IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S099414
v.
KENNETH RAY BIVERT,
Monterey County
Defendant and Appellant.
Super. Ct. No. SS991410
A jury convicted defendant Kenneth Ray Bivert of the first degree murder
of Leonard Swartz. (Pen. Code, § 187.)1 The jury found that defendant used a
deadly weapon in the commission of the murder (§ 12022, subd. (b)) and found
true the special circumstance allegations of prior conviction of first degree murder
and lying in wait (§ 190.2, subd. (a)(2), (15)). The jury further convicted
defendant of assault with a deadly weapon by a life prisoner (§ 4500) and found he
had been convicted in 1988 of three counts of first degree murder (§§ 187,
1170.12, subd. (c)(2), 667, subd. (a)).
After a penalty trial, the jury returned a verdict of death. The court denied a
motion for a new trial and the automatic application to modify the verdict
1
All statutory references are to the Penal Code unless otherwise specified.
1
(§ 190.4, subd. (e)), and sentenced defendant to death. This appeal is automatic.
(§ 1239, subd. (b).)
I. FACTS
A. Guilt Phase
Defendant was convicted of charges related to the November 23, 1996,
assault of inmate Rick Dixon and the February 5, 1997, murder of inmate Leonard
Swartz.
1. The People’s Case
a. Assault of Rick Dixon
In the fall of 1996, defendant and Dixon were inmates at the Salinas Valley
State Prison (SVSP) in Monterey County. Building B, in which both were housed,
was self-segregated by the inmates according to race; the White and Hispanic
inmates occupied one side of the dayroom and yard, while the Black and other-
race inmates occupied the other. Dixon understood defendant to be ―in charge of
‗the woods,‘ ‖ a group of White inmates. Defendant approached Dixon and told
him there was a ―piece of shit‖ White pedophile named Dennis, who had
purchased drugs from a Black inmate, an act considered ―bad business‖ by ―the
woods.‖ Defendant told Dixon that if he wanted to ―earn his bolts‖ he would have
to ―deal with‖ inmate Dennis. Dixon understood this to mean that if he wanted to
gain membership in ―the woods‖ he would have to stab Dennis. Dixon refused,
even though he knew he might suffer consequences for not acceding to
defendant‘s request. Dixon later overheard defendant say he wanted to ―do
something drastic to get moved . . . to Pelican Bay [State Prison] where . . . he
could get more run of the place.‖
On November 23, 1996, as Dixon was walking toward his cell, inmate
Steve Petty snuck up behind him, wrapped shoestrings around his neck, and pulled
2
him backward. Defendant then approached and stabbed Dixon with a homemade
ice pick seven times in his upper chest, sides, and lower abdomen. A contrasting
version of events was offered by inmate D,2 who witnessed the assault; he testified
it was defendant who grabbed Dixon from behind. He also saw Petty toss
something into the shower area.
A correctional officer3 heard the commotion, sounded the alarm, and told
all inmates to drop to the ground where they stood. Defendant and Petty were
close to one another, separated from the other inmates in the room, and were the
inmates closest to the shower area. Officers saw no blood on defendant‘s clothing,
but they observed what looked like rope burns on his hands and found a weapon in
the shower. While recovering from his wounds in the prison infirmary, Dixon
viewed a photo lineup and identified defendant and Petty as his assailants. Dixon
indicated that defendant had told him Steve Petty was his ―road dog,‖ or crime
partner, and that they ―ran around together‖ in prison.
Defendant was transferred to administrative segregation at Pelican Bay
State Prison pending the investigation into the stabbing. He was returned to the
general population at SVSP in early 1997. While defendant was on the prison
yard shortly after his return, inmate D asked him if he was going to try to get his
old prison job back. Defendant replied that he ―wasn‘t going to be around that
long‖ because ―he was going to hit a suspected child molester‖ who ―needed to be
gutted.‖
2
Because of the known risks to the safety of inmates who testify against
fellow inmates, many of the witnesses at this trial were referred to in the public
record not by their names, but by code names, e.g., inmate A, as agreed to by court
and counsel.
3
Unless otherwise noted, all of the witnesses hereafter referred to as ―Officer‖
were correctional officers at SVSP.
3
b. Murder of Leonard Swartz
Inmate C‘s cell was on the first tier, directly beneath defendant‘s on the
second tier, and through the ventilation system he could hear sounds from
defendant‘s cell. A few days before February 5, 1997, inmate C could hear
scraping from upstairs and, suspecting that defendant was making an inmate-
manufactured weapon, or shank, he ―hollered up and asked the people that lived
upstairs if they wanted everybody to know what they were doing.‖ Defendant
answered that it didn‘t matter to him if anybody heard what he was doing.
Over breakfast on the morning of February 5, 1997, defendant told
inmate C that inmate Leonard Swartz ―was a child molester‖ who ―didn‘t belong
on the face of the earth for what he did and he needs to be dealt with.‖ Defendant
said that ―one of his missions while in prison was to take care of the scum such as
that, that people with crimes like that didn‘t belong. They didn‘t belong alive.‖
Defendant believed in ―the White race taking care of their own,‖ and that ―over
the years [the White] race had gotten soft, and he couldn‘t believe the people they
were letting walk around nowadays.‖ Defendant was known to approach young,
new prisoners and ―try to plant seeds in them as far as what the White race is all
about and what they should do.‖
Defendant told inmate C that he, with another inmate, had ―committed
another stabbing in the same yard . . . and that they threw a shirt over [the
victim‘s] head and stabbed him numerous times.‖ Defendant then told inmate C
that he would ―take care of‖ Leonard Swartz himself.
At 11:25 a.m. on February 5, 1997, Officer Erica Carbajal was on duty in
the dayroom in building B at SVSP when two inmates approached her and asked
for some paperwork that was in a nearby office. She retrieved the paperwork and,
when leaving the office, noticed that the dayroom was uncharacteristically quiet.
She turned and saw inmate Leonard Swartz stagger toward her, covered in blood
4
and clutching his hands to his throat. He fell to the floor in front of her. She
sounded the alarm, ordered the inmates to drop to the floor where they stood, and
summoned medical assistance.
At that same time, inmate F was gathering his belongings from his cell on
the second tier to go to the showers when he heard the sounds of a fight. He
turned and saw defendant punching and slapping another inmate, who was trying
to fend him off, and then saw the other inmate grab his neck and defendant throw
something. Inmate G heard the attack. He turned to see defendant and Swartz
standing face to face, and defendant then made two quick motions that landed near
Swartz‘s neck. Inmate A, who had been playing dominoes with Swartz just
moments before the attack, witnessed the stabbing and identified defendant as the
assailant.
Officer Tiffany Haro was the first to reach Swartz. She tried to staunch the
flow of blood from his neck with a stack of paper towels from the office, and
when that did not work, she and Officer Jeffrey Mantel placed Swartz in a
chokehold to apply more pressure. Swartz nonetheless continued to bleed
profusely while he was being carried on a stretcher to the infirmary, where staff
began treatment. Shortly thereafter, he was transported by ambulance to
Natividad Medical Center in Salinas.
Officers who arrived at the dayroom in response to the alarm saw trails and
pools of blood. The officers instructed the inmates to move up against the walls of
the dayroom, where they were searched for wounds, weapons, or any other
relevant evidence. One officer discovered a shank on the floor near the pools of
blood. The officers who searched defendant noted his hands were trembling and
he was shaking. Inmate G observed that while defendant was being searched his
5
legs shook. Officers conducted a Hemastix test4 on defendant‘s hands; the test
strip reacted positively for the presence of blood. During the test, defendant‘s
hands continued to shake, his chest quivered, and he was sweating. None of the
other inmates were shaking. When asked why he was shaking, defendant
responded that he was cold. When asked why he was sweating if he was cold,
defendant had no response.
The officer who collected defendant‘s clothing noted red spots on
defendant‘s blue jeans and shoes. A blue chambray state-issued shirt was found in
the nearby stairwell, draped over the handrail. It had red spots on the sleeves and
was still wet with perspiration.
On February 22, 1997, 17 days after the attack, while still in the hospital,
Leonard Swartz suffered an epileptic seizure and died. Forensic pathologist Dr.
John Hain testified the underlying cause of death was the stab wound to the carotid
artery in Swartz‘s neck. The wound had caused severe blood loss, which caused
brain damage in the form of strokes, which in turn caused the fatal seizure.
Defendant was transferred to Corcoran State Prison following the attack,
where he was housed with inmate J for a week in May 1997. Defendant admitted
to inmate J that he had stabbed a fellow inmate at SVSP in November 1996, and
that he was upset with himself for using an ice pick type of shank because he knew
that weapon would not kill anybody. He was upset that that victim had lived. He
admitted that while he was in administrative segregation for that stabbing, he
made up a list of victims targeted for ―hits‖ upon his return to the general
population at SVSP. Defendant said he was ―exalted‖ to have been released back
4
A Hemastix test is an investigative tool used to detect blood. A small fabric
strip is dipped in distilled water and rubbed on the suspect area. If blood is
present, the strip will change colors.
6
to the same yard where he was before and where the inmates on his hit list were
housed. He said ―it was like a gift‖ when they put him ―right in the building, right
where he wanted to be to get that dude‖ who was at the top of his hit list. He
knew the man to be a child molester and said he prepared to kill him by making a
knife specifically for him. He sharpened one whole side of the weapon on the
ceiling of his cell ―so that when he stuck it in . . . it could be like a ripping piece, a
killing piece.‖ Defendant then told inmate J that he had lain in wait for his victim
in the dayroom. He had stood by a table with his leg propped up on one of the
stools and the shank in his back pocket, waiting for the man to walk past him.
When the man did so, defendant ―did a full handball swing and just buried it in his
neck,‖ ―[ripping] the dude‘s neck wide open.‖ Defendant knew where the carotid
artery was, and that ―if you could sever that, the chances of a victim living [were]
not very good.‖ Defendant said he was able to clean his hands so there was no
visible blood, but there was blood on his shoes. He reasoned he could explain
away any blood on his hands and clothes by saying that ―the dude bumped into me
when he was leaking.‖ He had set out to do the killing, he was happy about it, and
he would have bragging rights when he was returned to Pelican Bay State Prison.
Defendant was transferred to Pelican Bay State Prison sometime in 1997
and was housed in the same yard as inmate R. Defendant admitted to him that at
SVSP he had stabbed an inmate who survived and ―got away with it‖ because he
―had a change of clothes.‖ Defendant‘s cellmate at Pelican Bay was inmate P,
who testified that defendant told him the ―gene pool should be cleansed of all
defects, physical and mental,‖ and ―anybody with a defect should be whacked.‖
Defendant told inmate P about the second stabbing and how he got blood on his
shirt, took it off, grabbed someone else‘s shirt and put it on, and ―they were trying
to give him murder‖ for it.
7
Margaret Aceves, senior criminalist at the Department of Justice‘s DNA
lab, concluded DNA in Swartz‘s blood matched that present on the pants collected
from defendant on February 5, 1997.
Gary Craft, an investigator with the Monterey County District Attorney‘s
Office, testified that inside a book confiscated from defendant‘s property at
Pelican Bay State Prison were the handwritten words, ―Nonexistence of the unfit
has and will be the law of nature‖ and ―The one who knows the secret does not
speak; the one who speaks does not know the secret.‖
2. Defendant’s Case
Defendant offered evidence to show that the inmates who testified against
him had reason to falsify their stories because they were given benefits in
exchange for their testimony, in that they were transferred to a ―soft yard,‖ a
housing placement within the department of corrections that did not have the same
inherent risks of danger as a general population yard. He also offered the
testimony of a Department of Justice criminalist who examined defendant‘s cell at
SVSP and found no signs of scraping.
B. Special Circumstance Phase
The prosecution presented certified documents that proved defendant had
suffered three prior convictions for first degree murder in 1988 and was a life
prisoner at the time of the capital murder.
C. Penalty Phase
1. The People’s Case
The People offered as evidence in aggravation defendant‘s leading role in
three homicides in Yolo County and participation in two in-prison assaults.
Over the course of the Labor Day weekend in 1987, when he was a 17-
year-old high school student, defendant, armed with a shotgun, and a friend, armed
8
with a handgun, went to Portuguese Bend, a slough northwest of Sacramento, to
―drink and party and shoot our guns off.‖ They noticed a fisherman with a pickup
truck camping near the water. Defendant told his friend he wanted to use the
fisherman‘s truck to rob a nearby bank and was willing to shoot the fisherman in
order to get the truck. The two friends approached the fisherman, and after a few
minutes of conversation, when the fisherman knelt down to set a hook, defendant
shot him in the back of the head. Defendant and his friend dumped the body in the
slough, took the truck, and after driving around for a while drove the truck into the
slough.
The following Tuesday, defendant skipped school and, with his uncle‘s
handguns, again visited the slough with a friend, where they ran into a couple who
were fishing. Defendant told his friend he wanted to take their car to use to rob a
bank. After a few minutes of conversation, defendant shot the woman in the back
and then continued shooting, hitting and killing the man. When the woman
continued to scream, defendant shot her in the head, killing her. Defendant was
―jovial‖ when he threw their bodies and belongings into the slough and took their
car. Defendant and his friend drove to Oregon, where they were apprehended.
Defendant eventually pleaded guilty to the three murders and was
sentenced to a term of 52 years to life imprisonment. He was serving this term in
SVSP at the time of the capital crime.
In September 1995, while incarcerated at California State Prison,
Sacramento, defendant joined in a fight that started between two other inmates on
the administrative segregation yard. He only stopped fighting after the guards
repeated oral warnings and fired two rubber bullets.
In January 1997, on the administrative segregation yard at SVSP, defendant
approached and struck inmate Wright. Inmate Steve Petty joined the fight, which
stopped only after the guards repeated oral warnings and fired two rubber bullets.
9
2. Defendant’s Case
Defendant presented no evidence at the penalty phase of trial.
II. CLAIMS
Claim I. Denial of Defendant’s Motion for Separate Juries for the
Guilt Phase and the Special Circumstance and Penalty Phases
Before trial, defendant moved to have separate juries decide his guilt and
the truth of the prior-murder special-circumstance allegation, with the special
circumstance jury also deciding penalty. He conceded that section 190.1 already
requires the truth of a prior-murder special-circumstance allegation to be
determined in a separate proceeding following the guilt phase,5 but he argued that
having separate juries for each proceeding would insulate the guilt phase jury from
voir dire on the prior murder convictions. In essence, he argued he should be
allowed to voir dire the guilt phase jury without mentioning the prior murder
convictions and to voir dire the special circumstance and penalty phase jury about
their thoughts on his prior murder convictions, and the only way to do that would
be to have separate juries.
5
Section 190.1 provides, in pertinent part: ―A case in which the death penalty
may be imposed pursuant to this chapter shall be tried in separate phases as
follows: [¶] (a) The question of the defendant‘s guilt shall be first determined.
If the trier of fact finds the defendant guilty of first degree murder, it shall at the
same time determine the truth of all special circumstances charged as enumerated
in Section 190.2 except for a special circumstance charged pursuant to paragraph
(2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had
been convicted in a prior proceeding of the offense of murder in the first or second
degree. [¶] (b) If the defendant is found guilty of first degree murder and one of
the special circumstances is charged pursuant to paragraph (2) of subdivision (a)
of Section 190.2 which charges that the defendant had been convicted in a prior
proceeding of the offense of murder of the first or second degree, there shall
thereupon be further proceedings on the question of the truth of such special
circumstance.‖
10
The trial court denied his motion, relying on the analysis in People v.
Nicolaus (1991) 54 Cal.3d 551. There we held that section 190.4, subdivision (c)
expresses the legislative intent that both the guilt and penalty phases of a capital
trial be tried by the same jury absent a showing of good cause for separate juries
for each phase. (Id. at pp. 573-574.) The mere desire of counsel ―to voir dire in
one way for the guilt phase and a different way for the penalty phase‖ does not
constitute good cause for deviating from the clear legislative mandate. (Id. at
p. 573.) The trial court concluded this reasoning applied equally to a request for
separate juries for the guilt and special circumstance phases of trial.
Defendant argues the trial court‘s ruling violated his rights to a fair trial and
an impartial jury. We conclude the trial court did not err.
We review the court‘s decision for abuse of discretion (People v. Lucas
(1995) 12 Cal.4th 415, 482-483) and find none. In order to establish good cause
for separate juries, defendant must show more than mere speculation that the use
of a single jury would result in prejudice (People v. Pride (1992) 3 Cal.4th 195,
252-253), or the mere desire of counsel ―to voir dire in one way for the guilt phase
and a different way for the penalty phase‖ (People v. Nicolaus, supra, 54 Cal.3d at
p. 573). Defendant‘s motion was grounded only on his counsel‘s desire to conduct
voir dire differently for each stage of the trial. As recognized in People v. Yeoman
(2003) 31 Cal.4th 93, 120, ―the decision whether to use voir dire to probe
prospective jurors‘ attitudes towards a defendant‘s other offenses is a tactical one
. . . .‖ The mere desire to minimize or eliminate such tactical decisions in the voir
dire of a capital jury does not constitute good cause. (Nicolaus, at pp. 573-574.)
We find no abuse of discretion in the denial of defendant‘s motion.
Defendant further asserts the denial of the motion violated his rights to due
process and fundamental fairness under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, arguing that trying the case before
11
a single jury limited his ability to adequately voir dire the prospective jurors. (See
Mu’min v. Virginia (1991) 500 U.S. 415, 425–432.) Defendant failed to explicitly
make these constitutional arguments in the trial court, but because they do not
invoke facts or legal standards different from those the trial court was asked to
apply, and merely assert that the trial court‘s denial of the motion had the
additional legal consequence of violating his rights under the United States
Constitution, they are not forfeited on appeal. (See People v. Boyer (2006) 38
Cal.4th 412, 441, fn. 17.)
Although the issues are thus preserved, defendant fails to show the trial
court‘s ruling resulted in fundamental unfairness or the denial of due process.
Defendant argues that the prosecution‘s strongest evidence in aggravation was the
three prior murder convictions, and defendant‘s strongest evidence in mitigation
was the fact the victim in this case was a child molester. Because of the court‘s
ruling, he argues, the prosecution was able to question prospective jurors
concerning their thoughts regarding the appropriateness of a death sentence for the
murder of a child molester, but he was ―unable to ask the prospective jurors if they
would automatically vote for the death penalty in light of defendant‘s prior murder
convictions.‖ He asserts that this resulted in a constitutionally unfair advantage
for the prosecution.
In fact, defendant‘s claim that he was ―unable‖ to ask prospective jurors
whether prior murder convictions would cause them to automatically vote for the
death penalty is belied by the record. As the trial court suggested, counsel asked
numerous prospective jurors whether the existence of various special
circumstances, including a prior murder conviction, would, by themselves, cause
them to vote for death. The questions were framed in a neutral fashion, in a
manner that would not necessarily have aroused suspicions that defendant had
12
actually been convicted of prior murders, and elicited answers from prospective
jurors that allowed defendant to gain insight into their views on the death penalty.6
Defendant fails to show that the trial court‘s denial of his motion for
separate juries precluded him from assessing the qualifications of the prospective
jurors or otherwise resulted in fundamental unfairness.
6
For example, defense counsel asked Prospective Juror No. 8 about ―several
kinds of special circumstances‖ including ―[l]ying in wait,‖ ―murdering someone
for financial gain,‖ ―poisoning,‖ ―previously hav[ing] been convicted of a
murder.‖ Counsel then asked with regard to the last of these whether, ―if that were
true, would you automatically just say that‘s it, that‘s the death penalty?‖
Prospective Juror No. 8 replied: ―No, I wouldn‘t. But my—I would wonder
why that person had the opportunity. [¶] Again, it‘s my personal belief, but I‘m
not going to let my personal judgment interfere with me following the letter of the
law. Okay?‖
He asked Prospective Juror No. 49: ―[T]here are other special circumstances.
For example, there‘s one where you could essentially murder someone for
financial gain. . . . [Or] where the defendant has been convicted of a previous
murder in the first or second degree. And there‘s another kind of special
circumstance where if you kill a judge or a prosecutor. Those are all special
circumstances that would entitle a jury to decide whether or not a person lives or
dies. [¶] Of the special circumstance examples that I‘ve given you, would any of
those tell you ‗I‘m going to vote for death no matter what the facts are in the
penalty phase‘?‖
Prospective Juror No. 49 replied, ―No,‖ that he would be willing to listen to
and evaluate each and every circumstance.
Defense counsel asked Prospective Juror No. 82: ―I‘m going to give you a
few special circumstances and what I‘d like to know is if you hear any of these
special circumstances and if they were assumed to be true, . . . would you
automatically say ‗that‘s the death penalty. I don‘t need to hear anymore‘?
[¶] For example, there‘s a special circumstance[] that the murder was intentional
and carried out for financial gain. . . . There‘s another one that says that the
defendant was convicted previously of murder in the second degree. . . . There‘s
another one that says if . . . a victim was a peace officer or a judge or a prosecutor
that‘s a special circumstance.‖
Prospective Juror No. 82 replied: ―No. I think I would need to know
everything that was connected with the case.‖
13
Claim II. Excusal for Cause of Prospective Juror No. 3
Defendant next contends the trial court erred in excusing for cause
Prospective Juror No. 3, who he asserts was not biased against the death penalty,
in violation of Wainwright v. Witt (1985) 469 U.S. 412 and Witherspoon v. Illinois
(1968) 391 U.S. 510. Defendant argues the trial court‘s ruling violated his right to
a fair trial and an impartial jury under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. We conclude the trial court did
not err and defendant‘s constitutional rights were not violated.
―The United States Constitution guarantees a criminal defendant a trial by
an impartial jury. As we have explained in numerous recent decisions in capital
cases, ‗[t]o achieve the constitutional imperative of impartiality, the law permits a
prospective juror to be challenged for cause only if his or her views in favor of or
against capital punishment ―would ‗prevent or substantially impair the
performance of his [or her] duties as a juror‘ ‖ in accordance with the court‘s
instructions and the juror‘s oath.‘ [Citations.]‖ (People v. Wilson (2008) 44
Cal.4th 758, 778-779.) ― ‗The state and federal constitutional guarantees of a trial
by an impartial jury include the right in a capital case to a jury whose members
will not automatically impose the death penalty for all murders, but will instead
consider and weigh the mitigating evidence in determining the appropriate
sentence.‘ [Citations.]‖ (People v. Bonilla (2007) 41 Cal.4th 313, 338.)
― ‗ ―In many cases, a prospective juror‘s responses to questions on voir dire
will be halting, equivocal, or even conflicting. Given the juror‘s probable
unfamiliarity with the complexity of the law, coupled with the stress and anxiety
of being a prospective juror in a capital case, such equivocation should be
expected. Under such circumstances, we defer to the trial court‘s evaluation of a
prospective juror‘s state of mind, and such evaluation is binding on appellate
courts.‖ ‘ ‖ (People v. Hawthorne (2009) 46 Cal.4th 67, 83.) ― ‗ ― ‗[I]t is
14
sufficient that the trial judge is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law in the case before
the juror.‘ ‖ ‘ ‖ (People v. Martinez (2009) 47 Cal.4th 399, 425.) ― ‗In other
words, the reviewing court generally must defer to the judge who sees and hears
the prospective juror, and who has the ―definite impression‖ that he [or she] is
biased, despite a failure to express clear views.‘ ‖ (People v. Hamilton (2009) 45
Cal.4th 863, 890.)
In her written questionnaire, Prospective Juror No. 3 indicated that she
supported the death penalty, believed in ―an eye for an eye,‖ and ―would not
automatically vote for either life without the possibility of parole or the death
penalty,‖ but would ―consider all the evidence and vote [her] conscience.‖
During voir dire examination, the court outlined four categories of thought
about the death penalty: Category one would include ―persons who do not believe
in the death penalty, who would not support the death penalty and who, if placed
in this position, would always vote for life without the possibility of parole.‖
Category two would include ―those persons who strongly support the death
penalty, who are strong proponents of the death penalty, and who, when given the
choice, would always vote for a sentence of death. . . . no matter what the evidence
or the circumstances . . . .‖ Category three would include ―those people who
believe in a death penalty in concept, but who could not personally vote to impose
a death penalty. . . . [They] support the theory of a death penalty, . . . but who as
an individual just couldn‘t vote to impose it.‖ And category four would include
―those people who feel that they could keep an open mind, who would consider
the evidence that was presented, who would weigh the mitigating factors that
might be presented against the aggravated factors which might be presented and
who could then make a decision.‖
15
Prospective Juror No. 3 placed herself in category three: Although she
accepted the theory of the death penalty, she could not personally impose it
because she ―wouldn‘t want to feel guilty.‖
The trial court asked the parties if they would be willing to stipulate to the
excusal for cause of Prospective Juror No. 3. Defense counsel did not stipulate or
object, but submitted the matter to the court. We have held the failure to object
does not forfeit a claim raised on appeal pursuant to Wainwright v. Witt, supra,
469 U.S. 412, and Witherspoon v. Illinois, supra, 391 U.S. 510, although it
suggests counsel concurred in the assessment the juror was excusable. (See
People v. Schmeck (2005) 37 Cal.4th 240, 262.)
Prospective Juror No. 3, although initially indicating she would not
automatically vote for either life without the possibility of parole or the death
penalty, but would consider all the evidence and vote her conscience, thereafter
stated on examination during voir dire that she would never vote for the death
penalty because she would not want to feel guilty. The record thus supports the
trial court‘s conclusion that Prospective Juror No. 3 held views that would prevent
or substantially impair her ability to impartially apply the law in accordance with
the court‘s instructions. We find no error in the court‘s decision to excuse her for
cause.
Claim III. Refusal to Excuse for Cause Prospective Juror No. 8
Defendant claims the court erred in denying his motion to excuse for cause
Prospective Juror No. 8. He argues the prospective juror‘s views, as expressed in
the juror questionnaire and voir dire examination, revealed a bias in favor of the
death penalty.
In his questionnaire, Prospective Juror No. 8 indicated that he strongly
supported the death penalty, thought it ―never should have been repealed‖ and
16
―murderers should never have another opportunity to kill again.‖ He thought the
murder of an inmate was a less serious crime than the murder of a noninmate, but
the fact the victim was an inmate who was a child molester would not prevent him
from voting for the death penalty.
He also indicated he could see himself, in the appropriate situation, finding
life in prison to be an appropriate punishment, and rejecting the death penalty. He
would not automatically vote for either life without the possibility of parole or the
death penalty, but would consider all the evidence and vote his conscience.
The court initially concluded, based on the questionnaire alone, that
Prospective Juror No. 8 was not qualified to sit as a juror because his answers
indicated he would not engage in a weighing of the evidence and, because
defendant had prior convictions for murder, would automatically vote for the death
penalty. When the prosecutor refused to stipulate to his excusal for cause, voir
dire commenced. Prospective Juror No. 8 stated that he understood ―the legal
concept and how the death penalty should be imposed.‖ But he did not ―happen to
personally agree with the way it works. But . . . [he would] follow the directions
of the Court on how to impose a penalty as determined by law.‖ If he learned that
defendant had been convicted of a prior murder, he would not automatically vote
for the death penalty, but ―would wonder why that person had the opportunity.‖
He would not ―let [his] personal judgment interfere with [his] following the letter
of the law.‖ He would consider everything and follow the judge‘s directions, and
his personal opinions would not interfere with his ability to give defendant a fair
and impartial judgment.
Defense counsel then asked, ―If you were Mr. Bivert, would you feel
comfortable having a juror like yourself being on the jury?‖ Prospective Juror
No. 8 suggested that, in light of his strong views in favor of the death penalty, if he
were defendant ―he wouldn‘t want to take a chance on me being on this jury. At
17
least I hope he wouldn‘t.‖ He repeated, however, that although he strongly
favored the death penalty, it ―doesn‘t mean I would automatically go for it.‖
The defense thereafter challenged Prospective Juror No. 8 for cause. The
court denied the motion, stating: ―It‘s very clear that juror number 8 personally
strongly supports the death penalty, but he also was very clear in stating that
despite his personal opinion, he would follow the law in the case and he placed
himself in category four [one who could keep an open mind, consider the evidence
presented, weigh the mitigating factors against the aggravating factors, and then
make a decision]. He never placed himself in category two [one who strongly
supports the death penalty and would always vote for the death penalty no matter
the evidence]. In other words, he never said that he would vote for the death
penalty in all circumstances. There was a concern as to the prior murder and his
statement regarding persons convicted of murder. However, that was asked of him
and he stated that he would follow the law. Essentially, no matter what the special
circumstance was, he would follow the law.‖
Defendant thereafter used one of his peremptory challenges to excuse
Prospective Juror No. 8 and exhausted his peremptory challenges. At no time did
he express any dissatisfaction with the jury panel as sworn.
This court recently explained in People v. Mills (2010) 48 Cal.4th 158, 186,
that ―[a]s a general rule, a party may not complain on appeal of an allegedly
erroneous denial of a challenge for cause because the party need not tolerate
having the prospective juror serve on the jury; a litigant retains the power to
remove the juror by exercising a peremptory challenge. Thus, to preserve this
claim for appeal we require, first, that a litigant actually exercise a peremptory
challenge and remove the prospective juror in question. Next, the litigant must
exhaust all of the peremptory challenges allotted by statute and hold none in
reserve. Finally, counsel . . . must express to the trial court dissatisfaction with the
18
jury as presently constituted.‖ Here, defendant satisfied the first two of these
requirements, but not the third.
Defendant argues that counsel may have failed to express dissatisfaction
with the panel as sworn because he was ―concerned that, if the juror selection
process continued, a juror even worse than Juror No. 8 may have been seated.‖ He
argues he should not be precluded from asserting on appeal ― ‗the deprivation of
. . . fundamental, constitutional rights.‘ ‖ He fails to show, however, which
fundamental constitutional rights would be implicated had he objected to the jury
as sworn and a ―worse juror‖ for the defense been seated.
We have acknowledged that an expression of dissatisfaction with the jury
panel as sworn is required to preserve this issue for appeal, but have noted that in
light of arguably conflicting language in People v. Bittaker (1989) 48 Cal.3d 1046,
1087-1088 (which suggests that an express statement of dissatisfaction is
unnecessary if a defendant exhausts his or her peremptory challenges) and People
v. Crittenden (1994) 9 Cal.4th 83, 121, footnote 4 (which clarified that an
expression of dissatisfaction is in fact required), we would decline to apply this
rule to cases tried before 1994, when Crittenden was decided. (People v. Mills,
supra, 48 Cal.4th at pp. 186-187.) Because defendant was tried in 2001, the
requirement of an express statement of dissatisfaction applies to his case, and thus
he has not preserved this issue for appeal.
Had the issue been preserved, defendant‘s claim would nonetheless fail. As
set forth in the preceding claim, the federal constitutional standard for dismissing a
prospective juror for cause based on his or her views of capital punishment is
whether the juror‘s views ― ‗ ―would ‗prevent or substantially impair the
performance of his [or her] duties as a juror‘ ‖ in accordance with the court‘s
instructions and the juror‘s oath.‘ [Citations.]‖ (People v. Wilson, supra, 44
Cal.4th at p. 779.) ― ‗If the prospective juror‘s statements are conflicting or
19
equivocal, the court‘s determination of the actual state of mind is binding. If the
statements are consistent, the court‘s ruling will be upheld if supported by
substantial evidence.‘ ‖ (People v. Lynch (2010) 50 Cal.4th 693, 733.)
The trial court did not err in denying defendant‘s challenge for cause to
Prospective Juror No. 8. He initially indicated he strongly supported the death
penalty and believed that if a defendant murdered an inmate it was not as heinous
a crime as if he had murdered a noninmate, but even if the victim was an inmate
child molester, he would have no problem voting for the death penalty.
Prospective Juror No. 8 also stated that if his and defendant‘s roles were switched,
in light of his strong views on the death penalty, he would not want to have a juror
like himself sitting in judgment. Nevertheless, as strong as were his statements in
support of the death penalty, the record supports the determination that
Prospective Juror No. 8 did not express an unalterable preference for the death
penalty. He consistently said that in spite of his strong views, he would follow the
law as instructed by the court, and under the appropriate circumstances, he could
vote for life imprisonment without the possibility of parole over the death penalty.
He would commit to following the law, would not let his personal views interfere
with ―the letter of the law,‖ and would weigh the mitigating and aggravating
factors before making a decision. He would not ―automatically go for it.‖
The record thus supports the trial court‘s finding that Prospective Juror
No. 8‘s views would not substantially impair the performance of his duties as a
juror. The court did not err in denying defendant‘s motion to dismiss Prospective
Juror No. 8 for cause.
Claim IV. Introduction of Evidence That Defendant Was a White
Supremacist
Defendant next argues the court erred in admitting evidence he was a White
supremacist and a racist.
20
Before trial, defendant moved to exclude evidence regarding White
supremacist philosophies, any racially oriented or White supremacist material
found in his possession in prison, or racially oriented statements made by him. He
argued that because both he and his victims were White, the charged offenses were
not racially motivated and any such evidence was irrelevant and would be more
prejudicial than probative. (Evid. Code, § 352.)
The trial court ruled that evidence regarding White supremacist
philosophies generally would not be admitted, but evidence of defendant‘s
statements regarding the assault of Rick Dixon, the murder of Leonard Swartz, and
the events leading up to the crimes, including statements regarding his motives,
which might include elements of racism and White supremacist philosophies,
would be admissible.
Defendant argues the court erred in admitting the following evidence:
defendant was in charge of ―the woods,‖ or White inmates, in building B at SVSP
and ―assigned to himself‖ the duty to ―clean up the trash that White people let
slide these days‖; defendant thought the White race had ―gotten soft over the years
and people like Swartz‖ would have to be ―dealt with‖; defendant told inmate C
his ―mission in prison was to take care of scum like Swartz‖; defendant could not
understand ―why the White race was allowing Swartz to live‖; defendant thought
it was the responsibility of White people to ―take care of‖ child molesters;
defendant told inmate P he was targeting child molesters, Blacks, and ―rats,‖ and
the gene pool should be cleansed of all persons with any kind of defect, a ―sort of
Hitler concept‖; defendant told Dixon that in order to earn the respect of ―the
woods‖ in the building, Dixon would have to stab inmate Dennis, who had
purchased drugs from an inmate of another race; Dixon refused to stab Dennis;
defendant wanted to beat a Muslim to death; and the prison population was self-
21
segregated by race, and each race was responsible for dealing with its own ―rats‖
or pedophiles.
Defendant argues that any motivation he may have had to commit the
charged offenses was limited to his desire to kill child molesters, that evidence of
his desire to kill child molesters was not evidence he was a racist, and that any
evidence showing him to be a racist was irrelevant, inflammatory, and prejudicial.
He argues that evidence creating the image of him as a White racist permeated the
prosecution‘s case, skewed the jury‘s decisionmaking process to his detriment, and
should not have been admitted.
―Only relevant evidence is admissible (Evid. Code, §350; [citations]), and,
except as otherwise provided by statute, all relevant evidence is admissible[.]
(Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)‖ (People v.
Crittenden, supra, 9 Cal.4th at p. 132.) ―Relevant evidence is defined in Evidence
Code section 210 as evidence ‗having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.‘ The
test of relevance is whether the evidence tends ‗logically, naturally, and by
reasonable inference‘ to establish material facts such as identity, intent, or motive.
[Citations.]‖ (People v. Garceau (1993) 6 Cal.4th 140, 177.)
Defendant placed all material issues in dispute by pleading not guilty. (See
People v. Roldan (2005) 35 Cal.4th 646, 705-706.) The evidence that defendant
was in charge of an association of White inmates at SVSP, that he assigned duties
to himself and others, and that the duties included actions designed to effectuate
his desire to ―clean up‖ the White race by eliminating child molesters and to
punish White inmates who associated with inmates of other races, was relevant in
the guilt phase of trial. This evidence tended logically to prove defendant
harbored the intent and motive to assault Dixon for not obeying his commands, to
assault Dennis because he purchased drugs from an inmate of another race, and to
22
kill Swartz for being a child molester. It also tended to prove defendant‘s prior
attitude toward the victims, which was a relevant factor in determining whether his
actions were deliberate and premeditated. (See People v. Quartermain (1997) 16
Cal.4th 600, 628.) That this evidence also revealed defendant to be a racist did not
render it inadmissible. Evidence tending to prove defendant was a eugenicist who
favored the supposed purity of the White race also tended to prove his motive and
intent to assault and kill individuals he deemed to be acting in ways contrary to his
ideal.
The court, therefore, did not err in admitting evidence that tended to show
defendant was a White supremacist and a racist.
For the first time on appeal, defendant raises the claim that the trial court‘s
ruling violated his rights under the First Amendment to the United States
Constitution. Assuming the claim was properly preserved for appeal (see People
v. Boyer, supra, 38 Cal.4th at p. 441), it fails on the merits.
Defendant argues that evidence of his membership in an association of
White inmates allowed the prosecution to imply he was evil. This evidence served
only to inflame the passions of the jury, he asserts, and resulted in a fundamentally
unfair trial. He relies on Dawson v. Delaware (1992) 503 U.S. 159, in which the
United States Supreme Court found constitutional error in the admission of a
stipulation that proved inmate Dawson was a member of the Aryan Brotherhood
prison gang and that the gang held White racist beliefs. In that case, the murder
did not involve any elements of racial hatred. The court held that because the
murder was not shown to be tied in any way to the Aryan Brotherhood, evidence
of Dawson‘s membership invited the jury to draw inferences that tended to prove
nothing more than his abstract beliefs, which were protected by the First
Amendment. (Id. at pp. 166-167.)
23
In contrast, evidence of defendant‘s membership in ―the woods‖ and his
beliefs regarding the superiority of his race tended to prove more than his
associations and abstract beliefs; its relevance lay in the circumstance that it
tended to establish his motives and mens rea for the assault on Dixon and the
murder of Swartz. The high court in Dawson v. Delaware, supra, 503 U.S. at
page 165, was careful to note that ―the Constitution does not erect a per se barrier
to the admission of evidence concerning one‘s beliefs and associations at
sentencing simply because those beliefs and associations are protected by the First
Amendment.‖ Because evidence of defendant‘s associations and statements
regarding race was relevant to issues in question, it was not made inadmissible
merely by the fact it was also protected by the First Amendment. The court,
therefore, did not violate defendant‘s First Amendment rights by admitting
evidence of his prison membership in an association of White supremacists.
Finally, defendant argues the admission of evidence of his White
supremacist ideas violated his right to due process and a fair trial because it was
irrelevant, inflammatory, and prejudicial. Assuming the claim was properly
preserved for appeal (see People v. Boyer, supra, 38 Cal.4th at p. 441), it fails on
the merits.
― ‗ ―[I]rrelevant information or inflammatory rhetoric that diverts the jury‘s
attention from its proper role or invites an irrational, purely subjective response
should be curtailed.‖ ‘ [Citation.]‖ (People v. Harris (2005) 37 Cal.4th 310, 351.)
―Such evidence violates the Fourteenth Amendment‘s due process clause when it
is so unduly prejudicial that it renders the trial fundamentally unfair.‖ (Ibid.) The
evidence challenged here revealed defendant‘s ideas about the White race and was
relevant to his motives to commit, and his mens rea in committing, the charged
offenses. It was relatively tame in nature, was limited to his philosophy rather
than any conduct in conformity with it, and did not include general White
24
supremacist rhetoric. Although it may have been disturbing to hear, evidence that
defendant thought the ―gene pool should be cleansed,‖ that his mission was to
―take care of scum‖ like Swartz, and that each race was responsible for ―dealing
with its own rats or pedophiles‖ was not so inflammatory as to divert the jury‘s
attention or invite an irrational response. The admission of this evidence did not
violate defendant‘s constitutional rights to due process or a fair trial.
Claim V. Instructional Error—CALJIC No. 3.20
At defendant‘s request, or with his acquiescence, the trial court instructed
the jury with CALJIC No. 3.20, a cautionary instruction regarding in-custody
informant witnesses. That instruction adopts the statutory language of section
1127a7 and informs the jury that it should view with caution and close scrutiny the
7
Section 1127a provides: ―(a) As used in this section, an ‗in-custody
informant‘ means a person, other than a codefendant, percipient witness,
accomplice, or coconspirator whose testimony is based upon statements made by
the defendant while both the defendant and the informant are held within a
correctional institution. [¶] (b) In any criminal trial or proceeding in which an in-
custody informant testifies as a witness, upon the request of a party, the court shall
instruct the jury as follows: [¶] ‗The testimony of an in-custody informant should
be viewed with caution and close scrutiny. In evaluating such testimony, you
should consider the extent to which it may have been influenced by the receipt of,
or expectation of, any benefits from the party calling that witness. This does not
mean that you may arbitrarily disregard such testimony, but you should give it the
weight to which you find it to be entitled in the light of all the evidence in the
case.‘ [¶] (c) When the prosecution calls an in-custody informant as a witness in
any criminal trial, contemporaneous with the calling of that witness, the
prosecution shall file with the court a written statement setting out any and all
consideration promised to, or received by, the in-custody informant. [¶] The
statement filed with the court shall not expand or limit the defendant‘s right to
discover information that is otherwise provided by law. The statement shall be
provided to the defendant or the defendant‘s attorney prior to trial and the
information contained in the statement shall be subject to rules of evidence.
[¶] (d) For purposes of subdivision (c), ‗consideration‘ means any plea bargain,
bail consideration, reduction or modification of sentence, or any other leniency,
(footnote continued on next page)
25
testimony of an ―in-custody informant,‖ defined as a person ―whose testimony is
based upon statements made by the defendant while both the defendant and the
informant are held within the correctional institution.‖ (§ 1127a, subd. (a);
CALJIC No. 3.20.) Specifically excluded from the statutory definition of ―in-
custody informant‖ are codefendants, percipient witnesses, accomplices, or
coconspirators. (Ibid.) The trial court identified inmates C, D, J, P, and R8 as in-
custody informants, and SVSP, Corcoran State Prison, and Pelican Bay State
Prison as correctional institutions.
Defendant argues the court erred in refusing his request to amend the
cautionary instruction to include in-custody percipient witnesses inmates A, F, and
G.9 He invokes the legal maxim inclusio unius est exclusio alterius (the inclusion
(footnote continued from previous page)
benefit, immunity, financial assistance, reward, or amelioration of current or future
conditions of incarceration in return for, or in connection with, the informant‘s
testimony in the criminal proceeding in which the prosecutor intends to call him or
her as a witness.‖
8
Inmate C testified he lived in the cell directly beneath that of defendant at
SVSP, and prior to the attack on Swartz he heard scraping sounds coming from
defendant‘s cell.
Inmate D testified he spoke with defendant following defendant‘s return to
SVSP after his attack on Dixon.
Inmate J, defendant‘s cellmate at Corcoran State Prison where defendant
was sent immediately following the attack on Swartz, testified to statements
defendant made regarding both attacks.
Inmate P, defendant‘s cellmate at Pelican Bay State Prison, testified to
defendant‘s desire to cleanse the White race and defendant‘s statements regarding
how he had stabbed Swartz.
Inmate R met defendant at Pelican Bay State Prison and testified to
statements defendant had made regarding both attacks.
9
Inmate A testified that moments before the fatal attack he was playing
dominoes with Swartz, and he saw and heard the attack as it happened.
Inmate F testified he was on the second tier at the time of the attack on
Swartz, and he heard and saw the attack as it happened.
(footnote continued on next page)
26
of one is the exclusion of another) (see Creutz v. Superior Court (1996) 49
Cal.App.4th 822, 829) to argue that by specifically limiting the application of the
cautionary instruction to inmates C, D, J, P, and R, the court implied that the
testimony of in-custody percipient witnesses inmates A, F, and G was to be
viewed as more credible, less in need of caution or close scrutiny, and therefore
more worthy of belief. He asserts the court, by limiting the cautionary instruction
to the in-custody informant witnesses, improperly enhanced the testimony of the
in-custody percipient witnesses, thereby depriving him of his right to a fair trial
under the Fifth and Fourteenth Amendments to the United States Constitution and
article I, section 16 of the California Constitution. Assuming this claim was
properly preserved for appeal (see People v. Boyer, supra, 38 Cal.4th at p. 441), it
lacks merit.
― ‗[T]he trial court normally must, even in the absence of a request, instruct
on general principles of law that are closely and openly connected to the facts and
that are necessary for the jury‘s understanding of the case.‘ [Citation.] In
addition, ‗a defendant has a right to an instruction that pinpoints the theory of the
defense . . . .‘ ‖ (People v. Roldan, supra, 35 Cal.4th at p. 715.) The court,
however, ― may properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or potentially confusing
[citation], or if it is not supported by substantial evidence [citation].‘‖ (People v.
Moon (2005) 37 Cal.4th 1, 30.)
An examination of the legislative history of section 1127a, which was
enacted in 1989 and formed the basis for cautionary instruction CALJIC No. 3.20,
(footnote continued from previous page)
Inmate G testified he saw and heard the attack on Swartz as it happened, and
he saw defendant shake while being searched.
27
reveals the Legislature made a deliberate and rational distinction between in-
custody percipient witnesses and in-custody informant witnesses. The Legislature
acted in response to a highly publicized case in Los Angeles in which a jailhouse
informant, through nefarious means and by posing on the jailhouse telephone as an
investigator, convinced law enforcement officers and investigators that he was in
legitimate need of confidentially held information about an ongoing criminal case.
He later used this information to testify falsely to having heard a ―confession‖ of
the defendant in the ongoing case, and received favorable treatment in his own
case in exchange for his testimony. The Legislature recognized that in-custody
informant witnesses differ in nature and character from in-custody percipient
witnesses. Section 1127a and CALJIC No. 3.20 specifically distinguish between
the two. In-custody informant witnesses have no personal knowledge of the
crime, but testify that a defendant made an inculpatory statement to them while in
proximity in a county jail or state prison, often in exchange for favorable treatment
by law enforcement. In-custody percipient witnesses, by contrast, like other
percipient witnesses, codefendants, accomplices, and coconspirators, testify on the
basis of personal knowledge of the crime. In-custody informant witnesses testify
to a defendant‘s confession of guilt or admission of criminal behavior, and such
evidence, if believed, carries great weight in the determination of guilt. In order to
lessen the possibility of any conviction being based on fabricated testimony, the
Legislature offered additional guidance to juries in criminal cases involving in-
custody informants. (See Assem. Com. on Public Safety, coms. on Assem. Bill
No. 278 (1989-1990 Reg. Sess.), 3d reading, as amended June 12, 1989.)
Defendant‘s proposed amendment to CALJIC No. 3.20 erased the distinctions
recognized by the Legislature and, hence, was properly refused by the trial court.
The trial court instructed the jury with CALJIC No. 2.20, which provides
that, in judging any witness‘s credibility, the jury was to consider, inter alia,
28
―anything that has a tendency reasonably to prove or disprove the truthfulness of
the testimony of the witness, including but not limited to . . . [¶] The extent of the
opportunity or ability of the witness to see or hear or otherwise become aware of
any matter about which the witness testified; [¶] The ability of the witness to
remember or to communicate any matter about which the witness has testified;
[¶] The character and quality of that testimony; [¶] The demeanor and manner of
the witness while testifying; [¶] The existence or nonexistence of a bias, interest,
or other motive; [¶] The existence or nonexistence of any fact testified to by the
witness; [¶] The attitude of the witness toward this action or toward the giving of
testimony; [¶] A statement previously made by the witness that is consistent or
inconsistent with his or her testimony; [¶] . . . [¶] [and] ―The witness‘ prior
conviction of a felony. . . .‖
The court also instructed with CALJIC No. 2.23, which informs the jury
that ―[t]he fact that a witness has been convicted of a felony, if this is a fact, may
be considered by you only for the purpose of determining the believability of that
witness. The fact of a conviction does not necessarily destroy or impair a
witness‘s believability. It is one of the circumstances that you may consider in
weighing the testimony of that witness.‖
Thus, the jury was adequately instructed on factors that might have affected
the strength and credibility of the percipient witnesses‘ testimony. Defendant cites
no legal authority or factual support for the proposition that the instructions
encouraged the jurors to give the testimony of the percipient witnesses special
credence or weight, and we find none.
29
Claim VI. Defendant’s Death Sentence Is Cruel and Unusual
Punishment Because It Is Based Primarily on Prior
Murders Committed When He Was a Juvenile
Section 190.3, factor (b) provides that, in determining whether to sentence
defendant to death or life imprisonment without the possibility of parole, the jury
may consider ―[t]he presence or absence of criminal activity by the defendant
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.‖ We have long held that prior violent
conduct committed while defendant was a juvenile may be admitted as evidence of
criminal activity that involved the use or attempted use of force or violence.
(People v. Roldan, supra, 35 Cal.4th at p. 737.) We have further explained that
the decision of the United States Supreme Court in Roper v. Simmons (2005) 543
U.S. 551, which held that the Eighth Amendment‘s prohibition against cruel and
unusual punishment precludes execution of an individual who committed capital
crimes while under the age of 18 years, says nothing about the propriety of
permitting a capital sentencing jury, trying an adult defendant, to consider the
defendant‘s prior violent conduct committed as a juvenile. (People v. Lee (2011)
51 Cal.4th 620, 648-649; People v. Taylor (2010) 48 Cal.4th 574, 653-654; People
v. Bramit (2009) 46 Cal.4th 1221, 1239.)
Defendant contends his case differs from the previous cases in which we
found no error in the consideration of prior juvenile violent conduct. Unlike
People v. Lee, supra, 51 Cal.4th at pages 648-649, which involved assault, battery,
and robbery, People v. Taylor, supra, 48 Cal.4th at pages 653-654, which involved
sexual assault, and People v. Bramit, supra, 46 Cal.4th at page 1239, which
involved robbery and assault, defendant‘s prior juvenile violent conduct involved
three brutal, unprovoked murders. But this difference does not compel us to
reconsider our prior decisions in favor of a rule in which no prior juvenile conduct
is admissible in the penalty phase of a capital trial. As we have previously noted,
30
Roper v. Simmons, supra, 543 U.S. 551, spoke only to the question of punishment
for juvenile offenses, while defendant‘s challenge ―is to the admissibility of
evidence, not the imposition of punishment.‖ (Bramit, at p. 1239.) That the
juvenile conduct here was more severe than the juvenile conduct at issue in our
prior cases does not alter this conclusion.
Defendant further asserts it was primarily because of his three prior
murders, rather than his having murdered a convicted child molester in prison, that
the jury returned a verdict of death after less than one and one-half hours of
deliberation. On this ground as well, he urges this court to reconsider our reading
of Roper v. Simmons, supra, 543 U.S. 551, and hold that here, where the prior
juvenile violent conduct is (assertedly) more heinous than the capital offense, the
juvenile conduct should not be admissible as a factor in aggravation.
Defendant‘s argument is both speculative and unpersuasive. As a formal
matter, contrary to defendant‘s assertions, the death sentence imposed was for his
commission, as an adult, of the capital offense of the first degree murder of
Leonard Swartz, with special circumstances of lying in wait and prior first degree
murder. Evidence of the three murders committed while a juvenile was, pursuant
to section 190.3, factor (b), introduced in aggravation to ―enable the jury to make
an individualized assessment of the character and history of . . . defendant to
determine the nature of the punishment to be imposed.‖ (People v. Grant (1988)
45 Cal.3d 829, 851.) In their determination of the appropriate punishment, the
jury could properly consider defendant‘s commission of three prior murders.
Without any evidence the jurors‘ sentencing decision was more influenced
by defendant‘s prior violent conduct than by the capital offense, defendant‘s claim
is purely speculative. The jurors may well have regarded the capital crime itself—
the premeditated, unprovoked killing of a fellow inmate by a life prisoner—as
egregious enough to warrant the death penalty. Moreover, any attempt to ground
31
the claim in evidence of the jurors‘ subjective reasoning processes would violate
Evidence Code section 1150. (People v. Collins (2010) 49 Cal.4th 175, 250.)
Defendant has not established that the use in aggravation of three prior murders he
committed as a juvenile rendered his death sentence for the charged in-prison
murder unconstitutional.
Claim VII. California’s Death Penalty Statute Is Unconstitutional
Defendant raises a number of facial constitutional challenges to California‘s
death penalty law, claims we have repeatedly rejected and find no persuasive
reason to reexamine.
As we recently observed in People v. Letner and Tobin (2010) 50 Cal.4th
99, 208, ― ‗[W]e reiterate that the death penalty statutes adequately narrow the
class of murderers eligible for the death penalty, are not impermissibly vague or
overbroad, and do not result in an ―arbitrary and capricious‖ or ―wanton and
freakish‖ penalty determination. [We] also have held that the statutes do not
require that the prosecution carry the burden of proof or persuasion at the penalty
phase, that the jury make written findings or reach unanimous decisions regarding
aggravating factors, or that the jury find beyond a reasonable doubt that (1) the
aggravating factors have been proved, (2) the aggravating factors outweigh the
mitigating factors, or (3) death is the appropriate sentence.‘ ‖ ―The United States
Supreme Court‘s recent decisions interpreting the Sixth Amendment‘s jury trial
guarantee (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127
S.Ct. 856]; United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621, 125
S.Ct. 738]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124
S.Ct. 2531]; Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct.
2428]; Apprendi v. New Jersey [(2000)] 530 U.S. 466) have not altered our
conclusions in this regard.‖ (People v. Whisenhunt (2008) 44 Cal.4th 174, 227.)
32
― ‗There is no violation of the equal protection of the laws as a result of the
statutes‘ asserted failure to provide for capital defendants some procedural
guarantees afforded to noncapital defendants.‘ ‖ (People v. Letner and Tobin,
supra, 50 Cal.4th at p. 208.)
Further, ―[t]he statutes are not invalid because they permit the jury to
consider in aggravation, under section 190.3, factor (b), evidence of a defendant‘s
unadjudicated offenses.‖ (People v. Letner and Tobin, supra, 50 Cal.4th at
p. 208.) ― ‗The use in the statutes, and in the standard jury instructions, of terms
such as ―extreme,‖ ―substantial,‖ ―reasonably believed,‖ and ―at the time of the
offense‖ in setting forth the mitigating factors does not impermissibly limit the
mitigation evidence or otherwise result in an arbitrary or capricious penalty
determination. The statutes, as translated into those standard jury instructions,
adequately and properly describe the process by which the jury is to reach its
penalty determination. There is no need to instruct the jury at the penalty phase
(1) regarding a burden of proof, except as to section 190.3, factors (b) and (c), or
the absence of a burden of proof, (2) regarding the meaning of the term
―mitigation,‖ (3) that mitigating factors can be considered only in mitigation,
(4) that if the mitigating evidence outweighs the aggravating evidence, the jury
must impose a sentence of life without the possibility of parole, or (5) that the jury
is not required to impose the death penalty even if it finds the aggravating
evidence outweighs the mitigating evidence. The trial court need not omit from
the instructions any mitigating factors that appear not to apply to the defendant‘s
case.‘ [Citation.] [¶] ‗There is no requirement that the trial court or this court
engage in intercase proportionality review when examining a death verdict. A
sentence of death that comports with state and federal statutory and constitutional
law does not violate international law or norms . . . .‘ ‖ (Id. at pp. 208-209.)
33
III. DISPOSITION
The judgment of the superior court is affirmed.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
HAERLE, J.*
*
Associate Justice, Court of Appeal, First Appellate District, Division Two,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
34
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Bivert
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S099414Date Filed: July 11, 2011
__________________________________________________________________________________
Court:
SuperiorCounty: Monterey
Judge: Wendy C. Duffy
__________________________________________________________________________________
Counsel:
Warren P. Robinson, under appointment by the Supreme Court, for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief AssistantAttorney General, Gerald A. Engler, Assistant Attorney General, Glenn R. Pruden and Alice B. Lustre,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Warren P. Robinson,15412 Caldas De Reyes
San Diego, CA 92128-4456
(858) 395-5027
Alice B. Lustre
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1167
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Docket Number: | Category: | Status: |
| Mon, 07/11/2011 | S099414 | Automatic Appeal | opinion issued |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Francisco Office Alice B. Lustre, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | Bivert, Kenneth Ray (Appellant) San Quentin State Prison P.O. Box D-85672 San Quentin, CA 94974 Represented by Warren P. Robinson Attorney at Law 15412 Caldas de Reyes San Diego, CA |
| Disposition | |
| Jul 11 2011 | Opinion: Affirmed |
| Dockets | |
| Jul 19 2001 | Judgment of death |
| Jul 26 2001 | Filed certified copy of Judgment of Death Rendered July 19, 2001. |
| Jul 26 2001 | Penal Code sections 190.6 et seq. apply to this case |
| Aug 9 2001 | Filed: appellant's application for appointment of counsel. (IFP form) |
| Nov 29 2001 | Record certified for completeness |
| May 8 2006 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Warren P. Robinson is hereby appointed to represent appellant Kenneth Ray Bivert for the direct appeal in the above automatic appeal now pending in this court. |
| May 17 2006 | Date trial court delivered record to appellant's counsel (19,648 pp. record) (see Cal. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days.) (Note: record was sent to appellant's counsel on 5-12-2006.) |
| May 18 2006 | Received: notice from superior court that 19,648 pp. record was sent to appellant's counsel on 5-12-2006. |
| May 18 2006 | Appellant's opening brief letter sent, due: April 27, 2007. (see Cal. Rules of Court, rule 36(c)(1)(A),(C)) |
| Jul 5 2006 | Counsel's status report received (confidential) from atty Robinson. |
| Aug 25 2006 | Counsel's status report received (confidential) from atty Robinson. |
| Oct 11 2006 | Compensation awarded counsel Atty Robinson |
| Oct 25 2006 | Compensation awarded counsel Atty Robinson |
| Oct 30 2006 | Counsel's status report received (confidential) from atty Robinson. |
| Dec 12 2006 | Received copy of appellant's record correction motion "Notice of Motion and Motion to Complete and Correct the Record on Appeal." (19 pp.) |
| Dec 12 2006 | Received: copy of appellant's motion to preserve evidence. (5 pp.) |
| Dec 22 2006 | Counsel's status report received (confidential) from atty Robinson. |
| Jan 10 2007 | Compensation awarded counsel Atty Robinson |
| Jan 24 2007 | Compensation awarded counsel Atty Robinson |
| Feb 26 2007 | Counsel's status report received (confidential) from atty Robinson. |
| Apr 16 2007 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Apr 17 2007 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief is extended to and including June 26, 2007. |
| Apr 18 2007 | Compensation awarded counsel Atty Robinson |
| Apr 26 2007 | Compensation awarded counsel Atty Robinson |
| May 1 2007 | Counsel's status report received (confidential) from atty Robinson. |
| Jun 11 2007 | Record certified for accuracy |
| Jun 18 2007 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Jun 20 2007 | Extension of time granted to August 27, 2007 to file appellant's opening brief. |
| Jun 27 2007 | Counsel's status report received (confidential) from atty Robinson. |
| Jul 25 2007 | Note: record arrived from superior court. |
| Aug 15 2007 | Appellant's opening brief filed (34,270 words; 156 pp) |
| Aug 24 2007 | Respondent's brief letter sent; due: December 13, 2007. (see Cal. Rules of Court, rule 8.630(c)(1)(B)) |
| Sep 27 2007 | Letter sent to: counsel advising record on appeal certified for accuracy filed this date. |
| Sep 27 2007 | Record on appeal filed 25 vols. of clerk's transcript (6,186 pp) and 70 vols. of reporter's transcripts (3,336 pp), ASCII disks; including material under seal. Clerk's Transcript includes 4,470 pp. of juror questionnaires. |
| Dec 10 2007 | Request for extension of time filed to file respondent's brief. (1st request) |
| Dec 12 2007 | Extension of time granted Good cause appearing, and based upon Deputy Attorney General Alice B. Lustre's representation that she anticipates filing the respondent's brief by January 11, 2008, counsel's request for an extension of time in which to file that brief is granted to January 11, 2008. After that date, no further extension is contemplated. |
| Jan 10 2008 | Compensation awarded counsel Atty Robinson |
| Jan 11 2008 | Respondent's brief filed (12,250 words; 40 pp) |
| Jan 14 2008 | Note: appellant's reply brief is due March 11, 2008. (see California Rules of Court, rule 8.630(c)(1)(D)) |
| Jan 23 2008 | Compensation awarded counsel Atty Robinson |
| Mar 3 2008 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Mar 7 2008 | Filed: supplemental declaration in support of extension request for appellant's reply brief. |
| Mar 18 2008 | Extension of time granted Good cause appearing, and based upon counsel Warren P. Robinson's representation that he anticipates filing the appellant's reply brief by September 30, 2008, counsel's request for an extension of time in which to file that brief is granted to May 12, 2008. After that date, only three further extensions totaling about 140 additional days are contemplated. |
| Apr 30 2008 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| May 2 2008 | Extension of time granted Good cause appearing, and based upon counsel Warren P. Robinson's representation that he anticipates filing the appellant's reply brief by September 30, 2008, counsel's request for an extension of time in which to file that brief is granted to July 11, 2008. After that date, only two further extensions totaling about 80 additional days are contemplated. |
| Jun 27 2008 | Request for extension of time filed (AA) to file appellant's reply brief. (3rd request) |
| Jul 2 2008 | Extension of time granted Good cause appearing, and based upon counsel Warren P. Robinson's representation that he anticipates filing the appellant's reply brief by August 10, 2008, counsel's request for an extension of time in which to file that brief is granted to August 11, 2008. After that date, no further extension is contemplated. |
| Jul 24 2008 | Appellant's reply brief filed (9,024 words; 41 pp.) |
| Jan 8 2009 | Compensation awarded counsel Atty Robinson |
| Jan 12 2009 | Received: Letter, dated January 8, 2009, from attorney Robinson, advising the court when he will be unavailable for oral argument. |
| Jan 28 2009 | Compensation awarded counsel Atty Robinson |
| Sep 28 2009 | Received: letter from attorney Warren Robinson, dated September 25, 2009, requesting that the court not schedule oral argument between February 16 and March 5, 2010, due to vacation plans. |
| Dec 1 2009 | Received: letter from attorney Warren Robinson, dated November 27, 2009, requesting that the court not schedule oral argument between April 1 and 19, 2010, due to vacation plans. |
| Jul 29 2010 | Received: letter from attorney Warren Robinson, dated July 27, 2010, advising the court of his vacations, and requesting that the court not schedule oral argument during those time periods. |
| Dec 10 2010 | Exhibit(s) lodged People's exhibits: 1, 2, 3, 5, 6, 9, 10A-10C, 12-14, 16A-B, 20-22, 24, 26-27, 28A-D, 29A-N, 30, 32, 37-49, 51-65, 67, 72, 74-84, 87-88; Defendant's exhibits: A-I, L, N, O, P; and Court's exhibits: A-I. |
| Jan 10 2011 | Received: letter from attorney Warren Robinson, dated January 6, 2011, requesting that the court not schedule oral argument between May 27 and June 13, 2011, due to vacation plans. |
| Mar 14 2011 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the first May calendar, to be held the week of May 2, 2011 in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Apr 6 2011 | Case ordered on calendar to be argued Tuesday, May 3, 2011, at 1:30 p.m., in San Francisco |
| Apr 7 2011 | Justice pro tempore assigned Hon. Paul R. Haerle First Appellate District, Division Two |
| Apr 12 2011 | Received: appearance sheet from Deputy Attorney General, Alice B. Lustre, indicating 30 minutes for oral argument for respondent. |
| Apr 14 2011 | Received: appearance sheet from Attorney at Law, Warren P. Robinson, indicating 30 minutes for oral argument for appellant. |
| Apr 14 2011 | Filed: focus issues letter from appellant, dated April 12, 2011. |
| Apr 14 2011 | Received: appellant's list of additonal authorities |
| Apr 18 2011 | Filed: by appellant, "Declaration of Proof of Service by Mail" for focus issues letter mailed on April 12, 2011. |
| Apr 19 2011 | Filed: respondent's focus issues letter, dated April 19, 2011 |
| Apr 22 2011 | Filed: by appellant's counsel, Declaration of Proof of Service by Mail on appellant for focus issues letter and additional authorities list for oral argument. |
| May 3 2011 | Cause argued and submitted |
| Jul 8 2011 | Notice of forthcoming opinion posted To be filed Monday, July 11, 2011 at 10 a.m. |
| Jul 11 2011 | Opinion filed: Judgment affirmed in full Majority Opinion by Werdegar, J. ----- joined by Cantil-Sakauye C.J., Kennard, Baxter, Chin, Corrigan and Haerle*, JJ. *Associate Justice, Court of Appeal, First Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. |
| Briefs | |
| Aug 15 2007 | Appellant's opening brief filed |
| Jan 11 2008 | Respondent's brief filed |
| Jul 24 2008 | Appellant's reply brief filed |
