Supreme Court of California Justia
Docket No. S045184
People v. Bonilla

Filed 6/18/07



Plaintiff and Respondent,






Defendant and Appellant.

Super. Ct. No. H-12210A

A jury convicted defendant Steven Wayne Bonilla of first degree murder

with murder-for-financial-gain and lying-in-wait special circumstances for the

1987 killing of Jerry Lee Harris. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(1),

190.2, former subd. (a)(15).)1 Bonilla’s first penalty phase trial ended in a hung

jury; at his second penalty phase trial, the jury returned a death verdict. On

automatic appeal, we affirm the judgment in its entirety.



Prosecution Evidence

Jerry Lee Harris was a San Francisco Bay Area entrepreneur. Harris and

Bonilla were longtime friends, and Bonilla occasionally assisted Harris with his


All further unlabeled statutory references are to the Penal Code.


business ventures. In particular, Bonilla invested in a Harris plant nursery and

rental business, Tiffany’s, and in a Harris rebar fabricating business, and managed

a Harris lounge, the Penthouse.

In 1986, Harris decided to open a Cupertino nightclub called Baritz. As he

had on some previous occasions, he borrowed $232,000 in seed money from

Bonilla’s mother. Bonilla supposedly could not formally become a partner in

Baritz until 1989 because of Department of Alcoholic Beverage Control

regulations, but in March 1987, Harris and Bonilla nevertheless signed an

agreement giving Bonilla an interim 40 percent stake in Baritz.

Baritz was quickly successful, and Bonilla began receiving $5,000 monthly

checks from its operating profits. However, Bonilla and Harris had a series of

disagreements over how much say Bonilla would have in Baritz’s operations, as

well as those of other Harris-owned restaurants and clubs. Harris directed Don

Baptist, Baritz’s landlord, who had access to its books because of the nature of the

lease agreement, to prevent Bonilla from accessing those books; Bonilla

complained to Baptist that he was being treated unfairly and sought access to

Baritz’s financial information to determine whether Harris was living up to their

partnership agreement. Harris and Bonilla argued again in August or September

1987 when Bonilla agreed to loan Harris $8,000, but the check he provided

bounced. In September and October 1987, Bonilla received no payments from


The prosecution presented details of what followed principally through the

testimony of Bradley George Keyes. In October 1987, Bonilla got in touch with

Keyes, an old Nevada acquaintance; explained that he had “something going” with

their mutual acquaintance, William Nichols; and arranged to meet with Keyes in

Elko, Nevada. There, he explained to Keyes that he had a business partner who

was treating him unfairly, but he could not take legal action because the partner


had doctored the books. Bonilla claimed the partner owed him more than

$1 million on a plant deal and was hiding nightclub profits he owed Bonilla.

Bonilla said the partner deserved to die and if he did, Bonilla would be able to take

over the partner’s businesses and skim tax-free money. As a result, “everybody

would be rich.”

Keyes then flew to the San Francisco Bay Area and met with Nichols.

Nichols explained that Bonilla’s business partner, Harris, was cheating Bonilla,

and Bonilla and Nichols were working on a way to kill Harris. Over the next few

days, Nichols and Keyes scouted Harris’s businesses and discussed ways to kill

him and dispose of the body. They failed to develop a concrete plan, and Bonilla

paid to fly Keyes back to Nevada, while Nichols returned home to Phoenix,

Arizona. Bonilla told Keyes to return when they had a plan worked out.

Days later, on or about October 12, Bonilla or Nichols wired Keyes money

to return to the Bay Area and the three met again. Bonilla explained he was

running out of money, so Harris needed to be killed soon. Once Harris was dead,

Bonilla would be able to push Harris’s wife, Susan, aside, take over Harris’s

businesses, and start skimming money. Bonilla believed that because Harris had

cheated many people, there would be many suspects if Harris died. Keyes and

Nichols spent more days trying to plan how to kill Harris, while Bonilla grew

increasingly impatient. One evening, Bonilla had dinner with Harris and his wife,

while Nichols and Keyes waited outside, but they decided not to grab Harris yet

because there were too many potential witnesses. With no plan in place, Keyes

again returned to Nevada and Nichols to Arizona, while Bonilla tried to figure out

how to lure Harris to a more secluded place so Keyes and Nichols could kill him.

On October 19, Keyes and Nichols returned for a third time and met with

Bonilla. The next day, Nichols explained the plan to Keyes: Bonilla would bring

Harris to a vacant office park in Pleasanton, purportedly to meet with a real estate


agent to see some commercial space for one of Harris’s businesses. Nichols

would pose as the agent, Keyes as a security guard. They would jump Harris, duct

tape and handcuff him, put him in Bonilla’s pickup truck, plant Harris’s car at an

airport in Sacramento to make it appear he had flown off, and dispose of Harris’s


Consistent with this plan, Bonilla arranged with Harris to have drinks and

then show him the office space. When they arrived at the deserted office park

parking lot after 8:30 p.m., Nichols and Keyes were there waiting. Keyes, playing

the part of a security guard, wrote down a few license plate numbers, then joined

Nichols, Bonilla, and Harris. Nichols suddenly sprayed Harris with Mace, and

Keyes grabbed Harris and fell to the ground with him. Bonilla walked off to move

the rental car Nichols had arrived in. Nichols and Keyes carried the struggling

Harris to Bonilla’s pickup truck and threw him in the back, then Nichols covered

Harris’s head in duct tape. Bonilla returned, helped Keyes start Harris’s car, and

told Keyes as Keyes pulled out to follow Nichols, who was driving the pickup

truck: “See you later, and be careful.”

Nichols and Keyes left Harris’s car in a Sacramento airport parking lot,

determined Harris had suffocated, and finally settled on a remote Nevada location

to dispose of his body. They removed his ring and the duct tape, dug a shallow

grave, and buried him.

The next morning, Susan Harris, concerned about her husband’s absence,

called Bonilla to ask if he had seen him. Bonilla replied, “No, why?” After Susan

pointed out that Bonilla had been with her husband the night before and then at an

office park, Bonilla replied, “Yes, at [the bar], why?” and “Yeah, in Pleasanton,

why?” He denied any knowledge of where Harris had gone after the office park

visit; they had gone their separate ways. When Harris’s brother Sandy asked


Bonilla about Harris’s whereabouts later that day, Bonilla indicated Harris had

taken off to a meeting after they met for drinks.

Within a week of Harris’s disappearance, Bonilla showed up at Baritz to

examine the financial records. However, he was unable to seize immediate control

of Harris’s businesses; instead, he and Susan Harris plunged into litigation.

In January 1988, a rock hunter found Harris’s body. In February 1988,

Harris’s car was found at the Sacramento airport. Authorities followed leads that

eventually led them to Keyes, who, after offering several shifting alibis, made a

deal with prosecutors that he would testify against Nichols and Bonilla and receive

a sentence no greater than three years in state prison. Over a period of five

months, Keyes cooperated by placing taped phone calls to Nichols and Bonilla to

obtain incriminating statements. Thereafter, Nichols and Bonilla were arrested

and tried jointly.

Defense Evidence

The defense focused on differences between Keyes’s trial testimony and

earlier statements he had made to the police and others. In addition, Bonilla

testified in his own defense and offered a slightly different version of events.

During initial statements to the Nevada police in March 1988, Keyes said

he met with Harris to intimidate him into signing over his businesses to Bonilla.

He denied knowing of any plan to murder Harris. He claimed to have left the

office park parking lot with Harris still alive. Keyes did not learn Harris was dead

until they got to Nevada, at which point Nichols explained things had gotten out of

hand. Keyes made similar statements to a bail bondsman friend near the time of

his arrest.

In April 1988, Keyes spoke with a church minister and again minimized his

role. He said he had helped rough up a guy who owed someone some money, then


went and sat in a car while two others continued to rough him up. They got

carried away and killed him. When the minister told him he did not believe him,

Keyes changed his story and said he was involved in the whole process, that they

had put duct tape on the man’s mouth, and he had died as a result. Months later,

Keyes reiterated to the minister that the killing had been unintentional. Keyes

made similar statements to an elder and a Bible study teacher at his church: he

was an enforcer and during the collection of funds someone had accidentally died.

Bonilla testified in his own defense. He said he ran Sunstate Tropicals, a

shell company that facilitated Tiffany’s, Harris’s plant business, by loaning

Tiffany’s money. Tiffany’s had repaid only some of the money and owed

Sunstate Tropicals approximately $1.2 million when Harris died. Bonilla provided

$50,000 of his mother’s money to acquire a stake in Harris’s rebar business, but

Harris instead treated the money as a loan and never repaid it.

Bonilla and Harris were partners in Baritz. Bonilla borrowed $232,000

from his mother to acquire a 40 percent stake. He received monthly $5,000

interim payments until they could determine what Baritz’s actual profits were. In

addition, Bonilla was to receive promissory notes reflecting the sums he had

advanced. In the summer of 1987, Bonilla discovered more than $100,000 was

missing from Baritz’s accounts. Harris at first admitted money was missing, then

later denied any was.

At the same time, Nichols, an old acquaintance, proposed that he and

Bonilla start a tile business; Nichols would run the business, while Bonilla would

provide startup capital. At the time, Bonilla had no money on hand to fund the

business. He told Nichols he could not invest because another business partner

was misappropriating funds. Nichols was upset and volunteered to talk directly

with the partner. Nichols also suggested Bonilla contact Keyes about joining the

tile business. Bonilla did so and explained nothing could happen until the problem


of the missing Harris funds was resolved. Keyes agreed to go to California to talk

with Nichols.

The first time Keyes and Nichols came to California, Bonilla spoke only

with Nichols, discussing ways to talk to Harris about the missing money.

The second time Nichols and Keyes came to California, the idea was that

they would talk to Harris and point out money was missing from Baritz. There

was no plan to harm Harris. Nichols and Keyes had a chance to confront Harris

after a dinner Bonilla had with Harris and his wife Susan, but elected not to

because Nichols did not want to talk to Harris in front of his wife.

Bonilla had found office space in Pleasanton he wanted to show Harris for

one of Harris’s businesses. This coincided with Nichols and Keyes being in town

for the third time, so Bonilla mentioned to Nichols that he was going to show

Harris a particular office complex. Bonilla expected Nichols and Keyes to be

there, but there was no plan to rough up or intimidate Harris, and Bonilla never

discussed what Keyes’s role might be. He did expect, however, that an agreement

regarding the missing money would be reached that night.

Concealing the true reason for the visit, Bonilla brought Harris to the office

park. Nichols and Keyes were there when Harris and Bonilla arrived. Bonilla saw

Keyes writing something on a pad, asked Nichols what Keyes was doing, heard a

commotion, and turned to see Keyes spraying something in Harris’s face. Keyes

and Harris began fighting, and Bonilla, afraid, got in his car and drove home. He

did not think Harris was dead.

That night, Nichols called and said there had been an accident and to come

pick up the rental car they had left at the office park. He heard Keyes in the

background warning Bonilla not to mention anyone’s name. A day or two later,

Nichols called and indicated Harris was dead. Thereafter, Bonilla lied to the FBI,

the police, and Susan and Sandy Harris because he was afraid of Keyes.


Defense counsel argued that Keyes’s statements and Bonilla’s testimony

established Bonilla had no plan to kill Harris and that he was used by Nichols,

who had a greater incentive to see Harris dead.


As noted, Bonilla’s first penalty phase trial ended in a hung jury and a

mistrial. At the second penalty phase trial, before a new jury, the prosecution

relied in part on the circumstances of the crime, and thus the prosecution and

defense reintroduced much of the same evidence presented at the guilt phase. The

evidence recounted here relates solely to the new evidence introduced during the

second penalty phase trial.

Prosecution Evidence

Aside from the circumstances of the crime, the prosecution’s penalty case

centered on evidence of numerous other Bonilla-led conspiracies to kill those who

had crossed him.

Bonilla bought a catering supplies business from Mel Carrera in 1978.

Shortly after closing the deal, he and Carrera began arguing over the amount of the

business’s debt Bonilla was to assume. Weeks later, Bonilla showed up at the

business; 30 minutes after he left, it burned to the ground. Bonilla’s wife Pat and

the business’s general manager, Lou Sans, were working in the front; they escaped

with their lives, but the business was a loss.

One month later, Bonilla and his wife separated. Bonilla began seeing

another woman, Mariana Weavers, and admitted to her he had wanted the fire set

for the insurance money. Pat began seeing Lou Sans. Bonilla expressed anger

toward Pat and Sans and told Weavers he would “kill anybody who got in his



After Bonilla and Pat divorced, Bonilla married Weavers and Pat married

Sans. Bonilla beat Weavers and on one occasion threw her down, placed a gun in

her mouth, and accused her of sleeping with another man.

In 1978 or 1979, Keyes met Nichols. At Nichols’s request, Keyes came to

the Bay Area, where he met Bonilla. Keyes was then taken to Auburn and

introduced to a friend of Nichols’s, a man named Willie. Keyes learned Bonilla

had hired Willie to track down and kill a man who was with Bonilla’s ex-wife and

who worked at a Sacramento newspaper, and he understood he was to help him.

Pat and Sans had moved to Auburn with Pat and Bonilla’s daughters, and Sans

now worked for the Sacramento Bee. Willie and Keyes did not follow through.

When Willie asked Bonilla for more money, Bonilla came, met with Willie and

Keyes, told them there had been a change of plan, and drove them to Mel

Carrera’s house in Nevada. He told them he wanted Carrera dead instead, gave

them money, and left. Again, Willie and Keyes did not follow through.

Nichols later contacted Keyes and asked him to return to Auburn to kill

Lou and Pat Sans. Nichols had a car bomb and said Bonilla would show Keyes

where the targets lived and wanted him to put it on their car. Keyes came to

Bonilla’s house in Cupertino, where Bonilla explained he would pick up his and

Pat’s daughters from the Sanses’, drop them off with relatives, then go to a party

to establish an alibi while Keyes attached the bomb to the Sanses’ car. Bonilla

provided a description of the car, a map, and instructions on how to access the

Sanses’ gated community. According to Weavers, Bonilla wanted the Sanses dead

in part because he resented Pat Sans’s ongoing control over Bonilla’s money. This

time, Keyes planted the bomb, but rigged it not to explode.

After Bonilla’s 1992 conviction, he was placed in a cell adjacent to Shelton

McDaniels. He spoke with McDaniels about his case. He said he had paid

someone to kill Keyes, but “the guy just took off with his money,” so he had no


money to kill Keyes. Because his money was tied up in lawsuits with Susan

Harris, he wanted to terrorize her or kill her so he could get the money to kill

Keyes and prevent him from testifying at the penalty phase retrial. McDaniels put

Bonilla in touch with Michael Cooperwood, an incarcerated colonel in the Black

Guerrilla Family prison gang, who agreed to kill Susan Harris for $35,000. Once

Harris was dead and Bonilla’s money was freed up, Bonilla would pay another

$50,000 to have Keyes killed.

Bonilla had his mother pay an initial $10,000. Part of the money was used

to bail out Weldon Wiggins, who tracked down Susan Harris and contacted her but

did not immediately kidnap or kill her. Harris, frightened by this encounter and a

subsequent threatening letter, went into hiding. No further efforts were made to

kill Susan Harris because Bonilla could not come up with any additional money.

The other principal focus of the penalty phase case was victim impact

testimony from Susan Harris, Jerry Harris’s daughter Tiffany, and friends talking

about Jerry Harris’s charitable acts.

Defense Evidence

Bonilla called three family members: his daughter Jennifer, his cousin

Linda Chapman, and his sister Kathy. They wanted Bonilla’s life spared and

described the Bonilla family as close. As Jennifer put it, “[I]f he dies, then part of

us dies, and then we have nightmares to live with for the rest of our lives.”

Bonilla also called an Alameda County District Attorney’s Office inspector who

had had numerous conversations with Keyes during the 1988 investigation. The

inspector did not think Keyes had been initially truthful during their conversations

about the crime.


Codefendant Nichols’s Evidence

Nichols took the stand for the first time during his penalty phase defense.

He described himself as a “collector” who settled money disputes between

criminals through intimidation or force. He never killed anyone. He took money

from Bonilla to kill Lou Sans, but he never intended to do so. He also took money

from Bonilla to kill Jerry Harris, but again he had no intention of actually killing

Harris. Harris’s death was an accident; Nichols heard Harris banging in the back

of the truck on the way to Sacramento and was surprised to find him dead when

they arrived there. He expressed remorse for Harris’s death.


Bonilla and Nichols were each charged with first degree murder with two

special circumstances, murder for financial gain and murder while lying in wait.

They were tried jointly. In April 1992, a jury convicted each defendant of first

degree murder and found both special circumstances true. The jury was unable to

reach a verdict on penalty for either defendant.

Bonilla and Nichols were retried before a new penalty phase jury in 1994.

This time, the jury returned a verdict of death against Bonilla, but again could not

reach a verdict for Nichols. The prosecution abandoned further attempts to seek

the death penalty against Nichols, who was sentenced to life in prison without

possibility of parole.



A. Flight Instruction (CALJIC No. 2.52)

The trial court instructed the jury with the standard instruction covering use

of a defendant’s flight as evidence of guilt. (See § 1127c [requiring instruction


where prosecution relies on flight as evidence of guilt].)2 Bonilla argues this was

error because there was no substantial evidence he fled; at most, the evidence

showed only that codefendant Nichols, who drove to Sacramento and then Nevada

immediately after the murder, did so.

“In general, a flight instruction ‘is proper where the evidence shows that the

defendant departed the crime scene under circumstances suggesting that his

movement was motivated by a consciousness of guilt.’ ” (People v. Bradford

(1997) 14 Cal.4th 1005, 1055, quoting People v. Ray (1996) 13 Cal.4th 313, 345;

see also People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) Evidence that a

defendant left the scene is not alone sufficient; instead, the circumstances of

departure must suggest “a purpose to avoid being observed or arrested.” (People

v. Crandell (1988) 46 Cal.3d 833, 869; accord, People v. Jurado (2006) 38 Cal.4th

72, 126; Bradford, at p. 1055.) To obtain the instruction, the prosecution need not

prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a

jury could find the defendant fled and permissibly infer a consciousness of guilt

from the evidence. (See People v. Turner (1990) 50 Cal.3d 668, 694-695.)

The evidence supported such findings and inferences here. There is no

dispute Bonilla immediately left the scene. Moreover, he did so under

circumstances that could have given rise to an inference of consciousness of guilt:

when Harris was attacked, Bonilla, by his own admission, did not call out to him,

attempt to aid him, or call for or go for assistance (acts that might have led to


The instruction provided: “The flight of a person immediately after the

commission of a crime, or after he is accused of a crime, is not sufficient in itself
to establish his guilt, but is a fact which, if proved, may be considered by you in
the light of all other proved facts in deciding the question of his guilt or innocence.
The weight to which such circumstance is entitled is a matter for the jury to
determine.” (CALJIC No. 2.52.)


Bonilla’s detection at the scene or otherwise connected him with the attack). The

jury could attribute an innocent explanation to his conduct, but it could also infer

that his departure and the circumstances thereof were consistent with and

supported the prosecution’s theory—that Bonilla planned and intended the attack

on Harris—and were inconsistent with Bonilla’s theory—that the attack was a

complete surprise about which he had no prior guilty knowledge. (See People v.

Jurado, supra, 38 Cal.4th at p. 126 [failure to use call box to summon assistance at

crime scene before leaving supported flight instruction].) Consequently, it was not

error to give a flight instruction.

B. Consciousness of Guilt Instruction (CALJIC No. 2.03)

The prosecution argued Bonilla’s October 1987 statements to Susan and

Sandy Harris, denying knowledge of Jerry Harris’s whereabouts, reflected a

consciousness of guilt: if Bonilla truly was innocent, why did he not tell Susan or

Sandy Harris that he had seen Jerry Harris being assaulted by Nichols and Keyes?

The jury was then instructed with a consciousness of guilt instruction.3 Bonilla

argues this instruction is impermissibly argumentative; consequently, defense

counsel alone, rather than the trial court, should have been permitted to decide

whether the instruction would be given; and the giving of the instruction violated

his rights to due process, a jury trial before a properly instructed jury, and a fair


The instruction provided: “If you find that before this trial a defendant

made a willfully false or deliberately misleading statement concerning the crime
for which he is now being tried, you may consider such statement as a
circumstance tending to prove a consciousness of guilt. However, such conduct is
not sufficient by itself to prove guilt, and its weight and significance, if any, are
matters for your determination.” (CALJIC No. 2.03.)


and reliable capital trial. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art.

I, §§ 7, 15, 16, 17.)4

As Bonilla acknowledges, we have repeatedly rejected this argument.

(E.g., People v. Jurado, supra, 38 Cal.4th at pp. 125-126; People v. Benavides,

supra, 35 Cal.4th at p. 100; People v. Kipp (1998) 18 Cal.4th 349, 375; People v.

Kelly (1992) 1 Cal.4th 495, 531-532.) Bonilla nevertheless asks us to reconsider

these decisions in light of People v. Mincey (1992) 2 Cal.4th 408, 437, which he

contends rejected as argumentative an instruction materially identical to CALJIC

No. 2.03. Bonilla is correct that the rejected instruction in Mincey was structurally

identical to CALJIC No. 2.03: both contained the propositional structure “If

[certain facts] are shown, then you may [draw particular conclusions].” But it was

not the structure that was problematic in Mincey. Rather, it was the way the

proposed instruction articulated the predicate “certain facts”: “If you find that the

beatings were a misguided, irrational and totally unjustified attempt at discipline

rather than torture as defined above, you may . . . .” (Mincey, at p. 437, fn. 5,

italics added.) This argumentative language focused the jury on the defendant’s

version of the facts, not his legal theory of the case; this flaw, not the generic

“if/then” structure, is what caused us to approve the trial court’s rejection of the

instruction. (Id. at p. 437.) Any parallels between that instruction and CALJIC


The People contend this argument and various of Bonilla’s other challenges

to the jury instructions (CALJIC Nos. 2.01 and 8.81.15, post, at pts. II.B. and
I.C.2.) are forfeited because Bonilla failed to object at trial. However, section
1259 permits appellate review to the extent any erroneous instruction “affected
[Bonilla’s] substantial rights”; thus, to the extent any claims of instructional error
are meritorious and contributed to Bonilla’s conviction and death sentence, they
are reviewable. (People v. Prieto (2003) 30 Cal.4th 226, 247; see People v.
(2005) 35 Cal.4th 69, 100.) We thus may assess each claim on its


No. 2.03 are thus immaterial. (People v. Nakahara (2003) 30 Cal.4th 705, 713.)

We adhere to our prior decisions rejecting the argument that CALJIC No. 2.03 is

impermissibly argumentative.

C. Lying-in-wait Special Circumstance

The jury found true the special circumstance that “[t]he defendant

intentionally killed the victim while lying in wait.” (§ 190.2, former subd. (a)(15),

added by Prop. 7, § 6, as approved by voters, Gen. Elec. (Nov. 7, 1978).) Bonilla

challenges the sufficiency of the evidence supporting this special circumstance,

the adequacy of the instructions on it, and its constitutionality. We reject each set

of contentions in turn.

1. Sufficiency of the evidence

The lying-in-wait special circumstance requires proof of “ ‘ “an intentional

murder, committed under circumstances which include (1) a concealment of

purpose, (2) a substantial period of watching and waiting for an opportune time to

act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim

from a position of advantage.” ’ ” (People v. Hillhouse (2002) 27 Cal.4th 469,

500.) Bonilla contends the evidence at trial was insufficient in three regards: it

failed to show (1) he personally killed Harris; (2) there was a substantial period of

watching and waiting; and (3) the killing occurred during or immediately after the

period of watching and waiting.

The first argument rests on a misapprehension of the law. While it is true

the prosecution failed to adduce any evidence that Bonilla, as opposed to

coconspirators Nichols and Keyes, personally killed Harris, it was not required to

do so. At the time of Harris’s murder, section 190.2, former subdivision (b)

extended death eligibility to those who aid and abet a lying-in-wait special

circumstance murder: “Every person whether or not the actual killer found guilty


of intentionally aiding, abetting, counseling, commanding, inducing, soliciting,

requesting, or assisting any actor in the commission of murder in the first degree

shall suffer death or confinement in state prison for a term of life without the

possibility of parole, in any case in which one or more of the special

circumstances enumerated in paragraph[] . . . (15) [the lying-in-wait special

circumstance] . . . of subdivision (a) of this section has been charged and specially

found . . . true.” (§ 190.2, former subd. (b), added by Prop. 7, § 6, as approved by

voters, Gen. Elec. (Nov. 7, 1978), italics added.)5

Bonilla argues that even so, the lying-in-wait special circumstance

specifically requires that “the defendant” kill the victim (§ 190.2, former subd.

(a)(15)); thus, it can be found true for a given defendant only when he is the actual

killer; and therefore, the liability-expanding provisions of section 190.2, former

subdivision (b), which require a special circumstance to be found true, can never

apply. This interpretation would render the express inclusion of lying in wait

among the special circumstances covered by former subdivision (b) a nullity. We

decline to attach special significance to the choice of the words “the defendant,” as

opposed to “the killer” or “the murderer,” where to do so would negate in whole or

in part another statutory provision. Had murder by lying in wait been intended to

be omitted from the list of special circumstances that could extend to aiders and

abettors, former subdivision (a)(15) would have been excluded from the list in

former subdivision (b), just as the prior-murder-conviction special circumstance

(§ 190.2, subd. (a)(2)) was.


The same principle is carried forward today in section 190.2, subdivision



Bonilla’s second and third arguments build on this same misapprehension

of the law. Bonilla argues that he did not engage in a substantial period of

watchful waiting and that Harris was not killed during or immediately after any

period in which Bonilla was concealing his purpose and watchfully waiting. But

the issue is not whether Bonilla killed Harris while lying in wait; rather, the issue

is whether Bonilla aided and abetted Harris’s killing, and whether the actual killers

killed Harris while (or immediately after) lying in wait. Bonilla does not suggest

there was insufficient evidence he aided and abetted Harris’s death, and he

expressly concedes that based on the evidence at trial one can “make[] a plausible

case that Nichols and Keyes killed Harris while lying-in-wait.” Given this

concession—one overwhelmingly supported by the evidence at trial6—his claims

fail. The jury could conclude that Bonilla aided and abetted Harris’s killing, with

the intent that Harris die, and thus that he too was guilty of the lying-in-wait

special circumstance.

2. Constitutionality of the lying-in-wait jury instruction (CALJIC

No. 8.81.15)

The jury was instructed with a modified version of the standard CALJIC

No. 8.81.15 instruction regarding the elements of the lying-in-wait special

circumstance. Bonilla contends this instruction violated his due process and

Eighth Amendment rights because (1) it failed to require that the jury find he

personally lay in wait and killed Harris, and could have been satisfied solely by a


The evidence presented permitted the jury to conclude this case was a

classic lying-in-wait special-circumstance murder. Bonilla took Harris to a near-
deserted location at night, where Bonilla’s coconspirators, Nichols and Keyes,
waited to ambush Harris. Nichols and Keyes posed as a real estate agent and a
security guard, waited for an opportune moment to catch Harris unawares, then
attacked and killed him.


finding that Nichols did so; (2) it provided contradictory and confusing

descriptions of the time elements associated with the special circumstance; and

(3) it provided contradictory and confusing descriptions of the concealment

elements associated with the special circumstance.

All three claims fail. The instruction did not require that Bonilla personally

kill Harris or that he personally lie in wait for Harris, but this was correct as a

matter of law: as discussed above, the special circumstances in section 190.2

apply equally to those who are liable for first degree murder only as an aider and

abettor, provided they have the intent to kill. (§ 190.2, former subd. (b); see

People v. Anderson (1987) 43 Cal.3d 1104, 1142.) Thus, the jury properly could

find the special circumstance true based on evidence that Bonilla, with the intent

to kill, aided and abetted Nichols, who lay in wait for and murdered Harris.

Nor was the instruction contradictory as to the time element required.

Bonilla objects that the instruction defined that element in materially different

ways, on the one hand indicating that lying in wait “need not continue for any

particular period of time provided that its duration is such as to show a state of

mind equivalent to premeditation or deliberation” where another instruction

indicated premeditation could be accomplished in a “short period of time,” and on

the other requiring proof of “a substantial period of watching and waiting.” We

previously have concluded an instruction that conveys both that a defendant must

lie in wait at least long enough to premeditate and deliberate and that he must do

so for a not insubstantial period of time is not unconstitutionally imprecise. (See

People v. Stevens (June 4, 2007, S034704) __ Cal.4th ___, ___ [pp. 24-25];

People v. Edwards (1991) 54 Cal.3d 787, 823, 845.) Such an instruction

accurately reflects the elements of the special circumstance as defined in People v.

Morales (1989) 48 Cal.3d 527, 557. As we have interpreted it in Morales and

subsequent cases, the lying-in-wait special circumstance requires no fixed,


quantitative minimum time, but the lying in wait must continue for long enough to

premeditate and deliberate, conceal one’s purpose, and wait and watch for an

opportune moment to attack. (See, e.g., People v. Sims (1993) 5 Cal.4th 405, 433-

434.) The instruction correctly conveyed this.

Finally, the instruction was not contradictory or confusing in its explanation

of the concealment required. The instruction required “concealment by ambush or

by some other secret design to take the other person by surprise even though the

victim is aware of the murderer’s presence,” but clarified that concealment of

purpose alone was not enough; there must also be “a substantial period of

watching and waiting for an opportune time to act” and “immediately thereafter, a

surprise attack . . . from a position of advantage.” Again, these statements are

consistent: A person may satisfy the requirement by concealing both his purpose

and presence, or only his purpose, not his presence, so long as he also watches and

waits for a substantial period and then launches a surprise attack from a position of

advantage. (See People v. Stevens, supra, __ Cal.4th at p. ___ [pp. 24-25].)

3. Constitutionality of the lying-in-wait special circumstance

Finally, Bonilla challenges the lying-in-wait special circumstance as

unconstitutional under the Eighth Amendment to the United States Constitution

because it fails to meaningfully narrow the pool of death-eligible crimes and select

out crimes that are genuinely deserving of a greater sentence, extending, rather, to

virtually all lying-in-wait first degree murders. He acknowledges that we have

previously rejected this argument (see, e.g., People v. Gutierrez (2002) 28 Cal.4th

1083, 1148-1149; People v. Sims, supra, 5 Cal.4th at p. 434), but argues those

decisions are no longer applicable because Proposition 18 (as approved by voters,

Primary Elec. (Mar. 7, 2000)) amended the lying-in-wait special circumstance so


that its language now more closely follows the language used to define lying-in-

wait first degree murder. (See § 190.2, subd. (a)(15), Stats. 1998, ch. 629, § 2.)

Bonilla was independently death eligible under the murder-for-financial-

gain special circumstance. (§ 190, subd. (a)(1).) He does not challenge that

circumstance’s constitutionality. Consequently, we need not consider Bonilla’s

argument that the lying-in-wait special circumstance fails to adequately narrow the

pool of death-eligible crimes, as in this case the circumstance was superfluous for

purposes of death eligibility and did not alter the universe of facts and

circumstances to which the jury could accord aggravating weight. (See Brown v.

Sanders (2006) 546 U.S. 212, __ [126 S.Ct. 884, 893-894].) In addition, Harris

was killed before Proposition 18 took effect, and Bonilla’s jury was instructed

based on the language of former subdivision (a)(15). Consequently, we need not

consider the impact of Proposition 18 and express no opinion on its



A. Prosecutorial Misconduct: Vouching for Witness Credibility

During opening and closing argument at both the guilt and penalty phases,

the prosecutor referred to the terms of star witness Bradley Keyes’s plea

agreement, an agreement that required Keyes to testify truthfully. Bonilla now

argues these references constituted impermissible vouching, in violation of his

rights to due process and a fair and reliable capital trial. (U.S. Const., 6th, 8th &

14th Amends.; Cal. Const., art. I, §§ 7, 15, 17.) We conclude (1) Bonilla’s claims

are partially waived, and (2) they in any event fail on the merits because the

prosecutor’s arguments were no more than permissible comment about inferences

the jury could draw from evidence in the record.


During his guilt phase opening argument, the prosecutor read the terms of

Keyes’s plea agreement to the jury. The agreement repeatedly provided it was

contingent on Keyes’s truthfulness.7

During guilt phase closing argument, the prosecutor returned to the subject

of Keyes’s plea agreement and the circumstances under which it was entered. The

prosecution had a bird in the hand, Keyes; it had to choose between prosecuting

Keyes and letting two birds in the bush, Nichols and Bonilla, off the hook for lack

of evidence or “making a deal with the devil. But at least you are attempting to

bring to justice the persons that are involved in the case, all of them. [¶] . . .

[¶] He is lucky. Brad Keyes is lucky. He ought to be sitting here with these two.

He ought to be facing the same charges, but he is not. But the agreement says he


As read to the jury, the agreement provided in relevant part: “Bradley

George Keyes agrees to tell the absolute truth about his involvement with the
death of Jerry Harris;

“That Bradley George Keyes agrees to cooperate fully with law

enforcement authorities in the continuing investigation of the death of Jerry Lee

Bradley George Keyes agrees to testify in a court of law under oath fully

and truthfully about the events of the death of Jerry Lee Harris;

if . . . Bradley George Keyes testifies truthfully under oath in a court

of law about the events surrounding the death of Jerry Lee Harris, he will be
allowed to plead guilty to a charge of conspiracy to commit murder . . . and to a
charge of . . . accessory to murder.

“It is further understood between the parties that, if Bradley George Keyes

is not truthful about his involvement in the death of Jerry Lee Harris or does not
testify truthfully about his involvement or the involvement of others in the death
of Jerry Lee Harris, this agreement is rescinded and is null and void.

“It is understood that Bradley George Keyes will plead guilty to the above-

mentioned charges and will be sentenced to a maximum of up to three years in
state prison. . . .

Bradley George Keyes understands that this agreement is contingent upon

his being truthful and that, if he does not at any time tell the truth from this date
forward . . . this agreement is rescinded and is null and void
.” (Italics added.)


has got to testify truthfully, otherwise there is no deal. That is the trade-off.”

(Italics added.)

The prosecutor later recounted Keyes’s initial shifting stories and false

statements, then addressed his preliminary hearing testimony: “And then when he

gets to the preliminary hearing . . . . [h]e talks. He is consistent with regard to

three trips and things that are going on, but what he does reveal now is what really

was said during all of those meetings and trips. And they got to cross-examine

him about that. And what it really amounted to from his [perspective] is he has

got to testify under oath, otherwise his deal doesn’t work. It has got to be truthful.

[¶] You know, when he testified in front of Judge Margulies and still at that point

still denied, knowing about the plot, but when he gets to the preliminary hearing

where now it is crunch time and he resolves in his own mind that he has got to tell

the truth, the full truth, he goes that extra step and talks about things that were

said.” (Italics added.) And later: “Once we get into the court and Brad Keyes

testifies and they cross-examine the hell out of him, and his story holds up under

cross-examination because he was telling the truth about what happened, then we

get a shift.” (Italics added.) The prosecutor closed his summation by pointing

again to Keyes’s testimony: “There’s two theories you can reach for. You can

reach first degree murder under a lying in wait or premeditated theory. And they

both apply because they are both there. [¶] And it is clearly, based on what you

hear in these tapes and based upon what Brad Keyes said, it is a murder for hire,

murder for financial gain.”

During penalty phase opening argument, the prosecutor again read the

terms of Keyes’s agreement to the jury, including the fact the prosecutor had


personally signed it.8 Finally, during his closing argument, the prosecutor

addressed Keyes’s credibility: “You know, Keyes lied about his intent [to others

outside the courtroom]. There is no question about that, and you heard him testify

about that, but [defense counsel] want you to believe . . . that Brad Keyes was

spoon-fed all this information so that we could elevate this case beyond what it

was. [¶] Well, that is ludicrous, because one of the things they talk about is this

issue of cross-examination. You saw the stacks of transcripts from the preliminary

hearing, the first trial, and an equal size stack now with respect to all the questions

that were asked of Brad Keyes. And we know from everything we have heard in

this case there were three trips down there, as he says. [¶] You know [from]

everything we have heard in this case that they went to various different motels,

and he was able to remember which ones they went to. You know that there were

motel receipts showing where they stayed. We know there were rental cars used,

all the records show that. [¶] The thing he was not filling in were some of the

conversations, and he explained to you why. But you got them all on the tapes.

They are all in there talking about it, alibis, plans, how we were going to take

these businesses over and do all these other kind of stuff, and it is all right

there. . . . [¶] [Defense counsel] wanted to talk about pieces of paper with respect

to Brad Keyes. [¶] Here is a piece of paper. This is a piece of paper, his

agreement. He violates it, it is void. There is no question about that.” (Italics


To preserve a claim of prosecutorial misconduct during argument, a

defendant must contemporaneously object and seek a jury admonition. (People v.

Demetrulias (2006) 39 Cal.4th 1, 30-31; People v. Boyette (2002) 29 Cal.4th 381,


The plea agreement was admitted into evidence.


432; People v. Bradford (1997) 15 Cal.4th 1229, 1333.) Bonilla concedes he

never objected to any of the instances of alleged vouching during his guilt phase

trial. He nevertheless argues these omissions should be excused because (1) the

trial court overruled objections two years later, when counsel finally objected

during the second penalty phase trial, thereby demonstrating that any objections in

the earlier guilt phase would have been futile (see Boyette, at p. 432), and (2) this

case was close (see People v. Green (1980) 27 Cal.3d 1). We have never

expanded the futility exception to encompass a situation where, as here, the

defendant made a belated objection after forgoing multiple earlier opportunities to

object, and we decline to do so here. As for the “close case” exception, we

soundly repudiated it in the very case Bonilla cites (id. at pp. 27-34, overruling

People v. Berryman (1936) 6 Cal.2d 331), and we decline to resuscitate it here.

Accordingly, we hold Bonilla forfeited his guilt phase claims on appeal.

We reject Bonilla’s guilt and penalty phase claims on the merits as well. It

is misconduct for prosecutors to bolster their case “by invoking their personal

prestige, reputation, or depth of experience, or the prestige or reputation of their

office, in support of it.” (People v. Huggins (2006) 38 Cal.4th 175, 206-207.)

Similarly, it is misconduct “to suggest that evidence available to the government,

but not before the jury, corroborates the testimony of a witness.” (People v. Cook

(2006) 39 Cal.4th 566, 593.) The vice of such remarks is that they “may be

understood by jurors to permit them to avoid independently assessing witness

credibility and to rely on the government’s view of the evidence.” (Ibid.)

However, these limits do not preclude all comment regarding a witness’s

credibility. “ ‘ “[A] prosecutor is given wide latitude during argument. The

argument may be vigorous as long as it amounts to fair comment on the evidence,

which can include reasonable inferences, or deductions to be drawn therefrom.” ’ ”

(People v. Ward (2005) 36 Cal.4th 186, 215.) “[S]o long as a prosecutor’s


assurances regarding the apparent honesty or reliability of prosecution witnesses

are based on the ‘facts of [the] record and the inferences reasonably drawn

therefrom, rather than any purported personal knowledge or belief,’ her comments

cannot be characterized as improper vouching.” (People v. Frye (1998) 18 Cal.4th

894, 971; accord, Ward, at p. 215.)

The prosecutor’s challenged remarks all fall within this wide latitude. The

prosecutor read the contents of Keyes’s plea agreement during each opening

argument, but it was permissible to advise the jury of this information: “ ‘[W]hen

an accomplice testifies for the prosecution, full disclosure of any agreement

affecting the witness is required to ensure that the jury has a complete picture of

the factors affecting the witness’s credibility.’ ” (People v. Fauber (1992) 2

Cal.4th 792, 821,9 quoting People v. Phillips (1985) 41 Cal.3d 29, 47; accord,

People v. Frye, supra, 18 Cal.4th at p. 971.) His remaining remarks about Keyes’s

credibility during his two closing arguments were equally permissible. They fall


In Fauber, we concluded it was error not to exclude reference to a

provision reciting that the People would enter into the plea agreement only if they
decided the defendant was telling the truth. (People v. Fauber, supra, 2 Cal.4th at
p. 822.) Fauber is distinguishable, as there was no similar provision in Keyes’s
plea agreement; nothing in the agreement (including but not limited to the
prosecutor’s signature on it) indicated the People had or would make any
preliminary determination that Keyes was being truthful.

Nor do we agree with Bonilla’s contention that because Keyes’s agreement

was contingent on his telling the truth, its admission was error because a jury
would necessarily conclude that (1) the agreement had not yet been voided; (2) it
would have been voided if the prosecutor thought Keyes was lying; and (3) the
prosecutor therefore must think Keyes was telling the truth. The jury might
believe the prosecutor thought Keyes was being truthful, but there is no reason to
think it would have concluded the prosecutor had special information outside the
on which to base that belief, nor is there any reason to think this inference
would have led the jury to conclude it no longer needed to evaluate Keyes’s
credibility for itself.


into three categories: arguments that Keyes should be believed because he had an

incentive to tell the truth under the terms of his plea agreement; arguments he

should be believed because, despite extensive cross-examination, his preliminary

hearing and trial testimony were consistent; and arguments he should be believed

because other evidence in the record corroborated his testimony. These were

arguments from the evidence, suggesting reasonable inferences the jury could

draw that might lead it to credit Keyes’s testimony. They did not suggest the

prosecutor had personal knowledge of facts outside the record showing Keyes was

telling the truth. Nothing in the challenged remarks invited the jury to abdicate its

responsibility to independently evaluate for itself whether Brad Keyes should be

believed. There was no prosecutorial misconduct.

B. Circumstantial Evidence Instruction (CALJIC No. 2.01)

At both the guilt and penalty phases, the jury was instructed with CALJIC

No. 2.01, a standard instruction on the treatment of circumstantial evidence. The

last paragraph of the instruction provided: “If, on the other hand, one

interpretation of such evidence appears to you to be reasonable and the other

interpretation to be unreasonable, you must accept the reasonable interpretation

and reject the unreasonable.” Bonilla contends this instruction violated his state

and federal due process rights, jury trial rights, and right to a reliable capital trial

(U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17)

because (1) it compelled the jury to accept any reasonable interpretation of the

evidence, and thus convict him based on a standard of proof of less than beyond a

reasonable doubt, and (2) it impermissibly shifted the burden of proof to Bonilla

by granting the prosecution a rebuttable presumption that any reasonable

interpretation of the evidence it proffered was correct unless Bonilla could

produce a competing alternate reasonable interpretation.


We have repeatedly rejected both arguments. CALJIC No. 2.01 does not

alter the burden of proof, nor does it create a mandatory presumption of guilt.

(E.g., People v. Koontz (2002) 27 Cal.4th 1041, 1084-1085; People v. Kipp, supra,

18 Cal.4th at pp. 374-375; People v. Crittenden (1994) 9 Cal.4th 83, 144.) Bonilla

offers no persuasive reason to reconsider our settled interpretation of CALJIC No.

2.01, and we decline to do so.


A. Failure to Strike Jurors for Cause

Bonilla contends the trial court erred by refusing to strike for cause two

prospective jurors, James B. and Robert F., who he contends indicated they would

automatically vote for death if first degree murder were proven.

“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.”

(People v. Weaver (2001) 26 Cal.4th 876, 910; accord, People v. Crittenden,

supra, 9 Cal.4th at pp. 120-121.) However, a “juror may be challenged for cause

based upon his or her views concerning capital punishment only if those views

would ‘prevent or substantially impair’ the performance of the juror’s duties as

defined by the court’s instructions and the juror’s oath.” (Crittenden, at p. 121,

quoting Wainwright v. Witt (1985) 469 U.S. 412, 424.)

“ ‘Assessing the qualifications of jurors challenged for cause is a matter

falling within the broad discretion of the trial court. [Citation.] The trial court

must determine whether the prospective juror will be “unable to faithfully and

impartially apply the law in the case.” [Citation.] A juror will often give

conflicting or confusing answers regarding his or her impartiality or capacity to

serve, and the trial court must weigh the juror’s responses in deciding whether to


remove the juror for cause. The trial court’s resolution of these factual matters is

binding on the appellate court if supported by substantial evidence. [Citation.]

“[W]here equivocal or conflicting responses are elicited regarding a prospective

juror’s ability to impose the death penalty, the trial court’s determination as to his

true state of mind is binding on an appellate court. [Citations.]” [Citation.]’ ”

(People v. Boyette, supra, 29 Cal.4th at p. 416; accord, People v. Moon (2005) 37

Cal.4th 1, 14.)

To preserve an objection to the trial court’s failure to excuse a juror for

cause, a defendant must (1) exercise a peremptory challenge against the juror in

question, (2) exhaust all peremptories, and (3) express dissatisfaction with the jury

as finally empanelled. (People v. Ramirez (2006) 39 Cal.4th 398, 448; People v.

Avila (2006) 38 Cal.4th 491, 539; People v. Weaver, supra, 26 Cal.4th at pp. 910-

911; People v. Crittenden, supra, 9 Cal.4th at p. 121.) It is undisputed Bonilla

exercised peremptories against both James B. and Robert F. and eventually

exhausted both his individual and joint peremptories, but the People contend

Bonilla forfeited his claim by failing to adequately express dissatisfaction.

The record is ambiguous. After the jury was selected, counsel for Nichols

reiterated that various challenges for cause had been denied; that he had sought

additional peremptories; and that, had he had additional peremptories, he would

have used them on one or more jurors who were ultimately empanelled. He

concluded: “So the record should reflect I object to the panel as chosen, and I

made every attempt to obtain additional challenges when I exhausted my

individual and joint challenges.” Counsel for Bonilla added only the following:

“For the record, we used two challenges. One on Mr. [F.] and one on Mr. [G.]

They are the ones I called to the Court’s attention, both of whom have [vacations]

that [conflict] with our trials.”


We need not decide whether this ambiguous statement was intended to

piggyback on Nichols’s counsel’s objections and express similar dissatisfaction

with the final composition of the jury. Even if it were not, and Bonilla’s claims

consequently might be subject to a procedural bar, we have acknowledged that the

law on the need to express dissatisfaction was in a state of flux until late 1994,

after Bonilla’s mid-1994 penalty retrial jury selection. (See People v. Boyette,

supra, 29 Cal.4th at p. 416; People v. Weaver, supra, 26 Cal.4th at p. 911.) On

that basis, we declined to enforce a procedural bar in Boyette and Weaver, and we

do so again here.

On the merits, the People do not defend the trial court’s failure to excuse

Prospective Jurors James B. and Robert F., arguing instead that this case is

analogous to People v. Boyette, supra, 29 Cal.4th at pages 417-419, in which we

found error in the trial court’s refusal to excuse a juror for cause, but ultimately

found the error harmless. Without deciding whether there was error, we agree

Bonilla has failed to demonstrate prejudice from the refusal to excuse James B.

and Robert F.

Because Nichols and Bonilla exercised joint peremptory challenges against

James B. and Robert F., they did not sit on the jury. The harm from any

theoretical error was thus confined to the loss of additional peremptory challenges.

(See People v. Avila, supra, 38 Cal.4th at p. 540; People v. Yeoman (2003) 31

Cal.4th 93, 114.) “[T]he loss of a peremptory challenge in this manner ‘ “provides

grounds for reversal only if the defendant exhausts all peremptory challenges and

an incompetent juror is forced upon him.” ’ ” (Yeoman, at p. 114.) Bonilla

contends he was subjected to just this harm because Juror Dario L. was seated

after Bonilla had exhausted all his peremptories. But while Bonilla asserts he


challenged Dario L. for cause, the record reflects no such challenge.10 Thus, as in

Yeoman, Bonilla was not forced to accept a juror incompetent under Wainwright v.

Witt, supra, 469 U.S. 412, and can show no prejudice. Accordingly, we reject his

argument that the refusal to excuse jurors for cause violated his constitutional


B. Wheeler/Batson Motions

During jury selection at the penalty phase retrial, Bonilla objected to the

prosecution’s use of peremptory challenges to excuse women, Hispanics, and

African-Americans. The trial court considered and rejected these motions,

concluding Bonilla had failed to make out a prima facie case that the prosecution

was engaged in impermissible discrimination. The jury as seated included no

African-Americans, one Hispanic, and five women.11

Bonilla renews these claims on appeal. We find no error.

Both the state and federal Constitutions prohibit the use of peremptory

challenges to exclude prospective jurors based on race or gender. (People v.

Wheeler (1978) 22 Cal.3d 258, 276-277; Batson v. Kentucky (1986) 476 U.S. 79,

97; J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 130-131.) Such a use of

peremptories by the prosecution “violates the right of a criminal defendant to trial

by a jury drawn from a representative cross-section of the community under article


Nor would there have been any basis for a Wainwright challenge;

Dario L.’s voir dire demonstrates no views so strong that they would have
impaired his ability to serve as a juror. Dario L. could vote for death, “but it
would have to be black and white. I mean, the evidence would have to be there.”
He could vote for life “because I have to be open to the evidence and the
circumstances and the judge’s instructions.” He had no leaning toward either a
life or death sentence.


Bonilla is a Spanish-American male.


I, section 16 of the California Constitution. [Citations.] Such a practice also

violates the defendant’s right to equal protection under the Fourteenth Amendment

to the United States Constitution.” (People v. Avila, supra, 38 Cal.4th at p. 541.)

There is a rebuttable presumption that a peremptory challenge is being

exercised properly, and the burden is on the opposing party to demonstrate

impermissible discrimination. (Purkett v. Elem (1995) 514 U.S. 765, 768; People

v. Griffin (2004) 33 Cal.4th 536, 554; People v. Johnson (2003) 30 Cal.4th 1302,

1309, overruled on other grounds in Johnson v. California (2005) 545 U.S. 162.)

To do so, a defendant must first “make out a prima facie case ‘by showing that the

totality of the relevant facts gives rise to an inference of discriminatory purpose.’

[Citation.] Second, once the defendant has made out a prima facie case, the

‘burden shifts to the State to explain adequately the racial [or gender] exclusion’

by offering permissible race-neutral [or gender-neutral] justifications for the

strikes. [Citations.] Third, ‘[i]f a race-neutral [or gender-neutral] justification is

tendered, the trial court must then decide . . . whether the opponent of the strike

has proved purposeful . . . discrimination.’ [Citation.]” (Johnson v. California, at

p. 168, fn. omitted.) The same three-step procedure applies to state constitutional

claims. (People v. Bell (2007) 40 Cal.4th 582, 596.)

Ordinarily, we review the trial court’s denial of a Wheeler/Batson motion

deferentially, considering only whether substantial evidence supports its

conclusions. (People v. Avila, supra, 38 Cal.4th at p. 541.) However, the United

States Supreme Court recently concluded that California courts had been applying

too rigorous a standard in deciding whether defendants had made out a prima facie

case of discrimination. (See Johnson v. California, supra, 545 U.S. at pp. 166-168

[holding the requirement a defendant show a “strong likelihood,” rather than a

“reasonable inference,” of discrimination was inconsistent with Batson and the

federal Constitution].) In cases where the trial court found no prima facie case had


been established, but whether it applied the correct “reasonable inference”

standard rather than the “strong likelihood” standard is unclear, “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. Bell, supra, 40 Cal.4th at

p. 597; accord, People v. Williams (2006) 40 Cal.4th 287, 310; see People v. Avila,

supra, 38 Cal.4th at pp. 553-554.)

In deciding whether a prima facie case was stated, we consider the entire

record before the trial court (e.g., People v. Yeoman, supra, 31 Cal.4th at p. 116),

but certain types of evidence may be especially relevant: “[T]he 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.” (People v. Wheeler, supra, 22

Cal.3d at pp. 280-281, fn. omitted.)

1. Use of peremptories against African-Americans

There were two African-Americans, Rosalind H. and David L., in the 78-

person juror pool; the prosecution struck them both. Nichols made a


Batson/Wheeler motion objecting to the removal of African-Americans, which

Bonilla joined. The trial court denied the motion, finding “no systematic

exclusion of Blacks.” We agree with the trial court that Bonilla made no prima

facie showing that the two prospective African-American jurors were challenged

because of their race.

Bonilla relies principally on the fact that all African-Americans—two of

two—were struck from the juror pool. It is true the prosecution used peremptories

to challenge both African-Americans in the pool, but “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.

Bell, supra, 40 Cal.4th at p. 598, quoting People v. Harvey (1984) 163 Cal.App.3d

90, 111; see also People v. Turner (1994) 8 Cal.4th 138, 167-168.)12 Bonilla does

not contend the prosecution’s questioning of Rosalind H. and David L. was

cursory or materially different from the questioning of non-African-American

jurors. Nor is Bonilla African-American.

Moreover, the information elicited in voir dire showed race-neutral reasons

for excusing both prospective jurors. Defense counsel freely conceded, “With


As we have previously explained, “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.’ [Citation.] But in drawing an inference of discrimination
from the fact one party has excused ‘most or all’ members of a cognizable
group”—as Bonilla asks the court to do here—“a court finding a prima facie case
is necessarily relying on an apparent pattern in the party’s challenges.” (People v.
, supra, 40 Cal.4th at p. 598, fn. 3.) Such a pattern will be difficult to discern
when the number of challenges is extremely small.


respect to Miss [H.] and Mr. [L.], Miss [H.] represents a close case, given the fact

her husband suffered a previous [felony] conviction and her father had been

convicted of killing his brother.” (See People v. Garceau (1993) 6 Cal.4th 140,

172 [recognizing peremptory may be used to excuse juror whose relatives have

had negative criminal justice system experiences].) The prosecutor relied on this,

as well as the fact Rosalind H. felt the death penalty was randomly imposed. As

for David L., the prosecutor cited questionnaire and voir dire answers that

suggested hesitation about the death penalty, as well as his perception that David

L. failed to respond when the court asked the prospective jurors whether they

could follow the law. The trial court correctly concluded no prima facie case of

group bias against African-Americans had been established.13

2. Use of peremptories against Hispanics

There were eight Hispanics in the juror pool. The prosecution struck three

Hispanic women, Gavina D., Carla G., and Nellie D. The defense struck four

Hispanic men. One Hispanic man served on the final jury. Nichols made a

Batson/Wheeler motion, objecting to the use of strikes against Hispanics, and

Bonilla joined the motion. The trial court denied it, concluding: “On this record, I

make a finding there was no attempt to discriminate or excuse Hispanics from this

jury.” Bonilla resumes this argument on appeal, contending that statistical


Though not strictly required, it is the better practice for the trial court to

have the prosecution put on the record its race-neutral explanation for any
contested peremptory challenge, even when the trial court may ultimately
conclude no prima facie case has been made out. This may assist the trial court in
evaluating the challenge and will certainly assist reviewing courts in fairly
assessing whether any constitutional violation has been established. (See People
v. Mayfield
(1997) 14 Cal.4th 668, 723-724 [even where no prima facie case
found, court may properly consider reasons actually given by the prosecutor].)


evidence—the prosecution’s exclusion of all three Hispanic women—alone

establishes a prima facie case. We disagree.

Preliminarily, the statistical frequency with which the prosecution struck

Hispanics from the juror pool provides no basis at all to infer discrimination.

Hispanics comprised approximately 10 percent of the pool (eight of 78), the

prosecution used 10 percent of its challenges on Hispanics (three of 30), and the

final jury was roughly 10 percent Hispanic (one of 12). Bonilla of course is a

Hispanic male, but the prosecution used not a single strike against any Hispanic

male, and a Hispanic man sat on the jury.

Perhaps because of this, Bonilla at various points frames his objection as

one against the exclusion of Hispanic women. Whether or not Hispanic women

constitute a separate cognizable group for Wheeler/Batson purposes, distinct from

both women generally and Hispanics generally,14 on these facts this shifting

approach smacks of data dredging. That is, given numerous (increasingly small)

subcategories and cross-categories of individuals, one is increasingly likely to

find, somewhere, a particular category for which one side or the other happens to

have stricken most or all of the (few) members of the group—not for reasons of

discrimination, but as a simple consequence of the laws of probability. In such

circumstances, the force of any corresponding inference of discrimination will

necessarily be weakened. Moreover, while it so happens the prosecution’s use of

peremptories resulted in the exclusion of all three Hispanic women, defining the

relevant category in this way means Bonilla is no longer a member of the relevant

group and no longer benefits from whatever force his group membership would


We have assumed as much. (People v. Garceau, supra, 6 Cal.4th at

p. 171.)


otherwise have had in supporting an inference of discrimination. The record

further indicates that for one of the three Hispanic women, Nellie D., the

prosecutor did not realize she was Hispanic. Where a prosecutor is unaware of a

prospective juror’s group status, it logically follows he cannot have discriminated

on the basis of that status. (See People v. Barber (1988) 200 Cal.App.3d 389,

394.) Bonilla offers no reason, beyond the ratio of Hispanics struck to those in the

juror pool, to conclude the prosecutor discriminated against Hispanics or Hispanic

women in his use of peremptories, and the record amply supports the trial court’s

conclusion that he failed to make out a prima facie case of group bias against


3. Use of peremptories against women

The juror pool included 48 men and 30 women. The prosecution used 20

strikes on women (and 10 on men), while the defense used five strikes on women

(and 25 on men). As a result, the final jury included seven men and five women.

Nichols made numerous Wheeler challenges to the prosecution’s striking of

women, and midway through jury selection Bonilla indicated he joined in

Nichols’s Wheeler motions. The trial court denied the motions without seeking

further explanation from the prosecution for its strikes, implicitly concluding the

defense had not made out a prima facie case of group bias against women.

The People argue Bonilla failed to preserve objections to all but eight of the

women the prosecution struck. We disagree. As the People acknowledge, during

a recess in jury selection to address Wheeler/Batson issues, Bonilla joined in

Nichols’s pending Wheeler/Batson motions (which then included challenges to the

use of eight strikes on women). The prosecution sought to preclude any further

interruption of jury selection, not wanting defense counsel to engage in speaking

motions that would highlight for the jurors their concerns the prosecution was


discriminating, and offered to stipulate that all Wheeler/Batson objections would

be deemed preserved and could be taken up at the close of jury selection. The trial

court was unsatisfied with this approach, which would make it more difficult for it

to track and evaluate defense objections, and eventually directed Nichols’s counsel

to simply interject the single word “motion” after any strike challenged on

Wheeler/Batson grounds. It is unclear from the record whether the parties

understood Nichols’s interjection would suffice for both defendants, just as in

exercising the two defendants’ joint peremptory challenges during jury selection

one counsel would frequently speak for both parties. It is similarly unclear

whether Bonilla’s counsel intended his joinder in Nichols’s Wheeler/Batson

motions to cover only those then pending or those going forward as well. Given

these ambiguities, we decline to find a forfeiture of additional Wheeler/Batson

claims based on Bonilla’s counsel’s failure to echo Nichols’s counsel’s

interjection of the word “motion” during the remainder of jury selection.

Turning to the merits, Bonilla again rests his claim solely on a statistical

analysis of the prosecution’s strikes. While the juror pool contained 38 percent

women (30/78), the prosecution used 67 percent of its strikes on women (20/30).

Closer analysis, however, reveals this apparent disparity is not all it appears.

First, the ultimate composition of the jury (42 percent women) mirrored

that of the juror pool (38 percent women). (See People v. Ward, supra, 36 Cal.4th

at p. 203 [ultimate composition of the jury is a factor to be considered in

evaluating a Wheeler/Batson motion]; People v. Turner, supra, 8 Cal.4th at p. 168

[same].) Indeed, after the prosecution expended its final peremptory, the jury

stood at six men and six women; only Bonilla’s subsequent use of his final

individual strikes reduced the jury to five women. The defense challenged the

prosecution’s use of peremptories against prospective jurors in seats 1, 3, 5, 6, and

9 as gender-biased, but near the end of jury selection the prosecution passed,


accepting the jury, despite the fact women held every one of those seats. By the

time the prosecution used its final peremptory strike—to remove a man from the

jury—four of those five contested seats were held by women.15 Thus, the

prosecution’s pattern of peremptories does not suggest it attempted to, nor did it in

fact, deprive Bonilla of a jury containing a fair cross-section of men and women.

Second, looking only at the overall juror pool exaggerates any discrepancy

between the prosecutor’s use of strikes and the juror pool composition. Two male

jurors were excused, four male jurors were never called or failed to appear, four

male jurors were called and seated after the prosecution had exhausted its

challenges, and seven male jurors (and two female jurors) were challenged by the

defense immediately on seating, before the prosecution had any opportunity to act.

Thus, the pool the prosecution had the opportunity to challenge was actually 47

percent female (28/59).

Third, the record discloses gender-neutral reasons for the strikes Bonilla

objected to under Wheeler. Rosalind H. was the first challenged woman to draw a

Wheeler/Batson motion; her husband had a prior conviction, and her father had

been convicted of killing his brother. Moreover, the record establishes the defense

challenged the use of a strike against her not because she was a woman, but

because she was African-American. As noted above, Bonilla failed to make out a

prima facie case of discrimination against African-Americans.

The defense next challenged the use of a strike against Carla G. The

prosecutor explained that he struck Carla G. because she would not directly

answer his questions, leaving him uncertain whether he could trust that he knew


As to the fifth seat (seat 9), it too was held by several women after the

prosecution’s challenged strike of Nellie D., but the defense challenged the first,
and Bonilla removed the second with one of his final individual challenges.


where she really stood. The record supports this. Carla G. gave a series of

equivocal answers about whether she could impose the death penalty, described

her feelings about the death penalty as “mixed” in her juror questionnaire, and

gave no answer to questions about her thoughts on life without the possibility of

parole. She further indicated she believed the death penalty was imposed

“randomly” and that it should be reserved for “heinous crimes” such as “mass

murderers or children killers.”16

Next, the defense challenged the use of strikes against Shirley C., Laura M.,

Joanne M., and Ramona T.

Shirley C. indicated in her questionnaire that she had served on a jury on

three previous occasions, two of which had resulted in a hung jury. Her initial

reaction to being put in the position of making a life-or-death decision was that she

would be “kind of uncomfortable,” although “hopefully” she would be “strong

enough to make the right decision.”

Laura M., like Rosalind H., had a close relative (her brother) who was

serving time for a felony conviction. She described herself as moderately in favor

of the death penalty but strongly in favor of life in prison without possibility of

parole, and identified the circumstances warranting the death penalty in her mind

as “mass murders, child murders.”

Joanne M. described herself as “liberal.” She believed the death penalty

was imposed “randomly.” She noted she was a Catholic and the “Catholic Church


The defense did not independently and contemporaneously challenge the

strikes of Gavina D. and Nellie D., the other two Hispanic women, but argued
their exclusion supported the case that the strike of Carla G. showed
discrimination against Hispanic women. As noted above, Bonilla made no prima
facie case of discrimination against Hispanic women.


stands against the death penalty,” but she indicated this would not affect her ability

to choose either life or death. She believed the death penalty was appropriate for

“the most heinous crimes where victims were made to suffer or died an especially

violent death,” as well as “especially brutal [crimes] . . . that caused the victim

intense suffering before he/she died,” while life without possibility of parole

should apply to murders that did not satisfy these criteria. In addition, she was

newly pregnant and expressed extreme uncertainty over how this might affect her

service or her ability to decide that another person should die. Asked again

whether she could go through with sentencing someone to death, she indicated: “I

think I would balk a little bit. I don’t even know if it is because of my emotional

state right now, but it kind of gives me the—I don’t know. I would feel bad, I

think, if it came down to that.”

In each of these three cases, the juror’s responses would give reason

enough for a prosecutor to consider a peremptory, without regard to the juror’s


Ramona T.’s questionnaire was virtually blank with respect to her view

about the criminal justice system and the death penalty; it gave essentially no

insight into her views other than that she had given them little thought. Asked

how important the fact someone had been killed would weigh in her life-or-death

calculus, she replied opaquely, “If I feel that is fair, then, no, it is not important.”

Asked whether the fact “that money is involved or financial gain in your own

personal value system, is that something important to you as to make any

difference between the death penalty or life without possibility of parole should

apply?,” she replied, “No.” Asked whether her view that life or death might be

appropriate in any case would extend to a situation where the defendant murdered

more than 10 people, or blew up an airplane and killed 80 people, she indicated

again that either life or death might be appropriate. Finally, she described herself


as “a very strong person emotionally and I will develop my own opinion.” The

difficulty from a prosecution or defense perspective is that it was virtually

impossible to glean from her voir dire or questionnaire any clue as to what those

opinions might be. Ramona T. thus presented a wild card, even more so than

Carla G. Given her indication that murder for financial gain was not a factor she

considered important, the prosecutor could reasonably have used a peremptory for

reasons unconnected to Ramona T.’s sex.

After a short conference to address Nichols’s (and Bonilla’s) first six

Wheeler/Batson motions, jury selection continued, and the defense challenged the

use of peremptories against five additional prospective female jurors: Anne E.,

Candice M., Carol L., Barbara B., and Victoria D. Again, the record discloses

gender-neutral reasons why a prosecutor might consider these prospective jurors

less than ideal and elect to use one of his 30 peremptories to remove them from a

penalty phase jury.

Anne E. described herself in her questionnaire as a political liberal. She

described the death penalty as acceptable in principle, but “[t]he circumstance[s]

must be of such a nature that the sentence is the only one at which to arrive.”

While she was neutral toward the death penalty, she was strongly in favor of life in

prison without possibility of parole. She described some methods of execution as

“criminal as to suffering of the executed” and “medieval.” She identified the best

arguments for or against the death penalty as “innocence of crime—inhumane


Candice M. indicated she did not believe the death penalty should be used

often and instead should be reserved “[o]nly for the most heinous of crimes.” She

identified those deserving death as “mass murderers [and] people who torture their

victims.” While strongly in favor of life without possibility of parole, she was less

strongly in favor of the death penalty. During voir dire, she indicated, “But just


[as to the] scale between death and life imprisonment, I would have to say that my

scale might be a little uneven towards life imprisonment,” and confirmed in

response to a follow-up question that, indeed, her personal scales had a small but

clear preexisting tilt towards life in prison rather than death.

Carol L. gave little or no written responses in her questionnaire, checking

“yes” or “no” boxes without elaboration and leaving most questions blank or

responding “No” or “None” when asked her views and attitudes. Her rare

elaborations were semiliterate (e.g., “Q: What are your general feelings

concerning the death penalty? [¶] A: Some one was murdered, and the a [sic]

person was sentenced—yes.”) Voir dire shed only minimal additional light.

Barbara B. described herself as a liberal. She expressed concern about

news reports indicating executions are not painless and on the death penalty

described herself as “confused and uncertain—on one hand it makes sense that it

is the correct punishment for a crime, on the other hand killing someone seems

wrong.” Asked how she would vote if whether to have the death penalty were on

the ballot, she indicated she was unsure; asked what she thought the best argument

for or against the death penalty was, she replied, “The best argument against [the

death penalty] is that it is wrong to kill another person under any circumstances.”

Asked whether she thought the death penalty should apply to most premeditated

murders, or only the most heinous crimes, she replied, “Heinous crimes.”

Finally, Victoria D. indicated that, like Shirley C., she had prior jury

experience, and the previous jury she had served on, in a drug case, had

deadlocked without reaching a verdict. Asked about this experience, she

emphasized the defendant was not found with any drugs on him, just money and a

pager; she later reported the jury was 6-6, she was fine with her decision, and if

she served again, she again would adhere to her views and have no problem sitting

on a hung jury. One might reasonably speculate from these comments there was a


fair chance she was among the six jurors who held out for acquittal. In other

questionnaire responses, Victoria D. indicated she believed the death penalty was

imposed randomly and was unsure whether she would vote to retain it because she

was unsure whether it was fairly handed out. Nor was she sure what

circumstances should warrant the death penalty or life without possibility of


In sum, for each strike the defense challenged under Wheeler/Batson, the

record reflects reasonable gender-neutral bases for use of a peremptory challenge.

The trial court did not err in concluding no prima facie case of group bias against

women had been made out.

4. Comparative juror analysis

For the first time on appeal, Bonilla identifies in his reply brief five jurors

who ultimately sat on the jury who he contends are materially indistinguishable

from the jurors the prosecution struck. By waiting until his reply brief to argue

that the prosecution’s use of strikes should be subjected to a comparative juror

analysis, Bonilla has forfeited the issue. (E.g., People v. Smithey (1999) 20

Cal.4th 936, 1017, fn. 26.)

In any event, this is a “first-stage” Wheeler/Batson case, in that the trial

court denied Bonilla’s motions after concluding he had failed to make out a prima

facie case, not a “third-stage” case, in which a trial court concludes a prima facie

case has been made, solicits an explanation of the peremptory challenges from the

prosecutor, and only then determines whether defendant has carried his burden of

demonstrating group bias. We have concluded that Miller-El v. Dretke (2005) 545

U.S. 231 does not mandate comparative juror analysis in these circumstances

(People v. Bell, supra, 40 Cal.4th at p. 601), and thus we are not compelled to

conduct a comparative analysis here. Whatever use comparative juror analysis


might have in a third-stage case for determining whether a prosecutor’s proffered

justifications for his strikes are pretextual, it has little or no use where the analysis

does not hinge on the prosecution’s actual proffered rationales, and we thus

decline to engage in a comparative analysis here.

C. Failure to Inquire into and Discharge Juror for Sleeping

Bonilla contends he was deprived of his constitutional right to a fair trial

and due process by the trial court’s alleged failure to adequately investigate and

act on allegations that two jurors were sleeping during the penalty phase. (U.S.

Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.) We discern

no abuse of discretion; to the contrary, the trial court promptly and fully

investigated, and granted the only motion for discharge supported by the evidence.

The trial court has the authority to discharge jurors for good cause,

including sleeping during trial. (People v. Bradford, supra, 15 Cal.4th at pp.

1348-1349; § 1089.) When the trial court receives notice that such cause may

exist, it has an affirmative obligation to investigate. (Bradford, at p. 1348; People

v. Burgener (1986) 41 Cal.3d 505, 520-521.) Both the scope of any investigation

and the ultimate decision whether to discharge a given juror are committed to the

sound discretion of the trial court. (Bradford, at p. 1348.)

Here, the court received a written note from Juror No. 12, filed October 17,

1994, which advised the court that due to an extended night shift work schedule,

he had “drifted off to sleep a couple of times this past week.” The juror requested

a note reprimanding him for falling asleep during the trial, in the hope that his

employer, presented with the note, would accommodate him with a more

manageable night work schedule.

The trial court held a hearing the next day, October 18, to address both

Juror No. 12 and another juror, Juror No. 6, who Nichols’s counsel believed had


also been sleeping. Beginning with Juror No. 12, the court and counsel inquired

into the extent of his sleeping and its impact on his functioning as a juror:

“THE COURT: First of all, I did not notice [you sleeping]. I talked to the

court reporter and she said she didn’t notice it. So, you are telling us that you did

drift off to sleep?

“[JUROR NO. 12]: Yeah, a couple times last week. [¶] See, my company

went through a down-sizing and as of last Monday I had normally worked

between four and six hours at night.

“THE COURT: That part we have in the letter, but are you saying that you

missed a portion of the trial?

“[JUROR NO. 12]: Well, not necessarily missed it. I mean, I just nodded

. . . off and came back up.

“THE COURT: So you didn’t miss anything?

“[JUROR NO. 12]: No, I don’t think so. [¶] . . . [¶]

“THE COURT: Anybody else have any questions to him?

“[BONILLA’S COUNSEL]: I guess I have just one for my record. . . .

[W]hen you say you don’t think so, I mean, my reaction is once I’m asleep I can’t

tell how long I have been asleep except by external things, so are you—

“[JUROR NO. 12]: Well—

“[BONILLA’S COUNSEL]: What are you saying, I guess is what I’m


“[JUROR NO. 12]: It is kind of hard to explain. It was just the fact that I

would feel my head go down and then I came back up.


“THE COURT: So you didn’t miss anything?

“[JUROR NO. 12]: I don’t think so.

“THE COURT: You were listening to all the witnesses and what have you.


“[JUROR NO. 12]: Right.” (Italics added.)

The inquiry thus established that, insofar as could be determined, Juror No.

12 had caught himself nodding off and promptly alerted the court, but had not yet

missed any of the trial; neither the trial judge, nor the court reporter, nor

apparently counsel had ever noticed him sleeping.

After further inquiry into Juror No. 6’s sleeping, Bonilla and Nichols

moved for a mistrial and in the alternative moved that both jurors be excused. The

trial court declined to immediately dismiss the jurors, but invited defense counsel

to follow up with a written motion supported by additional evidence. Thus, if in

fact the problem was greater than this inquiry showed, defense counsel could

submit declarations from other courtroom observers establishing that fact.

Nichols, joined by Bonilla, filed a motion with supporting declarations

seeking a mistrial or in the alternative the dismissal of Juror Nos. 6 and 12.

Notably, the declarations contained statements from witnesses that Juror No. 6 had

been sleeping, but no additional evidence that Juror No. 12 had been sleeping.

The trial court held a further hearing on October 31, at which each side

submitted live testimony and cross-examined witnesses. Asked whether they had

seen any jurors sleeping, each of the defense witnesses identified only Juror No. 6;

defense counsel elicited no additional evidence suggesting Juror No. 12 had been

sleeping in trial or that there was an ongoing problem. The next day, the trial

court granted the motion to dismiss Juror No. 6.

The trial court’s handling of concerns about Juror No. 12’s sleeping was

well within the scope of its discretion. It held an immediate hearing at which it

allowed both sides to question Juror No. 12, it satisfied itself regarding the extent

of any problem, and it afforded counsel the opportunity to present additional

evidence if they were dissatisfied and concerned that the scope of any sleeping

problem might affect their clients’ rights. Given that opportunity, defense counsel


presented no additional evidence that might cause the trial court to revisit its

original denial of requests for a mistrial and for dismissal of Juror No. 12.

Bonilla contends the trial court erred in failing to further inquire into Juror

No. 12’s sleeping after October 18. To the contrary; if the trial court was satisfied

with Juror No. 12’s answers, as it reasonably could have been, there was no need

to inquire further absent additional evidence suggesting an ongoing problem.

Bonilla’s and Nichols’s witnesses, courtroom observers, offered no testimony

indicating they ever witnessed Juror No. 12 sleeping. Nor was this omission the

result of the trial court in any way limiting further inquiry;17 if counsel had

additional evidence that might have raised concerns about Juror No.12, they could

have presented it by declaration or at the October 31 hearing. In the absence of

additional evidence, the trial court did not abuse its discretion in either conducting

no further independent inquiry or in refusing to dismiss Juror No. 12.

D. Admission of Victim Photographs

During the guilt phase, the prosecution submitted a dozen photographs of

the grave site and Harris’s mummified remains. The trial court ultimately

admitted eight photographs and excluded four as cumulative. At the penalty

phase, Bonilla objected to readmission of these eight photographs, arguing they

were irrelevant, unduly prejudicial (because of their allegedly inflammatory

nature), and cumulative. The trial court overruled the objections. Bonilla

contends their admission was state law error and also deprived him of his right to a


Bonilla cites out of context a stray remark by the court at the October 31

hearing: “Wait a minute! The only question we have before us is number six.”
The remark came while defense counsel was cross-examining a prosecution
witness; counsel asked a question specifically about the witness’s observations of
Juror No. 6, and the witness made a nonresponsive remark describing three other
jurors as jovial. The trial court’s reprimand of the witness followed.


fair trial and a reliable capital sentencing determination. (U.S. Const., 5th, 6th, 8th

& 14th Amends.)18

“The admission of allegedly gruesome photographs is basically a question

of relevance over which the trial court has broad discretion.” (People v. Roldan

(2005) 35 Cal.4th 646, 713; accord, People v. Gurule (2002) 28 Cal.4th 557, 624.)

The further decision whether to nevertheless exclude relevant photographs as

unduly prejudicial is similarly committed to the trial court’s discretion: “A trial

court’s decision to admit photographs under Evidence Code section 352 will be

upheld on appeal unless the prejudicial effect of such photographs clearly

outweighs their probative value.” (Gurule, at p. 624; accord, People v. Moon,

supra, 37 Cal.4th at p. 34.) Notably, however, the discretion to exclude

photographs under Evidence Code section 352 is much narrower at the penalty

phase than at the guilt phase. This is so because the prosecution has the right to

establish the circumstances of the crime, including its gruesome consequences

(§ 190.3, factor (a)), and because the risk of an improper guilt finding based on

visceral reactions is no longer present. (Moon, at p. 35; People v. Anderson (2001)

25 Cal.4th 543, 591-592.)

The photographs were relevant. They show the circumstances of the crime,

which include what happened to Harris’s body as a consequence of Bonilla’s and

his coconspirators’ actions. They corroborate Keyes’s testimony about the use of

duct tape in the killing (one of the photographs shows duct tape still attached to

Harris’s skull), and the details of the burial. Keyes’s credibility was central to the

penalty phase trial. Finally, several of the photographs were used by a pathologist


Contrary to the People’s contention, this argument was preserved by

Bonilla’s trial objection on state law grounds. (People v. Partida (2005) 37
Cal.4th 428, 435-437.)


to assist the jury in understanding his testimony. The admitted photographs also

were not cumulative; the trial court appropriately limited admission, excluding

four of the 12 photographs as cumulative.

Nor were the photographs substantially more prejudicial than probative.

“ ‘ “ ‘[M]urder is seldom pretty, and pictures, testimony and physical evidence in

such a case are always unpleasant.’ ” ’ ” (People v. Moon, supra, 37 Cal.4th at

p. 35.) Likewise here. But as unpleasant as these photographs are, they

demonstrate the real-life consequences of Bonilla’s actions. The prosecution was

entitled to have the jury consider those consequences. The trial court’s exercise of

discretion to admit them was neither statutory nor constitutional error.

E. Admission of Hearsay Evidence of Plot to Kidnap Bonilla’s Sister

Bonilla contends the trial court erroneously permitted inadmissible hearsay

to remain in the record during the penalty phase and this error rendered his trial

fundamentally unfair in violation of his federal due process rights. (U.S. Const.,

5th & 14th Amends.) The error was harmless and did not render his trial

fundamentally unfair.

Shelton McDaniels, Bonilla’s coconspirator, testified extensively about the

plot to kidnap Susan Harris and extort money from her, money that would then be

used to pay for killing Keyes. During that testimony, McDaniels described the

growing frustration another conspirator, Michael Greenwood (Mut), had with

Bonilla’s failure to come up with additional money to pay for kidnapping Susan

Harris. He testified, “Well, Mut felt like Steve [Bonilla] was lying to him about

not being able to come up with the money because he had told him that his mom’s

[sic] had money tied up in . . . CD’s and something else that the money was tied

up in, but he couldn’t access it because she was the only one that could get it or

something like this. And she was reluctant as it was to give him the money. But


Mut was ready to put the pressure on him and the plan he came up with was going

and kidnapping Steve’s sister.” (Italics added.)

Bonilla objected, arguing the statement was inadmissible hearsay outside

the scope of the coconspirator exception because it related to matters outside the

scope of the conspiracy. (See Evid. Code, § 1223.) The trial court sustained

Bonilla’s objection at an in-chambers conference but, once back on the record

before the jury, did not advise the jury the objection had been sustained, strike the

testimony, or direct the jury to disregard it.

The People do not defend either the admissibility of the testimony or the

trial court’s failure to cure its admission. However, the error was manifestly

harmless. There is no reasonable probability exclusion of the testimony about a

third party’s inchoate criminal designs would have made a difference. (People v.

Watson (1956) 46 Cal.2d 818, 836.) The real issue at the penalty phase was how

to weigh the circumstances of the crime, its impact on the victims, and Bonilla’s

pattern of conspiring to kill those with whom he disagreed against his family’s

pleas for mercy and compassion. It is inconceivable this one statement on a

tangential matter in a four-month trial tipped the balance. Indeed, Bonilla

essentially concedes as much, acknowledging that “standing alone, erroneous

admission of evidence of the plot to kidnap Bonilla’s sister and to extort money

from his mother may not have tipped the balance in favor of death.”

Bonilla argues this state law error violated his federal due process rights.

Contrary to the People’s contention, the argument was preserved by Bonilla’s trial

objection on state law grounds. (People v. Partida, supra, 37 Cal.4th at pp. 435-

437.) However, it is meritless. In the context of the entire penalty phase, this one

line of hearsay was inconsequential and did not render Bonilla’s trial

fundamentally unfair. (See id. at p. 439 [“the admission of evidence, even if


erroneous under state law, results in a due process violation only if it makes the

trial fundamentally unfair”].)

F. Prosecutorial Misconduct: Arguing Absence of Remorse

At various points during closing argument, the prosecutor made reference

to Bonilla’s apparent lack of remorse. Bonilla argues these remarks constituted

misconduct and deprived him of his right to a fair trial and a reliable capital

sentencing determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.)

These claims are partially forfeited. The first time the prosecutor

referenced the absence of remorse, Bonilla objected, and the court offered Bonilla

additional instruction to the jury on what it could and could not consider. On a

later occasion the prosecutor referenced the absence of remorse in connection with

mitigation, Bonilla objected, and the court reminded the jury that it would instruct

them on the correct law as it related to consideration of mitigation. Otherwise,

Bonilla failed to object. As there is no indication objection would have been

futile, Bonilla’s remaining claims of misconduct are forfeited. (People v.

Jablonski (2006) 37 Cal.4th 774, 835-836; People v. Panah (2005) 35 Cal.4th 395,


Moreover, we conclude there was no misconduct. We have long

recognized that “ ‘ “[r]emorse is universally deemed a factor relevant to penalty.

The jury, applying its common sense and life experience, is likely to consider that

issue in the exercise of its broad constitutional sentencing discretion no matter

what it is told.” ’ ” (People v. Combs (2004) 34 Cal.4th 821, 866.) Prosecutors

are allowed to focus on a defendant’s lack of remorse in two ways. First,

“[c]onduct or statements at the scene of the crime demonstrating lack of remorse

may be consider[ed] in aggravation as a circumstance of the capital crime under

section 190.3, factor (a).” (People v. Pollock (2004) 32 Cal.4th 1153, 1184;


accord, People v. Harris (2005) 37 Cal.4th 310, 361; People v. Ochoa (2001) 26

Cal.4th 398, 448-449.) Second, “[a] prosecutor may properly comment on a

defendant’s lack of remorse, as relevant to the question of whether remorse is

present as a mitigating circumstance, so long as the prosecutor does not suggest

that lack of remorse is an aggravating factor.” (People v. Mendoza (2000) 24

Cal.4th 130, 187; accord, People v. Jurado, supra, 38 Cal.4th at p. 141.) In

contrast, when a prosecutor does argue absence of remorse as an aggravating

factor, it is misconduct. (People v. Sims, supra, 5 Cal.4th at p. 465; People v.

Keenan (1988) 46 Cal.3d 478, 510.)

The prosecutor’s comments on Bonilla’s lack of remorse fell within these

guidelines. He did not argue absence of remorse as an aggravating factor; instead,

he contended the jury should consider the absence of remorse when it evaluated

the mitigating circumstances: “One of the principles that I think is very significant

in terms of this concept of mitigating evidence is this issue of remorse. In their

case, there has been a total lack of remorse shown by the evidence by either of

these two defendants, and before you consider any mitigating evidence, the fact

that there has been no remorse shown whatsoever should weigh very heavily

against even considering any of that in mitigation.” Later: “Again, it is this effort

to get you off the real issues, whether there is any mitigation that is sufficient to

allow you to give [them] less than what the evidence shows they deserve. [¶] And

again, before you can get to that point where the mitigation is something you

should even consider, they ought to be able to, they ought to express some remorse

before they are entitled to any mitigation.” Finally: “And then the horror of the

discovery and knowing what had become of [Harris], chewed up by the animals.

That is what we talk about when we talk about the circumstances of the crime,

those things you ought to consider and that remorse, that lack of remorse before

you are, you ever, ever, consider any mitigation. Because what we’re talking


about is responsibility. Neither of these two men are taking any responsibility, and

it doesn’t appear they ever will. How could sympathy or mercy be applicable to


The gist of the prosecutor’s argument throughout, as most clearly reflected

in these final remarks, was that because Bonilla had shown no remorse, the jury

should take his mitigating evidence, which amounted to a plea for mercy from his

family, with a grain of salt, and should be less inclined to grant him mercy. We

have consistently approved similar arguments. (See People v. Jurado, supra, 38

Cal.4th at p. 141 [argument permissible where reasonable jury would have

understood prosecutor to be arguing lack of remorse showed the “defendant was

not entitled to the jury’s sympathy”]; People v. Pollock, supra, 32 Cal.4th at

p. 1184 [allowing argument that “You can consider his lack of remorse later on as

just tending to show there isn’t any mitigation or the mitigation is not worthy of

your consideration”]; People v. Crittenden, supra, 9 Cal.4th at pp. 146, 148-149

[allowing argument that jury should “ask to see at least some evidence of remorse”

by the defendant before extending him sympathy and considering life without the

possibility of parole].) There was no misconduct.

G. Refusal of Lingering Doubt Instruction

Bonilla requested that the jury be specifically instructed it could consider

any lingering doubt about his guilt as a factor in mitigation.19 The trial court


The proposed instruction read: “Each individual juror may consider, as a

mitigating circumstance, any residual or lingering doubt in the mind of that juror,
as to whether defendant STEVEN WAYNE BONILLA intended that Jerry Harris
be killed. You may not relitigate or reconsider matters which were resolved in the
guilt phase, but you may consider such residual or lingering doubt, if it exists in
your mind, as a circumstance in mitigation. [¶] A lingering or residual doubt is
defined as that state of mind between beyond a reasonable doubt and beyond all
possible doubt.”


refused, explaining that it thought the proposed instruction unnecessary and

confusing. Bonilla contends that refusal denied him due process and violated the

Eighth Amendment to the United States Constitution.

As Bonilla concedes, we have repeatedly rejected the argument that a

specific instruction on lingering doubt as a mitigating factor is constitutionally

required. (E.g., People v. Demetrulias, supra, 39 Cal.4th at p. 42; People v. Gray

(2005) 37 Cal.4th 168, 231-232; People v. Lawley (2002) 27 Cal.4th 102, 166.)

He asks us to disregard settled precedent because, he contends, many of our

previous cases rely, directly or indirectly, on Franklin v. Lynaugh (1988) 487 U.S.

164, where no lingering doubt instruction was required in part because the

defendant failed to argue lingering doubt during the penalty phase. (Id. at p. 175,

fn. 7.) Here, in contrast, Bonilla argued lingering doubt extensively.

This argument misconstrues our precedents. Even in cases where the

defendant argues lingering doubt, we have consistently rejected any constitutional

requirement that a specific instruction be given, because instructions that the jury

may consider the circumstances of the crime and any other extenuating

circumstances (CALJIC No. 8.85; § 190.3, factors (a), (k)) adequately inform the

jury that it may consider any lingering doubts. (People v. Demetrulias, supra, 39

Cal.4th at p. 42; People v. Gray, supra, 37 Cal.4th at p. 232; People v. Earp

(1999) 20 Cal.4th 826, 903-904.) These instructions were given here. The trial

court did not err in concluding Bonilla’s additional proposed instruction was


H. Constitutionality of California’s Death Penalty

Bonilla raises a series of challenges to the constitutionality of California’s

death penalty. We have rejected each challenge before. As Bonilla offers no


compelling arguments in favor of reconsidering any of these rulings, we do so


“California homicide law and the special circumstances listed in section

190.2 adequately narrow the class of murderers eligible for the death penalty.”

(People v. Demetrulias, supra, 39 Cal.4th at p. 43.) While Bonilla contends the

ballot arguments in favor of Proposition 7 (approved by voters, Gen. Elec.

(Nov. 7, 1978)), which became the current death penalty law, reflect an intent to

expose every murderer to the death penalty, we have rejected that assertion as a

misconstruction of the ballot arguments. (People v. Gray, supra, 37 Cal.4th at

p. 237, fn. 23.)

Section 190.3, factor (a), which permits the jury to consider the

circumstances of the crime in deciding whether to impose the death penalty, does

not license the arbitrary and capricious imposition of the death penalty. (Tuilaepa

v. California (1994) 512 U.S. 967, 975-976; People v. Smith (2005) 35 Cal.4th

334, 373.)

Nothing in the state or federal Constitution requires that the penalty jury

(1) issue written findings, (2) unanimously agree on any particular aggravating

circumstances, or (3) find true any particular aggravating circumstances beyond a

reasonable doubt. (E.g., People v. Demetrulias, supra, 39 Cal.4th at pp. 40, 43;

People v. Snow (2003) 30 Cal.4th 43, 126; People v. Box (2000) 23 Cal.4th 1153,

1217.) While Bonilla argues we should reconsider these conclusions in light of

Ring v. Arizona (2002) 536 U.S. 584 and Apprendi v. New Jersey (2000) 530 U.S.

466, which impose procedural constraints on fact finding in criminal trials, that

argument rests on a misconception concerning the nature of California’s capital

sentencing scheme. “[T]he ultimate determination of the appropriateness of the

penalty and the subordinate determination of the balance of evidence of

aggravation and mitigation do not entail the finding of facts that can increase the


punishment for murder of the first degree beyond the maximum otherwise

prescribed. Moreover, those determinations do not amount to the finding of facts,

but rather constitute a single fundamentally normative assessment [citations] that

is outside the scope of Ring and Apprendi.” (People v. Griffin, supra, 33 Cal.4th

at p. 595; accord, Snow, at p. 126, fn. 32.)

The trial court is not constitutionally required to instruct the jury on a

burden of proof; in California, at the penalty phase there is no burden of proof,

only a normative judgment for the jury. (E.g., People v. Demetrulias, supra, 39

Cal.4th at p. 40; People v. Moon, supra, 37 Cal.4th at pp. 43-44; People v. Stitely

(2005) 35 Cal.4th 514, 573.)

Comparative proportionality review, also known as intercase

proportionality review, is not required to render California’s sentencing scheme

constitutional. (E.g., People v. Demetrulias, supra, 39 Cal.4th at p. 44; People v.

Gray, supra, 37 Cal.4th at p. 237; People v. Cunningham (2001) 25 Cal.4th 926,


Likewise, consideration by the jury of unadjudicated criminal conduct at

the penalty phase does not violate the state or federal Constitution. (E.g., People

v. Demetrulias, supra, 39 Cal.4th at p. 43; People v. Gray, supra, 37 Cal.4th at

p. 236.) Nor do Ring v. Arizona, supra, 536 U.S. 584, and Apprendi v. New

Jersey, supra, 530 U.S. 466, require the jury to unanimously agree beyond a

reasonable doubt on any prior criminal conduct before considering it; as

previously discussed, these decisions are inapplicable to California’s capital

sentencing scheme. (People v. Griffin, supra, 33 Cal.4th at p. 595; People v.

Snow, supra, 30 Cal.4th at p. 126, fn. 32.)

The inclusion of the adjectives “extreme” and “substantial” in the list of

mitigating factors (§ 190.3, factors (d) & (g)) does not impermissibly constrict


consideration of mitigating evidence and is consistent with the state and federal

Constitutions. (People v. Smith (2003) 30 Cal.4th 581, 642.)

The trial court was not constitutionally required to instruct the jury that

section 190.3’s mitigating factors could be considered only as mitigating factors

and that the absence of evidence supporting any one of them should not be viewed

as an aggravating factor. (E.g., People v. Gray, supra, 37 Cal.4th at p. 236;

People v. Boyette, supra, 29 Cal.4th at pp. 465-466; People v. Bolin (1998) 18

Cal.4th 297, 341-342.)

The equal protection clause does not require that California include in its

capital sentencing scheme the same disparate sentence review previously provided

noncapital convicts under the Determinate Sentencing Act. (People v. Boyette,

supra, 29 Cal.4th at p. 466, fn. 22.)

Bonilla’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 pp. 43-44.)

I. Cumulative Prejudice from Errors

We have identified one arguable error during the penalty phase: the failure

to cure admission of inadmissible hearsay concerning a plot to kidnap Bonilla’s

sister. We have also assumed without deciding that the refusal to excuse


Prospective Jurors James B. and Robert F. for cause was error. Having concluded

each independently was harmless, we likewise conclude that the cumulative effect

of these asserted errors was not prejudicial and does not require reversal of

Bonilla’s conviction and death sentence.


The trial court’s judgment is affirmed in its entirety.





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

Name of Opinion People v. Bonilla

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: June 18, 2007

County: Alameda
Judge: Benjamin Travis


Attorneys for Appellant:

David A. Nickerson, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias and Bruce Ortega, Deputy
Attorneys General, for Plaintiff and Respondent.

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

David A. Nickerson
454 Las Gallinas Avenue, Suite 183
San Rafael, CA 94903
(415) 507-9097

Bruce Ortega
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1335

Opinion Information
Date:Docket Number:
Mon, 06/18/2007S045184

1The People (Respondent)
Represented by Attorney General - San Francisco Office
Bruce Ortega, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Bonilla, Steven Wayne (Appellant)
San Quentin State Prison
Represented by David A. Nickerson
Attorney at Law
454 Las Gallinas Avenue, Suite 183
San Rafael, CA

Jun 18 2007Opinion: Affirmed

Jan 20 1995Judgment of death
Mar 2 1995Filed certified copy of Judgment of Death Rendered
Nov 19 1998Filed:
  Request by Inmate for Dual representation.
Nov 19 1998Filed:
  Request by Counsel for Dual representation appointment.
Nov 19 1998Counsel appointment order filed
  Upon request of appellant for appointment of counsel, David A. Nickerson is hereby appointed to represent appellant for both the direct appeal and realted state habeas corpus/executive clemency proceedings, in the above automatic appeal now pending in this court.
Jan 29 1999Application for Extension of Time filed
  To request Record correction
Feb 1 1999Extension of Time application Granted
  To 3-31-99 To request Record correction
Feb 3 1999Compensation awarded counsel
Mar 31 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 1 1999Extension of Time application Granted
  To Applt To 4-30-99 To request Corr. of Record.
Apr 29 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 29 1999Extension of Time application Granted
  To 5-21-99 To request Record correction
May 24 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
May 25 1999Extension of Time application Granted
  To 7-20-99 To request Record correction
Jun 10 1999Change of Address filed for:
  Attorney General - S.F. Office.
Jul 12 1999Compensation awarded counsel
Jul 20 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 21 1999Extension of Time application Granted
  To 9-20-99 To request Record correction
Sep 21 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Sep 22 1999Extension of Time application Granted
  To 11/19/99 To Applt To request Corr. of the Record.
Nov 4 1999Compensation awarded counsel
  Atty Nickerson
Nov 23 1999Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Nov 30 1999Extension of Time application Granted
  To 1/18/2000 To Applt To request Corr. of the Record.
Jan 24 2000Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Feb 4 2000Extension of Time application Granted
  To 3/20/2000 To Applt To request Corr. of the Record.
Mar 2 2000Compensation awarded counsel
  Atty Nickerson
Mar 22 2000Application for Extension of Time filed
  By Applt to request Corr. of the Record
Mar 29 2000Extension of Time application Granted
  To 4/19/2000 To Applt To request Corr. of the Record.
Apr 14 2000Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Apr 20 2000Extension of Time application Granted
  To 6/19/2000 To Applt To request Corr. of the Record. no further Eot Are Contemplated.
Jun 30 2000Motion filed
  By Applt (Pro Se) - Confidential
Jul 24 2000Counsel's status report received (confidential)
Jul 24 2000Received copy of appellant's record correction motion
  motion to correct and augment record on appeal. (11 pp.)
Aug 9 2000Confidential order filed
Aug 9 2000Compensation awarded counsel
  Atty Nickerson
Aug 15 2000Motion filed (confidential)
  pro se motion by appellant.
Sep 26 2000Counsel's status report received (confidential)
Feb 15 2001Counsel's status report received (confidential)
Jul 6 2001Counsel's status report received (confidential)
Jul 24 2001Record on appeal filed
  C-206 (57,033 Pp.) and R-144 (14,752 Pp.) including material under seal and juror questionnaires of 50,700 Pp.
Jul 24 2001Appellant's opening brief letter sent, due:
  Sept. 4, 2001
Jul 30 2001Compensation awarded counsel
  Atty Nickerson
Sep 19 2001Application for Extension of Time filed
  To file AOB. (1st request)
Sep 20 2001Extension of Time application Granted
  To 11/5/2001 to file AOB.
Nov 7 2001Application for Extension of Time filed
  To file AOB. (2nd request)
Nov 9 2001Extension of Time application Granted
  To 1/4/2002 to file AOB.
Jan 10 2002Request for extension of time filed
  To file AOB. (3rd request)
Jan 15 2002Extension of time granted
  To 3/5/2002 to file AOB. Counsel anticipates filing the brief not earlier than 9/1/2002.
Mar 7 2002Request for extension of time filed
  To file AOB. (4th request)
Mar 7 2002Counsel's status report received (confidential)
Mar 8 2002Extension of time granted
  To 5/6/2002 to file AOB.
May 6 2002Motion filed (confidential)
May 17 2002Counsel's status report received (confidential)
May 17 2002Request for extension of time filed
  To file AOB. (5th request)
May 20 2002Extension of time granted
  To 6/5/2002 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 attorney or entity, and any assisting attorney or entity of any separate counsel of record, of thie schedule, and take all steps necessary to meet it.
Jun 11 2002Order filed
  Due to clerical error, the order filed in the above matter on May 20, 2002 is amended to read as follows: Good cause appearing, counsel's request for an extension of time in which to file appellant's opening brief is granted to July 5, 2002. 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 attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record this schedule, and to take all steps necessary to meet it.
Jul 5 2002Request for extension of time filed
  to file AOB. (6th request)
Jul 5 2002Counsel's status report received (confidential)
Jul 8 2002Extension of time granted
  To 9/3/3002 to file AOB. The court anticipates that after that date, only one further extension totaling 58 additional days will be granted. Counsel is ordered to inform his or her assisting attorney 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.
Sep 4 2002Request for extension of time filed
  to file AOB. (7th request)
Sep 4 2002Counsel's status report received (confidential)
Sep 9 2002Filed:
  Supplemental declaration in support of request for extension of time to file appellant's opening brief.
Sep 10 2002Extension of time granted
  To 11/4/2002 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel David Nickerson's representation that he anticipates filing that brief by 1/31/2003.
Sep 18 2002Motion denied (confidential)
  George, C.J., and Baxter, J., were absent and did not participate.
Nov 18 2002Counsel's status report received (confidential)
Nov 18 2002Request for extension of time filed
  to file appellant's opening brief. (8th request)
Nov 19 2002Extension of time granted
  To 1/3/2003 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel David A. Nickerson's representation that he anticiaptes filing that brief by 1/31/2003.
Jan 3 2003Request for extension of time filed
  to file appellant's opening brief. (9th request)
Jan 3 2003Counsel's status report received (confidential)
Jan 13 2003Filed:
  Supplemental declaration in support of application for extension of time to file appellant's opening brief.
Jan 15 2003Extension of time granted
  To 3/3/2003 to file appellant's opening brief. Extension is granted based upon counsel David A. Nickerson's representation that he anticipates filing that brief by 3/3/2003. After that date, no further extension is contemplated.
Mar 3 2003Counsel's status report received (confidential)
Mar 3 2003Request for extension of time filed
  to file appellant's opening brief. (10th request)
Mar 5 2003Extension of time granted
  to 5/1/2003 to file appellant's opening brief. Extension is granted based upon counsel David A. Nickerson's representation that he anticipates filing that brief by 5/1/2003. After that date, no further extension is contemplated.
May 1 2003Appellant's opening brief filed
  (236 pp.)
May 7 2003Filed:
  Declaration of counsel in support of interim billing and pursuant to Penal Code Section 1241 (confidential).
May 14 2003Compensation awarded counsel
  Atty Nickerson
May 20 2003Counsel's status report received (confidential)
May 29 2003Request for extension of time filed
  to file respondent's brief. (1st request)
Jun 4 2003Extension of time granted
  to 8/1/2003 to file respondent's brief. The court anticipates that after that date, only three further extensions totaling about 150 additional days will be granted.
Jul 29 2003Request for extension of time filed
  to file respondent's brief. (2nd request)
Jul 31 2003Extension of time granted
  to 9-30-2003 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension granted based upon Deputy AG Bruce Ortega's representation that he anticipates filing the brief by 12-31-2003.
Sep 29 2003Request for extension of time filed
  to file respondent's brief. (3rd request)
Oct 1 2003Extension of time granted
  to 12/1/2003 to file respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Bruce Ortega's representation that he anticipates filing that brief by 11/29/2003.
Nov 24 2003Respondent's brief filed
  (242 pp.)
Jan 28 2004Received:
  appellant's application for extension of time to file reply brief. (note: late; counsel advised to provide application for relief from default.)
Jan 28 2004Counsel's status report received (confidential)
Feb 13 2004Application for relief from default filed
  for failing to file appellant's reply brief or an application for extension of time.
Feb 20 2004Request for extension of time filed
  to file appellant's reply brief. (1st request)
Feb 20 2004Extension of time granted
  Appellant's application for relief from default to file a request for extension of time to file the reply brief is granted. Good cause appearing, and based upon counsel David Nickerson's representation that he anticipates filing the reply brief by 5/22/2004 counsel's request for an extension of time in which to file that brief is granted to 2/25/2004. After that date, only two further extensions totaling about 90 additional days are contemplated.
Feb 25 2004Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Mar 1 2004Extension of time granted
  to 4/26/2004 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon counsel David A. Nickerson's representation that he anticipates filing filing that brief by 5/22/2004.
May 3 2004Request for extension of time filed
  to file appellant's reply brief. (3rd request)
May 6 2004Extension of time granted
  to 6/4/2004 to file appellant's reply brief. Extension is granted based upon counsel David A. Nickerson's representation that he anticipates filing that brief by 6/4/2004. After that date, no further extension is contemplated.
Jun 4 2004Appellant's reply brief filed
  (19861 words - 86 pp.)
Jun 8 2004Counsel's status report received (confidential)
Jun 10 2004Filed:
  Amended declaration of attorney David A. Nickerson in support of interim billing pursuant to Penal Code Section 1241 (confidential).
Jun 15 2004Compensation awarded counsel
  Atty Nickerson $22,916.68
Dec 2 2004Related habeas corpus petition filed (concurrent)
  No. S129612
Dec 7 2004Filed:
  Declaration from atty Nickerson pursuant to Penal Code Section 1241 (confidential).
Jan 12 2005Compensation awarded counsel
  Atty Nickerson
Dec 11 2006Exhibit(s) lodged
  People's: 33-37 and 42-48.
Jan 29 2007Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 5, 2007, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 6 2007Case ordered on calendar
  to be argued Tuesday, April 3, 2007, at 2:00 p.m., in Los Angeles
Mar 26 2007Filed:
  respondent's focus issue letter, dated March 26, 2007.
Mar 27 2007Received:
  appellant's focus issue letter without required proof of service. Counsel notified to submit proof of service.
Apr 2 2007Filed:
  appellant's focus issue letter, dated March 26, 2007.
Apr 2 2007Filed:
  proof of service by mail of appellant's focus issue letter re: oral argument.
Apr 3 2007Cause argued and submitted
Apr 18 2007Compensation awarded counsel
  Atty Nickerson
Jun 15 2007Notice of forthcoming opinion posted
Jun 18 2007Opinion filed: Judgment affirmed in full
  majority opinion by Werdegar, J. -----joined by George, CJ., Kennard, Baxter, Chin, Moreno, Corrigan, JJ.
Jun 21 2007Request for extension of time filed
  appellant's application for extension of time in which to file petition for rehearing.
Jun 22 2007Extension of time granted
  The application of appellant for an extension of time to file a petition for rehearing is granted to and including July 16, 2007, for good cause, based on counsel's representation that he will be undergoing surgery and cannot complete the petition in advance of the surgery. On the court's own motion, the time for granting or denying rehearing in this case is hereby extended to and including September 14, 2007, or the date upon which rehearing is either granted or denied,
Jul 16 2007Rehearing petition filed
  by appellant. (3,690 words; 17 pp.)
Aug 8 2007Rehearing denied
  The petition for rehearing is denied.
Aug 8 2007Remittitur issued (AA)
Aug 10 2007Received:
  receipt for remittitur.
Aug 10 2007Exhibit(s) returned
  to Alameda Superior Court. People's exhibits; 33, 34, 35, 36, 37, 42, 43, 44, 45, 46, 47, and 48.
Nov 5 2007Received:
  acknowledgment from superior court of receipt of exhibits.
Jan 25 2008Motion filed (AA confidential)
Feb 20 2008Motion denied (confidential)
Mar 18 2008Motion filed (AA confidential)
Apr 9 2008Motion denied (confidential)
Apr 9 2008Motion denied (confidential)
Apr 15 2008Motion filed (AA confidential)
Apr 18 2008Motion filed (AA confidential)
May 2 2008Motion filed (AA confidential)
Jun 11 2008Motion denied (confidential)

May 1 2003Appellant's opening brief filed
Nov 24 2003Respondent's brief filed
Jun 4 2004Appellant's reply brief filed
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website