Supreme Court of California Justia
Citation 53 Cal. 4th 891, 271 P.3d 1040, 138 Cal. Rptr. 3d 547
People v. Abel

Filed 3/19/12



Plaintiff and Respondent,




Orange County

Defendant and Appellant.

Super. Ct. No. 95CF1690


A jury convicted defendant John Clyde Abel of the first degree murder of

Armando Miller (Pen. Code, § 187, subd. (a)), also finding he had personally used

a firearm in the commission of the offense (id., § 12022.5, subd. (a)) and finding

true the special circumstance that defendant had committed the murder during the

course of a robbery (id., § 190.2, subd. (a)(17)). It imposed a sentence of death.

We affirm the judgment.


A. Introduction

Armando Miller’s family owned the Alameda Market in the City of

Orange. Every Friday morning, Miller or his father withdrew either $10,000 or

$20,000 from the Sunwest Bank in Tustin to provide check-cashing services to the

market’s customers. On Friday, January 4, 1991, Miller withdrew $20,000. A

few moments later, an unidentified man in the bank’s parking lot shot Miller once

in the head, killing him. The man left, carrying a paper bag. The money was


never recovered. Defendant was linked to the crime by the descriptions provided

by witnesses who saw the man in the parking lot, the witnesses’ selection of

defendant’s photograph out of photographic lineups, one witness’s in-court

identification of defendant, and a second witness’s testimony that a photograph

taken of defendant near the time of Miller’s death was a photograph of the man

she had seen. In addition, defendant admitted he had been in the market on at least

one occasion, and there was evidence he was aware someone from the market

typically withdrew large sums from the bank on Fridays. Further, a woman who

had participated in a series of armed robberies with defendant later in 1991

testified defendant had told her about killing Miller and given her the murder


B. Prosecution’s Guilt Phase Case

Police responding to reports of the murder found an expended .22-caliber

shell casing close to Miller’s body, but little other physical evidence. No one saw

the shooting, but several witnesses reported seeing a man with a gun, or a man

running from the vicinity of the shooting carrying a paper bag.

Detectives showed witnesses numerous photographs and many

photographic lineups of men resembling the description of the gunman, but the

witnesses reported that none was of the man they had seen. Detectives also

interviewed Miller’s family and showed them photographs, trying to discover if

they knew anyone who might have been the killer, but again to no avail. The

investigation was suspended after all leads had been exhausted without bringing

the police any closer to identifying the killer. It was reopened on August 3, 1993,

after Police Detective Nasario Solis received an anonymous telephone call from a

woman who told him Miller was killed by a man named John Abel, who was then

serving a long prison sentence for a series of bank robberies. Detective Solis


learned that defendant was incarcerated in Folsom State Prison for a number of

armed robberies. He obtained defendant’s photograph and over the next year

attempted to corroborate other information provided by the anonymous caller.

Detective Tom Tarpley picked up the investigation when he rotated into the

homicide unit in 1995. In March 1995, he showed witness Bettina Redondo a

photographic lineup containing defendant’s photograph. Redondo picked

defendant’s photograph out, saying he was the man she had seen. Tarpley showed

the photographic lineup to a second witness, Colleen Heuvelman, who

immediately identified defendant as the man she had seen. Tarpley showed the

photographic lineup to Miller’s mother, America Miller, who reported having seen

defendant in the market with James Gano, a regular customer who had also

arranged mortgage loans for the business and was aware of the family’s practice of

obtaining funds on Friday mornings for the check-cashing aspect of the business.

Tarpley also contacted Lorraine Ripple, who had been convicted of committing a

number of armed robberies with defendant, asking her if she had any information

about Miller’s murder. Ripple said defendant had told her he killed Miller and had

given her the murder weapon.

Linda Pratt, who had been a teller at Sunwest Bank, testified she cashed a

$20,000 check for Miller on the morning of his death. A short time later, she

heard a popping sound from outside the bank, looked out the window, and saw

Miller lying on the ground. She also saw a person wearing a navy blue watchman

cap and carrying a bag run away through a gap in the bushes outside the bank.

Bettina Redondo testified she was outside a building next to the bank when

she heard what sounded like a gunshot and saw a man standing with his arm

extended, holding in his hand a small, smoking gun. The man walked toward her

through the bushes. She went back into the building, but watched the man, who

passed within approximately 15 feet of her. She looked carefully so she could


describe him to the police. He appeared to be in his late 40’s or early 50’s, was of

medium build, and was carrying a brown bag with a holiday design that looked

like it was from a grocery store. He wore a dark blue or black watchman cap over

his ears and hair, a dark blue windbreaker, and loose trousers. Redondo estimated

she observed the man’s face for between 20 and 30 seconds. She recalled he was

unshaven and had well-defined cheeks and jaw and the beginnings of a mustache.

Redondo related having worked with a police artist to put together a

composite picture of the man she had seen, being shown “over a thousand”

photographs and selecting a photograph of a man who later was identified as Larry

Jones. But after viewing Jones in a live lineup, she realized he was not the

gunman. In March 1995, Detective Tarpley showed her another photographic

lineup. She picked out defendant’s photograph, telling Tarpley “on the record”

she was 80 percent certain defendant was the man, but “off the record” she was

100 percent certain he was the man. Redondo explained she had not wanted to be

the only person to identify defendant. She did not identify defendant at trial,

explaining she was not comfortable because so much time had passed. But she

confirmed defendant’s photograph was a photograph of the man she had seen.

Colleen Heuvelman testified she was working at the bank on the morning

of January 4, 1991, but had to leave early to take care of her son, who was ill. She

was acquainted with Miller and chatted with him for a moment on her way out.

She left through a door to the parking lot, turned a corner, and nearly ran into a

man standing there. Heuvelman got into her car but continued to watch the man

while she put the seatbelt on her son and placed her keys in the ignition; she

estimated she observed him for well over a minute. She kept watching because it

was unusual to see anyone where the man was standing. She described him as a

White male, approximately 46 to 48 years old, with high cheek bones, the

mustache of a man who had not shaved in three or four days, thin lips, and very


dark eyes. He wore a coat and a dark-colored watchman cap. He had a bit of

graying hair sticking out from under the cap. When Heuvelman got home, she

learned Miller had been shot in the bank’s parking lot. She immediately called the

police, telling them she thought she might have seen the gunman. The following

day, and again about two months later, police showed Heuvelman a number of

photographs, but although some resembled the man she had seen, his picture was

not among them. In 1995, Detective Tarpley showed her a photographic lineup

that contained defendant’s photograph. She identified defendant almost

immediately. She also identified defendant at trial, stating she was 100 percent

certain he was the man in the bank’s parking lot on the morning of January 4,


Lorraine Ripple, who had committed a large number of robberies with

defendant, admitted to multiple convictions for robberies committed in 1987 and

1991. She also admitted she had been convicted of assaulting a prison guard, and

stated she would be spending the rest of her life in prison. She said she had not

been promised anything in return for her testimony and would not benefit from it;

to the contrary, she believed her overall situation would be made more difficult.

Ripple testified she had known defendant since the early 1960’s and had spent

time with him on and off over the years. In March 1991, after being released from

prison, she lived for a while with Deborah Lankford. During that time, defendant

spent five days a week with her. He was married at the time and spent weekends

with his wife. Ripple reported that once when they were in bed together defendant

told her he had killed someone in Tustin, telling her it was “an easy score, that he

had hit a guy inside a bank, coming out. And [the victim] had a business, a little

mini store . . . and he cashed checks for a lot of ‘wetbacks’ . . . .” Ripple testified

defendant had given her the gun he used to kill Miller, which she described as a


.22-caliber automatic handgun that ejected casings. She later traded it to a

Mexican connection for drugs.

Ripple stated defendant always had a mustache in 1991. He had a blue

windbreaker and a navy knit watchman cap he wore with the cuff turned up. He

used glasses for reading, but did not normally wear them at other times. When

shown a June 1991 picture taken of defendant wearing a windbreaker and a

watchman cap, Ripple reported it accurately represented defendant’s appearance at

that time.

Ripple confirmed Detective Tom Tarpley had contacted her in 1995, asking

if she had any information about Miller’s death. She said she did not tell him

anything immediately, but after he had “earned her respect” she told him what she

knew, even though she was aware she would receive no benefit for it.

On cross-examination, Ripple agreed that when Detective Tarpley first

contacted her he told her defendant had “given her up,” but she said she knew it

was not true, asserting investigators always said such things to try to play people

off against one another. Defense counsel also brought out, apparently in an

attempt to suggest Ripple had fabricated stories about defendant, that Ripple told

Tarpley defendant had been involved in other murders. Ripple also testified that

in early 1991 a lot of guns were “floating around” among her acquaintances,

including more than one .22-caliber weapon, several MAC-11 “machine pistols,”

and an AK-47 assault rifle. They traded or provided guns to one another

depending on need. She had seen defendant with two MAC-11’s. Defendant gave

her the gun he used to kill Miller after she asked for a “hot gun” that she would

dispose of after committing a crime. Ripple reaffirmed she traded the gun to a

Mexican connection for drugs, adding she later robbed the connection and had a

bad habit of robbing connections.


Detective Steven Rubino testified that in October 1991 he was part of a

team that had arrested defendant in connection with another offense. Police

searching defendant’s car found in it a loaded MAC-11 semiautomatic pistol, a

loaded .22-caliber pistol, extra ammunition for both weapons, a photograph of

James Gano, a pill bottle with Lorraine Ripple’s name on it, and two savings

passbooks that did not belong to defendant. The .22-caliber pistol was not the

weapon used to kill Miller.

C. Defendant’s Guilt Phase Case

Defendant testified on his own behalf. He admitted to “around two dozen”

felony convictions, “almost all for robbery,” many of which were for armed

robbery. He admitted he had committed bank robberies in 1973 and 1981. He

admitted to a series of armed robberies in 1991. He also admitted he was serving

a state prison sentence of 44 years 8 months, and a federal prison sentence of

53 years 8 months. Defendant admitted he had once gone with James Gano to the

Alameda Market. He admitted knowing Lorraine Ripple, but disputed her claim

that they had been acquainted since the 1960’s, asserting he first met her in March

or April 1991, when she was living with his friend, Deborah Lankford. He

explained he could not have known Ripple in the 1960’s because he was in prison

for most of that decade. He denied ever having an intimate relationship with

Ripple. He denied telling her he had committed other murders or telling her the

Tustin killing was “an easy score.” He denied giving Ripple a .22-caliber

automatic or any kind of gun. He said she had never told him she had given the

gun to a connection, but she did tell him she had robbed her connection three

times. Defendant stated he had been paroled in February 1990, after 17 years in

prison. He initially worked at a restaurant, but began to work for James Gano in

late 1990, after Gano started a mortgage company. He recalled working on a loan


for Elaine Tribble, stating he had visited her at her home in Long Beach about a

half-dozen times. He thought he might have delivered mortgage documents to her

at her home on January 4, 1991, and he testified that after leaving Tribble’s home

that day he went to Wilmington and then to San Pedro to visit another potential

customer. In San Pedro, he used a pay phone to make a collect call to Gano’s

office. He had been trying to obtain records of the call but understood from his

lawyers and investigators that the mortgage company’s records for the period from

January 3 through February 4, 1991, were missing.

Defendant denied standing outside the Sunwest Bank at 10:30 a.m. on the

morning of January 4, 1991, or shooting anyone there. He suggested he could not

have been the man in the parking lot because, unlike that man, he wore glasses,

stating he wore glasses in prison before his release on parole in 1990 and

continued to wear them thereafter.

On cross-examination, defendant admitted he had been out of prison for

various periods from 1966 until 1990, sometimes because he had escaped; it thus

was possible for him to have become acquainted with Ripple in the 1960’s. He

also admitted committing armed robberies on 11 occasions during those years. He

admitted gambling and using drugs in 1991, but stated he did not start using until

February of that year, approximately one month after Miller was killed. He

admitted committing approximately 10 robberies with Ripple. He also admitted

he and Deborah Lankford had once broken into a residence and robbed the

occupants at gunpoint, taking their savings passbooks. He believed the passbooks

had been recovered from the trunk of his car when he was arrested in October


Defendant’s friend, Deborah Lankford, testified for the defense. She

admitted she was in state prison serving an 11-year term for armed robbery, had

committed a number of other felonies, including numerous armed robberies and


several bank robberies, and would later be going to federal prison. She said she

had known defendant for nearly 20 years, but denied having any romantic or

sexual relationship with him. She testified that during 1990 and early 1991,

defendant was living in Fullerton, near a restaurant where he worked. His wife-to-

be, Vicki, joined him on the weekends. Lankford provided an alibi for defendant,

asserting he had been at her house every day in early 1991 taking care of her

because she was sick with the flu. She thought he might have taken her to a clinic

on January 4, 1991.

Lankford testified she introduced Ripple to defendant in 1991. She never

saw anything suggesting defendant and Ripple were romantically involved, but

she reported that by June 1991, Ripple was talking about defendant as if he

belonged to her. Ripple also seemed to believe Lankford was in a sexual

relationship with defendant and was telling other people bizarre stories about

Lankford. In February 1996, Lankford wrote to Ripple, complaining Ripple was

spreading vicious lies about defendant and Lankford. Ripple wrote back that

defendant had used her and she was getting even with him. But Lankford could

not produce Ripple’s letter, explaining she had sent it to her parents from prison

but they had never received it.

On cross-examination, Lankford admitted she had not told anyone

defendant might have been with her when Miller was shot, even though she had

been in regular contact with defendant and knew he had been accused of

murdering Miller. The prosecutor showed her a letter defendant had written to her

in which he made a number of sexual comments and described “doing it” to her in

the dining room and up the stairs into the bathroom. Lankford claimed she had not

received the letter. She admitted defendant sometimes made sexual remarks to

her, but said again that she had never been intimate with him, theorizing that by

“doing it,” defendant might have been referring to taking drugs. The prosecutor


also asked Lankford about Federal Bureau of Investigation (FBI) records detailing

a statement she had made. She denied making the statement, denied involvement

in the crimes described in the records, and denied she told agents defendant had a

gambling habit. She also said she did not recall defendant wearing a dark-colored

windbreaker jacket or a navy blue watchman cap. When she was shown the

June 1991 photograph of defendant wearing the jacket and cap, she responded she

could not say the photograph was of defendant and did not recognize the clothing.

Elaine Tribble confirmed that in late 1990 and early 1991 she was talking

to defendant about obtaining a loan from James Gano’s mortgage company. She

recalled defendant had come to her home in Long Beach on several occasions, but

she could not remember which days he visited or exactly when she filled out the

mortgage application. She had been unable to locate any of the loan documents

and could not remember if they had been returned to her.

Miller’s fiancée, Holly Daniels, testified she had worked at or visited the

Alameda Market in late 1990 and early 1991. She was very familiar with James

Gano and had seen him at the market, but she did not recall that he had ever

brought any friends with him and did not remember seeing defendant. She

thought that Larry Jones, the man originally picked out of a photographic lineup

by Bettina Redondo, might have been ejected from the market for drunkenness.

Sergeant Mark Bergquist, who had been involved in the first phase of the

investigation, confirmed that Redondo had picked Larry Jones out of a

photographic lineup. He recalled both America Miller and Holly Daniels saying

Armando Miller had forcibly ejected Jones from the market. Bergquist took

Redondo to a live lineup in March 1991. He remembered seeing Redondo become

agitated when faced with Jones, but he said she picked another man out of the

lineup and, as they were leaving, said that man also was not the person she had

seen. Bergquist said the police had investigated whether Jones or another man


might have been involved in Miller’s death, but the investigations did not lead to

any arrests.

No one who had seen the man in the bank’s parking lot said he wore

glasses. Heuvelman was particularly struck with the man’s deep-set eyes and

specifically stated he had not worn glasses. John Sano, defendant’s parole officer

in 1990 and 1991, testified he thought defendant might have worn glasses in 1990.

Sano remembered defendant having a mustache but did not think it was the style

of mustache described by the prosecution’s witnesses. But on cross-examination,

Sano agreed he was unlikely to remember if a client had worn glasses on a

particular day or to perfectly recall the appearance of a client’s mustache. He also

agreed defendant was not wearing glasses in a photograph taken of him on the day

of his release and had not worn glasses on that day.

Optometrist Dr. Eric Bass testified he had provided glasses to defendant in

1990. He stated his records indicated that, although defendant needed some

correction to see distance in his right eye, he required only a very slight correction

to his left eye for distance. In his opinion, a person with defendant’s prescription

would have difficulty reading, but would be able to see and probably would be

permitted to drive without correction.

Susan Maitland, the sister of defendant’s former wife, Vicki, testified she

had been acquainted with defendant since the late 1980’s and had socialized with

defendant and Vicki in late 1990 and early 1991. She said defendant always wore

glasses, was clean and neat in appearance, and his mustache did not match the

mustache described by prosecution witnesses. On cross-examination, she

admitted she could not recall if defendant always had the same style of mustache.


D. Prosecution’s Penalty Phase Case

1. Other criminal activity (Pen. Code, § 190.3, factors (b) and (c))

The prosecution introduced evidence of 15 separate robberies committed by

defendant, showing further that defendant had been armed during at least 14 of


On September 8, 1981, defendant and three other men, all armed, robbed a

Los Angeles savings and loan. During the robbery, one of the men pointed a gun

at the teller’s face. On June 14, 1991, defendant and another man, both armed,

entered a bank in Hacienda Heights, yelling and screaming. They threatened to

blow the branch manager’s head off; made all the employees and customers lie on

the floor; pointed guns between the legs of two male tellers, threatening to blow

their “f—ing balls off” if they did not give them hundreds fast enough; and

threatened to hurt a baby if the baby did not stop crying. On June 25, 1991,

defendant and another man, shouting and brandishing guns, held up a bank in

Rowland Heights. One of the men, using a large automatic gun, shot through the

glass on the “bandit barrier window” covering the teller service area. The other

man had a handgun, which he pointed in turn at each teller, forcing the tellers to

give him the cash out of their drawers.

On August 29, 1991, defendant and Ripple committed an armed robbery of

a pharmacy and its owner. Defendant was armed with an Uzi submachine gun.

On September 4, 1991, defendant and Ripple robbed a pizza restaurant. During

the course of the robbery, defendant brandished a weapon that looked like an Uzi.

On September 6, 1991, defendant and Ripple robbed a pharmacy in San Pedro and

defendant threatened to shoot anyone who followed him. On September 8, 1991,

defendant and a woman robbed a florist’s shop in Harbor City. Defendant was

armed with an Uzi. On September 12, 1991, defendant and a woman robbed a

Hallmark store in Seal Beach, during which they herded everyone to the back of


the store and forced an employee to open the cash register. On September 18,

1991, defendant and Ripple robbed a pizza restaurant in Lakewood. Defendant

put a gun to the owner’s head. He became upset as the owner fumbled trying to

open the cash register, and Ripple admonished him not to hurt the owner. As they

left with the money, defendant told the owner: “Don’t come out or I’ll shoot you.”

On September 19, 1991, a woman committed an armed robbery of a florist’s shop

in Wilmington. After leaving the shop, the woman got into a car driven by


On September 24, 1991, there was a disturbance at an Alpha Beta

supermarket in Hacienda Heights. At the direction of the store’s manager, checker

David Clure grabbed a woman who was attempting to run out of the store. As

Clure wrestled with the woman near the store’s entrance, defendant drove up in a

car that did not have any license plates. Defendant got out, holding a gun in his

hand. He said, “Let her go,” and fired the gun into the air. When Clure continued

to hold onto the woman, defendant fired another shot into the asphalt near Clure’s

foot. He fired a third shot, hitting the building over the entrance to the store, and

then fired into the door frame. Clure released the woman, who got into the car.

Another woman was in the backseat of the car, holding a pistol.

On September 25, 1991, defendant and a woman robbed a San Pedro nail

salon and its customers. Defendant, armed with what looked like a large rifle or

shotgun, yelled at the customers to throw their purses into the center of the room

where they were collected by the woman. On September 28, 1991, defendant

entered a shoe store, pulled out a gun, and told an employee, Jerry Song, “Open

the register. If you move, I’ll kill you.” The store’s manager, Mark Inki Kim,

tried to close the cash drawer and grabbed at defendant’s hands. Defendant

attempted to shoot Kim several times, but his gun failed to fire. He ran out of the

store, chased by Song and Kim, and escaped by diving into a car being driven by a


woman. On October 1, 1991, Ripple, armed with a gun, robbed the owner of a

San Pedro pet grooming business. Ripple left in a car driven by defendant, who

was holding a gun that looked like a machine gun.

On October, 3, 1991, Dolores and Fred Clay, after withdrawing

approximately $400 from their bank, were having lunch in a Long Beach

restaurant. They noticed defendant and Deborah Lankford at the bar. Defendant

and Lankford broke into the Clays’ residence later that day. Defendant pointed a

gun at them and pushed Fred Clay back into a chair. Defendant took the Clays’

money, jewelry, and a savings account passbook. The passbook was recovered

from the trunk of defendant’s car when he was arrested later in October 1991.

The jury was also provided with certified documents disclosing that

defendant had suffered a 1963 conviction for armed robbery, a 1996 conviction for

armed robbery, a 1976 conviction for possession of marijuana, a 1967 conviction

for felony escape, a 1973 conviction for bank robbery, 1977 convictions for escape

from federal custody and bank robbery, a 1981 conviction for bank robbery, and a

1986 conviction for racketeering and extortion.

2. Victim impact evidence (Pen. Code, § 190.3, factor (a))

Armando Miller’s father, Robert Miller, testified that Armando was his

oldest son. Robert was working at the family’s market when someone from the

bank called, telling him there had been a robbery and Armando had been shot and

was being taken to the hospital. At the hospital, a doctor told him Armando had

been shot in the head and was brain dead. Robert said it felt like “falling in a hole

. . . something you’re not expecting and it’s hard to believe.” He said the hurt and

the sadness never go away; “[t]he only thing you can do, I guess, is just keep on

going and think of other things in your life . . . .”


Armando’s mother, America Miller, testified that Armando had been a very

happy man. At the time of his death, he had a two-month-old daughter who had

been very precious to him. America spoke about how difficult it was to lose her

son, adding that they had not only lost Armando, “we lost another one, Bobby. He

got real hurt because he love Armando . . . . [¶] So Bobby got hurt in his heart.

He got so much hate, you know, that he can’t trust, who could do this to his

brother, so this make him sick for his heart. . . . [¶] So, you know, he don’t just

kill me one son he kill me two sons.” She testified that her other children also

missed Armando very much.

E. Defendant’s Penalty Phase Case

The defense presented no evidence at the penalty phase.


A. Delay in Bringing Charges

Defendant, noting that the police had learned his name from the anonymous

caller on August 3, 1993, but charges were not filed against him until June 23,

1995, contends the case should have been dismissed for investigative delay. We


A defendant’s state and federal constitutional speedy trial rights (U.S.

Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) do not attach before the

defendant is arrested or a charging document has been filed. (People v. Nelson

(2008) 43 Cal.4th 1242, 1250.) Nonetheless, a defendant is not without recourse if

a delay in filing charges is prejudicial and unjustified. The statute of limitations is

usually considered the primary guarantee against overly stale criminal charges

(People v. Archerd (1970) 3 Cal.3d 615, 639), but the right of due process

provides additional protection, safeguarding a criminal defendant’s interest in fair

adjudication by preventing unjustified delays that weaken the defense through the


dimming of memories, the death or disappearance of witnesses, and the loss or

destruction of material physical evidence (Nelson, at p. 1250).

A defendant seeking relief for undue delay in filing charges must first

demonstrate resulting prejudice, such as by showing the loss of a material witness

or other missing evidence, or fading memory caused by the lapse of time. (People

v. Archerd, supra, 3 Cal.3d at pp. 639-640.) Prejudice to a defendant from

precharging delay is not presumed. (People v. Nelson, supra, 43 Cal.4th at

p. 1250; People v. Catlin (2001) 26 Cal.4th 81, 107.) In addition, although “under

California law, negligent, as well as purposeful, delay in bringing charges may,

when accompanied by a showing of prejudice, violate due process . . . . If the

delay was merely negligent, a greater showing of prejudice would be required to

establish a due process violation.” (Nelson, at pp. 1255-1256.)1 If the defendant

establishes prejudice, the prosecution may offer justification for the delay; the

court considering a motion to dismiss then balances the harm to the defendant

against the justification for the delay. (Id. at p. 1250.) But if the defendant fails to

meet his or her burden of showing prejudice, there is no need to determine

whether the delay was justified. (Serna v. Superior Court (1985) 40 Cal.3d 239,

249; Scherling v. Superior Court (1978) 22 Cal.3d 493, 506.)

Defendant claims he met his burden of showing prejudice from the

precharging delay through evidence that Elaine Tribble could not remember the

specific date defendant had delivered mortgage documents to her in Long Beach

and was unable to produce any documents that might have supported his claim of

visiting her on January 4, 1991. But defendant made no showing that Tribble’s


Because the law under the California Constitution is at least as favorable to

defendant as federal law, we apply California law to defendant’s claim. (See
People v. Nelson, supra, 43 Cal.4th at p. 1251.)


recall would have been more specific had she been contacted earlier, or that she

could or would have provided documentary evidence to support his claim. To the

contrary, Tribble said she could not remember if any mortgage documents had

been returned to her, but if they had been, she had probably destroyed them.

Defendant’s claim that Tribble would have provided further support for the

defense had police arrested defendant earlier is thus mere speculation.

Defendant also complains the delay caused his memory and the memory of

James Gano to fade, but again he made no showing of actual prejudice. The

record reflects that both defendant and Gano had detailed recall of events

occurring on or near January 4, 1991. For example, defendant could describe

Tribble’s house and its location. He recalled Tribble had told him she had

changed her mind about the loan because she would be getting a loan from a

family member. He stated that after returning the loan documents to Tribble, he

went to Wilmington and then to San Pedro to talk to a prospective client but was

unable to find the prospective client. He then called the mortgage company from a

pay phone in San Pedro located on Gaffney Street between Second and Fourth

Streets, speaking with Gano’s partner. Gano did not testify at trial, but at the

preliminary hearing he specifically recalled defendant had come to his house on

the evening of January 4, 1991. Gano provided a detailed report of the matters

they discussed and the actions they had taken as a result of their discussion.

Moreover, far from aiding defendant, Gano’s testimony at the preliminary hearing

directly and explicitly incriminated him.2


Gano testified at the preliminary hearing that he and defendant had been

friends since they met in Lompoc in 1978. Gano knew the victim and his family,
and had introduced them to defendant. He testified he could not recall if he told
defendant about the Millers’ check-cashing operations, but thought it was possible.
He recalled defendant asking how the Millers did their banking, feeling concern

(footnote continued on next page)


Defendant also complains the delay rendered him unable to obtain

telephone records from the mortgage company that would have shown he called

the company from San Pedro on January 4, 1991. When defendant first raised the

issue of precharging delay, the mortgage company records appeared to have been

lost or destroyed, but by the time defendant testified at trial, the records,

comprised of eight boxes found in a storage locker, had been located and

examined. Defendant submitted the declaration of his investigator, Kristin Smith,

that she had searched through all eight boxes of records for any loan documents

that might have related to Elaine Tribble and for any telephone bills for calls

received on January 4, 1991. She found telephone billing statements for

August 1991 and January and February 1992, but no records for January 1991.

Defendant has not shown Smith would have found additional records had the

investigation proceeded more quickly.

Defendant also failed to show the delay prevented him from obtaining

records from the telephone company. His investigator, Smith, asserted that on

August 22, 1997, she requested copies of billing statements for Money Funders

Mortgage that included January 1991, but was told the telephone company’s

records extended back only to August 1991. Assuming, as Smith’s declaration

suggests, the telephone company kept records for a six-year period, defendant had

nearly one and a half years after the date of his arrest in which to obtain the

(footnote continued from previous page)

defendant might harm his friends and warning defendant to leave them alone. On
the evening Miller was murdered, defendant came to Gano’s house. He told Gano
“he had to pop the kid,” and asked Gano to hide a black steel .22-caliber handgun
defendant said he had used to shoot Miller. Gano hid the gun first in his garage
and then in the brush near a creek or lake. On the following day, defendant
returned, asking Gano for the gun. Gano and defendant retrieved the gun, and
defendant left with it.


records he claims would have exonerated him. Further, evidence of a call made on

January 4, 1991, would not have provided him with an alibi. According to

defendant’s testimony, the call was made after he visited Tribble and conducted

other business, suggesting that if it was made at all, it was made long after the


Defendant, accordingly, did not meet his initial burden of showing

prejudice resulting from the precharging delay. The prosecution therefore was not

required to show justification for the delay, and the court had no obligation to

balance the harm from the delay against the justification. (Serna v. Superior

Court, supra, 40 Cal.3d at p. 249.) But the record also reflects that the police

actively investigated the case after receiving the anonymous call, obtaining

defendant’s photograph and attempting to corroborate the information provided by

the caller.3 Defendant complains that police investigators could have pursued the

case more aggressively, matters might have moved more quickly had investigators

immediately shown defendant’s picture to witnesses, and investigators chose to

give priority to more recent cases or might have factored into their decisions that

defendant would be incarcerated for a long time.


Detective Solis was told by the caller that a man who owned or worked at

an Italian restaurant on Tustin Avenue had said Miller was killed by John Abel,
who was then in prison for a series of bank robberies. The caller could not
remember the address of the restaurant and said it had closed. She remembered
the owner’s first name was John, but she did not know his last name. She also
mentioned a man named Bobby might have been involved in the murder. Solis
reported that, over the next year or so, he unsuccessfully tried to locate the
restaurant, its owner, or someone named “Bobby” who might have been the man
mentioned by the caller or who might have known defendant. He also spoke with
other investigators who had some knowledge of John Abel, but they were unaware
of any connection between Abel and another man named “John” or a man named


But “[a] court may not find negligence by second-guessing how the state

allocates its resources or how law enforcement agencies could have investigated a

given case. ‘ . . . Thus, the difficulty in allocating scarce prosecutorial resources

(as opposed to clearly intentional or negligent conduct) [is] a valid justification for

delay . . . .’ ” (People v. Nelson, supra, 43 Cal.4th at pp. 1256-1257.) For the

same reason, the difficulty in allocating scarce investigative resources provides a

valid justification for delay.

We conclude defendant is not entitled to relief on his claim of precharging


B. Denial of Motion for Pretrial Lineup

Defendant, before trial, filed a motion for a physical lineup for the purpose

of exploring whether he could be identified by Bettina Redondo, Colleen

Heuvelman, or any other witness. He contends the trial court abused its discretion

by denying the motion. We disagree.

In Evans v. Superior Court (1974) 11 Cal.3d 617, we held that when

eyewitness identification is shown to be a material issue and there exists a

reasonable likelihood of mistaken identification, due process may require “that an

accused, upon timely request therefor, be afforded a pretrial lineup in which

witnesses to the alleged criminal conduct can participate.” (Id. at p. 625.) We

reasoned that because the People are able to compel a lineup, fairness requires the

defendant be given a reciprocal right to discover and use lineup evidence. (Ibid.;

see also People v. Hansel (1992) 1 Cal.4th 1211, 1221.) We explained: “A

properly conducted lineup is, among other things, a device by which the People

can discover which witnesses are able to identify an accused and thus provide

material evidence of guilt. At the same time the lineup may reveal that other

witnesses, perhaps some who should be able to identify the real perpetrator of a


crime, are unable to identify the particular accused as such criminal. If so, that

evidence is equally material and access thereto should not be denied an accused.”

(Evans, at p. 623.) A trial court ruling on a request for a pretrial lineup considers

the benefits to be derived from it, the reasonableness of the request, and the

resulting burden on the prosecution, the police, the court, and the witnesses. (Id.

at p. 625.) Further, “[t]he broad discretion vested in a trial judge or magistrate

includes the right and responsibility on fairness considerations to deny a motion

for a lineup when that motion is not made timely. Such motion should normally

be made as soon after arrest or arraignment as practicable. We note that motions

which are not made until shortly before trial should, unless good cause is clearly

demonstrated, be denied in most instances by reason of such delay.” (Id. at p. 626;

accord, People v. Redd (2010) 48 Cal.4th 691, 725.)

Defendant’s motion, filed on December 30, 1996, was untimely. The

complaint charging defendant with the murder of Armando Miller had been filed

on June 23, 1995, defendant made his first court appearance in the matter on

July 28, 1995, and the preliminary hearing was held on December 14, 1995.

Detective Tarpley testified at the hearing that Bettina Redondo and Colleen

Heuvelman had picked defendant out of photographic lineups. Defense counsel

also observed that identification was a material issue, noting Redondo at one time

had identified another man as the gunman, although she later recanted that

identification. Defendant, therefore, was well aware that the ability of the

witnesses to identify him would be an issue at trial. In People v. Baines (1981) 30

Cal.3d 143, we held that, in the absence of good cause for the defendant’s delay,

the trial court did not abuse its discretion by denying a motion for a pretrial lineup

made two and a half months after the date of the defendant’s arrest, and one and a

half months after the preliminary hearing. The motion in the present case was

made a year and a half after defendant was arrested on the charges and a year


after the preliminary hearing. Defendant asserts that the burden of conducting the

lineup was lessened because the trial was continued after he filed the motion. But

a lineup is always burdensome, and that the trial was continued does not justify

defendant’s delay in making the motion. Defendant’s explanation for the delay

was that he had been sent back to prison after the preliminary hearing, counsel had

not conferred with him about the matter for another six months, and after

discussing the matter they were uncertain whether a pretrial lineup would be of

any aid to defendant’s case. But neither defendant’s failure to act nor the defense

team’s indecision about trial strategy establishes good cause for delay.

In addition, unlike the situation in Evans v. Superior Court, supra, 11

Cal.3d 617, where the witnesses’ ability to link the defendant to the crime was

explored for the first time at trial, the substance and quality of the eyewitnesses’

observations in this case and their ability to identify defendant were known long

before defendant filed his motion. That the witnesses had picked defendant out of

pretrial photographic lineups also meant they could not have been influenced by

the inherent suggestiveness of his presence at the defense table. That the

witnesses had identified defendant from a photograph taken shortly after the

murder was more significant than their ability or inability to pick him out of a live

lineup conducted long after the murder. Indeed, the record suggests defendant’s

appearance had changed somewhat since the time of the crimes.4


At the hearing on defendant’s motion, the prosecutor asserted:

“[D]efendant, at least from a facial hair standpoint, looks quite a bit different than
the descriptions back at the time of the crime— [¶] . . . [¶] . . . I don’t think a
lineup would tend to resolve the issue here, because he looks a lot different than he
did then.” And Bettina Redondo, while confirming defendant’s photograph in the
photographic lineup was a picture of the man she had seen in January 1991,
declined to state whether defendant, sitting at the defense table, was or was not
that man, stating that too much time had gone by.


Under the circumstances presented here, due process did not require

affording defendant a pretrial lineup.

C. Judicial Misconduct

Defendant contends the trial court denied him a fair trial and an impartial

jury by making quips and sarcastic comments throughout the proceedings. He

complains, further, that the court improperly allied itself with the prosecution and

created a hostile atmosphere for the defense.

“ ‘Although a jury trial, especially for a capital offense, is obviously a

serious matter, “Well-conceived judicial humor can be a welcome relief during a

long, tense trial.” ’ ” (People v. Monterroso (2004) 34 Cal.4th 743, 761.) Still,

“ ‘the court should refrain from joking remarks which the jury might interpret as

denigrating a particular party or his attorney.’ ” (People v. Riel (2000) 22 Cal.4th

1153, 1175.) “When ‘the trial court persists in making discourteous and

disparaging remarks to a defendant’s counsel and witnesses and utters frequent

comment from which the jury may plainly perceive that the testimony of the

witnesses is not believed by the judge . . . it has transcended so far beyond the pale

of judicial fairness as to render a new trial necessary.’ ” (People v. Sturm (2006)

37 Cal.4th 1218, 1233.) But a defendant seeking relief on such a theory must

establish prejudice. “ ‘[O]ur role . . . is not to determine whether the trial judge’s

conduct left something to be desired, or even whether some comments would have

been better left unsaid. Rather, we must determine whether the judge’s behavior

was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect,

trial.’ ” (People v. Snow (2003) 30 Cal.4th 43, 78.) We make that determination

on a case-by-case basis, examining the context of the court’s comments and the

circumstances under which they occurred. (People v. Cash (2002) 28 Cal.4th 703,

730.) Thus, the propriety and prejudicial effect of a particular comment are


judged by both its content and the circumstances surrounding it. (People v.

Melton (1988) 44 Cal.3d 713, 735.)

In addition, a defendant who fails to make a timely objection to the claimed

misconduct forfeits the claim unless it appears an objection or admonition could

not have cured any resulting prejudice or that objecting would have been futile.

(People v. Sturm, supra, 37 Cal.4th at p. 1237; People v. Monterroso, supra, 34

Cal.4th at p. 761.)

1. Disparaging counsel and exhibiting hostility toward the defense

The court directed a number of sarcastic remarks toward defense counsel,

but it by no means spared the prosecutor,5 indicating its comments were a matter

of personal style, not the result of a belief that any of the attorneys was

incompetent or that the defense case lacked merit.

Defendant complains generally about the court’s comments throughout the

proceedings, but specifically cites two remarks. The first was made during a


For example, while questioning Lorraine Ripple about defendant’s facial

hair, the prosecutor asked: “[Y]ou are talking about between his lips and then you
said sometimes he let it grow beyond his lips?” The court interjected, “Between
his lips is in his mouth— [¶] . . . [¶] —where you put your foot.” On another
occasion, after the prosecutor complained defense counsel’s line of questioning
was improper and would be unduly time consuming, the court stated: “I have
found that you know how to make objections and are reasonably familiar with the
rules of evidence, occasionally.” When the prosecutor objected that defense
counsel had mischaracterized the evidence by asking Detective Tarpley if Ripple
had told him she had robbed one of the individuals who supplied her with drugs,
the court responded: “Sure. Rip off the connection, you like that better.” When
the prosecutor objected to a defense question, and then attempted to withdraw the
objection because he realized the question was likely to lead to evidence favoring
the prosecution, the court responded: “Too late. Sustained. Sustained is
sustained. [¶] . . . [¶] You got to think before you object. [¶] . . . [¶] But nice


pretrial conference in connection with a discussion of the extent to which

defendant would be restrained during trial. There had been some indication

defendant had escaped custody on a past occasion. Defense counsel said the

escape was nothing more than a “walkaway” occurring in 1967, asserting: “But

Mr. Abel’s 53 years old. I think he’s been around the block, he has no intention

. . . .” The court interrupted, stating: “You know, I’m 61 and I’m going to outlive

both of my bailiffs, so 53 doesn’t impress me at all. Poor old gentleman. Am I

supposed to feel sorry for him?” When counsel sought to explain further, the

court stated: “All of that was just silliness, for the record. Ultimately he’s going

to be handcuffed before the jury.” The court’s comment could not have influenced

the jury, as the jury did not hear it. Nor do we view it as an expression of hostility

against defendant or his attorneys. Rather, as with the other remarks made by the

court throughout the trial, the comment reflects the court’s propensity for quipping

whenever the opportunity arose.

Defendant also specifically cites an admonition made by the court during

defense counsel’s closing argument after the prosecutor had objected that counsel

had no evidentiary support for an asserted fact. The court stated it did not know if

there was any evidence on the point. It then said: “Ladies and Gentlemen, if

either side’s attorney intentionally misrepresents any fact during the course of the

trial, including their argument, of course, and you think they’re lying to you, you

can disregard their whole argument if you want to. [¶] Go ahead.” Defense

counsel, without objecting, responded, “Thank you,” and returned to his argument.

Later, outside the presence of the jury, the prosecutor asked for an admonition.

Defense counsel stated he, too, was not “thrilled” with the court’s statement. The

court denied the prosecutor’s request, stating it had only told the jury “what is

common sense.”


The prosecutor, clearly concerned about the court’s remark, later told the

jury he did not believe defense counsel had been lying and did not think the court

meant to suggest counsel was lying, explaining the court was simply telling the

jury what the attorneys say is not evidence. The prosecutor continued: “So, I

would implore you, please, do not disregard everything [defense counsel] said. He

made some points. [¶] It’s valid for you to listen to his points, to consider his

points. And I would admit to you, and I would tell you right now, he did not

intentionally misstate anything.” At the conclusion of the prosecutor’s closing

argument, the court told the jury: “Sometimes the attorneys get overly sensitive

about things that the court says. I just want you folks to know that I think that the

three lawyers that have worked in this case are the finest lawyers around. I have

worked with them for years. They’re honorable people. [¶] The court doesn’t

have any belief that anybody lied to you about anything. I made reference to that

at the request of the prosecution.”

The trial court’s remark was inappropriate and potentially prejudicial,

suggesting attorneys might lie to the jury and instructing jurors they could ignore

an attorney’s entire argument if they believed the attorney intentionally

misrepresented anything. That the comment was made during defense counsel’s

closing argument increased the potential for prejudice to defendant, particularly

because it followed the prosecutor’s complaint that defense counsel’s assertions

were not supported by the record. Although defendant did not fully object to the

comment, the court by reason of the prosecutor’s request for an admonition was

aware its comments were objectionable and by its response demonstrated any

further objection from defendant would have been futile. Under these

circumstances, defense counsel’s failure to make a formal objection did not waive

the issue. (See People v. Melton, supra, 44 Cal.3d at p. 735.)


But although we find the court should not have made the comment, we also

find it did not deprive defendant of a fair trial. By the time the comment was

made, the jury was fully familiar with the court’s judicial style, and the court’s

later assurance that all of the lawyers were honorable people limited or eliminated

any prejudice from its earlier remarks. Any possible prejudice was further

reduced by the court’s subsequent instruction that jurors should disregard anything

suggesting the court’s own assessment of the facts or the credibility of any witness

and should form their own conclusions. When considered in the context of the

trial as a whole, the court’s comment, although improper, could not have had any

effect on the jury’s verdict.

2. Joking that prospective jurors would be punished if they spoke

about the case

Defendant complains that during voir dire, after admonishing prospective

jurors not to talk about the case, the court added: “Because if we catch you talking

about the case, we have to have you shot, or some other reasonable form of

punishment.” In People v. Monterroso, supra, 34 Cal.4th 743, we rejected a claim

that a similar comment, made by the same judge, constituted misconduct. In that

case, the court told prospective jurors that any juror who disregarded his

instructions should or would be shot. We found the “comments, even when

considered in conjunction with the trial judge’s numerous other efforts at humor

throughout the trial, did not so trivialize the proceedings as to raise a question

whether the jurors were fully conscious of the gravity of their decision.” (Id. at

p. 762.) We reach the same conclusion here.

3. Allying itself with the prosecutor and preventing the defense from

presenting its case

Defendant asserts the court improperly and prejudicially allied itself with

the prosecutor by commiserating openly about defense counsel, taking an active


role in the examination of witnesses to bring out evidence favorable to the

prosecution, and interfering with the defense.

Defendant’s claim that the court commiserated with the prosecutor is based

on the court’s comments after the prosecutor complained that defense counsel was

testifying rather than soliciting evidence from a witness. The court responded, “I

don’t know how to stop him; do you have a hint for me . . . ?” The prosecutor

replied, “All I can do is object.” The court then sustained the objection. The

court’s response did not suggest an alliance with the prosecutor. To the contrary,

the court implicitly chided the prosecutor while making the point it would not rule

in the absence of an objection.

As to the claim the court improperly interjected itself into the proceedings

to bring out or clarify the evidence, “ ‘a judge should be careful not to throw the

weight of his judicial position into a case, either for or against the defendant.’ ”

(People v. Sturm, supra, 37 Cal.4th at p. 1237.) But “[t]he object of a trial is to

ascertain the facts and apply thereto the appropriate rules of law, in order that

justice within the law shall be truly administered.” (People v. Mendez (1924) 193

Cal. 39, 46.) To this end, “the court has a duty to see that justice is done and to

bring out facts relevant to the jury’s determination.” (People v. Santana (2000) 80

Cal.App.4th 1194, 1206.) “[I]t is not merely the right but the duty of a trial judge

to see that the evidence is fully developed before the trier of fact.” (People v.

Carlucci (1979) 23 Cal.3d 249, 255; see Pen. Code, § 1044 [“It shall be the duty

of the judge to control all proceedings during the trial, and to limit the introduction

of evidence and the argument of counsel to relevant and material matters, with a

view to the expeditious and effective ascertainment of the truth regarding the

matters involved.”].)

Defendant complains that the court directed defendant to take off his

glasses so Bettina Redondo could see his face. The direction was consistent with


the court’s duty to see that justice is done and to bring out facts relevant to the

jury’s determination. (See People v. Santana, supra, 80 Cal.App.4th at p. 1197.)

That the court later denied the prosecutor’s request that defendant be directed to

put on a hat to allow Redondo to see defendant’s facial features in the same

manner as she had observed the features of the gunman demonstrates the court

was not favoring the prosecution. Defendant also complains that after Colleen

Heuvelman testified she told the police the man she had seen had been wearing a

long military-style trench coat, the court remarked that a coat or jacket then shown

to the witness, apparently a trench coat, was not a military-style coat. The court

should not have interjected its own knowledge of military-style coats into the

proceedings, but its comment, if anything, undermined the prosecution’s attempt

to show defendant was the man Heuvelman had seen.

Defendant next complains that the court improperly interfered with defense

counsel’s cross-examination of Heuvelman. Counsel, armed with a transcript of

Detective Tarpley’s interview of Heuvelman, observed that Heuvelman had told

Tarpley that, as she was chatting with Miller just before leaving the bank to take

care of her son, her son was behaving “like a wild man.” Counsel asked

Heuvelman if her son had been with her. After she said yes, he asked if the son

had been acting like a wild man. Heuvelman said yes. Counsel asked if the son

had been running around. Heuvelman said she had needed to restrain her son

earlier, but her son was standing next to her, holding her hand, when she was

speaking with Miller. The court then called the attorneys to the bench and said to

defense counsel: “Mr. Freeman, if you’ve got some prior inconsistent statements

or something that you want to impeach her with, get to it, don’t be reading the

entire transcript into the record. I don’t care about the kid and how he was

running around the place or any of that kind of silliness.” Counsel explained he

was trying to impeach the witness’s earlier statement that she could not recollect if


her son had been with her at the bank. The court replied: “I don’t care about the

kid, it’s superfluous and it’s not improper [sic] impeaching. [¶] The court’s

objection is sustained.” The court then allowed counsel to examine the witness

about matters, including her son’s conduct, that might have distracted her when

she was watching the man in the bank’s parking lot.

Contrary to defendant’s argument, the court did not prevent defense

counsel from testing the witness’s powers of observation or her memory of events.

It forestalled an irrelevant discussion of the son’s presence and conduct in the

bank. That the son was with Heuvelman and was presenting distractions had

never been in dispute. The court’s “silliness” remark, made at the bench, could

not have influenced the jury.

Defendant complains the court improperly curtailed his cross-examination

of Detective Solis. Solis testified about a field showup during which witnesses

were asked if a man found in the area shortly after Miller was shot was the man

they had seen in the bank’s parking lot. None of the witnesses identified the man,

who was then released. Defense counsel later asked if Solis recalled a witness had

said the man fit the gunman’s profile. The court summoned the attorneys to the

bench and remarked that Solis’s report of a witness’s statement would be hearsay.

Defense counsel asserted the evidence was being offered to test the detective’s

credibility or recollection, not for the truth of the matter stated. But because

Solis’s ability or inability to recall the details of the field showup could not have

aided the defense, it is likely the defense was soliciting hearsay evidence. In any

event, the field showup took place because the man resembled the descriptions of

the gunman; that a witness agreed he resembled the gunman added nothing to the

defense case. Finally, Solis had little reason to recall if a witness confirmed the

resemblance; the important point to him would have been that the witnesses said

the man was not the man they had seen. Counsel’s line of questioning thus was


not directed at any admissible evidence that could have aided defendant. The

court’s refusal to allow further questioning on the matter therefore was well within

its discretion to manage the trial. Moreover, defendant could not have been

prejudiced by the court’s ruling.

The proceedings relating to defense investigator Douglas Portratz are

somewhat more disturbing, although for reasons having nothing to do with judicial

misconduct. Portratz spoke with witness Bettina Redondo in January 1997, a few

months before trial commenced. Redondo testified Portratz showed her

photographs of defendant and of James Gano’s brother-in-law, Craig Elz,

compared them to the composite drawing Redondo had helped prepare, told her

Elz’s photograph more closely resembled the drawing than defendant’s

photograph, and told her Elz had been involved in another robbery. Redondo felt

Portratz was trying to convince her Elz had murdered Miller. The court called the

attorneys to the bench and asked the prosecutor if he had caused Portratz to be

arrested for attempting to dissuade a witness. When the prosecutor said no, the

court said: “Why not? I mean, I haven’t seen a better case for it than this. [¶] . . .

[¶] Is it in the scheme of things, I hope?” The court’s remarks, made out of the

jury’s hearing, could not have caused the jury to think the court believed the

defense team had acted dishonestly. Defendant, however, asserts the comments

must have had a chilling effect on the defense. But that the court was legitimately

concerned a defense investigator may have attempted to influence a witness

should not have caused the defense to shy away from presenting legitimate

evidence to support its case. Further, nothing in the record hints that the court’s

words chilled defense efforts. To the contrary, after the bench conference defense

counsel cross-examined Redondo at length, exploring Redondo’s reasons for

believing Portratz was trying to convince her Elz was the murderer; making the

point that other persons, including Elz, generally met the description of the man


Redondo had seen; and eliciting Redondo’s statement she could not be certain

defendant, as he appeared at trial, was that man. The jury also heard a tape of

Portratz’s interview with Redondo and was provided with a transcript of the

interview. The defense therefore was able to, and did, use material from the

interview to suggest Redondo may have been mistaken, and the jury was fully

informed about the statements both Redondo and Portratz made during the


Defendant next complains the court repeatedly denied defense requests for

a sidebar conference, while granting the prosecution’s requests. He provides two

examples. In the first, defense counsel, after objecting to the form of the

prosecutor’s question, asked if the court wished the attorneys to approach the

bench. The court overruled the objection and denied the request to approach. In

the second, defense counsel, during the prosecution’s redirect examination of a

witness, objected that the prosecutor seemed to be misrepresenting that the defense

had pursued a particular line of questioning. The court agreed it could not recall if

defense counsel had asked the disputed questions. Defense counsel then asked to

approach the bench. The court denied the request. After asking a question on

another subject, the prosecutor asked to approach the bench, explaining he wished

to cover two additional areas but thought he had better approach before going

forward. The court granted the request. Nothing in either exchange suggests the

court favored the prosecution. Having heard the defense objections, the court

could assess whether a sidebar conference was necessary. But it did not know

what areas the prosecutor intended to pursue. By granting the prosecutor’s

request, the court thus protected defendant from the possibility the prosecutor

would elicit testimony that might unfairly damage defendant’s case. Defendant

has no cause to complain.


Defendant asserts the court unfairly and improperly suggested defendant’s

wife had been in jail. He mischaracterizes the court’s words. Defense counsel had

asked Lorraine Ripple if she recalled when defendant got married. The court

stated: “That’s hearsay, counsel. Sustained. She’s probably in custody now.”

In context, it appears the court was referring to Ripple’s time in custody, observing

that because Ripple was in custody at the time of the wedding, anything she said

about it would be based on hearsay. Further, defendant did not object or seek an

admonition, forfeiting his claim of error.

The court also on many occasions sustained defense objections and

sometimes made its own objections to the prosecutor’s questions. It also on its

own initiative acted to protect defendant. For example, after defense counsel

asked Lorraine Ripple if Detective Tarpley had said why he had contacted her, the

court called counsel to the bench and warned that the question might open the door

to evidence that would cause the jury to learn about all of defendant’s criminal


In sum, the record does not support defendant’s claim that the court allied

itself with the prosecutor against him, prevented him from exploring weaknesses

in the prosecution’s evidence, or prevented him from presenting a full defense.

4. Biasing the jury toward the death penalty

Defendant complains the court expressed a pro-prosecution bias during voir

dire by suggesting it favored the death penalty and believed persons willing to

impose the death penalty have more character or inner strength than persons who

would choose against death.

“[T]rial courts should be evenhanded in their questions to prospective

jurors during the ‘death-qualification’ portion of the voir dire, and should inquire

into the jurors’ attitudes both for and against the death penalty to determine


whether these views will impair their ability to serve as jurors.” (People v.

Champion (1995) 9 Cal.4th 879, 908-909.) But the portion of the voir dire to

which defendant refers here was not a part of the court’s attempt to explore

prospective jurors’ attitudes toward the death penalty. Rather, the court was

impressing on the prospective jurors that should they find defendant guilty, they

would have no option but to impose a very serious penalty. It explained that if

jurors found defendant was guilty of a murder committed during the course of a

robbery, they would be required to impose a penalty of either life without the

possibility of parole or death. The court then asked if prospective jurors would

have difficulty imposing either penalty and whether in determining the penalty

they would consider and weigh mitigating and aggravating factors. The court’s

remarks were designed to impress on the prospective jurors the gravity of their

task; they entailed no suggestion that the court favored one penalty over the other,

or favored the prosecution over the defense.

In a related claim, defendant asserts the court during voir dire twice

improperly insinuated a sentence of life without the possibility of parole might not

mean defendant would be imprisoned for the rest of his life. Defendant somewhat

mischaracterizes the court’s comments. The court again was acknowledging that

both death and life without the possibility of parole are significant penalties and

explaining that if the trial reached the penalty phase, the jury would be required to

choose one or the other. It explained that although it was impossible to guarantee

the jury’s verdict would be enforced, that uncertainty should not distract jurors

from the gravity of their decision. The court thus explained that, generally

speaking, a sentence of life without the possibility of parole means the defendant

will spend his life in prison and will die there. It later stated: “Previously I told

you that for purposes of your decision, you have to assume that the government

will keep the man locked up for his entire life and he’ll die in prison. That’s the


assumption you have to make. We’re not telling you and guaranteeing to you that

that’s true. We’re simply trying to impose upon you the gravity of your

responsibility as jurors. [¶] And with regards to that very strong gravity of your

responsibility, you must assume that if you impose life without parole, that means

what it says; if you impose the death penalty, that means that ultimately the death

penalty will be carried out.” The remarks were not made in a context that would

convey to the prospective jurors that defendant might be released if the jury did

not impose a verdict of death; the court was impressing on them that they would

have no option but to impose one of two harsh penalties were they to return a

verdict finding defendant guilty of first degree murder.

Defendant complains the court rushed the jury toward a verdict of death by

observing at the end of the guilt phase that juries generally have no reason to listen

to all the testimony a second time. He cites the court’s remark that the process of

having the reporter read back testimony is time-consuming and the court’s request

that the jury determine whether a rereading was necessary before asking for one.

The court’s words, spoken at the end of the guilt phase, did not suggest the court

was biased toward death. Nor do we see anything in them rushing the jury toward

a verdict or suggesting the jury could not ask for a rereading of the testimony if it

wished. The court was simply explaining there was good reason to refrain from

requesting a rereading if it would not be helpful. Any possible misunderstanding

would in any event have been cured by the court’s further explanation that it was

not intending to dissuade the jury from receiving the testimony, and its

admonishment that “[y]ou may take as long or as brief a time as you need to reach

a verdict. You are under absolutely no time requirements or constraints in

reaching such a verdict.”

We conclude defendant is not entitled to reversal for judicial misconduct.


D. Admission of Evidence of Threats to Ripple and Her Family and

Evidence of Defendant’s Gang Affiliation; Prosecutorial

Defendant contends he suffered irremediable prejudice, requiring reversal

of the judgment, because Lorraine Ripple was allowed to testify that he was

affiliated with a gang and to suggest he had threatened her and her sons to prevent

her from testifying.

The first mention of what defendant now claims was inadmissible evidence

occurred in response to questions by defense counsel. The prosecutor had elicited

from Ripple testimony that defendant had told her he killed someone in Tustin

who had a little ministore that cashed checks for “wetbacks.” She also stated

defendant had given her the gun he used, which she had later traded for drugs.

During cross-examination, defense counsel explored several areas with Ripple and

then asked if police investigators had offered her some kind of benefit in exchange

for her agreement to testify. She replied that an investigating officer had offered

to put in “a good word” to have her transferred to the California Institution for

Women (CIW) for the trial and that she had responded, “yeah, that’s some deal.”

Before counsel asked another question, Ripple added: “And it’s like right now,

I’ve got my son, all my friends, I have got two letters in the past week, one from

Arizona prison, one from Leavenworth that are flat out: don’t take the stand, don’t

say a word. And I’m—you know, I’ve got a lot of problems even with my sons

over this.” Defendant did not move to strike the comments or ask the court to

admonish the jury.

On redirect, the prosecutor referred to Ripple’s outburst, saying: “I think

you indicated something about having sons in Arizona, things of that nature, that

caused you some concern as you sit here today. Could you please explain what

you were talking about to the jury?” Ripple replied, “Okay. My son is also

affiliated with a gang that [defendant] was once a member of—” The prosecutor


interrupted, “Before we talk about that, I just—” Ripple stated, “Is that what you

wanted?” The prosecutor said, “I just want to ask do you have any concerns over

your own son’s safety?” There was no further mention of gang affiliation. In

response to the prosecutor’s further questions, Ripple testified she had one son in

state prison and another in federal prison. She stated she had received letters

directing her not to take the witness stand and she believed her decision to testify

placed her and her sons at risk. Ripple also said Deborah Lankford did not want

her to testify and had written to other inmates in Ripple’s unit. Ripple said she

had been attacked by six inmates in the prison yard. Defense counsel interrupted,

objecting that the prosecutor was seeking hearsay evidence. The court overruled

the objection. The prosecutor then asked why Ripple had agreed to testify against

defendant. Ripple’s only response was that she had developed “respect” for Mike

Proctor, one of the officers who had investigated Ripple in connection with her

own crimes, who had asked her to contact him if she ever decided to talk about

anything. Ripple reported she had since provided information to Proctor on

several occasions. Later, after questioning Ripple on other topics, defense counsel

returned to the officer’s offer to have Ripple moved to CIW, reading from a letter

Ripple had written to the officer, in which she wrote: “ ‘Let’s face another fact.

You’re offering me one year at C.I.W. and the rest of my life in the hole.’ ”

Ripple, agreeing the officer had made the offer, then said: “And while we’re

putting all this in the record, let’s go one better. [Defendant has] had Debbie

[Lankford] sending all this paperwork to every god damn prison in the fuckin’

state laying on my sons to keep me off the stand. Now, put that in your record if

one of my kids gets hurt.”

Defendant did not at that time move to strike or seek an admonition to the

jury. But after Ripple’s testimony concluded and the jury was excused for the day,

defendant moved for a mistrial, arguing that the prosecution had elicited improper


character evidence about gang connections and letters threatening the witness.

The court denied the motion. On the following day, after further discussion, the

court adopted the prosecutor’s suggestion to treat defendant’s motion for a mistrial

as a timely objection to the evidence. It then admonished the jurors: “During

redirect examination, the defense objected to a portion of witness Lorraine

Ripple’s testimony regarding possible retaliation against herself or family

members. Upon further reflection, the court believes . . . the objection to be a

proper one. You are therefore instructed that the answer of the witness dealing

with that limited portion of her testimony is stricken. You are hereby instructed

not to consider or discuss that portion of her testimony in any fashion in deciding

this case.”

A defendant who fails to make a timely objection or motion to strike

evidence may not later claim that the admission of the evidence was error (People

v. Burgener (2003) 29 Cal.4th 833, 869; People v. Hayes (1999) 21 Cal.4th 1211,

1261) or that the prosecutor committed misconduct by adducing it (People v.

Berryman (1993) 6 Cal.4th 1048, 1072). Further, “[w]hen an objection is made to

proposed evidence, the specific ground of the objection must be stated. The

appellate court’s review of the trial court’s admission of evidence is then limited

to the stated ground for the objection. (Evid. Code, § 353.)” (People v. Kennedy

(2005) 36 Cal.4th 595, 612.) “What is important is that the objection fairly inform

the trial court, as well as the party offering the evidence, of the specific reason or

reasons the objecting party believes the evidence should be excluded, so the party

offering the evidence can respond appropriately and the court can make a fully

informed ruling. If the court overrules the objection, the objecting party may

argue on appeal that the evidence should have been excluded for the reason

asserted at trial, but it may not argue on appeal that the court should have excluded

the evidence for a reason different from the one stated at trial. A party cannot


argue the court erred in failing to conduct an analysis it was not asked to conduct.”

(People v. Partida (2005) 37 Cal.4th 428, 435.)

The present case illustrates the reason for the foregoing rule. During

Ripple’s testimony on redirect examination by the prosecutor, wherein she

referred to threats of retaliation against herself and her sons, defendant’s only

objection was that the testimony was hearsay, but he now complains that the

evidence was irrelevant and inflammatory. A timely objection on those grounds,

if sustained, would have prevented any further testimony on the subject of threats

and would have allowed the court to make an admonition to reduce any prejudice

from the testimony already heard by the jury.

Nonetheless, in light of the trial court’s decision to treat the matter as if

defendant had made a timely objection, we will review the merits of his argument.

As defendant observes, this court has held that evidence of a third party’s attempt

to intimidate a witness is inadmissible against a defendant unless there is reason to

believe the defendant was involved in the intimidation. (E.g., People v. Williams

(1997) 16 Cal.4th 153, 200-201; People v. Hannon (1977) 19 Cal.3d 588, 599.)

But we were responding to the use of the evidence to show the defendant’s

consciousness of guilt; we were not concerned with whether it was relevant to

some other issue, such as the witness’s credibility. (Hannon, at p. 599; People v.

Weiss (1958) 50 Cal.2d 535, 554.) Evidence is relevant if it has any tendency in

reason to prove or disprove any disputed fact or consequence, including evidence

relevant to the credibility of a witness. (Evid. Code, § 210; People v. Kennedy,

supra, 36 Cal.4th at p. 615.) Thus, “ ‘[e]vidence that a witness is afraid to testify

or fears retaliation for testifying is relevant to the credibility of that witness and is

therefore admissible. [Citations.] An explanation of the basis for the witness’s

fear is likewise relevant to her credibility and is well within the discretion of the

trial court. [Citations.]’ ” (People v. Mendoza (2011) 52 Cal.4th 1056, 1084.)


“Moreover, evidence of a ‘third party’ threat may bear on the credibility of the

witness, whether or not the threat is directly linked to the defendant.” (Ibid.)

Ripple’s credibility was a significant issue in this case. The evidence therefore

had substantial probative value, justifying its admission. (Evid. Code, § 352.) The

court did not err by denying defendant’s motion for a mistrial.

Defendant’s related argument that the prosecutor committed misconduct by

eliciting evidence of defendant’s gang affiliation and possible threats to Ripple

also fails. A prosecutor commits misconduct by intentionally eliciting

inadmissible testimony. (People v. Smithey (1999) 20 Cal.4th 936, 960.) That

was not the situation here. As we have said, evidence of real or perceived threats

to Ripple or her sons was relevant to the issue of Ripple’s credibility. Whether

evidence of defendant’s gang affiliation was relevant to Ripple’s credibility is

debatable, but even assuming the evidence should not have been admitted, the

record fails to support defendant’s claim of misconduct. Defendant asserts the

prosecutor “cleverly calculated the introduction of inadmissible evidence to

prejudice defendant . . . [by specifically] asking Ripple to talk about her concerns

for her sons, knowing it would undoubtedly lead to a disclosure about

[defendant’s] gang affiliations.” Ripple, however, first mentioned her sons in

response to defense counsel’s questions. When the prosecutor on redirect asked

her to explain, and Ripple for the first time mentioned gang affiliation, the

prosecutor interrupted and quickly changed the subject to focus on the sons’

imprisonment. Defendant finds support for his argument in Ripple’s further

statement, after the prosecutor’s interruption, “Is that what you wanted?” In

context, however, it appears the prosecutor wanted Ripple to talk about the threats

she or her sons had received, was surprised by her mention of gangs, and changed

the subject to prevent prejudice to defendant. This interpretation is consistent with

the prosecutor’s later request for a jury admonition and his emphasis during


closing argument that the jury should not consider evidence of defendant’s

criminal past except for the limited purpose of defendant’s credibility.

In any event, the gang reference was brief and indicated only that defendant

had once been a member of a gang. It could not have prejudiced defendant in the

eyes of the jurors, who were fully aware defendant was a dangerous man who had

committed numerous violent crimes and had spent a substantial portion of his life

in prison. Finally, any possible prejudice was dispelled by the court’s admonition

to the jury to disregard that portion of Ripple’s testimony. (People v. Burgener,

supra, 29 Cal.4th at p. 870 [any error in admitting evidence is harmless where the

court has instructed the jury to disregard the evidence].)

Defendant also complains that even if evidence of threats against Ripple or

her family members was admissible, the prosecutor committed prejudicial

misconduct by asserting during closing argument that Ripple was testifying “at

great risk to herself and great risk to her family,” because the court had

admonished the jury that it should not consider evidence of retaliation against

Ripple or her family. The court’s admonition, however, was not a blanket

instruction to disregard all evidence of threats against Ripple; it was directed

toward Ripple’s responses to the prosecutor’s questions during redirect

examination. Other evidence also tended to show Ripple had reason to fear

retaliation, such as her responses to defense counsel’s questions, Deborah

Lankford’s testimony about telling friends in the prison system that Ripple was

informing on defendant, and Lankford’s concession that a prisoner risked his or

her life by informing on someone. The prosecutor was entitled to draw an

inference from this evidence that Ripple knew her testimony was putting her and

her family at risk. “ ‘Prosecutors have wide latitude to discuss and draw

inferences from the evidence at trial. [Citation.] Whether the inferences the


prosecutor draws are reasonable is for the jury to decide.’ ” (People v. Letner and

Tobin (2010) 50 Cal.4th 99, 179.)

We conclude, for the reasons we have stated, that defendant has shown

neither that the trial court erred nor that the prosecutor committed misconduct.

E. Admission of Evidence of Defendant’s Arrest for an Unrelated

Crime and of the Weapons and Pill Bottle Found in His Possession
at the Time of His Arrest

Defendant contends reversal is required because Detective Steven Rubino,

who arrested defendant in 1991 for an unrelated crime, was permitted to testify

about guns and ammunition discovered during a search of defendant’s car, and

because the guns and ammunition were shown to the jury.

The complained-of testimony followed the examination and cross-

examination of Lorraine Ripple. Defense counsel, apparently seeking to discredit

Ripple, asked if investigators had ever told her defendant had “given her up?”

Ripple responded that Detective Tarpley had told her a pill bottle with her name

on it had been found in defendant’s car at the time of his 1991 arrest. Counsel

then asked if Ripple had told Tarpley she had been involved with defendant in

other murders, eliciting her testimony that defendant had given her the .22-caliber

murder weapon after Ripple told him she needed a gun to kill someone; he had

given her other guns, including a MAC-11 semiautomatic pistol; her

acquaintances passed guns around freely; she had traded the murder weapon for

drugs; she had robbed her Mexican drug connection or connections several times;

and defendant liked to brag about his crimes, including the murders he had



As mentioned above, the trial court, clearly concerned with counsel’s

questions, called the attorneys to the bench and warned the defense that this line of
inquiry could cause the jury to learn far more about defendant’s criminal history

(footnote continued on next page)


On redirect, Ripple testified it was common for anyone in her circle of

acquaintances who needed a gun to ask for one and to give it back later. She

described a number of weapons that had been “floating around,” also testifying

she had seen defendant with a MAC-11 semiautomatic pistol and a .22-caliber

handgun that was not the gun used to kill Miller. The prosecutor then showed

Ripple several firearms contained in evidence envelopes. Ripple stated that a

MAC-11 and a .22-caliber handgun looked like those she had seen in defendant’s

possession. She identified a .38-caliber handgun as her own, saying she had used

it in several robberies.

Defendant did not object or seek an admonition. But as discussed

previously, he moved for a mistrial after Ripple’s testimony was completed. We

earlier considered and rejected the argument that a mistrial should have been

granted because Ripple had linked defendant to a gang and expressed her belief

that her cooperation in defendant’s prosecution threatened her own safety and that

of her sons. As relevant here, counsel also complained that the jury had seen guns

unrelated to Miller’s murder, asserting jurors were likely to assume defendant had

used the guns during the commission of other crimes. The court denied the

motion for a mistrial and adjourned the proceedings for the day.

The following morning, before the jury was called in, defense counsel

expressed concern that prosecution witness Detective Steven Rubino would testify

that the guns had been recovered during a search of defendant’s car in connection

(footnote continued from previous page)

than defendant might wish. Counsel responded that the defense team had
discussed the matter with defendant and had decided to ask Ripple about her
statements to police that defendant had committed other murders. He explained
the statements would support the defense claim that Ripple’s obsession with
defendant caused her to fabricate stories about him and his criminal activities.


with an unrelated crime. Counsel argued that evidence defendant had possessed

weapons on another occasion was irrelevant, cumulative, unduly prejudicial, and

“pushed up . . . against the edges of” impermissible character evidence.

By this time, the defense had requested a psychiatric examination of Ripple

and had expressed its intent to discredit her testimony by establishing she was

obsessed with defendant and had been fabricating stories about his criminal

activities. The prosecutor asserted Rubino’s testimony would corroborate Ripple’s

statements about defendant’s gun possession. After further discussion, it was

agreed Rubino’s interaction with defendant would be referred to as a “contact”

rather than an arrest, and Rubino would explain the guns were not linked to

Miller’s murder.

Rubino then testified, without defense objection, that in October 1991 he

was part of a multijurisdictional criminal apprehension detail that led him and

approximately nine other officers to follow defendant to a parking lot where

defendant’s car was parked. Rubino testified he then contacted defendant. The

prosecutor asked, “When you contacted him, was he contacted by several deputies

with guns drawn?” Rubino said yes. Defendant did not object. Rubino then

testified he searched defendant’s car, finding a loaded MAC-11 semiautomatic

pistol under the right front passenger seat, a loaded .22-caliber pistol under the

driver’s seat, some additional fully loaded magazines, a photograph, and a plastic

vial with Lorraine Ripple’s name on it. He said the .22-caliber pistol was not

related to Miller’s murder.

After Rubino was excused and the jury was in recess, defense counsel again

asked for a mistrial, complaining the detective’s testimony was even more

prejudicial than anticipated. The court denied the motion.

Evidence a defendant possessed weapons that were not used to commit a

crime is inadmissible to show the defendant committed the crime. (People v.


Riser (1956) 47 Cal.2d 566, 577.) But here, the evidence was introduced for a

different reason: to corroborate Ripple’s testimony of having seen similar

weapons in defendant’s possession during the same general time period.

Similarly, evidence police found a pill bottle with Ripple’s name on it in the trunk

of defendant’s car corroborated Ripple’s testimony that Detective Tarpley had told

her about the discovery of the pill bottle when he told her defendant had “given

her up.” That the evidence was not admissible to show defendant committed a

criminal act did not prevent it from being admitted on the issue of Ripple’s


Defendant also contends the evidence was inadmissible under Evidence

Code section 1101, subdivision (a): “[E]vidence of a person’s character . . . is

inadmissible when offered to prove his or her conduct on a specified occasion.”

But subdivision (a)’s restriction on the use of character evidence has no

application when the evidence is offered on the issue of a witness’s credibility.

(People v. Stern (2003) 111 Cal.App.4th 283, 297.) Indeed, subdivision (c) of

Evidence Code section 1101 expressly allows the admission of evidence for that

purpose. In addition, defendant’s objection was that the evidence was cumulative

and inflammatory. Although he asserted the evidence “pushed up” against the

edges of Evidence Code section 1101, he did not object that it was inadmissible

character evidence, thus forfeiting the claim. (People v. Partida, supra, 37 Cal.4th

at p. 435; People v. Kennedy, supra, 36 Cal.4th at p. 612.) This rule has particular

force here because counsel’s assertion suggested a concession that the evidence

did not violate Evidence Code section 1101; thus, there was no reason for the

court to analyze the point.

Defendant contends he was excused from the necessity of making a timely

objection or request for admonition because the trial court’s rulings on the

objections he made both before and after Detective Rubino’s testimony


demonstrated that a further objection or request would have been futile. (See

People v. Hill (1998) 17 Cal.4th 800, 820.) If by this contention defendant means

the court had indicated it would reject an argument that the evidence was

inadmissible character evidence under Evidence Code section 1101, subdivision

(a), we agree. As we have said, subdivision (a)’s restrictions on evidence have no

application where, as here, the evidence relates to a witness’s credibility. To the

extent defendant argues the trial court’s rulings excused him from objecting that

the witness’s statements were inflammatory, or from seeking a jury admonition on

similar grounds, we do not agree. When defendant expressed concerns about the

prejudicial effect of Rubino’s testimony, the court responded by admonishing the

prosecutor that Rubino should not speak of an arrest, with the result that the

prosecutor proposed to have the witness refer to the arrest as a “contact.” There is

no reason to assume the court would have been unresponsive to other complaints

about the prejudicial nature of the evidence had defendant made a meritorious


Finally, evidence defendant possessed weapons at the time of his arrest in

October 1991 could not have prejudiced defendant, who admitted to multiple

armed robberies, including a series of armed robberies during that year.

For all the above reasons, we conclude the admission of evidence of

defendant’s 1991 arrest and the weapons and pill bottle found in his car at the time

of his arrest provides no basis for reversal.

F. Lorraine Ripple’s Psychiatric Records

During cross-examination, defense counsel asked Ripple if she had any

history of mental health treatment. She replied she had recently received

treatment for trouble sleeping due to isolation. She also spoke of a long-term

personal and professional relationship with a psychologist who was writing a book

on prolonged isolation. Defense counsel subsequently filed a motion to appoint a


psychologist to examine Ripple for mental illness and requested access to Ripple’s

psychiatric, disciplinary, and drug treatment records. In support of the motion and

request, defense counsel referred to Ripple’s statements about her mental health

treatment and her angry response to defense questions. He further asserted, on

information and belief, that Ripple had displayed “bizarre behavior” while

incarcerated, had at one time slashed her own throat, and had been placed on a

suicide watch. He claimed that inmates reported Ripple fantasized about

defendant. Defense counsel explained: “All of the above combination of facts

and circumstances are such that there is a grave concern by defendant that the

mental health of the witness is significantly impaired. Her state of depression may

well contribute to her flights of fantasy regarding the defendant. She may no

longer have an ability to distinguish fantasy from reality.”

The trial court did not order the examination, but it ordered the California

Department of Corrections to release Ripple’s psychiatric records to the court.

After reviewing the records in camera, the court explained it had balanced

defendant’s need for the records against Ripple’s privacy rights and had

determined the records contained nothing of particular value to the defense. The

court read to the jury the only portion of the records it found relevant to

defendant’s argument that Ripple’s credibility was affected by her mental health

problems: “ ‘Ripple, Lorraine. Since inmate Ripple, W27065, is not suffering

from a serious mental disorder, and since more than six months has elapsed since

her previous self-destructive behavior, it is recommended that the “Sharps

restriction” described in my chrono dated 5/28/96 be lifted. [¶] Although Ripple is

perhaps a no greater than average risk of dangerousness to herself at this time, this

does not mean that her dangerousness to others has declined.’ ”

Defendant does not dispute that the trial court properly reviewed the

psychiatric records in camera. (See generally Pennsylvania v. Ritchie (1987) 480


U.S. 39, 58; Davis v. Alaska (1974) 415 U.S. 308, 320; People v. Gurule (2002)

28 Cal.4th 557, 591-595; People v. Hammon (1997) 15 Cal.4th 1117, 1124;

People v. Webb (1993) 6 Cal.4th 494, 518.) He claims, however, that the court

erred by failing to disclose material he could have used to impeach Ripple, thereby

violating his constitutional right to confrontation (U.S. Const., 6th & 14th


As an initial matter, whether defendant’s arguments are properly directed at

the right of confrontation is far from certain. “ ‘The main and essential purpose of

confrontation is to secure for the opponent the opportunity of cross-

examination.’ ” (Davis v. Alaska, supra, 415 U.S. at pp. 315-316, italics omitted.)

The high court has not decided if the right of confrontation embraces a right to

discover information necessary to make cross-examination effective. That

question arose in Pennsylvania v. Ritchie, supra, 480 U.S. 39, but the justices did

not reach a consensus. As we have since explained, “after [Ritchie], ‘it is not at all

clear “whether or to what extent the confrontation or compulsory process clauses

of the Sixth Amendment grant pretrial discovery rights to the accused.” ’ ”

(People v. Gurule, supra, 28 Cal.4th at p. 592.) Although defendant in this case

did not seek discovery of the records until after trial had commenced, the

uncertainty attending application of the confrontation right to discovery logically

extends to his complaint that the trial court’s failure to disclose Ripple’s

psychiatric records at trial deprived him of information he could use to cross-

examine her.


After trial in this matter was completed, Ripple executed a release of the

records, waiving her privacy rights in them. Defendant therefore has reviewed the
records in their entirety and cites specific portions to support his arguments.


We need not resolve the question here. Claims such as defendant’s

implicate the fundamental fairness of trials and are therefore subject to analysis

under the due process clause of the Fourteenth Amendment to the United States

Constitution. (Pennsylvania v. Ritchie, supra, 480 U.S. at p. 56; People v.

Martinez (2009) 47 Cal.4th 399, 451-453; People v. Gurule, supra, 28 Cal.4th at

pp. 592-593; People v. Hammon, supra, 15 Cal.4th at pp. 1126-1128; People v.

Webb, supra, 6 Cal.4th at pp. 517-518.) We have recognized that “[w]hen a

defendant proposes to impeach a critical prosecution witness with questions that

call for privileged information, the trial court may be called upon . . . to balance

the defendant’s need for cross-examination and the state policies the privilege is

intended to serve.” (Hammon, at p. 1127.) In this context, the records should be

disclosed if they are “material.” (Martinez, at p. 453.) “ ‘ “[E]vidence is material

only if there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the

outcome.” ’ ” (Ibid.) We also consider any adverse effect nondisclosure might

have had on counsel’s investigations and trial strategy. (In re Brown (1998) 17

Cal.4th 873, 887.) Nothing in Ripple’s psychiatric records rises to this standard or

implicates the preparation or presentation of defendant’s case.

Defendant could not have used the records to argue Ripple suffered from a

mental health problem affecting her credibility. The records do not suggest Ripple

suffered from delusions or hallucinations, nor do they contain any reports of

cognitive difficulties or other problems that could have affected Ripple’s ability to

perceive, recall, or describe events, or her ability or willingness to tell the truth.

Defendant cites references in the records to “antisocial personality disorder” and

“psychopathy,” but the terms are not defined and, even if in some contexts they

might be used to describe traits relevant to credibility, the contexts in which they


are used here generally refer to the difficulties Ripple was experiencing adjusting

to prison life.8 That Ripple was unhappy, difficult, and antisocial was clear from

her trial testimony; an awareness that a prison psychiatrist had described her as

antisocial and psychopathic could not have affected the jury’s view of her

credibility. Nor do the records show or suggest Ripple was in any way obsessed

with defendant so as to support that defense theory.

Defendant’s chief argument has nothing to do with Ripple’s mental health.

He contends disclosure of the records would have allowed him to impeach Ripple

by showing she was promised a significant benefit for testifying against him and

was threatened with harsh consequences should she decline to testify. Defendant

claims he could also have shown that both Ripple and Detective Tarpley were

untruthful because each testified Ripple had received no benefit for her testimony,

with the result the jury would have concluded Tarpley was either untruthful or

incompetent, thus fatally undermining the prosecution’s case.

In support of this argument, defendant cites a paragraph in a May 1996

psychologist’s evaluation. The evaluation includes the psychologist’s report of

Ripple’s explanation of her reasons for an aggressive outburst at a meeting with

the institutional classification committee. It recites that Ripple told him “they”

had told her she could do what they wanted or she could rot in the secured housing

unit, and they wanted her to testify against her “ ‘ex-old man’ ” “ ‘[b]ecause I ran


For example, defendant cites a September 19, 1996, mental health

assessment that recites: “Ripple slit throat 2/9/96. Impulsive act after verbal
exchange w/ staff. Not seriously depressed then or now. Extreme psychopathy in
my opinion. Been 6 months since attempt. No [significant suicide history] noted
described. Dangerousness to others . . . to self, avg.” The same record reports
Ripple’s cognition as “[n]ormal, but antisocial,” and further recites that no
perception disturbances were noted and Ripple did not exhibit any delusions or
problems with orientation, memory, attention, or concentration.


a lot with the Aryan Brotherhood gang members over the years and saw and know

about a lot of killings. My ex-old man was an enforcer for the Chicago Crime

Family, John Able [sic]. If they think I’m gonna tell them something that’s gonna

endanger my sons in prison they’re nuts’. . . . ‘I got upset, I’ll grant you that.

They told me if I testified they’d transfer me south. What a deal huh? I can give

them information that’ll get my sons killed and trade that for being able to go to a

prison down south where I can see my grandchildren.’ ” Defendant also cites the

handwritten notes of a psychologist on a master mental health treatment plan dated

February 13, 1996: “testify pressing to go to CIW,” and “under pressure from

Orange County to testify against high rank leaders . . . .”

Defendant’s argument presumes the trial court’s responsibility to examine

the records extended beyond determining if they supported his stated reasons for

requesting them: that Ripple might have been diagnosed with a mental disorder

affecting her credibility, or that the records might show she was obsessed with

defendant. Thus, he now claims he is entitled to relief because the trial court did

not also comb through the records searching for anything defendant might

possibly use to impeach Ripple, or any other prosecution witness, on some other,

unmentioned theory. Defendant cites no authority for that proposition, but even

were he correct, the uncertain, speculative nature of his claims falls far short of

establishing the records contain matter that, if disclosed, would have been material

to his defense.

Defendant’s argument assumes Ripple was referring to pressure to testify

against him in this trial, but if anything, the record suggests Ripple was not talking

about this case. There is no evidence defendant was a “high rank leader” of any

organization or that Ripple’s asserted experience with the Aryan Brotherhood had

anything to do with her testimony in this case. Ripple spoke at trial of her

knowledge of many murders, some involving defendant and some involving other


persons. She also spoke of providing information about other murders to

Detective Mike Proctor, who was not involved in the investigation of this case,

and she mentioned she had been approached by a number of other agencies which

presumably were interested in obtaining information from her. Defendant’s

argument also assumes Ripple’s response to the psychologist concerning her

outburst accurately reported what others told her at the meeting, but there is no

compelling reason why that should be true. Defendant assumes, without

supporting evidence, that Ripple’s decision to testify against him was motivated

by the promises and threats she claimed to have received. But Ripple expressed

disdain for the promised benefit and further told the psychologist: “Well I stopped

doing what men on the street wanted me to do before my arrest and I’m not going

to do what those men want either.” Defendant also assumes Ripple’s reference to

being transferred “down south” meant an offer of a permanent transfer to a

preferred facility as opposed, for example, to a temporary transfer to put her in

proximity to the court where she would testify. Finally, defendant assumes Ripple

was indeed transferred “down south” as a result of her willingness to testify. But

at most the record discloses Ripple was housed at CIW when called upon to testify

in defendant’s case. That Ripple had been offered a permanent transfer “down

south” in return for her testimony in this case, or had been threatened with

anything for failing to testify, is mere conjecture.

Just as the records do not show Ripple received a benefit for testifying, they

also do not show defendant could have used them to establish Ripple and Tarpley

were untruthful. Even had the records provided evidence persons attending the

institutional classification committee meeting had made threats and promises

connected to this case—and they do not—the records are not inconsistent with

anything Ripple or Tarpley testified to at trial. Both witnesses explained that

Ripple had been offered housing at CIW if she testified. Ripple testified a district


attorney investigator had told her that, if she agreed to testify, “he’d . . . put in a

good word to have me transferred to [CIW for] the trial.” Later she said the

investigator had told her he thought he could have her moved to CIW for one year.

The jury was also aware of Ripple’s views of that offer; defense counsel read to

the jury Ripple’s written response: “ ‘You’re offering me one year at CIW and the

rest of my life in the hole.’ ” Detective Tarpley testified he told Ripple she would

in all likelihood be called as a witness and might be housed at CIW, and an

investigator told her that “if she had concerns about her safety, that we could

possibly house her at CIW, so [she] would not be in the same facility as Mr.

Abel.” The psychiatric records do not show either witness was lying. Nor did

nondisclosure of the psychiatric records prevent defendant from learning that some

kind of offer to transfer Ripple to CIW had been made, so as to foreclose

defendant from investigating the matter further.

Defendant argues he could have used the records to show Ripple had lied

about her mental health because she did not report she had been diagnosed with

antisocial personality disorder or psychopathy. But the records do not suggest

Ripple was aware of the diagnosis or had any reason to know what the terms

meant. Further, Ripple was not asked about her mental health; she was asked if

she had been treated for mental health issues. The records do not show Ripple had

received or was receiving any significant treatment related to her mental health or

any treatment she might reasonably believe had any impact on her trial testimony.

The records, therefore, did not provide a basis for impeaching Ripple’s testimony

about her treatment.

Defendant also argues the records showed Ripple lied about her criminal

history, because when recounting that history to the jury she did not mention all

the criminal acts and acts of violence she had reported to mental health personnel.

But Ripple’s testimony reflects she was not in the least unwilling to talk about her


criminal history, her use of weapons, or her violent lifestyle. That she did not

mention every crime or violent act could not have affected the jury’s view of her

character or credibility.

For similar reasons, defendant is not entitled to relief on the theory the

records would have enabled him to show Ripple was manipulative and had little

conscience. Both points were clearly established by Ripple’s trial testimony.

In sum, defendant’s arguments that the records were material are premised

on speculation and conjecture, not actual information contained in the records.

Neither his right of confrontation nor his right to due process was violated by their


G. Other Claims of Evidentiary Error

Defendant contends the court should have sustained his objection that the

prosecutor, when questioning Colleen Heuvelman, asked a leading question.

The prosecutor was referring to a photographic lineup that included a photograph

of Larry Jones. Heuvelman testified she told police investigators that Jones

resembled the man she had seen. The prosecutor, after confirming Heuvelman had

told the police that Jones’s “eyes were close,” asked, “Did you tell the police that

there was a possibility of 20 to 40 percent?” Heuvelman said yes. The prosecutor

then asked: “Did you ever identify [Jones] as being the person that you saw

standing outside the bank?” Defendant objected that the prosecutor was leading

the witness. The court overruled defendant’s objection, and Heuvelman

responded, “No, sir.” Accepting for purposes of argument that the prosecutor’s

question was leading,9 the evidence could not have prejudiced defendant, as other


“ ‘A “leading question” is a question that suggests to the witness the answer

that the examining party desires.’ (Evid. Code, § 764.) Questions calling for a

(footnote continued on next page)


evidence firmly established defendant was the only person Heuvelman ever

positively identified as the man she had seen.

Defendant also complains his ability to question Detective Tarpley was

compromised because the court sustained objections that some of defense

counsel’s questions were leading. But nothing prevented counsel from eliciting

the evidence he sought by rephrasing his questions. The court also did not err by

overruling a defense objection on hearsay grounds after the prosecutor asked

Lorraine Ripple if Deborah Lankford had said anything to Ripple about testifying.

The evidence was admitted not to establish the truth of anything Lankford had

said, but to bolster Ripple’s credibility by showing she was testifying despite her

fear her testimony would compromise her safety.

Finally, the record belies defendant’s claims that the trial court’s rulings

had a chilling effect on the defense. The court’s interruptions, quips, comments,

and evidentiary rulings undoubtedly were somewhat irritating, but nothing in the

record suggests defendant was thereby dissuaded or prevented from attacking the

prosecution’s evidence or from fully presenting his case.

H. Cumulative Errors

Defendant argues that even if each asserted error, individually, does not

require reversal, the errors, when considered cumulatively, undermined the

integrity of the trial. We have found merit in only two of defendant’s claims of

error: that the trial court should not have admonished the jurors they could

disregard an attorney’s entire argument if they believed the attorney had lied to

(footnote continued from previous page)

‘yes’ or ‘no’ answer are not leading unless they are unduly suggestive under the
circumstances.” (People v. Harris (2008) 43 Cal.4th 1269, 1285.)


them, and that the court should not have interjected into the proceedings its

personal knowledge of military-style coats.

We conclude that contrary to defendant’s argument, there is no reasonable

probability the identified errors had any effect on the outcome of the trial. This is

so even if we consider the errors in conjunction with other evidence that we have

found to have been admitted without error, such as threats made to Lorraine

Ripple, defendant’s sometime gang membership, his arrest for an unrelated crime,

and his possession of weapons unrelated to Miller’s murder. The case against

defendant was not close. Defendant met the description of the murderer and was

positively identified as that man by two witnesses who had taken great care to

observe the gunman and who had provided a detailed description of him. Colleen

Heuvelman rejected numerous pictures of other men, but positively identified

defendant almost immediately upon seeing his photograph. Although Bettina

Redondo at one time picked another man out of a photographic lineup and a third

man out of a physical lineup, that she recanted each identification and expressed

great concern about picking the wrong man added weight to her positive

unrecanted identification of defendant’s photograph in the only photographic

lineup in which his photograph appeared and her assertion at trial that his

photograph was a picture of the man she had seen in the bank’s parking lot. Miller

apparently was murdered by a man who knew Miller would be in the parking lot

of Sunwest Bank on the morning of the murder, carrying a substantial amount of

cash. Defendant, the man identified as the murderer by the witnesses, had been in

Miller’s market and had reason to know Miller withdrew substantial amounts of

money from the bank on Friday mornings. Ripple, although far from a perfect

witness, had been intimately involved in defendant’s criminal activities; that he

would confess to her he had killed Miller was not incredible.


We have reviewed the evidence in its entirety and conclude that, to the

extent any of defendant’s claims of error have merit, they neither individually nor

cumulatively require reversal under either the Chapman (Chapman v. California

(1967) 386 U.S. 18, 24) or the Watson (People v. Watson (1956) 46 Cal.2d 818,

836) standard.

I. Instruction on Felony Murder and the Jury’s Finding of Felony


The information charged defendant with murder with malice aforethought

in violation of Penal Code section 187, subdivision (a). But the jury was

instructed with first degree felony murder and convicted defendant of that crime.

Defendant, arguing that under our decision in People v. Dillon (1983) 34 Cal.3d

441, murder with malice aforethought and felony murder are separate offenses,

contends the failure to charge him with felony murder deprived the court of

jurisdiction to try him on that theory. He also claims allowing the jury to convict

him of an uncharged crime violated his rights to due process, a jury determination

of each element of the charged crime, adequate notice of the charges, and a fair

and reliable guilt trial.

As defendant recognizes, we have rejected similar claims on many

occasions. We have explained that the statement in the plurality opinion in People

v. Dillon, supra, 34 Cal.3d at page 476, footnote 23, that felony murder and

murder with express or implied malice “are not the ‘same’ crimes,” means only

that the two forms of murder have different elements even though there is but a

single statutory offense of murder. (People v. Moore (2011) 51 Cal.4th 386, 412-

413; People v. Carpenter (1997) 15 Cal.4th 312, 394-395; People v. Pride (1992)

3 Cal.4th 195, 249.) We have further explained that an accusatory pleading

charging murder need not specify the theory of murder upon which the

prosecution intends to rely. (People v. Hughes (2002) 27 Cal.4th 287, 369.) We


thus have consistently rejected the argument that a defendant charged only with a

violation of Penal Code section 187, subdivision (a) may not be convicted of first

degree murder, including first degree felony murder. (E.g., People v. Morgan

(2007) 42 Cal.4th 593, 771-772; Hughes, at pp. 369-370.)

A pleading referring only to Penal Code section 187, subdivision (a)

provides adequate notice that the defendant might be convicted of first degree

murder on a felony-murder theory. (People v. Kipp (2001) 26 Cal.4th 1100,

1131.) Further, a special circumstance allegation that a defendant murdered the

victim during the course of a robbery provides more than adequate notice that the

prosecution will be pursuing a felony-murder theory of first degree murder.

(People v. Moore, supra, 51 Cal.4th at p. 413.) Here, the information filed against

defendant alleged the special circumstance of murder during the commission of a

robbery. (Pen. Code, § 190.2, subd. (a)(17).) In addition, “ ‘generally the accused

will receive adequate notice of the prosecution’s theory of the case from the

testimony presented at the preliminary hearing.’ ” (People v. Hughes, supra, 27

Cal.4th at pp. 369-370.) In this case, the prosecutor at the preliminary hearing

established probable cause that the murder occurred during the commission of a

robbery, and the case was tried on the theory that the murder was committed

during the course of a robbery. Defendant thus had ample notice the prosecution

was proceeding on a theory of felony murder.

Defendant cites the admonition in Apprendi v. New Jersey (2000) 530 U.S.

466, 476 that “ ‘any fact (other than [a] prior conviction) that increases the

maximum penalty for a crime must be charged in an indictment, submitted to a

jury, and proven beyond a reasonable doubt.’ ” (Italics added.) But Apprendi and

its progeny address “the Sixth Amendment right to a jury determination of facts

used in sentencing beyond the elements of the charged offenses.” (People v.

Moore, supra, 51 Cal.4th at p. 413.) These cases do not create new notice


requirements for alternative theories of a substantive offense such as a theory of

first degree murder.


A. Effect of the Murder upon Family Members

“Unless it invites a purely irrational response from the jury, the devastating

effect of a capital crime on loved ones and the community is relevant and

admissible as a circumstance of the crime under [Penal Code] section 190.3, factor

(a).)” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) The

United States Constitution bars victim impact evidence only if it is so unduly

prejudicial as to render the trial fundamentally unfair. (People v. Burney (2009)

47 Cal.4th 203, 258, citing Payne v. Tennessee (1991) 501 U.S. 808, 825.) The

testimony of Miller’s parents about their own emotions following their son’s death

and the effect it had on their lives did not exceed acceptable limits.

Defendant complains, however, that America Miller impermissibly asserted

the murder caused the death of her other son, Bobby. A family member may

properly testify about the effect of a murder on another family member, and it is

not required that the other family member had been present at the scene during or

immediately after the crime. (See People v. Jurado (2006) 38 Cal.4th 72, 132

[victim’s mother-in-law properly allowed to testify about the impact of the murder

on the victim’s daughter, and the victim’s parents properly allowed to testify about

the impact of the murder on their other children and grandchild]; People v. Wilson

(2005) 36 Cal.4th 309, 357 [proper for the victim’s sister to speak about the effect

of the crime on the victim’s daughters and on her own daughter].) Nevertheless,

unless supported, a witness’s statements that the defendant’s crime caused or

hastened the death of a third person are improper speculation. (People v. Brady

(2010) 50 Cal.4th 547, 577-578 [improper for the victim’s sister to testify that


their mother had given up on life six months after the murder]; People v.

Carrington (2009) 47 Cal.4th 145, 197 [trial court correctly told a witness it was

improper to speculate that the victim’s death may have contributed to the death of

the victim’s mother].) But here, America Miller’s statement, even if improper

speculation, could not have prejudiced defendant. Immediately after America

Miller spoke about Bobby’s death, the prosecutor asked if Bobby had died of heart

problems and, after receiving an affirmative response, moved on to other topics.

The prosecutor referred to the statement during closing argument, telling the jurors

that even if America Miller believed the murder was a factor in the death of her

second son, there was no evidence supporting such a belief and they should not

consider the statement except as it showed the impact of the murder on her.10

That the jury would have understood America Miller’s statement to be an assertion

of medical fact is highly improbable, particularly after the prosecutor’s careful

explanation. (Brady, at p. 578.)

Further, in light of the nature of the crime and the other aggravating factors,

including defendant’s criminal history, there is no reasonable possibility America


The prosecutor explained: “I know Ms. Miller said something about her

son Bob, Bob having heart problems. Ladies and Gentlemen . . . we’re not
suggesting in no way, shape, or form, that John Abel is responsible for the death of
her other son. I mean, this is a mother, obviously, in her mind she feels that this
somehow impacted her son’s heart. But we’re not asking you to hold Mr. Abel
responsible for the heart problems of Bob, Bobby Miller, who eventually died.
[¶] But in her own mind—this is, again, the impact of this crime on this victim and
the victim’s family. In her mind, the way she’s dealing with this is she feels the
killing of Armando Miller is such a heartbroken event to her other son, who he
was close to, that this is what caused his illness. [¶] There’s no evidence of that,
there’s no proof of that. So I ask you not to consider that the death of Bobby
Miller had anything to do with this incident. That is just her impression and it’s
part of her victim impact, but there’s no proof of that.”


Miller’s statement affected the penalty verdict. (See People v. Brown (1988) 46

Cal.3d 432, 447-448.)

B. Denial of Defendant’s Automatic Application for Modification of

the Death Verdict

1. Court’s consideration of additional victim impact evidence

Before ruling on defendant’s automatic application for modification of the

verdict of death (Pen. Code, § 190.4, subd. (e)), the court permitted Miller’s

fiancée, Holly Daniels, and his mother, America Miller, to make brief statements.

Daniels told the court how Miller’s death had affected her and their daughter.

America Miller said her faith allowed her to forgive defendant, and admonished

defendant to accept God. Defendant contends the judgment of death must be

vacated because the court improperly heard victim impact statements that had not

been considered by the jury in fixing the penalty at death.

In ruling on a defendant’s application for modification of a verdict under

Penal Code section 190.4, subdivision (e), the trial court “ ‘must independently

reweigh the evidence of aggravating and mitigating factors presented at trial and

determine whether, in its independent judgment, the evidence supports the death

verdict.’ ” (People v. Carrington, supra, 47 Cal.4th at p. 201.) A trial court ruling

on the application therefore should not consider evidence, including statements

from the victim’s relatives, that was not presented to the jury during the penalty

phase of the trial. (People v. Ramos (1997) 15 Cal.4th 1133, 1184.) Here,

although the court allowed Miller’s fiancée and mother to speak, it did so only

after expressing agreement with the jury’s finding that the circumstances in

aggravation were so substantial in comparison with the mitigating circumstances

that the penalty of death was warranted. The statements therefore did not factor

into the court’s decision to deny the motion. Further, defendant did not object,

thereby forfeiting his claim. (See People v. Rogers (2006) 39 Cal.4th 826, 907.)


2. Suggestion defendant was required to establish mitigating factors

“beyond a reasonable doubt”

Defendant, citing the trial court’s statement that it found no “factors in

mitigation proven beyond a reasonable doubt,” contends the court misunderstood

the standard by which it was to review the jury’s determination of penalty,

requiring reversal of the judgment of death. Defendant is correct that because the

sentencing function is inherently moral and normative, not functional, it is not

susceptible to a burden of proof quantification; neither the prosecution nor the

defense has the burden of proof during the penalty phase. (People v. Moore,

supra, 51 Cal.4th at p. 415; People v. Welch (1999) 20 Cal.4th 701, 767.) Thus, it

would be error to deny a motion for modification because the defendant failed to

prove the existence of mitigating factors beyond a reasonable doubt. But that is

not what happened here.

The trial court opened the proceedings by explaining it was required to

review the evidence, taking into account and being guided by the aggravating and

mitigating factors referred to in Penal Code section 190.3, to make a determination

as to whether the jury’s findings and verdicts were contrary to law or to the

evidence presented. (See Pen. Code, § 190.4, subd. (e).) The court stated it

agreed with the jury’s findings that the aggravating factors were so substantial in

comparison with the mitigating factors that the penalty of death was warranted,

and it found the jury had correctly determined that the robbery-murder special

circumstance was true. The court explained that after conducting the requisite

review of the evidence, it found the evidence of defendant’s guilt and the special

circumstances to be overwhelming; the victim’s family had suffered as a result of

the crime; defendant had suffered numerous prior convictions, “most of which

were armed robbery of homes, businesses and banks”; and at least 20 separate

robbery victims had testified about the violent crimes defendant had committed


against them. Defendant had offered no factors in mitigation, but the court,

referring to the factors listed in Penal Code section 190.3, nonetheless observed

that defendant had not committed murder while acting under extreme duress or

any mental or emotional disturbance or defect; defendant’s age at the time of the

murder, 47, was not a mitigating factor; the victim had not participated in

defendant’s homicidal conduct and had not consented to the conduct; there were

no circumstances defendant might reasonably have believed to have provided a

moral justification or extenuation for his conduct; there were no circumstances

that might extenuate the gravity of the crime; and defendant’s capacity to

appreciate the criminality of his conduct or the requirements of the law had not

been in any way impaired as the result of mental disease, defect, or the effect of

any intoxicants or drugs or a combination thereof.

The record therefore reflects that the court thoroughly understood its

statutory obligation and carefully analyzed the evidence in light of that obligation.

When considered in context, the court’s further statement that it found beyond a

reasonable doubt that defendant was guilty and there were aggravating factors and

no mitigating factors appears to have been made to emphasize the absence of any

evidence of mitigating factors, not to suggest defendant was required to prove

their presence beyond a reasonable doubt. But even if the court misstated the law,

the misstatement seems to have been no more than a slip of the tongue. In People

v. Mayfield (1993) 5 Cal.4th 142, 196, we rejected a claim of error after

recognizing that the trial court had correctly applied the law even if it had not

correctly and consistently pronounced it. We reject defendant’s claim here for the

same reason.

We conclude the trial court carefully and conscientiously performed its

duty under Penal Code section 190.4. (See People v. Smith (2003) 30 Cal.4th 581,



C. Other Death Penalty Claims

Our past decisions have repeatedly addressed and rejected the other

challenges defendant makes to the death penalty. He states no persuasive reason

why we should reconsider settled law.

Thus, we continue to hold that California’s death penalty law does not

violate the Eighth Amendment to the United States Constitution or international

law (People v. Moore, supra, 51 Cal.4th at p. 417; People v. Brasure (2008) 42

Cal.4th 1037, 1071-1072), including article VII of the International Covenant on

Civil and Political Rights (Dec. 16, 1966) (People v. Lomax (2010) 49 Cal.4th

530, 595; People v. Butler (2009) 46 Cal.4th 847, 885).

California’s death penalty statute “is not invalid for failing to require

(1) written findings or unanimity as to aggravating factors, (2) proof of all

aggravating factors beyond a reasonable doubt, (3) findings that aggravation

outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the

appropriate penalty beyond a reasonable doubt.” (People v. Snow, supra, 30

Cal.4th at p. 126; accord, People v. Moore, supra, 51 Cal.4th at p. 415; People v.

Bell (2007) 40 Cal.4th 582, 620.)

The United States Supreme Court’s decisions in Apprendi v. New Jersey,

supra, 530 U.S. 466, and its progeny, do not establish a Sixth Amendment right to

determination of particular aggravating factors, or a finding that aggravation

outweighs mitigation beyond a reasonable doubt or by a unanimous jury. (People

v. Moore, supra, 51 Cal.4th at pp. 415-416; People v. Taylor (2009) 47 Cal.4th

850, 899.)

A defendant’s Sixth, Eighth, and Fourteenth Amendment rights do not

require an instruction that mitigating factors need not be found by a unanimous

jury or by any particular standard of proof. (People v. Lomax, supra, 49 Cal.4th at

p. 594; People v. Ervine (2009) 47 Cal.4th 745, 810.) Moreover, here the jury was


specially instructed: “There is no requirement that all jurors unanimously agree on

any matter offered in mitigation or aggravation. Each juror makes an individual

evaluation of each fact or circumstance in aggravation or mitigation of penalty.

Each juror should weigh and consider such matters regardless of whether or not

they are accepted by other jurors.”

The inclusion of the phrase “so substantial” in CALJIC No. 8.88, used here

(jurors “must be persuaded that the aggravating circumstances are so substantial in

comparison with the mitigating circumstances that it warrants death instead of life

without parole”), does not render the instruction impermissibly vague. (People v.

Lomax, supra, 49 Cal.4th at p. 595; People v. Moon (2005) 37 Cal.4th 1, 43.) The

term “warrants” in the instruction is not overbroad and adequately conveys that the

central inquiry is whether death is “appropriate.” (People v. Griffin (2004) 33

Cal.4th 536, 593; People v. Breaux (1991) 1 Cal.4th 281, 315-316.)

CALJIC No. 8.88 is not unconstitutional for failing to inform the jury it

must return a sentence of life without the possibility of parole if it determines the

circumstances in mitigation outweighed those in aggravation. (People v. Lomax,

supra, 49 Cal.4th at p. 595; People v. Moon, supra, 37 Cal.4th at p. 42.) The

instruction is not defective for failing to recite that neither party in a capital case

bears the burden of persuading the jury of the appropriateness or inappropriateness

of the death penalty. We have long held that because the assessment of

aggravating and mitigating circumstances required of penalty jurors is inherently

normative, not factual, it is not susceptible to a burden of proof quantification.

(People v. Moore, supra, 51 Cal.4th at p. 415; People v. Bell, supra, 40 Cal.4th at

p. 620.)

The failure to require intercase proportionality review does not render the

death penalty law unconstitutional. (People v. Moore, supra, 51 Cal.4th at p. 417;


People v. Lomax, supra, 49 Cal.4th at p. 595; People v. Hamilton (2009) 45

Cal.4th 863, 960.)

D. Cumulative Error

Defendant’s final complaint is that even if reversal is not required by the

errors occurring in his trial when considered individually, it is required by their

cumulative effect, which he claims undermines any confidence in the integrity of

the proceedings. We previously concluded the outcome of the trial was unaffected

by the only errors occurring during the guilt phase. Finding no additional errors

during the penalty phase, we reject defendant’s complaint for the reasons we have

already stated.


We affirm the judgment.





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

Name of Opinion People v. Abel

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: March 19, 2012

County: Orange
Judge: Robert R. Fitzgerald



Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Kate Johnston and
Mary K. McComb, Deputy State Public Defenders for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne S. Denault and James D. Dutton,
Deputy Attorneys General, for Plaintiff and Respondent.

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

Mary K. McComb
Deputy State Public Defender
801 K Street
Sacramento, CA 95814
(916) 322-2969

James D. Dutton
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2212

Opinion Information
Date:Citation:Docket Number:
Mon, 03/19/201253 Cal. 4th 891, 271 P.3d 1040, 138 Cal. Rptr. 3d 547S064733

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