IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
STEVEN M. BELL,
Super. Ct. No. CR133096
Defendant and Appellant.
Defendant Steven M. Bell was convicted of first degree murder with a
robbery-murder special circumstance (Pen. Code, §§ 187, 189, 190.2, subd.
(a)(17)) and sentenced to death for the 1992 killing of Joey Anderson. On
automatic appeal, we affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
Guilt Phase Trial
On June 4, 1992, defendant was living at the San Diego home of his
girlfriend, Deborah Mitchell, with Mitchell and her 11-year-old son, Joey
Anderson. On that morning, after Mitchell left for work and Joey went to school,
defendant walked to a local government office and obtained a $111 assistance
check. According to defendant’s statement to police, he cashed the check and, in
the early afternoon, used the cash to buy crack cocaine, which he smoked with
several acquaintances. Around 3:00 p.m., defendant ran out of money and
returned to Mitchell’s house with the plan of taking items to sell in order to buy
According to defendant’s statement, he expected Joey still to be at school.
In fact, however, Joey had come home from school earlier than usual and was
watching television in his mother’s bedroom. After getting a shopping cart from
behind the building, defendant entered the bedroom intending to take the
television. Seeing Joey, defendant went to the kitchen, took a knife from a drawer,
and returned to the bedroom. There he stabbed Joey in the back and, when Joey
fell to the floor, stabbed him several more times and stomped on Joey’s head with
After killing Joey, defendant took the television and a “boom box” from
Joey’s room and put both in the shopping cart. Defendant wrapped the bloody
knife in a plastic bag and covered the shopping cart’s contents with a blanket. He
then left with the cart, waving to a neighbor as he passed. He dropped the knife on
a trash pile, sold the television and boom box, and used the proceeds to buy more
crack cocaine, which he smoked with a woman companion.
Mitchell discovered her son’s body when she returned from work. Joey
was lying on the bedroom floor near the television stand, his partly eaten lunch
nearby. According to the medical examiner, Joey had multiple stab wounds in the
abdomen, chest and back (including a seven-inch-deep stab wound to the chest
that caused fatal damage), a skull fracture, and bleeding or bruising of the brain.
About 10:45 the next morning, defendant approached a police officer who
was directing traffic. Showing the officer a newspaper article about Joey’s killing,
defendant identified himself and said he did not stab the boy. In his initial
interview with homicide detectives at the station, defendant admitted taking the
television and boom box in order to buy drugs, but denied Joey was at home when
he did so.
In a second interview, defendant admitted killing Joey. He said he did not
know why he had killed Joey instead of just taking the television; he had gotten
along well with Joey and was not angry at the boy. Defendant said he “just
flipped.” As he got the knife from the kitchen, he felt “so evil,” as if “something’s
pushing me to do this,” and he “ask[ed] the Lord’s help.”
The defense did not dispute that defendant had taken the television and
boom box and had killed Joey, but sought, through expert testimony regarding
defendant’s mental health and drug use, to cast doubt on the existence of a
connection between the thefts and the killing.
A toxicologist testified that a sample of defendant’s urine, taken at the time
of his arrest the day after the crimes, showed the presence of benzoylecgonine, a
cocaine metabolite, in a concentration greater than 6,000 nanograms per milliliter,
the upper calibration limit of the machine used for this test. A sample of
defendant’s blood contained 92 nanograms per milliliter of benzoylecgonine but
no cocaine itself.
A pharmacologist testified the measured blood level of benzoylecgonine
would be considered a “moderate quantity” if the sample was taken immediately
after smoking cocaine or would indicate a “much larger” cocaine dose if the crack
cocaine had been smoked many hours earlier, as was suggested by the fact that no
actual cocaine was found in the blood sample. The measured urine concentration
indicated a level of cocaine consumption that may have been either “relatively
high” or “enormous,” depending on how much greater than 6,000 nanograms per
milliliter the urine concentration was. In answer to a hypothetical question based
on the facts outlined in defendant’s statements to the police, the pharmacologist
opined that the observed blood concentration of benzoylecgonine was consistent
with the hypothesized timing and amount of defendant’s cocaine consumption.
Dr. David Smith, a specialist in addiction medicine and clinical toxicology,
testified to the effects of crack cocaine on the body and mind. These can include
violent “rage reaction[s],” “cocaine psychosis” (a paranoid schizophrenic-like
reaction found with long-term repeated use), and the manifestation of a preexisting
personality disorder. Based on his personal evaluation of defendant, his review of
police, toxicological and psychological reports, and defendant’s recorded
confession, Smith opined defendant’s killing of Joey was neither a rage reaction
nor a classic cocaine psychosis. Instead, he believed, defendant’s crack cocaine
use precipitated a psychotic “decompensation” episode in which defendant
experienced “dissociation” from his own actions. Defendant was prone to such a
reaction because of his borderline personality disorder (a diagnosis Smith drew
from his own observations and from psychological reports provided to him).
According to Smith, a person with borderline personality disorder―a disorder
associated with “very dysfunctional child rearing”―has “a relatively thin level of
functioning, but underneath it, for example, has a psychotic personality.” Such a
person has reduced impulse control and an increased incidence of dissociative
reactions. Under the influence of drugs, the person can have “a break with reality
in which the individual depersonalizes, . . . seeing themselves doing something as
if it’s somebody else.”
Smith found defendant’s explanation of Joey’s killing consistent with a past
episode, occurring in 1981 when defendant was 15, in which defendant had
stabbed and sodomized a 13-year-old schoolmate. In both cases, defendant
(whose borderline personality disorder would already have existed at the earlier
age) was using drugs (PCP in the 1981 episode). In both cases, defendant attacked
a nonthreatening boy with a knife. In both cases, according to Dr. Smith,
defendant experienced depersonalization and a sense that someone or something
was telling him to commit the violent acts.
Richard Levak, a clinical psychologist, interviewed defendant, administered
the Minnesota Multiphasic Personality Inventory to him, and reviewed materials
from the current and 1981 incidents. Like Smith, Levak diagnosed defendant as
having borderline personality disorder. A person with this severe disturbance in
identity can function well in a structured situation, but when confronted with even
minor stressors can experience brief, transitory losses of contact with reality. The
disorder originated in defendant’s childhood situation: his mother provided for
him but did not like him or show him affection; defendant stuttered, which
reminded his mother of defendant’s father, who had left her; defendant’s stuttering
made his mother impatient and angry; defendant’s stepfather drank and physically
abused him, alternating the abuse with episodes of tenderness; defendant suffered
ridicule at school because of his stutter and the “preppy” way his mother dressed
him. This combination of circumstances caused “a completely damaged self-
identity, . . . an escape into fantasy, . . . an attempt to shut down all emotions . . .
and this confusion of sexuality and aggression.” In response, defendant began
drinking alcohol by age nine and using other drugs by early adolescence.
According to Levak, defendant identified with Joey, who was having
trouble at school and, as a consequence, was sometimes whipped by his mother.
On the day of the crimes, defendant, severely stressed by his cocaine use,
unexpectedly encountered Joey at home. “And then I think that having a lot of
mixed feelings, that he has a temporary psychotic break, a lot of old feelings of
anger and rage from his own childhood are suddenly erupted, and he then feels
this compulsion to kill Joey, and in the process, I believe, he’s killing a part of
himself.” The 1981 incident, Levak opined, was “eerily similar”―there too
defendant, under the influence of drugs and having “experienced a life in which
violence and affection were linked,” found his feelings of affection for the victim
“too much for him to deal with” and assaulted the victim in a brief psychotic
Prosecution Rebuttal Evidence
A toxicologist called by the prosecutor disputed the defense
pharmacologist’s analysis of the results of defendant’s drug tests. He disagreed
with the defense expert’s statement that a urinary benzoylecgonine concentration
greater than 6,000 nanograms per milliliter suggested the subject had smoked
more than a single hit of crack cocaine. He stated the defense expert had used an
incorrect value for the half-life of benzoylecgonine in answering the hypothetical
question regarding blood levels of that chemical. Using the correct half-life value,
he opined the hypothetical person’s blood benzoylecgonine concentration would
have been around 890 nanograms per milliliter, rather than the 90 nanograms per
milliliter measured in defendant’s blood the day after the crime. Calculating
backward from the measured blood concentration, the prosecution toxicologist
found that concentration could have resulted from smoking about 100 milligrams
of crack cocaine (about one hit) at 1:00 p.m. the day before the blood sample was
A psychiatrist and a psychologist called by the prosecutor both disagreed
with the opinions of the defense experts that defendant had killed Joey during a
brief psychotic break with reality caused by borderline personality disorder and
triggered by crack cocaine use. According to the prosecution psychiatrist, a
cocaine-induced break with reality can occur, but only in “extreme situations . . .
in terms of dose and duration of exposure,” as when a person uses cocaine for days
on end without eating or sleeping. The psychologist noted that borderline
personality disorder commonly involves suicidal or self-mutilatory acts or
gestures, which were not present in defendant’s history, and opined that to the
extent defendant had a personality disorder it was “a mixed personality disorder
with predominantly anti-social features.” As to a break in contact with reality
during the killing, the psychologist observed that before and after the killing
defendant had acted in a rational manner; he opined that psychotic
decompensation “doesn’t just happen with the flick of a switch.” He would also
expect a cocaine-triggered psychotic episode to occur when the intoxication from
the cocaine was at its greatest, rather than “several hours later” when defendant
The prosecution psychologist also observed that defendant, when he
initially confessed to the 1981 attack on his schoolmate, did not mention having
heard voices directing him to attack the victim, though he later told a psychologist
he had. The videotape of defendant’s initial 1981 interview with a Manhattan
prosecutor was played for the jury. In that interview, defendant said that he was
drinking whisky with three friends, including the victim. When one of them got
sick, they took him to the hospital. In the late evening, defendant was alone with
the victim in the victim’s bedroom. Defendant went to the kitchen for a drink of
water, but also took a large kitchen knife from a drawer and brought it back to the
bedroom. When the victim went to turn off the stereo, defendant stabbed him in
the back. The victim fell onto his bed and asked defendant to take him to the
hospital. Instead, defendant got some Vaseline from the bathroom and, after
pulling down the victim’s pants and underpants, put Vaseline on his anus and
sodomized him. Defendant then departed, leaving the victim undressed with the
knife still in him.
Penalty Phase Trial
In aggravation, the prosecution presented evidence of the 1981 offense’s
impact on its victim and of the impact of Joey’s killing on his family.
The 1981 victim testified that after an evening of drinking alcohol and
smoking marijuana, he was alone with defendant in the victim’s bedroom.
Defendant said he had dropped his keys behind the bed and asked the victim to get
them. When the victim leaned over, defendant stabbed him in the back with a
butcher knife. The knife penetrated through the victim’s body, emerging at his
chest. He blacked out; when he came to, he was on the floor, paralyzed. By the
time of trial he had recovered some use of his legs, though he still used a
wheelchair as well. As a result of the attack, he lost a lot of school time and never
graduated. He had no job and depended on government payments.
Deborah Mitchell, Joey’s mother, briefly described her life with Joey
before his death. After his killing, she could not return to their home and moved
away from San Diego, where most of her family lived, to the San Francisco Bay
Area, where her daughter lived. At the time of trial, she was in therapy and a
support group but still felt great pain from the loss of Joey. Mitchell’s father
described his grandson, with whom he was close, as a talkative and playful boy.
After Joey’s death, Mitchell was very disturbed and became more distant from her
family, apparently feeling the family held her responsible for Joey’s killing.
Several members of defendant’s family―two aunts, a cousin, and his sister
Lisa―described his childhood and immediate family, and in particular his parents’
emotional neglect and physical abuse. Defendant’s mother was reserved and
unaffectionate. She did not hug or show affection to defendant, and as a small
child defendant was unaccustomed to being held or kissed. When defendant was
two years old, he was hospitalized for close to two weeks for pneumonia; his
mother visited him only once in that time. Defendant began stuttering when he
was a little older; his mother was annoyed and told him to “say what you have to
say or shut up.” His mother’s impatience caused defendant to withdraw as if he
were ashamed. Eventually defendant’s communication with his mother decreased;
Lisa, who was a few years older, would speak for him because he was too nervous.
Defendant’s father was an intravenous drug user who stole from the family
home. Defendant’s father and mother divorced when defendant was two or three
years old and after that, contact with his father was rare. Defendant’s mother
remarried when defendant was six or seven years old. To discipline defendant, his
stepfather beat him once or twice a week, using his hands, a belt or an electric
cord. He also sexually molested Lisa repeatedly from when she was 11 years old
until she joined the Army and left home at 17.
A number of witnesses testified to defendant’s good behavior while he was
confined at the Harlem Valley Youth Detention Center for the 1981 offense.
Defendant was somewhat passive, but friendly, intelligent and trustworthy; he
worked for years in the facility kitchen together with the women employees, who
came to regard him as a friend or little brother; he was not involved in violent
incidents and earned his general equivalency diploma and some college credits.
Unlike other residents’ families, defendant’s family did not visit him at Harlem
The director of Theatre Rehabilitation for Youth (TRY) testified to
defendant’s participation in TRY programs both during and after his confinement
at Harlem Valley. During his confinement, defendant participated in TRY
workshops and shows at Harlem Valley, acted in a touring show, and wrote poetry
and portions of scripts for the shows. He became more confident and did not
stutter on stage. In one scene defendant wrote about himself, he asked: “But what
if I can’t forgive myself?” The director felt that defendant became like a son to
him. He hired defendant after his release from custody to operate sound and
lighting equipment for TRY’s touring show. Although sometimes appearing
strung out from drug use, defendant worked hard and responsibly for some
months, but was dismissed when he falsely reported his paycheck missing. After
his dismissal, defendant voluntarily worked a week without pay to repay what he
A sociologist described Lexington Houses, the Manhattan public housing
project where defendant grew up, and the surrounding neighborhood of East
Spanish Harlem. The area had been a drug-selling zone for at least 30 years; in
the 1980’s, it was flooded with crack cocaine.
The admissions director of a private junior college in San Diego testified
that defendant enrolled to study accounting in 1990. In his first quarter of classes
he got straight A’s, but in the second quarter he seemed troubled and eventually
quit attending. He returned in May 1992 and reenrolled, planning to start classes
A correctional consultant testified to the maximum security conditions
under which life prisoners are held in California prisons. He also opined, based on
defendant’s history in confinement, that defendant would be an excellent prisoner
if sentenced to life without the possibility of parole.
A psychologist who analyzed defendant’s responses to the Minnesota
Multiphasic Personality Inventory and reviewed materials from the 1981 and
charged offenses opined (in accord with the guilt phase defense experts) that
defendant had borderline personality disorder and that Joey’s killing had “all the
hallmarks” of a transient psychotic episode.
Prosecution Rebuttal Evidence
A probation officer testified that in 1991 she had discussed the 1981
incident with defendant. He said that while he and a friend were smoking PCP,
“his friend grabbed a butcher knife, but he stabbed his friend first.” Defendant
also said he and the victim were still friends and did not mention that he had
sodomized the victim after stabbing him. A deputy sheriff at the San Diego
County jail testified defendant was kept in segregation from the main population
while awaiting trial.
In an information filed August 12, 1992, defendant was charged with
murder (count 1: Pen. Code, § 187, subd. (a)),1 with an allegation of personal use
of a deadly weapon (§ 12022, subd. (b)) and special circumstance allegations of
murder in the commission of robbery and burglary (§ 190.2, subd. (a)(17));
residential robbery (count 2: §§ 211, 212.5) with personal use and great bodily
injury allegations (§§ 12022, subd. (b), 12022.7); and residential burglary
(count 3: §§ 459, 460) with personal use and great bodily injury allegations
(§§ 12022, subd. (b), 12022.7). The burglary charge, its accompanying
allegations, and the burglary-murder special-circumstance allegation were
dismissed before trial on defendant’s motion under section 995.
On November 22, 1993, the jury found defendant guilty of first degree
murder and robbery, and found true the robbery-murder special-circumstance
allegation and the allegations of personal use of a deadly weapon and infliction of
great bodily injury. On December 17, 1993, the jury returned a verdict of death.
On March 7, 1994, having denied the automatic motion to reduce the penalty and
All further unspecified statutory references are to the Penal Code.
defendant’s motion for a new trial, the trial court sentenced defendant to death on
count 1 and to a 10-year determinate sentence on count 2, the latter sentence being
stayed under section 654.
The appeal to this court is automatic. (Cal. Const., art. VI, § 11; § 1239,
I. Wheeler/Batson Motions: Existence of Prima Facie Case
Defense counsel made three motions under People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson),
claiming the prosecutor had used peremptory challenges to deliberately exclude
African-American women, people of Filipino origin or descent, and lesbians. The
trial court found no prima facie case of discrimination as to any of these groups, a
set of findings defendant contends was error. We conclude the trial court was
When the prosecutor excused Prospective Juror Gwendolyn J., defense
counsel made a Wheeler-Batson motion on the basis of her race, arguing that none
of her questionnaire answers showed “favor either way.” The trial court observed
that the prosecutor had challenged only one of the three African-Americans
currently on the jury panel, with four more remaining in the group still subject to
peremptory challenge, and found no prima facie case of exclusion on the basis of
Later, when the prosecutor peremptorily challenged another
African-American woman, Lisa J.-S., as an alternate juror, defense counsel
claimed the prosecutor was “using group bias to exclude African-American
women,” a cognizable group for Wheeler purposes under People v. Motton (1985)
39 Cal.3d 596, 605-606. The court noted that a third African-American woman,
Helen L., remained on the panel and ascertained that the prosecutor did not intend
to challenge her. The court also noted that the jury panel included three African-
American men; that defendant was not a member of the group to which defense
counsel claimed group bias was being applied; and indeed that the group, African-
American women, “is actually more closely related to the victim than to the
defendant,” viewing Joey’s mother as a victim of defendant’s alleged crimes. In
those circumstances, the court found, the prosecutor’s excusal of two out of three
African-American women did not create a prima facie case of intentional
Defense counsel also contended the prosecutor’s peremptory challenges to
Prospective Jurors Charles B. and Saldy P. were motivated by “group bias against
Filipino Americans.” The trial court agreed both men were Filipino-Americans
and assumed, for purposes of the motion, that Filipino-Americans are a cognizable
group under Wheeler and Batson. The court observed, however, that membership
in that group was not always easy to determine, as the questionnaire used did not
ask potential jurors to identify their ethnic group; at least two other members of
the jury panel, in the court’s view, could have been Filipino-Americans. The court
also noted that neither defendant nor any victim in the case was Filipino- or Asian-
American. In those circumstances, the court found, the prosecutor’s excusal of
two Filipino-Americans did not create a prima facie case of group bias.
Finally, defense counsel claimed the prosecutor had exercised group bias
against lesbians in peremptorily challenging Prospective Jurors Francene B. and
Lynne W. Asked for the factual basis to believe Francene B. was a lesbian,
counsel pointed to “her physical appearance” and the fact she had participated in a
gay rights march, “is involved with other feminist issues and reads women’s
literature.” In the case of Lynne W., counsel pointed to her “non-traditional job”
(as a carpenter and locksmith) and that she “reads women’s issues.” The trial
court, finding no basis for concluding either woman was a lesbian, denied the
In a motion for new trial, the defense renewed its Wheeler-Batson motions
with regard to African-American women and Filipino-Americans. The trial court
repeated its conclusion that no prima facie case had been made as to either group,
stating that the record did not show a “strong likelihood” of discrimination.
“A prosecutor’s use of peremptory challenges to strike prospective jurors
on the basis of group bias―that is, bias against ‘members of an identifiable group
distinguished on racial, religious, ethnic, or similar grounds’―violates the right of
a criminal defendant to trial by a jury drawn from a representative cross-section of
the community under article I, section 16 of the California Constitution. (Wheeler,
supra, 22 Cal.3d at pp. 276-277; see People v. Griffin (2004) 33 Cal.4th 536, 553.)
Such a practice also violates the defendant’s right to equal protection under the
Fourteenth Amendment to the United States Constitution. (Batson, supra, 476
U.S. at p. 88; see also People v. Cleveland (2004) 32 Cal.4th 704, 732.)” (People
v. Avila (2006) 38 Cal.4th 491, 541.)
“The United States Supreme Court has recently reaffirmed that Batson
states the procedure and standard to be used by trial courts when motions
challenging peremptory strikes are made. ‘First, the defendant must make out a
prima facie case “by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” [Citations.] Second, once the defendant has
made out a prima facie case, the “burden shifts to the State to explain adequately
the racial exclusion” by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial
court must then decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.” [Citation.]’ (Johnson v. California (2005) 545
U.S. 162, , fn. omitted.)” (People v. Avila, supra, 38 Cal.4th at p. 541.) We
have endorsed the same three-part structure of proof for state constitutional claims.
(People v. Snow (1987) 44 Cal.3d 216, 222; Wheeler, supra, 22 Cal.3d at pp. 280-
The trial court’s statement, in denying defendant’s new trial motion, that it
failed to find a “strong likelihood” of discrimination suggests the court may have
used a standard for the prima face case that was later found too demanding under
Batson. “[O]ur Wheeler decision . . . alluded to a ‘reasonable inference’ of group
bias as a basis for a prima facie showing and also called for the defendant to
establish a ‘strong likelihood’ that a juror has been peremptorily challenged on the
basis of group bias. (Wheeler, supra, 22 Cal.3d at pp. 280, 281.) Our subsequent
decision holding that both of the quoted terms were essentially the same as the
Batson standard, and that a prima facie showing called for a demonstration that it
was ‘more likely than not’ that group bias accounted for the challenge, was
disapproved in Johnson [v. California, supra, 545 U.S. at pp. 169-172] (reversing
People v. Johnson (2003) 30 Cal.4th 1302).” (People v. Cornwell (2005) 37
Cal.4th 50, 73.)
Even assuming the trial court applied the wrong standard, however, reversal
is not necessarily required. Where it is unclear whether the trial court applied the
correct standard, we review the record independently to “apply the high court’s
standard and resolve the legal question whether the record supports an inference
that the prosecutor excused a juror” on a prohibited discriminatory basis. (People
v. Cornwell, supra, 37 Cal.4th at p. 73; accord, People v. Avila, supra, 38 Cal.4th
at p. 554.)
Though proof of a prima facie case may be made from any information in the
record available to the trial court, we have mentioned “certain types of evidence
that will be relevant for this purpose. Thus the party may show that his opponent
has struck most or all of the members of the identified group from the venire, or
has used a disproportionate number of his peremptories against the group. He may
also demonstrate that the jurors in question share only this one
characteristic―their membership in the group―and that in all other respects they
are as heterogeneous as the community as a whole. Next, the showing may be
supplemented when appropriate by such circumstances as the failure of his
opponent to engage these same jurors in more than desultory voir dire, or indeed
to ask them any questions at all. Lastly, . . . the defendant need not be a member
of the excluded group in order to complain of a violation of the representative
cross-section rule; yet if he is, and especially if in addition his alleged victim is a
member of the group to which the majority of the remaining jurors belong, these
facts may also be called to the court’s attention.” (Wheeler, supra, 22 Cal.3d at
pp. 280-281, fn. omitted; see also Batson, supra, 476 U.S. at pp. 96-97 [in
assessing a prima facie case, the trial court should consider “all relevant
circumstances,” including “a ‘pattern’ of strikes against black jurors” and “the
prosecutor’s questions and statements during voir dire examination”]; U.S. v.
Grandison (D.Md. 1988) 721 F.Supp. 743, 747 [that the prosecutor did not engage
in “desultory or half-hearted questioning” of excused jurors is a factor against
prima facie showing]; United States ex rel. Henderson v. Page (N.D.Ill. 2000)
2000 WL 1466204, p. *13 [“heterogeneity of the stricken black venire members”
is relevant Batson circumstance]; United States ex rel. Kyles v. O’Leary (N.D.Ill.
1986) 642 F.Supp. 222, 228 [defendant’s membership in group allegedly
excluded, together with victim’s membership in majority group, is relevant Batson
We agree with the trial court that the defense did not make a prima facie
case that Gwendolyn J. and Lisa J.-S. were challenged because they are African-
American women. As noted, African-American women constitute a cognizable
group under Wheeler. (See People v. Motton, supra, 39 Cal.3d at pp. 605-606.)
While the prosecutor did excuse two out of three members of this group,2 the
small absolute size of this sample makes drawing an inference of discrimination
from this fact alone impossible. “[E]ven the exclusion of a single prospective
juror may be the product of an improper group bias. As a practical matter,
however, the challenge of one or two jurors can rarely suggest a pattern of
impermissible exclusion.” (People v. Harvey (1984) 163 Cal.App.3d 90, 111.)3
Nor did the prosecutor use “a disproportionate number of his peremptories against
Defendant argues the third African-American woman, Helen L., who
served as an alternate, should not be considered in our analysis because had the
prosecutor challenged her he would have had to accept a different alternate “with
strong anti-death penalty feelings.” The only record evidence cited for this
proposition, however, is defense counsel’s own assertion of it during a new trial
hearing. Nor do we agree with defendant that the trial court effectively told the
prosecutor “he would have to accept” Helen L. The trial court observed that if the
prosecutor did not challenge Helen L. “that would make a difference” in its prima
facie case analysis because “two out of three is different than two out of two,” but
the court never indicated it would grant the Wheeler-Batson motion, or even find a
prima facie case, if the prosecutor challenged Helen L.
To be sure, the ultimate issue to be addressed on a Wheeler-Batson motion
“is not whether there is a pattern of systematic exclusion; rather, the issue is
whether a particular prospective juror has been challenged because of group bias.”
(People v. Avila, supra, 38 Cal.4th at p. 549.) But in drawing an inference of
discrimination from the fact one party has excused “most or all” members of a
cognizable group (Wheeler, supra, 22 Cal.3d at p. 280), a court finding a prima
facie case is necessarily relying on an apparent pattern in the party’s challenges.
Although circumstances may be imagined in which a prima facie case could be
shown on the basis of a single excusal, in the ordinary case, including this one, to
make a prima facie case after the excusal of only one or two members of a group
is very difficult. (Accord, Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 1198.)
the group” (Wheeler, supra, 22 Cal.3d at p. 280); only two of the prosecutor’s 16
peremptory challenges were exercised against African-American women.4
Defendant does not contend Gwendolyn J. and Lisa J.-S. shared only the
characteristic of being African-American women and were otherwise “as
heterogeneous as the community as a whole.” (Wheeler, at p. 280.) Nor does he
assert the prosecutor engaged these prospective jurors in particularly “desultory”
questioning on voir dire. (Id. at p. 281.)5 Lastly, defendant is not a member of the
group allegedly excluded, African-American women. Indeed, as the trial court
observed, one of the victims of defendant’s crimes, Joey’s mother, was an
African-American woman.6 Moreover, the prosecutor did not exercise
A more complete analysis of disproportionality compares the proportion of
a party’s peremptory challenges used against a group to the group’s proportion in
the pool of jurors subject to peremptory challenge. Here the prosecutor used two
of his 16 peremptory challenges, or 12.5 percent, against African-American
women, while of the 47 prospective jurors who were subject to peremptory
challenge, three, or about 6.4 percent, were African-American women. Though
the former figure is almost twice the latter, because of the small sample size the
disparity carries relatively little information. (See Wade v. Terhune, supra, 202
F.3d at p. 1198 [significance “limited” where corresponding ratios were “four of
sixty-four (or 6%)” (proportion of group in pool) and “one of three (or 33%)”
(proportion of challenges exercised against group)].)
Renewing the Wheeler/Batson arguments in the motion for new trial,
defense counsel asserted the prosecutor’s questioning of the excused African-
American women was perfunctory. The trial court observed in response that the
prosecutor had asked the women questions, “but, more importantly, we had an
extensive questionnaire with regard to every juror. So even if perfunctory
questioning was done as to any juror, when you have a questionnaire, it can never
be a perfunctory examination.” Defendant does not contend the questioning was
especially desultory in light of the questionnaires.
Defendant notes that Mitchell, Joey’s mother, was not “in a legal sense” a
victim of the charged homicide and robbery. That is irrelevant for the present
purpose, however, as the loss of her son at defendant’s hands obviously made her
a victim of defendant’s crimes as the jury would see it.
peremptory challenges against most or all members of defendant’s parallel group,
African-American men; three of them served on the jury. These facts, we believe,
simply do not “ ‘give rise to an inference of discriminatory purpose.’ ” (Johnson
v. California, supra, 545 U.S. at p. 168.)
For much the same reasons, we disagree the defense made a prima facie
case that Charles B. and Saldy P. were excused because they are of Filipino origin
or ancestry. Assuming, as did the trial court, that both men are Filipino-
Americans and that Filipino-Americans are, for purposes of Wheeler and Batson, a
cognizable group distinct from other Asian-Americans, the record nonetheless
fails to show how many other Filipino-Americans were in the venire and were not
challenged by the prosecutor. The prosecutor did not use an extraordinary number
of his peremptory challenges against members of this ethnic group, nor does
defendant claim the prosecutor’s voir dire of these prospective jurors was
unusually desultory or that in respects other than their ethnic background or
national origin the two were especially heterogeneous. Neither defendant nor any
of the victims or percipient witnesses to the crimes were Filipino-Americans.
Under these circumstances, the prosecutor’s excusal of two Filipino-Americans
does not create an inference of discrimination.
The defense showing was even weaker with regard to Prospective Jurors
Francene B. and Lynne W., as nothing in the record showed they were members of
the group against whom defense counsel claimed the prosecutor was
discriminating, lesbians. (Like the trial court, we assume lesbians are a cognizable
group for Wheeler-Batson purposes.) In the context of racial discrimination, we
have stated that a Wheeler motion may sometimes be based on “appearances,”
without the need to “establish the true racial identity of the challenged jurors”
(People v. Motton, supra, 39 Cal.3d at p. 604), but sexual orientation is usually not
so easily discerned from appearance. Without any definite indication that the
challenged prospective jurors either were lesbians or that the prosecutor believed
them to be such, no prima facie case of discrimination against lesbians as a group
can be made. (See In re Freeman (2006) 38 Cal.4th 630, 644-645
[Wheeler-Batson claim failed for insufficient showing that challenged prospective
jurors either were Jewish or were thought to be so by the prosecutor].) Even
assuming Francene B. and Lynne W. are lesbians or were thought to be such by
the prosecutor, the record does not establish how many other lesbians went
unchallenged by the prosecutor. Nor do any other of the circumstances mentioned
in Wheeler apply: The prosecutor did not use an extraordinary number of his
peremptory challenges against lesbians; defendant does not claim the prosecutor’s
voir dire of these prospective jurors was unusually desultory or that in respects
other than their sexual orientation the two were especially heterogeneous, and
neither defendant nor any of the victims or percipient witnesses to the crimes were
identified as lesbians at trial. No inference of discrimination has been raised.
We emphasize that we have discussed the various factual circumstances
mentioned in Wheeler and other cases not as affirmatively showing the absence of
discrimination but only as indications of why defendant did not meet his burden of
raising an inference of discrimination. For example, that defendant was not a
member of any of the actual or assumed cognizable groups involved (African-
American women, Filipino-Americans, lesbians) neither proves the peremptory
challenges against members of these groups were not discriminatory nor defeats
defendant’s motion as a matter of law; it merely identifies a factor that, because it
is absent, fails in this case to support an inference of discrimination. It was
defendant’s burden to make a prima facie case. His attempt to do so fell short
because he presented no factual circumstances other than the numbers of
peremptory challenges used against each group―which in this case were too small
to raise, by themselves, any inference of discrimination―and a record of voir dire
that appellate counsel himself characterized as “unremarkable.”
This court, like the trial court, has been able to determine that defendant
made no prima facie case without hypothesizing permissible reasons that might
have motivated the prosecutor’s challenges. (Compare, e.g., People v. Avila,
supra, 38 Cal.4th at pp. 553-556.) Consequently, we have found a comparison of
the challenged prospective jurors and seated jurors neither necessary nor
appropriate. Defendant acknowledges this court’s past reluctance to perform such
a comparative juror analysis for the first time on appeal (see People v. Cornwell,
supra, 37 Cal.4th at p. 71), but argues our practice should be reevaluated in light
of Miller-El v. Dretke (2005) 545 U.S. 231.
In the circumstances of this first-stage Wheeler-Batson case, comparative
juror analysis would make little sense. In determining whether defendant has
made a prima facie case, the trial court did not ask the prosecutor to give reasons
for his challenges, the prosecutor did not volunteer any, and the court did not
hypothesize any. Nor, obviously, did the trial court compare the challenged and
accepted jurors to determine the plausibility of any asserted or hypothesized
reasons. Where, as here, no reasons for the prosecutor’s challenges were accepted
or posited by either the trial court or this court, there is no fit subject for
comparison. Comparative juror analysis would be formless and unbounded.
Miller-El v. Dretke, supra, 545 U.S. at pages 241-252, does not mandate
comparative juror analysis in these circumstances. As we have previously
explained, Miller-El arose at the third stage of a Wheeler-Batson inquiry, “after the
trial court has found a prima facie showing of group bias, the burden has shifted to
the prosecution, and the prosecutor has stated his or her reasons for the challenges
in question.” (People v. Gray (2005) 37 Cal.4th 168, 189.) The high court did not
consider whether appellate comparative juror analysis is required “when the
objector has failed to make a prima facie showing of discrimination.” (Ibid.) A
fortiori, Miller-El does not mandate comparative juror analysis in a first-stage
Wheeler-Batson case when neither the trial court nor the reviewing courts have
been presented with the prosecutor’s reasons or have hypothesized any possible
Defendant argues comparative juror analysis is appropriate here because
defense counsel relied on such comparisons at trial. We disagree. Trial counsel
asserted that the questionnaires of the two challenged African-American women
were “nondescript” and contained nothing “controversial,” and that one of the
women was “about as neutral as any prospective juror.” But counsel did not point
to any specific questionnaire or voir dire of jurors the prosecution had accepted
and thus did not make any actual comparisons between seated jurors and those the
prosecutor had excluded. Moreover, as neither the prosecutor nor the trial court
mentioned as reasons for their excusal the two women’s questionnaire responses,
voir dire or any other characteristic, there was nothing trial counsel could have
focused on for such a comparison. Counsel’s comments, in these circumstances,
were too vague and general to impose on the trial court―or this court―a duty to
compare these prospective jurors, as to unspecified criteria, to unnamed jurors
accepted by the prosecutor.
II. Judicial Misconduct: Disparaging Remarks About Defense
Defendant contends the trial court “overstepped the bounds of impartiality”
by disparaging defense counsel in front of the jury, thereby depriving defendant of
his federal and state constitutional rights to a fair trial by an impartial judge, due
process, and a reliable determination of penalty. We disagree; in the context of the
entire trial, the remarks complained of could not reasonably have been understood
as reflecting bias against the defense.
Defendant’s contention rests on four remarks by the trial court in the course
of the two-month-long jury trial:
1. During the prosecution guilt phase case-in-chief, the court called a
slightly early end to a day’s testimony because no other witnesses were available.
Court and counsel then discussed the next day’s start time before excusing the
“The Court: Okay. Well, we should not punish the attorneys for being
efficient, so we’ll just all stop for the day. It’s only 15 minutes earlier than we
would stop normally.
“Counsel, I think that we can just start at nine o’clock tomorrow. We have
nothing we need to discuss before we proceed tomorrow?
“Mr. Sickels [the prosecutor]: Don’t believe so.
“Mrs. Leonard [defense counsel]: Possibly.
“The Court: That means Ms. Leonard is going to go back to her office
tonight and dream something up.
“Mrs. Leonard: Oh, that’s not quite what I mean, your honor. There may
“Mr. Liss [defense counsel]: Our objections are based on facts, not dreams.
“The Court: My question is, do you think we should bring the jury in at
“Mrs. Leonard: I think that’s a good idea, your honor, 9:15.
“The Court: Do you think we’ll be more than 15 minutes?
“Mrs. Leonard: I hope not.”
2. During the prosecutor’s cross-examination of a defense guilt phase
expert, defense counsel objected to the form of a question:
“Mr. Liss: Your honor, I am going to object at this point as being not only
hearsay, but improper questioning, and that it appears at this point just [to] be
wholesale reading of a report, and I would like to be heard at side-bar.
“The Court: Do you want to be heard at side-bar?
“Mr. Liss: Yes, your honor.
“The Court: Well, I think the objection will be overruled. I mean, we
heard this objection just the other way yesterday and I ruled in your favor. This is
all admissible, and you argued it was admissible yesterday and I agreed with you.
“Mr. Liss: Perhaps I am looking for questions, but I will leave it at that.
“The Court: Overruled.”
3. During the same cross-examination, the prosecutor moved to strike a
response as nonresponsive. The following discussion ensued:
“The Court: What was your―why don’t you restate your question?
“Mr. Liss: Your honor, I’d ask that his question be reread. And this is
responsive to it.
“The Court: I don’t think you make friends with the court reporter when
you do that. It’s very hard for her to dig that out.
“Do you remember your question, or do I need to―if you don’t, I’ll have it
4. At the end of penalty phase instructions, court and counsel discussed a
number of issues during a recess. When the jury was brought back in, the court
apologized for the delay, saying: “The attorneys managed to find a half dozen
things to fight about during the recess.”
“A trial court commits misconduct if it persistently makes discourteous and
disparaging remarks to defense counsel so as to discredit the defense or create the
impression it is allying itself with the prosecution.” (People v. Carpenter (1997)
15 Cal.4th 312, 353.) The court’s comments here did not create that impression.7
Regarding the court’s first challenged comment, whether it was intended
humorously (as the Attorney General argues) or would have been so understood
by the jury is not entirely clear from the transcript. The trial record reflects a
generally cordial relationship between the court and all counsel and includes a
number of occasions on which the court and counsel made jokes or kidded one
another. Defendant observes that such joking was mainly reserved for
proceedings outside the jury’s presence, as is of course appropriate, but we note
the court later made an ironic comment very similar to the first remark complained
of, but referring to the attorneys generally, in the jury’s presence:
“The Court: . . . Mr. [K.], did you have a question?
“Juror [K.]: Your honor said nine o’clock?
“The Court: Are you saying that with a bit of skepticism because we never
really start at nine?
“Juror [K.]: Wasn’t sure. I am sorry, your honor.
“The Court: I suggest nine o’clock. It wouldn’t surprise me, but what the
attorneys will think up something to talk about between now and Monday, maybe I
can get them to come in here Friday and talk about it if that’s necessary.
Hopefully we’ll start just soon after nine o’clock.” (Italics added.)
The Attorney General argues the claim is forfeited by defendant’s failure to
object. (People v. Fudge (1994) 7 Cal.4th 1075, 1108.) As to the third and fourth
remarks complained of, we agree. Defense counsel, however, expressly objected
to the court’s second remark out of the jury’s presence, and, by his statement
before the jury that “[o]ur objections are based on facts, not dreams” after the
court’s first challenged remark, counsel effectively indicated his objection to any
judicial implication that he or cocounsel would “dream up” issues to discuss.
This suggests the earlier remark, too, was meant, and would reasonably
have been taken, not as a serious attack on defense counsel’s integrity but simply
as an ironic way of conveying to the jury the court’s uncertainty about the trial
schedule. Both remarks suggest an attempt to cajole the jurors into patience with
the proceedings partly by sardonically casting responsibility for delays on the
attorneys. By the same token, the court made clear to the jurors that it was not
seriously criticizing the lawyers; indeed, immediately before making the just
quoted remark, the court expressly praised the attorneys’ efficiency:
“The Court: . . . We should actually be quite grateful that the attorneys, all
of them, have gotten right to the point and haven’t wasted a lot of time in their
questioning. I’ve certainly seen the opposite of that during my years as a judge, so
I suspect that we are better off with attorneys like these attorneys who get right to
In this context, we consider it unlikely that the first remark complained of
was either intended or understood as a serious attack on the integrity of Defense
The second remark complained of, unlike the first, was clearly meant
seriously, and it could, as defendant argues, have been understood by jurors as a
suggestion that defense counsel were “arguing out of both sides of their mouths,”
an implied criticism that would better be made out of the jurors’ presence. In the
setting of a protracted trial, however, the court’s momentary and isolated
expression of irritation with defense counsel did not indicate bias or suggest to the
jury that the court was “allying itself with the prosecution.” (People v. Carpenter,
supra, 15 Cal.4th at p. 353.) The trial court also occasionally expressed
annoyance at the prosecutor, including one occasion on which the prosecutor’s
request to approach the bench led to an extended sidebar discussion, after which
the court called a recess and told the jury the court was “really not happy with
these things coming up at the spur of the moment while the jury is sitting here that
the court has not been advised of in advance.”
The third remark complained of was not critical of defense counsel; the
court merely stated its reason for preferring that the question be re-asked rather
than read from the reporter’s notes. The fourth comment, that “[t]he attorneys
managed to find a half dozen things to fight about during the recess,” did not
expressly or impliedly criticize the defense. Even if meant or understood
seriously, the comment was aimed at “the attorneys” generally. Neither of these
remarks suggests bias or gives the impression of a judicial alignment with the
We conclude the court’s comments did not infringe on defendant’s rights
under the Sixth, Eighth and Fourteenth Amendments to the United States
Constitution and article 1, sections 15 to 17 of the California Constitution.
III. Evidence of Lack of Remorse in Guilt Phase Trial
During the prosecution case-in-chief, each of the two detectives who first
interviewed defendant about the crimes testified, over defense objections, that
during the interview (in which defendant admitted stealing from Mitchell’s house
but not killing Joey) defendant expressed no remorse for the crimes. Defendant
contends this testimony was irrelevant and that its admission violated Evidence
Code section 352 and his state and federal constitutional rights to a fair trial.8
The defense objections to the testimony of the first detective encompassed
the grounds for exclusion raised on appeal. To the second detective’s testimony,
the defense objected only on the ground of the best evidence rule, a ground for
exclusion that is not renewed on appeal. The appellate claim has thus been
preserved as to the first but not the second detective. (Evid. Code, § 353.)
The central factual issue litigated in the guilt phase trial was whether, as the
prosecutor alleged, defendant killed the victim to facilitate his thefts or, as the
defense maintained, the thefts and killing were separate in their origins and
purposes, the killing having occurred during a psychotic break in which defendant
was motivated by displaced, long-repressed rage over his own treatment as a child.
Defendant’s apparent lack of remorse on the day after the crimes was relevant to
this question because, if the defense version of events were true, one might
reasonably expect defendant, upon recovering from the psychotic episode and
realizing the senseless violence he had done, to feel tremendous remorse for his
unprovoked killing of a child with whom he had felt empathy. As the trial
prosecutor put it in response to the relevance objection, “if there was something
evil within him to cause him to do this, he would be expressing remorse from day
one, and there is no such expression.”
Defendant notes that when the prosecution introduced the challenged
testimony, the defense had not yet put forward the expert testimony supporting the
defense theory. Relying on our statement that “unless a defendant opens the door
to the matter in his or her own case-in-chief [citation], his or her remorse is
irrelevant at the guilt phase” (People v. Jones (1998) 17 Cal.4th 279, 307),
defendant argues he had not yet opened a door to proof of his lack of remorse. But
defendant had already introduced the issue of his motivation for killing Joey. In
her opening statement (made before the prosecution case-in-chief), defense
counsel had already outlined the defense theory that defendant, on encountering
Joey, felt “strange thoughts inside him . . . something pushing him to stab Joey,”
“something in him so evil he couldn’t overcome it,” which a psychologist would
explain was “pent up rage, based on things that happened to him in his past,” that
made him kill the victim, and that afterward he could not remember the details of
what he had done and wanted to get caught. Because remorse would more clearly
be expected under this defense theory than under the prosecution theory of
coldblooded robbery murder, by positing the defense theory even before the
prosecution evidence had been presented “defendant himself placed the issue of
his remorse into question.” (People v. Clark (1993) 5 Cal.4th 950, 1016.) The
testimony was not irrelevant.
Nor did the trial court abuse its discretion in declining to exclude the
evidence under Evidence Code section 352 as more prejudicial than probative.
Immediately surrounding the questions regarding remorse and regret, the
prosecutor asked the detectives whether defendant ever indicated “that he didn’t
know what he had been doing” during the incident and whether defendant was
able to supply details of his activities on the day of the crimes. Thus, the context
of the prosecutor’s questioning made clear the evidence was being introduced not,
as defendant asserts, to “punish [defendant] for his failure to express regret or
remorse,” but rather to rebut the defense theory―already outlined in defense
counsel’s opening statement―that defendant killed Joey during an irrational,
rage-filled break from reality. As the evidence was probative on the central
factual issue of the case, and as its introduction was clearly targeted to that issue
rather than to creation of prejudicial emotion, we cannot agree with defendant that
the court’s choice to admit it was arbitrary or capricious. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124.) For the same reason, we reject the associated
contention that introduction of the evidence violated defendant’s constitutional
rights to a fair trial by jury under the Fifth, Sixth and Fourteenth Amendments to
the United States Constitution and article I, section 15 of the California
Finally, any state-law error in admitting the detectives’ testimony was
harmless. Evidence was later introduced showing that during defendant’s second
police interview, in which he admitted for the first time that he had killed Joey,
defendant cried and told the interviewer that after “the drugs wore off” he had
become upset at the realization of what he had done, and also showing that he
expressed guilt and remorse when interviewed in jail by the defense psychologist.
That the jury reached its verdicts by deciding to punish defendant for his lack of
remorse, while ignoring the evidence defendant actually did express remorse, is
not reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836.)
IV. Restriction on Expert Testimony
Under Evidence Code section 352, the trial court excluded certain proposed
testimony by Richard Levak, the defense psychologist, recounting defendant’s
statements regarding his killing of Joey. Defendant contends the ruling was error
under the Evidence Code provision and deprived him of constitutionally due
process. We disagree; the ruling did not constitute an abuse of the court’s
discretion and, in any event, did not affect the fairness of the trial.
During his interview with Levak, defendant had described his childhood
abuse and his actions and thoughts during the crimes; defendant’s statements on
these matters were reflected in Levak’s written report. Before Levak testified, the
prosecutor objected to the psychologist “reciting specific statements made by the
defendant to him . . . under the guise” of explaining the basis for his expert
opinion. The defense argued such statements were admissible, with a limiting
instruction if necessary, under Evidence Code section 802 to show the basis for
The trial court ruled Levak could not testify “to what Mr. Bell told him
about the events on June 4th,” but could testify to defendant’s statements
regarding his “psychological background,” including childhood abuse. In so
ruling, the court expressly applied Evidence Code section 352, finding that a
limiting instruction would be insufficient to prevent the jury from considering
defendant’s statements about the crimes themselves, as related by Levak, as
evidence of the truth of the events, effectively permitting defendant to testify to his
version of events without being subject to cross-examination. The potential for
such prejudice was less as to defendant’s psychological history, the court found,
because that issue was less central to the case. Immediately before Levak
testified, the court admonished the jury not to consider any statements of
defendant related by Levak for their truth, but only as showing the basis for the
The law governing this issue is well settled. “Expert testimony may . . . be
premised on material that is not admitted into evidence so long as it is material of
a type that is reasonably relied upon by experts in the particular field in forming
their opinions. (Evid. Code, § 801, subd. (b); [citations].) . . . [¶] . . . And
because Evidence Code section 802 allows an expert witness to ‘state on direct
examination the reasons for his opinion and the matter . . . upon which it is based,’
an expert witness whose opinion is based on such inadmissible matter can, when
testifying, describe the material that forms the basis of the opinion. [Citations.]
[¶] A trial court, however, ‘has considerable discretion to control the form in
which the expert is questioned to prevent the jury from learning of incompetent
hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative
value of inadmissible evidence relied upon by an expert witness . . . against the
risk that the jury might improperly consider it as independent proof of the facts
recited therein.’ (People v. Coleman (1985) 38 Cal.3d 69, 91.)” (People v.
Gardeley (1996) 14 Cal.4th 605, 618-619.)
“Most often, hearsay problems will be cured by an instruction that matters
admitted through an expert go only to the basis of his opinion and should not be
considered for their truth. ([People v.] Coleman, supra, 38 Cal.3d at p. 92.)
[¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence
Code section 352 authorizes the court to exclude from an expert’s testimony any
hearsay matter whose irrelevance, unreliability, or potential for prejudice
outweighs its proper probative value. (Coleman, supra, 38 Cal.3d at pp. 91-93.)”
(People v. Montiel (1993) 5 Cal.4th 877, 919.)
Defendant argues the trial court overestimated the prejudice that would
result from allowing Levak to fully relate defendant’s statements about the crimes.
With regard to the efficacy of a limiting instruction, defendant contrasts this case
with those involving inflammatory material that would inevitably prejudice the
jury. (See, e.g., People v. Coleman, supra, 38 Cal.3d at p. 93 [“[a]ccusatory
statements ‘from the grave’ ”].) Nor, defendant argues, was the prosecution’s
inability to cross-examine him about his statements particularly prejudicial: the
jury could assess defendant’s credibility from his demeanor and responses in his
videotaped confession to police. The Attorney General responds that defendant is
merely asking the court to substitute “his own Evidence Code section 352
balancing process” for the trial court’s.
While the potential for prejudice may not have been as great as suggested
by the trial court, we agree with the Attorney General that the court’s weighing of
prejudice and probativeness was not arbitrary or capricious. (People v. Rodrigues,
supra, 8 Cal.4th at pp. 1124-1125.) Though the excluded statements were not
particularly inflammatory, for the jury to separate their proper and improper uses
would have been difficult. And the chance to observe defendant’s demeanor in a
videotaped police interview the day after the crimes does not substitute for cross-
examination regarding statements he made months later to a defense psychologist.
In any event, any error in the court’s ruling was harmless. Ample evidence
of defendant’s statements about the crimes, forming a basis for Levak’s opinion
(and for the very similar opinion of Dr. Smith), was presented by both parties. In
the videotaped confession, introduced in the prosecution case, defendant said he
did not know why he had killed Joey, that he felt something evil “pushing” him
and he “just flipped.” Despite the court’s ruling, on direct examination Levak
testified without objection that “Mr. Bell described it [stabbing Joey] as feeling
outside of himself, observing himself, almost observing in a trance like state.”
Smith, who had reviewed Levak’s report as well as the videotaped confession,
testified on direct examination that according to the materials he had reviewed,
Joey and defendant had no negative interaction; Joey did not try to stop defendant
from taking the television or boom box. In Smith’s own interview with defendant,
defendant “talked about evil forces coming into his head” and “described himself
in this, when the actual killing was occurring, as watching himself doing it.”
Defendant said he “just repressed it until the next day during the confession.” On
cross-examination, Smith repeated that defendant “described to me” a sudden loss
of contact with reality. Defendant told Smith he was not angry at Joey, who posed
no threat to him. Defendant also told Smith that after the stabbing it was “almost
like he didn’t do it” and he “described” to Smith how during the videotaped
interview “it came flooding back to him.”
The court’s ruling notwithstanding, then, the jury heard a great deal of
evidence of defendant’s statements about the crime to the police and the
psychological experts. The statements to Levak excluded by the ruling would
have been largely cumulative of this evidence.9 The jury was fully informed of
The excluded statements were, in summary, that defendant and Joey were
pleased to see one another; that while Joey was watching television defendant
momentarily forgot why he had returned to the house; that when the idea of killing
Joey came to him he resisted it, but it came back and “[f]rom then on I had no
control”; that the stabbing felt to him “like a side event” to the thefts; and that later
he did not consciously remember stabbing Joey, though he knew he had stolen the
television and boom box. At the time of the court’s ruling, defense counsel
(footnote continued on next page)
statements by defendant forming the basis for the experts’ opinions that defendant
killed Joey in a dissociative state, a brief break with reality, and not in order to
facilitate his taking the television. There is no reasonable likelihood that
admission of additional testimony by Levak on this point would have changed the
jury’s verdicts. (People v. Watson, supra, 46 Cal.2d at p. 836.)10
Defendant also complains of the court’s later ruling striking a question and
answer during the prosecutor’s cross-examination of Levak. As the prosecutor
questioned Levak regarding his opinion of the psychological process leading to
Joey’s killing, the following exchange occurred:
“Q: So when he walked in the house and saw Joey watching television, and
he was bent on stealing so he could buy more cocaine, all of a sudden he reverted
back to when he was a child and remembered all the times he was in trouble in
“A: You make it sound trite.
“Q: No, I’m just trying to clarify what you just told us.
“A. Right. Oh, good. What I think happened is that he came home, and
Joey was home watching TV. And he, in his statement, forgot the purpose of his
“Mr. Sickels [the prosecutor]: Objection. Move to strike, your honor.”
(footnote continued from previous page)
acknowledged that “most of it already frankly has been discussed one way or
Nor, in light of the substantial amount of evidence admitted on this point
and the largely cumulative character of that excluded, can we agree the challenged
ruling deprived defendant of his rights to a fair trial, a meaningful opportunity to
present a defense, or a reliable determination of the death penalty under the Sixth,
Eighth and Fourteenth Amendments to the United States Constitution and article I,
sections 15 and 17 of the California Constitution.
The prosecutor’s “objection” was overruled,11 and the witness continued
“A: Let me just calm myself. [¶] When he came home his statement was
that he walked in the door, saw Joey home, was surprised that Joey was home, and
started to talk to him and momentarily forgot why he was there and sat and talked
to him. And then I think Joey went into the kitchen, from his statement.
“Mr. Sickels: Your honor, I’m going to object and move to strike this as
beyond anything that I have inquired of this witness. He’s purely volunteering
Rather than have the question reread by the reporter, as the defense
suggested, the court sustained the prosecutor’s “objection”12 and told him to re-
ask the question. The prosecutor then repeated his request to have the witness’s
answer stricken, to which the defense objected.
A lengthy discussion in chambers ensued. Defense counsel, citing
Evidence Code section 356, argued that the prosecutor, by asking Levak to clarify
his theory of how defendant’s state of mind had changed when he encountered
Joey, had opened the door for Levak to relate defendant’s version of events; the
prosecutor insisted the witness’s answer was not responsive to his question. The
court agreed with defense counsel that the prosecutor had opened a door to
Levak’s relation of defendant’s statements, but observed that “this is a complete
mess because of all the objections. And I’m going to just strike it all.” Over a
defense objection, the court told the jury it was striking “both the last question by
What the prosecutor objected to was not clear―presumably it was not to
his own question. A nonresponsive answer is properly the subject of a motion to
strike (Evid. Code, § 766), not an objection.
See footnote 11, ante.
the district attorney, as well as the last answer by the witness.” The prosecutor
continued his cross-examination on a different topic.
We agree with the trial court and the defense that the prosecutor, by asking
Levak to “clarify” how defendant could have “all of a sudden” lost his focus on
stealing the television when he unexpectedly encountered Joey, opened the door
for Levak to explain further the basis for his opinion about defendant’s mental
processes during that encounter, including the relation of statements defendant
made to him on that subject. Levak’s answer was thus responsive to the
Moreover, we agree with defendant that it was error to strike the question
and answer. Having asked the proverbial “one question too many” and received
an answer he did not like, the prosecutor was not entitled to turn back the clock.
Although the record of objections and motions may have been in a “confused
state,” as the trial court said, the prosecutor’s question and Levak’s answer were
clear enough. The evidence was not in a particularly confused state, and there was
no apparent reason to strike it.
Nevertheless reversal is not required. As discussed above, the jury was
fully informed, through the videotaped confession and the testimony of Levak and
Smith, of defendant’s version of his encounter with Joey, which formed one of the
bases for the experts’ opinion that defendant killed Joey in a dissociative state
connected to a transient psychotic break with reality. In particular, they knew
defendant had said he did not know why he had killed Joey rather than just take
the television, that he felt pushed to do so by an evil feeling, and that he
experienced the killing as if watching himself do it. The jury was not reasonably
likely to reach a different verdict had it also considered, as a basis for the expert
opinions, defendant’s statement that, on encountering Joey, he “momentarily
forgot why he was there and sat and talked to him” for some period before
stabbing and kicking him to death and stealing the television and boom box.
V. Court’s Treatment of Holdout Juror
Defendant contends the court erred in its response to a jury note regarding
an 11-to-1 impasse in guilt phase deliberations and erred again by inadequately
investigating the holdout juror’s later claims of intimidation. These errors,
defendant claims, led to the juror’s discharge and the return of guilt verdicts by the
reconstituted jury. We disagree; the trial court did not abuse its discretion in either
The claim’s factual background is as follows:
The jury began its guilt phase deliberations at 2:20 p.m. on Tuesday,
November 16, 1993, and was excused for the day at 4:00 p.m. The next day,
Wednesday, November 17, deliberations began at 9:00 a.m. At 9:40 the jury sent
out a note (jury note No. 19) asking for clarification of the phrase “accomplished
by” in the court’s instruction that one element of the robbery charge was that the
taking of property “was accomplished either by force, violence, fear or
intimidation.” With the agreement of counsel, the court told the jury it could not
further define the instructional phrase. At 10:39 a.m. the jury withdrew to resume
deliberations, which continued until 4:00 p.m.
On Thursday, November 18, the jury again resumed deliberations at
9:00 a.m. At 1:45 p.m. the jury sent out a note (jury note No. 20) indicating an
impasse in the deliberations. The note, which was signed by the foreman, Juror
Mark D., read: “We have not been able to arrive at a verdict. Specifically, we
have one jury member who can not find ‘the taking was accomplished either by
force, violence, fear or intimidation.’ ”
Out of the jury’s presence, the court proposed to have the jury resume
deliberations with the following admonition, which the court observed was based
on one approved in People v. Rich (1988) 45 Cal.3d 1036, 1116-1117: “This has
been a long trial. The evidence was extensive. The legal issues are complex.
Reasonable people could disagree. However, at the time I received your note the
jury had been deliberating less than three days. In my opinion you may not have
been deliberating long enough to discuss this case fully and to understand fully
each other’s viewpoint. Please continue your deliberations.”
Defense counsel objected, urging the court instead to inquire of the jurors
whether they believed themselves hopelessly deadlocked and, if they did, to
declare a mistrial. Otherwise, counsel suggested, the court risked setting the stage
for the jury majority to coerce the holdout juror into a verdict. If the court was not
willing to inquire of the jurors, counsel concluded, the defense asked for a mistrial.
The prosecutor pointed out the jury had been deliberating less than two days after
a month and a half of trial, and urged the court not to consider a mistrial. The trial
court overruled the defense objection, denied the mistrial motion, and admonished
the jury as proposed, while correcting the reference to deliberation time from less
than three days to less than two.
The jury returned to the jury room at 2:20 p.m. At 4:00 p.m. they were
excused for the day. At the same time, the court received an additional note (jury
note No. 21). This note, from juror number 11, Aron G., stated: “Sir, I am in
psychological pain. I wish to be excused from this jury. I feel the level of
intimidation from a couple of jurors toward me that make this process impossible.
I am emotionally battered by this situation and can no longer tolerate the strain.
I am very sorry but I can no longer function in this environment.”
Discussing jury note No. 21 after the jury had left, the trial court agreed
with defense counsel that the jury should not be asked to deliberate further until
the court decided how to respond. Because of the court’s schedule of other
matters, however, it was impossible to research and discuss the proper response
until the afternoon of the next day. With agreement of counsel for both sides, the
court decided to excuse the jury the next morning for the weekend, giving them a
cooling-off period, and to meet with counsel later on Friday for discussion.
At 9:00 a.m. the next day (Friday, November 19), over defense objections
that it could increase the pressure on Juror Aron G., the court examined her briefly
without the other jurors present, asking if her “position has changed from the note
you left us last night.” The juror answered, “No,” and left the courtroom. Defense
counsel then requested that the court admonish all the jurors to show each other
“respect and courtesy,” so they would have the weekend to “mull that over.”
Denying that request, the court excused the jurors until Monday morning, telling
them that “a legal issue concerning deliberations has come up.”
On the afternoon of Friday, November 19, the court and counsel discussed
Aron G.’s allegation of “intimidation” by other jurors and her request to be
excused from the jury. The defense again requested a mistrial, which was again
denied. Alternatively, the defense requested that the court admonish the jurors to
“listen to each other and use a reasoned approach,” to “be civilized and reasonable
and fair.” While indicating it would consider that request, the court also stated
that it wished counsel to be prepared with questions they would like asked of
Aron G. and, if further inquiry proved necessary, of the other jurors, regarding the
course of deliberations.
By the time court next convened, however, at 9:30 a.m. on Monday,
November 22, 1993, the situation had changed again: the court had received a
two-page typed letter (jury note No. 22) from the holdout juror, Aron G.
Apologizing for the trouble she had caused the court, the juror explained that she
was “as close to an emotional breakdown as I have ever been in my life, which is
very frightening and disorienting for me.” She then revealed that on the previous
Thursday night, “I broke down and discussed the case and deliberation process
with my husband.” She knew doing so violated the court’s directions, but “in an
extremely traumatic and emotional state” she felt she “had to confide in someone,
or just go crazy.”
In the letter, Aron G. then gave some “background” regarding the course of
deliberations. The jury, she wrote, had quickly resolved all the elements of
robbery except the fourth one listed in the instruction, whether the taking was
accomplished by force or fear; the remaining deliberation time was taken on this
one question. While most of the jurors were sensible and fair, “as time went by a
couple became increasingly impatient and frustrated, which eventually
precipitated the personal attack and conveniently overheard sarcastic and
demeaning comments about my intelligence and decision making skills.” She also
overheard jurors talking about the “time waste, cost and inconvenience” of the
continuing deliberations; these remarks, though not directed at her, made her feel
more “isolation and duress.”
When Aron G. “confronted the parties involved,” she was told she had
“ ‘misunderstood’ ” and that if remarks were made, they were “ ‘unintentional.’ ”
Although she continued to believe the remarks were indeed “most pointedly
intended,” she also acknowledged that she could be, as her husband suggested,
naive about “the ways of the civilian and judicial world”13 and that “intimidation,”
The juror’s letter referred to her “16 year Naval career,” during which she
had never been reduced to an “uncontrollable emotionality” as she had by
deliberations, and observed that the type of personal attacks she suffered were “not
tolerated in the Navy.”
the term she had used in her prior note, might be “a harsh and excessively
powerful word” to describe the other jurors’ behavior.
The defense renewed its request for a mistrial. The court stated it would
either have to declare a mistrial or substitute an alternate for Aron G.; her
misconduct and emotional state made it impossible for the court to retain her as a
juror. The court decided to examine Aron G. and the jury foreman, Mark D., in an
attempt to discover whether any jurors besides Aron G. had committed
Questioned by the court, Aron G. said that despite getting some
prescription drugs that helped calm her down over the weekend, she still felt as
described in her letter. She did not believe she would function well as a juror and
“I just don’t think I would be impartial at this phase any more.” She clarified that
she had discussed the facts of the case, as well as the deliberations, with her
husband. With regard to the “intimidation”―a term she acknowledged some
people might not find applicable―she explained that after a long period of
building tension between her and the other jurors, the comment that “pushed me
over the brink” was made by Juror S. While the jury was examining a
photographic exhibit showing the victim’s stab wounds, Juror S. said something
like: “You think this is crazy. What’s really crazy is anyone who can look at all
this and not see that a robbery was committed. That’s what’s really crazy.” In
response, Aron G. yelled back that she would not tolerate personal attacks. At that
point, “there was a lot of yelling and screaming until everybody kind of calmed
Jury foreman Mark D., also questioned by the court, denied there had been
any intimidation during deliberations. Although Mark D. admitted that he and
Juror S. were both “very strong opinionated individuals,” he denied S. had said
anything intimidating to Aron G.: “in fact . . . there was one instance that
specifically gave rise to this whole situation that was totally misinterpreted by Ms.
[G.]” The court refused a defense request to ask Mark D. about jurors’ comments
concerning waste of time and money.
At the completion of its inquiry, the court decided not to declare a mistrial
but instead to excuse Aron G. and swear an alternate juror to replace her. “The
court’s not convinced that there was any misconduct by way of intimidation in the
jury room. Gosh, if anything, it sounds like typical deliberations. And the
problem is the only misconduct we’re left with is Ms. G[.] discussing the case with
her husband.” Defense counsel objected that the court’s inquiry had been
insufficient: given that Aron G. had referred to “a couple” of jurors intimidating
her, and that Mark D. admitted that he and Juror S. were the most aggressive
jurors, “the court cannot turn its back on the possibility that Mr. [D.] perhaps was
intimidating her as well.” Counsel urged the court to interview all the jurors about
Denying the defense request for further investigation, the court excused
Aron G., finding good cause (§ 1089) in her failure to follow the admonition not to
discuss the case with others and in her statements that she could no longer be
impartial and was emotionally unable to continue. The court then swore in an
alternate juror and instructed the jury to begin deliberations anew. At 11:07 a.m.
the jury resumed deliberations. By 2:02 p.m. the same day (Monday,
November 22, 1993) they had reached their guilt and special circumstance
Defendant contends the trial court erred in several respects.
First, he asserts the court abused its discretion when, in response to jury
note No. 20, the court denied a mistrial without inquiring of the jurors whether
they were hopelessly deadlocked. As defendant acknowledges, the question
whether to declare a hung jury or order further deliberations rests, as both statute
and case law provide, in the trial court’s sound discretion. (§ 1140 [jury may be
discharged without reaching a verdict if, “at the expiration of such time as the
court may deem proper, it satisfactorily appears that there is no reasonable
probability that the jury can agree”]; People v. Proctor (1992) 4 Cal.4th 499, 539;
People v. Rodriguez (1986) 42 Cal.3d 730, 775.) “Although the court must take
care to exercise its power without coercing the jury into abdicating its independent
judgment in favor of considerations of compromise and expediency [citation], the
court may direct further deliberations upon its reasonable conclusion that such
direction would be perceived ‘ “as a means of enabling the jurors to enhance their
understanding of the case rather than as mere pressure to reach a verdict on the
basis of matters already discussed and considered.” ’ ” (Proctor, at p. 539.)
We conclude the denial of a mistrial without further inquiry was not an
abuse of discretion on the facts here. While the trial court has a duty to avoid
coercing the jury to reach a verdict, we have held that inquiry as to the possibility
of agreement is “not a prerequisite to denial of a motion for mistrial.” (People v.
Rodriguez, supra, 42 Cal.3d at p. 777.) Moreover, the jury in this case had
deliberated less than two full days, around 10 hours; we have upheld courts’
denials of mistrials even after fruitless deliberations for longer periods. (See
People v. Sandoval (1992) 4 Cal.4th 155, 194-197 [jury had deliberated for more
than 14 hours over five days]; Rodriguez, at pp. 774-775 [11th day of
Defendant asserts that the guilt phase trial in his case was not “long, the
evidence voluminous, and the issues complex” as in People v. Rodriguez, supra,
42 Cal.3d at page 775. We disagree. While not extraordinarily long for a
special-circumstances murder trial, defendant’s guilt phase trial featured extensive
and complicated testimony by toxicological, pharmacological, and psychological
experts called by both sides, who differed sharply with one another over both their
technical conclusions and their overall assessments of defendant’s mental state at
the time of the crimes. The question of fact on which the jury was troubled―the
relationship between defendant’s theft of the television and boom box and his
killing of Joey―was at the center of this complex expert debate. For the trial
court to conclude that extended deliberations might be necessary was not
Defendant also argues the order for further deliberations was coercive
because the trial court knew (from the foreman’s unprompted revelation in jury
note No. 20) that the jury was split 11 to 1 for conviction and that the split
involved an issue (whether the taking of property was accomplished by force or
fear) that had troubled the jury since early in its deliberations. But while we have
recognized the increased “potential for coercion once the trial judge has learned
that a unanimous judgment of conviction is being hampered by a single holdout
juror” (People v. Sheldon (1989) 48 Cal.3d 935, 959), we have rejected the view
that denial of a mistrial in that circumstance is “inherently coercive” (ibid.).
Despite the 11-to-1 split, the trial court could reasonably believe further
deliberations would lead to a unanimous understanding of the case among the
jurors. With hindsight, we know that the court’s hopeful expectation was not to be
fulfilled. But the trial court’s failure to guess correctly how the further
deliberations would go does not make its order an abuse of discretion.
Second, defendant contends the trial court, in its instruction ordering further
deliberations so that the jurors could come “to understand fully each other’s
viewpoint,” impliedly suggested the holdout juror should change her mind. The
court, defendant argues, should instead or in addition have instructed the jury that
“the jurors [have] an individual duty to deliberate and to reach their own
conclusions, rather than merely acceding to the majority view.” We disagree; the
court’s admonition was not of a character that would expressly or impliedly coerce
a verdict. (Cf. People v. Sheldon, supra, 48 Cal.3d at pp. 959-960 [giving
examples of coercive admonitions].) Nor, for reasons already explained, do we
agree with defendant that the court erred in telling the jury: “This has been a long
trial. The evidence was extensive. The legal issues are complex.” While there
were differences between this case and People v. Rich, supra, 45 Cal.3d at pages
1116-1117, in which we approved a similar explanation of the need for further
deliberations, the trial court’s explanation here was tailored to the case before it
and did not constitute an abuse of discretion.
Third, defendant faults the trial court for an inadequate investigation of
matters mentioned in Juror Aron G.’s letter. Specifically, defendant contends the
court should have sought more detail from Aron G. as to the contents of her
discussion with her husband about the case and the effect of the incident on her,
and should have interviewed jurors besides Aron G. and Mark D. regarding
intimidation during deliberations.
As to the contents of Aron G.’s conversation with her husband and her
ability to continue deliberations, we disagree more inquiry was needed. Asked
whether she and her husband had discussed “the facts of the case” or only “the
deliberation process,” Aron G. answered: “I gave him the background as to why
the problems were occurring, so yes, I discussed the facts concerned [sic] the
points I addressed in there about the robbery and the problems, I mean, my sense
of the problems within the room, yes, sir.” With regard to her ability to continue,
Aron G. volunteered that she was sorry for what she had done, but “I just don’t
think I would be impartial at this phase any more.” No further questioning was
necessary in order to conclude that Aron G. had intentionally violated the court’s
admonition against discussing the case with outsiders and could no longer serve as
an impartial juror.
As to other jurors’ views of whether intimidation had occurred, the trial
court acted within its sound discretion in concluding that further questioning
would be an unwarranted intrusion into the secrecy of jury deliberations. (See
People v. Burgener (2003) 29 Cal.4th 833, 878-879; People v. Cleveland (2001)
25 Cal.4th 466, 475-476.) Though Aron G. initially (in jury note No. 21) referred
to “intimidation” by “a couple of jurors,” in her subsequent letter she volunteered
that that description might have been “harsh and excessively powerful.”
Interviewed by the court, she repeated that her perception of intimidation might
have been idiosyncratic and “naive.” When pressed for actual instances, she gave
only one, a comment by Juror S. to the effect that Aron G. was herself “crazy” for
accepting the defense psychological theory. In response, she recounted, she had
“yelled” that she would not tolerate personal attacks, which led to generally raised
voices until eventually the jurors “kind of calmed down.” The foreman, Mark D.,
agreed there was “one instance” with Juror S. that gave rise to Aron G.’s
complaints, but insisted she had “misinterpreted” it and that apologies had been
made. With this information, the trial court could reasonably conclude there had
been no actual intimidation of Aron G. by S. or other jurors, but only the type of
heated discussion common to jury deliberations, and that to interview all the
jurors, as the defense urged, would be to risk “ ‘ “depriv[ing] the jury room of its
inherent quality of free expression.” [Citation.] ’ ” (Cleveland, at p. 476.)14
Nor do we agree with defendant that the court was required to inquire of the
jurors concerning remarks about cost and waste of time that Aron G. recounted
overhearing outside of deliberations. While the expense and inconvenience of a
trial is irrelevant to guilt or innocence and reference to it in a court’s instruction is
thus improper (People v. Barraza (1979) 23 Cal.3d 675, 685), we know of no
authority suggesting that a report of jurors grumbling among themselves over the
length of deliberations indicates misconduct requiring investigation.
The trial court reasonably found Aron G.’s emotional reaction to the
deliberations led to her own misconduct and inability to continue deliberating.
Unfortunate as these events may have been, they were not the result of judicial
error. The court did not, as defendant contends, effectively coerce a verdict in
violation of his rights to due process, a fair jury trial, and a reliable determination
of penalty under the Sixth, Eighth and Fourteenth Amendments to the United
States Constitution and article I, sections 15, 16 and 17 of the California
VI. Unconstitutionality of California’s Death Penalty Statute
Defendant presents no claims of error specific to his penalty trial, but
contends generally that California’s death penalty statute and procedures are
unconstitutional for a number of reasons. Defendant again cites the Sixth, Eighth
and Fourteenth Amendments to the United States Constitution and article I,
sections 15, 16 and 17 of the California Constitution. We have recently and
repeatedly rejected these general claims and do so here as well without extensive
The special circumstances listed in section 190.2, together with other
aspects of California homicide law, adequately narrow the class of murderers
eligible for the death penalty. (People v. Demetrulias (2006) 39 Cal.4th 1, 43;
People v. Stitely (2005) 35 Cal.4th 514, 573; People v. Snow (2003) 30 Cal.4th 43,
Section 190.3, factor (a), permitting the jury to consider the “circumstances
of the crime” as a factor in aggravation or mitigation, is not so vague as to allow
for unconstitutionally arbitrary application and is not otherwise constitutionally
improper as a sentence selection factor. (Tuilaepa v. California (1994) 512 U.S.
967, 975-976; People v. Proctor, supra, 4 Cal.4th at pp. 550-551.)
Our statute “is not invalid for failing to require (1) written findings or
unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a
reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a
reasonable doubt, or (4) findings that death is the appropriate penalty beyond a
reasonable doubt.” (People v. Snow, supra, 30 Cal.4th at p. 126.) No instruction
on burden of proof is required in a California penalty trial because the assessment
of aggravating and mitigating circumstances required of penalty jurors is
inherently “ ‘normative, not factual’ [citation] and, hence, not susceptible to a
burden-of-proof quantification.” (People v. Hawthorne (1992) 4 Cal.4th 43, 79;
accord, People v. Demetrulias, supra, 39 Cal.4th at p. 43; People v. Gray, supra,
37 Cal.4th at p. 236.)
Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002)
536 U.S. 584, requiring that certain sentencing findings be made by a jury, are
inapposite for reasons previously explained: “ ‘[U]nder the California death
penalty scheme, once the defendant has been convicted of first degree murder and
one or more special circumstances has been found true beyond a reasonable doubt,
death is no more than the prescribed statutory maximum for the offense; the only
alternative is life imprisonment without possibility of parole. (§ 190.2, subd. (a).)
Hence, facts which bear upon, but do not necessarily determine, which of these
two alternative penalties is appropriate do not come within the holding of
Apprendi.’ [(People v. Anderson (2001) 25 Cal.4th 543, 589-590, fn. 14.)] The
high court’s recent decision in Ring v. Arizona[, supra,] 536 U.S. 584 does not
change this analysis. Under the Arizona capital sentencing scheme invalidated in
Ring, a defendant convicted of first degree murder could be sentenced to death if,
and only if, the trial court first found at least one of the enumerated aggravating
factors true. (Id. at p. 603.) Under California’s scheme, in contrast, each juror
must believe the circumstances in aggravation substantially outweigh those in
mitigation, but the jury as a whole need not find any one aggravating factor to
exist. The final step in California capital sentencing is a free weighing of all the
factors relating to the defendant’s culpability, comparable to a sentencing court’s
traditionally discretionary decision to, for example, impose one prison sentence
rather than another. Nothing in Apprendi or Ring suggests the sentencer in such a
system constitutionally must find any aggravating factor true beyond a reasonable
doubt.” (People v. Snow, supra, 30 Cal.4th at p. 126, fn. 32; accord, People v.
Demetrulias, supra, 39 Cal.4th at p. 41.)
“[W]e also disagree with defendant that our statute is unconstitutional
because it does not require jurors to agree unanimously on the existence of
particular factors in aggravation. [Citations.] While all the jurors must agree
death is the appropriate penalty, the guided discretion through which jurors reach
their penalty decision must permit each juror individually to assess such
potentially aggravating factors as the circumstances of the capital crime (§ 190.3,
factor (a)), prior felony convictions (id., factor (c)), and other violent criminal
activity (id., factor (b)), and decide for him- or herself ‘what weight that activity
should be given in deciding the penalty.’ [Citation.] The series of normative
judgments involved in deciding whether a particular circumstance is indeed
aggravating and, if so, what weight it should be given, cannot be fitted into a
scheme of unanimous jury factfinding.” (People v. Demetrulias, supra, 39 Cal.4th
at p. 41.)
“Comparative intercase proportionality review by the trial or appellate
courts is not constitutionally required.” (People v. Snow, supra, 30 Cal.4th at
p. 126; accord, e.g., People v. Gray, supra, 37 Cal.4th at p. 237; People v. Stitely,
supra, 35 Cal.4th at p. 574.)
“ ‘International law does not compel the elimination of capital punishment
in California.’ (People v. Snow, supra, 30 Cal.4th at p. 127.) Defendant’s
argument that the use of capital punishment ‘as regular punishment for substantial
numbers of crimes’ violates international norms of human decency and hence the
Eighth Amendment to the United States Constitution fails, at the outset, because
California does not employ capital punishment in such a manner. The death
penalty is available only for the crime of first degree murder, and only when a
special circumstance is found true; furthermore, administration of the penalty is
governed by constitutional and statutory provisions different from those applying
to ‘regular punishment’ for felonies. (E.g., Cal. Const., art. VI, § 11;
§§ 190.1-190.9, 1239, subd. (b).)” (People v. Demetrulias, supra, 39 Cal.4th at
VII. Cumulative Prejudice from Errors
We have identified one error at trial, the court’s decision to strike, at the
prosecutor’s request, a question and answer on cross-examination of a defense
expert. (See pt. IV, ante.) Having concluded that error was harmless, we reject
defendant’s contention that the cumulative prejudicial effect of the court’s asserted
errors requires us to reverse his conviction and death sentence.
The judgment of the trial court is affirmed.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Bell
Original Appeal XXX
Opinion No. S038499
Date Filed: February15, 2007
County: San Diego
Judge: Richard M. Murphy
Attorneys for Appellant:
Anthony J. Dain, under appointment by the Supreme Court; and Gisela Caldwell for Defendant and
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, William M. Wood and Lynn G. McGinnis, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Anthony J. Dain
Procopio, Cory, Hargreaves & Savitch
530 B Street, Suite 200
San Diego, CA 92101-4469
Lynn G McGinnis
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Lynne G. McGinnis, Deputy Attorney General
110 West "A" Street, Suite 1100
P.O. Box 85266
San Diego, CA
|2||Bell, Steven M. (Appellant)|
San Quentin State Prison
Represented by Anthony J. Dain
Procopio Cory Hargreaves & Savitch
530 "B" Street, Suite 2100
San Diego, CA
|3||Bell, Steven M. (Appellant)|
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Michael Laurence, Executive Director
303 Second Street, Suite 400 South
San Francisco, CA
|Feb 15 2007||Opinion: Affirmed|
|Mar 4 1994||Judgment of death|
|Mar 11 1994||Filed certified copy of Judgment of Death Rendered|
|Mar 14 1994||Application for Extension of Time filed|
By County Clerk to Complete C.T.
|Mar 16 1994||Extension of Time application Granted|
To San Diego County Clerk To 5-23-94 To Complete C.T.
|Apr 4 1994||Application for Extension of Time filed|
By Court Reporter Teri L. Smith to Complete R.T.
|Apr 4 1994||Application for Extension of Time filed|
By Court Reporter Suzanne Turczyn to Complete R.T.
|Apr 7 1994||Extension of Time application Granted|
To Court Reporters To 4-25-94 To Complete R.T.
|Aug 31 1998||Filed:|
Request by Counsel for Dual representation appointment.
|Aug 31 1998||Filed:|
Request by Inmate for Dual representation.
|Sep 16 1998||Counsel appointment order filed|
Appointing Anthony J. Dain to represent Applt for Both the direct Appeal & Related State Habeas Corpus/Executive Clemency Proceedings.
|Sep 16 1998||Compensation awarded counsel|
|Oct 5 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Oct 7 1998||Filed:|
Suppl Decl of Service of Applic. for Ext. of Time.
|Oct 9 1998||Extension of Time application Granted|
To 12-14-98 To request Record correction
|Dec 7 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Dec 9 1998||Extension of Time application Granted|
To 2-16-99 To request Record correction
|Jan 21 1999||Compensation awarded counsel|
|Feb 11 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Feb 16 1999||Extension of Time application Granted|
To Applt To 4-19-99 To request Corr. of Record.
|Apr 14 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Apr 16 1999||Extension of Time application Granted|
To 6-18-99 To request Record correction
|Apr 28 1999||Compensation awarded counsel|
|Jun 14 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jun 17 1999||Extension of Time application Granted|
To 8-17-99 To request Record correction
|Aug 11 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 16 1999||Extension of Time application Granted|
To 10-18-99 To request Record correction
|Sep 9 1999||Compensation awarded counsel|
|Oct 15 1999||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Oct 19 1999||Extension of Time application Granted|
To 12/17/99 To Applt To request Corr. of the Record. no further Extensions of time Are Contemplated.
|Nov 19 1999||Change of Address filed for:|
Atty Anthony J. Dain
|Dec 15 1999||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Dec 20 1999||Filed:|
Amended Proof of Service
|Dec 30 1999||Extension of Time application Granted|
To 2/25/2000 To Applt To request Corr. of the Record. no further Eot will be Granted.
|Feb 3 2000||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Feb 7 2000||Filed:|
Amended Proof of Service
|Feb 22 2000||Received:|
Copy of Applt's request to Corr. Record, Examine Sealed Material, to Augment Record, and for Settlement of the Record as to Exhibits (26 Pp.)
|Feb 24 2000||Order filed:|
The Appl. of Applt for an Eot to request Corr. of The Record Is denied as Moot.
|Aug 15 2000||Counsel's status report received (confidential)|
|Dec 8 2000||Compensation awarded counsel|
|Jan 16 2001||Counsel's status report received (confidential)|
from atty Dain.
|Mar 30 2001||Counsel's status report received (confidential)|
from atty Dain.
|Jun 11 2001||Counsel's status report received (confidential)|
|Aug 15 2001||Counsel's status report received (confidential)|
from atty Dain.
|Oct 10 2001||Compensation awarded counsel|
|Oct 22 2001||Counsel's status report received (confidential)|
from atty Dain.
|Nov 5 2001||Record on appeal filed|
C-21 (4576 pp.) and R-74 (4992) including material under seal. CT contains 1780 pp. of juror questionnaires.
|Nov 5 2001||Appellant's opening brief letter sent, due:|
December 17, 2001.
|Nov 26 2001||Counsel's status report received (confidential)|
(supplemental) from atty Dain.
|Nov 28 2001||Compensation awarded counsel|
|Dec 17 2001||Request for extension of time filed|
To file AOB. (1st request)
|Dec 19 2001||Extension of time granted|
To 2/15/2002 to file AOB.
|Dec 21 2001||Counsel's status report received (confidential)|
from atty Dain.
|Feb 15 2002||Request for extension of time filed|
To file AOB. (2nd request)
|Feb 25 2002||Counsel's status report received (confidential)|
from atty Dain.
|Feb 25 2002||Filed:|
Suppl. declaration in support of application of extension of time to file AOB.
|Feb 28 2002||Extension of time granted|
To 4/22/2002 to file AOB.
|Apr 22 2002||Request for extension of time filed|
To file AOB. (3rd request)
|Apr 22 2002||Counsel's status report received (confidential)|
from atty Dain.
|Apr 25 2002||Extension of time granted|
To 6/21/2002 to file AOB. The court anticipates that aftet that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and take all steps necessary to meet htis schedule.
|Jun 19 2002||Counsel's status report received (confidential)|
from atty Dain.
|Jun 19 2002||Request for extension of time filed|
To file AOB. (4th request)
|Jun 21 2002||Extension of time granted|
to 8-20-2002 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his assisting entity of this schedule, and to take all steps necessary to meet it.
|Aug 19 2002||Request for extension of time filed|
to file AOB. (5th request)
|Aug 19 2002||Counsel's status report received (confidential)|
|Aug 20 2002||Extension of time granted|
to 10-21-2002 to file AOB. The court anticipates that after that date, only one further extension totaling 63 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet this schedule.
|Oct 18 2002||Counsel's status report received (confidential)|
|Oct 18 2002||Request for extension of time filed|
To file appellant's opening brief. (6th request)
|Oct 24 2002||Extension of time granted|
To 12/23/2002 to file appellant's opening brief. The court anticipates that 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 to take all steps necesssary to meet it.
|Dec 18 2002||Counsel's status report received (confidential)|
|Dec 18 2002||Request for extension of time filed|
To file appellant's opening brief. (7th request)
|Dec 23 2002||Extension of time granted|
To 2/21/2003 to file appellant's opening brief. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 2/21/2003. After that date, no further extension will be granted.
|Feb 20 2003||Counsel's status report received (confidential)|
from atty Dain.
|Feb 24 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Feb 26 2003||Extension of time granted|
to 4/18/2003 to file appellant's opening brief. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 4/18/2003. After that date, no further extension will be granted.
|Apr 16 2003||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Apr 16 2003||Counsel's status report received (confidential)|
|Apr 18 2003||Extension of time granted|
to 5/19/2003 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 5/18/2003.
|May 16 2003||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|May 20 2003||Extension of time granted|
to 6/18/2003 to file appellant's opening brief. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 6/18/2003. After that date, no further extension will be granted.
|Jun 12 2003||Appellant's opening brief filed|
|Jun 16 2003||Filed:|
Declaration of Anthony J. Dain in support of fourth progress payment (confidential).
|Jun 26 2003||Compensation awarded counsel|
|Jul 1 2003||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jul 2 2003||Extension of time granted|
to 9/10/2003 to file respondent's brief.
|Sep 2 2003||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Sep 4 2003||Extension of time granted|
to 11/10/2003 to file respondent's brief. After that date, only one further extension totaling 20 additional days is contemplated. Extension is granted based upon Deputy Attorney General Lynne G. McGinnis's representation that she anticipates filing that brief by 12/1/2003.
|Oct 1 2003||Counsel's status report received (confidential)|
from atty Dain.
|Nov 4 2003||Respondent's brief filed|
|Nov 24 2003||Request for extension of time filed|
to file reply brief. (1st request)
|Nov 26 2003||Extension of time granted|
to 1/22/2004 to file appellant's reply brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Cousnel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Dec 4 2003||Counsel's status report received (confidential)|
|Jan 23 2004||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Jan 27 2004||Change of Address filed for:|
attorney Anthony Dain.
|Jan 28 2004||Extension of time granted|
to 3-22-2004 to file reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension granted based upon counsel Anthony Dain's representation that he anticipates filing the brief by 5-21-2004.
|Feb 5 2004||Counsel's status report received (confidential)|
|Mar 23 2004||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Mar 30 2004||Extension of time granted|
to 5-21-204 to file reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension granted based upon counsel Anthony J. Dain's representation that he anticipates filing the brief by 7-20-2004.
|May 25 2004||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|May 26 2004||Extension of time granted|
to 7/20/2004 to file appellant's reply brief. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 7/20/2004. After that date, no further extension will be granted.
|Jul 21 2004||Request for extension of time filed|
to file appellant's reply brief. (5th request)
|Jul 28 2004||Extension of time granted|
to 9/20/2004 to file appellant's reply brief. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 9/18/2004. After that date, no further extension will be granted.
|Sep 17 2004||Request for extension of time filed|
to file reply brief. (6th request)
|Sep 20 2004||Extension of time granted|
to 11/1/2004 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 10/30/2004.
|Oct 29 2004||Request for extension of time filed|
to file appellant's reply brief. (7th request)
|Nov 5 2004||Extension of time granted|
to 11/22/2004 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 11/21/2004.
|Nov 29 2004||Request for extension of time filed|
to file appellant's reply brief. (8th request)
|Dec 1 2004||Extension of time granted|
to December 22, 2004 to file the reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by December 22, 2004.
|Dec 22 2004||Request for extension of time filed|
to file appellant's reply brief. (9th request)
|Dec 30 2004||Extension of time granted|
to 1/11/2005 to file appellant's reply brief. Extension is granted based upon counsel Anthony J. Dain's representation that he anticipates filing that brief by 1/11/2005. After that date, no further extension will be granted.
|Jan 28 2005||Filed letter from:|
Attorney Dain, dated 1/14/2005, re late reply brief.
|Jan 28 2005||Appellant's reply brief filed|
(23,444 words; 94 pp. - perm)
|Sep 12 2005||Counsel's status report received (confidential)|
from atty Dain.
|Mar 7 2006||Motion to withdraw as counsel filed|
by attorney Anthony J. Dain to withdraw as habeas corpus counsel.
|Mar 8 2006||Counsel's status report received (confidential)|
from atty Dain.
|Jun 21 2006||Order appointing Habeas Corpus Resource Center filed|
Good cause appearing, the application of appointed counsel for permission to withdraw as habeas corpus/executive clemency attorney of record for appellant Steven M. Bell, filed March 7, 2006, is granted. The order appointing Anthony J. Dain to serve as appellate and habeas corpus/executive clemency counsel of record for appellant Steven M. Bell in the above automatic appeal now pending in this court, filed September 16, 1998, 2003, is hereby vacated as to the habeas corpus/executive clemency representation. Dain continues to be responsible for all remaining appellate duties set forth in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. The Habeas Corpus Resource Center is hereby appointed to represent appellant Steven M. Bell for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus counsel's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Steven M. Bell. Anthony J. Dain is directed to deliver to the Habeas Corpus Resource Center, within 30 days from the filing of this order, a copy of the combined record on appeal, and all habeas corpus investigation work product, trial files, trial transcripts, investigation reports, and related materials that he has obtained from appellant Steven M. Bell or his trial counsel, paralegals, experts and investigators, or from any other source.
|Jun 21 2006||Order filed|
In conjunction with the order filed this day permitting Anthony J. Dain to withdraw as appointed habeas corpus/executive clemency counsel of record for appellant Steven M. Bell, with regard to the above-referenced automatic appeal now pending in this court, Dain is ordered to reimburse this court the sum of $5,600. (See Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in Cal. Supreme Ct., guideline 11 ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"], subpt. B.)
|Aug 23 2006||Supplemental briefing ordered|
With regard to issue I, raised in appellant's opening brief, the court invites supplemental briefing on the effect of Johnson v. California (2005) 545 U.S. 162 and People v. Johnson (2006) 38 Cal.4th 1096. Simultaneous supplemental briefs, in letter form and not to exceed 10 pages in length, may be filed within 30 days of the date of this order. Simultaneous response briefs, not to exceed 5 pages in length, may be filed within 20 days of the date the last supplemental brief is filed. Corrigan, J., was absent and did not participate.
|Aug 30 2006||Counsel's status report received (confidential)|
|Sep 22 2006||Letter brief filed|
respondent's supplemental letter brief. (7 pp.)
|Sep 25 2006||Letter brief filed|
appellant's supplemental letter brief. (4 pp.)
|Oct 11 2006||Letter brief filed|
respondent's "Supplemental Reply Letter Brief." (3 pp.)
|Oct 13 2006||Letter brief filed|
appellant's "response to Respondent's Supplemental Letter Brief." (5 pp.)
|Oct 23 2006||Counsel's status report received (confidential)|
|Oct 26 2006||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the December calendar, to be held the week of Dec. 4, 2006, 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.
|Nov 7 2006||Case ordered on calendar|
Tuesday, December 5, 2006, at 2:00 p.m., in Los Angeles
|Dec 5 2006||Cause argued and submitted|
|Dec 19 2006||Counsel's status report received (confidential)|
|Feb 14 2007||Notice of forthcoming opinion posted|
|Feb 15 2007||Opinion filed: Judgment affirmed in full|
Opinion by Werdergar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Moreno, & Corrigan, JJ.
|Feb 16 2007||Counsel's status report received (confidential)|
|Mar 2 2007||Rehearing petition filed|
appellant's "Petition for Rehearing." (15 pp.)
|Mar 5 2007||Filed:|
"Certificate of Word Count" to appellant's petition for rehearing. (3719 words)
|Mar 6 2007||Time extended to consider modification or rehearing|
to June 1, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Mar 28 2007||Rehearing denied|
The petition for rehearing is DENIED.
|Mar 28 2007||Remittitur issued (AA)|
|Mar 29 2007||Related habeas corpus petition filed (post-judgment)|
case no. S151362.
|Apr 19 2007||Received:|
acknowledgment of receipt of remittitur.
|Apr 27 2007||Order filed (150 day statement)|
|Jul 2 2007||Received:|
letter from U.S.S.C., dated June 27, 2007; advising cert petn. filed on June 26, 2007; No. 06-1714.
|Jul 27 2007||Received:|
copy of brief in opposition to the petition for writ of certiorari., U.S.S.C. No. 06-1714
|Aug 24 2007||Change of contact information filed for:|
|Oct 1 2007||Certiorari denied by U.S. Supreme Court|
|Dec 7 2007||Compensation awarded counsel|
|Jun 12 2003||Appellant's opening brief filed|
|Nov 4 2003||Respondent's brief filed|
|Jan 28 2005||Appellant's reply brief filed|