Filed 6/28/07
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S066377
v.
FRANK MANUEL ABILEZ,
Los Angeles County
Super. Ct. No. KA031387-01
Defendant and Appellant.
A jury in Los Angeles County Superior Court convicted Frank Manuel
Abilez in 1997 of the first degree murder of his mother, Beatrice Abilez Loza
(Pen. Code, § 187; all further statutory references are to this code unless otherwise
indicated), forcible sodomy (§ 286, subd. (c)), first degree robbery (§ 211), two
counts of first degree burglary (§ 459) and grand theft of a vehicle (former § 487h,
subd. (a), see now § 487, subd. (d)). The jury also sustained special circumstance
allegations that Abilez committed a murder while engaged in the commission of a
robbery, sodomy and burglary. (§ 190.2, former subd. (a)(17)(i), (iv) & (vii), see
now subd. (a)(17)(A), (D) & (G).) In addition, the jury sustained an allegation that
defendant caused great bodily injury to a person over 60 years of age. (§ 1203.09,
subd. (a).) Defendant waived a jury for determination of his prior convictions, and
the trial court sustained allegations that he had suffered two prior serious felony
convictions (§ 667, subd. (a)(1)), had previously served four separate terms in
prison for felony convictions (§ 667.5, subd. (b)), and had suffered two prior
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felony convictions within the meaning of the “Three Strikes” law (§§ 1170.12,
subds. (a)-(d), 667, subds. (b)-(i)). On October 16, 1997, the jury set the penalty at
death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is
automatic. (§ 1239, subd. (b).) We affirm.
I. GUILT PHASE
A. Facts
Beatrice Abilez Loza (Loza), 68 years old at the time of her murder, lived
in La Puente. She had 10 children, including defendant, although he was raised by
someone else. Two of her other children, Susie Carlon (Carlon) and John
“Chachi” Loza (Chachi), lived with her, each in a separate bedroom. The victim
often allowed family members to use her spare bedroom. On March 14, 1996,
defendant and Loza’s nephew, Albert Vieyra (Vieyra), were staying in the spare
bedroom, but Loza quarreled with them and told them to leave the next day.
Carlon recalled that on March 15, defendant left the house around 8:30 or 9:00
a.m. She left the house around noon to go to Stateline, Nevada, with her friend
Annette Jordan; at that time, she saw defendant returning to the house.
Another of Loza’s children, Johnny Garcia, lived a short distance away, and
on March 15 he came by the house around 5:00 p.m. to borrow some money from
his mother. He stayed 15 or 20 minutes. At that time, he noticed Loza’s car was
in the driveway, which was normal because his mother never put the car in the
garage. When he left, Loza and Chachi were the only ones in the house. As he
often did, Garcia called his mother that night around 10:45 p.m. to ensure she was
“safe and okay.” Concerned when she did not answer her telephone, he went to
her house. Her car was not in the driveway and the outside light was turned off,
both of which were unusual. When no one responded to his knocking and ringing
the doorbell, he entered the house through a window. Once in the house, Garcia
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noticed the door to Carlon’s bedroom was broken. Finding the door to his
mother’s room locked, he sought out his brother Chachi. Chachi, surprised on
seeing his brother in the house, told Garcia their mother was in her room. Garcia
then forced open a window to his mother’s bedroom and entered, finding her lying
facedown in the room with a sock knotted around her neck. Her pants had been
pulled down and her shirt pulled up. Garcia called the police from the bedroom;
he later determined the telephone in the kitchen had been pulled from the wall and
that Loza’s car was missing.
James Ribe, a medical examiner for Los Angeles County, conducted an
autopsy on the victim and concluded she died of “asphyxia due to ligature
strangulation.” In addition, Ribe found evidence of “forcible rectal insertion”
occurring while she was still alive. A criminalist later determined the presence of
spermatozoa in the victim’s rectum, but the amount was insufficient to conduct a
DNA test.
Leonard Mercado, apparently one of defendant’s acquaintances, testified
that late in the evening of March 15, 1996, defendant and Vieyra drove up to a
house in La Puente and asked whether anyone wanted to buy any of the electronic
equipment they had in the car. Around 3:00 a.m. the morning of March 16, Colton
Police Officer Kenneth Kiecolt stopped the car defendant was driving for having a
broken license plate light. Vieyra was a passenger in the car. A license plate
check indicated the car was wanted by the Los Angeles County Sheriff’s
Department, so Officer Kiecolt arrested both defendant and Vieyra and had their
car impounded.
After Colton Police transferred custody of defendant and Vieyra to the Los
Angeles Sheriff’s Department, Deputy Sean Harold secretly recorded them in the
back of his car. Although much of the tape is unintelligible, one person could be
heard to say in Spanish: “No, don’t say anything.” At another point, someone
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says: “Just say we were lost on the freeway.” Someone also says: “No, but we
left and that’s it.” It could not be determined who said what.
When arrested, Vieyra had scratches and abrasions on his face. A shirt,
determined to belong to Vieyra, was recovered from the car; because it was
stained, it was sent for analysis. A criminalist later determined the stain was from
Vieyra’s blood. Police also found empty beer cans and a red pajama top in the car.
Loza would not have left beer cans in her car and, in fact, did not drink. The red
pajama top belonged to Carlon and had been taken from her room.
Chachi, Loza’s son who resided with her, had previously suffered an
accident and was physically disabled at the time of trial. He testified initially that
on the night in question, both defendant and Vieyra were in the victim’s bedroom
arguing with her. He later clarified that he heard only defendant in the room,
which was consistent with his statement to the police who investigated the crime.
From his bedroom, Chachi heard someone opening and closing drawers in his
mother’s bedroom.
When Carlon learned of her mother’s murder, she returned home. She
found the lock on her bedroom door had been broken and her bedroom ransacked.
Missing were a compact disc player, a case with about 60 discs inside, a cassette
tape player and her wallet. Stereo equipment was also missing from Loza’s
bedroom.
Candina Bravo, defendant’s niece, testified defendant came to her home
around 4:00 p.m. on March 15, 1996, to borrow money, but she had none to give
him. She recalled that sometime in the two weeks before Loza’s death, defendant
told her: “I hate that fucking bitch. She keeps fucking with me.” A couple of
months before that, he told her: “I hate that fucking bitch. I want to kill her.”
Bravo said defendant’s antipathy stemmed from the fact Loza raised her other nine
children but “gave him up.” Bravo also testified that Loza kicked defendant and
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Vieyra out of her house because they stole from her. Annette Jordan, Carlon’s
friend, testified she had been to the victim’s home hundreds of times and
confirmed that defendant and the victim argued about his eviction from the house
during the two weeks leading up to the murder. She also reported hearing
defendant attempt to borrow Loza’s car, but she never saw Loza agree to lend it.
Gabriel Arce, the teenage son of defendant’s girlfriend, testified that
sometime before the murder, he heard defendant say that when Loza would not
give him money, defendant would just take money from her purse, and that he
wanted to kill her. Rachel Arce, defendant’s sometime girlfriend, also testified
defendant hated his mother.
Codefendant Vieyra testified in his own defense. He testified that on the
day in question he ran into defendant, his cousin, in the parking lot of a shopping
center. Defendant appeared to be under the influence of heroin and was holding a
quart bottle of beer, which he proceeded to drink that afternoon. Defendant told
Vieyra he was angry at his mother. They went together, first to a friend’s house
and then to the victim’s home, arriving around 3:40 p.m. After staying a short
time, they went to a corner store where they bought and consumed two 12-ounce
beers. After running some errands in the neighborhood, the two returned to
Loza’s house. At that time, only Loza and Chachi were home. Vieyra noticed
defendant was having an argument with Loza. Vieyra convinced defendant to
leave, and they went to a bar, although they did not have anything to drink. The
two then returned to Loza’s house sometime after 5:00 p.m. Defendant went to his
mother’s bedroom, and Vieyra went to the bathroom to shave; at that time, he saw
defendant in Loza’s room and they were talking. When Vieyra was finished
shaving, he heard Chachi come out of his room. Chachi called out his mother’s
name. Defendant came out of Loza’s room and told Chachi to go back into his
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room. Defendant then reentered Loza’s bedroom and closed the door. Vieyra
went to wait in the living room.
When defendant did not emerge from Loza’s room for some time, Vieyra
went and opened the door. He saw Loza lying on the floor on her stomach, with
defendant sitting on her, straddling her “like on a horse.” Defendant held a white
cloth in his hands and it was around her neck; Vieyra heard a noise from her
throat. Vieyra stood there a few seconds and then returned to the living room
because he was scared. Less than two minutes later, defendant emerged from
Loza’s room and said “estuvo,” which is slang for “it is done.”
Defendant then went to Carlon’s room and, finding it locked, banged on the
door until it opened. Vieyra helped defendant take items out of the house and load
them into Loza’s car. He did not know who pulled the telephone from the wall.
After loading the car, they drove to a friend’s home and unsuccessfully tried to sell
the stolen property. They then stopped at another house, which defendant entered
and did not come out of for 20 minutes. When he emerged, they moved all the
items taken from Loza’s home into the house. Defendant said he had received
$120 for the stolen goods. They made a few more stops, but Vieyra fell asleep,
possibly because he had snorted some heroin. Vieyra admitted that when he fell
asleep, he urinated on himself. He took his shirt off because it had become soiled,
and as they drove off, defendant began hitting him in the face as punishment for
urinating in the car, causing the scratches on his face the police later observed.
Vieyra testified that on the day of the murder, before he and defendant
returned to Loza’s house, defendant told him he wanted to kill Loza because she
had called his adoptive mother a “puta,” Spanish for “whore.” Vieyra did not
think defendant was serious because he had made comments like that in the past.
When he encountered defendant in jail after their arrests, he asked him if he felt
remorse for what he had done; defendant replied: “No, what for?”
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Vieyra testified he had been “very close” to his aunt, was upset about what
had happened to her, and had volunteered to take a blood or saliva test to clear
himself of the sodomy charge. He conceded he did not do anything to help Loza
and that he had lied to police when initially questioned. He decided to tell the
truth because of his conscience. He admitted to having suffered convictions for
crimes of moral turpitude in 1985 and 1991.
In his defense, defendant called Dr. Martin Porcelli, who explained the
effect chronic alcohol abuse and heroin use can have on cognitive function.
Defendant did not testify at the guilt phase of his trial.
For his participation in the crimes against Loza, the jury convicted
codefendant Vieyra of robbery, two counts of burglary, grand theft auto, but only
second degree murder. The jury acquitted him of forcible sodomy.
B. Pretrial Issues
1. Defendant’s Marsden Motion
Defendant contends the trial court abused its discretion by failing to grant
his motion to relieve his attorney and appoint new counsel. (People v. Marsden
(1970) 2 Cal.3d 118 (Marsden).) As we explain, the trial court did not abuse its
discretion.
a. Facts
Defendant moved on September 18, 1997, to relieve his appointed trial
attorney, Antonio Bestard, and have new counsel appointed. After closing the
hearing, the trial court heard defendant’s motion, which consisted primarily of
four complaints: (1) Counsel was overly concerned with convincing defendant to
accept a plea bargain of life without the possibility of parole and dismissal of the
sex crime charges. According to defendant, “for the last 17 months” that is all
counsel talked about. (2) Counsel discussed the case with his (counsel’s) teenage
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son. (3) Counsel was disrespectful and sarcastic. According to defendant, counsel
“doesn’t talk with me; he talks at me.” (4) Counsel had not discussed the defense
witnesses with him. Defendant admitted he did not believe counsel had failed to
do anything that should have been done.
After listening to defendant’s complaints, the trial court asked counsel for a
response. Regarding his urging defendant to take the plea bargain offered by the
prosecutor, Bestard said he thought the prosecutor’s offer was “not the most
generous” but that it had the advantage of striking charges related to the sexual
assault on the victim, which would inure to defendant’s benefit in prison as other
prisoners “don’t take too kindly about prisoners sodomizing women.” Bestard
suggested that if defendant had a “sexual jacket in state prison,” he would be
victimized by fellow prisoners. Although he did not say so explicitly, implicit in
Bestard’s discussion was that he thought defendant’s prospects at trial were dim,
noting that people with whom he had discussed the case were all “appalled” at the
facts. The trial court made the point explicit for counsel, informing defendant:
“I think what Mr. Bestard is saying to you is, look, there are significant risks in
this case. There is a high danger if you take the case to trial.” Defendant replied
that he understood.
Regarding having discussed the case with his teenage son, counsel
explained: “One night . . . I was preparing for this case and my son happened to
be in my study and looked at the charges, particularly the sodomy charges, and
asked about them and I said this is a guy who is being accused of sodomizing his
mother and then killing her, and my son said, ‘God, dad, that is really ugly’ and I
just shared that with [defendant] . . . to tell him that the reaction to this case
particularly is one of shock.” Counsel used this example to bolster his argument
to defendant that the case in defense was not a strong one, explaining that he had
discussed the case (without giving defendant’s name) with “other lawyers, judges,
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public defenders, [and] probation officers,” “[a]nd they are appalled at the charges,
they are appalled at the factual situation.”
Regarding defendant’s allegation that counsel was disrespectful and
sarcastic, counsel explained: “I don’t believe so, but then everyone has their own
sensitivity levels. I have talked to Mr. Abilez in a very straightforward, brusque
manner at times and that is my personality. I told him at the beginning of this
case, which I tell most defendants, is that I am not here to tell you you have got a
great case. I am your sparring partner, and if I am going to be your sparring
partner, I am going to take my best shots at you, because the district attorney is
going to be twice as hard on you and I want to make sure that you understand, so I
am very critical of things that Mr. Abilez has said.” Counsel’s assertion that he
was “very critical of things” was an apparent reference to defendant’s claim that
he had been an altar boy at St. Margaret’s Catholic Church and had been in the
Cub Scouts. Counsel told the court that he had investigated both claims for
potential mitigating evidence and found no evidence to support either one.
Finally, regarding defendant’s claim that counsel had failed to discuss the
defense witnesses with him, counsel admitted that defendant “has mentioned
witnesses to me and I told him to talk to Mr. Royce who is the investigator.
[Defendant] asked me to talk to witnesses. I don’t talk to witnesses and the reason
for that is that I don’t like to be called to the stand [by the prosecutor], so I . . .
have Mr. Royce talk to them and then we—we take it from there.” Counsel
continued: “I mentioned all these witnesses. If [defendant] has any others that we
haven’t gotten to, I would like to know who they are.” Counsel averred that
defendant “knows of the witnesses that we have been talking to. In fact, not only
did I see him last night, but Mr. Royce saw him last night, too, to discuss this
case.” When the trial court asked defendant whether he had had an opportunity to
discuss the witnesses with the defense investigator and whether “he provided you
9
with information regarding what he has learned from the witnesses,” defendant
answered in the affirmative.
After hearing from both defendant and defense counsel, the trial court
denied the Marsden motion, explaining to defendant: “Well, it does appear to me
that there are some conflicts which have developed between counsel and the
defendant, but frankly, in the court’s view, they are the sort of conflicts that I
would expect in a situation which is high-tension, high-stress, high-anxiety, and
not the sort of thing that I believe would warrant granting the motion. [¶] . . . I
don’t think that Mr. Bestard has done anything that would be detrimental to your
case. On the contrary, I think he has very aggressively pursued your defense in all
aspects. [¶] I think that there may be some tension as a result of the
communication, but I think ultimately you are better off with a lawyer that tells
you like it is than one who tells you what you want to hear until it is too late.”
Also: “I don’t see that there has been a breakdown in the relationship between the
two of you of such a kind that would make it impossible for [counsel] to represent
you in this case.” The court then denied defendant’s Marsden motion.
b. Marsden
“Defendants in capital cases often express dissatisfaction with their
appointed counsel, affording us ample opportunity to address the contours of the
rule set forth in Marsden, supra, 2 Cal.3d 118. The rule is well settled. ‘ “When a
defendant seeks to discharge his appointed counsel and substitute another attorney,
and asserts inadequate representation, the trial court must permit the defendant to
explain the basis of his contention and to relate specific instances of the attorney’s
inadequate performance. [Citation.] A defendant is entitled to relief if the record
clearly shows that the first appointed attorney is not providing adequate
representation [citation] or that defendant and counsel have become embroiled in
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such an irreconcilable conflict that ineffective representation is likely to result.” ’
(People v. Fierro (1991) 1 Cal.4th 173, 204.) The decision whether to grant a
requested substitution is within the discretion of the trial court; appellate courts
will not find an abuse of that discretion unless the failure to remove appointed
counsel and appoint replacement counsel would ‘substantially impair’ the
defendant’s right to effective assistance of counsel.” (People v. Roldan (2005) 35
Cal.4th 646, 681.)
Defendant presents no issue that counsel was failing to provide adequate
legal representation. Indeed, there was considerable evidence that counsel’s
investigator had been active on the job and that counsel had prepared three full
binders of trial material, including a 110-page synopsis of his investigator’s work.
Although defendant now argues there was no “verification” counsel had in fact
completed such work, the trial court was entitled to accept counsel’s description of
the amount of work he had completed. (People v. Jones (2003) 29 Cal.4th 1229,
1245.) Moreover, although defendant disputed counsel’s claim they had met for
one hour and 35 minutes in the week preceding the hearing on the Marsden
motion, claiming they had met for only 45 minutes, the discrepancy is de minimis.
Defendant similarly fails to establish that the trial court’s inquiry into his
complaint was deficient. The record demonstrates the court allowed defendant to
explain the reasons for his dissatisfaction with counsel and permitted counsel to
respond. Nor has defendant demonstrated an irreconcilable conflict had
developed. Counsel had adequate explanations for all of defendant’s complaints,
and “ ‘[t]o the extent there was a credibility question between defendant and
counsel at the hearing, the court was “entitled to accept counsel’s explanation.” ’ ”
(People v. Jones, supra, 29 Cal.4th at p. 1245.) Defendant was given “full
opportunity to air all of his complaints, and counsel to respond to them.” (People
v. Smith (2003) 30 Cal.4th 581, 606.) We perceive no abuse of discretion.
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Defendant now raises several additional reasons to support his claim that
the trial court abused its discretion by denying his Marsden motion, but none has
merit. He first argues the trial court improperly denied his motion by relying
solely on its courtroom observations of defense counsel, without permitting
defendant to relate the basis for his unhappiness. (People v. Barnett (1998) 17
Cal.4th 1044, 1091; People v. Hill (1983) 148 Cal.App.3d 744, 753.) The record
belies this claim. The trial court gave defendant ample opportunity to explain the
basis of his unhappiness and then denied the motion based in part on counsel’s
explanations of his conduct.
Second, defendant argues he could no longer trust Bestard, noting he had
breached confidentiality by discussing the case with his son and by discussing a
plea offer with defendant while the prosecutor was on the speakerphone listening
in; he had suggested he thought defendant was untruthful; and he had prejudiced
the court by characterizing defendant as a gang member. We disagree. Counsel
adequately explained the circumstances concerning his son, and the incident with
the prosecutor on the speakerphone was also aired, revealing it to be an apparently
routine plea negotiation and not a breach of lawyer-client confidentiality.
Counsel’s suggestion that defendant was untruthful came when he told the court
he had been working hard on the case but that defendant had sent him off on two
fruitless investigations (involving defendant’s alleged participation as an altar boy
and as a Cub Scout). The mention of defendant’s gang affiliation came during
counsel’s explanation that the prosecutor’s offer to drop the sodomy charge was in
defendant’s best interest, noting that defendant’s familiarity with the Mexican
Mafia should confirm counsel’s belief that other gang members would not look
kindly on defendant’s sex crime. In short, none of defendant’s complaints is
substantial.
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Defendant’s mere allegation that he did not trust his defense attorney,
without more, was insufficient to compel the trial court to replace him. “If a
defendant’s claimed lack of trust in, or inability to get along with, an appointed
attorney were sufficient to compel appointment of substitute counsel, defendants
effectively would have a veto power over any appointment, and by a process of
elimination could obtain appointment of their preferred attorneys, which is
certainly not the law.” (People v. Jones, supra, 29 Cal.4th at p. 1246.)
Defendant’s effort to support his loss of trust in Bestard by citing counsel’s
attempt to have him placed in solitary confinement is unavailing. Because this
issue was not raised until after the trial court had denied defendant’s Marsden
motion, it cannot be used to undermine the trial court’s exercise of discretion in
denying the motion. Moreover, counsel’s actions were justifiable. Counsel
informed the court that defendant was addicted to “pruno,” an alcoholic drink
brewed illicitly in county jail by inmates, and previously had come to court so
intoxicated that he was unable to assist counsel. Bestard raised the possibility that
defendant could be held in solitary confinement to prevent him from gaining
access to any more pruno. The court declined the suggestion but ordered the
bailiff to examine defendant for intoxication each time he appeared in court. As is
apparent, counsel was not irrational in exploring the possibility of having
defendant held in solitary confinement nor was he trying to punish him; he was
merely attempting to ensure defendant maintained sobriety so as to permit him to
assist in his own defense.
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Third, defendant contends three cases compel the conclusion the trial court
abused its discretion by failing to grant his Marsden motion,1 but all three are
distinguishable. In People v. Groce (1971) 18 Cal.App.3d 292, the defendant
complained his defense attorney had failed to obtain the hospital records that
might show the extent of the victim’s injuries. The appellate court reversed for
Marsden error because the trial court had failed to inquire “into counsel’s reason
for not producing the physician or his hospital records.” (Id. at p. 297.) In People
v. Hill, supra, 148 Cal.App.3d 744, the appellate court reversed for Marsden error
because the trial judge had failed to question counsel regarding the defendant’s
complaints but instead undertook its own off-the-record investigation. (Id. at pp.
754-755.) In People v. Cruz (1978) 83 Cal.App.3d 308, the trial court similarly
failed to ask the defense counsel to address the defendant’s complaints. (Id. at
p. 317.) In contrast to these cases, the trial court in the instant case questioned
defendant about his reasons for desiring substitute counsel, asked counsel for his
response and denied the motion based on the court’s assessment that grounds for
substitution did not exist.
In sum, we conclude the trial court did not abuse its discretion in denying
defendant’s Marsden motion. (People v. Roldan, supra, 35 Cal.4th at p. 681.)
c. Asserted federal claim
Defendant also contends denial of his Marsden motion violated his right to
counsel under the Sixth Amendment to the United States Constitution. Of course,
the denial of a defendant’s motion to substitute counsel implicates the Sixth
Amendment. (People v. Hart (1999) 20 Cal.4th 546, 603.) Although it is unclear
1
These cases were not cited to the trial court, but we would not expect a
criminal defendant who raises a Marsden motion pro se to support his motion
armed with such legal authority.
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whether defendant preserved this federal constitutional claim at trial, we assume
for purposes of argument that he did. (Cf. People v. Partida (2005) 37 Cal.4th
428, 435-436.) “On direct review of the refusal to substitute counsel, the Ninth
Circuit Court of Appeals considers ‘the following three factors: “(1) timeliness of
the motion; (2) adequacy of the court’s inquiry into the defendant’s complaint; and
(3) whether the conflict between the defendant and his attorney was so great that it
resulted in a total lack of communication preventing an adequate defense.” ’
[Citations.] It found, and we agree, that these elements are consistent with
California law under People v. Marsden, supra, 2 Cal.[3d] 118, and its progeny.”
(People v. Smith, supra, 30 Cal.4th at pp. 606-607.)
Defendant’s Marsden motion was timely made, and as we explained, ante,
the trial court’s inquiry into the grounds of defendant’s dissatisfaction with
counsel was more than adequate. More importantly, the alleged conflict between
defendant and his defense counsel was not so serious that we must conclude
communication between them had become so poisoned defendant was effectively
denied his right to counsel. These facts distinguish defendant’s cited legal
authority. For example, in U. S. v. Walker (9th Cir. 1990) 915 F.2d 480,2 “the
district court made virtually no attempt to discover the causes underlying [the
defendant’s] dissatisfaction with his attorney” (Walker, at p. 483), although the
defendant “ ‘made a prima facie showing of an irreconcilable conflict between
himself and his appointed attorney’ ” (id. at p. 484). Similarly, in U. S. v. Adelzo-
Gonzalez (9th Cir. 2001) 268 F.3d 772, there were “striking signs of a serious
conflict” (id. at p. 778), yet the district court did not “ascertain the extent of a
2
U. S. v. Walker, supra, 915 F.2d 480, was overruled on another ground in
U. S. v. Nordby (9th Cir. 2000) 225 F.3d 1053, 1059.
15
breakdown in communication by asking specific and targeted questions” (id. at
p. 777). Finally, in Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, the federal
appellate court concluded the state court that entertained the defendant’s Marsden
motion made “no adequate inquiry into the cause of [the defendant’s]
dissatisfaction with his counsel” (id. at p. 1169).
Because the trial court here undertook a sufficiently searching inquiry into
the bases of defendant’s dissatisfaction with counsel, and defendant’s relationship
with counsel was not so irreparably damaged that he was denied the right to
counsel, we reject defendant’s claim the trial court’s denial of his Marsden motion
violated his federal constitutional right to counsel.
2. Admonishments to Jurors During Voir Dire
Invited to address the prospective jurors, the prosecutor, after some
preliminary remarks, said: “My sole question is[,] are you sure that if we reach [a
penalty phase] of this trial you can then give equal weight to the two separate
penalties? That is going to be my question. [¶] . . . [¶]
“Has anyone, during the time—even during this questioning since the time
you filled out these questionnaires—there is nothing wrong with saying it. If you
feel comfortable outside of the presence of this group, you can say it in that
manner. If you want to just say it now, if you have changed your mind, do you all
promise me that you will let the court know before you are sworn in as a juror,
before we try this case and you hear all the evidence?
“And then we reach a certain verdict and at the penalty phase as a
prosecutor I am standing and talking to a group of jurors and someone says, you
know, now that I am here at the door . . . I don’t want it, I can’t, I have a
conscientious objection to doing this.
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“Will all of you promise me if you change your mind before you are sworn
in as a juror, if you decide you cannot make that decision, will you notify the
court? Does everyone agree to that?” (Italics added.)
All the prospective jurors answered in the affirmative.
The prosecutor continued: “Has anyone changed their mind? Do they feel
that if we get to the penalty phase of this trial and you have to go into that jury
room and sit with people and you have to make two choices, you can’t say, well,
my card says reserve, I could go for the lesser, I could go for that life without
thing. You have to give the weight to the evidence as the penalty phase goes.
“Does any [juror] here feel maybe that they cannot, they have a
conscientious objection to voting for death? Does anyone?” (Italics added.)
The jurors answered in the negative.
“But everybody does promise me if you change your mind between now
and the time you are actually sworn in, you will notify the court that you have
given this some thought? Everybody promises that?” The jurors answered in the
affirmative.
The trial court then added: “Let me reiterate that last point and I want you
to promise me if you change your mind and get to the point where you say I can’t
be a juror who can choose, as I said at the beginning, let me know.”
Defendant contends that, by these comments, the prosecutor improperly
extracted a one-sided promise from the jurors to notify the trial court if, after being
selected to serve, any juror decided he or she could not vote for the death penalty,
but did not similarly ask the jurors to notify the court if anyone decided he or she
could not vote for life imprisonment. Defendant further contends the trial court
revealed its lack of impartiality by supporting the prosecutor’s statement. We
disagree.
17
“It is, of course, well settled that the examination of prospective jurors
should not be used ‘ “to educate the jury panel to the particular facts of the case, to
compel the jurors to commit themselves to vote a particular way, to prejudice the
jury for or against a particular party, to argue the case, to indoctrinate the jury, or
to instruct the jury in matters of law.” ’ ” (People v. Fierro, supra, 1 Cal.4th at
p. 209, quoting People v. Williams (1981) 29 Cal.3d 392, 408.)
At the threshold, we find defendant forfeited this claim by failing to object.
(People v. Visciotti (1992) 2 Cal.4th 1, 47-48 [failure to object forfeited challenge
to prosecutorial questioning during voir dire].) To the extent defendant
characterizes his claim as one of prosecutorial misconduct, we reach the same
conclusion. (People v. Hill (1998) 17 Cal.4th 800, 820.)3 Although defendant
correctly argues this court retains inherent discretion to entertain the issue despite
this forfeiture (see People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6), he
presents no persuasive reason to do so.
Were we to address the merits of the claim, we would find no error. The
prosecutor merely asked the jurors to inform the trial court if, after having filled
out the juror questionnaires and undergoing voir dire, they developed a
conscientious objection to the death penalty or found they could not weigh the
3
We similarly reject defendant’s claim that his trial counsel was ineffective
for failing to object and preserve the issue for appellate review. “Failure to object
rarely constitutes constitutionally ineffective legal representation.” (People v.
Boyette (2002) 29 Cal.4th 381, 424.) “If the record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged, an appellate claim of
ineffective assistance of counsel must be rejected unless counsel was asked for an
explanation and failed to provide one, or there simply could be no satisfactory
explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)” (People v.
Gray (2005) 37 Cal.4th 168, 207.) Here, counsel may well have declined to object
so that he could mention the same issue when he addressed the jury.
18
evidence of aggravating and mitigating circumstances. He did not attempt to
indoctrinate the jury or slant its perception of the appropriate penalty for the case.
The prosecutor’s comments were no different than defense counsel’s comments,
asking each prospective juror to affirm they could vote for life imprisonment if
they found the mitigating evidence outweighed the aggravating evidence.
We addressed a similar issue in People v. Carpenter (1997) 15 Cal.4th 312.
In that case, “during final stages of jury selection, the court asked the entire
remaining jury panel whether anyone’s ‘attitude has changed toward serving on a
panel that may be called upon to assess a penalty in this case.’ One of the two
jurors raised her hand. The second sent the court a note saying, ‘After long,
careful thought, I know that I could not vote for the death penalty.’ Over defense
objection, the court and parties requestioned both individually. The court excused
them for cause because of their newly expressed views on the death penalty.” (Id.
at p. 358.) We found no error, explaining that much time had passed from the
initial voir dire and “it was reasonable to ask if anyone’s views had changed.”
(Ibid.) We find the situation in this case similar to that in Carpenter and
accordingly find the prosecutor did not improperly indoctrinate the jury.
To the extent defendant contends the prosecutor’s pretrial address to the
jury constituted misconduct, we reject that claim as well. “ ‘The applicable
federal and state standards regarding prosecutorial misconduct are well
established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects
the trial with such unfairness as to make the conviction a denial of due
process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under state law only if it
involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.” ’ ” ’ ” (People v. Hill, supra, 17 Cal.4th at p. 819; see
19
People v. Stanley (2006) 39 Cal.4th 913, 951.) Here, there was nothing deceptive,
reprehensible or unfair about the prosecutor’s comments to the jury, nor did he
attempt to get the jury to commit to vote for the death penalty before hearing all
the evidence. We conclude the prosecutor did not commit misconduct when he
addressed the jury before trial.
Defendant also argues he was deprived of his constitutional rights to a fair
trial, an impartial judge and “appropriate punishment” under the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution because the court’s
comment “reiterat[ing]” the prosecutor’s comments betrayed the court’s bias in
favor of the death penalty. Defendant failed to preserve a claim of judicial bias by
making a timely objection (People v. Harris (2005) 37 Cal.4th 310, 346), nor was
this the type of situation in which an objection would have been futile (People v.
Hill, supra, 17 Cal.4th at p. 820), as the court could have clarified its remarks in
response to a defense objection. In any event, as illustrated by our discussion of
the issue in People v. Carpenter, supra, 15 Cal.4th at page 358, the claim is
baseless because the trial court’s comments cannot reasonably be construed either
as expressing a bias in favor of the death penalty or as expecting the jury to return
a death verdict.
3. Excusal of Juror No. 21 for Cause
Defendant contends the trial court’s decision to excuse Juror No. 21 for
cause violated his constitutional rights to an impartial jury, to due process of law
and to a reliable penalty determination under the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, as well as sections 7, 15, 16 and 17
of article I of the California Constitution.
20
a. Facts
Prior to trial, the prospective jurors filled out detailed questionnaires and
the trial court and the parties conducted voir dire, questioning the prospective
jurors about their views. When questioned, Juror No. 21 affirmed he would not
automatically vote for life or death, would listen to the evidence and would weigh
the aggravating and mitigating evidence. He apparently hesitated in answering the
questions, however, prompting this exchange between the juror and the trial court:
“THE COURT: You are hesitating. I need to know why you are hesitating[.]
“[JUROR NO. 21]: Well, I have to be kind of honest, the death penalty, that
is kind of a gray issue with me I guess.
“THE COURT: What do you mean by that?
“[JUROR NO. 21]: (No audible response.)
“THE COURT: When you say it is a gray issue, what do you mean?
“[JUROR NO. 21]: Well, you know, I know the state—I am not against the
state law and everything like that, but I guess with me it would—you know, it
would just have to be with my own—I mean, my own convictions, I guess.”
The court then asked: “I need to know . . . if you are sitting on this jury
making the decision in the penalty phase, do you have some conscientious
objection to imposing the death penalty that might impair your ability to be fair
and impartial at that stage, that might cause you not to want to vote for the death
penalty no matter what the evidence showed?” Juror No. 21 answered: “Umm,
that is just kind of a hard thing for me to answer, you know.”
The court then asked: “Do you believe that you could, under any set of
circumstances, along with a group of eleven other people, vote to impose the
penalty of death on another human being if the evidence showed that that was the
appropriate penalty?” Juror No. 21 answered: “I guess I would have to say no.”
The court then declared a recess.
21
After the recess, the trial court spoke to the attorneys before the prospective
jurors were recalled to the courtroom, explaining:
“THE COURT: . . . [¶] This last juror who I was questioning . . . I am less
concerned with the specifics of what he is saying, although I mean what he is
saying is material, but I am concerned about his mental state, his competency.
“I mean, we are talking about twenty-, thirty-second lapses in responding to
questions and then I am not even sure that he is being responsive.
“I don’t know how counsel feel about him, but I am not sure—it seems to
me he may be somebody that we should consider for cause at this point before we
go any further.”
Defendant’s counsel objected to removing Juror No. 21 for cause.
The court responded: “Well, he has had a questionnaire which is in some
ways incomprehensible. It is filled with discussions of quasi-religious statements,
man’s sinful nature and rebellious[ness] towards God’s commands as the cause of
crime and so forth and on and on.”
The court then brought the prospective jurors back into the courtroom and
questioned Juror No. 21 further:
“THE COURT: Juror [No.] 21, anything further—have you thought—given
any further thought to the subjects we were discussing prior to the break and do
you have anything further that you would like to add regarding your feelings about
the death penalty?
“[JUROR NO. 21]: No, I—I guess I will just say, you know, I just have a
problem with it.
“THE COURT: Okay.”
Later in the hearing, outside the jury’s presence, the prosecutor challenged
Juror No. 21 for cause, explaining: “I think [Juror No.] 21 . . . made a comment
about his uncertainty on the death penalty or his failure—his unwillingness to
22
impose the death penalty, but he said [he] did . . . have a problem with it and I
interpret that to be that would prevent him or substantially impair him from
returning a verdict of death in this case.
“The court had noted something about his delayed answers. I don’t know if
the record will reflect that, that every time every death question he was asked he
hesitated, not just slow of speech, but has hesitation, because I think he was
reluctant to answer, and as I get the sum and substance of him, he would not
follow, if he gets in that jury room he would not be willing to impose the death
penalty.”
Defense counsel opposed the challenge, explaining: “[Juror No. 21] is a
Christian, but he does—he doesn’t have any feelings about the death penalty. He
says it is not much—when he is asked about the death penalty: [¶] ‘I don’t have a
good answer on this issue. What is important, that the condemned person receives
Jesus Christ.’ [¶] He may be more of a religious fanatic but he certainly doesn’t
say he is against the death penalty. I think his problem is he is slow. He is a lower
I.Q. probably of the majority of the population that we have here in our jurors.
I don’t think that disqualifies him. I think he answered each and every one of the
questions. There is a lot of misspelling in here which reflects probably his low
education level, but I don’t think that is enough to disqualify him.”
The trial court granted the prosecutor’s challenge for cause, explaining:
“My view is that [Juror No. 21’s] questionnaire was . . . evasive. I think he is slow
to answer because he doesn’t want to answer. I think that perhaps there may be
some embarrassment, I don’t know what the motive is, I can’t peer into his mind,
but it appears to me that from his answers that he has views that would
substantially impair his ability to judge the question of the penalty and to apply the
legal standard that he must apply. [¶] And therefore I am going to grant the
motion to excuse him for cause.”
23
b. Discussion
In Wainwright v. Witt (1985) 469 U.S. 412, the United States Supreme
Court set forth the applicable law for excusing jurors in capital cases due to their
views on capital punishment. “That case ‘requires a trial court to determine
“whether the juror’s views would prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath.”
[Citation.] “Under Witt, therefore, our duty is to ‘examine the context surrounding
[the juror’s] exclusion to determine whether the trial court’s decision that [the
juror’s] beliefs would “substantially impair the performance of [the juror’s] duties
. . .” was fairly supported by the record.’ ” [Citations.] [¶] In many cases, a
prospective juror’s responses to questions on voir dire will be halting, equivocal,
or even conflicting. Given the juror’s probable unfamiliarity with the complexity
of the law, coupled with the stress and anxiety of being a prospective juror in a
capital case, such equivocation should be expected. Under such circumstances, we
defer to the trial court’s evaluation of a prospective juror’s state of mind, and such
evaluation is binding on appellate courts.’ ” (People v. Roldan, supra, 35 Cal.4th
at p. 696; Uttecht v. Brown (June 4, 2007, No. 06-413) __ U.S. __, __ [2007 WL
1582998] [emphasizing the deference owed to the trial court’s ruling in this
context].) “ ‘There is no requirement that a prospective juror’s bias against the
death penalty be proven with unmistakable clarity. [Citations.] Rather, it is
sufficient that the trial judge is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law in the case before
the juror.’ [Citation.] ‘Assessing the qualifications of jurors challenged for cause
is a matter falling within the broad discretion of the trial court.’ ” (People v. Gray,
supra, 37 Cal.4th at pp. 192-193.)
No abuse of discretion appears. Although Juror No. 21 initially answered
the general questions about capital punishment appropriately, that changed when
24
he was questioned more specifically, and he stated he could not vote to sentence
someone to death. He affirmed that opinion after a recess had given him some
time to think about his views about capital punishment. More significantly, Juror
No. 21 hesitated 20 to 30 seconds before answering each question about the death
penalty, which the trial court reasonably concluded was due to the juror’s desire
not to answer the question at all. This assessment of the juror’s state of mind is
binding on this court. (People v. Roldan, supra, 35 Cal.4th at p. 696.) In short,
we find the trial court was well within its broad discretion in granting the
challenge to Juror No. 21 for cause.
4. Cumulative Effect of Alleged Juror Selection Errors
We further reject defendant’s claim that the cumulative effect of errors
committed during jury selection prejudiced him, on the ground that the trial court
did not err in admonishing the jurors or granting the for-cause challenge of Juror
No. 21.
C. Trial Issues
1. Exclusion of Vieyra’s Prior Sex Crimes
On learning that codefendant Vieyra intended to testify, defendant moved
to admit evidence of Vieyra’s prior contacts with law enforcement, characterizing
them as: (1) a 1973 juvenile adjudication for forcible rape; (2) a 1977 arrest for
unlawful sexual intercourse with a minor; (3) 1986 arrests for unlawful intercourse
and sexual battery, apparently for the same incident, which charges were
dismissed; and (4) a 1991 conviction for petty theft with a prior for an incident
that may have involved indecent exposure. Defense Counsel Bestard asserted that
these prior incidents were admissible to prove identity, that is, that Vieyra and not
defendant was more likely to have been the one to sodomize the victim. The court
took the matter under advisement and then issued a tentative ruling, explaining
25
that defendant’s characterization of Vieyra’s prior contacts with the judicial
system was inaccurate. The court stated it had “reviewed the Probation
Department’s pre-plea report regarding defendant Vieyra” and found only one
prior conviction for a sex crime: a 1973 juvenile adjudication for attempted
unlawful intercourse with a minor. There was no indication in the record this
offense involved force. Further, the court found “no evidence of any other sex
crime charges, let alone convictions, against defendant Vieyra.” The court
tentatively ruled this 1973 incident was too remote to be admissible to prove
identity pursuant to People v. Ewoldt (1994) 7 Cal.4th 380 and People v. Balcom
(1994) 7 Cal.4th 414 and noted that, although it need not reach the question
whether the evidence should be excluded under Evidence Code section 352, the
prior juvenile adjudication bore little resemblance to the crime in this case and “is
of very little if any probative value and would create a risk of substantial prejudice
to defendant Vieyra.”
The parties addressed the trial court’s tentative ruling at a hearing held on
September 30, 1997. The court noted it “went back to the probation pre-plea
report and went through their history with . . . a fine tooth comb and found only
one sex crime, 1973.” Defense Counsel Bestard asserted that he had “indicated to
the court that most of these were arrests and police reports on the subject”; he did
not, at that time, seek to introduce any evidence suggesting any other law
enforcement contacts Vieyra may have had that involved sexual crimes. Bestard
then argued the evidence was nevertheless admissible to rebut Vieyra’s evidence
of good character, as impeachment and to prove identity.
The trial court explained: “We have got a single conviction which is not
enough under [Evidence Code section 1101, subdivision (b)] to establish any of
the grounds for admissibility that would be permitted by the California Supreme
Court, and as I indicated, I don’t think it even gets to [Evidence Code section] 352
26
[because] I don’t think . . . it is enough to show intent, common scheme or plan,
certainly not identity, and under Evidence Code section 1108, you still have to do
[an Evidence Code section] 352 analysis even though you can now use it to prove
propensity, and that just isn’t there, so we are really down to the question of what
can we use to impeach.” The court then ruled that Vieyra could be impeached
with his 1985 conviction for violating Penal Code section 273.5 (corporal injury to
a spouse), as well as a 1991 prior felony conviction for theft, finding both were
crimes involving moral turpitude. The trial court later affirmed its tentative ruling.
Defendant contends the trial court erred under state law by excluding
Vieyra’s prior contacts with law enforcement and also characterizes the error as
one of federal constitutional magnitude, contending he was denied his
constitutional right to present a defense. At the threshold, he argues the trial court
was wrong in finding Vieyra’s only contact with law enforcement was the 1973
juvenile adjudication, claiming “defense attorney Bestard was correct and the
court was wrong regarding the extent of multiple sex crime contacts.” In support,
defendant cites several certified documents with which the appellate record has
been augmented.
The augmented documents reveal that Vieyra had multiple police contacts
through the years, including several for drug abuse, spousal abuse, obstruction of
justice, vehicle tampering and misdemeanor burglary. Other than his 1973
juvenile adjudication for attempted unlawful sexual intercourse with a minor,
however, none of the other offenses of a sexual nature for which he was arrested
led to a conviction or other disposition.4 More to the point, nothing indicates these
4
The records show: (1) Vieyra was arrested in 1977 for lewd conduct with a
minor, but was not prosecuted for that charge, although the incident may have led
to a revocation of parole; (2) he was again arrested in 1986 for sexual battery and
(footnote continued on next page)
27
records were available to the trial court or were provided by defense counsel. We
thus cannot conclude the trial court erred in finding Vieyra had only the one 1973
adjudication for a crime of a sexual nature.
Although defendant offered codefendant Vieyra’s adjudication of a prior
sex crime as evidence of identity, i.e., to show that it was Vieyra who sodomized
and killed the victim, the trial court did not abuse its discretion in excluding the
evidence under Evidence Code section 1101. The law is clear and well settled.
“Evidence Code section 1101, subdivision (b) provides in pertinent part that
evidence of other crimes is admissible ‘when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident . . .) other than [the defendant’s] disposition to commit such an
act.’ ‘ “Evidence of the defendant’s commission of a crime other than one for
which the defendant is then being tried is not admissible to show bad character or
predisposition to criminality but it may be admitted to prove some material fact at
issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of
other crimes may be highly inflammatory, its admissibility should be scrutinized
with great care. [Citation.]” [Citation.] In cases in which [a party] seeks to prove
the defendant’s identity as the perpetrator of the charged offense by evidence he
had committed uncharged offenses, admissibility “depends upon proof that the
charged and uncharged offenses share distinctive common marks sufficient to
raise an inference of identity.” ’ [Citation.] ‘A somewhat lesser degree of
similarity is required to show a common plan or scheme and still less similarity is
(footnote continued from previous page)
unlawful sexual intercourse, but the charges were dismissed; and (3) he was
arrested in 1991 for petty theft and indecent exposure, but was sentenced for only
the theft offense.
28
required to show intent. (People v. Ewoldt[, supra,] 7 Cal.4th [at pp.] 402-403.)
On appeal, we review a trial court’s ruling under Evidence Code section 1101 for
abuse of discretion.’ ” (People v. Gray, supra, 37 Cal.4th at p. 202.)
Given that Vieyra’s sole sex-related conviction was a juvenile adjudication
for attempted unlawful intercourse with a minor occurring more than 20 years
before the trial, the trial court was rightly concerned about the remoteness of the
offense. (People v. Branch (2001) 91 Cal.App.4th 274, 282 [court should evaluate
the “remoteness in time of the uncharged offenses”].) Although defendant argues
the remoteness of the 1973 adjudication was mitigated by the fact Vieyra was
incarcerated for much of his adult life, the records actually show he was in and out
of custody often enough to accumulate an impressive number of arrests and other
police contacts through the intervening years. Thus, despite Vieyra’s time in
custody, the trial court was legitimately concerned with the remoteness of the
adjudication.5
Apart from the age of the prior adjudication, another more compelling
reason exists to support the trial court’s decision: Vieyra’s prior juvenile offense
appears completely different from those of the crime here, namely, the sodomizing
and murder of an older woman. “ ‘For identity to be established, the uncharged
misconduct and the charged offense must share common features that are
sufficiently distinctive so as to support the inference that the same person
committed both acts. [Citation.] “The pattern and characteristics of the crimes
must be so unusual and distinctive as to be like a signature.” ’ (People v. Ewoldt,
5
Although defendant argues the trial court erred in excluding the evidence
on grounds of remoteness because the evidence was admissible at the penalty
phase, the trial court excluded it only for the guilt phase and defendant remained
free to seek its admission at the penalty phase.
29
supra, 7 Cal.4th at p. 403.) ‘The highly unusual and distinctive nature of both the
charged and uncharged offenses virtually eliminates the possibility that anyone
other than the defendant committed the charged offense.’ (People v. Balcom[,
supra,] 7 Cal.4th [at p.] 425.)” (People v. Gray, supra, 37 Cal.4th at p. 203, italics
added.) Because the prior crime, though sexual in nature, was so different from
the present crime, the inference that the person who attempted to have sex with a
minor more than 20 years earlier was likely to be the person who sodomized and
killed the 68-year-old victim here is weak. We would reach the same conclusion
even if we considered Vieyra’s past arrests for attempting to have sex with minors
and indecent exposure. Accordingly, the trial court did not abuse its discretion
under Evidence Code section 1101 by excluding evidence of Vieyra’s past sex-
related criminal activity, which defendant offered to prove identity.
We reach a similar conclusion with regard to Evidence Code section 1108.
Subdivision (a) of that section provides: “In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s commission
of another sexual offense or offenses is not made inadmissible by Section 1101, if
the evidence is not inadmissible pursuant to Section 352.” Regarding the purpose
of this section, we explained in People v. Falsetta (1999) 21 Cal.4th 903, 911, that
“the Legislature enacted section 1108 to expand the admissibility of disposition or
propensity evidence in sex offense cases.” Moreover, “[a]vailable legislative
history indicates section 1108 was intended in sex offense cases to relax the
evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to
assure that the trier of fact would be made aware of the defendant’s other sex
offenses in evaluating the victim’s and the defendant’s credibility. In this regard,
section 1108 implicitly abrogates prior decisions of this court indicating that
‘propensity’ evidence is per se unduly prejudicial to the defense.” (Ibid.)
30
Addressing Evidence Code section 1108, Falsetta explained: “Rather than
admit or exclude every sex offense a defendant commits, trial judges must
consider such factors as its nature, relevance, and possible remoteness, the degree
of certainty of its commission and the likelihood of confusing, misleading, or
distracting the jurors from their main inquiry, its similarity to the charged offense,
its likely prejudicial impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less prejudicial alternatives
to its outright admission, such as admitting some but not all of the defendant’s
other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th at p. 917, italics
added.)
As the trial court found when ruling on the Evidence Code section 1101
question, the lack of similarity between Vieyra’s 1973 adjudication and the present
crimes justified exclusion of the evidence. This conclusion is bolstered by the
remoteness of the 1973 adjudication. We cannot say the trial court abused its
discretion in excluding the 1973 juvenile adjudication as proof of Vieyra’s
propensity, especially when we consider the court permitted his impeachment with
two prior crimes of moral turpitude. The jury was thus not unaware of his
checkered past.
We also reject defendant’s subsidiary claim that the trial court erred in
excluding the evidence because it comprised evidence of third party culpability.
Although defendant is correct that he has a right to present evidence that some
other person committed the crime for which he is charged,6 he overlooks that such
evidence must be otherwise admissible. He cites no authority, and we have found
6
We address the issue of third party culpability post, in part I.C.4.c.
31
none, holding that the right to present evidence of third party culpability allows
admission of otherwise inadmissible evidence. As we have concluded the trial
court did not abuse its discretion in excluding the evidence under Evidence Code
sections 1101 and 1108, we reject the claim defendant was entitled to present
inadmissible evidence suggesting Vieyra sodomized and killed the victim.
Having found no state law error, we also reject defendant’s federal
constitutional claim. Citing Washington v. Texas (1967) 388 U.S. 14, Webb v.
Texas (1972) 409 U.S. 95, Chambers v. Mississippi (1973) 410 U.S. 284, and
other cases from the high court, defendant contends the exclusion of Vieyra’s past
sex-related juvenile adjudication and arrests for similar crimes violated his federal
constitutional right to present a defense. Defendant’s argument fails to account for
the general rule that the application of the ordinary rules of evidence under state
law do not violate a criminal defendant’s federal constitutional right to present a
defense, because trial courts retain the intrinsic power under state law to exercise
discretion to control the admission of evidence at trial. (People v. Lawley (2002)
27 Cal.4th 102, 155.) As one appellate court observed: “Preventing and dealing
with crime is more the business of the states than of the federal government.
Accordingly, the state has power to regulate the procedures under which its laws
are carried out, and a rule of evidence in this regard ‘is not subject to proscription
under the Due Process Clause unless “it offends some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as
fundamental.” [Citations.]’ ” (People v. Fitch (1997) 55 Cal.App.4th 172, 178-
179, quoting Patterson v. New York (1977) 432 U.S. 197, 201-202.)
This general rule will give way in extraordinary and unusual circumstances,
but such was not the case here. In this case, defendant was able to impeach Vieyra
with some of his prior crimes, but was not allowed to present evidence of Vieyra’s
more than two decades old sex crime. We cannot say the excluded evidence was
32
“so vital to the defense that due process principles required its admission.
[Citations.] Although the high court in Chambers determined that the combination
of state rules resulting in the exclusion of crucial defense evidence constituted a
denial of due process under the unusual circumstances of the case before it, it did
not question ‘the respect traditionally accorded to the States in the establishment
and implementation of their own criminal trial rules and procedures.’ (Chambers
v. Mississippi, supra, 410 U.S. at pp. 302-303.)” (People v. Cornwell (2005) 37
Cal.4th 50, 82.) The exclusion of evidence in this case under Evidence Code
sections 1101 and 1108 was a garden-variety evidentiary issue under state law and
did not implicate defendant’s federal constitutional right to present a defense. The
trial court’s discretionary ruling excluding the evidence did not violate defendant’s
constitutional right to present a defense.
2. Alleged Insufficient Evidence
Defendant contends his felony convictions for murder, robbery, sodomy,
burglary and grand theft, as well as all the special circumstance allegations, are not
supported by sufficient evidence. The law is clear and well settled. “On appeal
we review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (People v. Johnson
(1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-
320.) The standard of review is the same in cases in which the People rely mainly
on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.)
‘Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the appellate
33
court which must be convinced of the defendant’s guilt beyond a reasonable
doubt. “ ‘If the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.’ ”
[Citations.]’ (Id. at pp. 932-933.) ‘ “Circumstantial evidence may be sufficient to
connect a defendant with the crime and to prove his guilt beyond a reasonable
doubt.” ’ ” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
a. Murder, sodomy and sodomy-murder special circumstance
Defendant contends his convictions for murder and forcible sodomy and the
sodomy-murder special-circumstance finding must be reversed for insufficient
evidence because they are based solely on the uncorroborated testimony of
codefendant Vieyra, an accomplice. Section 1111 provides: “A conviction can
not be had upon the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the commission of the
offense; and the corroboration is not sufficient if it merely shows the commission
of the offense or the circumstances thereof. [¶] An accomplice is hereby defined
as one who is liable to prosecution for the identical offense charged against the
defendant on trial in the cause in which the testimony of the accomplice is given.”
Accordingly, the jury was instructed: “You cannot find a defendant guilty
based upon the testimony of an accomplice unless that testimony is corroborated
by other evidence that tends to connect such defendant with the commission of the
offense.” The jury was further instructed: “To corroborate the testimony of an
accomplice as to the guilt of a codefendant, there must be evidence of some act or
fact related to the crime which, if believed, by itself and without any aid,
interpretation or direction from the testimony of the accomplice, tends to connect
the defendant with the commission of the crime charged. [¶] However, it is not
34
necessary that the evidence of corroboration be sufficient in itself to establish
every element of the crime charged or that it corroborate every fact to which the
accomplice testifies.”
The instructions accurately reflect the applicable law. “The corroborating
evidence may be circumstantial or slight and entitled to little consideration when
standing alone, and it must tend to implicate the defendant by relating to an act
that is an element of the crime. The corroborating evidence need not by itself
establish every element of the crime, but it must, without aid from the
accomplice’s testimony, tend to connect the defendant with the crime. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1128.) The trier of fact’s determination on the
issue of corroboration is binding on the reviewing court unless the corroborating
evidence should not have been admitted or does not reasonably tend to connect the
defendant with the commission of the crime.” (People v. McDermott (2002) 28
Cal.4th 946, 986; People v. Gurule (2002) 28 Cal.4th 557, 628.) Thus, to the
extent defendant argues that evidence corroborating Vieyra’s testimony must be
substantial, he is mistaken.
There is no doubt the victim was sodomized and killed. Vieyra testified he
was with defendant when defendant fought with the victim. He claimed he opened
the door and saw defendant straddling his mother on the floor and saw a white
cloth around her neck. A few minutes later, defendant emerged from the bedroom
and told Vieyra “estuvo” (“it is done”). The two of them then took several items
from the victim’s room, loaded them into her car and went to sell them. Vieyra
claimed that, prior to the crime, he heard defendant express his desire to kill his
mother because she had given him up to be raised by someone else when he was a
child.
Although defendant concedes the victim was sodomized and killed, he
contends that apart from Vieyra’s uncorroborated testimony, there was no
35
evidence identifying him as the assailant. We disagree. All the critical aspects of
Vieyra’s testimony were corroborated. Police found the victim with a white sock
wrapped tightly around her neck. Chachi, one of victim Loza’s children who lived
with her, testified that on the evening of March 15, 1996, defendant and Vieyra
came to see Loza. Chachi heard defendant and Loza arguing and heard Loza
scream. Later, he heard someone start Loza’s car and drive off. Both Candina
Bravo and Gabriel Arce testified that, in the days before the murder, they heard
defendant state he wished to kill the victim. This evidence corroborates Vieyra’s
testimony on the issue of the killer’s identity.
The authorities defendant cites in support are distinguishable. In People v.
Martinez (1982) 132 Cal.App.3d 119, 133, the purported corroborating evidence
“did nothing more than show ‘the commission of the offense or the circumstances
thereof.’ ” Similarly, in both People v. Valardi (1966) 240 Cal.App.2d 98 and
People v. Lloyd (1967) 253 Cal.App.2d 236, the only evidence tending to
corroborate an accomplice’s testimony was proof the defendants were present at
the scene. By contrast, evidence aside from Vieyra’s testimony established more
than defendant’s mere presence at the scene of the crime. The evidence showed
he fought and argued with the victim, the manner of killing (the sock), and his
preexisting desire to kill the victim. This evidence—all obtained from sources
other than Vieyra—tends to prove, directly or circumstantially, that defendant was
the person who sodomized and killed the victim. Contrary to defendant’s
suggestion, the corroborating evidence need not independently establish the
identity of the victim’s assailant. (People v. McDermott, supra, 28 Cal.4th at
p. 986 [“corroborating evidence need not by itself establish every element of the
crime”].)
There being ample evidence corroborating Vieyra’s testimony, we find his
testimony was properly admitted and provided substantial evidence identifying
36
defendant as the person who committed the murder and sodomy. We thus reject
the claim there was insufficient evidence of murder, sodomy or the sodomy-
murder special circumstance.
b. Robbery and robbery-murder special circumstance
Defendant contends his conviction for robbery and the robbery-murder
special-circumstance finding must be reversed for insufficient evidence, relying on
several theories. First, he argues the evidence was insufficient that he formed the
intent to steal before or during the application of force to the victim. (People v.
Yeoman (2003) 31 Cal.4th 93, 129.) We disagree. Candina Bravo testified that,
just hours before the murder, defendant asked her for money. According to
Gabriel Arce, defendant’s practice when the victim refused his requests for money
was just to take it from her purse. That defendant, immediately after killing the
victim, stole several items from her home and then offered them for sale to
Leonard Mercado, is also relevant circumstantial evidence of his intent at the time
of the murder. “Although the evidence is circumstantial, the intent required for
robbery . . . is seldom established with direct evidence but instead is usually
inferred from all the facts and circumstances surrounding the crime.” (People v.
Lewis (2001) 25 Cal.4th 610, 643.) We conclude substantial evidence supports the
jury’s implied finding that defendant harbored the intent to steal before or during
the murder.
Second, defendant argues the evidence was insufficient he stole the
victim’s property by means of force or fear. The crime of robbery, of course, “is
the felonious taking of personal property in the possession of another, from his
person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211, italics added.) Because the victim was already dead when
he took her property, defendant argues, he cannot be found to have stolen from her
37
“by means of force or fear.” The point is meritless. “[I]t is settled that a victim of
robbery may be unconscious or even dead when the property is taken, so long as
the defendant used force against the victim to take the property.” (People v.
Jackson (2005) 128 Cal.App.4th 1326, 1330, citing People v. Frye (1998) 18
Cal.4th 894, 956.) There is no requirement a victim be aware that someone was
taking his or her property. (Jackson, at p. 1330.) It was defendant who applied
the force to this victim, and substantial evidence was presented to show that he did
so with the intent to steal. We thus reject his arguments.
Third, defendant argues there was insufficient evidence he removed the
victim’s property “from [her] person or immediate presence.” (§ 211.) “The
generally accepted definition of immediate presence . . . is that ‘ “[a] thing is in the
[immediate] presence of a person, in respect to robbery, which is so within his
reach, inspection, observation or control, that he could, if not overcome by
violence or prevented by fear, retain his possession of it.” ’ ” (People v. Hayes
(1990) 52 Cal.3d 577, 626-627.) This element was satisfied by evidence
defendant took electronic equipment from the victim’s bedroom, the same location
in which she was killed. Moreover, even taking her car or items from another
bedroom would qualify: “The zone of immediate presence [for purposes of
robbery] includes the area ‘within which the victim could reasonably be expected
to exercise some physical control over his property.’ ” (People v. Webster (1991)
54 Cal.3d 411, 440; see People v. Holt (1997) 15 Cal.4th 619, 675 [although
victim was killed in the bedroom, items in her kitchen were in her “immediate
presence” for robbery purposes].)
We also reject as unsupported defendant’s further argument that the items
he took were not in the victim’s immediate presence because “[a] deceased
individual is no longer a person and therefore cannot have actual or constructive
possession of property.” To the contrary, “[w]hile it may be true that one cannot
38
rob a person who is already dead when one first arrives on the scene, one can
certainly rob a living person by killing that person and then taking his or her
property.” (People v. Navarette (2003) 30 Cal.4th 458, 499.)
In sum, we find sufficient evidence to support defendant’s conviction for
robbery and the robbery-murder special circumstance.
c. Burglary and burglary-murder special circumstance
Defendant contends his two convictions for burglary and the burglary-
murder special-circumstance finding must be reversed for insufficient evidence.
He relies on two theories. First, he argues the evidence was insufficient that he
formed the intent to steal before he entered either the victim’s home, her bedroom
or Carlon’s bedroom. We disagree. Intent to steal is often proved by
circumstantial evidence (People v. Johnson (1993) 6 Cal.4th 1, 36, overruled on
another ground in People v. Rogers (2006) 39 Cal.4th 826, 879), and this case is
no different. Here, substantial evidence showed defendant intended to commit a
theft-related offense at the time he entered his mother’s home. Candina Bravo
testified defendant asked her for money shortly before the crimes and that
defendant had, in the past, clashed with his mother over money. Defendant’s
possession and subsequent sale of goods stolen from the victim’s home shortly
after the crimes is strong circumstantial evidence that he harbored the intent to
commit larceny when he entered her home. (People v. Yeoman, supra, 31 Cal.4th
at p. 131.) Moreover, “[t]here is no better proof that [defendant] entered the
[victim’s house] with intent to commit robbery than a showing he did in fact
commit robbery after his entry.” (People v. Du Bose (1970) 10 Cal.App.3d 544,
551.)
Second, defendant contends that because he lived with the victim, there was
insufficient evidence of burglary because one “cannot be guilty of burglarizing his
39
own residence.” He is correct as a general matter (People v. Davis (1998) 18
Cal.4th 712, 721; People v. Gauze (1975) 15 Cal.3d 709), but even assuming he
lived with the victim, the charge was not limited to entry into the victim’s home.
The second amended information charged defendant in count 4 with entering “an
inhabited dwelling house . . . and inhabited portion of a building occupied by
BEATRICE LOZA.” (Italics added.) It similarly charged him in count 5 with
entering “an inhabited dwelling house . . . and inhabited portion of a building
occupied by SUZIE [sic] CARLON.” (Italics added.) The wording of the
information is consistent with section 459, which provides in pertinent part:
“Every person who enters any house, room, apartment, . . . or other building . . .
with intent to commit grand or petit larceny or any felony is guilty of burglary.”
(Italics added.)
With regard to count 4, we conclude there was sufficient evidence
defendant burglarized his mother’s bedroom. Although the victim may have
permitted defendant to be in her home, a point we need not resolve,7 defendant
fought with the victim in her bedroom causing her to scream. When Chachi came
to see what was happening, defendant told him to return to his room. Defendant
then reentered the victim’s bedroom. The jury could have concluded that, under
the circumstances, defendant at that time lacked the victim’s consent to enter her
bedroom; that he may have had a possessory right to enter the home does not
7
Evidence was presented indicating the living arrangements at the victim’s
home were somewhat fluid. At the time of the crimes, she was allowing defendant
and Vieyra to sleep in her spare room, although she asked defendant to leave
because she believed he had stolen money from her. He had previously lived in
the house and had previously been asked to leave. He did not have a key to the
house.
40
preclude a conviction for burglary on these facts. (See People v. Frye, supra, 18
Cal.4th at p. 954.)
With regard to count 5, Carlon testified that on returning to the house, the
lock on her bedroom door had been broken and her electronic equipment had been
stolen. Consistent with her testimony, the prosecutor argued that “the minute
someone went into Susie Carlon’s bedroom with the intent to steal from her, they
are guilty of burglary.” As defendant broke into Carlon’s locked bedroom and
stole her electronic equipment, that he may have lived in the house is immaterial.
(People v. Wilson (1989) 208 Cal.App.3d 611 [invited guest who, without
permission, breaks into a locked bedroom commits burglary], cited with approval
in People v. Sparks (2002) 28 Cal.4th 71, 81.)
We thus conclude the evidence was sufficient to support both counts of
burglary. That being so, we also reject defendant’s claim there was insufficient
evidence to sustain the burglary-murder special circumstance. To the extent he
claims our interpretation of the law of burglary renders the special circumstance
unconstitutionally broad, such that it fails to perform the constitutionally required
narrowing function, we reject that as well. (See People v. Koontz (2002) 27
Cal.4th 1041, 1095 [§ 190.2 not unconstitutional “because of the breadth of the
felony-murder special circumstance”].)
d. Grand theft of a vehicle
Defendant contends his conviction for grand theft of a vehicle must be
reversed because there was insufficient evidence to show that he intended to
“steal” the car, i.e., that he intended permanently to deprive the victim of it. We
disagree.
Defendant was convicted of violating former section 487h, subdivision (a),
which in 1996 provided in pertinent part: “Every person who feloniously steals or
41
takes any motor vehicle . . . is guilty of grand theft.” (Stats. 1993, ch. 1125, § 6,
p. 6292; see now § 487, subd. (d).) The crime requires “the specific intent to
permanently deprive a person of property.” (People v. Ortega (1998) 19 Cal.4th
686, 693, overruled on another point in People v. Reed (2006) 38 Cal.4th 1224.)
Contrary to defendant’s argument, the evidence of his intent, though
circumstantial, was strong. He killed the owner of the car and then used it to ferry
his stolen goods to sell. As in People v. Moon (2005) 37 Cal.4th 1, 27, “[t]he
evidence defendant intended to deprive [the victim] of her car permanently was
overwhelming, and the evidence he merely intended to drive it temporarily and
then return it to her was virtually nonexistent. At the threshold, we note that
defendant killed [the car’s owner], indicating he did not intend to return the car to
her.”
Defendant asserts evidence the victim allowed him to drive the car and had,
in fact, loaned it to him the very day of her murder, demonstrates that he had
permission to drive the car. The evidence, coming from defendant himself, was
not adduced until the penalty phase of the trial, however, and thus was not before
the jury at the guilt phase. In any event, even by defendant’s own account, he did
not have permission to still be driving the victim’s car when he was arrested after
midnight. Coupled with evidence he killed the car’s owner, we conclude there
was sufficient evidence defendant did not intend to return the car to her.
e. Felony-murder special circumstances
In his final argument addressing the alleged insufficiency of the evidence,
defendant contends the evidence was insufficient to prove he killed the victim
“while . . . engaged in” the three target felonies of robbery, sodomy and burglary.
Section 190.2, subdivision (a) provides the penalty for first degree murder is either
life imprisonment without possibility of parole, or death, “if one or more of the
42
following special circumstances has been found . . . to be true: [¶] . . .
[¶] (17) The murder was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the immediate
flight after committing, or attempting to commit, the following felonies: [robbery,
sodomy, burglary].” (Italics added.) The information charged defendant in this
language, the jury was so instructed and the verdict reflects this language.
“[A] felony that is merely incidental to the murder cannot serve as the basis
for a felony-murder special circumstance” (People v. Gurule, supra, 28 Cal.4th at
p. 628), for the Legislature’s goal in implementing the death penalty law by
enacting the special circumstance scheme would not be achieved if a criminal
defendant could be made eligible for the death penalty where his intent is not to
commit an enumerated felony but is instead simply to kill, and the associated
felony was “merely incidental to the murder.” (People v. Green (1980) 27 Cal.3d
1, 61.)8 For example, a killer who takes the victim’s clothes so as to forestall later
identification of the victim and thus avoid responsibility for the murder (Green, at
p. 61) or a rapist-killer who takes a letter from his victim as a remembrance of his
rape (People v. Marshall (1997) 15 Cal.4th 1, 41) have not committed murder
“while engaged” in their felonies. For those who kill, however, we need not
discern their various mental states in too fine a fashion; a “concurrent intent to kill
and to commit an independent felony will support a felony-murder special
circumstance.” (People v. Barnett, supra, 17 Cal.4th at p. 1158.)
We conclude sufficient evidence exists to show defendant killed the victim
“while . . . engaged in” the commission of robbery and burglary. Evidence
8
People v. Green, supra, 27 Cal.3d 1, was overruled on other points by
People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3, and People v. Martinez
(1999) 20 Cal.4th 225, 241.
43
demonstrated that, on the day of the murder, defendant was in need of money,
having asked Candina Bravo for some. The victim had asked defendant to leave
her home because he had stolen money from her. Immediately after the victim
was killed, defendant and Vieyra took electronic equipment from her bedroom and
loaded it into her car. They then broke the lock on Carlon’s bedroom, entered and
removed more electronic equipment. They took the victim’s car without
permission and proceeded to sell the stolen goods. This behavior was not
incidental or ancillary to the murder, but amply demonstrates an independent
felonious purpose in support of the robbery- and burglary-murder special
circumstances.
We also conclude sufficient evidence exists to show defendant killed the
victim “while . . . engaged in” the commission of sodomy. Defendant expressed to
several witnesses his anger at, and hatred of, the victim, his biological mother, for
abandoning him and then denigrating the woman who raised him. The jury could
reasonably have inferred from this evidence that defendant wished to injure and
humiliate the victim before killing her in retaliation for those perceived injustices.
There is no suggestion defendant’s commission of this forced sex act against his
own mother was merely incidental to her murder.
Finally, defendant contends the three special circumstance findings must be
reversed because there was insufficient evidence of the underlying felonies
themselves. As we explained, ante, sufficient evidence supports defendant’s
convictions for robbery, burglary and sodomy. Accordingly, we reject this claim
as well.
3. Alleged Inconsistent Verdicts
Although defendant and Vieyra were charged with the same crimes and
tried jointly, the jury convicted Vieyra of only second degree murder, while it
44
convicted defendant of first degree murder with three special circumstances. Both
defendant and Vieyra were convicted of robbery, two counts of burglary and grand
theft auto, but Vieyra was acquitted of forcible sodomy. Vieyra was sentenced to
a term of 15 years to life in prison, which was doubled under the Three Strikes
law, creating a principal term of 30 years to life. He was also sentenced to various
terms for his other felonies and enhancements, bringing his aggregate term to 52
years to life in prison. Defendant was sentenced to death. Defendant contends
these verdicts are fatally inconsistent and thus violate the Eighth and Fourteenth
Amendments to the United States Constitution, requiring we reduce his murder
conviction to the second degree and vacate the penalty judgment.
The contention is meritless. The jury could reasonably have discerned a
difference between defendant’s and Vieyra’s relative culpability. Defendant many
times expressed his hatred of his mother, but Vieyra had no apparent dispute with
her and in fact described his relationship with her as “very close.” Although he
accompanied defendant to the victim’s home, Vieyra testified he was scared of
defendant, suggesting some degree of duress. Vieyra expressed remorse, had
volunteered to take a “blood or saliva” test to clear himself of the sodomy charge
and told police about the attempt to sell the stolen goods to Leonard Mercado.
The jury could thus have believed Vieyra’s culpability was less than defendant’s.
Notwithstanding the foregoing, we agree with defendant that Vieyra’s
conviction for second degree murder is puzzling. Having convicted him of
participating in the death of Loza and also of robbery and burglary, the jury should
have returned a verdict of first degree murder by application of the felony-murder
rule. But even assuming that the verdicts are inconsistent, defendant is not entitled
to relief on that basis. “ ‘It is . . . settled that an inherently inconsistent verdict is
allowed to stand; if an acquittal of one count is factually irreconcilable with a
conviction on another, or if a not true finding of an enhancement allegation is
45
inconsistent with a conviction of a substantive offense, effect is given to both.’ ”
(People v. Panah (2005) 35 Cal.4th 395, 490; People v. Avila (2006) 38 Cal.4th
491, 600.) The United States Supreme Court applies the same rule in the federal
courts. (United States v. Powell (1984) 469 U.S. 57.)
Defendant argues it is “clear from the verdicts that the jury chose to
disregard the law” and that it “exercise[d] some form of leniency towards Vieyra,
and consequently did not follow the law.” But, “[a]n inconsistency may show no
more than jury lenity, compromise, or mistake, none of which undermines the
validity of a verdict.” (People v. Lewis, supra, 25 Cal.4th at p. 656.)
Defendant cites no authority establishing that a state’s tolerance of
inconsistent verdicts violates a defendant’s constitutional rights. Although he cites
People v. Klingenberg (1996) 172 Ill.2d 270 [665 N.E.2d 1370, 1373-1376] for
that proposition, the Illinois Supreme Court later overruled Klingenberg (People v.
Jones (2003) 207 Ill.2d 122, 133 [797 N.E.2d 640, 647]) to “bring Illinois in line
with the majority of states that have concluded that” inconsistent verdicts do not
require relief. We conclude the verdicts, even if inconsistent, do not require that
we reduce defendant’s conviction for first degree murder to second degree murder
or vacate the sentence of death. We also reject his argument that failure to do so
will violate his constitutional rights.
4. Alleged Instructional Errors
a. Failure to instruct on theft as a lesser included offense
Defendant contends the trial court erred by failing to instruct the jury on
theft as a lesser included offense of robbery. He also contends this error was one
of constitutional dimension requiring reversal. We disagree and instead find no
error.
46
A criminal defendant has a constitutional right to have his or her jury
determine “every material issue presented by the evidence” and this includes the
right, where appropriate, to have the jury instructed on lesser included offenses.
(People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) “The state has no interest in a
defendant obtaining an acquittal where he is innocent of the primary offense
charged but guilty of a necessarily included offense. Nor has the state any
legitimate interest in obtaining a conviction of the offense charged where the jury
entertains a reasonable doubt of guilt of the charged offense but returns a verdict
of guilty of that offense solely because the jury is unwilling to acquit where it is
satisfied that the defendant has been guilty of wrongful conduct constituting a
necessarily included offense. Likewise, a defendant has no legitimate interest in
compelling the jury to adopt an all or nothing approach to the issue of guilt. Our
courts are not gambling halls but forums for the discovery of truth.” (People v. St.
Martin (1970) 1 Cal.3d 524, 533.)
Theft is a lesser included offense of robbery. (People v. Ortega, supra, 19
Cal.4th at p. 694.) Accordingly, the trial court would have been obligated to
instruct on theft as a lesser included offense of robbery, even in the absence of a
request (see People v. Hughes (2002) 27 Cal.4th 287, 365 [sua sponte duty]), if the
evidence had raised a question as to whether all of the elements of robbery were
present and if there was evidence that would have justified a conviction of the
lesser offense. (People v. Ramkeesoon, supra, 39 Cal.3d at p. 351.) Defendant
advances two theories that he claims demonstrate he was guilty only of theft.
First, he asserts the evidence showed he did not decide to steal the victim’s
property until after she was dead. (People v. Turner (1990) 50 Cal.3d 668, 688
[“when the intent to steal arose only after force was used, the offense is theft, not
robbery”].) We disagree. The prosecution’s theory of the case was that defendant
had a dual motivation for the crimes: he hated his mother for having him raised by
47
others, and he needed money. The second motivation is of course relevant to
robbery. The prosecution thus presented evidence that defendant was only
sporadically employed, often asked the victim for money, forcibly took money
from her purse when she refused and unsuccessfully solicited Candina Bravo for
money on the day of the crimes. The victim was also forcing defendant to move
from her home. Although the jury could have simply rejected the prosecution’s
evidence showing defendant’s motivation for killing the victim was money, “if
there is no proof, other than an unexplainable rejection of the prosecution’s
evidence, that the offense was less than that charged, such instructions [on lesser
included offenses] shall not be given.” (People v. Kraft (2000) 23 Cal.4th 978,
1063.) Because there was no reason why the jury would have rejected the
prosecution’s evidence and defendant presented no evidence that he decided to
steal only after the murder, there was no substantial evidence of after-acquired
intent and thus no factual predicate for instructing the jury on theft as a lesser
included offense.
Second, defendant claims that because he stole from a dead person and
dead people do not experience fear or respond to force, he can be guilty only of
theft and not robbery. (See People v. Kelly (1992) 1 Cal.4th 495, 529-530
[defendants’ testimony he found the victim’s rings in a garbage can and did not
kill her was sufficient to require instruction on theft as a lesser included offense of
robbery].) As we have explained, ante, the evidence showing defendant killed his
mother was strong, and he presented no evidence that he just happened upon the
victim after she was already dead. The fact, if it be one, that he did not take
anything from the victim before he killed her does not make the crime less than a
robbery so long as he harbored the intent to steal before he killed her. (People v.
Frye, supra, 18 Cal.4th at p. 956; People v. Jackson, supra, 128 Cal.App.4th at
p. 1330.) Although defendant claims the failure to instruct on theft left the jury
48
with an all-or-nothing choice, such a choice did not violate his rights because, on
the state of the evidence presented, the crime was either robbery or nothing.
Accordingly, the trial court did not err in failing to instruct on theft as a
lesser included offense.
b. Failure to instruct on involuntary manslaughter as a lesser
included offense
Defendant’s jury was instructed on first degree murder, second degree
murder and voluntary manslaughter. Defense counsel raised the issue of whether
defendant was intoxicated to the point of unconsciousness such that he would be
entitled to an instruction on involuntary manslaughter. Counsel conceded there
was no such evidence but argued the standard involuntary manslaughter
instruction should be modified to permit defendant’s intoxication to negate intent
to kill. The trial court said it would consider a proposed modification if counsel
would present one to the court, but counsel apparently let the matter drop, for the
proposed instruction was not mentioned again.
Defendant now argues the trial court erred by failing to instruct the jury on
involuntary manslaughter. Involuntary manslaughter is ordinarily a lesser offense
of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422.) “One commits
involuntary manslaughter either by committing ‘an unlawful act, not amounting to
a felony’ or by committing ‘a lawful act which might produce death, in an
unlawful manner, or without due caution and circumspection.’ (§ 192, subd. (b).)
If the evidence presents a material issue of whether a killing was committed
without malice, and if there is substantial evidence the defendant committed
involuntary manslaughter, failing to instruct on involuntary manslaughter would
violate the defendant’s constitutional right to have the jury determine every
material issue.” (People v. Cook (2006) 39 Cal.4th 566, 596.)
49
Counsel here conceded there was insufficient evidence to warrant an
instruction on involuntary manslaughter.9 We agree. “When a person renders
himself or herself unconscious through voluntary intoxication and kills in that
state, the killing is attributed to his or her negligence in self-intoxicating to that
point, and is treated as involuntary manslaughter. ‘Unconsciousness is ordinarily
a complete defense to a charge of criminal homicide. (Pen. Code, § 26, subd.
[Four].) If the state of unconsciousness results from intoxication voluntarily
induced, however, it is not a complete defense. (Pen. Code, § 22.) . . . [I]f the
intoxication is voluntarily induced, it can never excuse homicide. [Citation.]
Thus, the requisite element of criminal negligence is deemed to exist irrespective
of unconsciousness, and a defendant stands guilty of involuntary manslaughter if
he voluntarily procured his own intoxication.’ ” (People v. Ochoa, supra, 19
Cal.4th at p. 423.) Such a person need not be incapable of movement. (People v.
Hughes, supra, 27 Cal.4th at p. 343.)
The evidence here shows defendant had consumed some unknown amount
of alcohol, but there was no evidence he was so intoxicated that he could be
considered unconscious. He went to the victim’s home, spoke to his brother
Chachi, killed Loza, and then ransacked her and Carlon’s bedrooms, loading
Loza’s car with stolen items before driving away. Later, he tried to sell the stolen
goods to Leonard Mercado. Nothing in these facts even hints that defendant was
so grossly intoxicated as to have been considered unconscious.
Even assuming the court erred, the failure to instruct on involuntary
manslaughter was harmless. The jury was properly instructed on first degree
9
To the extent defendant wished the court to modify an existing instruction
itself correct in law, it was his burden to propose it. (People v. Lawley, supra, 27
Cal.4th at p. 161.)
50
murder, second degree murder and voluntary manslaughter. As in People v.
Rogers, supra, 39 Cal.4th at page 884: “The jury rejected the lesser options and
found defendant guilty of first degree premeditated murder. Under the
circumstances, there is no reasonable probability that, had the jury been instructed
on involuntary manslaughter, it would have chosen that option.” Moreover, the
jury having convicted defendant of robbery, sodomy and burglary and having
sustained the associated special circumstances, defendant was necessarily guilty of
first degree felony murder if he had any responsibility at all for the killing.
Accordingly, we find the trial court did not err in failing to instruct on involuntary
manslaughter.
c. Failure to instruct on third party culpability
Defendant’s jury was properly instructed on the presumption of innocence,
the People’s burden of proof and the concept of reasonable doubt. Specifically,
the jury was instructed that if it had a reasonable doubt as to defendant’s guilt, he
must be found not guilty. Defendant contends that inasmuch as his defense was
that Vieyra sodomized and killed his mother, the trial court violated his federal
constitutional rights to a jury trial and to due process by failing to instruct the jury
that he need not prove his innocence or that Vieyra was guilty, but must merely
raise a reasonable doubt as to his own guilt. As defendant concedes he did not
request such an instruction, he necessarily claims the trial court had a sua sponte
duty to instruct the jury how the burden of proof applies to evidence of third party
culpability. We disagree.
The applicable principles are clear. A criminal defendant may introduce
evidence of third party culpability if such evidence raises a reasonable doubt as to
his guilt, but the evidence must consist of direct or circumstantial evidence that
links the third person to the crime. It is not enough that another person has the
51
motive or opportunity to commit it. (People v. Robinson (2005) 37 Cal.4th 592,
625.) A trial court has a duty to instruct the jury “sua sponte on general principles
which are closely and openly connected with the facts before the court.” (People
v. Holt, supra, 15 Cal.4th at p. 688.) Finally, a trial court has a sua sponte duty to
give instructions on the defendant’s theory of the case, including instructions “as
to defenses ‘ “that the defendant is relying on . . . , or if there is substantial
evidence supportive of such a defense and the defense is not inconsistent with the
defendant’s theory of the case.” ’ ” (People v. San Nicolas (2004) 34 Cal.4th 614,
669.)
The jury was instructed that defendant was presumed innocent and that to
convict him, the jury must find him guilty beyond a reasonable doubt. Had the
jury entertained a reasonable doubt that defendant sodomized and killed the victim
and instead believed Vieyra committed those crimes, presumably it would have
acquitted defendant. (Assuming, of course, that it also found he did not aid or abet
those crimes.) Thus, no special instruction on third party culpability was
necessary to apprise the jury of the pertinent legal principles and, contrary to
defendant’s argument, the instructions given do not suggest he had the burden to
prove Vieyra was guilty before he could reap the benefit of the jury’s doubt about
his own guilt. Neither Mathews v. United States (1988) 485 U.S. 58 nor People v.
Adrian (1982) 135 Cal.App.3d 335, on which defendant relies, requires a different
result. In both cases, the defendant requested an instruction that the trial court
refused. (Mathews, at p. 62; Adrian, at p. 337.) Neither is authority for the
proposition that the trial court here had a sua sponte duty to instruct on third party
culpability.
Finally, even assuming for purposes of argument the trial court erred by
failing to modify the instructions, no prejudice resulted. As noted, the jury was
instructed on reasonable doubt and could have acquitted defendant had it
52
concluded Vieyra was the killer. Moreover, the evidence—including defendant’s
expressions of anger and hatred towards his mother, his present need of money,
Chachi’s testimony defendant was arguing with the victim in her bedroom,
Vieyra’s testimony and lack of a motive—was overwhelming that defendant, not
Vieyra, sodomized and killed Loza. Any instructional error in this regard was thus
harmless.
d. Failure to instruct jury to view Vieyra’s testimony with distrust
The trial court instructed the jury on the definition of an accomplice
(CALJIC No. 3.10), the requirement that the testimony of accomplices be
corroborated (CALJIC No. 3.11) and the sufficiency of evidence needed to supply
corroboration (CALJIC No. 3.12). Defendant did not request, and the trial court
did not give, CALJIC No. 3.18, which at the time directed the jury to view an
accomplice’s testimony with “distrust.” Although neither party mentions it in
their briefs in this court, the question whether to give CALJIC No. 3.18 was raised
and discussed in the trial court. The prosecutor objected to giving the instruction,
citing a Use Note that appeared in the published version of the then current version
of CALJIC. Counsel for Vieyra joined in the objection, and the trial court agreed.
Counsel for defendant remained silent during this discussion.
Despite this discussion in the trial court and despite his attorney’s silence,
defendant contends the trial court’s failure to instruct the jury with CALJIC No.
3.18 was both state law error and error of federal constitutional dimension
requiring reversal. We disagree and instead find no error. At the time of
defendant’s trial, CALJIC No. 3.18 (5th ed. 1988) provided: “The testimony of an
accomplice ought to be viewed with distrust. This does not mean that you may
arbitrarily disregard such testimony, but you should give to it the weight to which
you find it to be entitled after examining it with care and caution and in the light of
53
all the evidence in the case.” (Italics added.) At the time of defendant’s trial,10
the law provided that CALJIC No. 3.18 should not be given sua sponte if the
alleged accomplice was called as a witness by the defendant (People v. Williams
(1988) 45 Cal.3d 1268, 1314), the view being that for the instructions to impugn
the integrity of a defense witness was highly prejudicial (5 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Criminal Trial, § 655, p. 943). In this case, Vieyra,
charged with the same crimes as defendant, testified in his own defense; in effect,
he called himself as a witness. Accordingly, the trial court correctly granted the
request that CALJIC No. 3.18 not be given to the jury. Nor was the trial court
under a sua sponte duty to modify the instruction for defendant’s benefit. (People
v. Guiuan, supra, 18 Cal.4th at p. 560.)
e. CALJIC No. 6.40 (accessory after the fact)
Defendant next argues the trial court’s decision to instruct and then
reinstruct the jury on the concept of accessory after the fact so confused the jury
that the instruction violated his federal constitutional rights to due process of law,
a fair trial and effective assistance of counsel. (U.S. Const., 5th, 6th & 14th
10
We have since required that the standard instruction be modified. “[T]he
jury should be instructed to the following effect whenever an accomplice, or a
witness who might be determined by the jury to be an accomplice, testifies: ‘To
the extent an accomplice gives testimony that tends to incriminate the defendant, it
should be viewed with caution. This does not mean, however, that you may
arbitrarily disregard that testimony. You should give that testimony the weight
you think it deserves after examining it with care and caution and in the light of all
the evidence in the case.’ ” (People v. Guiuan (1998) 18 Cal.4th 558, 569, italics
added.) CALJIC No. 3.18 (2007) now provides that “[t]o the extent that [an
accomplice] [or] [a codefendant] gives testimony that tends to incriminate [the] [a]
[another] defendant, it should be viewed with caution.” (Italics added; see also
Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 3.34.)
54
Amends.) We disagree, for there is no possible way the instruction negatively
affected defendant.
Before instructing the jury, the trial court raised the question of instructing
on accessory after the fact, saying: “I took a look at the accessory after the fact
instruction. It is not a lesser, certainly not a lesser included [offense], and so then
I went back and looked at the accessory instructions . . . and I don’t think the
record will bear those instructions, because what the accessory after the fact
instruction indicates is a situation where there has been conduct following a
known felony, conduct which was engaged in with the specific intent to assist the
perpetrator in evading or avoiding arrest or some other consequences.
“Mr. Vieyra’s testimony was that he only did what he did because he was
frightened of Mr. Abilez and did not give any indication that in doing what he did
that he was intending to help him evade, avoid or whatever.
“That is my sense of the record at this point.
“Now, I am not foreclosing any discussions. I want to tell you what my
thinking was when I looked at that instruction.
“So what I am going to do is recess the proceedings, I am going to hand
down the set of instructions, give counsel an opportunity to work together on those
instructions.”
When the court asked defendant’s counsel whether he had any comment,
Bestard replied: “No.”
The trial court apparently changed its mind, for it gave the jury an
instruction patterned on CALJIC No. 6.40 (5th ed. 1988), which apprised the jury
of the requirements for finding a defendant guilty of being an accessory after the
55
fact,11 although the instruction omitted the first sentence from the standard
instruction: “Defendant is accused [in Count[s] _______] of having committed
the crime of being an accessory to a felony in violation of section 32 of the Penal
Code.”
During deliberations, the court decided the inclusion of robbery and
burglary in CALJIC No. 6.40 was incorrect, as a person assisting in those crimes
after the fact would still be guilty of the target crime and not the lesser crime of
being an accessory. The court proposed to recall the jury and reread CALJIC No.
6.40 without the references to robbery and burglary, i.e., specifying murder and
sodomy only. Counsel for defendant and for Vieyra both expressly declined to
object, although the prosecutor objected. The court then reinstructed the jury.
Verdict forms for the crime of being an accessory were provided the jury
for codefendant Vieyra but not for defendant. The jury did not convict Vieyra of
being an accessory.
11
Thus, defendant’s jury was instructed: “Every person who, after a felony
has been committed, harbors, conceals or aids a principal in that felony, with the
specific intent that the principal may avoid or escape from arrest, trial, conviction
or punishment, having knowledge that the principal has committed that felony or
has been charged with that felony, is guilty of the crime of accessory to a felony,
in violation of Penal Code section 32.
“In order to prove this crime, each of the following elements must be
proved:
“One, a felony, namely, burglary, robbery, sodomy and/or murder was
committed;
“Two, defendant harbored, concealed or aided a principal in that felony
with the specific intent that the principal avoid or escape arrest, trial, conviction or
punishment;
“And three, defendant did so with knowledge that the principal committed
the felony.”
56
Defendant contends the trial court’s initial position, i.e., that no evidence
supported giving CALJIC No. 6.40, was correct because no evidence existed to
show either defendant or Vieyra aided a principal to a murder or sodomy “after” it
had been committed. We disagree. It was undisputed that defendant and Vieyra
were both in Loza’s home at the time of the crimes. Vieyra testified that he saw
defendant sitting on top of the prone victim with a white sock around her neck,
that he later emerged from the bedroom and said “estuvo” (“it is done”). Vieyra
further testified that he did not sodomize the victim, a claim supported by the
blood test for which he volunteered. Vieyra admitted that after the crimes, he left
the victim’s house with defendant in her car. These actions that could have been
viewed by the jury as assisting the principal to “avoid or escape from arrest, trial,
conviction or punishment” for the crimes of murder or sodomy. (§ 32.) There
was thus sufficient evidence to support the accessory instruction.
No support exists for defendant’s further assertion that the provision of
accessory-after-the-fact verdict forms for Vieyra and not defendant would have led
the jury to understand the trial court credited Vieyra’s testimony or that defendant
was the more culpable of the two defendants. Unlike Vieyra, defendant did not
testify at the guilt phase and there was thus no evidence he was a mere accessory
to the crimes. Moreover, contrary to defendant’s unsupported assertion, the jury
did not express any confusion related to the accessory instruction, and that the
instruction “confuse[d] [the] defense strategy” or “diminish[ed] the impact of
more critical instructions” is pure speculation. We thus conclude the trial court
did not err in instructing the jury on accessory after the fact, or by failing to
provide the jury with verdict forms for that crime with defendant’s name.12
12
To the extent defendant contends he was denied due process of law under
the Fifth and Fourteenth Amendments to the United States Constitution because
(footnote continued on next page)
57
f. CALJIC No. 2.52 (flight)
Defendant contends that, for several reasons, the trial court erred by
instructing the jury with CALJIC No. 2.52, which addresses the issue of flight as
evidence of a consciousness of guilt. As we explain, we find no error.
Section 1127c provides: “In any criminal trial or proceeding where
evidence of flight of a defendant is relied upon as tending to show guilt, the court
shall instruct the jury substantially as follows: [¶] The flight of a person
immediately after the commission of a crime, or after he is accused of a crime that
has been committed, is not sufficient in itself to establish his guilt, but is a fact
which, if proved, the jury may consider in deciding his guilt or innocence. The
weight to which such circumstance is entitled is a matter for the jury to determine.
[¶] No further instruction on the subject of flight need be given.” In accordance
with this section, defendant’s jury was instructed with CALJIC No. 2.52, which is
substantially identical to the statutory language. (See People v. Carter (2005) 36
Cal.4th 1114, 1182 [CALJIC No. 2.52 is “derived” from § 1127c].)
We have construed section 1127c “as mandating a rule that if there is
evidence identifying the person who fled as the defendant, and if such evidence is
relied on as tending to show guilt, then a flight instruction is proper.” (People v.
Roberts (1992) 2 Cal.4th 271, 310.) “A flight instruction is proper whenever
evidence of the circumstances of [a] defendant’s departure from the crime scene
(footnote continued from previous page)
the prosecution failed to give notice it was relying on the theory he was an
accessory after the fact, we conclude he forfeited the claim by failing to object at
trial. (People v. Cole (2004) 33 Cal.4th 1158, 1205.) To the extent defendant
contends his defense counsel was constitutionally ineffective under the Sixth
Amendment for failing to object to the instruction, we reject the contention, as
counsel could reasonably have anticipated the instruction had no effect on his
client’s case.
58
. . . logically permits an inference that his movement was motivated by guilty
knowledge.” (People v. Turner, supra, 50 Cal.3d at p. 694.)
Defendant first contends giving the instruction was error because there
were “no facts” suggesting his decision to leave the victim’s home was motivated
by a desire to avoid detection or apprehension for the murder. We disagree. “ ‘An
instruction on flight is properly given if the jury could reasonably infer that the
defendant’s flight reflected consciousness of guilt, and flight requires neither the
physical act of running nor the reaching of a far-away haven. [Citation.] Flight
manifestly does require, however, a purpose to avoid being observed or
arrested.’ ” (People v. Visciotti, supra, 2 Cal.4th at p. 60; People v. Bradford
(1997) 14 Cal.4th 1005, 1055.) Here, the victim was killed in her house in La
Puente in Los Angeles County. Evidence was presented that immediately after the
victim was killed, defendant and Vieyra loaded electronic equipment from her
bedroom and from Carlon’s bedroom into the victim’s car and then drove away
from the house in the victim’s car. They were apprehended several hours later and
several miles away, in Colton in San Bernardino County, still in possession of the
victim’s car. From these facts, the jury could reasonably infer that defendant’s
decision not to stay in the house, but instead to leave, manifested a consciousness
of guilt. (See People v. Carter, supra, 36 Cal.4th at p. 1182 [flight instruction
proper where defendant left California for Las Vegas a few days after the crimes];
People v. Smithey (1999) 20 Cal.4th 936, 982 [flight instruction proper where
“defendant drove to another town instead of summoning help”]; Bradford, at
p. 1055 [flight instruction proper where defendant left the apartment where he
killed the victim, went to another apartment, packed his belongings and asked for
a ride out of town].)
Defendant next contends the trial court erred and also violated his rights to
a trial by jury and to due process under the Sixth and Fourteenth Amendments to
59
the United States Constitution by instructing on flight without requiring the jury to
make a finding as to the preliminary facts underlying the instruction, namely that:
(1) a person fled the scene of the crime; (2) defendant was that person; and (3) he
fled to avoid arrest. But “the instruction did not assume that flight was
established, leaving that factual determination and its significance to the jury.”
(People v. Visciotti, supra, 2 Cal.4th at p. 61.) Instead, “the instruction merely
permitted the jury to consider evidence of flight in deciding defendant’s guilt or
innocence; it did not suggest that the jury should consider such evidence as
dispositive.” (People v. Carter, supra, 36 Cal.4th at p. 1182.) We thus reject
defendant’s contention some preliminary finding of fact was required before the
court could instruct the jury on flight.
Third, defendant claims the trial court erred in instructing the jury with
CALJIC No. 2.52 because there was no evidence that, at the time he left the
victim’s home, he was aware of the criminal charges against him. The claim is
baseless, as his awareness of the charges is not required as a prerequisite for the
instruction. (People v. Carter, supra, 36 Cal.4th at p. 1182.)
Fourth, defendant contends the flight instruction should have been modified
sua sponte to inform the jury that the consciousness of guilt it could infer from his
flight could not be used to prove the degree of the murder. He is incorrect.
(People v. Jackson (1996) 13 Cal.4th 1164, 1224; People v. Bacigalupo (1991)
1 Cal.4th 103, 127-128.) In any event, any error would be harmless under any
standard; because the jury convicted defendant of several qualifying felonies,
under the felony-murder rule the only degree it could find was murder in the first
degree.
60
5. Cumulative Effect of Guilt Phase Errors
Defendant contends the cumulative effect of all the errors at the guilt phase
of his trial requires reversal. Although “a series of trial errors, though
independently harmless, may in some circumstances rise by accretion to the level
of reversible and prejudicial error” (People v. Hill, supra, 17 Cal.4th at p. 844),
we have found no error occurring at the guilt phase. Accordingly, we find no
cumulative error.
II. PENALTY PHASE
A. Facts
1. Aggravating Evidence
The People’s case in aggravation, in addition to the circumstances of the
crime itself (see § 190.3, factor (a)), consisted of evidence of defendant’s prior
felony convictions (id., factor (c)) and victim impact evidence (Payne v. Tennessee
(1991) 501 U.S. 808; People v. Roldan, supra, 35 Cal.4th at p. 731). Thus, the
trial court instructed the jury defendant had suffered prior felony convictions in
1978 for two separate residential burglaries, in 1981 for assault with a deadly
weapon, in 1987 for possession of heroin, in 1990 for sale or transportation of a
controlled substance and in 1995 for possession of a firearm by a felon. Carlon
took the stand again and described the impact defendant’s crimes had had on her
family. Although her brother Johnny Garcia had previously come by the house
every day, she had had no contact with him since the murder. In addition, in
Loza’s absence, Carlon now had primary responsibility in caring for Chachi, who
was disabled. She was required to bathe him, feed him, take him to his doctor
appointments and wash his clothes. She testified she missed her mother, who had
been her best friend.
When the woman who raised defendant died, Loza paid $7,000 for her
funeral. Loza took defendant in when he was released from prison, but they often
61
fought. When Carlon told defendant not to speak disrespectfully to her mother,
defendant told her: “What are you going to do about it?”
Robert Loza, the victim’s son and defendant’s half brother, testified that the
murder had a negative effect on his family’s unity. He reported that the family
had suffered “emotionally” and that they did not have family gatherings, such as
barbeques, anymore. As a result of the murder, Robert, who was the legal owner
of the house, had to clean, paint and rearrange the house because none of the other
family members wanted to be reminded of their mother’s murder.
2. Mitigating Evidence
Defendant’s case in mitigation consisted largely of his own testimony.
Defendant testified he was raised by Marcelino and Petra Abilez in Chino; his
grandmother also lived with them. He remembered being in the Cub Scouts and
playing football in elementary school. He first met the victim, Beatrice Loza,
when he was six; she was introduced to him as his “other mother.” He was happy
to have had two mothers, and Loza came to see him about twice a year. When he
was eight years old, he learned Loza was his biological mother, but that she had
given him to Marcelino and Petra to raise because they could not have children.
Marcelino died in an accident when defendant was nine years old. In
middle school at age 13, defendant fell in with a “bad crowd.” When he was 14,
he and Petra moved with his grandmother to a different home. He began high
school but dropped out after the ninth grade, having achieved a C minus grade
average. His grandmother died that same year, and Petra, who was diabetic, died
in 1990. Defendant was incarcerated at the time and was unable to attend Petra’s
funeral.
Defendant admitted being in and out of prison during his life and attributed
it to being a “victim of environment,” meaning “drug dealing, gangs, stuff like
62
that.” He had become addicted to drugs when he was 17 years old and sold drugs
because it “seemed easy.” He had trouble finding a job after being in prison so he
resumed selling drugs. He admitted being intoxicated much of the time on
alcohol, heroin and methamphetamine because he was “discouraged and
depressed.” Defendant admitted he had fathered two children, but did not know
where they were.
After defendant was released from prison this last time, Loza took him in.
He got along well with her and appreciated what she had done for him. In
addition, when he was in prison, she would send him anything he wanted. He
initially had no anger towards her at all and denied telling anyone he was angry at
her for giving him up to be raised by Marcelino and Petra. Then, after living with
Loza for about a month, he said she changed and no longer treated him well. She
insisted he pay her back for the money she had spent on Petra’s funeral and for the
packages and money she had sent to him in prison. Their relationship thereafter
was strained. For example, she would not allow him to answer the telephone
because he did not pay the bill. Once, she threw a cup of beans in his face.
Another time, she woke him up at 6:00 a.m. and told him to look for a job. When
he fell back asleep, she poured an unfinished bottle of beer in his face.
Defendant testified he did not remember much about the events of
March 15, 1996. He woke late, missing a chance to work on a landscaping job,
and then met a friend named Connie and drank “a couple six-packs” with her. He
took some heroin in the morning and again in the afternoon. He denied going to
Candina Bravo’s house that day, but remembered meeting Vieyra and sitting on a
wall, drinking beer. They each drank a quart of beer and then shared another
quart. When they went to Loza’s home, she became upset because Vieyra had
stolen a bedspread from the house and she insisted Vieyra leave. Defendant and
Vieyra eventually left and bought more beer at a local store. Walking home, they
63
bought and consumed more beer and then sat in Loza’s front yard talking.
Defendant remembered going in the house to talk to Loza, but did not remember
yelling at or striking his mother. He did not remember telling Chachi to return to
his room or breaking into Carlon’s bedroom. He denied taking anything from
Loza’s bedroom but may have taken things from Carlon’s bedroom. He did not
steal Loza’s car; he claimed she gave him the keys and allowed him to use the car
to move Vieyra’s belongings from the house.
Regarding the murder, defendant testified he “wasn’t a hundred percent
involved in [it],” that he did not think he did it and that he was not capable of
doing it. He denied sodomizing his mother. He said he did not deserve to die and
described himself as a “shy, loving person.” On cross-examination, he stated that
Candina Bravo, Gabriel Arce and codefendant Vieyra had all lied in their
testimony.
B. Issues
1. Application of Chapman
We held in People v. Brown (1988) 46 Cal.3d 432, 448, that state law error
occurring at the penalty phase must be assessed on appeal by asking whether it is
reasonably possible the error affected the verdict. Defendant contends that,
because a life is at stake, we should instead apply the standard for federal
constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24, that
is, that reversal is required unless it is shown the error was harmless beyond a
reasonable doubt. We have held, however, that the two standards are the same “in
substance and effect.” (People v. Jones, supra, 29 Cal.4th at p. 1264, fn. 11;
People v. Ochoa, supra, 19 Cal.4th at p. 479.)
64
2. Alleged Prosecutorial Misconduct: Invoking the Bible
Defendant contends the prosecutor committed misconduct in closing
argument by arguing biblical support for a sentence of death. Thus, during closing
argument, the prosecutor argued the aggravating evidence was overwhelming and
substantial in comparison to the mitigating evidence and then said: “And do not,
ladies and gentlemen—don’t—sometimes at the end of a trial [someone] will say
only God could take a life. God didn’t take Beatrice Loza’s life. He didn’t
sanction that. God had nothing to do with it. When someone says at the end of
this trial, oh, only God can do it, sometimes at the end of the trial, you will hear
some kind of talk like, well, if you send him to prison he will die in prison
anyway. Oh, okay. [¶] Gee, Beatrice Loza died in that bedroom, a very painful,
humiliating, disgusting death, and the law provides if aggravating circumstances
substantially outweigh the mitigating, this is the appropriate penalty.” There was
no immediate objection.
During surrebuttal, defense counsel referred to the story of Cain and Abel
(though not by name) and in telling the story, said: “Well, where is your brother?
[¶] And the—the other brother said to him, well, I am not my brother’s keeper.
Why are you asking me?” Counsel thereafter argued the person in the story who
killed his brother was not sentenced to death but was instead banished from the
land for the balance of his life. After argument had concluded, defense counsel, in
chambers, objected to the prosecutor’s biblical reference. As if anticipating the
argument that he, too, had invoked the Bible in his argument, counsel argued:
“There was no invocation of God [in] my closing arguments or rebuttal of that,
and I believe [the prosecutor’s argument] was inappropriate.”
The trial court overruled the belated objection, explaining that the
prosecutor’s argument “was not an invocation in any way in my judgment, based
upon these comments, to have biblical justification for doing—for doing what was
65
done. [¶] In fact, I thought it is somewhat to the contrary, saying, look, this is a
secular proceeding and it is a secular decision that we have to make.”
At the threshold, we find defendant forfeited this issue by failing to make a
timely objection. (People v. Slaughter (2002) 27 Cal.4th 1187, 1209 [failure to
object to biblical reference forfeits the claim for appeal]; People v. Barnett, supra,
17 Cal.4th at p. 1122 [objection to evidence must be timely].) Had he objected
when the prosecutor first made reference to God, the trial court could have
intervened and cured any possible prejudice. Nor is the failure to timely object
excused by any alleged deficient performance by defense counsel, for there is no
suggestion in the record that counsel lacked a tactical reason for his failure to
object. (People v. Gray, supra, 37 Cal.4th at p. 207.) Indeed, the record suggests
defense counsel wished to make an oblique reference to the biblical story of Cain
and Abel in an attempt to convince the jury to spare defendant’s life.13
Were we to find defendant had preserved the claim, we would find no error.
Although any reference to biblical authority is fraught with danger (People v.
Roldan, supra, 35 Cal.4th at p. 743), we agree with the trial court that, in the
circumstances of this case, the prosecutor’s comments did not improperly ask the
jury to apply biblical authority in lieu of California law or otherwise appeal to a
higher authority. Finally, even if the prosecutor’s comments were improper, the
misconduct was harmless under any standard; the comments in question were brief
and the argument undeveloped. (People v. Wrest (1992) 3 Cal.4th 1088, 1107.)
13
We are unconvinced by counsel’s assertion that he did not also invoke the
Bible. (See Genesis 4:9 [“Then the Lord said to Cain, ‘Where is your brother
Abel?’ [¶] ‘I don’t know,’ he replied. ‘Am I my brother’s keeper?’ ”].)
66
3. Failure to Instruct on the Meaning of Life Without Possibility of
Parole
The trial court instructed the jury that: “It is the law of this state that the
penalty for a defendant found guilty of murder of the first degree shall be death or
confinement in the state prison for life without possibility of parole in any case in
which the special circumstances alleged in this case have been specially found to
be true. [¶] Under the law of this state, you must now determine which of these
penalties shall be imposed on the defendant.” This introduction to the standard
penalty phase instruction, CALJIC No. 8.84, was given without objection or
request for modification. Citing social science studies that he claims suggest that
almost 25 percent of capital case jurors believe that a sentence of life without
parole will result in an ultimate sentence of 10 years or less, and that over 75
percent believe that such a prisoner will be paroled sometime within his lifetime,
defendant contends the standard instruction failed to define adequately the
meaning of life imprisonment without possibility of parole and the trial court erred
by failing sua sponte to correct it. We have, however, already found CALJIC No.
8.84 adequately informs the jury of the meaning of a life sentence. (People v.
Smithey, supra, 20 Cal.4th at pp. 1008-1009.) Although petitioner argues we
should revisit the issue in light of the high court’s decision in Shafer v. South
Carolina (2001) 532 U.S. 36, we have already explained in prior cases that Shafer
is distinguishable and does not cast doubt on our previous cases addressing the
issue. (People v. Prieto (2003) 30 Cal.4th 226, 269-271; see People v. Turner
(2004) 34 Cal.4th 406, 438 [defendant conceded CALJIC No. 8.84 adequately
conveyed parole ineligibility].) As defendant presents no reason to question those
decisions, we reject his claim.
To the extent defendant contends that Ring v. Arizona (2002) 536 U.S. 584
alters the analysis, he is wrong. As we explained in a somewhat different setting:
67
“ ‘Ring imposes no new constitutional requirements on California’s penalty phase
proceedings.’ ” (People v. Stanley, supra, 39 Cal.4th at p. 964.)
4. Double Counting Felonies
Defendant contends that double counting the charged felonies—once to
elevate the degree of the homicide to first degree murder and again to render him
eligible for the death penalty (§ 190.2, subd. (a)(17))—is improper. He concedes
we rejected this precise argument in People v. Marshall (1990) 50 Cal.3d 907,
945-946, but asserts we should reconsider that case in light of the number of
special circumstance allegations now included in the law, rendering “the
narrowing function of the special circumstances . . . a nullity.” We conclude no
grounds exist to revisit our decision in Marshall. (See People v. Catlin (2001) 26
Cal.4th 81, 158 [“first degree murder liability and special circumstance findings
may be based upon common elements without offending the Eighth
Amendment”]; see also People v. Millwee (1998) 18 Cal.4th 96, 164 [double
counting argument “has been rejected many times before given the manner in
which our death penalty scheme permissibly narrows the class of death-eligible
offenders and guides the sentencer’s discretion”]; Lowenfield v. Phelps (1988) 484
U.S. 231, 246 [“that the aggravating circumstance duplicated one of the elements
of the crime does not make [a death] sentence constitutionally infirm”].)
5. Defendant’s Motion for Modification
Following the penalty verdict, the trial court entertained and denied the
automatic motion for modification of the verdict pursuant to section 190.4,
subdivision (e). Defendant contends generally that the trial court erred in denying
the motion because the court failed to independently reweigh the evidence. More
particularly, he argues the court failed to accord proper weight to his mitigating
evidence, which showed he had been abused by his mother, that he suffered from
68
“chronic drug abuse precipitated by his tumultuous upbringing, and his
intoxication at the time of [the] offense.” In addition, he contends the court’s error
rendered the death sentence arbitrary and capricious in violation of the Eighth
Amendment to the United States Constitution, as well as state constitutional
guarantees. As we explain, we disagree.
Section 190.4, subdivision (e) provides: “In every case in which the trier of
fact has returned a verdict or finding imposing the death penalty, the defendant
shall be deemed to have made an application for modification of such verdict or
finding . . . . In ruling on the application, the judge shall review the evidence,
consider, take into account, and be guided by the aggravating and mitigating
circumstances referred to in Section 190.3, and shall make a determination as to
whether the jury’s findings and verdicts that the aggravating circumstances
outweigh the mitigating circumstances are contrary to law or the evidence
presented. The judge shall state on the record the reasons for his findings.”
(Italics added.)
The record in this case demonstrates the trial court was well aware of its
“authority and obligation to independently assess and evaluate the evidence.”
(People v. Moon, supra, 37 Cal.4th at p. 46.) It first explained that its “role in this
matter is to reweigh the evidence of aggravating and mitigating factors and to
determine whether in the court’s independent judgment the weight of the evidence
supports the jury’s verdict.” It then concluded that “[t]he jury’s assessment of the
evidence that the factors in aggravation substantially outweigh the factors in
mitigation and that death is warranted is, in the court’s view, overwhelmingly
supported by the evidence.” Further explaining its conclusion, the court noted that
it “has searched the record for factors in mitigation and I have to say that I am not
sure I can begin to understand the arguments in mitigation on [defendant’s]
behalf.” It found “very little evidence [was] offered in this case suggesting that
69
there are any factors in mitigation, but such evidence as was presented, the court
has considered and the court believes that the jury was correct.”
When defense counsel emphasized the evidence of defendant’s intoxication
at the time of the crime was mitigating, the court responded: “The court does not
believe that there was . . . evidence that on many occasions he drank and drank
heavily and may have been [intoxicated on the day of the crimes]—there was
some evidence which was tendered to suggest that he had been drinking on this
day, but if I take that evidence—not all of that evidence was credible to the extent
that people talked about his drinking on that day. There was not a suggestion in
my mind that the drinking rose to the level where he would have been
intoxicated.” Finally, the court opined: “[E]ven if I were to take [defendant’s
alleged intoxication] into account and consider that as accurate within the meaning
of [section] 190.3, I don’t think it would change the calculus as to whether or not
the aggravating circumstances outweigh the mitigating factors in this case.”
As is apparent, the trial court applied the correct standard and properly
conducted an independent reweighing of the aggravating and mitigating evidence.
That it did not find defendant’s proffered mitigating evidence as persuasive as he
would have liked does not undermine this conclusion. (See People v. Steele
(2002) 27 Cal.4th 1230, 1267-1268.) We conclude the trial court properly
performed its duty under section 190.4, subdivision (e).
6. CALJIC No. 8.88
The trial court instructed the jury with CALJIC No. 8.88, the standard
instruction describing the jury’s duties at the penalty phase. Defendant now
contends this instruction was defective in numerous ways, thereby violating his
rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution, as well as corresponding rights under the state Constitution.
70
He concedes we previously have rejected all of these arguments but contends
those cases were incorrectly decided and should be reconsidered. Having found
no reason to reconsider our prior holdings, we reject these claims and list them
here to ensure a future court will consider them fully exhausted:
- - The instruction is not vague and imprecise (People v. Perry (2006) 38
Cal.4th 302, 320 [CALJIC No. 8.88 is not vague]);
- - The instruction did not deprive defendant of the “individualized
consideration” required by the Eighth Amendment (People v. Cornwell, supra, 37
Cal.4th at p. 103);
- - The instruction’s use of the phrase “so substantial” in connection with
the mitigating circumstances did not suggest the jury was powerless to return a life
sentence even if it found the mitigating factors outweighed the aggravating ones
(People v. Boyette, supra, 29 Cal.4th at p. 465);
- - The instruction does not imply that a single mitigating factor was
insufficient to outweigh all the aggravating factors and justify a life sentence
(People v. Young (2005) 34 Cal.4th 1149, 1227);
- - The instruction did not mislead the jurors by using the phrase “life
without parole” instead of “life without the possibility of parole” (see People v.
Boyer (2006) 38 Cal.4th 412, 487 [“We are not persuaded [by research] suggesting
many jurors do not understand that life without parole actually means no
possibility of parole”]);
- - The instruction did not “improperly reduce the prosecution’s burden of
proof” at the penalty phase because the prosecution does not bear the burden of
proof at the penalty phase (People v. Cornwell, supra, 37 Cal.4th at pp. 103-104);
- - The instruction’s use of the word “totality” did not improperly suggest a
single mitigating factor could not outweigh all aggravating factors (People v.
Dickey (2005) 35 Cal.4th 884, 929);
71
- - The instruction is not improperly “death-oriented” in that “it tells the
jury what warrants death but fails to inform the jury what warrants life” (People v.
Stanley, supra, 39 Cal.4th at p. 963);
- - The instruction adequately defines the meaning of a mitigating
circumstance, and the jury would not have understood that phrase to refer to only
“the crime in question” (People v. Welch (1999) 20 Cal.4th 701, 772-773).
7. Failure to Instruct on Lingering Doubt
Defendant next argues we must reverse the penalty judgment because the
trial court failed to instruct the jury it could consider as a mitigating factor any
lingering doubt it had about his guilt of the charged crimes. He acknowledges we
have rejected this argument many times in other cases (see People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1067; People v. Gray, supra, 37 Cal.4th at p. 231),
but argues the reasonable doubt instruction (CALJIC No. 2.90), with its use of the
phrase “moral certainty,” “exacerbated” the error. But defendant’s jury was not
instructed with the phrase “moral certainty.” In any event, the jury could have
considered any lingering doubt it had under section 190.3, factor (k), with which it
was instructed. That factor permits the jury to consider “any other circumstance
which extenuates the gravity of the crime even though it is not a legal excuse for
the crime and any sympathetic or other aspect of the defendant’s character or
record that the defendant offers as a basis for a sentence less than death.” “The
jury need not be specifically instructed that lingering doubt is a factor to consider,
as that concept is encompassed in factor (k).” (People v. Avila, supra, 38 Cal.4th
at p. 615.) We find no error.
8. Failure to Instruct on the “Presumption of Life”
Defendant next contends the trial court erred by failing to instruct the jury
that, when deciding the appropriate penalty, it should presume the appropriate
72
sentence is life in prison. We disagree, because it is not constitutionally required
to instruct a capital jury on a so-called “presumption of life.” (People v. Maury
(2003) 30 Cal.4th 342, 440.) Defendant submits the failure to so instruct the jury
violated his constitutional rights to due process of law, equal protection, a reliable
penalty determination and to be free of cruel and unusual punishment under the
Fifth, Eighth and Fourteenth Amendments to the United States Constitution, but
provides no argument or citation to authority supporting this assertion, other than
to say that our precedents are “wrongly decided” and should be reconsidered.
We disagree. As we explained in People v. Arias (1996) 13 Cal.4th 92: “If
a death penalty law properly limits death eligibility by requiring the finding of at
least one aggravating circumstance beyond murder itself, the state may otherwise
structure the penalty determination as it sees fit, so long as it satisfies the
requirement of individualized sentencing by allowing the jury to consider all
relevant mitigating evidence.” (Id. at p. 190, citing Tuilaepa v. California (1994)
512 U.S. 967, 972; Boyde v. California (1990) 494 U.S. 370, 377; and Zant v.
Stephens (1983) 462 U.S. 862, 875.)
9. Failure to Instruct on Pity as a Mitigating Circumstance
The jury was instructed at the guilt phase in accordance with CALJIC No.
1.00 that: “You must not be influenced by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling.” For the penalty phase, the
jury was instructed to “[d]isregard all other instructions given to you in other
phases of this trial, except for those [given the jury for the penalty phase].”
Although it was not instructed specifically that it could consider pity for defendant
as a mitigating factor, it was instructed in accordance with section 190.3,
factor (k): “[The jury should consider] any other circumstance which extenuates
the gravity of the crime even though it is not a legal excuse for the crime and any
73
sympathetic or other aspect of the defendant’s character or record that the
defendant offers as a basis for a sentence less than death, whether or not related to
the offense for which he is on trial. You must disregard any jury instruction given
to you in the guilt or innocence phase of this trial which conflicts with this
principle.” (CALJIC No. 8.85, factor (k).)
Despite these instructions, defendant contends the trial court violated his
rights under the Eighth Amendment to the United States Constitution by failing to
instruct the jury specifically that it could consider pity for him as a mitigating
factor. Because the trial court instructed the jury with an expanded section 190.3,
factor (k) instruction, it did not err in failing to instruct more specifically on pity as
a mitigating factor. (People v. Smith, supra, 30 Cal.4th at p. 638 and cases cited.)
10. Constitutional Challenges to the California Death Penalty Law
Defendant contends that “[m]any features of this state’s capital sentencing
scheme, alone or in combination with each other, violate the United States
Constitution.” He concedes we have rejected these claims in previous decisions
but argues we should reconsider them. Having found no reason to do so, we reject
these claims and list them here to ensure a future court will consider them fully
exhausted. Accordingly, we conclude the death penalty law is not
unconstitutional:
- - For failing to “genuinely narrow the class of persons eligible for the
death penalty” generally (People v. Boyette, supra, 29 Cal.4th at p. 467) or more
specifically because the special circumstances are so numerous or so broad
(People v. Yeoman, supra, 31 Cal.4th at p. 165);
- - For failing to require that the jurors be unanimous with respect to
aggravating factors (People v. Gray, supra, 37 Cal.4th at p. 236);
74
- - Due to the alleged overbreadth of section 190.3, factor (a), which
permits the jury to consider the circumstances of the crime as an aggravating
factor (People v. Robinson, supra, 37 Cal.4th at p. 655);
- - For failing to require the jury to return written findings (People v.
Boyette, supra, 29 Cal.4th at p. 466);
- - For failing to require juror unanimity with regard to the aggravating
factors (People v. Boyette, supra, 29 Cal.4th at p. 466);
- - For failing to require that the jury find the aggravating factors were
proved beyond a reasonable doubt, that the aggravating factors outweighed the
mitigating factors beyond a reasonable doubt, or that death is the appropriate
penalty beyond a reasonable doubt (People v. Bell (2007) 40 Cal.4th 582, 620);
- - For failing to impose a burden of proof on either party, even if only
proof by a preponderance of the evidence (People v. Stanley, supra, 39 Cal.4th at
p. 964; People v. Boyette, supra, 29 Cal.4th at p. 466);
- - For depriving defendant of a legitimate expectation of a state liberty
interest within the meaning of Hicks v. Oklahoma (1980) 447 U.S. 343, by failing
to apply Evidence Code section 52014 and instruct the jury on some burden of
proof for the penalty phase (People v. Dunkle (2005) 36 Cal.4th 861, 939);
- - For failing to require intercase proportionality review (People v. Bell,
supra, 40 Cal.4th at p. 621; People v. Boyette, supra, 29 Cal.4th at p. 467);
- - For permitting the jury generally to consider unadjudicated criminal
conduct as an aggravating factor15 (People v. Gray, supra, 37 Cal.4th at p. 236)
14
Evidence Code section 520 provides: “The party claiming that a person is
guilty of crime or wrongdoing has the burden of proof on that issue.”
15
Defendant does not explain what unadjudicated criminal conduct was
introduced against him at the penalty phase. As to prior adjudicated crimes,
(footnote continued on next page)
75
and, more specifically, for permitting the jury to consider such conduct without
requiring it unanimously to find the prior conduct true beyond a reasonable doubt
(see People v. Fauber (1992) 2 Cal.4th 792, 848 [“the law does not require a
unanimous finding as to any unadjudicated crime offered in aggravation”]; People
v. Avena (1996) 13 Cal.4th 394, 429 [law requires the jury be instructed it must
find prior unadjudicated conduct true beyond a reasonable doubt]; People v.
Robertson (1982) 33 Cal.3d 21, 53 (plur. opn. of Kaus, J.); id. at p. 60 (conc. opn.
of Broussard, J.) [same]);
- - For using “restrictive adjectives” such as the words “extreme” (§ 190.3,
factors (d) & (g)) and “substantial” (id., factor (g)) (People v. Perry, supra, 38
Cal.4th at p. 319);
- - For failing to specify which factors were aggravating and which were
mitigating (People v. Boyette, supra, 29 Cal.4th at p. 466);
- - For prefacing several factors with the phrase “whether or not” (People
v. Gray, supra, 37 Cal.4th at p. 236);
- - For violating defendant’s right to equal protection by treating noncapital
sentencing differently from capital sentencing (People v. Lewis and Oliver, supra,
39 Cal.4th at p. 1067 [“The statutory scheme does not deny capital defendants the
equal protection of the laws or any other constitutional right insofar as it does not
contain disparate sentence review (i.e., comparative or intercase proportionality
(footnote continued from previous page)
defendant waived a jury for the prior felony conviction allegations at the guilt
phase, and the trial court found beyond a reasonable doubt that he had suffered
two convictions for burglary, one for assault with a deadly weapon, one for
possession of heroin, one for sale or transportation of a controlled substance, and
one for being a felon in possession of a firearm. The jury was instructed at the
penalty phase that it could consider these convictions and assign to them whatever
weight it thought appropriate. (See § 190.3, factor (c).)
76
review)”]; People v. Manriquez (2005) 37 Cal.4th 547, 590 [“capital and
noncapital defendants are not similarly situated and therefore may be treated
differently without violating constitutional guarantees of equal protection of the
laws or due process of law”]);
- - For failing to comply with “International Norms of Humanity and
Decency” (People v. Bell, supra, 40 Cal.4th at p. 621);
- - In light of the abolition of capital punishment in Western Europe
(People v. Moon, supra, 37 Cal.4th at p. 48).
We also conclude neither Apprendi v. New Jersey (2000) 530 U.S. 466 nor
Ring v. Arizona, supra, 536 U.S. 584, applies to California’s capital sentencing
scheme. (People v. Gray, supra, 37 Cal.4th at p. 237.) Although defendant
contends California’s capital sentencing scheme is “no different” than the Arizona
scheme considered by the high court in Ring, we disagree. As we recently
explained: “ ‘Under the Arizona capital sentencing scheme invalidated in Ring, a
defendant convicted of first degree murder could be sentenced to death if, and only
if, the trial court first found at least one of the enumerated aggravating factors true.
([Ring,] at p. 603 [122 S.Ct. at p. 2440].) Under California’s scheme, in contrast,
each juror must believe the circumstances in aggravation substantially outweigh
those in mitigation, but the jury as a whole need not find any one aggravating
factor to exist. The final step in California capital sentencing is a free weighing of
all the factors relating to the defendant’s culpability, comparable to a sentencing
court’s traditionally discretionary decision to, for example, impose one prison
sentence rather than another. Nothing in Apprendi or Ring suggests the sentencer
in such a system constitutionally must find any aggravating factor true beyond a
reasonable doubt.’ ” (People v. Bell, supra, 40 Cal.4th at p. 620.)
Defendant also contends his sentence of death should be reversed because
the jury’s penalty determination was based in part on nonviolent offenses such as
77
his drug-related crimes, as well as unadjudicated criminal activity such as his gang
affiliation. His prior convictions for possession of heroin and sale or
transportation of a controlled substance, though nonviolent, fall squarely within
section 190.3, factor (c). (People v. Livaditis (1992) 2 Cal.4th 759, 776.) In any
event, he did not object to evidence of either his prior convictions or of his gang
activities. Accordingly, he forfeited the claim. (People v. Schmeck (2005) 37
Cal.4th 240, 301.)
11. Challenge to the Method of Execution
Defendant contends the statutorily prescribed methods of execution in
California violate the federal Constitution in two ways. First, he contends the state
“failed to comply with the statutory requirement that standards for lethal injection
be established by the Department of Corrections [and Rehabilitation],” citing
section 3604, subdivision (a). Second, he contends death by lethal injection
constitutes cruel and unusual punishment. These issues are not cognizable on
appeal “because alleged imperfections in the method of execution do not affect the
validity of the death judgment itself. Defendant’s attack on illegalities in the
execution process that may or may not exist when his death sentence is carried out
are premature.” (People v. Boyer, supra, 38 Cal.4th at p. 485.)
12. Cumulative Effect of Penalty Phase Errors
Defendant contends that even if no single error occurring at the penalty
phase requires reversal, the cumulative effect of such errors does so. Having
found no legal errors occurring at the penalty phase, we reject this claim as well.
13. Attempted Reservation of Rights
Defendant finally asserts that he “incorporates herein all issues raised by
motion, written or oral, during pretrial, post-trial hearings, or trial that are
contained in the Reporter’s and Clerk’s Transcript as augmented.” Defendant
78
states he intends to “preserve all issues previously raised for this appeal, the
related habeas [corpus] action, and any other court actions pertaining to this case.”
To the extent he intends to incorporate by reference all documents presented to the
trial court without now urging any legal issue based on those documents, the
attempt fails. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
294, fn. 20 [improper to incorporate by reference documents from the trial court].)
Moreover, subject to narrow exceptions (see In re Harris (1993) 5 Cal.4th 813),
defendant’s attempt to preserve unargued claims also fails. “When [an] issue
could have been, but was not, raised on appeal, the unjustified failure to present it
on appeal generally precludes its consideration on habeas corpus.” (In re Sakarias
(2005) 35 Cal.4th 140, 169; In re Dixon (1953) 41 Cal.2d 756, 759.) Finally, the
mere fact appellate counsel has not raised every possible or conceivable issue does
not, as defendant argues, establish that appellate counsel is ineffective. (In re
Robbins (1998) 18 Cal.4th 770, 810 [appellate counsel acts properly by presenting
only the strongest claims instead of all conceivable claims].)
DISPOSITION
The guilt and penalty phase judgments are affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
79
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Abilez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S066377
Date Filed: June 28, 2007
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Gary Feess
__________________________________________________________________________________
Attorneys for Appellant:
Russell S. Babcock, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Russell S. Babcock
Law Offices of Russell S. Babcock
1400 Sixth Avenue, Suite 210B
San Diego, CA 92101
(619) 531-0887
David E. Madeo
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-4925
Opinion Information
| Date: | Docket Number: |
| Thu, 06/28/2007 | S066377 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office David Madeo, Deputy Attorney General 300 S. Spring Street, 5th Floor Los Angeles, CA |
| 2 | Abilez, Frank Manuel (Appellant) San Quentin State Prison Represented by Russell S. Babcock Law Offices of Russell Babcock 1400 Sixth Avenue, Suite 210-B San Diego, CA |
| 3 | Abilez, Frank Manuel (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Michael Laurence, Executive Director 303 Second Street, Suite 400 South San Francisco, CA |
| Disposition | |
| Jun 28 2007 | Opinion: Affirmed |
| Dockets | |
| Dec 4 1997 | Judgment of death |
| Dec 4 1997 | Record certified for completeness |
| Dec 9 1997 | Filed certified copy of Judgment of Death Rendered 12-4-97. |
| Dec 9 1997 | Penal Code sections 190.6 et seq. apply to this case |
| Sep 4 2001 | Filed: applt's application for appointment of counsel (IFP form). |
| Sep 5 2001 | Counsel appointment order filed Russell S. Babcock appointed to represent applt for the direct appeal. |
| Sep 18 2001 | Date trial court delivered record to appellant's counsel 8,506 pp. record |
| Sep 21 2001 | Appellant's opening brief letter sent, due: 4-22-2002. (pursuant to Calif. Rules of Court, rule 39.57(b)) |
| Dec 10 2001 | Counsel's status report received (confidential) from atty Babcock. |
| Dec 24 2001 | Counsel's status report received (confidential) from atty Babcock. |
| Feb 5 2002 | Counsel's status report received (confidential) from atty Babcock. |
| Apr 4 2002 | Counsel's status report received (confidential) from atty Babcock. |
| Apr 15 2002 | Counsel's status report received (confidential) from atty Babcock (supplemental). |
| Apr 18 2002 | Request for extension of time filed To file A0B. (1st request) |
| Apr 22 2002 | Extension of time granted To 6/21/2002 to file AOB. |
| Jun 6 2002 | Counsel's status report received (confidential) from atty Babcock. |
| Jun 10 2002 | Request for extension of time filed To file AOB. (2nd request) |
| Jun 17 2002 | Filed: Suppl. declaration in support of request of extension of time to file AOB. |
| Jun 21 2002 | Extension of time granted to 8-20-2002 to file AOB. |
| Aug 6 2002 | Counsel's status report received (confidential) from atty Babcock. |
| Aug 12 2002 | Request for extension of time filed To file appellant's opening brief. (3rd request) |
| Aug 13 2002 | Extension of time granted To 10/21/2002 to file appellant's opening brief. |
| Sep 6 2002 | Counsel's status report received (confidential) (supplemental) from atty Babcock. |
| Oct 7 2002 | Counsel's status report received (confidential) from atty Babcock. |
| Oct 18 2002 | Request for extension of time filed To file appellant's opening brief. (4th request) |
| Oct 24 2002 | Extension of time granted To 12/20/2002 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 additional dys will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Nov 1 2002 | Received copy of appellant's record correction motion Application to correct, complete, settle and preserve the record on appeal. (27 pp. excluding attached exhibits) |
| Dec 6 2002 | Counsel's status report received (confidential) from atty Babcock. |
| Dec 20 2002 | Request for extension of time filed To file appellant's opening brief. (5th request) |
| Dec 23 2002 | Extension of time granted To 2/18/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if an y, and ay assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Dec 27 2002 | Filed: request by counsel for dual representation appointment. |
| Dec 27 2002 | Filed: request by inmate for dual representation. |
| Jan 15 2003 | Counsel appointment order filed Attorney Russell S. Babcock, previously appointed to represent appellant Frank Manuel Abilez for the direct appeal in the above automatic appeal now pending in this court, is hereby appointed to also represent appellant for state habeas corpus/executive clemency proceedings related to the automatic appeal. |
| Jan 15 2003 | Compensation awarded counsel Atty Babcock |
| Feb 10 2003 | Counsel's status report received (confidential) from atty Babcock. |
| Feb 10 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Feb 13 2003 | Request for extension of time filed to 4/21/20023 to file appellant's opening brief. The court anticiaptes that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney ro entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Mar 13 2003 | Compensation awarded counsel Atty Babcock |
| Apr 4 2003 | Counsel's status report received (confidential) from atty Babcock. |
| Apr 10 2003 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Apr 16 2003 | Extension of time granted to 6/20/2003 to file appellant's opening brief. After that date, only three further extensions totaling about 160 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 12/1/2003. |
| May 6 2003 | Note: record on appeal, not yet filed, returned to superior court for correction of deficiencies. (Record is not in compliance with the requirements of the Calif. Rules of Court.) |
| May 21 2003 | Compensation awarded counsel Atty Babcock |
| Jun 6 2003 | Counsel's status report received (confidential) from atty Babcock. |
| Jun 16 2003 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Jun 19 2003 | Extension of time granted to 8/19/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 12/20/2003. |
| Jul 31 2003 | Counsel's status report received (confidential) from atty Babcock. |
| Aug 1 2003 | Compensation awarded counsel Atty Babcock |
| Aug 4 2003 | Counsel's status report received (confidential) (supplemental) from atty Babcock. |
| Aug 14 2003 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Aug 15 2003 | Record certified for accuracy |
| Aug 19 2003 | Extension of time granted to 10/20/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 1/31/2004. |
| Oct 6 2003 | Counsel's status report received (confidential) from attorney Babcock. |
| Oct 16 2003 | Request for extension of time filed to file appellant's opening brief. (10th request) |
| Oct 21 2003 | Extension of time granted to 12/19/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 3/31/2004. |
| Oct 29 2003 | Compensation awarded counsel Atty Babcock |
| Nov 5 2003 | Record on appeal filed Clerk's transcript 30 volumes (6055 pp.) and reporter's transcript 25 volumes (2430 pp.), including material under seal; ASCII disks. Clerk's transcript includes 4519 pp. of juror questionnaires. |
| Nov 5 2003 | Letter sent to: Counsel advising that the record on appeal, certified for accuracy, was filed this date. |
| Nov 12 2003 | Compensation awarded counsel Atty Babcock |
| Dec 1 2003 | Counsel's status report received (confidential) from atty Babcock. |
| Dec 15 2003 | Request for extension of time filed to file appellant's opening brief. (11th request) |
| Dec 18 2003 | Extension of time granted to 2/17/2004 to file appellant's opening brief. After that date, only one further extension totaling 45 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 3/31/2004. |
| Jan 5 2004 | Compensation awarded counsel Atty Babcock |
| Feb 17 2004 | Appellant's opening brief filed (82,165 words - 315 pp.) |
| Feb 19 2004 | Respondent's brief letter sent; due: June 16, 2004. |
| Feb 25 2004 | Counsel's status report received (confidential) from atty Babcock. |
| Apr 2 2004 | Counsel's status report received (confidential) |
| Apr 7 2004 | Filed: respondent's application for copies of sealed transcripts. |
| Apr 19 2004 | Filed: letter from appellant, dated 4-14-2004, advising he does not oppose respondent's application for copies of sealed transcripts. |
| May 10 2004 | Filed: Declaration of attorney Russell S. Babcock pursuant to Penal Code Section 1241 (confidential). |
| May 12 2004 | Compensation awarded counsel Atty Babcock |
| May 25 2004 | Compensation awarded counsel Atty Babcock |
| Jun 4 2004 | Request for extension of time filed to file respondent's brief. (1st request) |
| Jun 8 2004 | Extension of time granted to 8/16/2004 to file respondent's brief. |
| Jun 15 2004 | Compensation awarded counsel Atty Babcock |
| Jun 16 2004 | Motion for access to sealed record granted Good cause appearing therefor (see Cal. Rules of Court, rule 31.2(a)(4)), respondent's application for "copies of the sealed portions of the reporter's transcript," filed on April 7, 2004, is granted. The clerk is directed to photocopy pages 213 to 244 of the reporter's transcript and transmit them to respondent. |
| Jun 28 2004 | Counsel's status report received (confidential) from atty Babcock. |
| Jul 28 2004 | Compensation awarded counsel Atty Babcock |
| Aug 12 2004 | Respondent's brief filed (34,922 words - 124 pp.) |
| Sep 7 2004 | Counsel's status report received (confidential) from atty Babcock. |
| Oct 6 2004 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Oct 13 2004 | Extension of time granted to 12/13/2004 to file appellant's reply brief. |
| Oct 28 2004 | Counsel's status report received (confidential) from atty Babcock. |
| Dec 6 2004 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Dec 9 2004 | Extension of time granted to 2/14/2005 to file appellant's reply brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 4/1/2005. |
| Dec 27 2004 | Counsel's status report received (confidential) from atty Babcock. |
| Jan 31 2005 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Feb 3 2005 | Extension of time granted to 4/1/2005 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 3/31/2005. |
| Feb 22 2005 | Counsel's status report received (confidential) from atty Babcock. |
| Mar 21 2005 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Mar 23 2005 | Extension of time granted to 5/2/2005 to file appellant's reply brief. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 5/2/2005. After that date, no further extension will be granted. |
| Apr 21 2005 | Counsel's status report received (confidential) from atty Babcock. |
| May 2 2005 | Appellant's reply brief filed ( 20987 words; 95 pp.) |
| Jun 8 2005 | Compensation awarded counsel Atty Babcock |
| Jun 29 2005 | Compensation awarded counsel Atty Babcock |
| Jul 1 2005 | Counsel's status report received (confidential) from atty Babcock. |
| Jul 1 2005 | Filed: confidential declaration of atty Babcock. |
| Aug 25 2005 | Counsel's status report received (confidential) from atty Babcock. |
| Dec 12 2005 | Counsel's status report received (confidential) from atty Babcock. |
| Feb 3 2006 | Counsel's status report received (confidential) from atty Babcock. |
| Feb 6 2006 | Motion to withdraw as counsel filed by attorney Russell Babcock, to be "Relieved as Counsel for Petitioner on Habeas Corpus." |
| Mar 15 2006 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed counsel for permission to withdraw as habeas corpus/executive clemency attorney of record for appellant Frank Manuel Abilez, filed February 6, 2006, is granted. The order appointing appellate counsel Russell S. Babcock to also serve as habeas corpus/executive clemency counsel of record for appellant Frank Manuel Abilez in the above automatic appeal now pending in this court, filed January 15, 2003, is hereby vacated. Babcock continues to be responsible for all remaining appellate duties set forth in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. On the court's own motion, the Habeas Corpus Resource Center is hereby appointed to represent appellant Frank Manuel Abilez for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus counsel's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Frank Manuel Abilez. Russell S. Babcock is directed to deliver to the Habeas Corpus Resource Center, within 30 days from the filing of this order, a copy of the combined record on appeal, and all habeas corpus investigation work product, trial files, trial transcripts, investigation reports, and related materials that he has obtained from appellant Frank Manuel Abilez or his trial counsel, paralegals, experts and investigators, or from any other source. George, C.J., was absent and did not participate. |
| Mar 15 2006 | Order filed In conjunction with the order filed this day permitting Russell S. Babcock to withdraw as appointed habeas corpus/executive clemency counsel of record for appellant Frank Manuel Abilez, with regard to the above-referenced automatic appeal now pending in this court, Babcock is ordered to reimburse this court the sum of $26,000. (See Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in Cal. Supreme Ct., guideline 11 ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"], subpt. B.) George, C.J., was absent and did not participate. |
| May 15 2006 | Counsel's status report received (confidential) from HCRC. |
| Jul 13 2006 | Counsel's status report received (confidential) from HCRC. |
| Sep 12 2006 | Counsel's status report received (confidential) from HCRC. |
| Nov 13 2006 | Counsel's status report received (confidential) from HCRC. |
| Jan 11 2007 | Counsel's status report received (confidential) from HCRC. |
| Mar 12 2007 | Counsel's status report received (confidential) from HCRC. |
| Mar 26 2007 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the May calendars, to be held the first week and last week of May 2007, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Apr 3 2007 | Case ordered on calendar to be argued Wednesday, May 2, 2007, at 1:30 p.m., in San Francisco |
| Apr 13 2007 | Filed letter from: respondent dated April 12, 2007 regarding oral argument focus issues. |
| Apr 16 2007 | Filed letter from: attorney Russell S. Babcock, dated April 13, 2007 re focus issues for oral argument. |
| May 2 2007 | Cause argued and submitted |
| May 11 2007 | Counsel's status report received (confidential) from HCRC. |
| Jun 27 2007 | Notice of forthcoming opinion posted |
| Jun 28 2007 | Opinion filed: Judgment affirmed in full opinion by Werdegar, J. ----- joined by George, C.J., Kennard, Baxter, Chin, Moreno and Corrigan, JJ. |
| Jul 10 2007 | Counsel's status report received (confidential) from HCRC. |
| Jul 11 2007 | Rehearing petition filed by appellant. (1,906 words; 11 pp.) |
| Jul 16 2007 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 26, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Aug 22 2007 | Rehearing denied On the court's own motion the opinion is modified. The petition for rehearing is denied. |
| Aug 22 2007 | Opinion modified - no change in judgment |
| Aug 22 2007 | Remittitur issued (AA) |
| Aug 23 2007 | Related habeas corpus petition filed (post-judgment) case no. S155651. |
| Aug 24 2007 | Change of contact information filed for: atty counsel HCRC. |
| Sep 11 2007 | Counsel's status report received (confidential) from HCRC. |
| Oct 5 2007 | Received: Copy of Petition for a Writ of Certiorari sent to the U.S.S.C. |
| Dec 10 2007 | Received: letter dated December 3, 2007 from U.S.S.C advising that petition for writ of certiorari No. 07-6917 is denied. |
| Dec 19 2007 | Compensation awarded counsel Atty Babcock |
| Briefs | |
| Feb 17 2004 | Appellant's opening brief filed |
| Aug 12 2004 | Respondent's brief filed |
| May 2 2005 | Appellant's reply brief filed |
