IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
JOHN MICHAEL BEAMES,
Super. Ct. No. 35201
Defendant and Appellant.
Defendant John Michael Beames was charged with one count of first
degree murder (Pen. Code, § 187, subd. (a)),1 one count of torture (§ 206), and one
count of possession of a firearm by a felon (§ 12021, subd. (a)). He entered a plea
of guilty on the firearm possession count. He also admitted allegations in the
murder and the torture counts that he had been previously convicted of at least two
felonies in California (§ 1203, subd. (e)(4)) and previously convicted of a serious
felony offense (§ 667, subd. (a)). Thereafter, a jury found defendant guilty on the
first degree murder count, and found true the special circumstance allegation that
the murder was intentional and involved the infliction of torture (§ 190.2, subd.
(a)(18)). The jury also found defendant guilty on the torture count, and found true
the allegation in this count that he personally inflicted great bodily injury.
All further statutory references are to the Penal Code unless otherwise
(§ 12022.7.) At the penalty phase of trial, the jury returned a verdict of death.
Appeal to this court is automatic. (§ 1239, subd. (b).)
We find no prejudicial error at the guilt or penalty phase of defendant’s
trial. Accordingly, we affirm the judgment in its entirety.
A. The Guilt Phase
Defendant lived with Angelita McMains and McMains’s 15-month-old
daughter, Cassie, and her infant son, Darrian. On January 19, 1994, Cassie bled to
death due to a transection of her liver; that is, her liver had been hit so hard it was
split nearly in two. The evidence at trial included medical testimony concerning
the numerous physical injuries Cassie suffered in the weeks, days, hours, and
minutes leading up to her death, and testimony from Cassie’s natural father,
defendant’s siblings, McMains’s father, and defendant himself.
1. The Prosecution Case
Cassie was born on October 3, 1992 to McMains and Ricky Hager. Hager
and McMains broke up a few months after Cassie’s birth, and Hager did not live
with them. In April 1993, defendant moved into McMains’s rented home.
On or about June 14, 1993, Cassie suffered a broken leg. The location of
the break and the degree of separation of the bones were unusual, indicating that a
great deal of force created the fracture. When Dr. Joseph Gerardi examined
Cassie on June 15, he noticed bruising around her injured leg bone, a large bruise
under her chin, and multiple bruises on her upper arms. McMains asked a friend,
Cindy Clem, to say that Cassie had been injured at Clem’s house. McMains said
she did not want defendant implicated in Cassie’s injury, because he had taken the
blame for a prior incident in which a child had been injured.
When interviewed about Cassie’s leg injury by an emergency response
investigator from child protective services, defendant claimed he had been out of
the vicinity when the injury occurred and had returned on June 15, 1993. Based
on the suspicious nature of the injury, the sheriff’s office removed Cassie from
McMains’s home on August 2, 1993. For the next four months, Cassie lived with
McMains’s parents and suffered no injuries.
On December 7, 1993, Cassie was released back to the home where
McMains and defendant lived. Sometime after December 25, 1993, Hager’s
niece, Crystal Williams, noticed Cassie had a burn on her finger. In early January
1994, Hager saw Cassie with two “real bad black eyes.” In explaining the black
eyes, defendant told Hager that Cassie had fallen into a coffee table, but separately
told Williams that Cassie had fallen from her crib or something. Also in January
1994, defendant’s brother, John Phillip Beames, saw defendant squirt Cassie with
liquid from a baby bottle and shake her roughly when she cried. Additionally,
defendant’s sister, Tammy Beames (Tammy),2 observed over a period of a few
days that Cassie appeared to be afraid of defendant.
From January 10 to January 14, 1994, McMains’s infant son, Darrian, was
hospitalized for a cough, difficulty in breathing, and a lack of weight gain. During
this time, McMains stayed 24 hours a day with Darrian at the hospital.
On January 19, 1994, at about 9 or 10 a.m., Hager and Williams went to
visit McMains and defendant at their house. Hager gave McMains some
methamphetamine to take to defendant, who was in a back room of the house.
Defendant stayed in the back room, and he yelled at McMains to get Hager and
Because a number of the witnesses share the Beames surname, we refer to
defendant’s sister as Tammy.
Williams out of the house. Hager asked where Cassie was, and McMains replied
she was with defendant. Hager left the house without seeing Cassie.
Sometime before 1 p.m. on January 19, 1994, Royce Hunneman, a
neighbor, heard McMains and defendant arguing.
At around 1 or 1:30 p.m. that same day, McMains called defendant’s sister,
Tammy, and told her something was wrong. The two met on the road in their cars,
and Tammy followed McMains back to McMains’s home. When they got there, a
county car was parked in front. McMains did not stop her car, and Tammy
followed McMains past the home.
When McMains and Tammy returned to the house a little while later,
defendant told Tammy that Cassie was dead. Defendant explained Cassie had
gotten sick in her bed at around 4:00 o’clock that morning. He sat Cassie down on
the floor while he went to the bathroom to get clean sheets. When he came back,
Cassie had fallen over and was lying in a pool of blood. Defendant said he had
performed CPR on Cassie for five hours, but she was dead. When Tammy asked
about taking Cassie to the hospital, defendant said to give him a little bit of time.
Similarly, when Tammy asked about contacting law enforcement, both defendant
and McMains said, “No, give us a little bit of time.”
Defendant told Tammy to take McMains and Darrian away and to go some
place where he could call them later. He said he would describe everything that
had happened on a tape recording, which Tammy and McMains could later give to
the police. Defendant refused to give Tammy a gun he had, saying he wasn’t
going to go alive.
Tammy and McMains went back to the house later that night, at a time
when defendant was gone. McMains retrieved a tape recorder from the house, and
she and Tammy listened to the recording. After McMains tried to erase a portion
of the tape that involved a drug deal, they took the tape recorder to the hospital.
There they gave the recorder to Deputy Sheriff Michael Strawser.
The tape recording included the following statements by defendant:
“Angel, I love you very much. Please just try to believe me it was the truth, it was
an accident. . . . I know this is going to kill you, baby. You know I love this little
baby better than anything in the world.”3 Deputy Sheriff Strawser listened to the
tape, then went with McMains to her house. Once inside, Strawser saw what
appeared to be blood in the bathroom and in the baby’s crib.
Early the next morning, on January 20, 1994, Sergeant John Zapalac of the
Tulare County Sheriff’s Office went to look for defendant at the residence of
David Joiner. When Zapalac arrived at the Joiner residence, defendant said he
knew Zapalac needed to speak with him because of Cassie. When Zapalac asked
where Cassie was, defendant said she was inside the car and handed Zapalac the
car keys. Zapalac found Cassie’s body inside of a jacket in the back of the car.
Later, at the Sheriff’s Department, defendant spontaneously stated, “I was the only
one with her. I’m responsible. Put me in jail. Put a .45 to my head.”
Dr. Armond Dollinger performed an autopsy on Cassie’s body. He found
nothing in Cassie’s stomach, indicating she had not been fed for 24 hours before
her death. Dr. Dollinger determined the cause of death was massive hemorrhaging
due to a transected liver, and opined that Cassie’s back was against a hard surface
when she sustained that injury. Other physical injuries Cassie sustained within
minutes or at most 24 hours of death included multiple bruises on the face and
abrasions on the back, fractures of the ribs, abrasions to the neck and shoulder on
the left side, and a bruise and abrasion on the right side of the neck. It was Dr.
Defendant sometimes referred to Angelita McMains as “Angel.”
Thomas Bennett’s opinion, based on the character of the neck abrasions, that
Cassie had been hung by the neck with a soft ligature for a period of time.
Dr. Dollinger observed numerous other physical injuries, some of which
were days or weeks old, including dilation of the anal canal and scarring of the
surrounding muscle, five broken ribs on the front right side, four broken ribs on
the back left side, a bruise on the right front of the scalp, a large laceration of the
top left side of the head, lacerations on the inside lower lip, contusions and
abrasions around the nose and mouth, contusions, abrasions, and scratches on the
back of the head, contusions, bruises, and abrasions on the back, and bruising on
the tip of the tongue, the right thumb, and on the back of the knee.
Dr. Dollinger also saw various sets of burns to Cassie’s body. There were
burns to the buttocks in a crosshatched linear grid pattern, apparently caused by a
floor furnace and occurring when Cassie wore no clothing and her legs were
forced wide apart. There also were burns in a grid-like pattern on the back of the
right hand, third degree burns on the index and ring finger of the right hand, and
burns on the back and ring finger of the left hand. Finally, burns were on the feet
and third degree burns were on two of the toes.
2. The Defense Case
The defense contended Cassie suffered from osteogenesis imperfecta, a
brittle bone disease that caused her to fracture with less trauma than an individual
with normal bones. According to the defense, although abuse had occurred in the
home, all of Cassie’s burns and her fatal liver injury were accidental. The defense
also showed that McMains hated and neglected Cassie, while defendant took care
of Cassie and fed, changed, and clothed her.
Defendant testified in his own defense. He acknowledged convictions for
armed robbery in 1973, receiving stolen property in 1975, and commercial
burglary in 1983. He also admitted he used and sold methamphetamine while he
was living with McMains, and claimed his and McMains’s use of the substance
affected their ability to be patient with others.
Defendant testified he was present in the home when Cassie sustained
burns from the heating grate on the floor. McMains was not at home, and
defendant was in bed when he heard Cassie screaming. She apparently had fallen
on the hot grate and was “flopping around.” Defendant grabbed Cassie by the
shirt and pulled her off the grate as fast as he could. By then, McMains had
returned home, and defendant expressed his upset at her for “leaving the baby like
that.” He placed Cassie in some cool water in the bathtub, and told McMains to
go buy some cream and salve for the burns. Defendant claimed this was the only
time Cassie got burned by the grate.
Defendant also was present when Cassie died on January 19, 2004. At
approximately 4:00 o’clock that morning, defendant heard Cassie crying. She had
vomited in her crib, and defendant needed to remove the soiled sheets. He placed
Cassie on the floor next to a little cart, so she could hold onto the cart while he
changed the sheets. Defendant then went to get a wash rag and some clean sheets
and clothes for her. While in the bathroom, he heard the words, “Oh, fuck. Oh,
fuck,” and some clanging noise. Defendant rushed back to Cassie’s room, where
he saw McMains and a pool of blood all around Cassie. The cart, which had been
laden with tools and propped up with a little pressure washer to keep it upright,
had fallen on top of Cassie. Defendant started administering CPR, and McMains
went to get a stethoscope. He listened for a heartbeat, but did not hear one.
During the days leading up to Cassie’s death, defendant had been using
drugs and staying up. He had been up for several days and was not thinking
rationally after Cassie died. Although he knew somebody would be in trouble for
the death, he did not call the police or an ambulance because there was no
telephone in the residence. Defendant left a tape recording because he felt
responsible for Cassie’s death, having initially sat Cassie on the floor. He also did
not want McMains, who he thought was pregnant again, or Darrian, to get into
trouble. Defendant claimed he told his sister, Tammy, on the day Cassie died, that
a cart of tools had fallen on Cassie. After the incident, defendant told David
Joiner he was going to hell for what had happened.
Defendant denied torturing Cassie or breaking her leg. He claimed she fell
on the heating grate only once, and he did not recall her having two black eyes
prior to her death.
In 1983, defendant pled no contest to a charge of breaking Ricardo
McVey’s leg, even though he was not absolutely sure he broke it. He admitted,
however, that he slapped McVey up against a garage door.
B. The Penalty Phase
1. The Prosecution Case
The prosecution relied on the circumstances of the instant crime and
evidence of defendant’s prior felony convictions. The prosecution also introduced
the following evidence of prior violent criminal activity.
On March 25, 1973, defendant robbed the clerk of a Sacramento
convenience store at gunpoint.
In 1974, defendant was married to Catherine Scrima. They were married
for approximately three years and had a daughter. Defendant was verbally and
physically abusive to Scrima. On their wedding anniversary, he had “a fit” about
going to Scrima’s company party and placed his hands on Scrima’s throat and
choked her. On a separate occasion, on Christmas day, Scrima was wearing
defendant’s boots and refused defendant’s command to take them off. He hit her
in the face twice, causing a fat lip and a black eye. Although defendant threatened
he could have Scrima “eliminated” for $10 if she ever left him and Scrima took
this threat seriously, she left defendant after the Christmas incident. Scrima
remains afraid of defendant.
Ronald Gadberry was defendant’s best friend. Gadberry’s parents last saw
him alive on October 30, 1984. At that time, Gadberry said he was going to
defendant’s place of business to collect some money that defendant owed him.
Defendant owed Gadberry $1,000. In early December 1984, Gadberry’s father
went looking for Gadberry at defendant’s shop. There he saw Gadberry’s car
parked in front, but defendant claimed he had not seen Gadberry in months. In
January 1985, law enforcement officers found Gadberry’s body inside the trunk of
his car, which was parked in Rodeo, California. He had been shot in the back of
the head, and the bullet had lodged in his brain. Defendant told an investigator
during a January 1985 interview that he hadn’t seen Gadberry for approximately
five or six months. Two witnesses, however, testified that defendant implicated
himself in the killing, and two others testified that defendant claimed he used a
firearm to shoot a person in self-defense. One latent print lifted from the inside
passenger window of Gadberry’s car was identified as having been made by
defendant’s left middle finger, but the age of the print could not be determined.
On one occasion, defendant appeared uninvited at the home of Kristi
McVey, the mother of his son. Although McVey and Cheryll Cuslidge pushed a
couch up against the front door to block defendant’s entrance, he got into the
residence through a window. Once inside, he held a knife and pointed it at
McVey. Cuslidge did not see the knife, but she did see defendant grab McVey
around the neck. The telephone lines had been cut, so Cuslidge had to leave the
house to call the police. Defendant had been using methamphetamine around this
During 1982 or 1983, Douglas Shupe stored his paving equipment in
defendant’s yard, and in exchange paid part of the yard costs. Shupe became
concerned that defendant took in a lot of vehicles containing large quantities of
methamphetamine, and Shupe attempted to terminate their relationship when
defendant told him he was doing it for the “Hell’s Angels.” When Shupe later
tried to get his paving equipment back, defendant held a loaded gun to Shupe’s
forehead and told him, “You aren’t taking anything out of here, you’re going to
leave it here, you’re going to go and I don’t want to see you no more.” Shupe left
and called the sheriff’s department. Shupe subsequently recovered his property
from defendant when the police were at the yard.
Cassie’s grandfather (McMains’s father) testified that Cassie’s death tore
their family apart, and that his wife took the death “very hard.” Cassie’s half
brother and half sister felt bad because they never took the opportunity to see
Cassie while she was alive.
2. The Defense Case
The defense called a number of witnesses, including defendant’s friends,
siblings and other relatives, and one former spouse (Connie Bergstrom), who
testified that defendant was very kind and playful toward children, that he was
protective of children and interacted well with them, and that he was very
generous toward others. These witnesses claimed that they never saw defendant
abuse or hurt his two older daughters or any other any child, and that they did not
believe defendant could have murdered Cassie. They also testified that if
defendant were to be executed, it would affect the families of his siblings
immensely and devastate them.
A. Pretrial and Juror Selection Issues
1. Denial of Continuance
Defendant and McMains were initially charged as codefendants. In
December 1994, the matter was set for a jury trial to begin on April 3, 1995.
Thereafter, the trial court granted severance of defendant’s trial, and subsequently
continued his trial to July 24, 1995. McMains’s trial proceeded first, but did not
conclude by July 24. Consequently, defendant’s trial was put over one week until
July 31. The jury rendered a guilty verdict in McMains’s trial on July 28, 1995,
three days before defendant’s trial was scheduled to commence.
Meanwhile, on July 27, 1995, defendant filed a motion to continue his trial
for seven weeks to September 18, 1995. Defendant sought the continuance so he
could conduct a public opinion survey to assess the impact of the media’s recent
coverage of McMains’s trial. In support of the motion, defense counsel filed a
declaration stating that he had contacted an expert to conduct and complete a
survey by September 5, that he expected the survey to show defendant could not
receive a fair trial in Tulare County given the recent publicity, and that he would
file a motion to change venue to be heard by the September 5 date.4 The
prosecution filed opposition on the grounds that nine previous continuances in the
case had already caused undue delay, that defendant failed to demonstrate good
Pursuant to section 1033, a defendant’s motion to change venue shall be
granted “when it appears that there is a reasonable likelihood that a fair and
impartial trial cannot be had in the county.” (§ 1033, subd. (a).) The factors
relevant to making this determination are: (1) the nature and gravity of the
offense; (2) the nature and extent of the media coverage; (3) the size of the
community; (4) the community status of the defendant; and (5) the prominence of
the victim. (People v. Ramirez (2006) 39 Cal.4th 398, 434.)
cause for another continuance, and that a continuance would work a hardship to
the People with regard to forty potential witnesses subpoenaed for the trial, some
of whom were out of state. On July 31, 1995, the date set for trial, the trial court
held a hearing on the motion to continue, at which time defendant challenged the
prosecution’s contentions regarding undue delay and lack of good cause.
Defendant, however, made no reference to the People’s claimed hardship
regarding subpoenaed witnesses. After hearing arguments from both sides, the
trial court denied defendant’s motion, explaining it could best evaluate defendant’s
ability to get a fair trial in the county through the juror voir dire process. The
court, however, expressed an open mind on the matter, stating it “certainly would
agree that if we cannot find twelve jurors to sit here neutrally and listen to the
case, then counsel’s motion may be well taken.” The court reiterated this point in
making its ruling: “If we begin picking a jury [and] it turns out we cannot get
twelve people that can be fair in this case, then, obviously, we’ll have to back up
and reconsider what’s going on. Short of that, I’m going to deny the motion at this
time . . . .” Later that same day, defendant’s trial commenced.
On appeal, defendant contends the trial court abused its discretion in
refusing to grant a 35-day (five-week) continuance.5 Although a survey is not
required in order to make or support a motion to change venue (see ante, fn. 4),
defendant claims he needed a survey to demonstrate that the media coverage of the
pretrial proceedings and McMains’s just-concluded separate trial had tainted the
Defendant apparently calculates this time period as beginning on July 31
(the scheduled trial date) and ending on September 5 (the date when he asserted
his survey would be complete and his motion to continue could be heard). As
indicated, however, defendant’s written motion specifically sought to have the trial
continued to September 18.
jury pool. He asserts his continuance motion was diligently made, supported by
good cause, and necessary to establish grounds for a venue change, but the trial
court denied the motion based solely on its desire to try defendant immediately
after McMains. That ruling, he argues, deprived him of his federal constitutional
rights to present witnesses, a fair trial, due process of law, an impartial jury,
effective assistance of counsel, and a reliable penalty determination.
As defendant acknowledges, the decision whether or not to grant a
continuance of a matter rests within the sound discretion of the trial court. (People
v. Beeler (1995) 9 Cal.4th 953, 1003; People v. Howard (1992) 1 Cal.4th 1132,
1171.) The party challenging a ruling on a continuance bears the burden of
establishing an abuse of discretion, and an order denying a continuance is seldom
successfully attacked. (People v. Beeler, supra, 9 Cal.4th at p. 1003.)
Under this state law standard, discretion is abused only when the court
exceeds the bounds of reason, all circumstances being considered. (See People v.
Jones (1998) 17 Cal.4th 279, 318; People v. Froehlig (1991) 1 Cal.App.4th 260,
265.) Moreover, the denial of a continuance may be so arbitrary as to deny due
process. (See People v. Frye (1998) 18 Cal.4th 894, 1013.) However, not every
denial of a request for more time can be said to violate due process, even if the
party seeking the continuance thereby fails to offer evidence. (Ungar v. Sarafite
(1964) 376 U.S. 575, 589.) Although “a myopic insistence upon expeditiousness
in the face of a justifiable request for delay can render the right to defend with
counsel an empty formality[,] . . . [t]here are no mechanical tests for deciding
when a denial of a continuance is so arbitrary as to violate due process.” (Id. at
pp. 589-590.) Instead, “[t]he answer must be found in the circumstances present
in every case, particularly in the reasons presented to the trial judge at the time the
request is denied.” (Id. at p. 590; People v. Howard, supra, 1 Cal.4th at p. 1172
Even assuming, for purposes of argument, that defendant was diligent in
bringing his motion given the recent publicity in McMains’s case,6 we find ample
support in the record for the trial court’s decision to deny the requested
continuance and to proceed with voir dire as a means for evaluating whether
defendant could obtain a fair trial in Tulare County. Defendant’s trial had been
scheduled to begin that very day, and the prosecution had already issued
subpoenas to its 40 potential witnesses. At the hearing, defendant did not refute
the prosecutor’s claim that the requested delay would cause hardship with regard
to these witnesses, some of whom were out of state.7
By that time, moreover, the trial court and the parties had already
developed a juror questionnaire that took into account the recent completion of
McMains’s trial and posed questions relating to the pretrial publicity of the case.
As the court pointed out, the questionnaire would ask potential jurors whether they
had heard of and/or formed any opinions about the case, and then they could be
questioned regarding their responses. The court essentially reasoned that, once it
engaged in or completed the voir dire process, it would be in a better position to
Defendant argued in the proceedings below that it would not have been
possible to file his motion sooner than July 27, 1995 because the publicity
complained of did not occur until the few days preceding that date. Conversely,
the People point out that all parties were aware in March 1995 that defendant’s
trial would immediately follow McMains’s trial; indeed, defendant acknowledges
in his opening brief that “it was readily predictable at the time appellant’s trial was
set that the McMains trial would generate publicity that was specifically and
pervasively prejudicial to appellant.” Again, we observe a public opinion survey
was not required to establish the factors supporting a change of venue. (See ante,
Defendant asserts the trial court did not refuse the requested continuance
because of the potential prejudice to the prosecution. The record does not
establish this; it merely reflects the court did not specifically refer to the
prosecution’s claim of hardship in denying the motion.
determine whether defendant could receive a fair trial because it would know the
extent to which the selected jury had actually heard of defendant’s case and the
prejudicial impact of the pretrial publicity regarding defendant and his alleged
crimes. (Accord, Odle v. Superior Court (1982) 32 Cal.3d 932, 943-944.) Under
the circumstances presented, we cannot say the trial court’s refusal to continue the
trial for seven (or five) weeks constituted a judicial abuse of discretion or denied
defendant due process.8
In reaching this conclusion, we do not suggest that trial courts may deny
motions to change venue solely on the theory that jury voir dire is a better method
of assessing the need to change venue. As defendant points out, all defendants
have the right to seek a change of venue under section 1033, and we do not hold
the mere availability of jury voir dire is sufficient to deprive a defendant of that
right. (Cf. Groppi v. Wisconsin (1971) 400 U.S. 505, 511 [finding
unconstitutional a state law that categorically prevented a change of venue for
misdemeanor jury trials, regardless of the extent of local prejudice against the
defendant charged].) Here, however, defendant did not actually move for a
change of venue; rather, he moved for a seven-week continuance on the eve of
trial in order to explore the need for a venue change. The record does not establish
a violation of defendant’s rights under section 1033.
Nor can we conclude the trial court improperly refused to allow the defense
to obtain and present expert witness testimony relating to pretrial publicity, as
defendant contends. The trial court stated that, in light of the anticipated jury voir
dire, it did not “think” it “need[ed] a survey conducted by some non-lawyers who
are conducting a telephone book type of survey to people at large.” As the record
discloses, however, the court did not purport to foreclose the defense from having
an expert conduct a survey in tandem with the voir dire process or from later
offering expert testimony on the topic.
In any event, we observe defendant did not exhaust his peremptory
challenges and did not object to the jury’s final composition. Under settled case
law, such omissions are deemed to signify a recognition that the jury as selected
was fair and impartial, and are decisive in rejecting claims alleging improper
denial of a motion to change venue. (People v. Daniels (1991) 52 Cal.3d 815,
854.) It therefore follows that when a defendant unsuccessfully moves for a
continuance in order to investigate and prepare for a motion to change venue, his
subsequent failure to exhaust peremptory challenges and failure to object to the
jury’s final composition signify a similar recognition regarding the jury as
impaneled and likewise support rejection of the claims alleging wrongful denial of
the continuance and related constitutional violations. (Cf. People v. Parker (1965)
235 Cal.App.2d 100, 106 (Parker).)
The facts before us are substantially similar to those in Parker, supra, 235
Cal.App.2d 100, in which the defendant, at the opening of his trial for
embezzlement, requested a continuance of the trial on the ground that adverse
publicity appeared prominently in the newspapers, television, and radio regarding
the fact of his conviction of theft by false pretenses in a separate trial that
concluded just the day before. (Id. at pp. 102-103.) In Parker, the trial court
noted that both sides were ready to proceed on the trial date originally set, that the
defendant had received newspaper publicity preceding and throughout the first
trial, that the publicity’s effect upon the forthcoming trial could be investigated by
means of the voir dire examination of prospective jurors, and that the motion for a
continuance would be denied “ ‘at this time.’ ” (Id. at p. 103.) After the voir dire
examination had concluded, defense counsel left half of his peremptory challenges
unexercised, and notwithstanding the trial court’s denial of the continuation
request “ ‘at this time,’ ” counsel did not renew his motion or object to continuing
with the trial. (Id. at pp. 105-106.) In light of these circumstances, the appellate
court found there was no abuse of discretion in the rejection of the continuance
request and no denial of a fair trial. (Id. at p. 106.)
We note Parker contrasted the offenses charged there, which were
economic in nature and “not particularly ‘juicy,’ ” with other types of offenses
that, for example, involve “lurid violence or rampant sexuality” and thereby
“attract vastly more attention and tend to excite more public hostility.” (Parker,
supra, 235 Cal.App.2d at p. 105.) Here, however, even assuming the first degree
murder and torture charges against defendant fall within this latter category of
offenses, we find Parker’s reasoning—which upheld the denial of the continuance
request after taking into account the timing of the two trials, the trial court’s
willingness to explore the matter of pretrial publicity during the voir dire process
and to leave the door open for a renewed motion, and the defendant’s failure to
exhaust his peremptory challenges or to voice objection to continuing with the trial
after the voir dire—fully supports our conclusion that a similar result is warranted
Relying principally on Sheppard v. Maxwell (1966) 384 U.S. 333
(Sheppard), and Williams v. Superior Court (1983) 34 Cal.3d 584 (Williams),
defendant makes the related contention that the trial court violated its duty to take
all reasonable measures to ensure a fair and impartial jury when it initially
scheduled his trial to immediately follow McMains’s trial and then failed to
continue the trial on its own motion. The violation of this duty, he claims,
impaired his federal constitutional rights to a fair trial, an impartial jury, and a
reliable penalty determination.
We reject these related claims for the reasons already given, and
additionally on the ground that a trial court generally is under no obligation to
continue a matter for the defense in the absence of a request. (E.g., People v.
Medina (1995) 11 Cal.4th 694, 739; People v. Alcala (1992) 4 Cal.4th 742, 782.)
Sheppard, supra, 384 U.S. 333, and Williams, supra, 34 Cal.3d 584, do not
compel otherwise. The facts of this case do not compare to those in Sheppard, in
which the United States Supreme Court looked beyond the pretrial publicity
generated in the defendant’s case to find that the massive, pervasive, and
inflammatory publicity that attended the actual trial, coupled with the carnival
atmosphere at the trial itself, prevented the defendant from receiving a fair trial
consistent with the federal due process clause. (See Sheppard, supra, 384 U.S. at
pp. 355 [“bedlam reigned at the courthouse during the trial and newsmen took
over practically the entire courtroom, hounding most of the participants in the trial,
especially Sheppard”], 356-357 [much of the inflammatory material broadcasted
or printed during the trial was never heard from the witness stand but nonetheless
reached some of the jury].) Moreover, the procedural posture of this case is
different from that in Williams, where the defendant actually moved for a change
of venue and sought writ relief based on the trial court’s denial of his motion.
(Williams, supra, 34 Cal.3d at p. 587.) Although Williams’s analysis perhaps
suggests that factors supporting a continuance or a venue change may have been
present here, that decision does not stand for the proposition that pretrial publicity
may require a continuance of a trial without a defense request, or that a reversal on
venue-related grounds may be compelled even though the defendant failed to
exhaust his peremptory challenges and neglected to object to the jury’s final
2. Denial of Challenges for Cause
Defendant contends the trial court erroneously refused to excuse six biased
jurors for cause, thereby denying his federal constitutional rights to a fair and
impartial jury, due process of law, and a reliable penalty determination.
“ ‘To preserve a claim of trial court error in failing to remove a juror for
bias in favor of the death penalty, a defendant must either exhaust all peremptory
challenges and express dissatisfaction with the jury ultimately selected or justify
the failure to do so.’ ” (People v. Ramirez, supra, 39 Cal.4th at p. 448; see also
People v. Avila (2006) 38 Cal.4th 491, 539.) Here, defendant did not make a
peremptory challenge to any of the six jurors (K.H.; D.B.; R.O.-H.; B.C.; M.A.;
S.S.) who he claims should have been excused for cause; neither did he exhaust
his available 20 peremptory challenges. (Code of Civ. Proc., § 231, subd. (a).)
Defendant did not express displeasure with the jury as selected, and he did not
object to the jury’s composition. Moreover, he makes no attempt to justify his
failure to do so. Accordingly, this issue has not been preserved for review.
Even assuming the claim had been properly preserved, we would find it
lacking in merit. Apart from R.O.-H., none of the five other allegedly biased
individuals actually served on defendant’s jury and so they could not have
possibly affected the jury’s fairness. (People v. Avila, supra, 38 Cal.4th at p. 540;
see People v. Farnam (2002) 28 Cal.4th 107, 133.)
With regard to Juror R.O.-H., the governing law provides: “ ‘A prospective
juror may be challenged for cause based upon his or her views regarding capital
punishment only if those views would “ ‘prevent or substantially impair’ ” the
performance of the juror’s duties as defined by the court’s instructions and the
juror’s oath.’ [Citations.] ‘Assessing the qualifications of jurors challenged for
cause is a matter falling within the broad discretion of the trial court. [Citation.]’
[Citation.] On appeal we will uphold the trial court’s decision if it is fairly
supported by the record, and accept as binding the trial court’s determination as to
the prospective juror’s true state of mind when the prospective juror has given
conflicting or ambiguous statements. [Citations.]” (People v. Farnam, supra, 28
Cal.4th at p. 132, fn. omitted.)
Although some of Juror R.O.-H.’s comments during the voir dire process
could be construed as suggesting she might automatically vote for death at the
penalty phase, other remarks she made indicated an ability and a willingness to be
fair and open-minded. For instance, after candidly saying she initially had formed
an opinion of defendant’s guilt after reading a newspaper story about McMains’s
trial, R.O.-H. stated: “But after listening to the judge speak earlier about the duties
of a juror, I don’t know if I hold the same opinion or not.” She also commented
that “[a] newspaper article, I know isn’t written — I know it’s not, you know, the
truth.” Finally, although she stated in response to defense counsel’s questioning
that she would need to hear evidence to overcome her suspicion of defendant’s
guilt, she later expressed her understanding that, under the law, everyone is
presumed innocent until proven guilty. She also promised to base her decision
“solely upon the evidence that is presented” and to follow the law as the judge
instructs. Given R.O.-H.’s conflicting statements, and the trial court’s unique
opportunity to evaluate her credibility as she spoke, we shall defer to that court’s
determination regarding her true state of mind. Indeed, the defense evidently
agreed at the conclusion of voir dire questioning that R.O.-H.’s views would not
prevent or substantially impair the performance of her duties as a juror, for it
declined to exercise an available peremptory challenge against her.
B. Guilt Phase Issues
Defendant contends the trial court’s erroneous failure to instruct the jury on
the lesser included offenses of second degree murder and involuntary
manslaughter deprived him of his federal constitutional rights to a fair trial, due
process of law, trial by jury, and a reliable penalty determination. With regard to
this claim, we understand defendant to argue the trial court should have instructed
on all three theories of second degree murder, that is, unpremeditated murder with
express malice, implied malice murder, and second degree felony murder.
“A court must generally instruct the jury on lesser included offenses
whenever the evidence warrants the instructions, whether or not the parties want it
to do so. [Citation.]” (People v. Horning (2004) 34 Cal.4th 871, 904-905
(Horning); see People v. Valdez (2004) 32 Cal.4th 73, 115.) “[T]he sua sponte
duty to instruct on lesser included offenses, unlike the duty to instruct on mere
defenses, arises even against the defendant’s wishes, and regardless of the trial
theories or tactics the defendant has actually pursued.” (People v. Breverman
(1998) 19 Cal.4th 142, 162.) Here, however, we need not decide whether the
evidence warranted instructions on second degree murder and involuntary
manslaughter, because we find any error both invited and harmless.
After defendant testified at the guilt phase, the trial court and the parties
discussed proposed guilt phase jury instructions. With the agreement of both
sides, the court stated it would instruct the jury with the applicable versions of
CALJIC Nos. 8.00 (homicide—defined), 8.10 (murder—defined), 8.11 (“malice
aforethought”—defined), 8.24 (murder by torture), 8.30 (unpremeditated murder
of the second degree), and 8.31 (second degree murder—killing resulting from
unlawful act dangerous to life). The court then asked the defense whether it
wanted the jury instructed on the lesser included offense of second degree murder,
based on the second degree felony-murder rule, pursuant to CALJIC No. 8.32
(second degree felony murder).9 Defense counsel said no. In doing so, counsel
At this hearing, there was discussion of a second degree felony murder
instruction with child abuse serving as the underlying felony. On appeal,
defendant does not contend the failure to give such an instruction was error; rather,
he asserts that, at the time of the crimes, second degree felony murder based on the
(footnote continued on next page)
expressed his understanding that instructions on second degree murder as a lesser
included offense of first degree murder count were required sua sponte.
Shortly thereafter, the trial court assented to the defense’s request for
instructions on the lesser included offense of involuntary manslaughter pursuant to
CALJIC Nos. 8.45 (involuntary manslaughter—defined), 8.46 (due caution and
circumspection—defined), 8.50 (murder and manslaughter distinguished), and
8.51 (murder and manslaughter distinguished—nature of act involved).
Subsequently, however, defense counsel asserted: “If it turns out I don’t want
involuntary manslaughter, this isn’t something that you have to give if I waive it.”
The court agreed the defense could waive instructions on this lesser included
offense, but cautioned counsel that “if you do wish to do so, you have to make it
clear on the record, and I’ll go over that very thoroughly.” The next court day,
counsel informed the court that the defense was not requesting any instructions on
the lesser included charges of second degree murder and involuntary manslaughter
in connection with the murder count. In response to the court’s inquiry, counsel
represented his decision was “a matter of trial strategy.” Counsel clarified,
however, that the defense wanted the court to instruct on the lesser related offense
of child endangerment (CALJIC No. 9.37), with regard to the torture count.
After all the evidence was presented and both sides rested, defense counsel
expressed concern that the testimony of the prosecution’s rebuttal witness, Dr.
(footnote continued from previous page)
predicate felony of torture (§ 206) constituted a lesser included offense of first
degree murder by torture, and that instruction on this theory was required.
Without deciding the merits of this theory (cf. People v. Cole (2004) 33 Cal.4th
1158, 1219-1220), we accept it for purposes of addressing defendant’s contentions
Dollinger, “might necessitate giving the lesser of the second.” Counsel asked for
some time to discuss the issue privately with defendant, which the trial court
permitted. When the proceedings reconvened, counsel stated: “We don’t want
any lessers given with Count 1. I discussed it with John. I told him the reasons
lawyers often want to do that, it gives them a chance to compromise if they feel
like somebody did something wrong. He explains to me none of the actual legal
theory this a second or involuntary could be based on the truth that he did not kill
this baby, the cart fell on it. We don’t want the lessers.” In accordance with the
defense’s requests, the trial court did not instruct the jury on any theory of second
degree murder or involuntary manslaughter.
“ ‘[A] defendant may not invoke a trial court’s failure to instruct on a lesser
included offense as a basis on which to reverse a conviction when, for tactical
reasons, the defendant persuades a trial court not to instruct on a lesser included
offense supported by the evidence. [Citations.] In that situation, the doctrine of
invited error bars the defendant from challenging on appeal the trial court’s failure
to give the instruction.’ ” (Horning, supra, 34 Cal.4th at p. 905, quoting People v.
Barton (1995) 12 Cal.4th 186, 198.) Here, the record clearly reflects that
defendant and his counsel expressed a deliberate tactical purpose in resisting
instructions on second degree murder and involuntary manslaughter, the very
instructions he now complains should have been given. The circumstances here
were substantially similar to those in Horning, which found invited error where a
capital defendant and his counsel insisted at trial they did not want instructions on
the lesser included offenses of second degree murder and manslaughter because
they were inconsistent with the defense that the defendant did not commit the
crime at all. (Horning, supra, 34 Cal.4th at p. 905.) Consistent with Horning, we
find that any error on these theories was invited, and that defendant therefore is
barred from invoking such error as a basis for reversing his conviction. Moreover,
we are not persuaded to forgo application of the invited error doctrine based on the
mere fact that defense counsel did not discuss the elements or the possible merits
of these particular lesser included offenses in more depth than he did while
addressing the court about the instructions.
In any event, again assuming error with regard to any or all of the omitted
instructions, it also was harmless. As our decisions explain, “ ‘[e]rror in failing to
instruct the jury on a lesser included offense is harmless when the jury necessarily
decides the factual questions posed by the omitted instructions adversely to
defendant under other properly given instructions.’ ” (People v. Chatman (2006)
38 Cal.4th 344, 392; Horning, supra, 34 Cal.4th at p. 906; People v. Sedeno
(1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Breverman,
supra, 19 Cal.4th at p. 165.) Here, the jury was properly instructed that a torture-
murder special circumstance requires the intent to kill.10 (See § 190.2, subd.
(a)(18); Chatman, supra, 38 Cal.4th at p. 392.) When the jury found this special
circumstance true, it necessarily determined that defendant intended to kill Cassie
when he tortured her. Thus, there was no prejudice resulting from any erroneous
failure to instruct on second degree felony murder (see People v. Blair (2005) 36
Cal.4th 686, 747) or involuntary manslaughter (see Chatman, supra, 38 Cal.4th at
p. 392). Likewise, in finding the killing was intentional, the jury necessarily found
The court instructed: “[¶] To find that the special circumstance referred to
in these instructions as murder involving infliction of torture is true, each of the
following facts must be proved: [¶] One, the defendant intended to kill, or with
intent to kill, aided and abetted in the killing of a human being. [¶] Two, the
defendant intended to inflict extreme cruel physical pain and suffering upon a
living human being for the purpose of revenge, extortion, persuasion or for any
sadistic purpose. [¶] And, three, the defendant did inflict extreme cruel physical
pain and suffering upon a living human being no matter how long its duration. [¶]
Awareness of pain by the deceased is not a necessary element of torture.”
express, not implied, malice. (Accord, People v. Combs (2004) 34 Cal.4th 821,
857.) Accordingly, any error in failing to instruct on implied malice second
degree murder also was harmless.
Defendant contends the jury’s true finding on the torture-murder special-
circumstance allegation did not render the failure to instruct on second degree
felony murder harmless because the finding left open certain factual questions
posed by the omitted second degree felony-murder instruction. This contention
fails to warrant a reversal.
“If a jury is not satisfied that a defendant acted with either express or
implied malice, it may find the defendant guilty of second degree murder on a
felony murder theory.” (People v. Blair, supra, 36 Cal.4th at p. 745 [addressing
failure to instruct on second degree felony murder as a lesser included offense of
first degree murder by poison, where jury found true a special circumstance
allegation of murder by poison].) Here, as indicated, the true finding on the
torture-murder special-circumstance allegation shows that the jury was satisfied
defendant acted with express malice, and that it necessarily rejected any theory
that defendant intended only to torture Cassie and not to kill her. In view of these
circumstances, any error in failing to instruct on second degree felony murder was
harmless. (See People v. Blair, supra, 36 Cal.4th at p. 747.)
Additionally, we conclude that any error in failing to instruct on the second
degree murder theory of unpremeditated murder with express malice (CALJIC No.
8.30) was harmless. As the record discloses, the evidence supporting the jury’s
verdict of guilt of first degree murder by torture was so relatively strong, and the
evidence supporting a different outcome was so comparatively weak, that there is
no reasonable probability that the claimed error affected the result. (People v.
Breverman, supra, 19 Cal.4th at p. 177 [applying People v. Watson (1956) 46
Cal.2d 818, 836]; see also People v. Rogers (2006) 39 Cal.4th 826, 870.) Here,
the evidence supporting the guilt verdict included medical testimony establishing
that a number of Cassie’s injuries were inflicted only hours or minutes before her
death, including multiple facial bruises, rib fractures, and abrasions to the shoulder
and back. More significantly, the evidence showed that a soft ligature was used to
hang Cassie by the neck for a period of time before she was killed, and that Cassie
survived this ordeal but then died from a final blow of such immense force and
impact that it split her liver in two. The number, character, and successive nature
of the injuries leading up to and culminating in Cassie’s death provided strong
evidence that defendant acted with premeditation both in torturing and in killing
By contrast, there was no evidence showing that defendant acted without
premeditation at the time of the killing; instead, defendant maintained throughout
the trial that he was out of the room when a tool-laden cart fell on Cassie. On
appeal, defendant points to the evidence of his intolerance of crying children, and
argues it supported an inference that “he could well have snapped when Cassie
started crying.” But any inference that Cassie died of an impulsive act would have
been seriously undercut by the evidence that Cassie, who was a mere 15 months
old, suffered a multitude of injuries and was hung by the neck in the minutes and
hours before the fatal blow that transected her liver. Also undermining such an
inference was the backdrop of other evidence showing that, in the prior days,
weeks, and months, Cassie was constantly injured while living in the home with
defendant. Her black eyes, multiple sets of burns, broken leg, broken ribs, and
numerous bruises, contusions, lacerations, and abrasions all strongly indicated a
pattern of conduct that was consistent with what occurred on the day of the killing.
Given the relative strength of the evidence of first degree murder, and the relative
weakness of the evidence to the contrary, we do not find it reasonably probable
that had the jury been instructed on this theory of express malice second degree
murder, it would have concluded defendant intended to kill Cassie without
premeditation or deliberation.
Finally, defendant contends Beck v. Alabama (1980) 447 U.S. 625, and its
progeny have established a rule of constitutional law that, where the evidence
supports instructions on lesser included offenses in a capital case, the trial court
cannot refuse them and a defendant cannot waive them. As we have explained,
however, “ ‘Beck does not prohibit a criminal defendant [in a capital case] from
choosing to forgo such instructions for strategic reasons . . . .’ ” (Horning, supra,
34 Cal.4th at p. 906 [quoting People v. Hardy (1992) 2 Cal.4th 86, 185].)
Moreover, and in any event, Beck’s principles are not violated where, as here, the
jury was provided with the noncapital option of first degree murder without
special circumstances. (Horning, supra, 34 Cal.4th at p. 906; see People v.
Sakarias (2000) 22 Cal.4th 596, 621, fn. 3.)
We find no reversible state or constitutional error at the guilt phase.
C. Penalty Phase Issues
During the penalty phase deliberations, the jury submitted the following
written questions to the trial court. “Life in Prison? Dose [sic] life in prison
without parole really mean without parole forever? What priviledges [sic] would
he have? family visitations? girl friends? isolation or general population? Death
Row? Do you get visitors? Are you ever with any of the other inmates for meals
or exercise?” The court informed the prosecution and the defense of these
inquiries. After discussing the matter for several minutes, the court indicated it
would hear more from the parties and resolve the issue the following morning in a
hearing outside the jury’s presence.
At the hearing, the defense argued against informing the jury about the
Governor’s power of commutation because: (1) it would be misleading to tell the
jury about commutation during deliberations when the topic had not been
discussed during voir dire; (2) instructing the jury on commutation would impair
defense counsel’s credibility because he had already informed the jury a life
sentence meant that defendant would never get out of prison; and (3) if the court
were to tell the jury about commutation, it should also indicate that a commutation
in a capital case had never before occurred.
The trial court expressed its concern that “the danger is, as I see it, we get
the jury back there, if you don’t tell them that the [G]overnor has commutation
power and that this power applies to both types of sentences, then we get a juror
back there who insists perhaps that there is such a thing and they get speculating
and it does more harm than good.” Accordingly, the court decided to give the jury
the following written response: “This response is in respect to the questions asked
relative to whether life in prison without parole actually means the defendant
would never be released from prison and inquiries in respect to prison life should
the defendant receive either a sentence of life without parole or the death penalty.
[¶] The Governor has commutation power and this commutation power applies to
both sentences, that of life in prison without parole and the death penalty.
However, the jury is not to consider this commutation power in arriving at a
verdict in the penalty phase. The jury must not assume anything other than death
means death by execution and life without parole means imprisonment for the rest
of the defendant’s natural life. [¶] In arriving at a verdict in the penalty phase the
jury is not to speculate or consider living conditions in the prison as these are
matters which must not affect your verdict in any way.”
Defendant contends the trial court improperly instructed the jury regarding
the Governor’s commutation power and thereby violated his federal constitutional
rights to a reliable penalty determination, a fair penalty trial, and due process. We
Generally, reference to the commutation power is improper because it
“invites the jury to consider matters that are both totally speculative and that
should not, in any event, influence the jury’s determination.” (People v. Ramos
(1984) 37 Cal.3d 136, 155.) However, “[w]hen the jury makes a specific inquiry
about how a postconviction proceeding such as commutation might affect
defendant’s sentence, we have suggested that trial courts issue a short statement
emphasizing that it would be a violation of the jury’s duty to consider the
possibility of commutation in determining the appropriate sentence.” (People v.
Benavides (2005) 35 Cal.4th 69, 115.) It is now firmly established that a court in a
capital case does not err when it answers a jury question generally related to the
commutation power by instructing—as suggested in People v. Ramos, supra, 37
Cal.3d at page 159, footnote 12—that the Governor may commute either a death
sentence or a life without possibility of parole sentence, but that the jury must not
consider the possibility of commutation in determining the appropriate sentence.
(People v. Hines (1997) 15 Cal.4th 997, 1073; see People v. Davis (1995) 10
Cal.4th 463, 547-548; see also People v. Ledesma (2006) 39 Cal.4th 641, 737.)
Here, the court’s responses to the jury’s inquiries conformed to this principle. No
error or constitutional violation appears, and we decline defendant’s invitation to
reconsider our decisions on the matter.
Defendant asserts the trial court should not have instructed on
commutation, because the jury did not specifically ask about the Governor’s
commutation power but, rather, inquired about parole. We have held, however,
that commutation instructions are properly given when the jury implicitly raises
the issue of commutation. (E.g., People v. Hines, supra, 15 Cal.4th at p. 1073
[jury did not explicitly refer to commutation, but asked whether its penalty could
be modified “ ‘through any part of the appeal process’ ”]; People v. Hunter (1989)
49 Cal.3d 957, 981 [jury asked “ ‘under what circumstances could [defendant] be
released from prison?’ ”].) Here, the issue was implicit in the jury’s question
whether “life in prison without parole really mean[s] without parole forever?”
(See People v. Whitt (1990) 51 Cal.3d 620, 657, fn. 29.) Accordingly, the trial
court properly instructed the jury that the Governor has the power to commute
either a death sentence or a sentence of life without possibility of parole, that it
would be improper to consider commutation in determining the appropriate
penalty, and that “[t]he jury must not assume anything other than death means
death by execution and life without parole means imprisonment for the rest of the
defendant’s natural life.”
Defendant additionally contends on appeal that, given his three prior felony
convictions at the time of trial, the trial court’s instruction was grossly misleading
and violated federal constitutional standards because it failed to inform the jury
that commutation was possible for a twice-convicted felon only with the
agreement of four California Supreme Court justices (see Cal. Const., art. V, § 8,
subd. (a)) and only upon consultation with the Board of Prison Terms (§§ 4802,
4812, 4813). At trial, however, defense counsel never suggested that a failure to
mention these limitations on the Governor’s commutation power would be
misleading in light of his felon status. But even assuming the issue may be raised
on appeal, it is properly rejected on the merits. As our prior decisions make clear,
“ ‘[t]here [is] no need to discuss the law of commutation exhaustively and good
reason not to stress defendant’s record.’ ” (People v. Hines, supra, 15 Cal.4th at p.
1074; see also People v. Martinez (2003) 31 Cal.4th 673, 698; People v. Whitt,
supra, 51 Cal.3d at p. 657.)
Contrary to defendant’s assertions otherwise, McLain v. Calderon (9th Cir.
1998) 134 F.3d 1383 and Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149 do not
support a finding of reversible error where, as here, the trial court’s comments
were sufficient to advise the jurors not to consider the speculative possibility of
commutation at all in arriving at their sentencing determination. (See People v.
Hart (1999) 20 Cal.4th 546, 656-657.) As indicated, the court properly
emphasized to the jurors that they “must not assume anything other than death
means death by execution, and life without parole means imprisonment for the rest
of the defendant’s natural life,” and that they were “not to consider this
commutation power in arriving at a verdict in the penalty phase.” Thus, even
assuming the court should have more completely explained the limitations on the
Governor’s commutation power for a twice-convicted felon such as defendant, its
failure to do so was insignificant (because the specific details of the commutation
process bore no relevance to the jury’s task), and there is no reasonable possibility
that the perceived incompleteness of the court’s comments affected the result.
Finally, defendant asserts the trial court violated his federal constitutional
rights by refusing his request to advise the jury that no death sentence or sentence
of life without possibility of parole had ever been commuted since adoption of the
present death penalty statute. In a similar vein, he complains he “had no
opportunity to offer evidence and/or argument on the issue of the likelihood of
commutation.” These complaints are devoid of merit because, as indicated,
consideration of the possibility of commutation is improper in capital penalty
phase determinations. (People v. Mitcham (1992) 1 Cal.4th 1027, 1077; see
People v. Ramos, supra, 37 Cal.3d at p. 155.) Defendant had no right to present
evidence or to have the jury instructed on matters the jury should not have been
considering in the first place. (See People v. Hunter, supra, 49 Cal.3d at p. 984
[“where . . . the jury has been admonished to disregard the commutation power,
such evidence would have been wholly irrelevant”].
D. Cumulative Error
Defendant argues the cumulative effect of the errors in both the guilt phase
and the penalty phase requires reversal of both the guilt and penalty verdicts. We
disagree. We have concluded that all of defendant’s claims of error are either
meritless or do not require reversal. Whether we consider such claims
individually or together, we find no prejudicial error at either phase of the
E. Constitutional Challenges to California’s Death Penalty Statute
Defendant contends the sentencing scheme under California’s death penalty
statute is constitutionally flawed for a number of reasons. We have repeatedly
rejected identical claims, as follows.
California’s death penalty statute “does not fail to perform the
constitutionally required narrowing function by virtue of the number of special
circumstances it provides or the manner in which they have been construed.”
(People v. Morrison (2004) 34 Cal.4th 698, 730; People v. Jenkins (2000) 22
Cal.4th 900, 1050; see People v. Cook (2006) 39 Cal.4th 566, 617.) As Justice
Kennard recently explained in a concurring opinion, although at one time the
United States Supreme Court suggested that a constitutionally valid death penalty
law must exclude most murders from eligibility for the death penalty, that is no
longer the case. (People v. Jurado (2006) 38 Cal.4th 72, 146 (conc. opn. of
Kennard, J., and authorities cited therein).) Because the special circumstances
listed in section 190.2 apply only to a subclass of murderers, not to all murderers
(Tuilaepa v. California (1994) 512 U.S. 967, 971-972), there is no merit to
defendant’s contention, based on a statistical analysis examining appeals from
murder convictions, that our death penalty law is impermissibly broad. (See
People v. Morrison, supra, 34 Cal.4th at p. 730; People v. Frye, supra, 18 Cal.4th
at pp. 1028-1029.)
As applied, section 190.3, factor (a), does not result in the arbitrary or
capricious imposition of the death penalty. (People v. Elliot (2005) 37 Cal.4th
453, 487; People v. Lewis (2001) 26 Cal.4th 334, 394; People v. Jenkins, supra, 22
Cal.4th at pp. 1050-1053.)
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 defendant was guilty of the unadjudicated crimes. (People v. Elliot, supra, 37
Cal.4th at p. 488; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1066,
1068; People v. Cook, supra, 39 Cal.4th at pp. 618, 619.)
Section 190.3’s use of adjectives such as “extreme” (factors (d), (g)) and
“substantial” (factor (g)) in describing mitigating circumstances does not
impermissibly limit consideration of such factors. (People v. Elliot, supra, 37
Cal.4th at p. 488; People v. Morrison, supra, 34 Cal.4th at pp. 729-730.)
The absence of procedural safeguards utilized by other states in the
operation of their death penalty laws does not render California’s law
unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
(People v. Lawley (2002) 27 Cal.4th 102, 169; People v. Lucero (2000) 23 Cal.4th
692, 741.) As we have repeatedly concluded, “[t]he 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), that aggravating circumstances outweigh mitigating circumstances,
or that death is the appropriate penalty.” (People v. Morrison, supra, 34 Cal.4th at
p. 730, and cases cited; see People v. Lucero, supra, 23 Cal.4th at p. 741.) Neither
Apprendi v. New Jersey (2000) 530 U.S. 466, nor Ring v. Arizona (2002) 536 U.S.
584, affects California’s death penalty law or otherwise calls for a different result.
(People v. Cook, supra, 39 Cal.4th at pp. 618-619; People v. Morrison, supra, 34
Cal.4th at p. 731.)
“The death penalty statute is not unconstitutional for failing to provide the
jury with instructions of the burden of proof and standard of proof for finding
aggravating and mitigating circumstances in reaching a penalty determination.
[Citations.]” (People v. Morrison, supra, 34 Cal.4th at pp. 730-731; see People v.
Sapp (2003) 31 Cal.4th 240, 316-317; People v. Hayes (1990) 52 Cal.3d 577,
643.) We therefore reject defendant’s alternative contention that, at the very least,
the jury is required to find by a preponderance of the evidence that an aggravating
circumstance is proved, that aggravating circumstances outweigh mitigating
circumstances, or that death is the appropriate penalty. (People v. Lewis and
Oliver, supra, 39 Cal.4th at p. 1066.)
Intercase proportionality review is not constitutionally required. (People v.
Elliot, supra, 37 Cal.4th at p. 488; People v. Morrison, supra, 34 Cal.4th at p.
731.) Equal protection does not require that capital defendants be afforded the
same sentence review as other felons in the noncapital context. (People v. Cook,
supra, 39 Cal.4th at p. 619; People v. Morrison, supra, 34 Cal.4th at p. 731.)
The trial court did not commit constitutional error by failing to instruct that
statutory mitigating factors were relevant only in mitigation. (People v. Elliot,
supra, 37 Cal.4th at p. 488; People v. Morrison, supra, 34 Cal.4th at p. 730.)
Moreover, “the statutory instruction to the jury to consider ‘whether or not’ certain
mitigating factors were present did not impermissibly invite the jury to aggravate
the sentence upon the basis of nonexistent or irrational aggravating factors.
[Citations.]” (People v. Morrison, supra, 34 Cal.4th at p. 730.)
Finally, we have previously rejected the contention that “California’s
imposition of death ‘as a regular form of punishment for a substantial number of
crimes’ falls below international norms of humanity and decency.” (People v.
Cook, supra, 39 Cal.4th at p. 619; People v. Harris (2005) 37 Cal.4th 310, 366.)
We do so again here.
For the reasons stated above, we find no reversible error in the record. The
judgment of death is affirmed.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Beames
Original Appeal XXX
Date Filed: March 22, 2007
Judge: Ronn M. Couillard
Attorneys for Appellant:Barry L. Morris, 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, Jo Graves, Assistant Attorney General, Patrick J. Whalen, Carlos A. Martinez and Robert Gezi,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Barry L. Morris
1260 B Street, Suite 220
Hayward, CA 94541
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
|1||The People (Respondent)|
Represented by Attorney General - Sacramento Office
Robert Gezi, Deputy Attorney General
P.O. Box 944255
|2||Beames, John Michael (Appellant)|
San Quentin State Prison
Represented by Barry L. Morris
Attorney At Law
1260 "B" Street, Suite 240
|3||Beames, John Michael (Appellant)|
San Quentin State Prison
Represented by Chuck Nacsin
Attorney at Law
350 W. Fifth Street, Suite 101
San Bernardino, CA
|Mar 22 2007||Opinion: Affirmed|
|Oct 11 1995||Judgment of death|
|Dec 6 1995||Filed certified copy of Judgment of Death Rendered|
|Nov 15 2000||Filed:|
applt's applic. for appointment of counsel (IFP form).
|Nov 15 2000||Counsel appointment order filed|
appointing Barry L. Morris to represent applt for the direct appeal.
|Jan 10 2001||Compensation awarded counsel|
|Jan 22 2001||Received:|
Amended notice from superior court dated 12/26/2000 re record sent to AG and applt counsel on 11/30/2000
|Mar 30 2001||Application for Extension of Time filed|
by applt. to request corr. of the record. (1st request)
|Apr 5 2001||Extension of Time application Granted|
To 5/4/2001 to applt to request corr. of the record.
|Apr 10 2001||Counsel's status report received (confidential)|
from atty Morris.
|May 11 2001||Counsel's status report received (confidential)|
from atty Morris.
|May 11 2001||Application for Extension of Time filed|
by applt. to request corr. of the record. (2nd request)
|May 14 2001||Extension of Time application Granted|
To 6/4/2001 to applt. to request corr. of the record.
|May 31 2001||Received:|
Copy of applt.'s motion to correct and augment the record (13 Pp.)
|Jun 19 2001||Counsel's status report received (confidential)|
from atty Morris.
|Aug 31 2001||Counsel's status report received (confidential)|
from atty Morris.
|Dec 18 2001||Counsel's status report received (confidential)|
from atty Morris.
|Jan 3 2002||Counsel's status report received (confidential)|
from atty Morris.
|Jan 9 2002||Counsel's status report received (confidential)|
(supplemental) from atty Morris.
|Jan 25 2002||Record on appeal filed|
C-22 (4460 pp.) and R-58 (4269 pp.) including material under seal. CT includes 1526 pp. of juror questionnaires.
|Jan 25 2002||Appellant's opening brief letter sent, due:|
March 6, 2002.
|Jan 30 2002||Compensation awarded counsel|
|Mar 8 2002||Counsel's status report received (confidential)|
(supplemental) from atty Morris.
|Mar 8 2002||Request for extension of time filed|
To file AOB. (1st request)
|Mar 11 2002||Extension of time granted|
To 5/6/2002 to file AOB.
|May 7 2002||Request for extension of time filed|
To file AOB. (2nd request)
|May 7 2002||Counsel's status report received (confidential)|
from atty Morris.
|May 10 2002||Extension of time granted|
To 7/5/2002 to file AOB.
|Jul 2 2002||Counsel's status report received (confidential)|
from atty Morris.
|Jul 2 2002||Request for extension of time filed|
To file AOB. (3rd request)
|Jul 3 2002||Extension of time granted|
To 9/3/2002 to file AOB.
|Jul 19 2002||Compensation awarded counsel|
|Sep 4 2002||Counsel's status report received (confidential)|
from atty Morris.
|Sep 4 2002||Request for extension of time filed|
to file AOB. (4th request)
|Sep 6 2002||Extension of time granted|
To 10/31/2002 to file appellant's opening brief. Extension granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 10/31/2002. After that date, no further extension is contemplated.
|Oct 31 2002||Counsel's status report received (confidential)|
from atty Morris.
|Nov 12 2002||Request for extension of time filed|
To file appellant's opening brief. (5th request)
|Nov 13 2002||Extension of time granted|
To 1/2/2003 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 1/1/2003.
|Jan 3 2003||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Jan 3 2003||Counsel's status report received (confidential)|
from atty Morris.
|Jan 8 2003||Extension of time granted|
To 3/3/2003 to file appellant's opening brief. Extension is granted based upon counsel Barry L. Morris's rerpresentation that he anticipates filing that brief by 3/3/2003. After that date, no further extension will be granted.
|Mar 4 2003||Counsel's status report received (confidential)|
from atty Morris.
|Mar 4 2003||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Mar 5 2003||Extension of time granted|
to 5/1/2003 to file appellant's opening brief. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 5/1/2003. After that date, no further extension 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 take all steps necessary to meet it.
|May 8 2003||Counsel's status report received (confidential)|
from atty Morris.
|May 8 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|May 13 2003||Extension of time granted|
to 5/16/2003 to file appellant's opening brief. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 5/16/2003. After that date, no further extension will be granted.
|May 21 2003||Application for relief from default filed|
to file appellant's opening brief. (247 pp. brief submitted under separate cover)
|May 21 2003||Request for judicial notice filed (in AA proceeding)|
|May 21 2003||Filed:|
Exhibits in support of appellant's request for judicial notice.
|May 23 2003||Order filed|
Appellant's application for relief from default to file appellant's opening brief is granted.
|May 23 2003||Appellant's opening brief filed|
|Jun 23 2003||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jun 24 2003||Request for extension of time filed|
to 8/22/2003 to file respondent's brief.
|Jun 27 2003||Compensation awarded counsel|
|Aug 18 2003||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Aug 20 2003||Extension of time granted|
to 10/22/2003 to file respondent's brief. After that date, only one further extension totaling 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Robert Gezi's representation that he anticipates filing that brief by 10/22/2003.
|Oct 16 2003||Respondent's brief filed|
|Oct 16 2003||Opposition filed|
to appellant's request for judicial notice.
|Nov 6 2003||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Nov 12 2003||Extension of time granted|
to 1/6/2004 to file appellant's reply brief. After that date, only two further extensions totaling 120 additional days will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 4/30/2004. 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 necessry to meet it. Counsel is also ordered to submit confidential status reports monthly until the filing of the appellant's reply brief.
|Dec 15 2003||Counsel's status report received (confidential)|
from atty Morris.
|Jan 13 2004||Request for extension of time filed|
to file appellant's reply brief and relief from default. (2nd request)
|Jan 16 2004||Extension of time granted|
Appellant's request for relief from default is granted. Good cause appearing, and based upon counsel Barry L. Morris's representation that he anticipates filing appellant's reply brief by February 5, 2004, counsel's request for an extension of time in which to file that brief is granted to February 5, 2004. After that date, no further extension is contemplated
|Jan 21 2004||Counsel's status report received (confidential)|
from atty Morris.
|Jan 21 2004||Appellant's reply brief filed|
(88 pp. - 28,001 words)
|Jan 22 2004||Filed:|
Declaration of Barry L. Morris of word count of appellant's reply brief.
|Jan 28 2004||Compensation awarded counsel|
|Jun 9 2004||Compensation awarded counsel|
|Jun 9 2004||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Chuck Nacsin is hereby appointed to represent appellant John Michael Beames for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
|Aug 18 2004||Counsel's status report received (confidential)|
from atty Nacsin.
|Oct 12 2004||Compensation awarded counsel|
|Oct 21 2004||Counsel's status report received (confidential)|
from atty Nacsin.
|Dec 23 2004||Counsel's status report received (confidential)|
from atty Nacsin.
|Jan 19 2005||Compensation awarded counsel|
|Feb 28 2005||Counsel's status report received (confidential)|
from atty Nacsin.
|Apr 28 2005||Counsel's status report received (confidential)|
from atty Nacsin.
|Jun 8 2005||Compensation awarded counsel|
|Jun 30 2005||Counsel's status report received (confidential)|
from atty Nacsin.
|Sep 1 2005||Counsel's status report received (confidential)|
from atty Nacsin.
|Oct 7 2005||Compensation awarded counsel|
|Oct 31 2005||Counsel's status report received (confidential)|
from atty Nacsin.
|Dec 29 2005||Counsel's status report received (confidential)|
from atty Nacsin.
|Jan 9 2006||Compensation awarded counsel|
|Mar 6 2006||Counsel's status report received (confidential)|
from atty Nacsin.
|May 1 2006||Counsel's status report received (confidential)|
from atty Nacsin.
|Jul 12 2006||Compensation awarded counsel|
|Sep 5 2006||Counsel's status report received (confidential)|
from attorney Chuck Nacsin.
|Nov 3 2006||Counsel's status report received (confidential)|
from atty Nacsin.
|Nov 8 2006||Filed:|
Declaration of attorney Chuck Nacsin. (confidential)
|Nov 29 2006||Compensation awarded counsel|
|Dec 12 2006||Oral argument letter sent|
advising that case could be scheduled for oral argument as early as the late January calendar, to be held the week of January 29, 2007, in Sacramento. 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.
|Jan 3 2007||Case ordered on calendar|
to be argued Monday, January 29, 2007, at 1:00 p.m., in Sacramento
|Jan 5 2007||Counsel's status report received (confidential)|
from atty Nacsin.
|Jan 11 2007||Filed:|
respondent's focus issue letter, dated January 11, 2007.
|Jan 19 2007||Filed:|
appellant's focus issue letter.
|Jan 19 2007||Received:|
appellant's appearance sheet (45 minutes for argument)
|Jan 24 2007||Order filed|
Appellant's request for judicial notice, filed on May 21, 2003, is denied.
|Jan 29 2007||Cause argued and submitted|
|Feb 14 2007||Compensation awarded counsel|
|Mar 5 2007||Counsel's status report received (confidential)|
from atty Nacsin.
|Mar 21 2007||Notice of forthcoming opinion posted|
|Mar 22 2007||Opinion filed: Judgment affirmed in full|
Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno, & Corrigan, JJ.
|Apr 10 2007||Rehearing petition filed|
by appellant counsel Barry Morris. (pursuant to CRC 8.25 (b) (3) (B) - via DHL)
|Apr 17 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 June 20, 2007, the date upon which rehearing is either granted or denied, whichever occurs first.
|May 7 2007||Counsel's status report received (confidential)|
from atty Nacsin.
|May 9 2007||Rehearing denied|
The petition for rehearing is denied.
|May 9 2007||Remittitur issued (AA)|
|May 21 2007||Received:|
acknowledgment of receipt of remittitur.
|May 22 2007||Order filed (150 day statement)|
|Jun 7 2007||Related habeas corpus petition filed (post-judgment)|
case no. S153603
|Jun 13 2007||Compensation awarded counsel|
|Jun 20 2007||Compensation awarded counsel|
|Aug 6 2007||Habeas funds request filed (confidential)|
by attorney Nacsin.
|Sep 12 2007||Order filed re habeas funds request (confidential)|
|Oct 9 2008||Compensation awarded counsel|
|May 23 2003||Appellant's opening brief filed|
|Oct 16 2003||Respondent's brief filed|
|Jan 21 2004||Appellant's reply brief filed|