instructions lacked a sufficient

evidentiary basis. He does, however, argue they violated People v. Wright (1988)

45 Cal.3d 1126, 1137, in which we disapproved argumentative instructions that

imply certain conclusions from specified evidence. We rejected the same claim as

to CALJIC No. 2.06 in People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224, and

see no reason to reconsider the point. We have not previously considered the

claim that CALJIC No. 2.15 violates People v. Wright, supra, 45 Cal.3d 1126.

Considering the claim now, we find that the instruction has a proper purpose

rather than the argumentative purpose condemned in Wright. Among other things,

CALJIC No. 2.15 informs the jury that conscious possession of recently stolen


(footnote continued from previous page)

concealing evidence, such attempt may be considered by you as a circumstance
tending to show a consciousness of guilt. In other words, circumstantial evidence.
[¶] However, such conduct is not sufficient by itself to prove guilt, and its weight
and significance, if any, are matters for your consideration.”
8

The court instructed: “If you find that a defendant was in conscious

possession of recently stolen property, the fact of such possession is not by itself
sufficient to permit an inference that the defendant, in this case, Mr. Yeoman, is
guilty of the robbery of that recently stolen property. [¶] Before guilt of that
offense, of robbery may be inferred, there must be corroborating evidence tending
to prove the defendant’s guilt. However, this corroborating evidence need only be
slight and need not by itself be sufficient to warrant an inference of guilt of the
robbery. [¶] As corroboration, you may consider the attributes of the possession,
the time, place, manner of the possession, whether or not the defendant had an
opportunity to commit the crime charged, the defendant’s conduct, or any other
evidence which tends to connect the defendant with the crimes charged.”

40

property is insufficient, without corroboration, to sustain a conviction. “If the

court tells the jury that certain evidence is not alone sufficient to convict, it must

necessarily inform the jury, either expressly or impliedly, that it may at least

consider the evidence. Nothing in Wright affects such an instruction.” (People v.

Kelly (1992) 1 Cal.4th 495, 531-532.)

Defendant also contends that CALJIC Nos. 2.06 and 2.15 violate due

process because they create mandatory inferences or conclusive presumptions that

shift, in effect, the People’s burden of proof to the defense. (See generally

Sandstrom v. Montana (1979) 442 U.S. 510, 521-524.) We have previously

rejected the contention because the instructions in question permit, but clearly do

not require, the jury to draw the inferences described therein. (See People v.

Jackson, supra, 13 Cal.4th 1164, 1223-1224 [upholding CALJIC No. 2.03]; see

also People v. Holt (1997) 15 Cal.4th 619, 676-677 [upholding CALJIC No. 2.15];

People v. Johnson (1993) 6 Cal.4th 1, 37 [same].)

Defendant also claims that CALJIC Nos. 2.06 and 2.15 violate due process

even if seen as creating permissive inferences. But “[a] permissive inference

violates the Due Process Clause only if the suggested conclusion is not one that

reason and common sense justify in light of the proven facts before the jury.”

(Francis v. Franklin (1985) 471 U.S. 307, 314-315; see Ulster County v. Allen

(1979) 442 U.S. 140, 157-163.) Here, reason and common sense amply justified

the suggested conclusion that defendant’s suppression of evidence showed

consciousness of guilt. (See CALJIC No. 2.06.) Among other things, defendant’s

expressed desire to remove his fingerprints from Horrell’s car immediately

followed his admission to Stafford that he had murdered its driver. Reason and

common sense also justified the conclusion that defendant’s conscious possession

of Horrell’s recently stolen property tended to show he was guilty of robbery (see

CALJIC No. 2.15), in view of the corroborating evidence, which included most

41

notably the admission that he had stopped for the stranded motorist because she

was well dressed and seemed likely to have money.

B. Penalty Phase Issues

1. Failure to Conduct Foundational Hearing Before Admitting

Evidence of the Killing of David Hill

The People at the penalty phase presented evidence that defendant had

killed David Hill. (See ante, at p. 10 et seq.) The evidence was relevant to prove

an aggravating circumstance, namely, the presence of criminal activity by

defendant involving the use of force or violence. (§ 190.3, factor (b).) Defendant

contends the court abused its discretion by admitting the evidence without first

holding a foundational hearing under Evidence Code section 402 to determine

whether the evidence was sufficient to prove defendant guilty of the offense

beyond a reasonable doubt. For the reasons set out below, we find no abuse of

discretion.

To admit evidence of unadjudicated crimes under section 190.3, factor (b)

necessarily entails a risk that the evidence may not be sufficient to convince all

jurors of the defendant’s guilt. Yet we have described this risk as acceptable in

view of the need to place before the jury all evidence properly bearing on its

capital sentencing decision, and in view of the rule that no juror may consider such

evidence unless first convinced of its truth beyond a reasonable doubt. (People v.

Caro (1988) 46 Cal.3d 1035, 1057.) The court must give such an instruction sua

sponte whenever it admits evidence under factor (b). (People v. Michaels (2002)

28 Cal.4th 486, 539; People v. Robertson (1982) 33 Cal.3d 21, 53-55.)

Foundational hearings, which can also help to mitigate the risk, “may be

advisable” (People v. Fauber (1992) 2 Cal.4th 792, 849; see People v. Phillips

(1985) 41 Cal.3d 29, 72, fn. 25) but are not required. The matter lies entirely

within the court’s discretion. (People v. Fauber, supra, at p. 849.)

42

In this case, defendant has failed to show either an abuse of discretion or

any possibility of prejudice. The evidence that defendant murdered Hill, which

we have already summarized (see ante, at p. 10 et seq.), was sufficient to prove his

guilt beyond a reasonable doubt. The court had no reason to believe otherwise at

the time it declined to hold a foundational hearing. Defendant’s various theories

of third party culpability did not compel the jurors to reject the prosecution’s

evidence. In any event, any hypothetical juror whom the prosecution’s evidence

might not have convinced beyond a reasonable doubt must be presumed to have

followed the court’s instruction to disregard the evidence.

Defendant argues that California law denies him equal protection (U.S.

Const., 14th Amend.) by requiring preliminary hearings for charged offenses but

not for uncharged criminal acts admitted under section 190.3, factor (b). But

equal protection does not require the procedures for proving uncharged crimes

admitted under factor (b) to be as stringent as the procedures for proving charged

offenses. (People v. Bacigalupo (1991) 1 Cal.4th 103, 136; People v. Medina

(1990) 51 Cal.3d 870, 906-907; cf. People v. Balderas (1985) 41 Cal.3d 144, 204-

205 [rejecting a similar claim under the due process clause].) The differing

treatment is justified by the need to allow the “jury to weigh and consider the

defendant’s prior criminal conduct in determining penalty, so long as reasonable

steps are taken to assure the defendant a fair and impartial penalty trial.” (People

v. Medina, supra, at p. 907.)

Restating this claim under the Eighth Amendment to the United States

Constitution, defendant argues that to admit evidence of the Hill killing under

section 190.3, factor (b), without first testing the strength of the evidence in a

43

foundational hearing, rendered the death sentence arbitrary and unreliable.9 The

People contend defendant waived the claim because he referred in the trial court

only to the due process and equal protection clauses of the federal and state

Constitutions. Defendant’s new claim, however, merely invites us to draw an

alternative legal conclusion (i.e., that the death sentence is arbitrary and

unreliable) from the same information he presented to the trial court (i.e., that the

evidence showing he killed Hill was untested and, thus, could not be presented to

the jury without causing unfair prejudice). We may therefore properly consider

the claim on appeal. (See ante, at p. 21 et seq.)

Considering the Eighth Amendment claim, we find it lacks merit.

Defendant argues that “[w]ithout a reasonable guarantee of certainty that the [Hill

killing] was committed by the defendant, there is no means to conclude that the

death penalty has been fairly imposed.” We have, however, already concluded

that the evidence defendant killed Hill was sufficient to prove his guilt beyond a

reasonable doubt. The United States Supreme Court has upheld section 190.3,

factor (b), which authorizes the admission of uncharged offenses, against an

Eighth Amendment challenge because the factor “is phrased in conventional and

understandable terms and rests in large part on a determination whether certain

events occurred, thus asking the jury to consider matters of historical fact.”

(Tuilaepa v. California (1994) 512 U.S. 967, 976.) The requirement that each

juror be convinced by such evidence beyond a reasonable doubt before

considering it enhances the reliability of the sentence. (People v. Michaels, supra,

28 Cal.4th 486, 539; People v. Robertson, supra, 33 Cal.3d 21, 53-55.)


9

Defendant also cites the Fifth and Sixth Amendments without, however,

articulating intelligible claims under those provisions.

44

2. Admission of Threats to Kill and Denial of a Continuance

The People proved that defendant had committed various sexual acts upon

his stepdaughter, Sharon C., when she was between 10 and 13 years old, and that

Sharon had submitted to defendant because she feared him. (See ante, at p. 8 et

seq.) The court permitted the jury to consider this evidence under section 190.3,

factor (b), as criminal activity involving a threat of violence. The court also

permitted the jury to consider under section 190.3, factor (c), as a prior felony

conviction, defendant’s 1977 guilty plea to a charge of lewd and lascivious

conduct (§ 288, subd. (a)) arising out of the same conduct. On appeal, defendant

claims the People did not give adequate notice of their intent to introduce the

violent circumstances of the molestation under factor (b), that the prosecutor

affirmatively misled the defense on this point, and that the court abused its

discretion in denying a continuance to investigate the evidence. These claims lack

merit.

The People must give notice of the aggravating evidence they plan to offer

“within a reasonable period of time as determined by the court, prior to trial.”

(§ 190.3.) The law permits the People to introduce, under section 190.3, factor

(b), the violent circumstances of a prior felony conviction introduced under

section 190.3, factor (c), even though the least adjudicated elements of the prior

conviction do not include violence. (People v. McDowell (1988) 46 Cal.3d 551,

566-568.) In this case, the People expressly declared in their timely pretrial notice

of aggravating evidence the intention to prove, among other things, “[t]he felony

convictions of Ralph Michael Yeoman for robbery with great bodily injury, oral

copulation with a child under 14 years, and child molestation . . . and the

circumstances underlying those convictions. Penal Code sections 190.3(b) and

(c).” (Italics added.) Neither violence nor the threat of violence is an element of

lewd and lascivious conduct. (§ 288, subd. (a).) Yet the defense still had reason

45

to believe the People would seek to admit the circumstances of that crime under

factor (b), because the notice had said precisely that and because the People had

disclosed in pretrial discovery the police reports on the molestation, which

mentioned Sharon’s statement that she feared defendant because he had beaten her

mother, Wilma. (See People v. Bradford (1997) 15 Cal.4th 1229, 1359 [police

reports can provide actual notice of aggravating evidence].) Taken as a whole,

this information was adequate to place defendant on notice and to give him a fair

opportunity to investigate the relevant facts.

Also without merit are defendant’s additional claims that the prosecutor

misled the defense and that the trial court abused its discretion by refusing to grant

a continuance. Before the penalty phase opening statements commenced, the

People requested a hearing under Evidence Code section 402 to clarify whether

the court would admit the circumstances of the molestation under Penal Code

section 190.3, factor (b). At the same time, the prosecutor stated that Sharon in a

recent interview had revealed additional facts previously unknown to the People.

Based on the interview, the prosecutor believed that Sharon “would say that from

the time she was about ten to twelve she submitted to these acts because she just

thought there was nothing wrong with it. [¶] At about the time, two years into this

program of the sexual acts being done on her, she, on her own, figured out it was

wrong and confronted the defendant about it. And at that time, he threatened to

kill her if she told on him, and from there on she submitted to him because she was

afraid of what he would do to her.” The prosecutor made these statements in court

on Tuesday, March 20, 1990. The last preceding court day had been Tuesday,

March 13. The prosecutor had interviewed Sharon on Thursday, March 15 and

disclosed her new statements to the defense on Monday, March 19, the day before

the trial resumed.

46

On Wednesday, March 21, 1990, the next day of trial, the court conducted a

foundational hearing on Sharon’s testimony outside the jury’s presence.

Consistently with the prosecutor’s representation, Sharon testified that when she

confronted defendant about his sexual conduct towards her, he told her the family

would be split up if she revealed what had happened, that this would be her fault,

and that he would kill her. After hearing this, Sharon submitted to further sexual

acts because she “couldn’t run away, other than on the streets,” and because she

“was scared to death of him.” On cross-examination, still outside the jury’s

presence, Sharon acknowledged she had not told the police officers who

investigated the molestations that defendant had threatened her. Sharon had not

mentioned the threats because the officers had told her that defendant “would be

out of the home” and because she was not, at that time, “thinking of the death

threat. [She] was thinking of a way out, whether it was suicide or what else.”

Based on this testimony, the court correctly ruled that the circumstances of

the 1977 conviction for lewd and lascivious conduct were admissible under factor

(b) because they entailed a “threat to use force or violence.” (§ 190.3, factor (b).)

Sharon’s ensuing testimony before the jury was consistent with her foundational

testimony, except that, when asked by the prosecutor why she feared defendant,

she added the new fact that defendant had actually beaten her. “I was scared for

my life as well as my mother and brother and sisters,” Sharon testified. “He told

me if I ever told anybody he would kill me. Numerous times I saw him beat my

mother, beat me.”

Defendant claims the prosecutor misled the defense concerning the nature

of Sharon’s testimony. The record, however, gives no reason to believe that the

prosecutor, at any time, obtained more detailed knowledge of Sharon’s possible

testimony than he promptly thereafter revealed to the defense. Nor did the court

err in denying a continuance to permit the defense to investigate. Both Sharon and

47

her mother had been designated as witnesses before trial. Moreover, the police

reports gave the defense notice that Sharon claimed to fear defendant because she

had seen him beat her mother. (See People v. Bradford, supra, 15 Cal.4th 1229,

1359.) Finally, in denying defendant’s request for a continuance, the court

expressly offered to reconsider the matter should the defense show that it was

unable to find a witness it was actually attempting to find. The defense never

offered to make such a showing. Under these circumstances, we see no basis for

concluding the trial court abused its discretion.

Citing the Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution, defendant contends the People’s failure to give notice of

Sharon’s testimony, and the court’s refusal to grant a continuance, denied him the

rights to due process, a fair trial, reasonable notice of the charges against him, the

effective assistance of counsel and a death judgment based on reliable evidence.

These claims fail because their factual predicate is false: Contrary to defendant’s

assertion, the People gave adequate notice of their intent to introduce the violent

circumstances of the molestations under section 190.3, factor (b).

3. Admission of Evidence of Rape

The People introduced evidence that defendant, while in the United States

Army, had forcibly raped Linda S., the wife of a friend and fellow soldier. (See

ante, at p. 9 et seq.) The court allowed the jury to consider the evidence under

section 190.3, factor (b), as showing prior violent criminal activity. Defendant

contends the admission of this evidence, which he describes as stale, violated his

rights to due process, a speedy trial and a reliable determination of penalty.

Defendant characterizes the claim as arising under the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution. Defendant

unsuccessfully raised the same claim at trial.

48

The claim lacks merit. In People v. Rodrigues (1994) 8 Cal.4th 1060, we

concluded that the admission of violent criminal conduct occurring many years

before the penalty trial is not necessarily inconsistent with a defendant’s rights to

due process, a speedy trial and a reliable penalty determination. We reasoned that

“the state has a legitimate interest in allowing a jury to weigh and consider a

defendant’s prior criminal conduct in determining the appropriate penalty, so long

as reasonable steps are taken to assure a fair and impartial penalty trial.” (Id., at

p. 1161.) We identified those “reasonable steps” as including notice of the

evidence to be introduced, the opportunity to confront the available witnesses, and

the requirement of proof beyond a reasonable doubt. When these steps have been

taken, we concluded, the remoteness of the offense affects its weight, not its

admissibility. (Ibid.)

Defendant argues for a different result in this case because certain witnesses

who might have been able to offer testimony about the 1968 rape were not

available. The record, however, does not make clear that such a claim was

adequately preserved. In his written motion to exclude evidence of the rape,

defendant identified several witnesses who testified at the court martial, or who

might have been called to testify had defendant not terminated that proceeding by

changing his plea to guilty. Arguing the motion later in court, however, the

defense identified only three assertedly unavailable witnesses whose prior

testimony they wished to offer: Sergeant Theopia James, who had investigated the

rape, Delbert Marshall, whom the defense did not further identify, and Sergeant

Fitzgerald, who had released defendant from duty on the day of the rape. The

court ruled that Sergeant Fitzgerald was unavailable but did not rule on the other

two proposed witnesses. Nevertheless, defense counsel immediately thereafter

stated that, “[b]asically, all we are introducing is Sergeant Fitzgerald,” and never

again mentioned the other witnesses or offered their prior testimony into evidence.

49

The defense had already cross-examined Linda and, in so doing, attempted to raise

the inference that she had consented to sex and fabricated the rape in order to

secure her husband’s return from Vietnam on a claim of hardship. The reading of

Sergeant Fitzgerald’s prior testimony provided a factual basis for the questions

about consent that the defense had posed to Linda on cross-examination.

On this record, we see no reason to believe that the age of the rape charge,

the unavailability of witnesses or the trial court’s rulings deprived defendant of a

fair opportunity to present a defense. The fair opportunity defendant did enjoy,

and the court’s instruction to the jury not to consider the rape unless convinced of

defendant’s guilt beyond a reasonable doubt, satisfied constitutional requirements.

(See People v. Rodriguez, supra, 8 Cal.4th 1060, 1161.) Defendant cites Johnson

v. Mississippi (1988) 486 U.S. 578 as holding that the procedures for considering

aggravating evidence of other crimes must conform in all respects to the

constitutional standards governing proof of charged offenses. But Johnson does

not so hold. In that decision, the high court reversed a death judgment because the

prosecution had been allowed to prove a prior conviction with nothing more than

the record of a judgment that had been reversed on appeal; “the prosecutor did not

introduce any evidence concerning the alleged assault itself . . . .” (Johnson v.

Mississippi, supra, at p. 585.) Here, in contrast, the People did not seek to prove a

prior conviction for rape. Instead, they merely proved other violent criminal

conduct by defendant (§ 190.3, factor (b)) through properly admitted evidence.

About this, Johnson has nothing to say.

4. Admission of Defendant’s Court-martial Guilty Plea

The trial court permitted the People to introduce, as part of their proof that

defendant had raped Linda E., defendant’s admission and plea of guilty to that

crime in a court-martial. The court instructed the jury to consider the plea as an

50

admission of prior violent criminal conduct under section 190.3, factor (b), but not

as a prior conviction under section 190.3, factor (c). Defendant contends that the

use of his plea for this purpose violated his rights to due process and to a reliable

sentencing determination. Defendant describes the claim as arising under the

Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

The claim lacks merit.

Defendant’s argument rests upon the following three propositions: First,

convictions rendered in courts-martial are not admissible as prior convictions

under section 190.3, factor (c) because the procedural rights of defendants in

military proceedings differ from those of defendants in civilian proceedings.

Second, although the jurors were told not to consider the plea as evidence of a

prior conviction, they probably did not grasp the fine distinction between evidence

of a prior conviction and evidence of guilt; thus, the jury could only have viewed

the plea as a prior conviction. Third, the prosecutor exacerbated the problem by

stressing in closing argument the evidentiary weight of defendant’s admission and

guilty plea.

We need not consider defendant’s first proposition, i.e., that guilty pleas

offered in courts-martial are not admissible as evidence of prior convictions. The

People did not offer the plea as evidence of a prior conviction, and the jurors were

informed by stipulation not to consider the plea for that purpose.10 Defendant’s

10

The following stipulation was read to the jury:

“After August 3rd 1968, the United States Army charged the defendant

Ralph Michael Yeoman with the crime of forcible rape of Linda S. On or about
December 16, 1968, during the court-martial proceedings at Fort Riley, Kansas,
the defendant, Ralph Michael Yeoman, after advice of counsel, entered a plea of
guilty and admitted the forcible rape of Linda S[.] as charged against him. [¶] A
military court-martial adjudication does not constitute a prior felony conviction
under California Penal Code section 190.3, [factor] (b). This is because a court-

(footnote continued on next page)

51

second proposition—that the jurors probably did not grasp the distinction they

were asked to draw—does not readily command assent. Jurors are routinely

instructed to make similarly fine distinctions concerning the purposes for which

evidence may be considered, and we ordinarily presume they are able to

understand and follow such instructions. (E.g., People v. Williams (2000) 79

Cal.App.4th 1157, 1171 [jury presumed to understand and follow instruction not

to consider as evidence of guilt a statement taken in violation of Miranda v.

Arizona (1966) 384 U.S. 436 and offered only to impeach].) Indeed, we and

others have described the presumption that jurors understand and follow

instructions as “[t]he crucial assumption underlying our constitutional system of

trial by jury.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; see Francis v.

Franklin, supra, 471 U.S. 307, 324, fn. 9.) We see no reason to abandon the

presumption in this case, where the relevant instructional language seems clear

and easy to understand.

As mentioned, defendant also contends that the prosecutor in closing

argument incorrectly described the evidentiary weight to which defendant’s guilty

plea was entitled. This proposition may be considered either as part of

defendant’s more general argument that the jury must have misunderstood the

limited purpose for which defendant’s guilty plea was entered, or as a separate


(footnote continued from previous page)

martial proceeding has differences in procedures—as opposed to our state court
procedure in California—differences in proof and the rights of an accused.
[¶] Thus you may consider the fact of the defendant’s guilty plea in admission of
the crime of forcible rape only as it relates to the proof of other violent crimes
within the meaning of Penal Code [s]ection 190.3[, factor] (b), a different section
we have talked about. [¶] Before you may consider the crime of forcible rape
against Ralph Michael Yeoman as it pertains to Linda S[.], it must be proven
beyond a reasonable doubt.”

52

claim of prosecutorial misconduct. Considered either way, the argument lacks

merit. The record shows that the prosecutor appropriately described defendant’s

guilty plea as one of three evidentiary points supporting the People’s claim that

defendant had raped Linda S. Those three points were Linda S.’s own testimony,

the lack of significant impeaching evidence in the record of the court-martial or

elsewhere, and, finally, defendant’s guilty plea and admission to forcible rape.

The import of the prosecutor’s remarks about defendant’s plea and admission was

not that they were conclusive, but that they tended to negate the defense

suggestion that the victim might have consented.

In summary, because defendant’s guilty plea was admitted to prove violent

criminal conduct (§ 190.3, factor (b)) and not a prior felony conviction (id., factor

(c)), because there is no reason to believe the jury misunderstood or failed to

consider the limiting instruction, and because the prosecutor in closing argument

did not use the evidence for a purpose inconsistent with the limiting instruction,

we perceive no violation of due process and no risk that the judgment of death was

based on evidence that should have been excluded as unreliable.

5. Exclusion of Evidence that a Third Person Killed David Hill

The defense attempted to prove that David Hill was killed not by defendant

but instead by Michael Ayers, Williams Summers and/or James Baxter. (See ante,

at p. 12 et seq.) Defendant contends the court abused its discretion under

Evidence Code section 352 by sustaining the People’s objections to certain

questions apparently intended to suggest three additional possible killers—Jerry

Huebner and two unidentified persons. We find no abuse of discretion.

Monique Hubertus, called by the People at the penalty phase, identified as

having belonged to Hill several unique items found in defendant’s possession

shortly after the murder. (See ante, at p. 11.) On cross-examination, defense

53

counsel asked Hubertus whether she knew “a short time prior to David Hill’s

death that he had owned an automobile that was the subject of a car burglary” and

whether she had subsequently received “a telephone call from one of the suspects

of that car burglary.” The People objected, and the court excused the jury to

consider the matter in camera. After considering it, the court disallowed the

questions under People v. Hall (1986) 41 Cal.3d 826 (Hall), thus in effect

exercising its discretion to exclude evidence under Evidence Code section 352,

which Hall interpreted. We find no abuse of discretion.

In camera, the defense explained the theory on which their questions were

based: About a week before Hill was killed, Roseville police had charged two

men, including Jerry Huebner, with attempting to burglarize one of Hill’s

automobiles; the charges were dropped after Hill, the complaining witness, died.

According to defense counsel, Huebner had called Hubertus “looking for David

Hill, complaining about the fact that if [Hill] didn’t withdraw the charges they

were going to jail for twelve years.” Defense counsel theorized that Huebner, or

his unidentified accomplice, murdered Hill to suppress his testimony. Answering

the court’s question, however, the defense acknowledged that it had no other

foundation for this additional theory of third party culpability, such as evidence

that Huebner or his accomplice was seen in the vicinity of Hill’s house at or about

the time of the killing.

Based on this offer of proof, the trial court correctly exercised its discretion

to exclude the evidence. Evidence that a third person actually committed a crime

for which the defendant has been charged is relevant but, like all evidence, subject

to exclusion at the court’s discretion under Evidence Code section 352 if its

probative value is substantially outweighed by the risk of undue delay, prejudice

or confusion. (Hall, supra, 41 Cal.3d 826, 834.) The decision in Hall guides the

exercise of discretion in this context. “To be admissible, the third-party evidence

54

need not show ‘substantial proof of a probability’ that the third person committed

the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.”

(Id., at p. 833.) However, “evidence of mere motive or opportunity to commit the

crime in another person, without more, will not suffice to raise a reasonable doubt

about a defendant’s guilt: there must be direct or circumstantial evidence linking

the third person to the actual perpetration of the crime.” (Ibid.) Here, defendant’s

offer of proof showed motive, only, and was thus insufficient. The court did not

abuse its discretion.

The trial court also sustained the People’s objection to a question asked by

defense counsel of witness Carla Nebeker. Called by the defense, Nebeker

testified that she had spoken to Hill at one or two o’clock in the afternoon in front

of his house about buying one of his trucks. Nebeker lived three houses down

from Hill. The People objected under Hall, supra, 41 Cal.3d 826, to the further

question why she had not returned to Hill’s house that evening to finish

negotiating. In camera, the defense offered to prove that Nebeker did not visit Hill

that evening because Hill had said he would have an important meeting and that

Nebeker saw someone walking out of Hill’s house about 6:00 p.m. The trial court

ruled that defense counsel could ask Nebeker about the unidentified man she had

seen leaving Hill’s house, but not about the meeting. (See ante, at pp. 12-13.)

In so ruling, the court did not abuse its discretion. Nebeker’s testimony that

an unidentified person unlike defendant in appearance had left the murder site

close to the time of the crime was highly relevant. The court thus properly

permitted the defense to present this matter to the jury. In contrast, the fact that

Hill had mentioned a meeting did not directly or circumstantially connect any

identifiable person with the crime. (See Hall, supra, 41 Cal.3d 826, 833.) On

appeal, counsel suggests that Hill may have planned to meet with Michael Ayers,

James Baxter and/or William Summers, some of the persons whom the defense

55

attempted to implicate in Hill’s killing. But the law does not require the admission

of evidence made relevant only by speculative hypothesis.

Here, as at trial, defendant argues the trial court violated due process by

applying Evidence Code section 352 and Hall, supra, 41 Cal.3d 826,

“mechanistically to defeat the ends of justice” (Chambers v. Mississippi (1973)
410 U.S. 284, 302) and, more specifically, to defeat his Eighth Amendment rights

to a sentencing determination of heightened reliability (e.g., Lankford v. Idaho

(1991) 500 U.S. 110, 125, fn. 21) and to present to the jury any relevant

circumstance that could cause it to decline to impose the death penalty (McCleskey

v. Kemp (1987) 481 U.S. 279, 306). The argument is not persuasive. We have

previously determined that due process does not bar the application of Evidence

Code section 352 at the penalty phase of capital trials. (People v. Babbitt (1988)

45 Cal.3d 660, 684-685.) We based this conclusion on the fact that neither due

process nor Chambers v. Mississippi has led the high court to “question[] the

power of States to exclude evidence through the application of evidentiary rules

that themselves serve the interests of fairness and reliability—even if the

defendant would prefer to see that evidence admitted.” (Crane v. Kentucky (1986)
476 U.S. 683, 690; see People v. Babbitt, supra, at pp. 684-685.) We see no

reason in defendant’s argument or the circumstances of this case to reconsider our

prior conclusion.

6. Refusal to Instruct on the Use of Circumstantial Evidence (CALJIC

No. 2.01) at the Penalty Phase

Defendant contends the court erred in declining to instruct the jury with

CALJIC No. 2.01 at the penalty phase. We find no error.

The purpose of CALJIC No. 2.01 is to clarify the proper use of

circumstantial evidence. The instruction explains, among other things, that a

finding of guilt “may not be based on circumstantial evidence unless the proved

56

circumstances are not only (1) consistent with the theory that the defendant is

guilty of the crime, but (2) cannot be reconciled with any other rational

conclusion.” (Ibid.) We have held that the court must give such an instruction on

its own motion when the proof of guilt rests substantially on circumstantial

evidence. (People v. Wright (1990) 52 Cal.3d 367, 406; People v. Yrigoyen

(1955) 45 Cal.2d 46, 49; see Use Note to CALJIC No. 2.01 (6th ed. 1996) p. 38.)

But the instruction need not be given when the circumstantial evidence merely

corroborates other evidence (People v. Wright, supra, at p. 406; People v.

Williams (1984) 162 Cal.App.3d 869, 874-876), because in such cases the

instruction may confuse the jury regarding the weight to which other evidence is

entitled (People v. Williams, supra, at p. 874). In this case, the instruction would

have created a risk of confusion by seeming to tell the jury, incorrectly, to reject

defendant’s extrajudicial admissions of guilt unless they could not be reconciled

with any rational conclusion other than guilt.

Defendant contends the People relied substantially on circumstantial

evidence to prove he killed David Hill. To be sure, the People introduced much

circumstantial evidence, including defendant’s presence near the scene of the

crime at the relevant time, his possession immediately before the crime of the type

of gun that fired the fatal bullets, and his possession after the crime of unique,

personal items that had belonged to the victim. (See ante, at p. 10 et seq.) Yet the

trial court nevertheless declined to give CALJIC No. 2.01 because it felt that the

People’s proof of this violent criminal act (§ 190.3, factor (b)) rested largely on

defendant’s extrajudicial admissions to his sister, Linda Ayers, and to her

husband, Michael Ayers. (See ante, at p. 12.) Specifically, Michael testified that

defendant said before his arrest that he had shot Hill. Linda testified that

defendant, in two postarrest calls from jail, admitted he had killed Hill and

described him as “a no good drug dealer.” In view of these admissions, the trial

57

court reasonably determined for purposes of instructing the jury that the People’s

case did not rest substantially or exclusively on circumstantial evidence. We have

not required an instruction on circumstantial evidence under similar

circumstances. (E.g., People v. Wright, supra, 52 Cal.3d 367, 406.)

Defendant argues the jury must have rejected the testimony of Michael and

Linda Ayers about defendant’s extrajudicial admissions as self-serving efforts on

their part to avoid suspicion, since Michael knew Hill and since defendant may

have used Michael’s gun to kill Hill. If the jury did reject the extrajudicial

admissions, defendant continues, any conclusion by the jury that defendant killed

Hill must have rested entirely on the circumstantial evidence to that effect. The

argument is too speculative to accept. In any event, the fact that some evidence

may impeach a defendant’s extrajudicial admissions does not logically affect the

court’s instructional responsibilities when the circumstantial evidence merely

corroborates those admissions.

In view of these conclusions, we see no reason to accept defendant’s further

claim that the trial court’s failure to give CALJIC No. 2.01 led to an erroneous

determination that defendant murdered Hill and thus tilted the balance unfairly

towards the death penalty. Nor do we perceive any violation of the federal

constitutional provisions defendant perfunctorily cites. (U.S. Const., 4th, 6th, 8th

& 14th Amends.)

7. Prosecutorial Misconduct During Closing Argument

Defendant contends the prosecutor during closing argument made various

statements amounting to misconduct. Defendant timely objected to each such

statement. While the claims are thus properly before us (People v. Hill (1988) 17

Cal.4th 800, 820; People v. Green, supra, 27 Cal.3d 1, 27), we find no misconduct

under state or federal law for the reasons set out below.

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a. Death penalty “would be virtually meaningless” if not applied

to defendant

After reviewing the circumstances of Doris Horrell’s murder, the

prosecutor offered the following argument: “[I]n this case, given these facts and

what we know about this defendant, the murder of Mrs. Horrell, I submit to you

that the proper measurement of the defendant’s crime and the defendant is the

death penalty. And, quite frankly, if it were not to be applied in this particular

case, to me it would be virtually a meaningless . . . .” At this point defense

counsel objected that the argument was “not proper . . . .” The court overruled the

objection, and the prosecutor continued: “It would be, the law would be virtually

meaningless. What would be the point of having it?”

On appeal, defendant unconvincingly compares the prosecutor’s argument

with the different argument we condemned in People v. Farmer (1989) 47 Cal.3d

888. There, the prosecutor incorrectly asserted that the jurors “do not decide life

or death. The law does that.” (Id., at p. 928.) This argument, we concluded,

violated Caldwell v. Mississippi (1985) 472 U.S. 320, 333, by inviting the jurors to

believe that the responsibility for choosing between life and death lay elsewhere.

(People v. Farmer, supra, at p. 928.) In contrast, the prosecutor here merely

argued that the penalty phase evidence strongly pointed to death. We described a

very similar statement by the prosecutor in People v. Jones (1997) 15 Cal.4th 119,

185, as “within the bounds of proper argument.” Certainly the prosecutor here did

not invite the jury “to minimize the importance of its role.” (Caldwell v.

Mississippi, supra, at p. 333.) Immediately after making the challenged remark,

the prosecutor strongly emphasized the jurors’ personal responsibility for doing

the “very difficult job” of choosing the “just punishment.”

59

b. Defendant “was literally the judge, the jury and the executioner

of Mrs. Horrell”

At one point in his closing argument, the prosecutor asked the jury to

remember “the punishment [defendant] inflicted on [Horrell] . . . no due process,

no judges, no jurors, no act of the courts. That is not what he did. He was literally

the judge, the jury . . . .” At this point the court “noted” but did not sustain

defense counsel’s objection “to this form of argument.” The prosecutor then

completed the sentence: “He was literally the judge, the jury and the executioner

of Mrs. Horrell.” On appeal, defendant acknowledges that the prosecutor’s

statement was “not meant to be taken literally” but nevertheless construes it as an

invitation to employ “frontier justice” “by giving little consideration to factors in

mitigation.” We find no misconduct.

The statements defendant challenges, read in the context of the prosecutor’s

entire closing argument, cannot fairly be construed as an invitation to take lightly

the sentencing decision or the mitigating evidence. Just before making those

statements, the prosecutor had described the sentencing decision as a “very

difficult job” that would require “courage” and “introspection.” After making that

remark, he acknowledged “how difficult it is for probably all twelve of you

[jurors] to arrive at what a just and true verdict ought to be in this case.” He then

correctly stated that “the lawful process to make this legally right and morally

right decision involves a weighing and a balancing of certain factors, or certain

circumstances commonly known or referred to in the law as factors in aggravation

and factors in mitigation.” Finally, the prosecutor concluded this segment of his

argument by reading the entire fourth paragraph of CALJIC No. 8.88, which

describes the weighing of aggravating and mitigating circumstances. He then

began the next segment of his argument, which constituted a detailed examination

of the mitigating evidence. Nowhere in his closing argument did the prosecutor

60

suggest, explicitly or implicitly, that the jurors should take lightly either the

mitigating evidence or their duty to determine the appropriate penalty according to

the law.

c. Section 190.3, factor (d) “means what it says”

Defendant contends the prosecutor’s argument about section 190.3, factor

(d) misstated the law and led the jury not to consider proper mitigating evidence.

Factor (d) directs the jury to take into account, if relevant, “[w]hether or not the

offense was committed while the defendant was under the influence of extreme

mental or emotional disturbance.” We find one misstatement of law, which the

prosecutor immediately corrected, but no misconduct.

Defendant’s argument has three parts. We may easily dispose of the first.

The prosecutor did not misstate the law by telling the jury that “the language [of

factor (d)] means what it says” and that, consequently, the mental or emotional

disturbance referred to therein “has to be extreme.” We have held that trial courts

should not omit the adjective “extreme” from the language of section 190.3, factor

(d) when instructing juries. (People v. Carpenter, supra, 15 Cal.4th 312, 416;

People v. Benson (1990) 52 Cal.3th 754, 803-804.) A fortiori, the prosecutor need

not do so in closing argument.

Defendant next claims the prosecutor misstated the effect of section 190.3,

factor (d) by saying, “[b]asically, that factor exists for people who are psychotic.”

Indeed, the statement was incorrect, and defense counsel properly objected on that

basis. Factor (d) permits the jury to consider any evidence of “extreme mental or

emotional disturbance” (§ 190.3, factor (d)), whether or not the result of

psychosis. Immediately after making this statement, however, the prosecutor

corrected it by characterizing factor (d) more expansively as describing “people

who are so badly disturbed that though they are legally responsible for their crime,

61

they have been found guilty and so forth, that they are so bad that you as a human

being and the law and your morality says maybe we ought to consider how

screwed up they were and give them a break. That is why that factor is there.”

Thereafter, the prosecutor discussed at length the same evidence the defense

contended was relevant under factor (d), namely, the disputed evidence that

defendant had killed Horrell under the influence of methamphetamine and that he

suffered from brain damage. The prosecutor’s argument on this point was not that

the evidence was irrelevant, but that it was unpersuasive because the

circumstances of the crime showed “planning,” the deliberate selection of a

vulnerable victim and consciousness of guilt.

Considering the prosecutor’s entire closing argument, his erroneous

statement that section 190.3, factor (d) was intended “for people who are

psychotic” did not amount to misconduct. There was no misconduct under federal

law because the statement was immediately corrected and did not infect the trial

with such unfairness as to violate due process. (People v. Morales (2001) 25

Cal.4th 34, 44; see Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643.)

Nor was there misconduct under state law because the prosecutor did not use

deceptive or reprehensible methods to attempt to persuade the jury, and because it

is not reasonably likely the jury construed or applied any of the challenged

remarks in an objectionable fashion. (People v. Morales, supra, at p. 44.)

Finally on this point, defendant contends that the same remarks by the

prosecutor set out above confused the jury about section 190.3, factor (k). To be

sure, defendant was entitled to have the jury consider under factor (k) “[a]ny other

circumstance which extenuates the gravity of the crime,” including, among other

things, evidence of nonextreme mental or emotional disturbance. (People v.

Welch (1999) 20 Cal.4th 701, 769.) Yet we find no reason to believe the

prosecutor’s closing argument confused the jury on this point. Indeed, the

62

prosecutor described the evidence of defendant’s drug use and brain damage as

matters implicated by factor (k).

d. Evidence of defendant’s childhood was a “ploy”

Defendant’s case in mitigation focused on evidence that he had been

abused as a child and had not received adequate help for psychological and

behavioral problems resulting from the abuse. The defense also introduced family

photographs of defendant taken when he was a child. Commenting on this

evidence in closing argument, the prosecutor told the jurors: “I’m not asking you

to punish some kid. That is not what we are doing here. And don’t be fooled by

that. Don’t be fooled by that ploy in factor (k).” Defense counsel objected to the

prosecutor’s “characterization” of the mitigating evidence and asked the court to

admonish the jury that the evidence was relevant. The court overruled the

objection, but did remind the jury of the “wide range of relevancy under [section

190.3,] factor (k) . . . .”

On appeal, defendant claims the prosecutor’s use of the word “ploy”

suggested to the jury that the mitigating evidence had not been properly admitted

and constituted a personal attack on the integrity of opposing counsel. The claim

lacks merit. We do not understand the prosecutor’s argument as challenging the

court’s ruling or defense counsel’s integrity. Immediately after the court overruled

defense counsel’s objection, the prosecutor clarified his position: “The point that I

was making in going through some of this evidence of poor upbringing, abusive—

abused child and its relevance, is that it ignores the obvious in this case,” namely,

that such evidence “is not an acceptable excuse for a lifetime of moral failure by

this defendant.” In short, the prosecutor simply argued that the evidence relating

to defendant’s childhood had little mitigating force and did not warrant sympathy.

This he was entitled to do. (People v. Dennis (1998) 17 Cal.4th 468, 547-548.)

63

e. Victim-impact argument

Defendant contends the prosecutor committed misconduct by referring in

closing argument to the impact of defendant’s capital offense on the victim and

her family. We find no misconduct.

The subject arose while the prosecutor was discussing the evidence that

defendant as a child had been abused by family members. Commenting on that

evidence, the prosecutor said: “And you have to kind of be a little careful here.

And what happens in these type [of] cases is the case goes along in this trial [and]

we first start with the victim, but you really don’t—other than the fact she was

killed, you don’t know anything about her life, her family, her dreams, her home.”

Defense counsel objected under Booth v. Maryland (1987) 482 U.S. 496. The

court noted but did not sustain the objection. The prosecutor continued: “But

what happens, you really never get that type [of] evidence in the case and instead

just what happens to her, real sterile here in this courtroom. I’m not eloquent

enough to tell you the pain, fear, agony she suffered.” The prosecutor concluded

this portion of his argument by asking the jury not to confuse their sympathy with

defendant’s testifying family members with sympathy for defendant himself.

Any claim that the prosecutor’s argument violated the Eighth Amendment

to the United States Constitution has been preempted by Payne v. Tennessee

(1991) 501 U.S. 808, in which the high court held that capital sentencing juries

may consider the specific harm a defendant has caused. As Payne explains,

“ ‘[t]he State has a legitimate interest in counteracting the mitigating evidence

which the defendant is entitled to put in, by reminding the sentencer that just as

the murderer should be considered as an individual, so too the victim is an

individual whose death represents a unique loss to society and in particular to his

family.’ ” (Id., at p. 825, quoting Booth v. Maryland, supra, 482 U.S. 496, 517

(dis. opn. of White, J.).) Payne thus overruled Booth v. Maryland and South

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Carolina v. Gathers (1989) 490 U.S. 805, which had prohibited victim-impact

evidence and argument. (See Payne, supra, at p. 830; cf. People v. Edwards

(1991) 54 Cal.3d 787, 833 [evidence of the specific harm a defendant has caused

is admissible as a circumstance of the crime under section 190.3, factor (a)].)

Defendant argues the prosecutor’s remarks were improper under state and

federal law because they invited the jurors to speculate about facts not in the

record. (See, e.g., People v. Cunningham, supra, 25 Cal.4th 926, 1026; United

States v. Atcheson (9th Cir. 1996) 94 F.3d 1237, 1244-1245.) But defendant’s

argument is belied by his concession that the evidence incidentally showed that

Horrell was close to her daughter, granddaughter and friends, who had testified at

the guilt phase to establish the facts of the crime. That Horrell had suffered was a

fair inference from the evidence, which the prosecutor was entitled to argue.

(People v. Cunningham, supra, at p. 1026; United States v. Atcheson, supra, at

p. 1244.) Certainly there was no misconduct. Nothing the prosecutor said on this

subject was deceptive or reprehensible, or infected the trial with such unfairness as

to violate due process. Nor is it reasonably likely that the jury construed or

applied any of the challenged remarks in an objectionable fashion. (People v.

Morales, supra, 25 Cal.4th 34, 44.)

f. Reference to defendant as an “animal”

Several defense witnesses testified that defendant possessed good character

traits. Addressing this testimony, the prosecutor asked the jury not to judge

defendant by his quiet, benign appearance but instead by the evidence. “Don’t be

fooled by appearances,” the prosecutor argued. “Now that you know what this

evidence is, what this animal is like . . . . ” Defense counsel objected, the court

overruled the objection, and the prosecutor continued: “The point is, you can try a

million murder cases over the years and there is no special mark an individual has

65

when he does murders. He’s just like you and me. Sometimes he wears a coat

and a tie, sometimes cinched up, sometimes it is not. But there is no special mark

that is like a stigma. So don’t decide the facts of the case on that. Decide the facts

on the evidence.”

Based on these remarks, defendant asserts three claims of misconduct.

None has merit: (1) The prosecutor’s advice to look beyond defendant’s

appearance and demeanor and to decide the case based on the evidence was not

inappropriate. (People v. Stansbury (1993) 4 Cal.4th 1017, 1058-1059; People v.

Price (1991) 1 Cal.4th 324, 453-454.) (2) While prosecutors should not invoke

their personal beliefs or experiences as support for facts not in evidence (e.g.,

People v. Medina (1995) 11 Cal.4th 694, 776), the prosecutor here did not clearly

violate that rule. His words—“you can try a million murder cases over the years

and there is no special mark an individual has when he does murders”—merely

restated, albeit from the rhetorical stance of a trial lawyer, the common wisdom

that appearances can deceive. (3) The prosecutor’s reference to defendant as an

“animal,” even if arguably improper, does not amount to reversible misconduct.

While we do not condone the use of opprobrious terms in argument (People v.

McDermott (2002) 28 Cal.4th 946, 1002), the prosecutor’s single reference to

defendant as an “animal” during a closing argument otherwise free of intemperate

language cannot reasonably be considered prejudicial misconduct.

g. What might have happened to Mrs. Ford

In closing argument the prosecutor also discussed the robbery and

attempted kidnapping of Geraldine Ford, whom defendant had attempted at gun-

and knifepoint to force into his truck. During the course of this discussion, the

prosecutor observed: “Again, but for the grace of God, Mrs. Ford is a very, very,

lucky, lucky woman today to have been able to come into this courtroom and

66

testify to you. [¶] A gun and a knife used in that case. We can speculate, and I

don’t really want you to get into speculation, but you know what was going to

happen.” Here, the court overruled defense counsel’s objection that the prosecutor

was, indeed, asking the jury to speculate. The prosecutor continued: “Let me

change the word. We draw reasonable inferences of what was going to happen to

Mrs. Ford if he was successful in getting her into the truck. These are reasonable

inferences you guys can draw. In this case you don’t need it. The actual evidence

[of] a rob[bery] and attempted kidnapping, that should be enough.”

On appeal defendant renews his claim that the prosecutor improperly

invited the jury to speculate about crimes not actually committed. Certainly a

prosecutor should not invite the jury to speculate, but here the prosecutor

prudently amended his remarks to ask the jury to draw reasonable inferences about

defendant’s probable intent based on the evidence. This was proper. (People v.

Osband (1996) 13 Cal.4th 622, 723 [prosecutor in closing argument at the penalty

phase permissibly implied that a more serious crime might have occurred had

someone not interrupted the defendant’s molestation of a 14-year-old girl].)

Based on the evidence, the jury was entitled to draw the reasonable inference that

defendant had an unlawful purpose for attempting to force Ford into his truck.

h. Evidence that defendant would not be dangerous as a life

prisoner was “pure unadulterated speculation”

The defense called five witnesses to testify that defendant behaved well in

custody. Each was or had been employed at a correctional facility. (See ante, at

p. 15.) The general import of their testimony was that defendant was a reliable,

hard worker who avoided trouble. Two witnesses provided more specific grounds

for inferring that defendant would not pose a danger to correctional employees or

to other prisoners. Ed Dawson had supervised defendant’s work on building

maintenance projects at Atascadero State Hospital while defendant was confined

67

there as a mentally disordered sex offender. Dawson testified that defendant had

been cleared for access to sharp tools and had never had any problems, even

though his job was demanding and entailed pressure. Dave Roberts supervised the

culinary unit at the California Training Facility at Soledad. He testified that

defendant’s immediate supervisor gave him an unusually favorable work

evaluation, and that life prisoners tended to behave better than other inmates in

order to avoid restrictions on their freedom.

Addressing this evidence in closing argument, the prosecutor characterized

it as “essentially ask[ing] you to speculate on whether or not he will ever do

anything down the line, and who the hell knows? We know he has history. The

defense can stand up and say he’s been in a lot of institutions and never got in

trouble before, but as everybody sits here now, you will never know whether or

not you are mortgaging the lives of counselors, workers in the joint . . . .” Defense

counsel objected to the argument as “improper.” The court overruled the

objection, and the prosecutor continued: “That’s just pure unadulterated

speculation. So don’t fall for it. Don’t fall for it at all.”

On appeal, defendant claims the prosecutor committed misconduct by

addressing the subject of future dangerousness in closing argument when “[t]he

defense had introduced no testimony on future dangerousness . . . .” But this is

incorrect. The defense had introduced the testimony set out above. In any event,

when a defendant presents evidence of his capacity to adjust to life in prison, it is

permissible for the prosecutor to argue that the evidence is unpersuasive. (People

v. Osband, supra, 13 Cal.4th 622, 723.) The prosecutor here did no more than

that.

68

8. Challenge to CALJIC Nos. 8.86 and 8.87

The trial court instructed the jury with CALJIC Nos. 8.86 and 8.87. Using

these standard instructions, the court enumerated the other violent criminal acts

(§ 190.3, factor (b)) and prior felony convictions (id., factor (c)) the People had

sought to prove as aggravating factors and informed the jury not to consider them

unless convinced beyond a reasonable doubt of their truth.

On appeal, defendant claims the instructions violated People v. Wright,

supra, 45 Cal.3d 1126, 1135-1138, because they argumentatively pinpointed the

evidence on which one side relied. In People v. Robertson, supra, 33 Cal.3d 21,

55, footnote 19, however, we encouraged the People to request instructions

enumerating the other crimes on which they rely as aggravating evidence.

Defendant contends that “Wright is in conflict with Robertson on this point.”

The argument lacks merit. The two decisions address different problems.

People v. Wright, supra, 45 Cal.3d 1126, addresses the problem of apparent bias

caused by argumentative instructions that seem to invite the jury to draw certain

conclusions from specified evidence. (Id., at p. 1137.) People v. Robertson,

supra, 33 Cal.3d 21, addresses the danger of confusion that arises from evidence

suggesting a defendant has committed crimes other than those of which the People

have given formal notice under section 190.3 and sought to prove beyond a

reasonable doubt. Absent instructions like CALJIC Nos. 8.86 and 8.87, there is no

assurance the jury will consider only proper aggravating evidence. (People v.

Robertson, supra, at p. 55, fn. 19.) Here, without such instructions, the jury might

have attributed incorrect significance to the evidence that defendant stole a firearm

from Michael Ayers, possessed methamphetamine, and possessed and attempted

to sell property stolen from David Hill’s residence. While courts need not give

CALJIC Nos. 8.86 and 8.87 sua sponte (People v. Pensinger (1991) 52 Cal.3d

1210, 1267), we find no error in their use here and no reason to find a violation of

69

the Fifth, Sixth, Eighth and/or Fourteenth Amendments to the United States

Constitution, as defendant perfunctorily claims.

9. Refusal to Give Instructions Proposed by Defense—Part 1

Defendant contends the trial court erred in refusing to give two jury

instructions proposed by the defense to highlight specific mitigating evidence.

Proposed instruction No. 47 would have noted defendant’s admission to police of

his guilt in the death of Doris Horrell. Proposed instruction No. 50 would have

noted various assertedly mitigating circumstances, including the admission noted

above, any lingering doubt concerning defendant’s guilt, and the fact that

defendant did not attempt to escape from custody or use force to avoid arrest. The

same instruction would also have restated section 190.3, factor (k).

Neither state nor federal law supports defendant’s claim. State law does

not require instructions highlighting specific mitigating evidence. (People v.

Musselwhite, supra, 17 Cal.4th 1216, 1269-1270.) Arguing to the contrary,

defendant relies on People v. Sears (1970) 2 Cal.3d 180, 190, in which we held

that “[a] defendant is entitled to an instruction relating particular facts to any legal

issue.” But Sears does not require argumentative instructions that merely

highlight specific evidence without further illuminating the relevant legal

standards. (People v. Musselwhite, supra, at pp. 1269-1270.) The only legal

standard plausibly illuminated by the instructions here at issue was section 190.3,

factor (k), which permits the jury to consider all mitigating evidence offered by the

defense. But the court adequately set forth that principle by giving CALJIC No.

8.85. Apart from repeating factor (k), the proposed instructions merely argued the

evidence.

Nor does federal law support defendant’s claim. In Buchanan v. Angelone

(1998) 522 U.S. 269, 277, the United States Supreme Court held that a trial court

70

did not err by instructing a capital sentencing jury simply to consider “ ‘all of the

evidence.’ ” The trial court was not required to list Virginia’s statutory mitigating

circumstances or the specific mitigating evidence the defendant wished to

highlight. (Id., at pp. 273-274, 276-279.) If a defendant has properly been found

eligible for the death penalty, the high court reasoned, and if the jury has been

permitted to consider all constitutionally relevant mitigating evidence, the state

may, but need not, further structure the manner in which the jury considers the

mitigating evidence. (Id., at p. 276.) In this context, jury instructions violate the

Eighth Amendment to the United States Constitution only if there is a reasonable

likelihood the jury has understood them as barring consideration of

constitutionally relevant evidence. (Ibid.) We see no such likelihood here

because the trial court instructed the jury with the expanded version of CALJIC

No. 8.85 to consider “[a]ny other circumstance which extenuates the gravity of the

crime even though it is not a legal excuse for the crime, and any sympathetic or

other aspect of the defendant’s character or record that the defendant offers as a

basis for a sentence less than death, whether or not related to the events for which

he is on trial.”

Defendant contends that the jurors likely believed the law did not permit

them to give any mitigating force to the circumstance that defendant admitted his

guilt in the killing of Horrell. We see no possibility the jurors labored under such a

misunderstanding. Defendant’s admissions came into evidence partly at the penalty

phase, through Linda Ayers’s testimony that he admitted the killing to her in a

telephone call from jail, and partly at the guilt phase, through the testimony of

defense expert Dr. Rosenthal. The court permitted the doctor, who opined that

defendant had killed Horrell under the influence of methamphetamine, briefly to

summarize defendant’s hearsay statements to police as part of the basis of his

opinion. Defendant, according to Dr. Rosenthal, “report[ed] his sense of being

71

puzzled by what happened” and “that he had actually been using drugs for a long

period of time . . . .” The court instructed the jury at the guilt phase not to consider

defendant’s statements to the police for the truth of the matters asserted therein.

Later, however, at the conclusion of the penalty phase, the court expressly gave

defense counsel “free rein” to argue the evidence, and counsel told the jury without

contradiction that the evidence was indeed relevant.11 For this reason, and because

the court properly instructed the jury with CALJIC No. 8.85, we see no reason to

believe the jury was confused on this point.

Defendant unsuccessfully attempts to compare his case with McDowell v.

Calderon (9th Cir. 1997) 130 F.3d 833. In McDowell, the Ninth Circuit held that

a trial court violated the Eighth Amendment to the United States Constitution by

failing to correct the erroneous stated belief of 11 jurors that the law did not permit

them to consider certain mitigating evidence related to the defendant’s personal

and family history. (McDowell v. Calderon, supra, at pp. 837-841.) The jurors

had communicated their misunderstanding during deliberations in a note to the

court seeking guidance on the matter. (Id., at p. 835.) In the case before us,

nothing in the record suggests any juror was similarly confused.

10. Refusal to Give Instructions Proposed by Defense—Part 2

As we have already explained, neither state nor federal law requires trial

courts to give jury instructions cataloging the mitigating evidence. (See ante, at

p. 70 et seq.; see also Buchanan v. Angelone, supra, 522 U.S. 269, 273-274, 276-


11

Defense counsel argued as follows: “you can consider the fact even after

his arrest, and Mike Yeoman admitted responsibility to the police for killing Mrs.
Horrell, and he expressed a general sense of puzzlement about what he had done.
[¶] And you can consider that he admitted his guilt to killing Mrs. Horrell to Linda
Ayers, and he expressed his remorse for having done that.”

72

279; People v. Musselwhite, supra, 17 Cal.4th 1216, 1269-1270.) Arguing to the

contrary once again, defendant contends the trial court erred in refusing to give his

proposed instruction No. 46. The proposed instruction would have enumerated 21

mitigating circumstances, including such things as defendant’s “lack of a sense of

self esteem and self-worth,” his “expressions of concern for others,” his “positive

contributions while in the state hospital and in prison, in his work and in his

poetry,” and the fact that he “tearfully admitted his guilt in killing [Horrell] to

[Linda Ayers] and expressed his remorse.” In declining to give so argumentative

an instruction, the court did not err.

Defendant also contends the court’s failure to give the proposed instruction

violated federal law in a number of respects. While he perfunctorily cites the

Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution,

he offers no specific arguments under any of those provisions except as noted

below.

Relying on Hicks v. Oklahoma (1980) 447 U.S. 343, 346, defendant argues

that the court violated due process by arbitrarily refusing to give an instruction

pinpointing mitigating evidence at the penalty phase, when defendants are entitled

to analogous instructions pinpointing evidence at the guilt phase. The argument

fails because the premise is erroneous: In no context is a defendant entitled to an

argumentative instruction that simply highlights particular evidence without

further elucidating the relevant legal standards. (People v. Musselwhite, supra, 17

Cal.4th 1216, 1269-1270; see ante, at p. 70.)

Citing Hitchcock v. Duger (1987) 481 U.S. 393, defendant contends the

court’s failure to give the proposed instruction prevented the jury from

understanding the scope of the factors they might consider in mitigation.

Hitchcock is not apposite. In that case, a Florida trial court had instructed a jury to

consider only the mitigating evidence that fell within a restrictive set of statutory

73

mitigating factors; the trial court thus erroneously precluded the capital sentencing

jury from considering other constitutionally relevant mitigating evidence.

(Hitchcock v. Duger, supra, at pp. 398-399; see Skipper v. South Carolina (1986)
476 U.S. 1, 4.) In contrast, the jury in the case before us was properly instructed

with CALJIC No. 8.85 to consider “[a]ny other circumstance” proffered as

mitigating evidence. (See § 190.3, factor (k).)

Finally, citing Wardius v. Oregon (1973) 412 U.S. 470, 472, defendant

contends the trial court violated due process by refusing to give the proposed

instruction enumerating mitigating evidence while nevertheless giving CALJIC

Nos. 8.86 and 8.87, which enumerate the other violent criminal acts (§ 190.3,

factor (b)) and prior felony convictions (id., factor (c)) the People had sought to

prove. The decision in Wardius, however, merely requires that certain discovery

obligations be reciprocal. It does not support defendant’s argument. Perhaps

drawing a loose analogy to Wardius, defendant argues that the trial court

“impermissibly tilted the balance in the penalty trial in favor of the prosecution”

by refusing the proposed instruction. But CALJIC Nos. 8.86 and 8.87 have no

such effect. Instead, they serve the evenhanded goal of preventing the jury from

considering evidence suggesting a defendant has committed crimes other than

those of which the People have given formal notice under section 190.3 and

sought to prove beyond a reasonable doubt. (People v. Robertson, supra, 33

Cal.3d 21, 55, fn. 19.)

11. Refusal to Give Instructions Proposed by Defense—Part 3

Defendant argues the court erred in refusing to give instructions proposed

by the defense on sympathy and the benefit of the doubt. We find no error.

74

The proposed instruction on sympathy is set out in the margin.12 In

essence, the proposed instruction paraphrased the reasons this court gave in

People v. Lanphear (1984) 36 Cal.3d 163, 167, for concluding that juries must be

allowed to consider sympathy for the defendant as a mitigating circumstance. The

proposed instruction was necessary, defendant claims, because no instruction

given in this case informed the jury “that sympathy may be based independently

on the abuse which defendant suffered as a child, without a demonstrable

connection to the crimes committed as an adult.” In fact, such an instruction was

given. Through the language of CALJIC No. 8.85, the trial court directed the jury

to consider, among other things, “any sympathetic or other aspect of the

defendant’s character or record that the defendant offers as a basis for a sentence

less than death, whether or not related to the events for which he is on trial.”

(Italics added.) In any event, the United States Supreme Court has held that even

the unadorned language of section 190.3, factor (k) satisfies the requirements of

the Eighth Amendment to the United States Constitution in this context. (Boyde v.

California (1990) 494 U.S. 370, 377-382.) A fortiori, the expanded version of

factor (k) set out in CALJIC No. 8.85 must also be satisfactory.

As mentioned, the trial court also declined an instruction proposed by the

defense on the benefit of the doubt. The proposed instruction would have told the

jurors they “must,” if in doubt as to which penalty to impose, “give the defendant

12

Defendant’s proposed instruction No. 14 provided: “The jury is permitted

to consider mitigating evidence relating to the defendant’s character and
background precisely because that evidence may arouse sympathy or compassion
for the defendant. If a mitigating circumstance or an aspect of the defendant’s
background or his character called to the attention of the jury by the evidence or
its observation of the defendant arouses sympathy or compassion such as to
persuade the jury that death is not the appropriate penalty, the jury may act in
response thereto and opt instead for life without possibility of parole.”

75

the benefit of that doubt and return a verdict fixing the penalty at life without the

possibility of parole.” Defendant argues that California law requires such an

instruction, but we have previously held to the contrary. (People v. Cunningham,

supra, 25 Cal.4th 926, 1041-1042; People v. Musselwhite, supra, 17 Cal.4th 1216,

1270.) Defendant presents no adequate justification for reconsidering that

holding.

We find no merit in defendant’s conclusory assertions that the trial court,

by denying the proposed instructions discussed above, left the jury with open-

ended discretion to impose the death penalty, precluded the jury from giving the

defendant individualized sentencing discretion, rendered the death verdict

arbitrary, capricious and unreliable, or violated the Fifth, Eighth and Fourteenth

Amendments to the United States Constitution.

12. Refusal to Give Instructions Proposed by Defense—Part 4

Defendant contends the trial court committed three additional errors in

instructing the penalty phase jury. We find none.

First, the trial court did not err in refusing to instruct the jury that the

statutory aggravating factors were exclusive. Lacking such an instruction,

defendant contends, the prosecutor was free to rely on nonstatutory aggravating

factors in his closing argument. Defendant’s premise and conclusion are both

incorrect. Nothing in the instructions given by the court suggested the jury might

properly consider nonstatutory aggravating factors. In fact, the court strongly

suggested the contrary by directing the jury to “consider, and take into account

and be guided by the applicable factors of aggravating and mitigating

circumstances upon which you have been instructed.” (CALJIC No. 8.88.)

CALJIC No. 8.85 freed the jury to consider nonstatutory mitigating factors by

explaining section 190.3, factor (k), but no instruction did the same for

76

aggravating factors. Furthermore, defendant does not persuade us that the

prosecutor did in fact argue nonstatutory aggravating factors. The prosecutor’s

fleeting reference to the impact of defendant’s crimes on Horrell’s relatives was a

permissible reference to a statutory aggravating factor, namely, the circumstances

of the crime. (§ 190.3, factor (a); see People v. Edwards, supra, 54 Cal.3d 787,

833; see also ante, at p. 64 et seq.) Nor did the prosecutor argue future

dangerousness as a nonstatutory aggravating factor. As we have already

explained, he merely asked the jury to reject defense counsel’s speculation that

defendant would not be dangerous if sentenced to life without the possibility of

parole. (See ante, at p. 68.)

Second, the court did not err in instructing the jury to consider defendant’s

molestation of Sharon C. both as violent criminal conduct (§ 190.3, factor (b)) and

as a prior felony conviction (id., factor (c)). On appeal, defendant argues the court

erroneously directed the jury to double-count defendant’s prior offense. We have

rejected identical arguments many times before. (E.g., People v. Gutierrez (2002)

28 Cal.4th 1083, 1154; People v. Melton (1988) 44 Cal.3d 713, 764.) The

argument lacks merit because factors (b) and (c) serve the different purposes of

showing, respectively, a defendant’s propensity for violence and his failure to be

deterred by past criminal sanctions. (People v. Melton, supra, at p. 764.) In any

event, the concept of counting has no real significance in this context. Jurors are

directed not to count aggravating and mitigating factors in a mechanical way but,

instead, to assign to each whatever moral or sympathetic value they deem

appropriate. (CALJIC No. 8.88; see People v. Brown (1985) 40 Cal.3d 512, 541.)

Third, the court did not err in instructing the jurors that, to return a verdict

of death, they need not unanimously agree on the weight or significance to be

given each aggravating and mitigating circumstance. (People v. Bacigalupo,

supra, 1 Cal.4th 103, 147.) Nor do we see any flaw in the trial court’s

77

extemporaneous instruction on this point, which correctly described California law

as requiring a unanimous verdict but permitting the jurors to arrive at that verdict

“by twelve separate routes.” To be sure, as defendant argues, to require unanimity

on the treatment of each sentencing factor would increase the People’s burden and

thus offer defendants more protection. We said as much in People v. Jackson

(1980) 28 Cal.3d 264, 357. But it does not logically follow that the absence of

such a requirement biases the jury in favor of death when each juror must decide

for himself or herself “whether the aggravating circumstances are so substantial in

comparison with the mitigating circumstances that it warrants death instead of life

without parole.” (CALJIC No. 8.88.)

Briefly addressing federal law, defendant argues that the trial court’s

instructions to the jury on the three matters discussed above violated the Fifth,

Sixth, Eighth and Fourteenth Amendments to the United States Constitution. We

perceive no credible federal claim. In particular, we see no reason to believe the

trial court caused the death judgment to be unreliable or arbitrary for Eighth

Amendment purposes by failing to instruct the jury that the statutory aggravating

circumstances were exclusive. Other properly given instructions suggested as

much, and the prosecutor did not argue nonstatutory aggravating factors. (See

ante, at p. 76.) Nor are we persuaded that the jury was biased in favor of death

because the instructions referred twice to defendant’s molestation of Sharon C., or

because no instruction told the jurors they had to agree on the significance and

weight to be assigned to each sentencing factor. The jurors were instructed not to

count factors mechanically, and each juror was permitted to assign to each factor

whatever sympathetic or moral weight he or she deemed appropriate. (See ante, at

p. 77.) The decisions on which defendant relies (Zant v. Stephens (1983) 462 U.S.

862, 884-891; Godfrey v. Georgia (1980) 446 U.S. 420, 427-433) address the

78

constitutional ramifications of using vague factors to determine a defendant’s

eligibility for the death penalty. They are not apposite.

13. Juror Misconduct

Defendant unsuccessfully moved for a new trial on the ground of jury

misconduct. On appeal, defendant contends the trial court abused its discretion in

denying the motion, in failing to conduct an evidentiary hearing, and in failing to

issue subpoenas to compel the testimony of jurors who had declined to speak with

defense investigators. Defendant also contends the alleged misconduct, and the

trial court’s rulings, violated his rights under the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution. All of these claims

lack merit.

Defendant raises four claims of misconduct. In each, he asserts that jurors

brought to their deliberations extraneous information derived from their personal

knowledge and experience rather than the evidence at trial. We review such

claims under the standards set out in In re Carpenter (1995) 9 Cal.4th 634, 653:

“To summarize, when 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. 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.”

79

The evidence of misconduct consists of declarations prepared by the

defense for Jurors Mary Ann F., Karen H., Michael L., Carol M. and Peg P. The

declarations repeat, with fair consistency, remarks attributed to the various jurors

claimed to have committed misconduct. The defense submitted these declarations

in support of the motion for a new trial. The defense also submitted declarations

by defense investigators repeating statements by Jurors Robert A. and Franklin K.,

who had refused to sign declarations. The trial court did not expressly determine

the admissibility of these statements, but they are generally consistent with the

signed declarations and appear to add to them nothing of significance. Finally, the

defense submitted declarations by defense counsel naming jurors who had chosen

not to cooperate in their investigation of alleged misconduct.

a. Drug screening procedures

Defendant’s first claim concerns Juror Donald P., who apparently repeated

during the guilt phase deliberations second-hand information about drug screening

procedures at the Sacramento County jail. According to the declarations, Donald

P. told the other jurors that he was married to a nurse who was friendly with a

nurse currently working at the county jail, possibly defense witness Lorraine

Andrews, R.N. Donald P. also told the other jurors that, according to his wife, a

person who is arrested and brought to jail is carefully screened for drug use or

withdrawal and that, if either is noted, the matter is documented and therapy

begun. As a prospective juror, Donald P. had disclosed on his questionnaire the

information that his wife was a nurse formerly employed by the county health

department and that he, himself, was friendly with a prison physician. While all

the prospective jurors were asked to review a list of potential witnesses, the name

of defense witness Andrews did not appear on the list. No declarant asserts that

80

Juror Donald P. claimed to have spoken with his wife or any other person about

the case during the jury’s deliberations.

Juror Donald P.’s remarks might conceivably be viewed as extraneous

information of conceivable relevance to the case, and thus misconduct. The

defense had attempted to defeat the People’s robbery-murder special circumstance

allegation by showing that defendant did not form the intent to rob victim Doris

Horrell until after killing her because he was under the influence of methampheta-

mine. Defense witness Andrews, who as a nurse examined jail inmates for health

problems, testified that she did not test defendant’s blood for drugs, even though

he had reported recent drug use. Conceivably, Juror Donald P.’s information

about drug screening procedures might have caused him to believe, or suggested

to other jurors, that defendant must not have appeared to be under the influence of

drugs at the time he arrived at the county jail.

While Juror Donald P.’s remarks were arguably improper, we perceive no

substantial likelihood that the remarks indicated bias on his own part or caused

any other juror to become biased. (See In re Carpenter, supra, 9 Cal.4th 634,

653.) Defendant killed Doris Horrell on February 13, 1988. He was arrested on

February 16 and examined by Nurse Andrews on February 22. Whether or not

defendant appeared to be under the influence of drugs on February 22, or even on

February 16, had little apparent relevance to his mental state on February 13.

Whether defendant ever used drugs was not at issue; many witnesses testified that

he frequently did. Instead, the material, disputed fact was whether defendant on

February 13 formed the intent to rob Horrell before or while killing her. The

evidence properly admitted at trial on that issue included substantial evidence of

rational activity preceding and following the crime, in which defendant posed as a

good Samaritan to lure a stranded, vulnerable motorist into his car, killed her,

removed her jewelry and other valuable possessions, calmly admitted to Debra

81

Stafford what he had done, immediately returned to the scene of the crime to

destroy and conceal evidence, and surveyed the victim’s house but abandoned a

contemplated burglary as too risky in view of the good lighting and the presence

of neighbors. (See ante, at p. 2 et seq.)

Viewed thus in the light of the entire record, we cannot say that Juror

Donald P.’s extraneous information about drug screening procedures at the county

jail was inherently and substantially likely to have indicated bias on his own part

or caused any other juror to become biased. Nor does it appear substantially

likely, looking to the nature of the juror’s remarks and the surrounding

circumstances, that he or any other juror was, on account of the statements,

actually biased against defendant. (See In re Carpenter, supra, 9 Cal.4th 634,

653.)

b. “Sociopath”

In his second claim of misconduct, defendant asserts that Juror Mary Ann

F., a nurse, brought extraneous information to the jury’s deliberations by

explaining the term “sociopath” and how it might apply to defendant. The record

does not clearly show that any misconduct occurred. Nevertheless, assuming for

the sake of argument that misconduct did occur, we find no substantial likelihood

that any juror was biased. (In re Carpenter, supra, 9 Cal.4th 634, 653.)

The term “sociopath” was not used at trial, but the prosecutor did use the

similar term “antisocial personality disorder” in cross-examining two defense

expert witnesses. These witnesses were Dr. Fred Rosenthal, the psychiatrist and

psychologist who testified at the guilt phase that defendant probably was under the

influence of methamphetamine when he killed Doris Horrell, and Dr. Mindy

Rosenberg, the psychologist who testified at the penalty phase about defendant’s

social history and the effects of child abuse. To each expert, the prosecutor posed

82

questions apparently intended to explore whether the diagnostic label in question

might apply to defendant. The defense unsuccessfully objected to these questions

as beyond the scope of direct examination. Answering the questions, both experts

testified that they had not been asked to diagnose defendant. Neither opined that

the label “antisocial personality disorder” did, or did not, apply. During the guilt

phase, the court offered to instruct the jury, if necessary, that there was “no

evidence that [defendant] has or has not been diagnosed as having an antisocial

personality or is a so-called psychopath.” Ultimately, however, the court gave no

such instruction because the prosecutor did not refer to the concept in argument at

either phase of the trial. The defense briefly mentioned the concept in its guilt

phase closing argument, but only to say the concept was not relevant.

The testimony, objections and argument about “antisocial personality

disorder” and “psychopath[s]” apparently led to discussion among the jurors. In

her declaration, Juror Mary Ann F. stated: “During deliberations we discussed the

meaning of the term sociopath. We tried to describe what we felt sociopath was.

We also discussed why the defense objected to testimony about the subject.”13

The same juror also declared: “Because of my career as a nurse, the jurors fielded

medical type questions to me. Some of these questions were beyond my area of

expertise and I did not attempt to answer them.” Juror Carol M. similarly declared

that Juror Mary Ann F. “helped us in explaining psychological terms and

diagnoses. She told us some of what she learned in her nurse[’]s training; For

example she used the term sociopath and explained how it might apply to Michael


13

Because no attorney or witness had used the term “sociopath” at trial, we

assume the jurors used the term as a colloquial way of referring to a person with
antisocial personality disorder, in much the same way defense counsel used the
term “psychopath” in closing argument.

83

Yeoman.” Juror Michael L. declared more cryptically that Juror Mary Ann F.

“explained some medical terms to us.”

Certainly a juror commits misconduct by asserting a “claim to expertise or

specialized knowledge of a matter at issue.” (In re Malone (1996) 12 Cal.4th 935,

963.) Yet “it is not improper for a juror, regardless of his or her educational or

employment background, to express an opinion on a technical subject, so long as

the opinion is based on the evidence at trial. Jurors’ views of the evidence,

moreover, are necessarily informed by their life experiences, including their

education and professional work.” (Ibid.; see also People v. Steele (2002) 27

Cal.4th 1230, 1265-1267.) The evidence presented here does not show that Juror

Mary Ann F. offered the jurors any basis for deciding the case other than the

evidence and testimony presented at trial. No declaration suggests the juror made

any assertion inconsistent with the properly admitted evidence and testimony.

Moreover, defendant does not claim, and the declarations do not suggest, that the

juror brought reference materials to the jury room, consulted such materials

outside the jury room, or spoke with anyone other than jurors about the case. For

these reasons we doubt whether the evidence actually establishes that misconduct

occurred. “Indeed, lay jurors are expected to bring their individual backgrounds

and experiences to bear on the deliberative process.” (People v. Pride (1992) 3

Cal.4th 195, 268.) That they do so is both a strength of the jury system and a

weakness that must be tolerated. (Ibid.)

Nevertheless, assuming for the sake of argument that the juror’s remarks

did entail misconduct, reviewing the entire record we find no substantial

likelihood that any juror was biased. (In re Carpenter, supra, 9 Cal.4th 634, 653.)

Juror Mary Ann F.’s remarks about the term “sociopath,” as reported in the

various jurors’ declarations, are not inherently and substantially likely to indicate

bias on her part or to have influenced any juror. Nor, in view of the nature of the

84

juror’s remarks and the surrounding circumstances, is it substantially likely that

any juror was actually biased against the defendant. (Ibid.)

c. Jurors’ experiences with drugs

Defendant also claims that several jurors committed misconduct by

recounting personal experiences involving drugs. According to the declarations,

Juror Mary Ann F. described her brother’s abuse of and withdrawal from drugs;

Juror Peg P. told how her son was arrested and straight-jacketed after using drugs

and brandishing a gun; and Juror Robert A. described his own use of and reactions

to various drugs. Defendant argues these jurors thereby acted as “pseudo-

experts,” rebutting the defense claim that defendant’s conduct was related to his

drug use. We find no misconduct. The effect of drugs, while certainly a proper

subject of expert testimony, has become a subject of common knowledge among

laypersons. On this subject, as we recognized in People v. Fauber, supra, 2

Cal.4th 792, 839, “[j]urors cannot be expected to shed their backgrounds and

experiences at the door of the deliberation room.” (See also People v. Steele,

supra, 27 Cal.4th 1230, 1265-1267.)

d. Life without parole, release and escape

Defendant claims a juror committed misconduct by remarking during

deliberations that defendant might escape from prison if sentenced to life without

the possibility of parole. The claim is based on the declaration of Juror Karen H.,

who stated “[t]hat during the penalty deliberation someone brought up whether

[defendant] might escape if given life without parole.” The juror continues:

“Someone made a ‘crack’ about this . . . it was not discussed in any way.” It thus

appears the remark was intended, however inappropriately, as sarcasm or in jest.

While the remark might literally be described as injecting an extraneous fact into

the jury’s deliberations, or as speculation about facts not in evidence, few verdicts

85

would stand if held to such an impossible standard. (People v. Pride, supra, 3

Cal.4th 195, 268; see In re Carpenter, supra, 9 Cal.4th 634, 654-655.) Reasoning

that “[t]he average juror undoubtedly worries that a dangerous inmate might

escape” (People v. Pride, supra, at p. 268), we concluded in Pride that a prison

employee’s far more detailed remarks to his fellow jurors about the possibility of

escape did not constitute misconduct (ibid.). The same reasoning more easily

justifies a similar conclusion here.

Defendant also claims the jurors committed misconduct by discussing the

possibility of parole. The claim is based on the declaration of Juror Mary Ann F.,

who stated: “It was brought up by one juror that if we gave [defendant] life

without parole, he’ll probably get out in seven years. This seemed like an off hand

comment.” The claim is also based on the declaration of defense investigator

Margaret Erickson, who asserts that Juror Robert A. told her “[t]he jurors

discussed whether or not life without parole really means what it says” and that,

“[i]n terms of [defendant’s] being released in the future, there was concern about

revenge.”14

Accepting as true for the sake of argument all of defendant’s assertions

about juror misconduct, we find no substantial likelihood of bias. (In re

Carpenter, supra, 9 Cal.4th 634, 653.) We have recognized that jurors cannot

always be effectively precluded from discussing such topics of general awareness

and concern as the possibility of parole (People v. Mendoza (2000) 24 Cal.4th

130, 195), escape (People v. Pride, supra, 3 Cal.4th 195, 268), and the infrequent

nature of executions (People v. Majors (1998) 18 Cal.4th 385, 421; People v. Cox

14

By repeating this evidence, we do not suggest that the hearsay statements of

the defense investigator would necessarily be admissible to prove the facts
asserted, namely, what Juror Robert A. said in the jury room.

86

(1991) 53 Cal.3d 618, 696). Thus, in People v. Mendoza, we upheld a trial court’s

finding that the jurors in a capital case did not commit misconduct by discussing

briefly the possibility of parole during the course of penalty phase deliberations

that otherwise properly focused on the facts of the case and the aggravating and

mitigating circumstances. (Mendoza, supra, at p. 195.) The evidence in this case

offers no justification for a different conclusion. Assuming for the sake of

argument that the statements defendant challenges might be viewed as

misconduct, we perceive in them no substantial likelihood of bias, either

inherently or in view of their nature and the surrounding circumstances. (In re

Carpenter, supra, at p. 653.)

Nor did the trial court abuse its discretion in declining to conduct an

evidentiary hearing on the defense allegations of jury misconduct or in failing to

compel jurors to testify. While these procedural tools are available to trial courts,

not every allegation of misconduct justifies their use. We have emphasized that

evidentiary hearings should not be used as fishing expeditions to search for

possible misconduct. Instead, such hearings should be conducted only when the

defense has come forward with evidence demonstrating a strong possibility that

prejudicial misconduct has occurred. Moreover, even when the defense has made

such a showing, an evidentiary hearing will generally be unnecessary unless the

evidence presents a material conflict that can be resolved only at such a hearing.

(People v. Hedgecock (1990) 51 Cal.3d 395, 419.) In this case, the affidavits

submitted by the defense did not demonstrate a strong possibility that prejudicial

misconduct had occurred.

14. Jury Unanimity on Other Violent Criminal Conduct

Defendant contends the trial court erred in instructing the jurors they did

not need to agree on whether any particular violent criminal activity offered as

87

evidence in aggravation (see § 190.3, factor (b)) had occurred. In so doing, the

court used standard language drawn from the last paragraph of CALJIC No.

8.87.15 Defendant unsuccessfully objected to the instruction, proposed an

alternative instruction that did not mention unanimity, and renewed the objection

in his motion for a new trial.

The claim lacks merit. California law does not require the jurors to agree

on instances of criminal activity offered as aggravating evidence under section

190.3, factor (b). (People v. Raley (1992) 2 Cal.4th 870, 910; People v. Ghent

(1987) 43 Cal.3d 739, 773-774.) Nor does the absence of any such requirement

render a judgment of death unreliable for Eighth Amendment purposes. (People v.

Raley, supra, at p. 910; People v. Bacigalupo, supra, 1 Cal.4th 103, 135.)

Defendant claims that factor (b) also violates the Eighth Amendment to the United

States Constitution in not requiring the jurors to agree unanimously on violent

criminal activity and, thus, in failing to narrow adequately jurors’ discretion to

impose the death penalty. (See McCleskey v. Kemp, supra, 481 U.S. 279, 305.)

The claim fails because the required narrowing function is performed in California

by the special circumstances set out in section 190.2, rather than by the

aggravating and mitigating factors set out in section 190.3. (Pulley v. Harris

(1984) 465 U.S. 37, 53; People v. Whitt (1990) 51 Cal.3d 620, 659-660.)

15. Miscellaneous Constitutional Challenges to the Death Penalty

Defendant asserts a variety of challenges, under the Eighth and Fourteenth

Amendments to the United States Constitution, to the procedures under which the

15

The court instructed: “It is not necessary for all jurors to agree. If any

juror is convinced beyond a reasonable doubt that such criminal activity occurred,
that juror may consider that activity as a fact in aggravation. [¶] If a particular
juror is not so convinced, that juror must not consider that evidence for any
purpose.”

88

death penalty is imposed in California. We have previously considered and

rejected each claim. Defendant offers no persuasive reason to reconsider our prior

decisions. More specifically:

a. Trial courts need not delete from the list of sentencing factors set out in

CALJIC No. 8.85 those that may not apply. (People v. Ghent, supra, 43 Cal.3d

739, 776.) The failure to do so does not deprive defendant of his rights to an

individualized sentencing determination (People v. Turner (1994) 8 Cal.4th 137,

207-208) or to a reliable judgment (People v. Sanchez (1995) 12 Cal.4th 1, 79).

b. The jury need not prepare written findings identifying the aggravating

factors on which it relied. (People v. Davenport (1995) 11 Cal.4th 1171, 1232.)

Nor does the absence of any such requirement violate defendant’s right to

meaningful appellate review. (Ibid.)

c. The jury need not find beyond a reasonable doubt the truth of the

aggravating factors on which it relies, that the aggravating factors outweigh the

mitigating factors, or that death is the appropriate penalty. (People v. Boyette

(2002) 29 Cal.4th 381, 466.) The absence of any such requirement does not

render a death judgment unreliable, or violate due process or equal protection.

(Id., at p. 465.)

d. The court need not review a death judgment for proportionality with

sentences in other cases. (Pulley v. Harris, supra, 465 U.S. 37, 50-51; People v.

Bradford, supra, 15 Cal.4th 1229, 1384.)

e. The adjectives “extreme” and “substantial” do not render vague the

sentencing factors that include those words. (§ 190.3, factors (d) & (g); see

People v. Box (2000) 23 Cal.4th 1153, 1217.) Nor do those adjectives bar

consideration of proper mitigating evidence, since factor (k) permits the jury to

consider “[a]ny other circumstance which extenuates the gravity of the crime.”

(§ 190.3, factor (k); see People v. Benson, supra, 52 Cal.3d 754, 803-804.)

89

f. California’s statutory special circumstances (§ 190.2, subd. (a)(1)-(22))

are not so numerous or inclusive as to fail to narrow the class of murderers eligible

for the death penalty. (People v. Michaels, supra, 28 Cal.4th 486, 541.)

g. To give the district attorney of each county the discretion to decide

whether to seek the death penalty does not render such decisions arbitrary, even in

the absence of statewide standards for, or oversight of, such decisions. (People v.

Holt, supra, 15 Cal.4th 619, 702.)

III. DISPOSITION

The judgment is affirmed.

WERDEGAR, J.

WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.


90








CONCURRING OPINION BY KENNARD, J.




I concur in the majority opinion. I offer these additional thoughts on

defendant’s contention that the prosecutor peremptorily challenged four Black

jurors because of their race, in violation of Batson v. Kentucky (1986) 476 U.S. 79

(Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). In rejecting that

contention, the majority makes several references to this court’s very recent

decision in People v. Johnson (June 30, 2003, S097600) __ Cal.4th __ (Johnson),

in which I dissented. As I shall explain, Johnson is superficially similar but

fundamentally different from this case.

A trial court may deny a Wheeler motion outright if the moving party has

failed to make a prima facie showing that impermissible group bias motivated the

opposing party’s challenges. In Johnson, a majority of this court held that to

establish a prima facie case, “the objector must show that it is more likely than not

the other party’s peremptory challenges, if unexplained, were based on

impermissible group bias.” (Johnson, supra, __ Cal.4th at p. __ [p. 2], italics

added.) I disagreed. As I explained, to establish a prima facie case the objecting

party need only “prove facts that, if unexplained, permit a reasonable inference of

discriminatory purpose.” (Id. at p. __ [p. 2] (dis. opn. of Kennard, J.), italics

added.)

But the discussion in Johnson, supra, __ Cal.4th __, on what it takes to

establish a prima facie case of group bias in challenging prospective jurors has

nothing to do with the issue here. That discussion pertains only to the standard of

1

proof the trial court must use to determine a prima facie showing of group bias.

Here, defendant claims the court misapplied that standard to the facts. In

reviewing that claim, the majority here correctly applies the standard for appellate

review of a trial court’s determination that a moving party did not make a prima

facie showing, rather than the standard that the Johnson majority said the trial

court should use.

In Johnson, the majority upheld the trial court’s ruling that the defendant

had not made a prima facie showing of group bias. I disagreed. I explained:

“[D]efendant showed that the prosecutor challenged all three Blacks on the jury

panel, used a disproportionate number of his peremptory challenges against

members of that racial group, and failed to engage in any questioning whatever of

any these prospective jurors notwithstanding invitations to do so by the trial court.

With respect to two of the three jurors, there is nothing in their oral or written

responses that stands out to show they would be unacceptable jurors.” (Johnson,

supra, __ Cal.4th __, __ [p. 16] (dis. opn. of Kennard, J.).) This aspect of my

dissent in Johnson was based on the facts of that case, not on any disagreement

with the underlying legal principles. This case presents a different factual pattern.

Defendant argued that the prosecutor’s challenges of four prospective Black jurors

were motivated by group bias. With respect to one of those jurors, the trial court

found a prima facie case and, after hearing the prosecutor’s explanation,

concluded that the challenge was not based on group bias. As to the remaining

three prospective jurors, the trial court ruled that defendant had not made a prima

facie case of group bias. I agree with the majority that these jurors’ oral and

written responses on voir dire afforded the prosecution race-neutral reasons for its

peremptory challenges. Thus, unlike Johnson, the majority here properly upholds

the trial court’s ruling that defendant failed to make a prima facie showing that the

2

prosecutor’s peremptory challenges were based on group bias. On that basis, I

concur in the majority’s opinion.

KENNARD,

J.

3

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

Name of Opinion People v. Yeoman
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S016719
Date Filed: July 17, 2003
__________________________________________________________________________________

Court:
Superior
County: Sacramento
Judge: Rothwell B. Mason

__________________________________________________________________________________

Attorneys for Appellant:

Charles M. Bonneau, under appointment by the Supreme Court, for Defendant and Appellant.





__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson,
Assistant Attorney General, Ward A. Campbell and Carlos A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.






1





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

Charles M. Bonneau
980 Ninth Street, Suite 1400
Sacramento, CA 95814
(916) 444-8828

Carlos A. Martinez
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5274


2

Opinion Information
Date:Docket Number:
Thu, 07/17/2003S016719

Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
Carlos A. Martinez, deputy
P.O. Box 944255
1300 I St., 11th Floor
Sacramento, CA

2Yeoman, Ralph Michael (Appellant)
Represented by Charles M. Bonneau
Attorney at Law
331 J Street, Suite 200
Sacramento, CA


Disposition
Jul 17 2003Opinion: Affirmed

Dockets
Jul 10 1990Judgment of death
 
Jul 26 1990Filed certified copy of Judgment of Death Rendered
  7-10-90.
Aug 15 1990Extension of Time application Granted
  To Court Reporter To 8-20-90 To Complete R.T.
Sep 13 1993Counsel appointment order filed
  Charles M. Bonneau, Esq. Is appointed to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings.
Oct 19 1993Application for Extension of Time filed
  By Applt to request correction of Record.
Oct 21 1993Extension of Time application Granted
  To Applt To 12-13-93 To request Corr. of Record.
Dec 9 1993Application for Extension of Time filed
  By Applt to request correction of Record.
Dec 10 1993Extension of Time application Granted
  To Applt To 2-14-94 To request Corr. of Record.
Jan 12 1994Compensation awarded counsel
 
Feb 25 1994Application for Extension of Time filed
  By Applt to request correction of Record.
Mar 1 1994Extension of Time application Granted
  To Applt To 4-29-94 To request Corr. of Record.
Apr 29 1994Application for Extension of Time filed
  By Applt to request correction of Record.
May 5 1994Extension of Time application Granted
  To Applt To 6-28-94 To request Corr. of Record.
May 19 1994Compensation awarded counsel
 
Jun 27 1994Application for Extension of Time filed
  By Applt to request correction of Record.
Jun 28 1994Extension of Time application Granted
  To Applt To 8-29-94 To request Corr. of Record.
Aug 25 1994Received:
  Copies of Applt's (1) motion to correct Record; (2) motion to Augment Record; & (3) motion to Settle Record (filed in Superior Court)
Sep 7 1994Compensation awarded counsel
 
Dec 28 1994Compensation awarded counsel
 
Mar 23 1995Compensation awarded counsel
 
Apr 11 1995Motion to augment AA record filed
  Motion by appellant to Augment and Settle Record (9 Pp. Excluding attachments)
Oct 25 1995Record augmentation granted
  The motion to Augment The Record is granted in part. The Superior Ct. shall identify, by the name of the person responding, the questionnaires completed by: (a) the jurors; (b) the alternate jurors; (c) the prospective jurors who were peremptorily challenged by the People; (d) the prospective jurors who were challenged for cause unsuccessfully by appellant; and (e) the prospective juror (see R.T. 2645) who was excused for cause on the People's motion. All questionnaires shall remain under the seal of the Superior Court & subject to all restrictions on use and disclosure previously imposed by that court. The motion to augment is in all other respects denied. The motion to settle the record with the Declaration of Katherine L. Bell is denied.
Nov 1 1995Filed:
  Applt's request for Reconsideration (of Court's 10-25-95 Order).
Nov 29 1995Order filed:
  The "Request for Reconsideration" is construed as a motion to augment the record and, so construed, granted. The superior court shall identify, by the name of the person responding, the questionnaires completed by the following prospective jurors: Esther Kaibe (see RT 1843), Charles Marvin (see RT 1860), Elona Knau (see RT 2251), Arnold Roth (see RT 1834), and Ismael Gutierrez (see RT 2927). All questionnaires shall remain under the seal of the superior court and subject to all restrictions on use and disclosure previously imposed by that court.
Dec 13 1995Change of Address filed for:
  Atty Charles Bonneau.
Mar 28 1996Compensation awarded counsel
 
Jul 10 1996Compensation awarded counsel
 
Oct 21 1996Compensation awarded counsel
 
Dec 20 1996Record on appeal filed
  C-17 (5,036 Pp.) and R-22 (6,429 Pp.); Clerk's Transcript includes 2,633 pages of Juror Questionnaires.
Dec 20 1996Appellant's opening brief letter sent, due:
  1-29-97.
Jan 14 1997Compensation awarded counsel
 
Jan 24 1997Application for Extension of Time filed
  To file Aob.
Jan 30 1997Compensation awarded counsel
 
Feb 10 1997Extension of Time application Granted
  To March 31,1997 To file AOB
Mar 27 1997Application for Extension of Time filed
  To file Aob.
Apr 1 1997Extension of Time application Granted
  To 5-30-97 To file Aob.
Apr 16 1997Compensation awarded counsel
 
May 29 1997Application for Extension of Time filed
  To file Aob.
Jun 5 1997Extension of Time application Granted
  To 6-30-97 To file Aob.
Jul 1 1997Application for Extension of Time filed
  To file Aob.
Jul 7 1997Extension of Time application Granted
  To 7-30-97 To file Aob.
Jul 24 1997Compensation awarded counsel
 
Jul 29 1997Application for Extension of Time filed
  To file Aob.
Aug 4 1997Extension of Time application Granted
  To 8-29-97 To file Aob.
Aug 29 1997Application for Extension of Time filed
  To file Aob.
Sep 3 1997Extension of Time application Granted
  To 9-29-97 To file Aob.
Sep 29 1997Application for Extension of Time filed
  To file Aob.
Oct 1 1997Extension of Time application Granted
  To 10-29-97 To file Aob.
Oct 28 1997Application for Extension of Time filed
  To file Aob.
Nov 3 1997Extension of Time application Granted
  To 12-1-97 To file Aob.
Nov 3 1997Compensation awarded counsel
 
Dec 9 1997Application for Extension of Time filed
  To file Aob.
Dec 11 1997Extension of Time application Granted
  To 12-31-97 To file Aob.
Dec 24 1997Application for Extension of Time filed
  To file Aob.
Jan 8 1998Extension of Time application Granted
  To January 30,1998 To file AOB
Jan 23 1998Compensation awarded counsel
 
Jan 30 1998Application for Extension of Time filed
  To file Aob.
Feb 3 1998Extension of Time application Granted
  To 3-2-98 To file Aob.
Feb 24 1998Application for Extension of Time filed
  To file Resp's brief.
Mar 2 1998Appellant's opening brief filed
  2 Vols. (268 Pp.)
Mar 9 1998Compensation awarded counsel
 
Mar 27 1998Application for Extension of Time filed
  To file Resp's brief.
Apr 2 1998Extension of Time application Granted
  To 6-1-98 To file Resp's brief.
Apr 20 1998Compensation awarded counsel
 
May 29 1998Application for Extension of Time filed
  To file Resp's brief.
Jun 4 1998Extension of Time application Granted
  To 7-31-98 To file Resp's brief.
Jul 22 1998Compensation awarded counsel
 
Jul 29 1998Application for Extension of Time filed
  To file Resp's brief.
Aug 7 1998Extension of Time application Granted
  To 9-29-98 To file Respondent's brief
Sep 25 1998Application for Extension of Time filed
  To file Resp's brief.
Oct 2 1998Extension of Time application Granted
  To 11-30-98 To file Resp's brief.
Oct 28 1998Compensation awarded counsel
 
Nov 24 1998Application for Extension of Time filed
  To file Resp's brief.
Dec 9 1998Extension of Time application Granted
  To 1-29-99 To file Respondent's brief
Feb 2 1999Application for Extension of Time filed
  To file Resp's brief.
Feb 3 1999Extension of Time application Granted
  To 3-1-99 To file Respondent's brief
Mar 3 1999Extension of Time application Granted
  To 3-31-99 To file Respondent's brief
Mar 24 1999Compensation awarded counsel
 
Mar 26 1999Application for Extension of Time filed
  To file Resp's brief.
Apr 1 1999Extension of Time application Granted
  To 4-30-99 To file Resp's brief.
Apr 30 1999Respondent's brief filed
  (207 Pp.)
Jun 1 1999Application for Extension of Time filed
  To file reply brief.
Jun 1 1999Extension of Time application Granted
  To 7-19-99 To file reply brief
Jun 16 1999Compensation awarded counsel
 
Jul 16 1999Application for Extension of Time filed
  To file reply brief.
Jul 20 1999Extension of Time application Granted
  To 9-17-99 To file reply brief
Sep 17 1999Application for Extension of Time filed
  To file reply brief.
Sep 17 1999Compensation awarded counsel
 
Sep 29 1999Filed:
  Suppl Decl of Atty Bonneau in support of request for Eot to file reply brief.
Sep 30 1999Extension of Time application Granted
  To 10-18-99 To file reply brief.
Oct 18 1999Application for Extension of Time filed
  To file reply brief.
Oct 19 1999Extension of Time application Granted
  T0 11/17/99 to file Applt's reply brief.
Nov 17 1999Application for Extension of Time filed
  To file reply brief.
Nov 23 1999Extension of Time application Granted
  To 12/17/99 To file reply brief.
Dec 17 1999Appellant's reply brief filed
  (101 Pps.)
Jan 3 2000Compensation awarded counsel
  Atty Bonneau
Jan 4 2000Filed:
  Confidential Declaration of Atty Charles Bonneau
Jan 7 2000Compensation awarded counsel
  Atty Bonneau
Mar 29 2000Compensation awarded counsel
  Atty Bonneau
Jul 20 2000Compensation awarded counsel
  Atty Bonneau
Nov 14 2000Filed:
  Clerk's additional sealed transcripts (2 volumes) 987.9 PC documents
Feb 28 2002Motion filed (in AA proceeding)
  Motion by respondent to return People's exhibit no. 34 to robbery victim.
Mar 11 2002Filed:
  Applt.'s reply to peopls's motion for return of exhibit no. 34.
May 22 2002Compensation awarded counsel
  Atty Bonneau
Jun 12 2002Order filed
  Respondent's "Motion to Return People's Exhibit No. 34 (Diamond and Pearl Ring) to the Robbery Victim" is granted. The Sacramento County Superior Court is hereby directed to cause appropriate photographs of People's Exhibit number 34 in Sacramento County Superior Court case number 86216, entitled People v. Ralph Michael Yeoman, to be made and lodged with the court, and copies of the photographs to be sent to the Attorney General and counsel for appellant. The court is further directed, when those tasks have been accomplished, to cause the said exhibit to be returned safely to its owner, Geraldine Ford.
Aug 8 2002Change of Address filed for:
  Appellant's counsel, Charles M. Bonneau.
Jan 24 2003Exhibits lodged
  Defendant's exhibits M19-A, M19-B, M19-B1 - M19-B5, M19-C and M19-D received from Sacramento County Superior Court.
Feb 13 2003Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the April 2003, calendar. Any request for additional time to argue, notification of requirement for two counsel, or advisement of focus issues due no later than 10 days after the case has been set for oral argument.
Mar 17 2003Filed letter from:
  Appellant's counsel, dated 3/14/2003, requesting oral argument be scheduled for the week of 5/5/2003.
Apr 9 2003Case ordered on calendar
  5-7-03, 1:30 pm, S.F.
Apr 16 2003Filed letter from:
  Appellant's counsel, dated 4/14/2003, requesting 45 minutes for oral argument.
Apr 18 2003Order filed
  The request of appellant for 45 minutes for oral argument is granted.
Apr 22 2003Filed letter from:
  Appellant's counsel, dated 4/21/2003, re focus issues for oral argument.
Apr 22 2003Received letter from:
  Appellant's counsel, dated 4/21/2003, re additional authority for oral argument.
May 6 2003Filed letter from:
  Appellant's counsel, dated 5/5/2003, re change in statement of focus issues for oral argument.
May 7 2003Cause argued and submitted
 
Jun 9 2003Compensation awarded counsel
  Atty Bonneau
Jul 17 2003Opinion filed: Judgment affirmed in full
  Majority opinion by Werdegar, J. --------------joined by George, C.J., Kennard, Baxter, Chin, Brown, Moreno , JJ. Concurring opinion by Kennard, J.
Aug 1 2003Rehearing petition filed
  by appellant. (24 pp.)
Aug 8 2003Time extended to consider modification or rehearing
  to 10/15/2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 1 2003Rehearing denied
 
Oct 1 2003Remittitur issued (AA)
 
Oct 3 2003Exhibit(s) returned
  to superior court.
Oct 17 2003Received:
  Acknowledgment of receipt of exhibits.
Oct 17 2003Received:
  Acknowledgment of receipt of remittitur.
Nov 18 2003Order filed (150 day statement)
 
Dec 22 2003Received letter from:
  U.S.S.C., dated 12/17/2003, advising extension of time to and including 1/29/2004 to file cert petition.
Feb 6 2004Received letter from:
  U.S.S.C., dated 2/2/2004, advising cert petition filed as No. 03-8667.
Apr 23 2004Certiorari denied by U.S. Supreme Court
 

Briefs
Mar 2 1998Appellant's opening brief filed
 
Apr 30 1999Respondent's brief filed
 
Dec 17 1999Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website