IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
RICHARD LONNIE BOOKER,
Defendant and Appellant.
Super. Ct. No. CR67502
A jury convicted defendant Richard Lonnie Booker of the first degree
murders of Tricia Powalka, Amanda Elliot, and Corina Gandara. (Pen. Code,
§ 187, subd. (a).)1 It also convicted him of arson (§ 451, subd. (b)) and the
attempted murder of Eric S. (§§ 187, 664). It found true special circumstance
allegations of multiple murder as to each count of murder (§ 190.2, subd. (a)(3))
and that Corina was murdered during the commission or attempted commission of
a rape (§ 190.2, former subd. (a)(17)(iii), now (a)(17)(C)) and a lewd act by force
on a child under 14 (§ 190.2, former subd. (a)(17)(v), now (a)(17)(E)).2 The jury
further found that defendant had personally used a handgun and a knife in the
commission of these offenses. (§§ 1192.7, subd. (c)(8), (23), 12022, subd. (b),
All further statutory references are to the Penal Code unless otherwise
The jury found not true the allegation that Powalka was murdered during
the commission or attempted commission of a rape.
12022.5, subd. (a).) The jury returned a verdict of death as to each of the victims.
The trial court denied the automatic application to modify the verdict (§ 190.4,
subd. (e)) and sentenced defendant to death for the three murders and to life with
the possibility of parole and determinate prison terms for the remaining counts and
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
A. Guilt Phase
1. Prosecution evidence
On August 9, 1995, 19-year-old Tricia Powalka lived in an apartment in the
City of Riverside with her six-month-old son, Eric S. Eric‟s cousins, 15-year-old
Amanda Elliot and 12-year-old Corina Gandara, sometimes visited them and
babysat Eric.3 Amanda‟s close friend, 21-year-old Deverick Maddox, twice
previously had visited the apartment to socialize with the young women.
Although Maddox had spent the night at Powalka‟s apartment on a previous
occasion, he denied having a sexual interest in any of the young women.
During the evening of August 9, Maddox visited Powalka‟s apartment while
she was at work; Amanda, Corina, and Eric were there. Amanda suggested
Maddox invite a friend over, so he telephoned defendant and invited him over.
Maddox left the apartment to meet defendant, who had turned 18 a month before;
on the way back, they stopped at a nearby liquor store, purchased two bottles of
fortified wine, and returned to the apartment. Powalka arrived at the apartment,
and then she, Maddox, and defendant went to a store and bought some more
We refer to various related persons by their first names, not from
disrespect, but to avoid confusion.
liquor. The two men and three young women spent the evening drinking, talking,
dancing, playing dominos, listening to music, and watching a movie; a neighbor
was also present for part of the evening. At one point, Powalka retrieved a gun
from the bedroom, showed it to the others, and let defendant handle it. Neighbors
heard talking, laughter, and music until as late as 3:00 a.m.
At some point, Powalka went to her bedroom to go to sleep. Maddox and
defendant fell asleep on the couch in the living room, and Amanda and Corina
slept on the floor. Maddox awoke during the night and noticed Amanda was now
on the couch and defendant was on the floor.
In the early morning, Maddox was awakened by Amanda screaming.
Defendant was standing looking towards the hallway. Amanda entered from the
hallway holding her neck, then dropped to her knees. The other females were not
in the living room. Defendant was holding a knife and a gun in his hands, which
were covered with blood; he was not wearing shoes and his socks also were
covered in blood. Amanda told Maddox she had been heading towards the
bathroom when defendant “sliced” her. Maddox asked defendant if there had been
an accident, and he responded he did it “on purpose,” repeatedly apologized, and
said he “killed them.” When Maddox told defendant they had to call the police,
defendant said he wasn‟t going to go to jail.
Maddox walked down the hallway and saw Corina‟s body in a puddle of
blood in the bathroom. Powalka‟s bloodstained legs were visible in the bedroom.
Maddox started to leave the apartment, but defendant thrust the gun at him and
said, “Shoot me. I rather you kill me than to go to jail, if you tell them.”
Maddox went home. About 6:00 a.m. on August 10, 1995, a coworker of
Maddox‟s father arrived at the Maddox household to drive Maddox‟s father to
work. While there, the coworker saw Maddox enter the house; there was no blood
on him. Later that day, Maddox washed his clothes.
At some point in the morning, defendant telephoned Maddox. Defendant
told Maddox that while talking to Corina he dropped his knife near her and she
accused him of trying to cut her. Defendant said Corina went to tell Powalka, so
he followed her.
About 7:30 a.m., the maintenance supervisor for Powalka‟s apartment
complex received a telephonic page indicating there was a fire in her unit.
Receiving no response to his knocks on Powalka‟s door, the supervisor opened the
door with his master key and discovered Amanda‟s body in the living room and
Powalka‟s body in the bedroom of the smoke-filled apartment. Powalka was
wearing no clothes except a pair of shorts and her panties were rolled around her
left knee. On the stove was a large deposit of ashes. Firefighters arrived and
rescued Eric from his playpen in the bedroom. A firefighter started to drag
Powalka‟s body from the apartment, but stopped after realizing that she already
was dead. A chest of drawers was blocking the bathroom door. Firefighters
moved the chest, looked into the bathroom, and saw Corina‟s body. Corina‟s
shorts and panties, like Powalka‟s, had been rolled down around her left knee.
Corina‟s legs were open and there were bloodstains on her thighs consistent with
the shape of handprints.
Fire investigator Timothy Rise determined the fire had been deliberately
started by placing a nylon bag full of clothes on the stove‟s hot burners. There
was charring on the kitchen cabinets, the overhead light fixtures, and the stove‟s
exhaust vent. In Rise‟s opinion, the amount of smoke in the apartment would have
Powalka‟s neighbors told law enforcement personnel that Maddox was one
of the male visitors from the night before. Detectives located Maddox, transported
him to the police station, and interviewed him there. After initially denying any
involvement, Maddox identified defendant as the other visitor.
After locating and then transporting defendant to the police station that night,
Riverside Police Detective Ron Sanfilippo advised him of his rights under
Miranda v. Arizona (1966) 384 U.S. 436 to remain silent and have counsel present
during questioning. Defendant, who had a cut on one of his hands, initially denied
involvement in the killings. Defendant told the officers his memory of the events
was incomplete and confusing because he had been drinking heavily that night.
Defendant acknowledged Maddox had introduced him to the young women and
they were “kicking back” and having a party at the apartment. Defendant initially
claimed he had left about 3:00 a.m., but revised his story after Sanfilippo told him
that they had already spoken to Maddox.
Defendant then claimed he was absent mindedly playing with his knife when
Corina accidentally bumped into it. Corina asked defendant why he was trying to
stab her and tried to grab the knife, so he “hit” (that is, stabbed) her. Defendant
inconsistently claimed he threw Corina into the bathroom and that she ran in on
her own accord. Defendant said he locked the bathroom door, but denied blocking
it with the chest of drawers.
Defendant provided various explanations for how he killed Powalka.
Defendant initially claimed Powalka threatened to shoot him, so he struck her in
the neck. Defendant then claimed that when he exited the bathroom Powalka put
the gun to his head, so he stabbed her at least twice. Defendant also claimed
Powalka tried to shoot him when he threw Corina into the bathroom, so he struck
Powalka. At some point, defendant knocked the gun out of Powalka‟s hand and
picked it up. As Powalka was lying on the ground, defendant removed her shorts.
Defendant admitted that he returned to the bathroom and told Corina to take
her shorts off, and that he “kind of helped” her while she was lying on the floor.
Defendant admitted he was drunk and did not intend to “make it” with Corina; he
alternatively admitted he “might of touched” her “down there,” but also said he
only “looked” at her “there.” Defendant recalled striking Corina, perhaps more
than once, as she lay on the bathroom floor.
With respect to Amanda, defendant claimed she charged him, so he stabbed
her two or three times in the neck and then shot her as she lay on the ground.
Defendant denied deliberately trying to set the apartment on fire, but
admitted he may have put a laundry bag on top of the stove and turned on the
burner before he left. Defendant denied knowing that Eric was in the apartment
that evening, but recalled hearing a baby cry at some point. Defendant claimed
that, before he left the apartment, he picked up the telephone to call the police, but
then changed his mind and went home and slept.
Defendant described the weapons as being a .22-caliber Beretta handgun and
a knife that was actually two steak knives that he had taped together. Defendant
showed Sanfilippo where he had hidden the handgun near Powalka‟s apartment.
Later, ballistic tests indicated that an ammunition casing recovered from the
apartment was “probably” fired by the recovered handgun. Defendant claimed he
threw the knife into a garbage can, and it was never recovered. Maddox testified
he regularly saw defendant carrying a knife, and one of defendant‟s friends also
testified he had seen defendant with a knife similar to the one used in the killings.
Police officers later searched defendant‟s room and found two steak knives
similarly taped together.
While in jail, defendant told deputies that he should get the death penalty and
be executed “for what he had done,” expressed concerned for his own safety in
custody, and said he wanted to talk to a priest or a pastor because he wanted to die
or kill himself. Defendant was placed in a safety cell because he told a doctor he
wanted to kill himself.
In August 1995, Robert DiTraglia, M.D., a forensic pathologist, performed
autopsies on the victims and concluded all of them had bled to death. Neither fire
nor smoke contributed to their deaths.
Corina suffered multiple “sharp force injuries” (that is, stab and cut wounds)
to the neck and bled to death because her right carotid artery and jugular vein were
severed. Corina bore no signs of genital trauma. Two criminologists compared
hairs obtained by combing Corina‟s pubic region with samples provided by
defendant and Maddox; the criminologists concluded the recovered hairs were
inconsistent with defendant‟s samples but consistent with Maddox‟s and her own.
An analysis of vaginal swabs and Corina‟s clothing did not reveal the presence of
Powalka was stabbed 54 times and had at least 52 cut wounds. Powalka‟s
right carotid artery was severed in one location and almost severed in another; the
right jugular vein also had multiple sharp-force injuries. Powalka bore no signs of
genital trauma. A vaginal smear slide collected from Powalka indicated the
presence of a spermatozoa, but there was insufficient material to perform further
Amanda was stabbed six times and had multiple cut wounds. Her right
carotid artery was partially severed. Amanda also was shot: the bullet entered
behind her left ear, pierced her lungs, and lodged there. The gunshot wound would
have been independently fatal. Amanda also had multiple stab and cut wounds,
consistent with being defensive wounds, that were caused by a serrated knife
2. Defense evidence
Defendant presented no evidence, but impeached Maddox with convictions
for receiving stolen property and discharging a firearm from a car.
B. Penalty Phase
1. Prosecution evidence
a. Defendant’s uncharged violent criminal conduct
On March 22, 1994, defendant stabbed his uncle, Robin Stewart. Stewart,
who was much larger than defendant, had been bullying him for months. On that
day, Stewart shoved defendant against a wall and then threw him out the front
door. Stewart insulted defendant and dared him to come back. Defendant came
back, stabbed Stewart in the stomach, and ran away. Stewart went to the hospital
for treatment. Although Stewart testified defendant was justified in stabbing him,
he had told the police defendant stabbed him for no reason.
During the summer of 1994, defendant‟s former neighbor, Maricely
Ascencio, her husband, and her brother were arguing with one of defendant‟s
relatives. Defendant joined in the argument and threatened to kill Ascencio and
her family if they were “messing with his brother,” so she reported the incident to
the police. Although defendant was unarmed during the argument, Ascencio twice
saw defendant with two taped-together knives that he repeatedly threw against the
Ascencio‟s brother recalled another incident where he saw defendant chasing
an individual down the street while trying to hit him with a stick.
A few months before the murders, defendant and four other men were
arguing near a high school. The four other men started fighting. Defendant pulled
out a knife, but did not engage anyone in combat.
b. Victim impact evidence
Powalka had, in addition to her son Eric, a daughter, Brianna, who was two
years old when Powalka was murdered. Powalka‟s mother, Frankie Sanderson,
described Powalka as “[f]eisty, a lot of fun, very outspoken, [and] just a good
person.” Despite her extensive injuries, Powalka had an open-casket funeral.
Powalka was cremated because her mother believed she “didn‟t like bugs” and
would not have wanted to be in the ground. It was very difficult for Sanderson to
view the autopsy photographs, sort through Powalka‟s belongings, make the
funeral arrangements, apply to be the guardian for her two children, and endure
the holidays, her birthday, and the anniversary of her death. Since Powalka‟s
death, Eric and Brianna had not lived together. Sanderson believed Powalka‟s
death had a negative effect on her health, and accelerated her own mother‟s death.
Sanderson missed Powalka terribly. Linda Baker, Powalka‟s sister, described her
as a happy, fun, outgoing person who was a great mother. Baker started raising
Esther Elliot-Martin, Amanda‟s mother and Corina‟s aunt, described her
daughter as beautiful, intelligent, thoughtful, caring, helpful; good at writing,
music, video games, and making people laugh; and as someone who loved
children, especially Eric. Amanda had written a poem about her brother, which
Elliot-Martin read to the jury. Elliot-Martin missed Amanda, especially on
birthdays, Mother‟s Day, and Christmas; whenever she heard the song “Mandy,”
which was Amanda‟s nickname, Elliot-Martin cried.
Corina was the only child of Nora Gandara, who described her daughter as
her best friend and a warm and caring person. Richard Gandara, Nora‟s husband
and Corina‟s stepfather, described Corina as easy to raise, and as a “straight-A”
student who loved school, played clarinet, composed music, drew, and wrote
stories. Corina also loved Eric. Nora and Richard stayed involved with Corina‟s
school because her murder was so hard on her friends. Because of Corina‟s death,
Nora attempted to commit suicide and had been in a mental institution twice; due
to her condition, Richard had to take care of her. Nora had not been able to find
work, Richard was unable to concentrate at work and had changed jobs three
times, and they were struggling to keep their marriage together.
Ricardo Gandara, Amanda‟s and Corina‟s grandfather, described their family
as extremely close, and said it was “hell on earth” having to deal with his
daughters‟ loss of their children. The holidays were the worst.
The jury viewed videotapes depicting photographs of each of the young
2. Defense evidence
Defendant‟s mother, Natalie Booker, was born with brain damage due to
complications during her birth. Defendant‟s grandmother, Mary Booker-Johnson,
was Natalie‟s caretaker, as she was unable to live independently, handle money,
make rational decisions, or exercise good judgment. Natalie could write her name
but could not read. Natalie, who was 19 years old when she gave birth to
defendant, did not know how to take care of her son or even how to clean a house.
Defendant and Natalie lived with Booker-Johnson for almost all of his childhood.
In school, defendant had problems with reading comprehension and
mathematics and was placed in a special education program in the second or third
In 1991, Natalie was hit by a car and had been comatose in a convalescent
home ever since. Defendant, who was 12 or 13 at the time of the accident, was
devastated, struggled in school, and was not quite the same since the accident.
Booker-Johnson described defendant as a good grandson who had been “a
right hand” to her. Booker-Johnson provided examples of defendant‟s
helpfulness, and testified that she had always known him to be kind and caring.
She loved defendant very much.
Defendant had one son, who was born in 1995 shortly after the murders.
A. Pretrial Issues
1. Failure to initially swear in grand jurors
The trial court did not swear in the grand jury until midway through its
proceedings, and defendant contends this omission constituted a “fundamental
jurisdictional error” that compels reversal.4 These are the relevant facts:
Defendant‟s case was initiated by way of an indictment rather than a
complaint. (See § 682.) On February 28, 1996, the trial court selected the jurors
for a criminal grand jury, including a foreperson, from a pool of potential petit
The person selected as the grand jury foreperson admonished the rest of the
potential grand jurors to step down if they could not act impartially. The
prosecutor made his opening statement. Sanfilippo then testified and played a
portion of the audiotape recording of defendant‟s confession.
Defendant here, and in a number of other claims, urges that the error or
misconduct he is asserting infringed various rights guaranteed by the federal and
state Constitutions. What we stated in People v. Boyer (2006) 38 Cal.4th 412,
441, footnote 17, applies here: “In most instances, insofar as defendant raised the
issue at all in the trial court, he failed explicitly to make some or all of the
constitutional arguments he now advances. In each instance, unless otherwise
indicated, it appears that either (1) the appellate claim is of a kind . . . that required
no trial court action by the defendant to preserve it, or (2) the new arguments do
not invoke facts or legal standards different from those the trial court itself was
asked to apply, but merely assert that the trial court‟s act or omission, insofar as
wrong for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution. To that extent, defendant‟s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional „gloss‟ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”
At this point, the trial court realized that the assembled jurors had not been
sworn in, so it administered the oath for grand jurors.5 The grand jury then
finished listening to the audiotape. Sanfilippo continued to testify. Sanfilippo‟s
partner also testified; during his testimony several photographs were introduced
into evidence. The prosecutor then made his closing argument and instructed the
grand jury. The grand jury returned the indictment at issue.
On April 26, 1996, defendant moved pursuant to section 995 to set aside the
indictment on the ground, among others, that some evidence was presented to the
grand jury before it was sworn in.6 Following a hearing, the trial court denied the
Defendant filed a petition for writ of mandate in the Court of Appeal, which
denied it without comment. (Booker v. Superior Court (Aug. 23, 1996, E018917)
The Attorney General concedes the trial court administered the oath to the
grand jurors after they had heard some testimony, but contends defendant suffered
no prejudice from this belated swearing-in of the grand jurors and thus is not
entitled to relief.
“The following oath shall be taken by each member of the grand jury: „I do
solemnly swear (affirm) that I will support the Constitution of the United States
and of the State of California, and all laws made pursuant to and in conformity
therewith, will diligently inquire into, and true presentment make, of all public
offenses against the people of this state, committed or triable within this county, of
which the grand jury shall have or can obtain legal evidence. Further, I will not
disclose any evidence brought before the grand jury, nor anything which I or any
other grand juror may say, nor the manner in which I or any other grand juror may
have voted on any matter before the grand jury. I will keep the charge that will be
given to me by the court.‟ ” (§ 911.)
Section 995, subdivision (a)(1)(A), provides that an indictment shall be set
aside “[w]here it is not found, endorsed, and presented as prescribed in this code.”
The Attorney General is correct. Under federal and state law, irregularities in
grand jury proceedings generally are reviewed for prejudice. (See, e.g., Bank of
Nova Scotia v. United States (1988) 487 U.S. 250, 254-257 [citing Fed. Rules
Crim.Proc., rule 52(a)]; People v. Jablonski (2006) 37 Cal.4th 774, 800 [citing
Bank of Nova Scotia] (Jablonski).) Isolated exceptions to this general rule, not
applicable to defendant‟s case, have included cases involving discrimination in the
composition of the grand jury based on the grand jurors‟ race (Vasquez v. Hillery
(1986) 474 U.S. 254) or gender (see Ballard v. United States (1946) 329 U.S.
Citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519 (Pompa-Ortiz),
defendant contends the challenge to the indictment that he filed prior to the start of
his trial now relieves him of the burden of demonstrating on appeal the prejudice
he suffered. Not so. In Pompa-Ortiz, we affirmed the defendant‟s conviction
despite irregularities in his preliminary examination; and ruled that, as to pretrial
challenges to irregularities during the preliminary examination, a defendant need
not demonstrate prejudice to obtain relief, but does as to posttrial challenges. (Id.
at p. 529.) We have since extended the rule articulated in Pompa-Ortiz to include
irregularities during grand jury proceedings. (See, e.g., Jablonski, supra, 37
Cal.4th at pp. 800-801.)
Defendant is correct that Pompa-Ortiz did not require a showing of prejudice
during a pretrial challenge to irregularities in the preliminary examination, but
nothing in Pompa-Ortiz suggests that standard of review applies to a posttrial
challenge if the defendant asserted the challenge pretrial. In Jablonski,
notwithstanding the defendant‟s having challenged alleged irregularities during the
grand jury proceedings in a section 995 motion, we rejected the claim as presented
on appeal because he failed to demonstrate prejudice. (Jablonski, supra,
37 Cal.4th at pp. 800-801.) As Pompa-Ortiz and Jablonski demonstrate, the need
for a showing of prejudice depends on the stage of the proceedings at which a
defendant raises the claim in a reviewing court, and not simply on whether he or
she had raised the claim prior to trial. That defendant here, unlike the defendant in
Jablonski, filed a pretrial writ petition does not alter the analysis as to why no
showing of prejudice is required for pretrial challenges to grand jury proceedings
but is required for posttrial challenges.
Defendant also cites Serna v. Superior Court (1985) 40 Cal.3d 239 in support
of the contention that pretrial exhaustion obviates the need for a posttrial showing
of prejudice. In Serna, we granted a pretrial petition for writ of mandate directing
the superior court to dismiss a case on speedy trial grounds. We did so without
requiring a showing of prejudice. In the course of our analysis, we observed, “it is
not unreasonable to require a felony defendant who does not seek or obtain pretrial
relief to demonstrate actual prejudice when reversal of a judgment is sought on
this ground on appeal.” (Id. at p. 263, italics added; see also People v. Stewart
(2004) 33 Cal.4th 425, 461 (Stewart) [“But when such claims are presented for the
first time on appeal . . .” (italics added)].)7 Seizing on the italicized language,
defendant emphasizes that he did in fact seek relief prior to this appeal, and
contends he ought therefore to be excused from the requirement to demonstrate
prejudice. We are not persuaded. Serna and Stewart are consistent with Pompa-
Ortiz‟s rule that whether a showing of prejudice is required depends on the stage
of the proceedings at which the claim is raised in the reviewing court. To the
As defendant notes, Stewart also does state, “As defendant concedes, he
presented none of his current challenges . . . by way of a pretrial writ petition.”
(Stewart, supra, 33 Cal.4th at p. 462.) From this, defendant infers a different
standard would apply if there had been a pretrial writ. Nothing in Stewart‟s
analysis, however, indicates the court would have reached a different result had
the defendant raised the challenges prior to trial.
extent defendant reads Serna or Stewart as implying there exists a different
required showing of prejudice for posttrial challenges based on whether there was
also a pretrial challenge, he is mistaken.
Thus, because this is a posttrial challenge to the grand jury proceedings, any
irregularity in the proceedings requires reversal only if defendant has been
prejudiced. Assuming for the sake of argument that the irregularity violated the
federal Constitution, defendant is entitled to relief unless the prosecution can show
beyond a reasonable doubt that the irregularity did not affect the outcome of trial.
(Chapman v. California (1967) 386 U.S. 18 (Chapman).) Under state law,
defendant bears the burden of demonstrating any error deprived him of a fair trial.
(See Jablonski, supra, 37 Cal.4th at p. 800.)
Here, defendant is not entitled to relief under either standard. As the trial
court noted, the evidence presented to the grand jury after the trial court
administered the oath was sufficient to support an indictment against defendant.
The belated swearing-in of the grand jurors did not have a structural impact on
those proceedings, as the grand jury, once properly sworn, received sufficient
evidence to support the indictment.8 Contrary to defendant‟s assertion, the error is
susceptible to review for actual prejudice because we can review — and, indeed,
have reviewed — the evidence that was presented to the grand jury after it was
sworn. Unlike Vasquez v. Hillery, supra, 474 U.S. 254, where racial animus of the
grand jurors may have affected their decision in whether and how to charge the
defendant, our review of these grand jury proceedings does not require us to
For example, after being sworn in, the grand jury heard testimony from
Sanfilippo that defendant admitted to stabbing the young women with a knife and
removing Powalka‟s and Corina‟s shorts. Sanfilippo also testified defendant
disclosed the location of the firearm, and that officers had recovered a knife from
speculate as to the jurors‟ motives. Consequently, we reject his claim that it is
impossible to determine whether there was sufficient evidence to support his
indictment, and we need not consider his claim that the indictment was based at
least partly on evidence received prior to jury being sworn.
2. Asserted Witt/Witherspoon error
Defendant contends the trial court improperly excused five prospective jurors
who expressed doubts about their willingness to impose the death penalty. Under
state and federal law, prospective jurors may be excused for cause if their views
on the death penalty would prevent or substantially impair the performance of
their duties as jurors, even where the prospective jurors have not made it
“ „unmistakably clear‟ that [they] would „automatically‟ vote a certain way.”
(People v. Carasi (2008) 44 Cal.4th 1263, 1286, quoting Wainwright v. Witt
(1985) 469 U.S. 412, 424 and Witherspoon v. Illinois (1968) 391 U.S. 510, 522,
fn. 21.) Unless a juror makes it clear that he or she is unwilling to set aside his or
her beliefs and follow the law, a trial court may not dismiss a juror under
Witt/Witherspoon based only on answers provided on a juror questionnaire.
(People v. Wilson (2008) 44 Cal.4th 758, 785-787; Stewart, supra, 33 Cal.4th at
p. 451.) Errors under Witt/Witherspoon mandate reversal of the penalty verdict
without regard to prejudice. (People v. Schmeck (2005) 37 Cal.4th 240, 264; see
People v. Tate (2010) 49 Cal.4th 635, 666-667 [Witt/Witherspoon error does not
compel reversal of guilt phase verdict].)
Jury selection in this case started with a large group of prospective jurors,
some of whom were dismissed immediately due to hardship caused by jury
service. Approximately 130 prospective jurors remained, and they were given
questionnaires prepared jointly by the parties. The questionnaire inquired about,
among other topics, the prospective jurors‟ opinions concerning the death penalty.
The trial court noted on the record that, for efficiency‟s sake, the parties had
reviewed the completed questionnaires and, based solely on the responses,
defendant agreed to stipulate to the excusal of some jurors who appeared to
oppose the death penalty while the prosecutor agreed to do likewise for some
jurors appeared to support it. At one point, the trial court explicitly recited it was
not excusing any prospective jurors for cause; rather, the parties were stipulating
to the excusals. In total, the parties stipulated to the excusal of 33 prospective
jurors, five of whom are the basis for this claim. If either party objected to the
excusal of a prospective juror through this process, that person was not excused
but was summoned later for voir dire. The trial court did not excuse any
prospective juror over defendant‟s objection during this process. At the end of the
stipulated excusals, defense counsel stated:
“Your Honor, for the record, [the prosecutor] and I have both reviewed all of
the questionnaires . . . . [¶] And as a matter of trial tactics, we had agreed to enter
into stipulations regarding excusing by my count, 33 of the venire members, as we
believe it‟s to the benefit of our client to do that.”
The trial court then began its voir dire of the remaining prospective jurors,
and eventually the jurors and alternate jurors were seated.
The Attorney General contends defendant has forfeited this claim on appeal,
and we agree. We previously have barred belated challenges to stipulated
excusals of prospective jurors. (See People v. Benavides (2005) 35 Cal.4th 69,
87-89 (Benavides); People v. Ervin (2000) 22 Cal.4th 48, 72-74.)
Defendant nonetheless contends the logic of these decisions was undermined
by other cases, such as Stewart, supra, 33 Cal.4th 425, People v. Heard (2003)
31 Cal.4th 946, and People v. Cash (2002) 28 Cal.4th 703. Not so. Stewart
involved the dismissal by the trial court of prospective jurors based on the
questionnaire responses; in Heard, the trial court improperly dismissed a
prospective juror when during voir dire he clarified his questionnaire responses
and indicated he could follow the trial court‟s instructions; and Cash was
concerned with the trial court‟s refusal to permit questioning on whether specific
acts of aggravation would cause a potential juror to automatically vote in favor of
the death penalty. In contrast, in this case, as in Benavides and Ervin, the parties
stipulated to the dismissal of the prospective jurors.
Our more recent case, People v. Cook (2007) 40 Cal.4th 1334 (Cook), also is
in accord with Benavides and Ervin. In Cook, prospective jurors completed a
questionnaire that inquired about their views on the death penalty. The trial court
permitted both the prosecution and the defense to move to exclude for cause
various prospective jurors based solely on their questionnaires. (Cook, at p. 1341.)
The trial court stated it would dismiss a prospective juror if both parties agreed to
the excusal. (Id. at p. 1342.) The trial court also asked if there were “ „others that
there‟s going to be a challenge for cause that you‟re willing to submit on the
questionnaires?‟ ” (Ibid.) The parties agreed to “ „submit on the questionnaires‟ ”
with respect to some prospective jurors, and the trial court clarified that they
would be “ „thereby waiving [their] right to any further questioning.‟ ” (Ibid.) If
the trial court denied such a challenge, the parties could later question the
prospective juror during voir dire. (Ibid.)
One prospective juror, Maria R., provided answers that cast doubt on her
ability to vote for the death penalty. (Cook, supra, 40 Cal.4th at p. 1341.) The
defendant “submit[ted]” as to the prosecutor‟s challenge for cause to Maria R.; the
trial court granted the challenge, and the defendant did not comment. (Id. at
p. 1342.) On appeal, we ruled the defendant had forfeited his right to complain
about the trial court‟s failure to question Maria R. on voir dire because he
repeatedly agreed to let the trial court decide such challenges for cause based
solely on the questionnaire responses. (Ibid.) In so ruling, we noted that Stewart,
upon which defendant here relies and the defendant in Cook similarly relied,
presented a different situation; there, the trial court granted several challenges for
cause based solely on questionnaire responses over the defendant‟s repeated
objections and without the defendant‟s agreeing to the procedure. (Cook, at
p. 1342; see also Uttecht v. Brown (2007) 551 U.S. 1, 15-20 [rejecting federal
habeas corpus challenge in which defense counsel‟s acquiescence during an
otherwise extensive voir dire supported the trial court‟s excusal of a potential juror
Defendant here, like the defendant in Cook, agreed to the procedure whereby
a prospective juror would be dismissed without voir dire if both parties stipulated
to the dismissal. Of the five prospective jurors about whose dismissal he now
complains, defendant stipulated to the dismissal of all of them; unlike the
defendant in Cook, defendant here did not object to the dismissal of any of the
prospective jurors now challenged on appeal. In addition, defendant declined to
stipulate to the dismissal of several other prospective jurors, and they were later
summoned to voir dire. If defendant had wanted to retain any of the five
dismissed prospective jurors for further questioning, he should not have stipulated
to their dismissal.
Moreover, unlike the prospective jurors in Cook and Stewart, the trial court
here did not excuse any prospective juror for cause — the parties stipulated to the
excusals, as was the case in Benavides and Ervin. Although the discussion
between the trial court and the parties focused on the prospective jurors‟ opinions
about the death penalty, and those expressed opinions formed the basis for the
parties‟ decisions regarding whether to stipulate to the dismissal, no prospective
juror during this stage of the proceedings actually was dismissed for cause.
Defendant contends he stipulated to this presceening procedure only at its
conclusion, and thus could not have forfeited his right to challenge any purported
errors that occurred during it, but this is simply not so: the record indicates the
parties agreed to the procedure at its outset and then entered the stipulation into the
record at its conclusion.
As defendant agreed to and participated in the process whereby some
prospective jurors were excused through stipulations, he has forfeited his right to
complain about this procedure.9 And as none of the five challenged prospective
jurors actually were dismissed for cause, the trial court made no findings on
whether their views on the death penalty would prevent or substantially impair the
performance of their duties as jurors, and we therefore have no basis on which to
exercise our review.
3. Asserted Batson/Wheeler error
Defendant, who is African-American,10 contends the prosecutor improperly
excused four African-Americans (M.L.W., J.M., M.D.W., and D.J.) from the
venire. (People v. Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v.
California (2005) 545 U.S. 162; Batson v. Kentucky (1986) 476 U.S. 79.)
“It is well settled that „[a] prosecutor‟s use of peremptory challenges to strike
prospective jurors on the basis of group bias — that is, bias against “members of
an identifiable group distinguished on racial, religious, ethnic, or similar
grounds” — violates the right of a criminal defendant to trial by a jury drawn from
a representative cross-section of the community under article I, section 16 of the
Were we to rule on the merits of a challenge to the stipulation process, we
would hold the trial court did not abuse its discretion in allowing the parties to
prescreen prospective jurors solely on the basis of their questionnaire responses.
(Benavides, supra, 35 Cal.4th at pp. 88-89.)
None of the victims were African-American.
Two of the seated jurors were African-American. The court noted only 6 or
7 percent of Riverside County residents were African-American.
California Constitution. [Citations.] Such a practice also violates the defendant‟s
right to equal protection under the Fourteenth Amendment to the United States
Constitution. [Citations.]‟ [Citation.]
“The United States Supreme Court recently reaffirmed the procedure and
standard to be used by trial courts when Batson motions challenging peremptory
strikes are made. „ “ „First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race[; s]econd, if that
showing has been made, the prosecution must offer a race-neutral basis for
striking the juror in question[; and t]hird, in light of the parties‟ submissions, the
trial court must determine whether the defendant has shown purposeful
discrimination.‟ ” [Citation.]‟ (Snyder v. Louisiana (2008) 552 U.S. 472, 476-
477.)” (People v. Hamilton (2009) 45 Cal.4th 863, 898.)
As explained below, we reject defendant‟s challenge to each of the excusals.
a. Factual background
As noted, after hardship excusals approximately 130 potential jurors
completed the juror questionnaire. Defense counsel noted that, according to the
completed questionnaires, 64 percent of these prospective jurors identified
themselves as Caucasian, 14 percent as Hispanic, 8 percent (10 out of 132) as
African-American, 2 percent as Asian, 2 percent as other, and 10 percent did not
specify. From this group, the parties stipulated to the excusal of at least 33
potential jurors. The trial court first questioned the prospective jurors, followed by
counsel for each party.
From the panel of the first 20 prospective jurors, the prosecutor challenged a
Hispanic prospective juror without objection.
(1) Prospective Juror M.L.W.
When the prosecutor exercised his second peremptory challenge, against
M.L.W., defendant made a motion under Batson/Wheeler.
Answers to the juror questionnaire indicated that M.L.W. was a religious
person who opposed the death penalty and believed it was generally unnecessary,
as murderers “will always have to answer to God and that‟s much worse than
facing death.”11 M.L.W. nonetheless expressed a willingness to set aside her
personal beliefs. M.L.W.‟s brother had been arrested for selling drugs, but
M.L.W. felt he was fairly treated by the criminal justice system.
On voir dire, M.L.W. reiterated a willingness to set aside her personal beliefs
regarding the death penalty. M.L.W. also was a crime victim: While driving on
the freeway, someone pointed a gun at M.L.W., but she believed this experience
would not affect her ability to serve as a juror.
In response to defendant‟s Batson/Wheeler motion, the trial court ruled
defendant had failed to make a prima facie case of racial discrimination, although
it did note that the first prospective juror peremptorily excused by the prosecutor
was Hispanic. The trial court also noted M.L.W.‟s religious reservations about the
death penalty. Because the trial court ruled defendant had not made a prima facie
case, the prosecutor did not explain why he peremptorily challenged M.L.W. The
prosecutor later expressed concerns about M.L.W.‟s religious beliefs and about
jurors who felt they might be sinning or “going to hell” if they voted in favor of a
The prosecutor originally had sought to excuse for cause M.L.W. based on
her questionnaire answers, but the trial court stated that it “would deny the
challenge on that basis.”
The prosecutor then excused three more jurors, including an African-
American (G.N.), without objection.
(2) Prospective Juror J.M.
The prosecutor exercised his sixth peremptory challenge against J.M., and
defendant made another Batson/Wheeler motion.
The juror questionnaire asked prospective jurors to indicate whether any
relatives or close friends had been accused of a crime, and J.M. left this question
blank. J.M.‟s other responses indicated a generally favorable opinion of the death
On voir dire, the trial court asked J.M. if any family member had been
accused of a crime, and J.M. said that none had. The prosecutor then pointed out
that J.M.‟s son had been prosecuted as a juvenile; J.M. responded by expressing
confusion over whether the question applied to juvenile proceedings.
In denying defendant‟s Batson/Wheeler motion, the trial court ruled
defendant failed to make a prima facie showing, as J.M. was “obviously hiding
something.” The prosecutor also accused J.M. of lying under oath and said there
was no way J.M. would be kept on the panel.
(3) Prospective Juror M.D.W.
The prosecutor exercised his seventh peremptory challenge against M.D.W.,
and defendant made a Batson/Wheeler motion.
Like M.L.W., M.D.W.‟s juror questionnaire indicated she was a religious
person but could set aside those beliefs for jury duty. M.D.W. indicated the death
penalty was appropriate for a person who “deliberately and maliciously causes
severe harm to others,” but “the death penalty should only be used in instances
where there can be no rehabilitating” and other people are at risk. The
questionnaire also indicated M.D.W.‟s aunt was charged with a crime and her
children were taken away from her when the aunt‟s boyfriend killed one of the
children in his care. Despite the emotional nature of that situation, M.D.W. felt
“justice was served.”
On voir dire, M.D.W. acknowledged that rehabilitation was just one possible
factor in determining the appropriate penalty.
The trial court again ruled there was no prima facie showing of
discrimination, citing M.D.W.‟s concerns about rehabilitation; the trial court also
noted her own awareness of being a “highly opinionated” person. The prosecutor
acknowledged M.D.W. had given “correct verbal answers” but he felt she actually
would be unable to vote for death.
The prosecutor then exercised three more peremptory challenges without
(4) Prospective Juror D.J.
When the prosecutor exercised his 11th peremptory challenge, against D.J.,
defendant again made a Batson/Wheeler motion.
D.J.‟s juror questionnaire indicated he worked as a loss prevention officer for
a department store and had family members who worked in law enforcement.
D.J.‟s younger brother had tossed his infant son (D.J.‟s nephew) into the air and
failed to catch him, and the child died. Although the brother was convicted of
manslaughter, D.J. felt the outcome was fair. D.J.‟s church was opposed to the
death penalty, but he expressed a willingness to vote for the death penalty if it was
The trial court denied defendant‟s Batson/Wheeler motion, finding no prima
facie showing based on D.J.‟s religious beliefs and some inconsistencies in
answers about his incarcerated brother. The prosecutor also noted D.J.‟s body
language was “angry and/or at least very uncomfortable,” and noted D.J.‟s concern
about his brother‟s conviction. But the prosecutor was most concerned with D.J.‟s
religious beliefs and purported willingness to ignore those beliefs; the prosecutor
suspected D.J. may have had a hidden agenda to spare defendant from the death
After the prosecutor had used his 13th (of 20 total) peremptory challenges,
and defendant had used seven of his 20, the parties accepted the jury.
During the selection process for the alternate jurors, the prosecutor used all
four of his peremptory challenges, including one against an African-American
(M.R.), without objection.
b. Legal contentions
In denying defendant‟s Batson/Wheeler motions, the trial court first found no
prima facie showing of discrimination, and then explained its reasons for doing so;
the court, however, then invited the prosecutor to make additional remarks. The
prosecutor each time concurred in the trial court‟s remarks and made additional
observations. Thus, similar to People v. Mills (2010) 48 Cal.4th 158, 173-174
(Mills), this case is a first stage/third stage Batson hybrid, as the record contains
both the prosecutor‟s reasons and the trial court‟s evaluation (albeit implicit) of
those reasons. Thus, as we did in Mills, we will express no opinion on whether
defendant established a prima facie case of discrimination and skip to Batson‟s
third stage and evaluate the prosecutor‟s reasons for challenging these prospective
“ „Review of a trial court‟s denial of a [Batson/Wheeler] motion is
deferential, examining only whether substantial evidence supports its conclusions.
[Citation.] “. . . We presume that a prosecutor uses peremptory challenges in a
constitutional manner and give great deference to the trial court‟s ability to
distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial
court makes a sincere and reasoned effort to evaluate the nondiscriminatory
justifications offered, its conclusions are entitled to deference on appeal.
[Citations.]” ‟ ” (People v. Taylor (2009) 47 Cal.4th 850, 886 (Taylor).)
“As part of our analysis, we consider as „bearing on the trial court‟s factual
finding regarding discriminatory intent‟ [citation] the comparisons of prospective
jurors challenged and unchallenged that defendant expounds in his briefs, though
few if any of these comparisons were made in the trial court. At the same time,
„we are mindful that comparative juror analysis on a cold appellate record has
inherent limitations.‟ [Citation.] In addition to the difficulty of assessing tone,
expression and gesture from the written transcript of voir dire, we attempt to keep
in mind the fluid character of the jury selection process and the complexity of the
balance involved. „Two panelists might give a similar answer on a given point.
Yet the risk posed by one panelist might be offset by other answers, behavior,
attitudes or experiences that make one juror, on balance, more or less desirable.
These realities, and the complexity of human nature, make a formulaic comparison
of isolated responses an exceptionally poor medium to overturn a trial court‟s
factual finding.‟ [Citation.]” (Taylor, supra, 47 Cal.4th at p. 887.)
As noted, with respect to each of the challenged prospective jurors, the trial
court ruled defendant failed to demonstrate an inference of racial bias. Defendant
contends the trial court erred in so ruling, as the prosecutor used six of his 13
peremptory challenges (including four of his first seven) to excuse African-
Americans.12 Only 10 of the prospective jurors in the venire, defendant observes,
With respect to G.N., the African-American prospective juror whom the
prosecutor challenged without drawing an objection from defendant, the trial court
noted that G.N. was “so far out on the outlying end of the bell curve” that there
(Footnote continued on next page.)
Defendant contends we cannot rely on the trial court‟s “speculations” about
the prosecutor‟s possible reasons for challenging these prospective jurors. We
disagree. The prosecutor expressly adopted the trial court‟s reasons, and his
additional observations supplemented those of the trial court. Although defendant
contends we “can have no confidence that the prosecutor‟s stated race-neutral
reasons were really his own,” there is nothing in the record to indicate they were
not. Notably, the prosecutor explicitly adopted the trial court‟s reasons; there is no
need for us to engage in speculation as to the prosecutor‟s reasons for the
challenges, as the prosecutor actually offered reasons. Moreover, the record
supports the inference that the prosecutor‟s offered reasons were genuine, as his
questioning of each of these prospective jurors focused on the exact bases that the
trial court cited in its rulings.
The trial court correctly denied defendant‟s Batson/Wheeler motion with
respect to J.M. because of his less than forthcoming responses on the juror
questionnaire and during voir dire regarding whether any family members were
ever accused of committing a crime. Although defendant on appeal repeats J.M.‟s
stated confusion regarding whether the inquiry applied to juvenile adjudications,
and contends there is “no reason to believe [J.M.] deliberately concealed this
information” or “had some hidden agenda or would be biased against the
prosecutor,” the trial court and the prosecutor, who had the opportunity to observe
(Footnote continued from previous page.)
was no dispute as to his excusal. Similarly, Prospective Alternate Juror M.R.
expressed so many negative experiences with law enforcement and the judicial
system that both parties declined to ask further questions about those experiences.
Thus, their excusals do not help defendant establish a pattern of discriminatory
J.M.‟s demeanor, concluded J.M. had been untruthful. On the record before us,
J.M.‟s reluctance to discuss these matters sufficiently demonstrates that the
proffered reasons for dismissing J.M. were not pretextual.
M.L.W., M.D.W., and D.J., the subject of defendant‟s first, third, and fourth
Batson/Wheeler motions, were primarily excused due to their expressed
reservations about the death penalty, reservations that were rooted in their
religious beliefs.13 In denying defendant‟s motions, the trial court noted that the
prosecutor also had challenged prospective jurors of other races who expressed
religious objections or concerns about the death penalty. The trial court then
related its experience that African-Americans, as a group, are less supportive of
the death penalty.
Defendant contends the trial court‟s comment about the effect of African-
Americans‟ beliefs, as a group, on their ability to serve as capital jurors
demonstrated impermissible racial bias. Not so. The prosecutor excluded these
specific three prospective jurors not because of their race but rather because of
their expressed doubts about the death penalty. And, as defendant concedes, a
juror‟s reservations about the death penalty constitute a valid race-neutral reason
for a peremptory challenge. (E.g., People v. Salcido (2008) 44 Cal.4th 93, 140-
141 (Salcido).) To the extent defendant contends these religious reservations
acted as a proxy for racial discrimination, as the trial court noted and defendant
concedes, the prosecutor also challenged jurors of other races based on these same
M.D.W., M.L.W., and D.J. also had family members who had experiences
with the criminal justice system. The prosecutor specifically expressed concern
over D.J.‟s brother‟s prosecution for the death of the brother‟s child, and how that
experience might affect D.J.‟s ability to serve as a juror. A negative experience
with the criminal justice system is a valid neutral reason for a peremptory
challenge. (E.g., People v. Lenix (2008) 44 Cal.4th 602, 628.)
reservations. (See People v. Williams (1997) 16 Cal.4th 153, 190-191 [reliance on
a reason asserted to be a proxy for race is permissible if there is a specific link
between the stated reason and the basis for the challenge].) Consequently,
defendant fails to demonstrate that the prosecutor‟s concerns over the prospective
jurors‟ religious reservations were pretextual.
Defendant nonetheless contends the excusal of these prospective jurors acted
as impermissible religious discrimination. As defendant did not articulate this
basis for his objection in the trial court, he has forfeited the claim on appeal. (See
People v. Thornton (2007) 41 Cal.4th 391, 462.) In any event, the claim lacks
merit, as there is no evidence in the record the prosecutor discriminated against
any particular religious denomination. Nor is there any evidence the prosecutor
excluded prospective jurors who expressed some sort of religious belief, or a
religious belief that might theoretically interfere with the ability to return a death
verdict. Rather, the prosecutor challenged only those who actually expressed a
possible conflict between their religious beliefs and duties as a juror, which as we
have noted, is permissible.
4. Asserted failure to determine racial bias of jurors
Defendant contends the trial court erred by failing to determine whether any
of the prospective jurors might be biased against him due to his race. As noted,
defendant is African-American, his victims were not, and at the time of his trial,
Riverside County was populated primarily by Caucasians.
The juror questionnaire did not expressly ask the jurors about any potential
racial biases they might have, although one question did ask if there was anything
about defendant‟s “appearance” that might cause a prospective juror to be biased.
No prospective juror answered in the affirmative. During voir dire, defense
counsel did ask the first group of prospective jurors whether any of them would be
affected by the differences in race between defendant and the victims, and, again,
no prospective juror responded in the affirmative.
As we have held repeatedly and as defendant implicitly acknowledges, he
cannot complain on appeal about the trial court‟s failure to question the venire on
racial prejudice unless he has requested specifically such an inquiry. (People v.
Rogers (2009) 46 Cal.4th 1136, 1152-1153.) Defendant participated in drafting
the juror questionnaire, questioned potential jurors but asked only one question
during voir dire about differences between his race and the race of the victims, and
does not justify his failure to request or conduct a more thorough inquiry. As
such, defendant‟s reliance on People v. Taylor (1992) 5 Cal.App.4th 1299 is
unavailing because in that case, unlike here, the trial court controlled the voir dire
and did not permit the attorneys to ask questions directly. Consequently, this
claim is forfeited.
Citing People v. Holt (1997) 15 Cal.4th 619 (Holt), defendant nonetheless
contends the trial court was required to propound specific questions designed to
reveal racial prejudice. Not so. In Holt, we ruled a trial court could not prevent
counsel from asking such questions (see id. at pp. 660-661), but Holt in no way
obligates a trial court to undertake such an inquiry. Similarly, in Ristaino v. Ross
(1976) 424 U.S. 589, 597, footnote 9, another case on which defendant relies, the
high court ruled that “voir dire questioning directed to racial prejudice was not
constitutionally required.” When race is “inextricably bound up” with the issues
to be tried, however, a trial court might be required to make such an inquiry on its
own initiative. (Id. at p. 597.) But other than the bare fact of the difference
between the races of defendant and the victims, nothing about the circumstances
of this crime suggests race played any role. (See ibid.; cf. Ham v. South Carolina
(1973) 409 U.S. 524 [inquiry into racial prejudice was relevant as the defendant
was a civil rights activist who claimed he had been framed by law enforcement
Even were we to agree that the interracial nature of this crime required
further voir dire, we would find no reversible error. “Unless the voir dire by a
court is so inadequate that the reviewing court can say that the resulting trial was
fundamentally unfair, the manner in which voir dire is conducted is not a basis for
reversal. [Citation.]” (Holt, supra, 15 Cal.4th at p. 661; see People v. Robinson
(2005) 37 Cal.4th 592, 620-623.) Defendant had the opportunity to further
examine potential jurors about possible racial bias, either directly or indirectly
through the juror questionnaire, but defense counsel apparently found no need to
do so; moreover, defense counsel did not exhaust his allotment of peremptory
challenges. (See People v. Taylor (2010) 48 Cal.4th 574, 607-610 (Taylor).)
Consequently, defendant‟s trial was not fundamentally unfair.
B. Guilt Phase Issues
1. Admission of crime scene photographs
Petitioner contends the trial court abused its discretion by admitting
inflammatory, gruesome, cumulative, and irrelevant photographs of the victims‟
bodies and the surrounding crime scene.
Prior to the start of trial, defendant sought to exclude some photographs of
the victims (taken at the crime scene or during their autopsies), arguing the nature
of their wounds and the fact that the young women had once been alive was not in
dispute. After conducting a hearing, the trial court excluded six photographs of
Powalka (and not 12 others), one photograph of Amanda (and not 21 others), and
five photographs of Corina (and not 15 others). In lieu of the autopsy
photographs, defendant offered to stipulate to the cause of death for each of the
victims, but the prosecutor refused the stipulation. Of the 48 photographs not
excluded during this hearing, 39 ultimately were admitted into evidence at trial.
Defendant objected at trial to the admission of four photographs of the crime
scene on the grounds of relevance and being unduly prejudicial; the trial court
overruled the objections. In total, the trial court admitted more than 100
photographs into evidence during the guilt phase.
We review for an abuse of discretion a trial court‟s admission of evidence.
(People v. D’Arcy (2010) 48 Cal.4th 257, 298 (D’Arcy).) Having reviewed the
photographs, we conclude the trial court did not abuse its discretion in admitting
At the outset, we note defendant did not object to many of the photographs
admitted at trial; he also does not specify on appeal which photographs are the
basis for this claim. As the failure to raise a timely objection forfeits the claim for
appeal (see Evid. Code, § 353; People v. Carey (2007) 41 Cal.4th 109, 126), he
cannot now complain about the majority of the photographs that were admitted.
Regardless, even if defendant‟s claim could be applied to every photograph
admitted at trial, his argument would still lack merit.
Defendant cites a variety of cases, some more than 50 years old, for the
proposition that a trial court can abuse its discretion by admitting particularly
gruesome photographs. As general rule this may be true, but cases of more recent
vintage have recognized that photographs of murder victims are relevant to help
prove how the charged crime occurred, and that in presenting the case a prosecutor
is not limited to details provided by the testimony of live witnesses. (E.g., D’Arcy,
supra, 48 Cal.4th at p. 299; see Evid. Code, § 350 [only relevant evidence is
admissible].) The trial court, in applying this principle, properly reviewed the
challenged photographs. It did not abuse its discretion in excluding some and
ruling that others were relevant in proving the prosecutor‟s theory of the case, and
that their probative value was not substantially outweighed by their prejudicial
impact. (E.g., Mills, supra, 48 Cal.4th at pp. 191-192; see Evid. Code, § 352
[evidence that is relevant still may be excluded if it creates a substantial danger of
prejudicing, confusing, or misleading the jury, or would consume an undue
amount of time].)
Citing People v. Poggi (1988) 45 Cal.3d 306, 322-323 (Poggi) and People v.
Ramos (1982) 30 Cal.3d 553, 577-578, defendant contends the prosecutor was
obligated to accept his offer to stipulate to the cause of death of each of the murder
victims. Defendant‟s reliance on these cases is misplaced, as both involved
photographs of the victims while alive, which were used to demonstrate they were
killed by the attacks in question.14 The prosecutor here did not introduce the
photographs from the crime scene and autopsies solely to establish the fact of their
deaths, but rather to demonstrate that defendant committed murder. As
defendant‟s plea of not guilty put all elements of each offense at issue (e.g.,
People v. Steele (2002) 27 Cal.4th 1230, 1243), defendant‟s mental state during
the commission of the crimes was relevant, and his proposed stipulation would not
have relieved the prosecutor from proving this element. Despite the graphic
nature of some of these photographs, the prosecution may present a persuasive and
forceful case, and except as limited by Evidence Code section 352, it is not
required to sanitize its evidence. (See, e.g., Salcido, supra, 44 Cal.4th at p. 147.)
Defendant nonetheless argues none of the photographs “had any tendency in
reason to prove that these offenses were premeditated as opposed to being
Over defendant‟s objection, the trial court did admit some photographs of
the victims while they were alive. To the extent defendant contends on appeal that
the trial court erred in admitting these photographs, any such error was not
prejudicial. (See, e.g., Poggi, supra, 45 Cal.3d at p. 323.)
impulsive, rash, unconsidered acts.” But as the trial court noted, many of
photographs highlighted the attacks on the victims‟ throats, which tended to prove
an intent to kill. Malice aforethought is an element of murder. (§ 187, subd. (a).)
The photographs also supported the prosecutor‟s argument that the same person
committed all of these crimes.15 Moreover, the prosecutor alleged Powalka and
Corina were murdered during the commission or attempted commission of rape
(and that Corina was murdered during the commission or attempted commission
of a lewd act). Some of the photographs depicted their nearly identical states of
undress, which could have helped prove the necessary mental state required for
Defendant further contends the photographs should have been excluded as
cumulative to the testimony provided by live witnesses, but we have often rejected
that argument (e.g., D’Arcy, supra, 48 Cal.4th at p. 299), and do so again here.
Defendant also contends the photographs were cumulative, but the trial court did
exercise its discretion and excluded some photographs as cumulative. To the
extent that objection has not been forfeited with respect to the remaining
photographs, defendant does not specify on appeal which photographs were
cumulative to the others (see People v. Farnam (2002) 28 Cal.4th 107, 185), and
as more than 100 photographs were admitted into evidence at trial, we decline to
hazard a guess on his behalf.
2. Sufficiency of the evidence
Defendant contends there was insufficient evidence to support the
convictions of first degree murder, attempted murder, and arson, as well as the
During the closing argument in the guilt phase, defense counsel argued
there was a possibility that Maddox committed some (and possibly all) of the
special circumstances of murder during the commission or attempted commission
of rape or a lewd act, or multiple murders. During closing argument for the guilt
phase, defense counsel argued there was a possibility that Maddox committed
some — or all — of these acts. Defense counsel also urged that, if the jury
believed defendant had murdered the victims, he should be found guilty only of
second degree murder.
“ „When considering a challenge to the sufficiency of the evidence to support
a conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence — that is, evidence
that is reasonable, credible, and of solid value — from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . .
We presume in support of the judgment the existence of every fact the trier of fact
reasonably could infer from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact‟s findings, reversal of the judgment is not
warranted simply because the circumstances might also reasonably be reconciled
with a contrary finding. [Citation.] A reviewing court neither reweighs evidence
nor reevaluates a witness‟s credibility. [Citation.]‟ [Citation.]” (D’Arcy, supra,
48 Cal.4th at p. 293.) The same standard of review applies in evaluating the
sufficiency of the evidence to support special circumstance findings. (E.g., People
v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).)
a. First degree murder
Defendant contends the evidence at trial demonstrated that he killed the
victims as a result of an “unconsidered or rash impulse” rather than with the
premeditation and deliberation required for first degree murder.
A murder that is willful, deliberate, and premeditated is murder in the first
degree. (§ 189.) “ „A verdict of deliberate and premeditated first degree murder
requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to
careful weighing of considerations in forming a course of action; “premeditation”
means thought over in advance. [Citations.] “The process of premeditation does
not require any extended period of time. „The true test is not the duration of time
as much as it is the extent of the reflection. Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly. . . .‟
[Citations.]” ‟ [Citation.]” (People v. Harris (2008) 43 Cal.4th 1269, 1286-1287.)
“ „Generally, there are three categories of evidence that are sufficient to
sustain a premeditated and deliberate murder: evidence of planning, motive, and
method. [Citations.] . . . But these categories of evidence, borrowed from People
v. Anderson (1968) 70 Cal.2d 15, 26-27, “are descriptive, not normative.”
[Citation.] They are simply an “aid [for] reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere unconsidered or rash
impulse.” [Citation.]‟ [Citation.]” (People v. Elliot (2005) 37 Cal.4th 453, 470-
471 (Elliot).) These three categories are merely a framework for appellate review;
they need not be present in some special combination or afforded special weight,
nor are they exhaustive. (See, e.g., People v. Brady (2010) 50 Cal.4th 547, 562
Defendant contends the evidence at trial indicated that he “accidentally
nicked” Corina, who then overreacted and accused him of trying to stab her.
Then, as Corina fled to the bathroom, defendant contends, Powalka threatened to
shoot him with the gun, so he disarmed her. Amanda then charged defendant, he
claims, and in the ensuing melee he stabbed the two young women (and eventually
shot Amanda in the head). From this, defendant concludes, he is guilty of
manslaughter (on a theory of imperfect self-defense) or, at worst, three counts of
second degree murder spurred by an unconsidered and rash impulse. While such a
scenario might have been possible (although not entirely consistent with what
defendant told the police), on review we do not reevaluate the credibility of
witnesses or resolve factual conflicts; rather, we presume the existence of every
fact in support of the verdict that could reasonably be inferred from the evidence.
(See Lindberg, supra, 45 Cal.4th at p. 27.) Under this standard, the prosecution‟s
evidence supported the verdict.
With respect to Powalka and Amanda, the evidence supports these first
degree murder convictions: a trier of fact reasonably could have concluded that
after defendant‟s initial incident with Corina, he murdered these two victims
because they could identify him. (See, e.g., Elliot, supra, 37 Cal.4th at pp.
470-472 [the jury could have concluded a victim was killed to eliminate her as a
witness].) Although the decision to kill Powalka and Amanda may have been
formed quickly, a trier of fact reasonably could have concluded that defendant
killed them in a cold and calculated attempt to silence them.
With respect to Corina, the evidence also similarly supports a conviction of
first degree murder. Although defendant claims he only “nicked” Corina, the
wounds on her throat indicate she, too, was killed deliberately. Even under
defendant‟s version of the events that night, Corina either retreated to the
bathroom or he threw her in there. Defendant told the police that he then locked
the bathroom. Defendant denied barricading the bathroom door with the chest of
drawers, but a trier of fact reasonably could have concluded otherwise, as that
certainly was a reasonable explanation (if not the most reasonable one) as to who
placed the furniture there and for what purpose. Regardless, defendant told the
police that Corina was alive when she went into the bathroom and he trapped her
in there. From this, a trier of fact reasonably could have concluded that prior to
returning to the bathroom to eventually kill Corina, defendant rapidly and coolly
concluded he needed to eliminate her, too, as a witness.
Defendant contends it would have been illogical for him to kill the young
women yet let Maddox live. The evidence at trial, however, supports the
reasonable conclusion that the two men were friends, and that defendant believed
Maddox would not tell the police about the crimes. Maddox in fact did not report
the killings and initially lied to the police when he was questioned.
To the extent defendant argues the young women had just met him and thus
would not have been unable to identify him, which would have obviated the need
to kill them (to eliminate them as witnesses), this rationale also fails: the young
women all knew Maddox, and also knew Maddox knew defendant. Had any of
the young women survived, they would have readily identified their assailant as a
friend of Maddox‟s, which, as the evidence at trial demonstrated, would have led
the police to defendant. In addition, the young women had spent much of the
night with defendant, making it more likely they would be able to identify him,
contrary to defendant‟s arguments.
b. Rape and lewd act by force
Notwithstanding the sufficiency of the evidence to support his first degree
murder conviction for murdering Corina on a theory of premeditation and
deliberation, defendant contends the evidence at trial did not prove that he raped
Corina, committed a lewd act on her by force, or attempted to do either for
purposes of a felony-murder theory. As noted, in addition to the first degree
murder convictions, the jury further found true that Corina‟s murder was
committed during the commission or attempted commission of a rape16 (§ 190.2,
Rape is, among other acts not relevant here, sexual intercourse
“accomplished against a person‟s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the person or
another.” (§ 261, subd. (a)(2).)
former subd. (a)(17)(iii), now (a)(17)(C)) or a lewd act by force on a child under
1417 (§ 190.2, former subd. (a)(17)(v), now (a)(17)(E)). Corina was 12 years old
when defendant committed these crimes.
In addition to instructing the jury that a verdict of first degree murder
required the jury find that defendant acted with premeditation and deliberation, the
trial court instructed it in the alternative that a murder is committed in the first
degree if the killing occurred “during the commission or attempted commission of
the crime of rape or lewd act by force with a child.” (See § 189.)
For felony murder, the required mental state is the specific intent to commit
the underlying felony. (People v. Friend (2009) 47 Cal.4th 1, 49 (Friend).) The
killing is considered to be committed in the perpetration of the underlying felony
if the acts were part of a continuous transaction. (E.g., People v. Prince (2007)
40 Cal.4th 1179, 1259 (Prince).) No strict causal or temporal relationship
between the murder and underlying felony is required. (E.g., ibid.)
The jury found true the special circumstance that Corina‟s murder was
committed while defendant “was engaged in . . . the commission of, attempted
commission of, or the immediate flight after committing, or attempted to commit”
rape or a lewd act by force. (§ 190.2, subd. (a)(17).) As with felony murder, there
need not be a strict temporal relationship between the murder and the target felony
Section 288, subdivision (a), prohibits “willfully and lewdly commit[ting]
any lewd or lascivious act . . . upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the
child . . . .” Section 288, subdivision (b)(1) prohibits a lewd act committed by
“use of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person . . . .”
for purposes of the special circumstance finding. (E.g., People v. Rowland (1992)
4 Cal.4th 238, 271-272.)
An attempt to commit a crime requires the specific intent to commit the
target crime (in this case, rape or a lewd act by force) and a direct but ineffectual
act, beyond mere preparation, done towards its commission. (People v. Rundle
(2008) 43 Cal.4th 76, 138, disapproved on another ground by People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 21.) Intercourse after death does not necessarily
negate the felony-murder rule or the rape-murder special-circumstance finding, as
postmortem intercourse could constitute an attempt to commit rape, provided it
was part of a continuous transaction and the intent to commit rape was formed
prior to the murder. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1299-
1301 (Lewis).) The same is true for a postmortem lewd act. (See, e.g., People v.
San Nicolas (2004) 34 Cal.4th 614, 660-661 (San Nicolas).)
Defendant contends there was insufficient evidence to support the inference
that he intended to commit a sexual act on Corina. Defendant correctly notes
Corina did not exhibit any signs of genital trauma, and no semen was found on her
body or clothing. As noted, however, Corina was discovered with her shorts and
panties around her left knee, her legs spread open, and with bloodstains on her
thighs that were consistent with hand prints.
Citing People v. Anderson (1968) 70 Cal.2d 15, People v. Granados (1957)
49 Cal.2d 490, and People v. Craig (1957) 49 Cal.2d 313, defendant contends the
physical evidence was insufficient to support a finding that he intended to commit
a sexual act. Anderson, Granados, and Craig are dependent on their particular
facts. Defendant, notably unlike the defendants in those three cases, at one point
admitted to the police that he “kind of helped” Corina take off her shorts and
“might of touched” her “down there”; he also admitted that he touched her during
the course of removing her shorts and the bloodstains on her thighs were
consistent with handprints. Thus, the case against defendant rested on more than
simply Corina‟s nudity. (See, e.g., Lewis, supra, 46 Cal.4th at pp. 1290-1291,
fn. 24.) Thus, a reasonable trier of fact could have relied upon the physical
evidence, coupled with defendant‟s (albeit somewhat equivocal) admission, and
concluded that he took direct action toward the commission of a lewd act.
Moreover, Powalka, like Corina, had her shorts and panties rolled around her
left knee; this similarity supports the inference that he harbored the lustful intent
required by section 288. In People v. Holloway (2004) 33 Cal.4th 96, 138-139, we
affirmed a burglary conviction (and related special circumstance finding) where a
conclusion that the defendant possessed the requisite felonious intent to commit
rape reasonably could have been drawn from the fact that he entered the victim‟s
residence after attempting to sexually assault another victim outside the residence.
In this case, Corina‟s and Powalka‟s nearly identical states of undress similarly
support the inference that Corina‟s murder occurred during an attempt to commit a
lewd act with her.18
Defendant finally contends there was insufficient evidence Corina was alive
when he sexually assaulted her, or at least attempted to do so. A trier of fact,
however, reasonably could have concluded Corina was alive during the sexual
assault (or attempt), as defendant specifically told the police he instructed her to
remove her shorts and then “kind of helped” her in doing so. For defendant to
have so instructed Corina and then assisted in removing her shorts, she necessarily
still must have been alive at the time. Regardless, even if Corina‟s death preceded
defendant‟s sexual assault on her, a trier of fact reasonably could have found the
As noted, however, the jury did not find true the special circumstance
allegation that Powalka was murdered during the commission of rape or attempted
assault and murder to be a continuous course of conduct, and that defendant
formed the intent to sexually assault Corina while she was still alive. (See Lewis,
supra, 46 Cal.4th at pp. 1299-1301; San Nicolas, supra, 34 Cal.4th at pp.
Defendant contends there was insufficient evidence he started the fire in the
apartment with the intent to destroy the crime scene, and thus did not commit
arson.19 Defendant told the detectives he might have placed the bag of clothing on
the kitchen stove and then turned on the burner.
Arson, as a general intent crime, requires only that a person possess the intent
to burn (or cause to be burned) a structure (or forest land or property); it does not
require an intent to do a further act or achieve a future consequence. (See People
v. Atkins (2001) 25 Cal.4th 76, 87-89.)
Defendant, cursorily citing several cases, contends the prosecutor failed to
prove the typical indicia of arson, such as multiple distinct fires in the dwelling,
the presence of inflammatory materials or accelerants, a motive such as
indebtedness, or a history of pyromania. Defendant here, however, admitted he
starting the fire by placing flammable materials on a stove and then turning it on;
in other words, this fire was not accidental. Consequently, a trier of fact
reasonably could have concluded that he intended to set the apartment on fire.
That his methodology was not the most efficient way to start a fire does not
Arson is committed when a person “willfully and maliciously sets fire to or
burns or causes to be burned . . . any structure, forest land, or property.” (§ 451.)
As the term is used in section 451, “maliciously” involves acting with “a wish to
vex, defraud, annoy, or injure another person, or an intent to do a wrongful
act . . . .” (§ 450, subd. (e).)
undermine the jury‟s finding that he intended to burn the structure. Moreover,
given that defendant had committed three murders, his possible motive for arson
was readily apparent: to spoliate the crime scene and create a distraction while he
made his escape.
d. Attempted murder
Defendant contends there was insufficient evidence he attempted to murder
Powalka‟s infant son, Eric. Defendant denied knowing Eric was in the apartment,
but recalled hearing a baby cry during the evening.
Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. (People v.
Ervine (2009) 47 Cal.4th 745, 785 (Ervine).) Attempted murder requires express
malice, that is, the assailant either desires the victim‟s death, or knows to a
substantial certainty that the victim‟s death will occur. (See People v. Smith
(2005) 37 Cal.4th 733, 739.)
Defendant contends the evidence does not support the finding that he
intended to kill Eric. Defendant claims he did not know Eric was in the apartment,
as he told the police only that he had heard a baby, somewhere, crying that night.
Eric‟s playpen, however, was next to Powalka‟s bloodstained bed. Given his
acknowledgment of the presence of a baby and the location of the playpen, a trier
of fact reasonably could have concluded defendant was aware Eric was in the
apartment when defendant attempted to set it on fire. Furthermore, defendant
placed flammable materials on a stove and turned it on, which generated a lethal
amount of smoke and caused moderate damage to the kitchen. Thus, a trier of fact
reasonably could have found that defendant, by starting a fire and then leaving the
apartment, was substantially certain that the remaining inhabitant — a helpless
infant — would be killed. That the fire did not spread to other rooms, or that Eric
was rescued before dying from smoke inhalation, does not undermine the jury‟s
finding regarding defendant‟s intent.
e. Multiple-murder special-circumstance findings
Defendant contends there was insufficient evidence to support the multiple-
murder special-circumstance findings, because for this special circumstance to
apply at least one of the murders must have been in the first degree, and he
disputes the sufficiency of the evidence to establish that any of the murders were
of the first degree. (See § 190.2, subd. (a)(3); People v. Cooper (1991) 53 Cal.3d
771, 828.) As we have explained, however, the evidence supports the jury‟s
verdict that all three murders were of the first degree.
As noted, the jury found true the multiple-murder special-circumstance
allegation with respect to each victim. Defendant contends, and we agree, that two
of the three multiple-murder special-circumstance findings are superfluous. (E.g.,
People v. Zamudio (2008) 43 Cal.4th 327, 363.) Prior to the start of the penalty
phase, however, the trial court explained to the jury that its three separate findings
were to be considered as a single special circumstance. Moreover, the judgment
reflects only one multiple-murder special-circumstance finding. Although
defendant is correct two of the jury‟s three multiple-murder special-circumstance
findings were superfluous, the trial court‟s instructions removed any potential
error, and the judgment correctly reflects a single finding.
3. Lack of jury instruction on necessity of a live victim
Defendant contends the trial court erred by failing to instruct the jury, on its
own motion, that the commission of a rape or lewd act by force required a live
victim. Although defendant did not request a jury instruction on this precise point,
he contends there was sufficient evidence that Corina was dead before he sexually
assaulted her, and the trial court therefore was required to instruct the jury it was
not legally possible for him to commit rape or a lewd act by force if she already
was dead, he knew she was dead, and he formed the intent to commit the sex act
only after she had died.
The crime of rape requires a live victim; the intent to have sexual intercourse
with a dead body is neither rape nor attempted rape. (E.g., Lewis, supra,
46 Cal.4th at pp. 1299-1301.) The same is true for committing a lewd act. (See,
e.g., San Nicolas, supra, 34 Cal.4th at pp. 660-661.)
This contention lacks merit. Defendant‟s contrary assertions on appeal
notwithstanding, his statements to police implied Corina was alive when he helped
her remove her shorts. Defendant admitted Corina was bleeding at the time, but
he specifically told the police that “[s]he wasn‟t stabbed all the way, I only cut
[her] a little bit.” Although defendant stated Corina was lying down at the time
and did not say anything, that is not evidence that she was dead, especially in light
of defendant‟s specific statement that her injuries were not serious at that time.
And, as noted, defendant also initially told the police that he ordered Corina to
remove her shorts; defendant does not explain why he would give orders to
someone who was already dead.
Even were we to agree with defendant that the evidence suggested Corina
already might have been dead, the trial court did not err in failing to instruct on its
own motion as to this particular theory. In criminal cases, even absent a request, a
trial court is obligated to instruct the jury on all general principles of law relevant
to the issues raised by the evidence. (E.g., People v. Martinez (2010) 47 Cal.4th
911, 953 (Martinez).) A trial court, however, has a duty to instruct on its own
initiative on a particular defense only if it appears the defendant is relying on such
a defense, or substantial evidence supports the defense and it is consistent with
defendant‟s theory of the case. (Ibid.)
At trial, defendant did not rely upon the theory that Corina was already dead;
rather, defense counsel suggested that Maddox was partially (or totally)
responsible for the crimes, or, alternatively, that defendant‟s own actions did not
rise to the level of first degree murder. Although this claim that Corina was
already dead, raised for the first time on appeal, is not entirely inconsistent with
the theory defendant presented at trial, as we have explained, no substantial
evidence was presented at trial that would have compelled the trial court to
instruct the jury on this particular defense.
Defendant relies heavily on People v. Sellers (1988) 203 Cal.App.3d 1042
(Sellers), in which the Court of Appeal reversed the defendant‟s conviction of rape
and first degree murder, as well as a rape-murder special-circumstance finding,
due to the trial court‟s failure to instruct the jury that rape requires a live victim.
Sellers is readily distinguishable, however, because in that case substantial
evidence was presented at trial that the victim was dead when the defendant had
sexual intercourse with her body. Under the defendant‟s theory of the case in
Sellers, he killed the victim, left and returned to the crime scene an hour or two
later, and then performed the sex act. This substantial passage of time bolstered
the defendant‟s theory the victim was dead, that he formed the intent to commit
the sex act only after her death, and that the rape and murder were not part of a
continuous course of conduct. Moreover, the lack of a live victim was a key
theory of the defendant‟s case, and the trial court there refused to use the
defendant‟s proffered jury instructions that highlighted this theory. Similarly, in
People v. Kelly (1992) 1 Cal.4th 495 (Kelly), due to instructional error we reduced
a rape conviction to attempted rape because there was some evidence that the
defendant, despite his admission to the contrary, killed a victim at one location and
had sexual intercourse with her body in another. This reduction, however, had no
effect on the accompanying murder and special circumstance findings. (Id. at
In contrast to Sellers and Kelly, the evidence presented at defendant‟s trial of
any purported postmortem sexual activity (or intent) consisted solely of a highly
charitable interpretation of defendant‟s statements to the police, as he never
specifically told them he sexually assaulted Corina (or formed the intent to do so)
only after her death. Even if Corina was dead when defendant removed her shorts,
the evidence at trial still supported a theory that defendant‟s acts constituted a
continuous course of conduct following from an intent that defendant formed
while Corina was still alive. As we have explained, ante, the evidence was
sufficient to support the conviction for first degree murder based on a felony-
murder theory, as well as the related felony-murder special-circumstance findings.
In addition, there was no evidence the killing and sexual assault took place at
different locations. Moreover, defendant at trial did not advance, let alone rely on,
this theory of the case. Consequently, the trial court did not err in failing to
instruct the jury on a theory of the case that was neither substantially supported by
the evidence nor relied on by defendant at trial.
To the extent defendant contends the trial court failed to instruct the jury that
an antemortem-formed intent to commit rape or a lewd act by force is required for
a first degree felony-murder conviction, we repeatedly have held that CALJIC No.
8.21,20 which the trial court read to the jury here, adequately conveys that the
CALJIC No. 8.21, as modified and read by the trial court, provided: “The
unlawful killing of a human being, whether intentional, unintentional, or
accidental, which occurs during the commission or attempted commission of the
crime or rape or lewd act by force with [a] child is murder of the first degree when
the perpetrator had the specific intent to commit the crime. [¶] The specific intent
to commit rape or lewd act by force with [a] child and the commission or
attempted commission of such crime must be proved beyond a reasonable doubt.”
required intent must be formed before the murder occurred. (E.g., People v. Jones
(2003) 29 Cal.4th 1229, 1258-1259.)
4. Lack of jury instruction on lesser included offense of manslaughter
Defendant contends the trial court erred by refusing his request to instruct the
jury on voluntary manslaughter with respect to the deaths of Powalka and
Amanda.21 Defendant told the police that he accidentally “nicked” Corina, and
Powalka responded by retrieving her handgun and threatening to shoot him.
Defendant then claimed he struck Powalka and took the gun from her. Amanda,
defendant told police, charged him, and during the ensuing melee he stabbed both
victims and eventually shot Amanda.
As noted, a trial court is obligated to instruct the jury on all general principles
of law relevant to the issues raised by the evidence. (E.g., Martinez, supra,
47 Cal.4th at p. 953.) It is error for a trial court not to instruct on a lesser included
offense when the evidence raises a question whether all of the elements of the
charged offense were present, and the question is substantial enough to merit
consideration by the jury. (E.g., Taylor, supra, 48 Cal.4th at pp. 623-625.) When
there is no evidence the offense committed was less than that charged, the trial
court is not required to instruct on the lesser included offense. (E.g., People v.
Moye (2009) 47 Cal.4th 537, 548 (Moye).) Voluntary manslaughter is a lesser
included offense of murder. (E.g., id. at p. 549.)
The trial court refused to instruct the jury with CALJIC Nos. 8.37
(manslaughter — defined), 8.40 (voluntary manslaughter — defined), 8.42
(sudden quarrel or heat of passion and provocation explained), 8.43 (murder or
manslaughter — cooling period), 8.44 (no specific emotion alone constitutes heat
of passion), 8.50 (murder and manslaughter distinguished), 8.72 (doubt whether
murder or manslaughter), and 8.74 (unanimous agreement as to offense — first or
second degree murder or manslaughter).
On appeal, we review independently whether the trial court erred in failing to
instruct on a lesser included offense. (E.g., People v. Avila (2009) 46 Cal.4th 680,
Defendant, relying on People v. Vasquez (2006) 136 Cal.App.4th 1176,
contends there was sufficient evidence that he committed voluntary manslaughter
under a theory of imperfect self-defense, and thus the trial court should have
instructed the jury on this lesser included offense. Imperfect self-defense is the
killing of another human being under the actual but unreasonable belief that the
killer was imminent danger of death or great bodily injury. (E.g., People v. Cruz
(2008) 44 Cal.4th 636, 664.) Such a killing is deemed to be without malice and
thus cannot be murder. (E.g, ibid.) The doctrine of imperfect self-defense cannot
be invoked, however, by a defendant whose own wrongful conduct (for example, a
physical assault or commission of a felony) created the circumstances in which the
adversary‟s attack is legally justified.22 (E.g., People v. Valencia (2008)
43 Cal.4th 268, 288; cf. People v. Randle (2005) 35 Cal.4th 987, 1001-1003
[defendant‟s retreat, and the subsequent recovery of the decedent‟s stolen goods,
extinguished the decedent‟s legal justification to attack], overruled on another
ground by People v. Chun (2009) 45 Cal.4th 1172, 1201; Vasquez, supra,
Defendant cursorily contends that Powalka and Amanda were not legally
justified in using force against him, but the use of force, even deadly force, to
defend a third party may be legally justified. (E.g., §§ 197, ¶ 1 [“Homicide is also
justifiable when . . . : [¶] . . . resisting any attempt to murder any person, or to
commit a felony, or to do some great bodily injury upon another person”], 694.)
The evidence highlighted by defendant indicates Powalka threatened to use force
to defend Corina, and Amanda attempted to use force to defend Powalka;
conversely, there was no evidence that the women‟s actions against him were not
legally justified, his argument on appeal notwithstanding.
136 Cal.App.4th at pp. 1178-1180 [although the defendant initiated the verbal
quarrel, the decedent‟s physical response was unlawful].)
Defendant contends he was entitled to an instruction on imperfect self-
defense, as there was evidence that he (actually but unreasonably) believed he was
in imminent danger of being killed or suffering great bodily injury at the hands of
Powalka and Amanda. As defendant initiated the attack on Corina, however, and
there was no evidence that Powalka‟s and Amanda‟s subsequent actions were not
legally justified, he may not claim imperfect self-defense.
Defendant nonetheless contends there was evidence that he was not the initial
aggressor because he told the police that he accidentally inflicted Corina‟s
injuries, and thus he claims his conduct was not wrongful. (See § 26, class Five.)
Accordingly, defendant contends because there was evidence that he harbored no
criminal intent when he first cut Corina, there was sufficient evidence to warrant
the voluntary manslaughter instruction.
Even were we to agree with defendant that an “accidental” stabbing is not
wrongful, which according to him would allow him to claim imperfect self-
defense, the evidence was not sufficiently substantial to warrant this jury
instruction. (See, e.g., Taylor, supra, 48 Cal.4th at pp. 623-625.) Defendant told
the police, “I already stabbed [Corina] once on accident[;] I just stabbed her
again.” (Italics added.) As such, any potential claim of imperfect self-defense
evaporated when he intentionally stabbed Corina a second time. Although
defendant on appeal prefers to highlight his statements to the police in which he
omitted mentioning this second, intentional stabbing, the evidence introduced at
trial — consisting of his contradictory accounts of how he stabbed Corina —
simply was not substantial enough to merit the requested jury instruction.
Finally, defendant contends he was entitled to a voluntary manslaughter
instruction based on a theory of heat of passion,23 claiming he was provoked into
killing Powalka and Amanda by their aggressive actions towards him.
Unsurprisingly, defendant fails to cite any case or statutory law supporting his
proposition that Powalka‟s anger at him for cutting Corina, and Amanda‟s later
anger for his attack on Powalka, somehow “provoked” him into killing them.
Consequently, the trial court did not err in declining to instruct the jury on this
5. Asserted prosecutorial misconduct
Defendant contends the prosecutor, during closing arguments, improperly
attempted to shift the burden of proof onto him. During the closing argument, the
prosecutor told the jury:
“I had the burden of proof when this trial started to prove the defendant
guilty beyond a reasonable doubt, and that is still my burden. It‟s all on the
prosecution. I‟m the prosecutor. That‟s my job.
“The defendant was presumed innocent until the contrary was shown. That
presumption should have left many days ago. He doesn‟t stay presumed
Defendant objected to this remark; in response, the trial court instructed the
jury: “Well, ladies and gentlemen, the presumption of innocence is the point at
which you start the case. At some point you come to the conclusion the person is
Murder is the unlawful killing of a human being with malice aforethought.
(See § 187, subd. (a).) A murder, however, may be reduced to voluntary
manslaughter if the victim engaged in provocative conduct that would cause an
ordinary person with an average disposition to act rashly or without due
deliberation and reflection. (E.g., Moye, supra, 47 Cal.4th at pp. 549-550.)
guilty, the presumption is gone. On the other hand, if you find the person is not
guilty, the presumption of innocence is always there. Again, you have to interpret
how to use that.”
After this instruction, the prosecutor continued: “As the Court instructed
you, I was correct, that the defendant starts out with the presumption of innocence.
That doesn‟t stay. That isn‟t an automatic thing forever. That‟s why we have a
trial. Once the evidence convinces you he is no longer innocent, that presumption
vanishes. That‟s all it is.”
Later during his closing argument, the prosecutor stated: “If you read
histories about the theory of reasonable doubt — not theory, the facts and the
presumption of innocence, you‟ll understand that when the law tried many
centuries ago to prove — there was a requirement at one time that everything had
to be proved absolutely. They found they couldn‟t do it. They could never prove
everything absolutely to anybody as long as it had to do with human affairs. There
was no way to ensure that, so you were allowed some possible or imaginary doubt.
The real test, the law says, is do you have an abiding conviction as to the truth of
the charges. Don‟t you already before we go through it?” Outside the presence of
the jury, defendant objected to these remarks, and the trial court overruled the
After defendant‟s objections, the prosecutor argued to the jury, “The one
thing I want to make clear to you about reasonable doubt and presumption of
innocence is something that I would like you to keep in mind . . . is this: Until you
reach a verdict, of course the defendant is not guilty. If a presumption attaches to
a defendant when the trial starts, if they are then found guilty somewhere along the
way, of course that presumption has vanished.” Defendant did not object to this
The trial court instructed the jury the prosecutor was required to prove
beyond a reasonable doubt every essential element of the charged offenses
(Footnote continued on next page.)
A prosecutor‟s conduct violates the federal Constitution when it infects the
trial with unfairness, and violates state law if it involves the use of deceptive or
reprehensible methods of persuasion. (See, e.g., Martinez, supra, 47 Cal.4th at
p. 955.) To preserve a misconduct claim for appellate review, a defendant must
make a timely objection and ask the trial court to admonish the jury to disregard
the remark (or conduct) unless such an admonition would not have cured the harm.
(E.g., id. at p. 956.) When the claim focuses on the prosecutor‟s comments to the
jury, we determine whether there was a reasonable likelihood that the jury
construed or applied any of the remarks in an objectionable fashion. (Friend,
supra, 47 Cal.4th at p. 29.)
A defendant is presumed innocent until proven guilty, and the government
has the burden to prove guilt, beyond a reasonable doubt, as to each element of
each charged offense. (§ 1096; e.g., People v. Kobrin (1995) 11 Cal.4th 416, 419;
People v. Freeman (1994) 8 Cal.4th 450, 501-505.) Defendant contends the
prosecution‟s remarks lessened its burden of proof by implying defendant was not
entitled to be presumed innocent.
This contention lacks merit. In People v. Goldberg (1984) 161 Cal.App.3d
170, 189-190, the Court of Appeal rejected a similar claim, noting that similar
(Footnote continued from previous page.)
(CALJIC No. 2.61); defendant was presumed innocent until the contrary was
proven beyond a reasonable doubt (CALJIC No. 2.90); and to disregard any
conflicting statements made by the attorneys concerning the law (CALJIC
To the extent defendant contends the prosecutor‟s remarks misstated the
burden of proof required to prove guilt beyond a reasonable doubt, automatic
reversal under Sullivan v. Louisiana (1993) 508 U.S. 275 is not compelled because
the trial court properly instructed the jury on the required burden of proof.
comments by the prosecutor in that case were merely rhetorical restatements of the
law as reflected in section 1096 and CALJIC No. 2.90. As the Court of Appeal
noted, “Once an otherwise properly instructed jury is told that the presumption of
innocence obtains until guilt is proven, it is obvious that the jury cannot find the
defendant guilty until and unless they, as the fact-finding body, conclude guilt was
proven beyond a reasonable doubt.” (Goldberg, supra, 161 Cal.App.3d at
pp. 189-190, original italics.) We agree. Although we do not condone statements
that appear to shift the burden of proof onto a defendant (as a defendant is entitled
to the presumption of innocence until the contrary is found by the jury), the
prosecutor here simply argued the jury should return a verdict in his favor based
on the state of the evidence presented.
Defendant relies upon United States v. Perlaza (9th Cir. 2006) 439 F.3d
1149, 1169, in which the prosecutor argued to the jury, “ „[The presumption of
innocence], when you go back in the room right behind you, is going to vanish
when you start deliberating. And that’s when the presumption of guilt is going to
take over you . . . .‟ ” (Original italics.) The Ninth Circuit ruled the prosecutor‟s
remark constituted misconduct, and that the trial court‟s curative instruction failed
its correct its initial ratification of the prosecutor‟s argument when it stated in the
presence of the jury, “ „That‟s proper rebuttal. Go ahead. You are all right.‟ ”
(Id. at p. 1171, fn. 25.) Perlaza, which is not binding on us, is distinguishable as
not only did that prosecutor make an incorrect statement of law (“ „presumption of
guilt‟ ”), but the error was compounded by the trial court‟s initial ratification of
the misstatement (“ „[y]ou are all right‟ ”), and the Ninth Circuit ruled the curative
instruction neither set forth the prosecutor‟s burden of persuasion (that is, proof
beyond a reasonable doubt), nor clarified that the presumption of innocence
“ „goes with the jury when it deliberates.‟ ” (Id. at pp. 1171-1172 & fn. 25.)
Although defendant here contends the prosecutor‟s argument (and the trial court‟s
follow up remarks) in his case failed to specify explicitly that the presumption of
innocence continued until jury deliberations, that concept was addressed
adequately by CALJIC No. 2.90, which the trial court read to the jury. Moreover,
the prosecutor here emphasized that he bore the burden of proof beyond a
reasonable doubt, and defense counsel noted he had no burden of proof and argued
the prosecutor had failed to meet his burden. As such, the jury was not misled.
Defendant also relies on People v. Hill (1998) 17 Cal.4th 800, 831, in which
we concluded it was reasonably likely that the prosecutor‟s remark, “ „There has
to be some evidence on which to base a [reasonable] doubt‟ ” (italics original),
was understood by the jury to mean the defendant had the burden of producing
evidence to demonstrate that a reasonable doubt existed. Although we reversed
the verdict in Hill, that was but one of the many acts of prosecutorial misconduct
and other errors that plagued that trial.
Even were we to assume the prosecutor committed misconduct, prejudice is
lacking under either the state law (see People v. Watson (1956) 46 Cal.2d 818,
836) or the federal constitutional standard of review (see Chapman, supra,
386 U.S. at p. 24). Viewing the prosecutor‟s statements in the context of his entire
argument, the jury was properly informed about the prosecutor‟s burden, and the
evidence of defendant‟s guilt (notably, his own confession) was overwhelming.
6. Cumulative error
Defendant contends that if we do not conclude that any individual guilt phase
error mandates reversal, the cumulative effect of the guilt phase errors requires
reversal. We disagree. To the extent that there are a few instances in which we
found or assumed the existence of error, we concluded that no prejudice resulted
from any such error. Accordingly, the cumulative nature of the guilt phase errors,
if any, does not lead us to conclude that defendant was denied a fair trial.
C. Penalty Phase Issues
1. Admission of photographs
Defendant contends the trial court erred by “re-introduc[ing]” during the
penalty phase the photographs it admitted into evidence during the guilt phase.
During the penalty phase, the prosecutor did not introduce any new photographs
but rather referenced the ones previously introduced, and the trial court instructed
the jury that it could consider the evidence admitted during the entire trial.
Photographic evidence is generally admissible, just as all relevant evidence is
admissible (unless excluded by the federal or state Constitution or by statute), and
trial courts have broad discretion in determining relevance. (E.g., D’Arcy, supra,
48 Cal.4th at p. 298.) As we have noted repeatedly, the trial court‟s discretion to
exclude photographs as unduly prejudicial during the penalty phase is even more
circumscribed than admission of photographs during the guilt phase, as “ „ “ the
sentencer is expected to subjectively weigh the evidence, and the prosecution is
entitled to place the capital offense and the offender in a morally bad light.” ‟
[Citations.]” (Id. at p. 299, original italics.)
As discussed, ante, we have reviewed the photographs and the trial court did
not abuse its discretion in admitting the photographs during the guilt phase. With
respect to the penalty phase, the photographs graphically here depicted the crime
scene and the victims‟ wounds, and as such were relevant to the penalty
determination as evidence of the circumstances of the crime. (See § 190.3,
factor (a); see, e.g., D’Arcy, supra, 48 Cal.4th at pp. 298-299.) Accordingly, it
was permissible for the jury to rely on those photographs during the penalty phase,
and the trial court did not err in instructing the jury that it could consider the
evidence admitted during the guilt phase.25
2. Admission of evidence of uncharged violent criminal conduct
Defendant contends the trial court erred by admitting evidence of uncharged
violent criminal conduct. Over defense objection, the trial court permitted the
prosecutor to introduce evidence that defendant: stabbed his uncle; threatened a
neighbor; chased someone down the street while wielding a stick; and displayed a
knife while others fought.
Jurors may consider evidence of uncharged violent criminal conduct by
defendant that involved the use or attempted use of force or violence, or express or
implied threat to use force or violence, but only if they were convinced beyond a
reasonable doubt that defendant had engaged in such activity.26 (See, e.g., People
v. Wallace (2008) 44 Cal.4th 1032, 1079.) Although a trial court lacks the
discretion to exclude all such evidence, it retains the traditional discretion to
exclude specific evidence if it is misleading, cumulative, or unduly prejudicial.
Defendant notes other jurisdictions have prohibited or otherwise limited the
introduction of uncharged violent criminal conduct. (See Cook v. State
(Ala. 1979) 369 So.2d 1251, 1257; Provence v. State (Fla. 1976) 337 So.2d 783,
786-787; State v. McCormick (Ind. 1979) 397 N.E.2d 276; Scott v. State
To the extent defendant contends the photographs caused an alternate juror
to become physically ill during defense counsel‟s penalty phase closing argument,
the record does not disclose why the alternate juror became ill, but there is no
indication the photographs caused the illness.
Specifically, the trial court instructed the jury on the elements of assault
with a deadly weapon, making terrorist threats, brandishing a deadly weapon, and
battery. The trial court also instructed the jury on self-defense and attempt.
(Md. 1983) 465 A.2d 1126, 1132-1134; Commonwealth v. Hoss (Pa. 1971) 283
A.2d 58, 68-69; State v. Bartholomew (Wn. 1984) 683 P.2d 1079, 1082-1085.) As
defendant concedes, however, we repeatedly have ruled there is no prohibition
against such evidence in California.27 (E.g., People v. Gurule (2002) 28 Cal.4th
557, 653-654.) Defendant offers no persuasive reason to reexamine these prior
Defendant further contends evidence of this violent criminal activity was
unduly prejudicial and misleading, and violated his constitutional rights to due
process and to a fair and reliable penalty determination. Defendant fails to explain
how any of the evidence was misleading, other than weakly suggesting the
evidence wrongly portrayed him as a “dangerous knife wielding assassin.”
“Prejudice” in the context of Evidence Code section 352 is not synonymous with
“damaging”: it refers to evidence that poses an intolerable risk to the fairness of
the proceedings or reliability of the outcome. (See People v. Alexander (2010)
49 Cal.4th 846, 904-905.) Although the evidence of his violent criminal activity
likely was damaging to defendant, he fails to demonstrate how it was unduly
prejudicial — the inference that he was dangerous was entirely proper.
Accordingly, the trial court did not abuse its discretion in admitting this evidence,
and defendant‟s constitutional rights were not violated.
Defendant finally contends the prosecutor failed to prove beyond a
reasonable doubt that his uncharged conduct rose to the level of violent criminal
activity. “We review the record „for substantial evidence from which a jury could
Defendant‟s recitation of federal case law (see Estelle v. McGuire (1991)
502 U.S. 62; Spencer v. Texas (1967) 385 U.S. 554; McKinney v. Rees (9th Cir.
1993) 993 F.2d 1378; Panzavecchia v. Wainwright (5th Cir. 1981) 658 F.2d 337;
Murray v. Superintendent, Ky. State Penitentiary (6th Cir. 1981) 651 F.2d 451) is
conclude beyond a reasonable doubt that violent criminal activity occurred.‟
[Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 194 (Carrington).)
Defendant does not dispute that he stabbed his uncle, but rather contends he
did so in self-defense, which would make his use of force lawful. Although the
uncle‟s testimony supported defendant‟s claim of self-defense, other evidence
indicated defendant was not in imminent danger, and that he stabbed his uncle out
of anger. Moreover, the trial court instructed the jury with the elements of self-
defense, which we presume it understood and applied. (See, e.g., People v. Butler
(2009) 46 Cal.4th 847, 873.)
Defendant similarly does not dispute saying that he would kill a neighboring
family, but rather contends one of the neighbors testified that he was not afraid of
defendant.28 Another neighbor, however, did feel threatened, and reported
defendant‟s statements to the police.
Defendant further does not dispute that he chased somebody down the street
while wielding a stick. Although there was no evidence defendant actually struck
this other person with the stick, the evidence supported the inference that he was
attempting to do so.
In California, it is unlawful to “willfully threaten to commit a crime
which will result in death or great bodily injury to another person, with the
specific intent that the statement, made verbally, in writing, or by means of an
electronic communication device, is to be taken as a threat, even if there is no
intent of actually carrying it out, which, on its face and under the circumstances in
which it is made, is so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an immediate prospect
of execution of the threat, and thereby causes that person reasonably to be in
sustained fear for his or her own safety or for his or her immediate family‟s
safety.” (§ 422.)
Defendant finally does not dispute that he drew his knife while others fought.
Brandishing a weapon may be committed by drawing or exhibiting a weapon in a
rude, angry, or threatening manner. (§ 417, subd. (a)(1); e.g., People v. Sanders
(1995) 11 Cal.4th 475, 542.) A weapon need not be pointed at the victim to be
threatening. (E.g., Sanders, supra, 11 Cal.4th at p. 502 [sufficient evidence when
the defendant positioned a rifle at victim after a coperpetrator said, “ „Shoot him.
Shoot him.‟ ”].) “For purposes of the conduct which [section 417] is meant to
deter, it is enough that the brandishing be in public, in the presence of the victim,
where some third party happening along might get the idea that either the victim or
brandisher need help, or might think a brawl is in the making which he might join.
The thrust of the offence is to deter the public exhibition of weapons in a context
of potentially volatile confrontations.” (People v. McKinzie (1986)
179 Cal.App.3d 789, 794 [ruling victim‟s awareness of the weapon not required].)
Although defendant did not join in the physical altercation, sufficient evidence
was introduced that he participated in the argument giving rise to the fight and that
he drew his knife in the context of the confrontation.
3. Admission of victim impact evidence
Defendant contends the trial court erred by admitting victim impact evidence
that was irrelevant, cumulative, unduly prejudicial, and inflammatory.
Unless it invites a purely irrational response, evidence of the effect of a
capital murder on the loved ones of the victim is relevant and admissible under
section 190.3, factor (a), as a circumstance of the crime. (E.g., People v. Burney
(2009) 47 Cal.4th 203, 258 (Burney).) The federal Constitution bars victim impact
evidence only if it is so unduly prejudicial as to render the trial fundamentally
unfair. (Burney, at p. 258, citing Payne v. Tennessee (1991) 501 U.S. 808, 825.)
Over defendant‟s objection to the victim impact evidence, six relatives of the
three victims testified over the course of two days about the impact the murders
had on their lives. After the first witness testified, defendant objected to her
testimony and moved for a mistrial, which the trial court denied. In addition, over
defendant‟s objections, the jury viewed three videotapes depicting photographs of
On appeal, defendant first contends the trial court erred by admitting the
videotapes. The trial court ruled the videotapes were admissible, but ordered the
prosecutor to remove the audio track, which contained sentimental music.
We have viewed the three videotapes. The videotape for Powalka is four
minutes in length; Amanda‟s is five minutes long; and Corina‟s is seven minutes
long. There is no sound on any of the videotapes. Each videotape depicts a series
of photographs of the victims; in some photographs, they are alone, in others they
are with persons who are presumably friends or family members. The
photographs depict the young women engaging in a variety of activities or
enjoying various holidays. Corina‟s videotape also includes a photograph of what
appears to be a school display commemorating her being named student of the
Citing Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330, defendant
contends these videotapes amounted to inadmissible “photographic eulogies.”
Although we have acknowledged the constitutional issues implicated by Salazar,
it is not binding on us. (E.g., People v. Kelly (2007) 42 Cal.4th 763, 797-799
(Kelly).) In Kelly, for example, this court ruled the trial court did not abuse its
discretion in admitting an approximately 20-minute videotape containing a
montage of photographs and video clips from the life (from her infancy until
shortly before her death) of the victim, a 19-year-old woman. (Id. at p. 796.) The
videotape in Kelly was narrated by the victim‟s mother and soft music played in
the background. (Ibid.)
As with the videotape in Kelly, the videotapes here supplemented but did not
duplicate the other victim impact evidence, and properly humanized the three
young women. (See Kelly, supra, 42 Cal.4th at p. 797.) Also as in Kelly, the
videotapes did not emphasize any particular aspects of the young women‟s lives;
they did overwhelmingly depict them in childhood, but the victims were, after all,
still young when defendant killed them. (See ibid.) The combined length of these
three videotapes was less than the one videotape admitted in Kelly. Notably,
unlike the videotape in Kelly, none of these videotapes had an audio soundtrack.
Accordingly, the trial court did not err in admitting these videotapes; we are
satisfied the videotapes did not invite a purely irrational response from the jury.
Defendant next contends the victim impact evidence was unnecessarily
cumulative and that the trial court abused its discretion in denying his motion for a
mistrial. After the prosecution‟s first victim impact witness, Frankie Sanderson
(Powalka‟s mother), testified, defendant objected and moved for a mistrial,
arguing in essence that her testimony was cumulative, as she testified for over 30
minutes, and that some of her testimony was irrelevant as it was not proper victim
impact evidence. The trial court overruled defendant‟s objection and denied the
motion for a mistrial, but advised the prosecutor to be more succinct with other
witnesses. The trial court indicated it did not want to “have everybody in the
audience like they are, crying and teary-eyed like they are . . . .”
Defendant‟s contention lacks merit, as he fails to specify exactly what
evidence was cumulative. Although the trial court cautioned the prosecutor to be
more succinct after Sanderson testified, it did not abuse its discretion in denying
defendant‟s motion for a mistrial, as Sanderson‟s testimony, although evocative,
did not invite a purely irrational response from the jury.
Defendant quotes Cargle v. State (Okla.Crim.App. 1995) 909 P.2d 806, 830,
in which the Oklahoma Court of Criminal Appeals stated, “The more a jury is
exposed to the emotional aspects of a victim‟s death, the less likely their verdict
will be a „reasoned moral response‟ to the question whether a defendant deserves
to die; and the greater the risk a defendant will be deprived of Due Process,” and
thus contends the jury here was overly exposed to the emotional aspects of the
victims‟ deaths. To bolster this argument, defendant notes that after Sanderson
testified, the court declared a brief recess. During the break, an audience member
pulled out his wallet, approached the bailiff in the elevator, and said, “How much
money would it cost for you to leave for five minutes?” Believing the audience
member was expressing a desire to harm defendant, the bailiff responded, “You
don‟t have enough money.” As the audience member was about to reply, the
bailiff said, “You don‟t say anything else now.” Also in the elevator were
Sanderson, her friend, and a juror. Outside the presence of the other jurors, the
trial court and counsel questioned the juror who was in the elevator. The juror
acknowledged hearing the bailiff, but did not hear what the audience member had
said. The juror was not fazed by the exchange, and said it would not affect her
decision making ability.
As additional evidence of the emotional nature of the victim impact evidence,
defendant also notes that while testifying, Nora (Corina‟s mother) at one point said
she was “very sad” and felt “very faint.” The prosecutor offered to stop, but Nora
requested a minute to compose herself, and then continued to testify.
Defendant‟s contention lacks merit, as Cargle is not binding on us;
moreover, the trial court was well aware of the emotional impact that the
testimony was having on the audience members. (See, e.g., Prince, supra,
40 Cal.4th at pp. 1289-1291 [urging trial courts to monitor the effect of
emotionally laden evidence on the jury and audience members and make a careful
record of their observations].) Given the emotional reaction by audience members
to Sanderson‟s testimony, the trial court took proper remedial steps to control the
tone of the victim impact testimony, and the record before us discloses no further
problems.29 (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 132-134 [finding
no error when testimony from multiple family members caused some jurors to
cry].) Consequently, neither the type nor the amount of evidence invited a purely
irrational response or otherwise rendered defendant‟s trial fundamentally unfair.
(See, e.g., Burney, supra, 47 Cal.4th at p. 258.)
Defendant next contends the testimony regarding Powalka‟s funeral and
cremation was too remote from defendant‟s actions to be relevant. As we have
noted, however, evidence of a victim‟s family‟s grief at funeral services, and the
condition of the victim‟s body, is admissible and relevant. (See, e.g., People v.
Harris (2005) 37 Cal.4th 310, 351-352 [photographs of the victim‟s gravesite
were relevant to the effect the murder had on her family].) To the extent
defendant contends the testimony about Powalka‟s open-casket funeral that the
jury heard was unduly prejudicial, we note the jury already had viewed numerous
photographs of the crime scene and autopsies.
Defendant also contends Sanderson‟s testimony regarding her beliefs
concerning the effect that Powalka‟s murder had on her and her mother‟s health
was unduly speculative and prejudicial. To the extent this testimony constituted
improper speculation, defendant forfeited this claim by failing to object and
After Sanderson testified, the trial court properly instructed the jury, “You
can‟t probably help notice that some of the testimony will affect people in the
audience and it‟s understandable, and you may see people that are teary-eyed, and
they probably can‟t help it. Again, the decision can‟t be based upon the reaction
of people in the audience. It has to be based upon the evidence presented in the
request that the trial court instruct the jury to ignore it. (Carrington, supra,
47 Cal.4th at p. 197.) In any event, there is no reasonable possibility that this error
affected the penalty phase verdict. (See, e.g., People v. Gonzalez (2006)
38 Cal.4th 932, 960-961.)
Defendant further contends Sanderson improperly testified about the effect of
waiting for the trial. Sanderson testified that the trial brought “closure to a
chapter, that finally the end is in sight,” but that the years between Powalka‟s
death and the trial were “hell” because “not a day that doesn‟t go by that I don‟t
think of her.” After Sanderson‟s testimony, defense counsel, as part of the mistrial
motion, argued this testimony, as well as the testimony about her and her mother‟s
deteriorating health, implied defendant was to blame for the delay between the
killings and the trial. Although the prosecutor denied that was his intent in asking
those question, the trial court agreed with defense counsel that the jury understood
Sanderson blamed defendant for the delays, but the trial court nonetheless denied
the motion for a mistrial. We already have concluded the trial court did not abuse
its discretion in denying defendant‟s motion for a mistrial, and this additional
claimed basis for a mistrial does not alter the conclusion that Sanderson‟s
testimony did not provoke a purely irrational response. Moreover, the prosecutor
heeded the trial court‟s warning and did not question other witnesses about this
Defendant further contends that Nora‟s testimony, which included her
emotional descriptions of her suicide attempt, hospitalizations, and her nearly
fainting while testifying, was “unduly prejudicial and totally unnecessary.” The
devastating effect of Corina‟s death on Nora plainly was relevant victim impact
evidence. The testimony was emotional at times, but emotional testimony is not
necessarily inflammatory. (See People v. Verdugo (2010) 50 Cal.4th 263,
298-299 [finding no error when victim‟s mother cried while testifying].) Although
Nora‟s husband and Corina‟s stepfather, Richard, also testified about how
Corina‟s murder affected their family, Nora‟s and Richard‟s testimony, contrary to
defendant‟s argument, was not unduly cumulative of each other. Richard testified
primarily about what type of person Corina was, his relationship with her, and
how he learned of her death. Although Richard did testify about the effect of
Corina‟s death on their family, he also testified how the change in Nora caused by
Corina‟s death affected him, which was a subject about which Nora did not testify.
Finally, contrary to defendant‟s contention, the overall amount of victim
impact witnesses was not prejudicial. Although six family members did testify,
given that there were three victims, an average of two witnesses per victim is not
excessive. (See, e.g., Brady, supra, 50 Cal.4th at pp. 567-573 [no error when
60 witnesses over 12 days testified, including eight witnesses who were friends,
relatives, or coworkers of the capital crime victim].) Although trial courts must
continue to exercise their discretion under Evidence Code section 352 to exclude
unduly cumulative evidence, the trial court here was aware of these concerns and
did not abuse its discretion in admitting the evidence. (See Brady, at p. 583.)
4. Refusal to instruct jury on age as a mitigating factor
Defendant, who had turned 18 only a month before the murders, contends the
trial court erred by refusing to instruct the jury that, under factor (i) of section
190.3, his age could only be considered as a mitigating factor. The trial court
instructed the jury that defendant‟s age could be considered as a factor in
determining the sentence, but declined to specify whether it was an aggravating or
mitigating factor. During closing arguments, defendant argued his age and
immaturity were mitigating factors.
This contention lacks merit. In Burney, supra, 47 Cal.4th at pages 257-258,
we ruled the trial court did not err in refusing the defendant‟s request to list his age
(18) as a specific example of a mitigating factor. Although the trial court in
Burney did instruct the jury that the defendant‟s age could not be considered as an
aggravating factor, it was not constitutionally required to do so. (See ibid.) The
trial court here properly instructed the jury that, under factor (k) of section 190.3,
it could consider “[a]ny other circumstance which extenuates the gravity of the
crime,” which would include defendant‟s age.
Defendant nonetheless contends the high court‟s decision in Roper v.
Simmons (2005) 543 U.S. 551 compels us to revisit whether the trial court should
have instructed the jury that his age could only have been considered as a
mitigating factor. We disagree. Roper concluded the imposition of the death
penalty for crimes committed while the defendant was under the age of 18
constituted cruel and unusual punishment under the federal Constitution; it did not
address whether an offender‟s youthfulness is an aggravating or a mitigating
factor. As defendant acknowledges, we rejected a similar argument in People v.
Brown (2003) 31 Cal.4th 518, 564-565, concluding the trial court did not err in
rejecting the 19-year-old defendant‟s request to instruct the jury that a person
under the age of 18 is not subject to the death penalty. Defendant‟s contrary
argument notwithstanding, nothing in Roper undermined the rationale of Brown.30
5. Cumulative error
As with defendant‟s guilt phase cumulative error claim, defendant contends
that if we do not conclude that any individual penalty phase error mandates
Moreover, the enactment of section 190.5, which also prohibits the
imposition of the death penalty for crimes committed while the offender is under
the age of 18, predated both Brown and Roper; Roper did not alter how California
sought and imposed the death penalty, and thus could not have undermined
reversal, the cumulative effect of the penalty phase errors requires reversal. We
disagree. To the extent that there are a few instances in which we found or
assumed the existence of error, we concluded that no prejudice resulted. We reach
the same conclusion after considering their cumulative effect.
D. General Challenges to California’s Death Penalty Scheme
Defendant raises a number of constitutional challenges to California‟s death
penalty law, all of which we have repeatedly rejected, and he offers no persuasive
reason to reexamine these prior decisions.31 Thus, we again hold:
The death penalty is not inherently cruel or unusual punishment. (E.g.,
People v. Thompson (2010) 49 Cal.4th 79, 144 (Thompson).)
The circumstances and pace of California‟s executions do not make the death
penalty arbitrary or unconstitutional. (E.g., People v. Redd (2010) 48 Cal.4th 691,
California‟s death penalty statute is not vague and overbroad, and does
adequately narrow the class of death-eligible offenders. (Tuilaepa v. California
(1994) 512 U.S. 967, 975-976; e.g, Martinez, supra, 47 Cal.4th at p. 967; People
v. Lewis (2008) 43 Cal.4th 415, 515-516; People v. Cook (2006) 39 Cal.4th 566,
617; People v. Chatman (2006) 38 Cal.4th 344, 394-395; People v. Vieira (2005)
35 Cal.4th 264, 303-304 (Vieira); Benavides, supra, 35 Cal.4th at p. 104; San
Nicolas, supra, 34 Cal.4th at pp. 676-677; see People v. Saille (1991) 54 Cal.3d
The death penalty law does not require that the jury be given instructions on
the burden of proof or the standard of proof for finding the existence of
Defendant incorporates by reference the challenges to California‟s death
penalty scheme raised in People v. Stanley (2006) 39 Cal.4th 913, 962-968
(Stanley). For the reasons stated therein, we continue to reject these arguments.
aggravating factors (except for other uncharged violent criminal conduct), for
finding that aggravating factors outweigh mitigating factors, or for finding that
death is the appropriate penalty. (E.g., People v. Collins (2010) 49 Cal.4th 175,
260-261 (Collins).) The United States Supreme Court decisions in Apprendi v.
New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v.
Washington (2004) 542 U.S. 296, United States v. Booker (2005) 543 U.S. 220,
and Cunningham v. California (2007) 549 U.S. 270 have not altered these
conclusions. (E.g., Collins, supra, 49 Cal.4th at pp. 260-261; Thompson, supra,
49 Cal.4th at p. 134.)
The federal Constitution does not require that jurors agree unanimously on
each instance of uncharged violent criminal conduct. (People v. Bunyard (2009)
45 Cal.4th 836, 861.) Apprendi and its progeny do not alter that conclusion.
(Bunyard, at p. 861.)
Written or specific findings by the jury regarding aggravating factors are not
constitutionally required. (E.g., Collins, supra, 49 Cal.4th at p. 261.) Equal
protection does not require that capital defendants be afforded the same sentence
review afforded other felons sentenced under the determinate sentencing law.
The prosecutorial discretion of individual district attorneys to select in which
eligible cases the death penalty will be sought is not evidence of an arbitrary and
capricious death penalty system. (See, e.g., People v. Bennett (2009) 45 Cal.4th
577, 629.) Contrary to defendant‟s contention, the voting rights case Bush v. Gore
(2000) 531 U.S. 98 does not compel a different result. (See, e.g., Bennett, at
p. 629, fn. 19.)
A trial court is not required to instruct the jury that the absence of mitigating
factors is not itself an aggravating factor. (See, e.g., Vieira, supra, 35 Cal.4th at
p. 299.) Similarly, a trial court is not required to instruct the jury that a single
mitigating factor may be sufficient to outweigh all aggravating factors. (See, e.g.,
People v. Davis (2009) 46 Cal.4th 539, 621-623 (Davis).)
The sentencing factors in section 190.3 do not fail to adequately channel or
limit the sentencer‟s discretion in choosing death over life without the possibility
of parole. (Stanley, supra, 39 Cal.4th at p. 967.)
Comparative intercase proportionality review is not constitutionally required.
(E.g., Collins, supra, 49 Cal.4th at p. 261; see Pulley v. Harris (1984) 465 U.S. 37,
The delay between sentence and execution does not violate the federal or
state Constitutions. (See, e.g., Davis, supra, 46 Cal.4th at p. 628.)
The use of restrictive adjectives such as “extreme” and “substantial” in the
list of potential mitigating factors does not act as a barrier to consideration of
mitigating evidence. (E.g., Thompson, supra, 49 Cal.4th at p. 144.)
The trial court was not constitutionally required to inform the jury that
certain sentencing factors are relevant only in mitigation. (E.g., Ervine, supra,
47 Cal.4th at p. 810.)
California‟s assertedly regular use of the death penalty does not violate
international laws or norms. (E.g., People v. Dykes (2009) 46 Cal.4th 731, 820.)
The judgment is affirmed.
WE CONCUR: KENNARD, Acting C. J.
Retired Chief Justice of California, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Booker
Original Appeal XXX
Opinion No. S083899
Date Filed: January 20, 2011
Judge: Edward D. Webster
Jonathan P. Milberg, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Adrianne S. Denault and Elizabeth A. Hartwig, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jonathan P. Milberg
300 North Lake Avenue, Suite 320
Pasadena, CA 91101
Elizabeth A. Hartwig
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
Automatic appeal from a judgment of death.
|Thu, 01/20/2011||S083899||Automatic Appeal||submitted/opinion due|
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Elizabeth A. Hartwig, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||Booker, Richard Lonnie (Appellant)|
San Quentin State Prison
Represented by Jonathan P. Milberg
Attorney at Law
225 South Lake Avenue, 3rd Floor
|Nov 22 1999||Judgment of death|
|Nov 29 1999||Filed certified copy of Judgment of Death Rendered|
|Nov 29 1999||Penal Code sections 190.6 et seq. apply to this case|
|Mar 22 2000||Record certified for completeness|
|Jun 4 2004||Filed:|
appellant's application for appointment of counsel.
|Jun 9 2004||Counsel appointment order filed|
Jonathan P. Milberg is hereby appointed to represent appellant Richard Lonnie Booker for the direct appeal in the above automatic appeal now pending in this court.
|Jun 9 2004||Compensation awarded counsel|
|Jun 30 2004||Received:|
notice from superior court that 6,052 pp. record was delivered to appellant's counsel on 6-28-2004.
|Jul 1 2004||Appellant's opening brief letter sent, due:|
February 1, 2005.
|Jul 6 2004||Date trial court delivered record to appellant's counsel|
(6,052 pp. record) (see Calif. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days.) Note: record was delivered on 6-28-2004.
|Aug 11 2004||Counsel's status report received (confidential)|
from atty Milberg.
|Oct 8 2004||Counsel's status report received (confidential)|
from atty Milberg
|Nov 29 2004||Received copy of appellant's record correction motion|
Motion for additional record and correction of the record on appeal. (9 pp.)
|Dec 1 2004||Received:|
copy of appellant's amended motion for additional record and correction of the record on appeal. (9 pp.)
|Dec 6 2004||Counsel's status report received (confidential)|
from atty Milberg.
|Dec 22 2004||Compensation awarded counsel|
|Dec 23 2004||Record certified for accuracy|
|Jan 24 2005||Counsel's status report received (confidential)|
from atty Milberg.
|Jan 24 2005||Request for extension of time filed|
to file appellant's opening brief. (1st request)
|Jan 24 2005||Extension of time granted|
to 4/1/2005 to file appellant's opening brief.
|Feb 15 2005||Note:|
record arrived from superior court.
|Apr 1 2005||Counsel's status report received (confidential)|
from atty Milberg.
|Apr 1 2005||Request for extension of time filed|
to file appellant's opening brief. (2nd request)
|Apr 6 2005||Extension of time granted|
to 6/1/2005 to file appellant's opening brief.
|Apr 20 2005||Compensation awarded counsel|
|May 18 2005||Compensation awarded counsel|
|May 20 2005||Letter sent to:|
superior court advising that the reporter's transcript is being returned due to non-compliance with rule 31.3(b), corrected transcript is to be returned on or before 6/10/2005.
|Jun 1 2005||Request for extension of time filed|
to file appellant's opening brief. (3rd request)
|Jun 1 2005||Counsel's status report received (confidential)|
from atty Milberg.
|Jun 3 2005||Extension of time granted|
to 8-1-2005 to file AOB.
|Jun 24 2005||Record on appeal filed|
Clerk's transcript 26 volumes (5779 pp.) and reporter's transcript 25 volumes (2093 pp.); including material under seal; ASCII disks. Clerk's transcript contains 2965 pp. of juror questionnaires.
|Jun 24 2005||Letter sent to:|
counsel advising record, certified for accuracy, was filed this date.
|Jun 29 2005||Compensation awarded counsel|
|Jul 28 2005||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Jul 28 2005||Counsel's status report received (confidential)|
from atty Milberg.
|Aug 2 2005||Extension of time granted|
to 10/3/2005 to file appellant's opening brief.
|Sep 28 2005||Counsel's status report received (confidential)|
from atty Milberg.
|Sep 28 2005||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Oct 3 2005||Extension of time granted|
to 12/5/2005 to file appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Jonathan P. Milberg's representation that he anticipates filing that brief by 12/3/2005.
|Dec 2 2005||Counsel's status report received (confidential)|
from atty Milberg.
|Dec 2 2005||Request for extension of time filed|
to fiel appellant's opening brief. (6th request)
|Dec 9 2005||Extension of time granted|
to 2/6/2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Jonathan P. Milberg's representation that he anticipates filing that brief by 2/6/2006.
|Feb 3 2006||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Feb 3 2006||Counsel's status report received (confidential)|
from atty Milberg.
|Feb 7 2006||Extension of time granted|
to 4/7/2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Jonathan P. Milberg's representation that he anticipates filing that brief by 4/7/2006.
|Apr 4 2006||Counsel's status report received (confidential)|
from atty Milberg.
|Apr 4 2006||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Apr 10 2006||Extension of time granted|
to June 6, 2006 to file the appellant's opening brief. After that date, no further extension is contemplated. Extension of time is granted based upon counsel Jonathan P. Milberg's representation that he anticipates filing that brief by June 6, 2006.
|Apr 11 2006||Compensation awarded counsel|
|May 31 2006||Counsel's status report received (confidential)|
from atty Milberg.
|May 31 2006||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Jun 6 2006||Extension of time granted|
to August 7, 2006 to file the appellant's opening brief. Extension is granted based upon counsel Jonathan P. Milberg's representation that he anticipates filing that brief by August 7, 2006.
|Aug 3 2006||Counsel's status report received (confidential)|
|Aug 3 2006||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|Aug 7 2006||Extension of time granted|
to October 6, 2006 to file appellant's opening brief.
|Sep 29 2006||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Sep 29 2006||Counsel's status report received (confidential)|
from attorney Jonathan Milberg.
|Oct 5 2006||Extension of time granted|
to November 6, 2006 to file the appellant's opening brief.
|Nov 6 2006||Counsel's status report received (confidential)|
from atty Milberg.
|Nov 6 2006||Request for extension of time filed|
to file appellant's opening brief. (12th request)
|Nov 9 2006||Extension of time granted|
to December 6, 2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Jonathan P. Millberg's representation that he anticipates filing that brief by December 6, 2006.
|Dec 5 2006||Appellant's opening brief filed|
(52,364 words; 280 pp.)
|Dec 5 2006||Request for judicial notice filed (AA)|
|Dec 5 2006||Request for judicial notice filed (AA)|
by appellant, (or, in the alternative, permission to file supplemental briefing).
|Dec 5 2006||Motion to augment record filed (AA)|
|Dec 14 2006||Compensation awarded counsel|
|Jan 4 2007||Respondent's brief letter sent; due:|
April 4, 2007
|Jan 16 2007||Filed:|
one vol. of "Reporter's Supplemental Transcript of Selection of Special Criminal Grand Jury," (proceedings of February 28, 1996). (pp. 1-38)
|Jan 16 2007||Letter sent to:|
counsel re: filing of supplemental reporter's transcript this date.
|Jan 24 2007||Record augmentation denied|
In light of this court's recent filing of the original transcript of the February 28, 1996, grand jury selection proceedings, Appellant's "Motion to Augment the Record on Appeal," filed on December 5, 2006, is denied as moot. (Cf. Cal. Rules of Court, rule 8.625(e)(2).) Appellant's "Request for Judicial Notice," filed on December 5, 2006, is granted. This court will take judicial notice of the petition, order and docket sheet in case number E018917 in the Court of Appeal, Fourth Appellate District, Division Two. Appellant's "Request to Take Judicial Notice (Or, in the Alternative, Permission to File Supplemental Briefing)," filed on December 5, 2006, is granted in part and denied in part. The request for judicial notice of the constitutional challenges raised in the briefs in People v. Stanley (S022224) (see People v. Stanley (2006) 39 Cal.4th 913, 962-968) is denied. The alternative request for permission to file an appropriate supplemental brief is granted, limited to the issues raised in summary form at pages 224 to 226 of the Appellant's Opening Brief in this case. Permission to file a supplemental brief is granted on the ground that People v. Schmeck (2005) 37 Cal.4th 240, at page 304, outlines what this court considers the minimum sufficient to fairly present a claim for this court's purposes, but does not prohibit more extensive briefing should the appellant's counsel, in his or her judgment, believe that such briefing is warranted. Accordingly, any supplemental opening brief is to be served and filed on or before February 23, 2007. Respondent may address in the respondent's brief any arguments raised in the supplemental opening brief. Moreno, J., was absent and did not participate.
|Feb 22 2007||Application to file over-length brief filed|
appellant's supplemental opening brief. (10415 word brief submitted under separate cover on February 16, 2007)
|Feb 23 2007||Order filed|
"Appellant's Application to File an Oversized Supplemental Opening Brief" is granted.
|Feb 23 2007||Supplemental brief filed|
appellant's supplemental brief. (10415 words; 42 pp.)
|Apr 2 2007||Request for extension of time filed|
to file respondent's brief. (1st request)
|Apr 5 2007||Extension of time granted|
to June 4, 2007 to file the respondent's brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General Elizabeth A. Hartwig's representation that she anticipates filing that brief by August 4, 2007.
|May 25 2007||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Jun 1 2007||Extension of time granted|
to August 6, 2007 to file the respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Elizabeth A. Hartwig's representation that she anticipates filing that brief by August 6, 2007.
|Jul 31 2007||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Aug 3 2007||Extension of time granted|
Good cause appearing, and based upon Deputy Attorney General Elizabeth A. Hartwig's representation that she anticipates filing the respondent's brief by September 4, 2007, counsel's request for an extension of time in which to file that brief is granted to September 4, 2007. After that date, no further extension is contemplated.
|Sep 4 2007||Request for extension of time filed|
to file respondent's brief. (4th request)
|Sep 11 2007||Respondent's brief filed|
(72,802 words; 210 pp.)
|Sep 11 2007||Extension of time granted|
Good cause appearing, and based upon Acting Senior Assistant Attorney General Gil Gonzalez's representation that he anticipates filing the respondent's brief by September 11, 2007, counsel's request for an extension of time in which to file that brief is granted to September 12, 2007. After that date, no further extension is contemplated.
|Sep 14 2007||Note:|
appellant's reply brief due: November 13, 2007.
|Nov 5 2007||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Nov 5 2007||Counsel's status report received (confidential)|
from atty Milberg
|Nov 8 2007||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief is extended to and including January 14, 2008.
|Jan 14 2008||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Jan 17 2008||Extension of time granted|
Good cause appearing, and based upon counsel Jonathan Milberg's representation that he anticipates filing the appellant's reply brief by April 15, 2008, counsel's request for an extension of time in which to file that brief is granted to March 17, 2008. After that date, only one further extension totaling about 30 additional days is contemplated.
|Mar 11 2008||Request for extension of time filed|
to file appellant's reply brief (3rd request)
|Mar 18 2008||Extension of time granted|
Good cause appearing, and based upon counsel Jonathan Milberg's representation that he anticipates filing the appellant's reply brief by April 15, 2008, counsel's request for an extension of time in which to file that brief is granted to April 16, 2008. After that date, no further extension is contemplated.
|Apr 16 2008||Appellant's reply brief filed|
(17,534 words; 82 pp.)
|Apr 23 2008||Compensation awarded counsel|
|Jan 26 2010||Exhibit(s) lodged|
from superior court, People's exhibits: 1A-1R, 2A-2V, 3A-3S, 5A-5G, 6A-6F, 7, 8A-8L, 9A-9K, 10A-10C, 11A-11C, 12, 13A-13N, 14, 15A-15C, 16A-16F (photos), 36A, 37A, 38A (videos).
|May 4 2010||Exhibit(s) lodged|
from superior court: People's: 21A, 21A-1, 21B-1, 21C, 21C-1, declaration provided for 21B.
|Jun 1 2010||Change of contact information filed for:|
Jonathan P. Milberg, Attorney at Law.
|Sep 1 2010||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the October calendar, to be held at a special session in Fresno the week of October 4, 2010. 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.
|Oct 5 2010||Case ordered on calendar|
to be argued on Wednesday, November 3, 2010, at 1:30 p.m., in San Francisco
|Oct 12 2010||Filed:|
Respondent's focus issues letter, dated October 6, 2010.
|Oct 14 2010||Filed:|
Appellant's focus issues letter, dated October 13, 2010.
|Oct 14 2010||Received:|
Appearance sheet from attorney Jonathan P. Milberg, indicating 45 minutes for oral argument for appellant.
|Oct 15 2010||Received:|
appearance sheet from Deputy Attorney General Elizabeth A. Hartwig, indicating 30 minutes for oral argument for respondent
|Nov 3 2010||Cause argued and submitted|
|Nov 10 2010||Compensation awarded counsel|
|Jan 3 2011||Justice pro tempore assigned|
George, C.J. (retired), appointed as justice pro tempore to this case.
|Jan 19 2011||Notice of forthcoming opinion posted|
To be filed Thursday, January 20, 2011 @ 10 a.m.
|Dec 5 2006||Appellant's opening brief filed|
|Sep 11 2007||Respondent's brief filed|
|Apr 16 2008||Appellant's reply brief filed|