Stanford Law School - Robert Crown Law Library

Filed 7/26/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S055528
v.
LAMAR BARNWELL,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA069048

Lamar Barnwell was sentenced to death after a jury found him guilty of
three counts of first degree murder and one count of second degree murder. The
multiple murder convictions constituted the special circumstance required for
imposition of the death penalty.1 The jury found he personally used a firearm in
committing the offenses.2 This appeal is automatic.
We affirm the judgment as modified to reflect that defendant’s sentence on
the second degree murder count is 15 years to life in prison, not the sentence of
life imprisonment without possibility of parole erroneously imposed. (See post, at
pp. 8-9, fn. 7.)

1
Penal Code section 190.2, subdivision (a)(3). Statutory references are to
the Penal Code unless otherwise indicated.
2
Sections 1203.06, subdivision (a)(1)(A) and 12022.5, subdivision (a).
1

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I. FACTUAL AND PROCEDURAL BACKGROUND
A.
Guilt Phase
1. Prosecution
evidence
Defendant’s case is somewhat remarkable in that a policeman saw him
shoot two of the murder victims. One night in 1992 Los Angeles Police Officers
Brad Wise and Greg Smiley were on patrol. As they drove toward a tire shop,
Officer Wise heard a shot. A woman screamed and another shot was fired. Wise
ran up to a high fence surrounding the shop yard and looked through a hole in the
gate. He saw defendant, some 20-25 feet away, standing above two men lying
facedown on the ground.3 Defendant held a large-caliber, semiautomatic, blue
steel pistol in his hand. The men were begging for their lives. Defendant bent
down and put the pistol to the back of one man’s head. Officer Wise heard two
shots. Defendant then fired two more shots into the back of the other man’s head.
Defendant ran but the officers intercepted him as he emerged from another
gate, still holding the pistol.4 Officer Wise told defendant to drop the gun.
Defendant protested, “It wasn’t me.” He ran back toward the gate, but then
stopped and turned toward the officers. Wise thought defendant was going to
shoot them, so he fired four shots at defendant.
Defendant ran back into the yard, where he was found by other officers. He
had been shot three times. When his clothes were cut away by paramedics, a .45-
caliber bullet fell out of his trousers. A .45-caliber semiautomatic pistol, a Colt

3
The scene was lit by street lights and, inside the yard, by a large bonfire
inside a barrel.
4
There was no question in Officer Wise’s mind as to whether it was the
same man. He described the suspect as a Black male with bushy hair and a goatee,
25 to 30 years old, five feet eight inches to five feet nine inches tall, weighing 180
to 190 pounds, and wearing blue jeans and a dark blue sweatshirt with white
writing on the front. The officer testified: “Everything is the same.”
2

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Gold Cup model, was found on the ground inside the gate defendant had
reentered. Expended cartridge casings found at the scene had been fired by the
Colt.
In addition to the two men Officer Wise had seen defendant shoot, the
bodies of a woman and another man were also found. All four victims had been
shot in the head. Eural Johnson was the night watchman and Kenneth Newman
was a friend of his. Jessie Dwight Bingham sometimes slept in a truck parked in
the yard. Sandra Ann Green was his girlfriend. Bullets recovered from the bodies
of Johnson and Green had been fired by the Colt. The record is silent as to
whether slugs were recovered from Bingham and Newman.
Defendant waived his rights and spoke to the police. He said he had ridden
a bicycle to the tire shop to sell cocaine to a man whose name he did not know.
The victims were already on the ground when he arrived. As he left the scene he
was confronted by the police. He put up his hands and said, “I didn’t do it.” He
was shot by the police when he fled.
2. Defense
evidence
Though they were called by the defense, the testimony of Felicia Rich and
Deanna Nolan differed significantly from defendant’s statement. They testified
they were with defendant at a party that night. A tire on Rich’s car was slashed,
and defendant used his car to push hers to the tire shop. Defendant remained at
the shop when Rich and Nolan left. As they drove away, Rich and Nolan heard
shots. Neither of them saw defendant with a weapon that night.5
On rebuttal, Los Angeles Police Officer Vivian Flores testified that, a year
before the murders, she had seen defendant pull a handgun from his waistband and

5
In his statement defendant said nothing about a party, Rich, Nolan, or a
slashed tire.
3

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lunge into the backseat of a parked car. Flores found a stainless steel, .45-caliber
Colt Gold Cup model handgun in the backseat. The Colt Gold Cup model was a
fairly expensive handgun, favored by sportsmen for target shooting. It had been in
production for 30 years. There was no suggestion that the pistol found by Officer
Flores was the weapon involved in this case, which had a blue steel finish.
B. Penalty
Phase
1. Prosecution
evidence
The prosecution introduced evidence that in the four years preceding this
trial defendant had committed two murders, an assault and robbery, and another
assault. None of these crimes had been previously adjudicated.
a.
The murder of Samuel Graham
The morning of September 1, 1988, in an area of Los Angeles County then
given over to horse stables, Samuel Graham was found dead from multiple
gunshot wounds. Earlier that morning a woman who spent the night at one of the
stables heard what may have been the shots and, seconds later, the screeching of
tires. According to prosecution witnesses, defendant abducted Graham, apparently
twice, the day before he was murdered.
Dean Drake testified that on the afternoon of August 31, he and Graham
were standing on a sidewalk in Oceanside talking when a white truck pulled up.
Defendant jumped out and ordered Graham to accompany him. When Graham did
not respond, defendant struck him hard in the face with a jacket. Frightened,
Graham put his head down and got into the truck with defendant and the driver, a
Black man with a bald head. 6 That was the last time Drake saw Graham alive.
Evidence established that Drake suffered from substantially diminished

6
Drake was also frightened of defendant. Defendant had once broken his
nose, to force him to join defendant’s gang. On another occasion defendant had
shot him in the leg for no apparent reason.
4

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intelligence and a faulty memory. He admitted he was a drug dealer and
repeatedly contradicted himself during his testimony.
Carol Leonard testified that in the early evening of August 31, she spoke to
Graham at an Oceanside convenience store. Defendant and a bald-headed Black
man were standing at the door. Graham was almost in tears and could barely talk.
He told Leonard, “They’re gonna kill me.” The two men walked Graham out of
the store and drove off with him in a white truck. Leonard never saw Graham
alive again.
b.
The murder of Johnnie Cox
One evening in July 1989, James Rankins was in Stockton, sitting on a park
bench with his friend Johnnie Cox. Rankins was a member of the Conway Crips
gang; Cox was not a gang member. They were accosted by defendant and several
other members of the L.A. Boys gang. One of the L.A. Boys hit Cox. As Cox
fled, defendant shot him. Rankins was under the influence of drugs at the time.
However, “it didn’t stop me from seeing what was going on. I was alert.” There
was no doubt in his mind that defendant was the man who shot Cox. Rankins
admitted he had been interviewed by the police on several occasions before the
trial and had denied knowing who shot Cox.
Tina Coit was in the Stockton park and saw defendant shoot a man running
from him. Coit admitted she was “pretty loaded” on crack cocaine when the
shooting occurred. Questioned at the time, she told police she did not witness the
shooting. She initially maintained that story when questioned by the officers
preparing for this prosecution. When told they would inform her parole officer if
she did not cooperate, she agreed to talk to them. They showed her an album and
repeatedly pointed at defendant’s photograph, saying, “That’s him, isn’t it?” At
trial, Coit maintained that her testimony was not affected by concern over her
previous parole status.
5

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A pathologist testified that Cox died of gunshot wounds, one of which was
consistent with his having been shot while running away from his assailant.
c.
The assault on Hattie Louise Heath
Heath had known defendant for a long time; he and her son had been good
friends since elementary school. In 1987, she purchased rock cocaine from him
and, despite his repeated demands, failed to pay him $5 of the purchase price.
Encountering defendant on the street, Heath fled. When she took refuge in an
apartment building, he shot at her twice through the door. He also shot a man who
tried to assist her. Heath identified defendant to the police, but later dropped the
charges because she feared for her life.
d.
The robbery and assault of Michael Oliver
Oliver was a rock cocaine dealer in Stockton. One evening in 1991, three
men assaulted him, demanding drugs and money. The lower half of one of the
men’s faces was covered by a cloth. Nevertheless, Oliver knew defendant and
recognized him by sight and by his distinctive voice. The men took Oliver’s
money and jewelry. Defendant beat him with a pistol and shot him in the arm.
Because defendant had a reputation as a killer, Oliver did not identify him to the
police.
2.
Defense evidence
Defendant’s paternal grandmother, Bertha Barnwell, testified that defendant
was born out of wedlock. His mother Susan was 16 and his father James was 20.
Although they later married, James had numerous affairs and abandoned his
family when defendant was six. Susan abused drugs and alcohol. She stabbed
James and another boyfriend. One weekend, when defendant was 15, Susan
brought him to Ms. Barnwell’s house and said she would be back on Monday.
Three months later her body was found in a deserted building. Always a quiet
child, after his mother’s death defendant became even more withdrawn. His
6

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grades suffered. During the two or three years he lived with Ms. Barnwell
defendant had no troubles with the law.
Defendant’s
maternal
grandmother,
Ola Pork, described him as a good
child who “didn’t smoke, didn’t drink, didn’t run the streets.” He was a good
father to his six children.
Defendant’s father, James Lamar Barnwell, was allowed to testify although
he reeked of alcohol. Mr. Barnwell testified that he began selling drugs when he
was 12 or 13 to support his mother Bertha. He was incarcerated in Soledad State
Penitentiary when defendant was born. When defendant was 12 or 13, Mr.
Barnwell abandoned his family and fled to Georgia because he had violated the
terms of his California probation.
Defendant’s paternal aunt, Margaret Benita Robinson, testified that
defendant’s father was an alcoholic all of defendant’s life. Defendant’s mother
also abused drugs and alcohol, even when she was pregnant. Defendant’s parents
fought, sometimes physically. Angered over one of her husband’s affairs,
defendant’s mother cut up all of his clothes. She was sometimes incarcerated
when her children were small.
Another paternal aunt, Clementene Adams, described defendant’s father as
an ineffective parent who abused alcohol. Defendant’s mother also drank and
used drugs. Once, when defendant was 10, he had to drive her home because she
was so intoxicated. Defendant was a quiet, withdrawn child.
The mother of defendant’s two sons said he was a good father who saw his
children on a daily basis before he was arrested. A former neighbor who had
known defendant since he was a child, described him as an “all around good guy”
who was always respectful. A childhood friend said defendant was a nice person
who was close to her children and helpful to neighbors.
7

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Clyde Terry, a deputy sheriff in charge of defendant’s jail module, testified
that his dealings with defendant were always positive. Defendant told Deputy
Terry he was a member of the Main Street Crips. Loy McBride, another deputy
assigned to the jail, had known defendant for two years and found him quiet and
polite.
Dr. William Vicary, a psychiatrist, interviewed defendant for seven hours.
He also reviewed reports of the interviews defense investigators conducted with
defendant’s family members, defendant’s school and medical records, and the
police reports of this case and of defendant’s prior unadjudicated offenses. Dr.
Vicary concluded that defendant reacted to his traumatic childhood by treating his
gang as a family. Defendant’s school records indicated difficulty with attention
and concentration, poor self-control, hyperactivity, and poor memory. He was
thought to have a learning disability and his IQ tested in the borderline range of
mental retardation. His hyperactivity was untreated. However, based on his own
evaluation, Dr. Vicary concluded that defendant was sane, competent to stand
trial, of average intelligence, and not psychotic. He had no brain damage.
On cross-examination, Dr. Vicary expressed the opinion that if defendant
“was still on the streets, there would probably be more dead bodies.” Defendant
was also involved in “serious fights” while in jail. As a gang member, he could
become a “real threat” in prison. “He could get involved in the drug
trafficking . . . and extortions . . . and homicides that take place in prison.”
Defendant had never expressed any remorse for these crimes or for any of his
other crimes.
C. Judgment
The jury found defendant guilty of the first degree murders of Eural
Johnson, Kenneth Newman, and Sandra Ann Green, as well as the second degree
murder of Jesse Dwight Bingham. The trial court sentenced him to death on the
8

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first degree murder counts and to life imprisonment without possibility of parole
on the second degree murder count. As the People concede, the second degree
murder sentence is error.7 We affirm the judgment as to the first degree murder
counts, but modify it as to the second degree murder count to reflect the fact that
the correct sentence for that count is a state prison term of 15 years to life.
II. DISCUSSION
A.
Discharge of Juror R.D.
The trial court discharged Juror R.D. for failing to deliberate. Specifically,
it found his refusal to deliberate was “based upon his disbelief of police officers’
testimony.” Accordingly, our review is focused on the question whether the
record demonstrates8 that Juror R.D. exhibited a general bias against police
officers that prevented him from fairly weighing police testimony in this case.
On the second day of deliberations, the jury sent two notes to the court
stating that “[w]e need assistance in deliberating” and that “this one juror is not
deliberating as [he] should be.” In response, the court reread CALJIC No. 17.40
on the duty to deliberate. Juror R.D. identified himself as the subject of the jury’s
notes. In a sidebar conversation, he denied he had refused to deliberate and
promised he would follow the court’s instructions. The court directed the jury to
resume deliberations.

7
Defendant filed a supplemental brief arguing that the judgment should be
modified to reflect that his sentence on the second degree murder count (count IV)
is 15 years to life. Subject to certain exceptions not applicable here, that is the
sentence provided for second degree murder. (§ 190, subd. (a).) A claim that a
sentence is unauthorized may be raised for the first time on appeal, and is subject
to correction whenever the error comes to the attention of the reviewing court.
(People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
8
See the discussion of the appropriate standard of review post, at pages 14-
16.
9

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After lunch the jury sent out another note to the court stating that the
problem juror seemed to have a bias against law enforcement officers. It read in
pertinent part: “Since [the beginning of deliberations] we have been trying to
reason and discuss the situation [but] to no avail. Now we’re at a standstill and
don’t know what to do. There was a question asked to [Juror R.D.] about whether
or not he believes what Sgt. Montgomery or Sgt. Woodhead said, and the response
was would you believe them, their [sic] going to back up what the other cops say,
so it seems to be some bias against the cops. We ask the juror if he is willing to
deliberate. He said “ ‘yes, but I will never change my opinion.’ ”
In response to this third note, the court conducted a hearing and took
testimony from all 12 jurors. Juror R.D. claimed he was not biased against all law
enforcement officers, but simply disbelieved the officers in this case. However,
nine of the 11 other jurors testified that R.D. had expressed or exhibited a general
bias against law enforcement officers. The testimony of the remaining two jurors
was inconclusive.
Juror R.D. testified, “it’s not all the police officers that I have a concern
with. It’s just a few, and I think [they] are the relevant ones in the case. And I
don’t consider their testimony.” The court asked R.D. whether there had been any
discussion among the jurors “about disbelieving police officers’ testimony simply
because they are police officers.” R.D. responded, “Yes. Two people, I believe,
feel that that’s my problem, but that’s absolutely not true.”
Jurors C.T., M.B., R.W., and S.C. contradicted R.D.’s assertions. They
specifically quoted statements by R.D. expressing a bias against police officer
testimony.9 According to C.T., R.D. had made up his mind before deliberations

9
R.D.’s fellow jurors did not mention him by name. However, as we have
stated, R.D. identified himself as the juror of concern.
10

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began and when the other jurors tried to discuss the case with him, R.D. stated that
nothing anyone could say would change his mind. That prompted the jury to send
its first note to the court. When the court again instructed the jury on the duty to
deliberate, “[W]e came to another problem. He stated that he feels that all law
enforcement will always back each other up regardless of [whether] it is right or
wrong. . . . All law enforcement will back each other up. And he will not change
that. He says that all witnesses that have been brought to the stand . . . that are
involved in law enforcement in any way have lied.” (Italics added.) The other
jurors appealed to R.D. to consider “all evidence, not just the fact that law
enforcement is involved.” R.D. responded, “I don’t care. I can sit here all day,
and there’s nothing, nothing that anybody could say. Law enforcement lies.”
Juror R.W. testified: “We have one gentleman who says he has . . . an open
mind towards deliberation but really does not. He’s convinced that . . . a
policeman has lied, and there was a conspiracy to maintain that aspect of things.
He thinks that all, all policemen lie, and that’s what’s been said.” The court asked
R.W. whether R.D. had conveyed to the other members of the jury a belief that all
policemen lie. R.W. responded, “That was what came out of his mouth at one
point.”
The court had the following colloquy with Juror M.B. “The Court: Is there
any aspect of the evidence or testimony that this jur[or] appears to be dogmatic in?
[¶] [M.B.]: Yes. [¶] The Court: And what type of testimony is that? [¶]
[M.B.]: Well, it’s like he’s got a thing against cops. He’s very negative toward
them. [¶] The Court: Okay. What do you mean by ‘very negative.’ [¶] [M.B.]:
Well, I asked him a question. I said do you believe the testimony of two of the
sergeant[s]. He was, like, ‘Would you believe them? They are there to back up
the other cops.’ So I feel that’s a dead-end situation.”
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Juror S.C. was the foreperson. According to S.C., R.D. was “prejudiced”
against the Los Angeles Police Department. The court inquired whether that was
what R.D. had said. S.C. responded, “Not in those words but close.” The court
asked what words R.D. did use. S.C. replied, “If one does something wrong that
they will all back him up.” The colloquy continued. “The Court: I notice in your
statement it says, ‘There was a question asked to the same juror about whether or
not he believes what Sergeant Montgomery or Sergeant Woodhead said,’ and the
response was ‘Would you believe them? They are going to back up what the other
cops say.’ So it seems to be some bias against the cops? [¶] [S.C.]: Yes.”
The other five jurors whose testimony supported the trial court’s finding of
bias did not quote R.D. directly, but instead summarized his attitude toward police
officer testimony based on their observations of his behavior. Juror M.L. testified
that R.D. seemed to have a “bias against the Los Angeles Police Department, and
that’s about it.” Juror M.V. reported that R.D. “just flat out has disbelief in
police.” Juror S.G. told the court that R.D. seemed to have “a bias towards police
officers.” “He hasn’t said it directly, but in a roundabout way that’s the
impression that I’m getting.” Juror S.H. stated, “I have an impression that [R.D.]
has some biases towards law enforcement, but . . . that’s just an impression.”
According to Juror R.M., R.D. was “close[]-minded” toward police officer
testimony. On the other hand, R.D. did discuss the evidence with the other jurors
and he disbelieved defense as well as prosecution witnesses.
The remaining jurors were A.B. and M.F. Juror A.B. reported that R.D.
said he did not believe the officers’ testimony in this case, that they were liars.
However, she did not characterize Juror R.D.’s attitude as a general bias against
police officer testimony. “The Court: Did [R.D.] indicate to you that he wouldn’t
believe any of the police officers? [¶] [A.B.]: No. [¶] The Court: So he just
didn’t believe what the police officers were saying. [¶] [A.B.] That’s right. Or
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what they said as far as this case was concern[ed].” Juror M.F. was asked by the
court whether any of the jurors indicated they would not believe police officer
testimony. M.F.’s response was not a model of clarity, but it could not be fairly
characterized as affirmative. His answer was as follows: “Um, it would be, like,
somewhat like that. But to actually say that for every part of—for every part of
everyday life, they wouldn’t say that. But in some cases they would.”
After the hearing and receiving the arguments of counsel, the court excused
R.D. “[I]n my opinion, . . . in deliberating this one juror, [R.D.], is not following
the court’s instructions. I feel that his lack of participation is based upon his
disbelief of police officers’ testimony.”
Defendant
contends
the
discharge was without good cause, violating his
right to a jury trial under the Sixth Amendment to the United States Constitution
and article 1, section 16 of the California Constitution, as well as his right to due
process of law under the Fourteenth Amendment to the United States Constitution.
The contention fails on this record.
When a court is informed of allegations which, if proven true, would
constitute good cause for a juror’s removal, a hearing is required. (People v.
Burgener (2003) 29 Cal.4th 833, 878 (Burgener); People v. Cleveland (2001) 25
Cal.4th 466, 478 (Cleveland).)
A juror who is actually biased is unable to perform the duty to fairly
deliberate and thus is subject to discharge. (People v. Ayala (2000) 24 Cal.4th
243, 272 (Ayala); People v. Nesler (1997) 16 Cal.4th 561, 581 (lead opn.)
(Nesler).) Specifically, a bias against law enforcement officers that renders a juror
unable to fairly weigh police testimony is grounds for the juror’s replacement.
(People v. Feagin (1995) 34 Cal.App.4th 1427, 1437; People v. Thomas (1990)
218 Cal.App.3d 1477, 1485 (Thomas); see Nesler, at p. 588 [citing Thomas with
13

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approval].) Bias may be established by the testimony of other jurors. (Ayala, at p.
272; Nesler, at p. 581.)
A distinction must be made, of course, between a juror who cannot fairly
deliberate because of bias and one who, in good faith, disagrees with the others
and holds his or her ground. “The circumstance that a juror does not deliberate
well or relies upon faulty logic or analysis does not constitute a refusal to
deliberate and is not a ground for discharge. Similarly, the circumstance that a
juror disagrees with the majority of the jury as to what the evidence shows, or how
the law should be applied to the facts, or the manner in which deliberations should
be conducted does not constitute a refusal to deliberate and is not a ground for
discharge. A juror who has participated in deliberations for a reasonable period of
time may not be discharged for refusing to deliberate, simply because the juror
expresses the belief that further discussion will not alter his or her views.
[Citation.]” (Cleveland, supra, 25 Cal.4th at p. 485.)
Removing a juror is, of course, a serious matter, implicating the
constitutional protections defendant invokes. While a trial court has broad
discretion to remove a juror for cause,10 it should exercise that discretion with
great care.
We have given two different formulations of the applicable standard on
review. On the one hand, we have stated that a court’s decision to remove a juror
is to be upheld if supported by “substantial evidence.” (See, e.g., People v.
Williams (2001) 25 Cal.4th 441, 448.) “Substantial evidence” has been
characterized as a “deferential” standard. (See, e.g., People v. Carter (2005) 36

10 See,
e.g.,
People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19 (Boyette).
14

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Cal.4th 1114, 1140.)11 On the other hand, we have stated, often in the same
opinion, that a juror’s disqualification must appear on the record as a
“ ‘ “ ‘demonstrable reality.’ ” ’ ” (E.g., Cleveland, supra, 25 Cal.4th at p. 474; See
People v. Marshall (1996) 13 Cal.4th 799, 843; see also Boyette, supra, 29 Cal.4th
381.) The demonstrable reality standard traces back to Justice Mosk’s majority
opinion in People v. Compton (1971) 6 Cal.3d 55, 60. This standard “indicates
that a stronger evidentiary showing than mere substantial evidence is required to
support a trial court’s decision to discharge a sitting juror.” (Cleveland, supra, at
p. 488 (conc. opn. of Werdegar, J.).)
To dispel any lingering uncertainty, we explicitly hold that the more
stringent demonstrable reality standard is to be applied in review of juror removal
cases. That heightened standard more fully reflects an appellate court’s obligation
to protect a defendant’s fundamental rights to due process and to a fair trial by an
unbiased jury.
A substantial evidence inquiry examines the record in the light most
favorable to the judgment and upholds it if the record contains reasonable, credible
evidence of solid value upon which a reasonable trier of fact could have relied in
reaching the conclusion in question. Once such evidence is found, the substantial
evidence test is satisfied. (See People v. Johnson (1980) 26 Cal.3d 557, 578.)
Even when there is a significant amount of countervailing evidence, the testimony
of a single witness that satisfies the standard is sufficient to uphold the finding.
The demonstrable reality test entails a more comprehensive and less
deferential review. It requires a showing that the court as trier of fact did rely on
evidence that, in light of the entire record, supports its conclusion that bias was

11
“Although ‘substantial’ evidence is not synonymous with ‘any’
evidence . . . , the standard is easily satisfied.” (9 Witkin, Cal. Procedure (4th ed.
1997) Appeal, § 363, p. 413, citation omitted.)
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established. It is important to make clear that a reviewing court does not reweigh
the evidence under either test. Under the demonstrable reality standard, however,
the reviewing court must be confident that the trial court’s conclusion is
manifestly supported by evidence on which the court actually relied.
In reaching that conclusion, the reviewing panel will consider not just the
evidence itself, but the record of reasons the court provides. A trial court
facilitates review when it expressly sets out its analysis of the evidence, why it
reposed greater weight on some part of it and less on another, and the basis of its
ultimate conclusion that a juror was failing to follow the oath. In taking the
serious step of removing a deliberating juror the court must be mindful of its duty
to provide a record that supports its decision by a demonstrable reality.
The evidence bearing on the question whether a juror has exhibited a
disqualifying bias during deliberations may be in conflict. Often, the identified
juror will deny it and other jurors will testify to examples of how he has revealed
it. (See, e.g., Thomas, supra, 218 Cal.App.3d 1477, 1482-1485 [bias against
police officers].) In such a case the trial court must weigh the credibility of those
whose testimony it receives, taking into account the nuances attendant upon live
testimony. The trial court may also draw upon the observations it has made of the
jurors during voir dire and the trial itself. Naturally, in such circumstances, we
afford deference to the trial court’s factual determinations, based, as they are, on
first-hand observations unavailable to us on appeal.
Here, the trial court stated its reason for removing R.D.: “disbelief of
police officers’ testimony.” The court did not expressly state that it did not
believe R.D.’s disclaimer of a general bias preventing him from fairly weighing
the testimony of the officers in this case. However, the clear thrust of the court’s
ruling is that it did find the testimony of the nine jurors who stated that R.D.
expressed or exhibited such a bias to be credible, and based its decision on that
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finding. Based on this record we are satisfied that R.D.’s disqualifying bias was
established to a “demonstrable reality.” The totality of the evidence here supports
the trial court’s evident conclusion that, more than simply disbelieving the
testimony as given by these particular witnesses, R.D. judged their testimony by a
different standard because the witnesses were police officers. Applying such
different standards to the evaluation of different witnesses is, of course, contrary to
the court’s instructions and violative of the juror’s oath of impartiality. (See, e.g.,
Judicial Council of Cal. Crim. Jury Instns. (2006), CALCRIM No. 105,
Witnesses.)
Finally, defendant contends that the court’s inquiry into R.D.’s alleged bias
unnecessarily intruded upon the sanctity of the jury’s deliberations, in violation of
his rights under the Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution.
“[A] trial court’s inquiry into possible grounds for discharge of a
deliberating juror should be as limited in scope as possible, to avoid intruding
unnecessarily upon the sanctity of the jury’s deliberations. The inquiry should
focus upon the conduct of the jurors, rather than upon the content of the
deliberations. Additionally, the inquiry should cease once the court is satisfied
that the juror at issue is participating in deliberations and has not expressed an
intention to disregard the court's instructions or otherwise committed misconduct,
and that no other proper ground for discharge exists.” (Cleveland, supra, 25
Cal.4th at p. 485.)
The inquiry here was appropriately limited. The final note from the jury
raised the concern of bias against police officer testimony. It bears repeating that
the court was required to conduct a hearing to resolve that concern. (Burgener,
supra, 29 Cal.4th at p. 878; Cleveland, supra, 25 Cal.4th at p. 478.) The first
juror called was C.T. The court admonished her: “Miss [T.], we received
17

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questions from the jury panel regarding the deliberative process. Now, be very
careful, and do not volunteer any information about the determination of guilt or
innocence in this case. That’s not why you’re here. What the court is trying to
find out is what is the problem as far as deliberation in this case.”12 Without
further questions from the court, C.T. testified that R.D. had directly expressed a
general bias against police officer testimony: “ ‘Law enforcement lies.’ ” Given
C.T.’s testimony, the court was clearly required to examine the other jurors. As it
did so, it focused narrowly on the matter at issue. We find no error.
B.
Application of People v. Engelman
In People v. Engelman (2002) 28 Cal.4th 436 (Engelman), this court
considered “whether trial courts should advise juries in the terms of CALJIC No.
17.41.1, a recently drafted pattern jury instruction given in criminal cases. This
instruction informs jurors at the outset of jury deliberations that ‘should . . . any
juror refuse[] to deliberate or express[] an intention to disregard the law or to
decide the case based on penalty or punishment, or any other improper basis, it is
the obligation of the other jurors to immediately advise the Court of the situation.’
(CALJIC No. 17.41.1 (1998 new) (6th ed. 1996).)” (Engelman, at p. 439.)
We concluded that “the instruction does not infringe upon defendant’s
federal or state constitutional right to trial by jury or his state constitutional right to
a unanimous verdict,” and upheld the Court of Appeal’s decision affirming the
judgment of conviction. (Engelman, supra, 28 Cal.4th at pp. 439-440.) However,
in the exercise of our supervisory power, we directed that the instruction not be
given in future trials. (Id. at p. 449.) “Although jurors have no right to refuse to
deliberate or to disregard the law in reaching their decision, we believe the
instruction has the potential to intrude unnecessarily on the deliberative process

12
The court gave much the same admonition to the other jurors.
18

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and affect it adversely―both with respect to the freedom of jurors to express their
differing views during deliberations, and the proper receptivity they should accord
the views of their fellow jurors.” (Id. at p. 440.)
Because this trial occurred before CALJIC No. 17.41.1 was adopted, it was
not given here. However, defendant contends that remarks made by the court and
prosecutor during voir dire were objectionable on the same grounds.
During voir dire, while instructing the prospective jurors on their duty to
deliberate, the court asked one panel: “Now, if such a thing were to happen that a
juror refused to deliberate, would you be strong [enough] to remind that juror that
they were violating their oath?” The jurors answered yes. The court continued:
“Would you be strong enough to bring it to my attention if that behavior
persisted?” The jurors again answered yes. Essentially the same exchange
occurred with another panel. In his voir dire, the prosecutor gave examples of
juror misconduct, such as discussing the case with a nonjuror, and asked some of
the prospective jurors whether they would bring such misconduct to the attention
of the court.
As we made clear in Engelman, even the giving of a formal jury instruction
on these topics would not have infringed upon defendant’s federal or state
constitutional rights to trial by jury or his state constitutional right to a unanimous
verdict. (Engelman, supra, 28 Cal.4th at pp. 439-440.) Moreover, the remarks
made by the court and prosecutor did not invite the jurors to act as though they had
“a license to scrutinize other jurors for some ill-defined misconduct rather than to
remain receptive to the views of others.” (Id. at p. 447.)
C. Defendant’s
Earlier
Handgun
Possession
On rebuttal, and over the objection of defendant, the trial court admitted the
testimony of Officer Vivian Flores, which tended to show that a year before the
19

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murders defendant possessed another handgun similar to the murder weapon.
(Ante, at pp. 3-4.)
The trial court ruled that Officer Flores’s testimony was relevant to
defendant’s identity as the murderer because the “relatively unique” characteristics
of the pistol she found in his possession demonstrated his “propensity to own or
carry that type of weapon.” (Italics added.) The court concluded that the
probative value of the evidence outweighed any resulting prejudice.
When the prosecution relies on evidence regarding a specific type of
weapon, it is error to admit evidence that other weapons were found in the
defendant’s possession, for such evidence tends to show not that he committed the
crime, but only that he is the sort of person who carries deadly weapons. (People
v. Cox (2003) 30 Cal.4th 916, 956; People v. Riser (1956) 47 Cal.2d 566, 577.)
Because the prosecution did not claim the weapon found by Officer Flores was the
murder weapon, its admission was error.
Moreover, as defendant correctly contends, the trial court erred under
Evidence Code section 1101 in two respects. First, under section 1101,
subdivision (a), “propensity” evidence is generally inadmissible.13 Second,
Officer Flores’s testimony was also inadmissible under subdivision (b).14

13
Evidence Code section 1101, subdivision (a) provides: “Except as
provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a
person’s character or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her conduct on a specified
occasion.”
14
Evidence Code section 1101, subdivision (b) provides: “Nothing in this
section prohibits the admission of evidence that a person committed a crime, civil
wrong, or other act when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident, or
whether a defendant in a prosecution for an unlawful sexual act or attempted
unlawful sexual act did not reasonably and in good faith believe that the victim
consented) other than his or her disposition to commit such an act.”
20

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To be admissible on the issue of identity, an uncharged crime must be
highly similar to the charged offenses, so similar as to serve as a signature or
fingerprint. (People v. Gray (2005) 37 Cal.4th 168, 203; People v. Kipp (1998) 18
Cal.4th 349, 369-370; People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
Defendant’s previous possession of a weapon, even of a similar weapon, is
not so distinctive on these facts as to serve as a signature or a fingerprint
supporting a conclusion that because he had committed the earlier offense he must
have committed the one for which he was on trial. We also note that even
evidence properly admitted under Evidence Code section 1101, subdivision (b)
cannot be relied upon to prove propensity or disposition.
Defendant contends the erroneous admission of Officer Flores’s testimony
denied him due process under the Fifth and Fourteenth Amendments and
undermined his right to reliable guilt and penalty determinations under the Eighth
Amendment to the federal Constitution. However, admission of the testimony was
clearly harmless beyond a reasonable doubt. (See People v. Hughes (2002) 27
Cal.4th 287, 333.) Here, Officer Wise saw defendant shoot two of the victims.
Wise precisely described defendant and the .45-caliber pistol he used. Defendant
was still holding the pistol when he ran out of the gate. Thereafter, a .45-caliber
bullet was found in defendant’s pocket, the pistol was found nearby, and the
bullets recovered from the victims’ bodies had been fired from it. (Ante, at pp. 2-
3.)
D.
Consciousness of Guilt Instruction
Defendant’s statement to the police and the story he presented at trial
through his witnesses Rich and Nolan gave two entirely different accounts of why
he went to the crime scene, how he got there, and what he found when he arrived.
Defendant told the police he had ridden a bicycle to the tire shop to sell rock
cocaine to some unnamed person. The gate was open and the victims were on the
21

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ground when he arrived. However, Rich and Nolan testified he had used his car to
push Rich’s car to the shop to repair a slashed tire. The locked gate was opened
by an employee, who fixed Rich’s tire.
In light of these discrepancies, the court instructed the jury, over
defendant’s objection, that it could consider any false statements made by
defendant as evidence of his consciousness of guilt of the charged offenses,
although such conduct alone is insufficient to prove guilt, and its weight and
significance, if any, are matters for the jury. (See CALJIC No. 2.03.)
Defendant contends the instruction was impermissibly argumentative and
encouraged the jury to make an irrational inference, thereby violating his federal
and state constitutional rights to due process, a jury trial before a properly
instructed jury, and a fair and reliable capital trial. (U.S. Const., 6th, 8th & 14th
Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17.) The instruction was properly
given here. The jury could rationally infer that defendant made a false statement
to deflect suspicion from himself. (People v. Rankin (1992) 9 Cal.App.4th 430,
436.) We have repeatedly rejected arguments attacking the instruction (People v.
Nakahara (2003) 30 Cal.4th 705, 713, and cases cited) and defendant offers no
persuasive reason to reconsider our views.
E.
Prior Unadjudicated Offenses
Contrary to defendant’s assertions, introduction of evidence concerning his
unadjudicated offenses (ante, at pp. 4-6), under section 190.3, factor (b), did not
offend the federal Constitution. (People v. Manriquez (2005) 37 Cal.4th 547, 590;
People v. Elliott (2005) 37 Cal.4th 453, 488 (Elliott); People v. Barnett (1998) 17
Cal.4th 1044, 1178.) The expiration of the statute of limitations for some of the
unadjudicated offenses affected the weight of the evidence, not its admissibility.
(People v. Koontz (2002) 27 Cal.4th 1041, 1088; People v. Medina (1995) 11
22

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Cal.4th 694, 772; People v. Rodrigues (1994) 8 Cal.4th 1060, 1161.) Johnson v.
Mississippi (1988) 486 U.S. 578 is inapposite.15
F.
Constitutionality of California’s Death Penalty Statute
Defendant mounts a number of challenges to California’s death penalty
statute that we have often considered and repeatedly rejected. Our views remain
the same.
The death penalty law adequately narrows the class of death-eligible
offenders. (See, e.g., People v. Dickey (2005) 35 Cal.4th 884, 931 (Dickey).)
Consideration of the circumstances of the crime under section 190.3, factor
(a) does not result in arbitrary or capricious imposition of the death penalty. (See,
e.g., People v. Brown (2004) 33 Cal.4th 382, 401 (Brown).)
The death penalty is not unconstitutional for failing to impose a specific
burden of proof as to the existence of aggravating circumstances, the greater
weight of aggravating circumstances over mitigating circumstances, or the
appropriateness of a death sentence. (See, e.g., Brown, supra, 33 Cal.4th 382,
401.) Nor do the high court’s decisions in Apprendi v. New Jersey (2000) 530
U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, or Blakely v. Washington (2004)
542 U.S. 296 alter this conclusion, either with respect to the existence of an

15
“Defendant cites Johnson v. Mississippi, [supra,] 486 U.S. 578 as holding
that the procedures for considering aggravating evidence of other crimes must
conform in all respects to the constitutional standards governing proof of charged
offenses. But Johnson does not so hold. In that decision, the high court reversed a
death judgment because the prosecution had been allowed to prove a prior
conviction with nothing more than the record of a judgment that had been reversed
on appeal; ‘the prosecutor did not introduce any evidence concerning the alleged
assault itself . . . .’ (Johnson v. Mississippi, supra, at p. 585.) Here, in contrast,
the People did not seek to prove a prior conviction for rape. Instead, they merely
proved other violent criminal conduct by defendant (§ 190.3, factor (b)) through
properly admitted evidence. About this, Johnson has nothing to say.” (People v.
Yeoman (2003) 31 Cal.4th 93, 137-138.)
23

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aggravating factor or as to the determination whether aggravating factors outweigh
mitigating factors. (See, e.g., People v. Cornwell (2005) 37 Cal.4th 50, 104.)
The jury need not make written findings, or achieve unanimity as to
specific aggravating circumstances, or find beyond a reasonable doubt that an
aggravating circumstance is proved (except for other crimes). (See, e.g., People v.
Morrison (2004) 34 Cal.4th 698, 730.)
Intercase proportionality review is not constitutionally required. (Dickey,
supra, 35 Cal.4th at p. 931.)
A penalty phase jury may consider prior unadjudicated criminal conduct
under section 190.3, factor (b), and the jury need not make a unanimous finding
that the defendant was guilty of the unadjudicated crimes. (See, e.g., Elliot, supra,
37 Cal.4th at p. 488.)
Section 190.3’s use of adjectives such as “extreme” (id., factors (d), (g))
and “substantial” (id., factor (g)) in describing mitigating circumstances does not
impermissibly limit consideration of such factors. (See, e.g., Elliot, supra, 37
Cal.4th at p. 488.)
A penalty phase jury need not be instructed that section 190.3, factors (d),
(e), (f), (g), (h), and (j) can only mitigate, and not aggravate, the crime. (See, e.g.,
Elliot, supra, 37 Cal.4th at p. 488.)
The death penalty law does not deny capital defendants equal protection
because it provides a different method of determining the sentence than is used in
noncapital cases. (See, e.g., People v. Smith (2005) 35 Cal.4th 334, 374.)
The death penalty as applied in this state is not rendered unconstitutional
through operation of international law and treaties. (See, e.g., Elliot, supra, 37
Cal.4th at p. 488.)
24

---

III. DISPOSITION
We affirm the judgment as modified to reflect that defendant’s sentence on
count IV is imprisonment for 15 years to life .
CORRIGAN, J.

WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
25

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Barnwell
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S055528
Date Filed: July 26, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Morris Bruce Jones

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Jay Colangelo,
Assistant State Public Defender, Jessica K. McGuire and Carolyn R. Lange, Deputy State Public
Defenders, 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, John R. Gorey, Catherine Okawa Kohm and
Steven Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jessica K. McGuire
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676

Steven Mercer
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-4915

---

Opinion Information

Date:	Docket Number:
Thu, 07/26/2007	S055528

Disposition
Jul 26 2007	Opinion: Affirmed as modified

Dockets
Aug 9 1996	Judgment of death
Aug 16 1996	Filed certified copy of Judgment of Death Rendered   8-9-96.
Sep 21 2000	Order appointing State Public Defender filed   to represent applt for the direct appeal.
Nov 17 2000	Received letter from:   LA Superior Court dated 9/26/2000 advising record was sent to applt counsel same date.
Nov 20 2000	Counsel's status report received (confidential)   from State P.D.
Dec 22 2000	Application for Extension of Time filed   by applt to request correction of the record.
Dec 26 2000	Extension of Time application Granted   to applt to 2-27-2001 to request correction and augmentation of the record.
Jan 16 2001	Counsel's status report received (confidential)   from State P.D.
Feb 23 2001	Application for Extension of Time filed   By applt to request corr. of the record. (2nd request)
Feb 27 2001	Extension of Time application Granted   To 4/30/2001 to applt to request corr. of the record.
Mar 15 2001	Counsel's status report received (confidential)   from State P.D.
Apr 27 2001	Application for Extension of Time filed   By applt to request corr. of the record. (3rd request)
Apr 30 2001	Extension of Time application Granted   To 6/29/2001 to applt. to request corr. of the record.
May 11 2001	Counsel's status report received (confidential)   from State P.D.
Jun 28 2001	Application for Extension of Time filed   by applt to request record correction. (4th request)
Jul 9 2001	Extension of Time application Granted   To 8/28/1001 to applt. to request corr. of the record. No further extensions of time are contemplated.
Jul 10 2001	Counsel's status report received (confidential)   from State P.D.
Aug 24 2001	Application for Extension of Time filed   by applt. to request corr. of the record. (5th request)
Aug 29 2001	Extension of Time application Granted   To 10/29/2001 to applt. to request corr. of the record. No further extensions of time are contemplated.
Sep 6 2001	Counsel's status report received (confidential)   from State P.D.
Nov 2 2001	Counsel's status report received (confidential)   from State P.D.
Nov 5 2001	Received copy of appellant's record correction motion   applt's request for correction and completion of the record. (35 pp.)
Jan 3 2002	Counsel's status report received (confidential)   from State P.D.
Mar 4 2002	Counsel's status report received (confidential)   from State P.D.
May 6 2002	Counsel's status report received (confidential)   from State P.D.
Jul 3 2002	Counsel's status report received (confidential)   from State P.D.
Aug 30 2002	Counsel's status report received (confidential)   from State P.D.
Nov 4 2002	Counsel's status report received (confidential)   from State P.D.
Jan 3 2003	Counsel's status report received (confidential)   from State P.D.
Jan 15 2003	Record on appeal filed   C-15 (3,341 pp.) and R-22 (3,155 pp) including 1,954 pp. of juror questionnaires, material under seal, and ascii disks.
Jan 15 2003	Appellant's opening brief letter sent, due:   2-24-2003.
Jan 21 2003	Filed:   1 vol. R.T. (record certification hearing of 12-9-02) (3 pp.)
Feb 19 2003	Request for extension of time filed   to file AOB. (1st request)
Feb 24 2003	Extension of time granted   to 4-25-2003 to file AOB.
Feb 27 2003	Counsel's status report received (confidential)   from State P.D.
Apr 24 2003	Request for extension of time filed   to file appellant's opening brief. (2nd request)
Apr 24 2003	Counsel's status report received (confidential)   from State P.D.
Apr 28 2003	Extension of time granted   to 6/24/2003 to file appellant's opening brief.
Jun 17 2003	Counsel's status report received (confidential)   from State P.D.
Jun 17 2003	Request for extension of time filed   to file appellant's opening brief. (3rd request)
Jun 23 2003	Extension of time granted   to 8/25/2003 to file appellant's opening brief. After that date, only five further extensions totaling 290 additional days are contemplated. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 6/15/2004.
Aug 18 2003	Counsel's status report received (confidential)   from State P.D.
Sep 4 2003	Request for extension of time filed   to file appellant's opening brief. (4th request)
Sep 9 2003	Extension of time granted   to 10/24/2003 to file appellant's opening brief. After that date, only five further extensions totaling about 270 additional days will be granted. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 7/20/2004.
Oct 17 2003	Request for extension of time filed   to file appellant's opening brief. (5th request)
Oct 17 2003	Counsel's status report received (confidential)   from State P.D.
Oct 28 2003	Extension of time granted   to 12/23/2003 to file appellant's opening brief. After that date, only four further extensions totaling about 210 additional days will be granted. Extension is granted based upon State Public Defender Caroline R. Lange's represenation that she anticipates filing that brief by 7/20/2004.
Dec 17 2003	Counsel's status report received (confidential)   from State P.D.
Dec 17 2003	Request for extension of time filed   to file appellant's opening brief. (6th request)
Dec 31 2003	Extension of time granted   to 2/23/2004 to file appellant's opening brief. After that date, only three further extensions totaling 180 additional days will be granted. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 7/20/2004.
Feb 18 2004	Counsel's status report received (confidential)   from State P.D.
Feb 18 2004	Request for extension of time filed   to file appellant's opening brief. (7th request)
Feb 23 2004	Extension of time granted   to 4-23-2004 to file AOB. After that date, only two further extensions totaling about 120 additional days will be granted. Extension granted based upon Deputy SPD Caroline R. Lange's representation that she anticipates filing the brief by 7-20-2004.
Apr 20 2004	Request for extension of time filed   to file appellant's opening brief. (8th request)
Apr 20 2004	Counsel's status report received (confidential)   from State P.D.
Apr 28 2004	Extension of time granted   to 6/22/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 105 additional days will be granted. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 10/6/204.
Jun 15 2004	Request for extension of time filed   to file appellant's opening brief. (9th request)
Jun 15 2004	Counsel's status report received (confidential)   from State P.D.
Jun 22 2004	Extension of time granted   to 8/23/2004 to file appellant's opening brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted ased upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 10/6/2004.
Aug 17 2004	Request for extension of time filed   to file appellant's opening brief. (10th request)
Aug 17 2004	Counsel's status report received (confidential)   from State P.D.
Aug 24 2004	Extension of time granted   to 10/22/2004 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 10/22/2004. After that date, no further extension will be granted.
Oct 15 2004	Counsel's status report received (confidential)   from State P.D.
Oct 22 2004	Appellant's opening brief filed   (52,997 words - 183 pp.)
Nov 15 2004	Request for extension of time filed   to file respondent's brief. (1st request)
Nov 17 2004	Extension of time granted   to 1/21/2005 to file respondent's brief.
Jan 13 2005	Request for extension of time filed   to file respondent's brief. (2nd request)
Jan 20 2005	Extension of time granted   to 3/22/2005 to file respondent's brief. After that date, only one further extension totaling about ten additional days is contemplated. Extension is granted based upon Deputy Attorney General Catherine Okawa Kohm's representation that she anticipates filing that brief by 3/31/2005.
Mar 11 2005	Respondent's brief filed   (32,803 words; 109 pp.)
Mar 29 2005	Request for extension of time filed   to file appellant's reply brief. (1st request)
Mar 30 2005	Extension of time granted   to 5/31/2005 to file appellant's reply brief.
May 25 2005	Request for extension of time filed   to file appellant's reply brief. (2nd request)
May 27 2005	Extension of time granted   to 7/29/2005 to file appellant's reply brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Supervising Deputy Supervising Deputy State Public Defender Jessica K. McGuire's representation that she anticipates filing that brief by 1/25/2006.
Jul 25 2005	Request for extension of time filed   to file appellant's reply brief. (3rd request)
Jul 26 2005	Extension of time granted   to 9/27/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Assistant State Public Defender Jay Colangelo's representation that he anticipates filing that brief by 1/25/2006.
Sep 23 2005	Request for extension of time filed   to file appellant's reply brief. (4th request)
Sep 29 2005	Extension of time granted   to 11/28/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Assistant State Public Defender Jessica K. McGuire's representation that she anticipates filing that brief by 3/27/2006.
Nov 22 2005	Request for extension of time filed   to file appellant's reply brief. (5th request)
Nov 29 2005	Filed:   amended declaration of service of request for extension of time to file appellant's reply brief.
Nov 30 2005	Filed:   amended declaration of service of request for extension of time to file appellant's reply brief.
Nov 30 2005	Extension of time granted   to 1/27/2006 to file the appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Assistant State Public Defender Jessica K. McGuire's representation that she anticipates filing that brief by March 27, 2006.
Jan 23 2006	Request for extension of time filed   to file appellant's reply brief. (6th request)
Jan 27 2006	Extension of time granted   to 3/28/2006 to file appellant's reply brief. based upon counsel Assistant State Public Defender Jessica K. McGuire's representation that she anticipates filing that brief by 3/28/2006. After that date, no further extension will be granted.
Mar 24 2006	Appellant's reply brief filed   (9280 words; 36 pp.)
Jan 24 2007	Counsel appointment order filed   Upon request of appellant for appointment of counsel, Geraldine S. Russell is hereby appointed to represent appellant Lamar Barnwell for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Moreno, J., was absent and did not participate.
Jan 24 2007	Compensation awarded counsel   Atty Russell
Feb 9 2007	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 2, 2007, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Feb 14 2007	Received:   letter from Supervising Deputy State Public Defender Jessica McGuire, dated February 13, 2007, requesting that this case not be calendared for oral argument in April, due to a prepaid vacation.
Feb 28 2007	Letter sent to:   counsel advising that the court will target this case for oral argument for either of its May calendars, to be held the first week and the last week of May, in San Francisco.
Mar 13 2007	Filed:   Motion for leave to file supplemental opening brief. Appellant's supplemental opening brief "under seperate cover" was received. (9,280 words; 3 pp.)
Mar 15 2007	Counsel's status report received (confidential)   from atty Russell.
Mar 19 2007	Supplemental brief filed   Appellant's supplemental opening brief. (9,280 words; 3 pp.)
Mar 19 2007	Order filed   Appellant's "Motion for Leave to File Supplemental Opening Brief" is granted. Any supplemental respondent's brief is to be served and filed on or before April 2, 2007.
Mar 21 2007	Compensation awarded counsel   Atty Russell
Mar 29 2007	Supplemental brief filed   respondent's brief. (291 words; 3 pp.)
Apr 3 2007	Case ordered on calendar   to be argued Monday, April 30, 2007, at 1:00 p.m., in San Francisco
Apr 12 2007	Received:   letter from respondent re: focus issues
Apr 16 2007	Filed letter from:   Supv. Deputy State Public Defender Jessica McGuire, dated April 10, 2007, re focus issues for oral argument.
Apr 17 2007	Filed letter from:   Deputy Attorney General Mercer, dated April 12, 2007, re focus issues for oral argument.
Apr 26 2007	Compensation awarded counsel   Atty Russell
Apr 30 2007	Cause argued and submitted
May 29 2007	Counsel's status report received (confidential)   from atty Russell.
Jul 25 2007	Compensation awarded counsel   Atty Russell
Jul 25 2007	Notice of forthcoming opinion posted
Jul 26 2007	Opinion filed: Judgment affirmed as modified   to reflect that defendant's sentence on count IV is imprisonment for 15 years to life. majority opinion by Corrigan, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, & Moreno, JJ.
Aug 10 2007	Rehearing petition filed   for appellant by State P.D. (1,634 words; 8 pp)
Aug 15 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 October 24, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 19 2007	Rehearing denied   The petition for rehearing is denied.
Sep 19 2007	Remittitur issued (AA)
Sep 24 2007	Received:   receipt for remittitur acknowledged by superior court.
Sep 26 2007	Counsel's status report received (confidential)   from atty Russell.
Sep 26 2007	Compensation awarded counsel   Atty Russell
Nov 28 2007	Counsel's status report received (confidential)   from atty Russell.
Dec 6 2007	Related habeas corpus petition filed (post-judgment)   case no. S158842.
Dec 12 2007	Received:   copy of appellant's petition for writ of certiorari. (22 pp. excluding appendix)
Dec 17 2007	Received:   from U.S.S.C. dated December 13, 2007 notifiying this court the petition for certiorari was filed December 11, 2007, case no. 07-8168.
Jan 8 2008	Counsel's status report received (confidential)   from atty Russell.
Jan 8 2008	Filed:   Confidential Declaration of attorney Russell.
Jan 9 2008	Counsel's status report received (confidential)   from atty Russell.
Jan 10 2008	Compensation awarded counsel   Atty Russell
Jan 23 2008	Compensation awarded counsel   Atty Russell
Feb 21 2008	Received:   copy of petitioner's reply to respondent's brief in opposition to petition for a writ of certiorari. (4 pp. excluding appendix)
Mar 17 2008	Certiorari denied by U.S. Supreme Court
Mar 26 2008	Counsel's status report received (confidential)   from attorney Russell.
Apr 4 2008	Compensation awarded counsel   Atty Russell
Jul 10 2008	Compensation awarded counsel   Atty Russell
Nov 7 2008	Compensation awarded counsel   Atty Russell
Jan 12 2009	Filed:   Confidential declaration of attorney Russell.
Jan 14 2009	Compensation awarded counsel   Atty Russell
May 7 2009	Compensation awarded counsel   Atty Russell
Sep 2 2009	Compensation awarded counsel   Atty Russell

Briefs
Oct 22 2004	Appellant's opening brief filed
Mar 11 2005	Respondent's brief filed
Mar 24 2006	Appellant's reply brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website