Supreme Court of California Justia
Citation 46 Cal. 4th 1221, 210 P.3d 1171, 96 Cal. Rptr. 3d 574

People v. Bramit

Filed 7/16/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S064415
v.
MICHAEL LAMAR BRAMIT,
Riverside County
Defendant and Appellant.
Super. Ct. No. CR 57524

Defendant Michael Lamar Bramit was sentenced to death after a jury
convicted him of first degree murder and found that he personally used a firearm
in the commission of the crime. The jury also found true the special circumstance
that the murder occurred in the course of a robbery.1 This appeal is automatic.
We affirm the judgment.

1
Before trial, defendant pleaded guilty to two counts of robbery and one
count of attempted robbery arising from incidents that were subsequently proven
during the prosecution‘s case in the penalty phase of the trial. Specifically, these
incidents were the robbery of a Riverside National Bank branch, the attempted
robbery of another branch of the same bank, and the robbery of a Chino Valley
Bank branch. (Post, at pp. 5-7.) Defendant was sentenced to prison for 13 years
eight months for these offenses.
1


I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase
Defendant does not contest the facts pointing to his guilt, nor did he do so
below.2 Several witnesses saw him murder Jose Fierros. Their testimony was
corroborated by his extrajudicial statements, the admissibility of which he did not
challenge. Therefore, the facts establishing defendant‘s guilt are stated briefly.
Around midnight on June 14, 1994, victim Fierros parked at a minimart in
Banning, where two prostitutes separately propositioned him. However, after
Fierros drove each of them away from the parking lot, he said he had no money
and returned to the minimart with them.
Another prostitute, Rebecca Johnson, then got into Fierros‘s car. As they
drove away, defendant and Anthony Miller, both of whom Johnson knew from
previous drug transactions, ran toward the car and yelled at her. When Fierros
stopped, defendant and Miller got into the backseat. Defendant put a gun to
Fierros‘s head, saying, ―If you move, I‘ll blow your fucking head off.‖ As Miller
rifled through Fierros‘s pockets, defendant hit Fierros in the head with the gun.
Fierros struggled as defendant and Miller continued to beat him. Finally, Miller
told defendant, ―Man, shoot this fool. He ain‘t got no money.‖ Whereupon
defendant shot Fierros and left him to die in the street. Defendant fled on foot,
while Miller and Johnson escaped in Fierros‘s car. Later, defendant asked
Johnson to retrieve Fierros‘s radio from the stolen vehicle.
Two other witnesses saw the shooting and heard Fierros beg for his life as
defendant demanded his money. An autopsy established that Fierros died from a
gunshot wound to his chest, and had been badly beaten on the head.

2
Defendant concedes in his briefing that his own statements and the
eyewitness testimony established that he shot the victim while robbing him.
2


After waiving his Miranda3 rights orally and in writing, defendant made a
series of increasingly inculpatory statements to the police, which were audiotaped.
Initially, he denied any involvement, saying that he was not even at the scene.
Later, he said that Miller asked for his gun, but when refused, Miller drove away
with Fierros and Johnson. Finally, defendant admitted he shot Fierros, but
claimed he ―meant to hit him, but not kill him.‖ The shooting had been necessary,
he asserted, because Fierros was resisting them with ―superhuman strength,‖ while
defendant could fight with only one arm because of old gunshot wounds.
Defendant also claimed that he had been angry at his mother and had
vented his displeasure on Fierros. His mother was a crack cocaine addict whom
he had been trying to reform, so that she could ―be there‖ for him and his siblings.
That day he had caught her using drugs again. Shooting Fierros was defendant‘s
way of ―dealing with family problems.‖ He had not intended to kill Fierros, but
Fierros ―was in the wrong place at the wrong time when my homeboy was taking
care of his business.‖ During a recess, defense counsel, noting that the audiotapes
of defendant‘s statements were being played for the jury, stated that he wished the
record to clearly reflect that he was not objecting to their admission, either on
voluntariness grounds or ―possible Miranda violations.‖ The court inquired, ―You
believe tactically that it benefited your client?‖ Defense counsel responded,
―Yes.‖ The court and counsel were apparently referring to the fact that
defendant‘s extrajudicial statements permitted counsel to attempt to mitigate his
guilt without subjecting him to cross-examination.
Defendant did not present evidence in the guilt phase.

3
Miranda v. Arizona (1966) 384 U.S. 436.
3


B. Penalty Phase
1. Prosecution Evidence
a. Victim impact testimony
Evangelina Lozoya lived with Fierros for seven years before his murder.
He was the father of her daughter Eva, and filled a paternal role for her other five
children. His death affected the entire family. Eva Lozoya, age 10, testified the
death made her ―feel bad.‖ Fierros was the only person that William Lozoya, age
14, knew as a father, and they enjoyed a good relationship. William testified the
family was ―no longer happy without him.‖ Corine Lozoya, age 16, described
Fierros as a ―good father.‖
The victim‘s father and two of his brothers also testified to the impact of his
death. Fierros was born in Morelito, Mexico, and was one of seven siblings. The
impoverished family lived in a one-room house, worked in the fields, and
supplemented their income by making sombreros. Fierros was very good to his
family. He came to the United States to earn money to pay for his mother‘s
medical bills. The entire family mourned his death. His father felt ―that the sky
and the earth closed upon me.‖
b. Evidence of defendant’s other crimes
i. Juvenile offenses
In 1988, when defendant was 12 years old, he admitted to a deputy sheriff
that he and another boy had placed two BB pistols in another student‘s locker. In
1991, defendant tried to punch another student. Instead, he hit a campus
supervisor who was trying to separate the youngsters. Also in 1991, defendant
and another teenager demanded a pizza that Gerardo Laura was delivering. When
Laura refused, the boys said, ―What if we hit you?‖ Frightened, Laura handed
over the pizza.
4

ii. Assault on his mother
Kathryn Cole was called by the prosecution as an adverse witness. Before
trial she told a district attorney‘s investigator that in 1993 she had seen defendant
argue with his mother and strike her in the mouth. At trial Ms. Cole, who
considered defendant a son, admitted making the statement, but maintained
defendant‘s blow was accidental.
After Fierros‘s murder, defendant remained at large for 10 months. During
this time he committed eight bank robberies and tried to commit a ninth.
iii. Robbery of Riverside National Bank
Defendant pleaded guilty to the August 19, 1994 robbery of a Riverside
National Bank branch. Defendant pointed a pistol at teller Tina Paul and screamed
that he would kill her unless she gave him her money. Paul pleaded that she had
no money in her cash drawer, but defendant continued to scream that he would
―blow her fucking head off.‖ Teller Patricia Calvert recognized Paul‘s plight and
gave defendant $5,187 from her drawer. Paul and Calvert identified defendant.
Robert G. Chapman, a special agent with the Federal Bureau of Investigation,
testified that defendant admitted the robbery, but denied using a gun.
Ms. Paul testified to the lasting impact this experience had upon her.
―After it happened, I was afraid to be home alone. Noises that I heard, people just
playing in the street or whatever made me remember.‖ She continued: ―I can‘t
hear loud notices [sic]. Sometimes like my sister will be downstairs and if she
makes a loud noise it makes me jump, because I don‘t know what‘s happening.‖
A customer, Virginia Rodriguez, also testified to the lasting impact of the
incident. Mrs. Rodriguez was in the bank with four of her children. Her husband
was parked outside with their other two children. The two robbers were black
men, who pointed guns at everyone. Mrs. Rodriguez tried to leave, but one of the
robbers stopped her. Mrs. Rodriguez and her children, ranging in age from nine to
5
16, were very frightened. She became even more concerned after the robbers fled
because she could not initially find her husband and feared that he had been taken
hostage. ―It just affected me a lot―because people who are black, I don‘t have as
much confidence in them. Sometimes I see black people near me and I move
away from them because I think it‘s bad.‖
iv. The first Bank of America robbery

Defendant also pleaded guilty to the September 9, 1994, robbery of a Bank
of America branch in Corona. He threatened to shoot teller Edson Lalone unless
he filled a manila envelope with large-denomination bills. He kept his right hand
in his pocket, and Lalone assumed he had a gun. Defendant and a female
companion ran from the bank with $8,100. According to Agent Chapman,
defendant admitted robbing a bank in Corona with Latrina Howard. Howard
confirmed that she had been with defendant during the robbery.
Mr. Lalone saw a psychologist after the robbery, and was afraid that
defendant would ―come back after me.‖
v. Attempted robbery of Riverside National Bank
Defendant pleaded guilty to the attempted robbery of a second branch of
the Riverside National Bank, again accompanied by Latrina Howard. When
defendant told teller Elena Satalan he was robbing her, she explained that she did
not have her cash box because she had been working at the drive-up window.
Defendant said, ―I have a big fucking gun and I‘ll blow your fucking head off.‖
The standoff continued for several minutes before defendant and Howard fled.
Ms. Satalan was scared ―[e]ven now.‖ She still worked at the bank, but
found it frightening to do so.
vi. Robbery of the Chino Valley Bank
On January 9, 1995, defendant robbed the Chino Valley Bank. Defendant
asked teller Rita Lambert to change a $50 bill. When Lambert opened her cash
6


drawer, defendant lifted his shirt, displaying a gun in his waistband, and demanded
all of her money. He fled with $2,950. Lambert and another teller identified
defendant.
Ms. Lambert had worked at the bank for six years, but no longer did so.
She had been present during other robberies, but said this one ―hit too close to
home.‖ She added: ―I didn‘t realize it until now, and I hate that I feel this way,
but I get very uptight and nervous when I see somebody [who] is young and
black.‖
vii. The second Bank of America robbery
On January 17, 1995, defendant robbed another Bank of America branch.
Saying he had a gun, defendant pushed a brown paper bag at teller Jenny Franco
and demanded large-denomination bills. He took $3,720. Franco identified
defendant in a photographic lineup and during the penalty phase.
According to Ms. Franco, the robbery ―changed my life.‖ On the one hand,
it made her ―more grateful for each day ‘cause you never know what someone can
do to you.‖ On the other hand, she suffered from ―paranoia‖ whenever customers
approached her window. She felt compelled to continue working at the bank until
she completed her schooling.
viii. Robbery of City Bank
On February 16, 1995, defendant took $1,671 from City Bank, saying to the
teller: ―This is a robbery. Hurry up or else I‘m going to kill you.‖ The teller
identified defendant, who also admitted the robbery to Agent Chapman.
ix. Robbery of Rancho Bank
On February 22, 1995, defendant robbed a Rancho Bank branch. Teller
Melissa Duke saw defendant at Lisa Johnson‘s window. He kept looking around
the bank as Johnson emptied her excess cash drawer. Duke set off the alarm
7
shortly before defendant took $5,920. Defendant was identified by Duke, and
admitted the robbery to Agent Chapman.
x. Robbery of Union Federal Bank
Two bank employees tentatively identified defendant as the robber of a
Union Federal Bank branch on March 13, 1995. The robber asked teller Sheva
Abidian to change a $20 bill, but then demanded all her large-denomination
currency. Abidian gave him $1,607. Branch financial manager Stuart Sprenger
saw the robber leave the bank. Asked whether defendant was the robber, Abidian
testified that he ―could be,‖ and Sprenger said he ―believed‖ so.
xi. Robbery of Sanwa Bank
On April 7, 1995, defendant robbed a Sanwa Bank branch. After asking
teller Anthony Deku to change a $20 bill, he took out a sack and demanded that
Deku fill it with cash. When Deku hesitated, defendant, who had his left hand in
his pants pocket, said, ―you better fill it up, Brother, or I‘ll shoot you.‖ Defendant
left with $2,711. Deku failed to identify defendant in court. However, two other
tellers identified defendant before and during this trial. Moreover, defendant
admitted the robbery to Agent Chapman.
xii. Other assaults
Latrina Howard, defendant‘s girlfriend and accomplice in two of the bank
robberies, testified pursuant to a plea bargain. Defendant often hit Howard and
pulled a gun on her approximately 20 times. During an argument over what to
watch on television, defendant pointed a pistol at Howard‘s brother. On another
occasion, Howard had to talk defendant out of shooting her brother-in-law. He
desisted when she pointed out there were witnesses.
8

xiii. Witness intimidation
After they were arrested for the bank robberies, defendant called Howard,
who had been released from custody, and warned her that he had ―ways of getting
people whether they in jail or not.‖
Defendant and Rebecca Johnson, the woman with Mr. Fierros when he was
murdered, were in adjacent holding cells awaiting trial proceedings. Defendant
threatened to kill her when he was released from prison. Anna Garcia was also in
the adjacent cell. Defendant told her to warn Johnson ―to shut her mouth because
[he] would take care of her,‖ that ―if she ever made it out she wouldn‘t make it on
the street.‖ Garcia conveyed defendant‘s threat to Johnson.
During trial, Latrina Howard participated in a three-way telephone
conversation with defendant and his brother. The two men said they were ―going
to do something‖ to a witness who had testified against defendant.
2. Defense Evidence
Denise Carr, defendant‘s mother, testified that she had a single encounter
with his father. Defendant never met him and had no other father figures. Ms.
Carr did not consume alcohol or use drugs while she was pregnant with defendant,
but did so persistently from the time he was 11 or 12. While defendant was
growing up, Ms. Carr and her children lived in more than 10 residences belonging
to friends or relatives. Defendant looked up to an older boy involved in drug
dealing and gang activity. When defendant was 16, Ms. Carr became aware that
defendant was selling crack cocaine. Contrary to prosecution testimony (ante, at
p. 5), defendant had not assaulted Ms. Carr on the occasion she called police.
Instead, he had grabbed her after she hit him. Defendant was not responsible for
her facial injury. Defendant was expelled from school in the 11th grade. Ms. Carr
took defendant‘s daughter to visit him in jail. The two-year-old knew her father
and had fun with him when she visited. Asked what effect defendant‘s execution
9
would have on her, Ms. Carr said she would just have to ―stay strong‖ for the sake
of her daughter and granddaughter.4
Vernita Lynch, defendant‘s maternal aunt, testified that she loved defendant
and was a ―mother figure‖ to him. Beatrice McClain, defendant‘s maternal
grandmother, testified that she provided a home for him and his siblings for two
years when his mother was using drugs. After defendant left, Ms. McClain
continued to see him almost daily and loved him very much. Both women
testified that defendant‘s execution would be painful for them.
Lakeshia Cook, defendant‘s sister, testified that she loved him because he
had ―always been there for me when I didn‘t have a daddy.‖ With no father and a
drug-addicted mother, defendant ―had to steal for me and my brother so we could
survive.‖ His execution would affect her badly.
Bonnie Jackson was another surrogate mother who sheltered defendant and
his siblings when their mother was on drugs. She testified that he was ―real smart,
articulate, and he was always strong, tried to make a good situation out of a bad all
the time, because he loved his brother and sister,‖ and tried to take care of them.
Ms. Jackson loved defendant very much and feared that his execution would cause
her to have another stroke.
Clyde Stewart, a former corrections officer and parole agent, ran a
residential facility for juvenile offenders. Stewart testified that because of the

4
At the conclusion of his mother‘s cross-examination, for no apparent
reason, defendant ―threw his chair backwards, knocked it over,‖ left the
courtroom, and went to the holding cell. At the request of the defense, the court
took a recess to give him an opportunity regain his composure. Subsequently, the
bailiff requested, out of the jury‘s presence, to restrain defendant with a ―leg
brace.‖ The court found the restraint reasonable under the circumstances, and
noted the leg brace was covered by defendant‘s pants and could not be seen by the
jury. Defendant does not raise this matter on appeal.
10


serious records of the boys he accepted, his facility was considered a final
alternative to a Youth Authority commitment. Defendant was confined there for
over a year. He was easy to get along with and Stewart grew to like him.
Defendant‘s execution ―would hurt me and make me sad to know that his life
ended at such a young age.‖
II. DISCUSSION
A. Pretrial and Guilt Phase Issues

1. Excusal of a Prospective Juror for Cause
Defendant contends the excusal of Prospective Juror C.S. (C.S.) for cause
violated his rights to due process, a fair trial, an impartial jury, and a reliable
penalty verdict.5
Under Wainwright v. Witt (1985) 469 U.S. 412, 424, we review the record
to determine whether it fairly supports the trial court‘s determination that C.S.‘s
views on the death penalty would have prevented or substantially impaired the
performance of her duties as a juror. (People v. Bunyard (2009) 45 Cal.4th 837,
845; People v. Roldan (2005) 35 Cal.4th 646, 696; People v. Fudge (1994) 7
Cal.4th 1075, 1094.) We conclude it does.
C.S.‘s responses on the juror questionnaire were somewhat equivocal. On a
scale of 1 to a high of 10, she rated herself a ―3‖ in opposition to the death penalty.
In response to another question, she indicated that she thought the death penalty
was imposed ―too often.‖ Asked whether her opinion would make it difficult for
her to vote for the death penalty, regardless of the evidence, she circled ―no.‖ She
also circled ―no‖ when asked whether she was so strongly opposed to the death

5
Defendant relies upon the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the federal Constitution and the corresponding provisions of the California
Constitution.
11


penalty that she would always vote against death, regardless of aggravating or
mitigating evidence.
Asked whether she could impose the death penalty for felony murder, she
circled ―no.‖ But when asked whether she would automatically vote for life in
prison without possibility of parole, if the killing was unintentional or accidental,
she wrote ―probably.‖ Asked whether she could impose the death penalty,
depending on the circumstances of the case and the evidence presented in the
penalty phase, if the special circumstance of murder in the commission of robbery
were proven, she circled ―yes,‖ but again added ―probably.‖
Finally, she circled ―no‖ when asked whether, if she were selected as the
foreperson, and if the evidence justified that verdict, she could personally sign a
death verdict form. The prosecutor pursued this response on voir dire.
The prosecutor asked the entire panel of prospective jurors whether they
felt that they would be unable to return a death verdict and affirm that they had
done so. ―Finally, there was one question on the questionnaire that asked you as
jurors whether or not you could personally sign the verdict as the foreperson in the
penalty phase of this case. Now, when you were sitting down in the jury room
filling out the questionnaires, that was sort of an abstract thinking process. Now,
we‘re sitting in the courtroom. There‘s a person seated in the courtroom against
whom murder charges have been filed and against whom I‘m pressing the death
penalty. Is there anyone who feels they could not return this if justice demanded it
and say, ‗Yes, I voted for the death of this person.‘ ‖ One prospective juror
indicated she would be unable to do so. The prosecutor then asked C.S. whether
she could, noting that she had in her questionnaire indicated ―some concerns.‖
C.S. responded, ―I‘m just really not sure. I‘ve never been put in a place to make a
decision. I think it would just depend on all of the circumstances. It would [be]
difficult. I don‘t know.‖
12
The prosecutor challenged C.S. for cause. ―[S]he indicated she could not
say if she could come into a courtroom and vote for death.‖ The court observed,
―She also didn‘t say that she was going to do the opposite.‖ Defense counsel
objected, ―She was uncertain whether she could - - as to the specific question
whether she could sign the death certificate, I think that‘s a different issue than
saying - -‖ The prosecutor responded, ―Initially, I asked that question, but at the
very end I asked whether or not they could come into the courtroom and state,
which they would be required to do if they were jurors, vote for death, and I think
I‘m entitled to have jurors that say at the outset they could return a verdict for
death under the appropriate circumstances. She could not say that. She said she
didn‘t know if she could do it.‖
The trial court excused C.S. Considering her responses on voir dire, as well
as her answers to the questionnaire, the court found that her views on the death
penalty ―would prevent or substantially impair the performance of her duties as a
juror in accordance with the instructions.‖ The court added: ―I believe she was
trying to be accommodating, but in the final analysis her views are too strong for
her to be a fair and impartial observer.‖
The trial court‘s finding is supported by substantial evidence.
―Generally, a trial court‘s rulings on motions to exclude for cause are
afforded deference on appeal, for ‗appellate courts recognize that a trial judge who
observes and speaks with a prospective juror and hears that person‘s responses
(noting, among other things, the person‘s tone of voice, apparent level of
confidence, and demeanor), gleans valuable information that simply does not
appear on the record.‘ [Citation.]‖ (People v. Avila (2006) 38 Cal.4th 491, 529.)
A finding of bias ―may be upheld even in the absence of clear statements
from the juror that he or she is impaired because ‗many veniremen simply cannot
be asked enough questions to reach the point where their bias has been made
13
―unmistakably clear‖; these veniremen may not know how they will react when
faced with imposing the death sentence, or may be inarticulate, or may wish to
hide their true feelings.‘ [Wainwright v. Witt (1985) 469 U.S. 412], 424-425.
Thus, when there is ambiguity in the prospective juror‘s statements, ‗the trial
court, aided as it undoubtedly [is] by its assessment of [the venireman‘s] demeanor
is entitled to resolve it in favor of the State.‘ Id., at 434.‖ (Uttecht v. Brown
(2007) 551 U.S. 1; see People v. Wilson (2008) 44 Cal.4th 758, 779 (Wilson).)
Defendant‘s reliance on People v. Chacon (1968) 69 Cal.2d 765 is
misplaced. In Chacon, this court found that three jurors were erroneously excused
for cause. They were dismissed ―when they answered that they ‗would not be able
to sign the [death] verdict as foreman.‘ That answer indicated that they would not
undertake what they regarded as the greater moral burden of the jury foreman, but
it did not show that they would have refused to vote for the death penalty.‖ (Id. at
p. 772.) While the juror questionnaire here did refer to signing the verdict as
foreperson, the prosecutor‘s question on voir dire was not so limited. ―Is there
anyone who feels they could not return [a death verdict] if justice demanded it and
say, ‗Yes, I voted for the death of this person.‘ ‖ The predicate of the question was
sound. Jurors must be prepared to affirm their verdicts.6
Defendant complains that the prosecutor‘s question was unclear, that C.S.
was not told that if she were selected as a juror, she would not have to serve as the
foreperson. Defendant did not make this argument below or seek to clarify the

6
Section 1149 provides: ―When the jury appear they must be asked by the
court, or clerk, whether they have agreed upon their verdict, and if the foreman
answers in the affirmative, they must, on being required, declare the same.‖

Section 1163 provides: ―When a verdict is rendered, and before it is
recorded, the jury may be polled, at the request of either party, in which case they
must be severally asked whether it is their verdict, and if anyone answer in the
negative, the jury must be sent out for further deliberation.‖
14


matter during his own voir dire of C.S. As noted, the line of prosecution inquiry
was broader. Furthermore, even when the precise wording of a single question,
and the answer given, do not compel a conclusion of substantial impairment, ―the
need to defer to the trial court remains because so much may turn on a potential
juror‘s demeanor.‖ (Uttecht v. Brown, supra, 551 U.S. at p. 8; see Wilson, supra,
44 Cal.4th at p. 780.)7
Defendant‘s briefing extensively parses C.S.‘s responses on the
questionnaire and argues that none of them would have supported a finding of
impairment. However, unlike the trial court in People v. Stewart (2004) 33
Cal.4th 425, a case upon which defendant repeatedly relies, this trial court did not
excuse C.S. ―based solely upon problematically phrased jury questionnaire
responses and without conducting an in-court examination of the excused
panelists.‖ (People v. Robinson (2005) 37 Cal.4th 592, 619, fn. 13.)

7
At oral argument defendant invited us to reconsider this rule. In the
absence of authority to the contrary, we decline to do so. Relying on Snyder v.
Louisiana
(2008) 552 U.S. __ [128 S.Ct. 1203], counsel argued that deference to
the trial court is inappropriate unless the court expressly states that it is excusing
the juror on the basis of demeanor. Snyder said no such thing. Applying Batson v.
Kentucky
(1986) 476 U.S. 79, the Snyder court reviewed the use of peremptory
strikes by a prosecutor to eliminate Black prospective jurors. The question in
Snyder was not whether the court relied on the prospective juror‘s demeanor in
excusing him, but rather whether the prosecutor was truthful when he claimed to
rely on the prospective juror‘s demeanor in striking him. The prosecutor said that
he struck the prospective juror because he appeared very nervous. The high court
held that deference to the trial court is "especially" appropriate when the judge
actually makes a determination that an attorney relied on demeanor in exercising a
strike. The court did not hold that deference is only permissible when such an
express determination was made below. (Snyder, supra, 552 U.S. at p. __ [128
S.Ct. at p. 1209].)
15



2. Murder Instructions
An amended information alleged that defendant committed murder with
malice (Pen. Code, § 187, subd. (a))8 and while engaged in the commission of a
robbery (§ 211). It also charged defendant with using a firearm in the
commission of the murder. At the close of the guilt phase, the jury was instructed
on premeditated murder and felony murder.
Defendant contends the instructions were erroneous because the
information did not charge him with first degree murder. He claims that by failing
to allege that the murder under either theory was first degree murder, he was
effectively charged with murder in the second degree.9
Defendant‘s argument rests on the premise that People v. Dillon (1983) 34
Cal.3d 441 (Dillon) implicitly overruled the long-standing precedent of People v.
Witt (1915) 170 Cal. 104, in which we held that a defendant may be convicted of
felony murder even though the information charged only murder with malice. We
have repeatedly rejected this construction of Dillon, most recently in People v.
Hawthorne (2009) 46 Cal.4th 67.
In People v. Harris (2008) 43 Cal.4th 1269 (Harris), as in this case, the
defendant argued it was error to instruct the jury on first degree murder because
the information charged him only with murder in violation of section 187,
subdivision (a), which Harris characterized as a statute defining second degree

8
Further statutory references are to the Penal Code, unless otherwise
indicated.
9
Defendant asserts: ―Both the statutory reference (‗Section 187 of the Penal
Code‘) and the description of the crime (‗did willfully, unlawfully, and with
malice aforethought murder‘) establish that [defendant] was charged exclusively
with second degree malice murder in violation of Penal Code section 187, not with
first degree murder in violation of Penal Code section 189.‖
16


murder. We stated: ―Defendant claims the court lacked jurisdiction to try him for
first degree murder. He recognizes that we have repeatedly held that an
information charging murder in violation of section 187 is sufficient to support a
first degree murder conviction. (People v. Hughes (2002) 27 Cal.4th 287, 369,
citing cases; see also People v. Geier (2007) 41 Cal.4th 555, 591; People v. Carey
(2007) 41 Cal.4th 109, 131-132.) However, he claims the rationale of these cases
is irreconcilable with the holding of People v. Dillon (1983) 34 Cal.3d 441
(Dillon).
Dillon held that section 189 is a codification of the first degree felony-
murder rule. (Dillon, supra, 34 Cal.3d at pp. 471-472.) Because there is only a
single statutory offense of first degree murder (see, e.g., People v. Geier, supra, 41
Cal.4th at p. 591), defendant reasons that the relevant statute must be section 189,
not section 187, which he construes as a definition of second degree murder[10]
Defendant misreads both Dillon and the statutes. Dillon made it clear that section
189 serves both a degree-fixing function and the function of establishing the
offense of first degree felony murder. (Dillon, at pp. 468, 471.) It defines second
degree murder as well as first degree murder. Section 187 also includes both

10
―Section 187 provides, in relevant part: ‗Murder is the unlawful killing of a
human being, or a fetus, with malice aforethought.‘

―Section 189 provides, in relevant part: ‗All murder which is perpetrated
by means of a destructive device or explosive, a weapon of mass destruction,
knowing use of ammunition designed primarily primarily to penetrate metal or
armor, poison, lying in wait, torture, or by any other kind of willful, deliberate,
and premeditated killing, or which is committed in the perpetration of, or attempt
to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping,
train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or
any murder which is perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree. All other kinds of murders are of the
second degree.‖ (Harris, supra, 43 Cal.4th at p. 1295, fn. 7.)
17


degrees of murder in a more general formulation. (People v. Witt (1915) 170 Cal.
104, 108.) Thus, an information charging murder in the terms of section 187 is
‗sufficient to charge murder in any degree.‘ (People v. Carey, supra, 41 Cal.4th at
p. 132.)‖ (Harris, supra, 43 Cal.4th at pp. 1294-1295.)
Defendant also contends that the jury should have been required to agree
unanimously on whether he committed premeditated murder or felony murder.
This argument, too, has been repeatedly rejected. (See, e.g., People v. Nakahara
(2003) 30 Cal.4th 705, 712. Even if we were to accept defendant‘s argument,
which we do not do, the record offers him no support. The jury here unanimously
found true a felony-murder special circumstance, demonstrating that that theory of
first degree murder garnered the agreement of each juror. (See People v.
Cleveland (2004) 32 Cal.4th 704, 751.)
Finally, defendant contends the information failed to allege all the facts
necessary to justify the death penalty, making it defective under Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi). We rejected this claim, too, in Harris,
supra, 43 Cal.4th 1269. ―The Apprendi claim is illusory; the information included
special circumstance allegations that fully supported the penalty verdict.‖ (Id. at
p. 1295.)
B. Penalty Phase Issues

1. Evidence of Violent Juvenile Misconduct

Section 190.3, factor (b) provides that in determining whether to impose the
death penalty or life without possibility of parole, the trier of fact may take into
consideration the ―presence or absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the express or implied
threat to use force or violence.‖
Among the acts of violent misconduct admitted against defendant were
three unadjudicated incidents committed while he was a juvenile: the pizza
18


robbery; the campus supervisor assault; and the assault on his mother. (See ante,
at pp. 4-5.)
It is well established the federal Constitution does not bar consideration of
unadjudicated criminal offenses. (See, e.g., Tuilaepa v. California (1994) 512
U.S. 967, 976-977; People v. Dickey (2005) 35 Cal.4th 884, 928.) Moreover,
evidence of violent juvenile misconduct that would have been a crime if
committed as an adult is admissible under section 190.3, factor (b). (People v.
Avena (1996) 13 Cal.4th 394, 426; People v. Visciotti (1992) 2 Cal.4th 1, 72.)
Nevertheless, relying on Roper v. Simmons (2005) 543 U.S. 551, defendant
contends that admission of these unadjudicated juvenile offenses denied him his
rights to due process, a fair trial by an impartial and unanimous jury, the
presumption of innocence, effective confrontation of witnesses, effective
assistance of counsel, equal protection, and a reliable penalty determination.11
Defendant‘s reliance on Roper v. Simmons, supra, 543 U.S. 551, is badly
misplaced. That case holds that the execution of individuals who were under 18
years of age at the time of their capital crimes is prohibited by the Eighth and
Fourteenth Amendments. It says nothing about the propriety of permitting a
capital jury, trying an adult, to consider evidence of violent offenses committed
when the defendant was a juvenile. An Eighth Amendment analysis hinges upon
whether there is a national consensus in this country against a particular
punishment. (Roper v. Simmons, supra, 543 U.S. at pp. 562-567; People v. Blair
(2005) 36 Cal.4th 686, 754-755.) Defendant‘s challenge here is to the
admissibility of evidence, not the imposition of punishment.

11
Defendant relies upon the Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution.
19



Defendant also claims the trial court erred in admitting evidence of a fourth
incident of juvenile misconduct, bringing BB guns onto school grounds when he
was 12 years old. (Ante, at p. 4). He contends the evidence was improper, not
only because the conduct was not criminal as required by section 190.3, factor (b),
but also because it did not involve ―the express or implied threat to use force or
violence.‖ The Attorney General concedes this would not have been a crime at the
time of defendant‘s conduct.12 However, he argues that any error was harmless.
We agree. In light of the admissible evidence of defendant‘s prior violent crimes
as an adult, including his eight armed robberies, there can be no reasonable
possibility that evidence of the BB gun incident was prejudicial. (People v.
Medina (1995) 11 Cal.4th 694, 767; People v. Pinholster (1992) 1 Cal.4th 865,
963.)
2. Victim Impact Evidence
a. The Testimony of the Victim’s Family
The victim‘s family members, both from Mexico and the United States,
testified about the lasting impact of his murder. (Ante, at p. 4.) Defendant
contends the admission of this evidence violated his state and federal rights to due
process and a reliable penalty determination. The contention lacks merit.
―Unless it invites a purely irrational response from the jury, the devastating
effect of a capital crime on loved ones and the community is relevant and
admissible as a circumstance of the crime under section 190.3, factor (a).‖
(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) ―The federal
Constitution bars victim impact evidence only if it is ‗so unduly prejudicial‘ as to
render the trial ‗fundamentally unfair.‘ ‖ (Id. at p. 1056, quoting Payne v.

12
For the current state of the law, see the Gun-Free School Zone Act of 1995.
(§ 626.9.)
20
Tennessee (1991) 501 U.S. 808, 825.) The victim testimony clearly satisfied this
standard. Contrary to defendant‘s claim, victim impact evidence is not limited to
circumstances known or foreseeable to the defendant at the time of the crime.
(E.g., Lewis & Oliver, supra, 39 Cal.4th at p. 1057.)
b.
The Videotape
Defendant contends a videotape shown by the prosecution ―played unfairly
to the jury‘s emotions, and was clearly prejudicial.‖
We have viewed the videotape. It is a montage of fewer than 20 still
photographs. The photographs depict a young Mr. Fierros, his family, his
hometown in Mexico, and his family‘s humble residence. With the exception of a
studio portrait of Fierros as a teenager, the photographs are snapshots of very poor
quality.
―Trial courts must be very cautious about admitting [victim impact]
videotape evidence.‖ (People v. Kelly (2007) 42 Cal.4th 763, 798 (Kelly).) In
particular, we have cautioned against the admission of ―lengthy‖ videotapes.
(People v. Prince (2007) 40 Cal.4th 1179, 1289 (Prince).) However, the
videotape here was less than three minutes long. By contrast, we have upheld the
admission of much longer videotapes. (See, e.g., People v. Zamudio (2008) 43
Cal.4th 327, 363-368 [14 minutes]; Kelly, supra, 42 Cal.4th at pp. 793-799 [20
minutes]; Prince, supra, 40 Cal.4th at pp. 1286-1291 [25 minutes].)
Considering Evidence Code section 352, the trial court held that any
potentially prejudicial impact did not outweigh the tape‘s probative value. The
court noted that all of the photographs used in the videotape montage had already
been admitted into evidence as still photographs during the testimony of the
victim‘s brother, Nabor. As the court observed, the videotape was simply ―a
repackaging of the evidence.‖ Defendant had not objected to the admission of the
still photographs themselves.
21

The trial court did not abuse its discretion. The videotape was not unduly
emotional. It merely presented admitted evidence in a different medium,
unenhanced by any soundtrack or commentary. The few grainy family
photographs simply ―humanized‖ the victim, ―as victim impact evidence is
designed to do.‖ (Kelly, supra, 42 Cal.4th at p. 797.)
c. The Testimony of the Bank Robbery Victims
Victims of defendant‘s uncharged bank robberies testified as to the
continuing impact of the crimes upon them. (Ante, at pp. 5-7.) Defendant
contends that although evidence of a defendant‘s commission of prior violent acts
is admissible, evidence of the impacts of those crimes is not. To the contrary, ―the
circumstances of the uncharged violent criminal conduct, including its direct
impact on the victim or victims of that conduct, are admissible under [section
190.3,] factor (b). [Citations.]‖ (People v. Demetrulias (2006) 39 Cal.4th 1, 39.)
Finally, defendant contends that the prosecution appealed to racial
prejudice through the testimony of victims Rita Lambert and Virginia Rodriguez.
Ms. Lambert, the teller robbed at Chino Valley Bank, testified that because of the
robbery she no longer worked at a bank. She added: ―I didn‘t realize it until now,
and I hate that I feel this way, but I get very uptight and nervous when I see
somebody [who] is young and black.‖ Ms. Rodriguez, along with four of her
children, was prevented at gunpoint from leaving Riverside National Bank during
the robbery. She also feared that her husband, who had remained outside the bank
with their other two children, might have been taken hostage. Ms. Rodriguez
testified that, ―It just affected me a lot– because people who are black, I don‘t have
as much confidence in them. Sometimes I see black people near me and I move
away from them because I think it‘s bad.‖
22

While a showing of bad faith is no longer required to prove prosecutorial
misconduct,13 we note there is no reason to believe the prosecutor intended to
elicit racial remarks or appeal to racial prejudice, or that the testimony had such an
effect. To the contrary, Ms. Lambert‘s remark likely came as a surprise to the
prosecutor because Lambert prefaced it by saying that she didn‘t realize until that
moment that she felt that way. In any event, this claim was forfeited. Defendant
did not object to either comment, nor did he request an admonition when doing so
would have cured any prejudice. (See, e.g., People v. Bennett (2009) 45 Cal.4th
577, 616.) Moreover, there was no prejudice. The prosecutor did not mention
these brief and isolated statements in oral argument or otherwise try to capitalize
on them. The record forecloses any possible Eighth Amendment claim as well.
3. Asserted Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct in her penalty
phase argument, thereby violating his state and federal constitutional rights to
confrontation, a fair trial, due process, and a reliable verdict.14
Defendant‘s first claim involves the prosecutor‘s reading of an excerpt from
a magazine article. Before argument the trial court overruled defendant‘s
objection to the excerpt. Therefore, any fault in this regard would be judicial
error, not prosecutorial misconduct. (People v. Riggs (2008) 44 Cal.4th 248, 325,
fn. 40.) We conclude there was no error.
This court has repeatedly held that in closing argument attorneys may use
illustrations drawn from common experience, history, or literature. (E.g., People

13
People v. Hill (1998) 17 Cal.4th 800, 802.
14
Defendant relies on the Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution as well as on article I, sections 7, 15, and 17 of the California
Constitution.
23


v. Harrison (2005) 35 Cal.4th 208, 248.) Here, the prosecutor read a passage from
a magazine article entitled, ―Sorry I Killed You, but I Had a Bad Childhood.‖15
Defendant contends this excerpt ―was used by the prosecutor to improperly attack
the very legitimacy of mitigating evidence and to undermine the important role
such evidence plays in guiding the jury‘s sentencing discretion in a capital case.‖
To the contrary, the excerpt was simply one more literary effort to frame
the age-old argument about free will and determinism, and to make the case for
assigning greater weight to free will and personal responsibility in fixing blame
and punishment.16 Had the prosecutor made substantially the same points without

15
The prosecutor was not permitted to identify the author, James Q. Wilson,
or note that the article appeared in the June 1997 issue of California Lawyer.
16
The excerpt read: ― ‗Many of us believe there has been a decline in
willingness of citizens to assume personal responsibility for their actions. It seems
we are now more likely to deny guilt, to expect rewards without efforts, to blame
society for individual failings, and to exploit legal technicalities to avoid moral
culpability. There is a sense, too, that the legal system has become excessively
tolerant of ‗abuse excuses‘ in which social causes and mental conditions are used
to explain and ultimately excuse criminal behavior.

― ‗In each of us there is a tension between the desire to judge and the desire
to explain human behavior. Unless the law proceeds carefully, it risks placing its
finger too heavily on one side of that tension, typically the explanatory side, so
that juries are more likely to explain and consequently accept abuse excuses and
less likely to judge the defendant‘s actions.

― ‗The central failing of American criminal law is the blurring of
boundaries between imperfect social science, which seeks to explain behavior, and
the law, which seeks to judge it.

― ‗Our society clings stubbornly to the idea of personal responsibility. To
do otherwise is to invite an absurdity: if all behavior is caused by factors beyond
the individual‘s control, and if people cannot be blamed for actions beyond their
control, then nobody can be blamed for anything. [And t]his result strikes almost
everybody as ridiculous, so we reject it.

― ‗When we insist on personal accountability, we insist that people beyond
a certain age are moral agents. If they break the law and cannot reasonably claim
one of a small number of offenses [sic: defenses], they ought to be held
accountable. Not only does this view satisfy our moral conviction that people

(footnote continued on next page)
24


reading them from an unidentified source quoting an unidentified author, the
argument would have been acceptable also. Just as in People v. Mayfield (1997)
14 Cal.4th 668 (Mayfield) the prosecutor‘s argument relying on that excerpt could
not reasonably have been understood by the jury as overriding the standard
instructions it was given concerning the aggravating and mitigating factors to be
considered in reaching its sentencing decision.17 In Mayfield, we found no
misconduct in the prosecutor‘s argument if the jurors ―allowed sympathy for the
defendant to overwhelm them, ‗we might as well do away with the death
penalty.‘ ‖ (Id. at p. 801.) ―A reasonable juror would not have understood this
argument as an assertion, contrary to the court‘s instructions, that sympathy for the
defendant could not be considered. Rather, a reasonable juror would have
understood the prosecutor‘s argument to be that sympathy for the defendant
should not be the exclusive penalty consideration and that in judging the weight to
be given sympathy as a mitigating circumstance, the jurors should give relatively
little weight to a showing that any capital defendant might be expected to make –
for instance, that the defendant‘s execution would inflict suffering on his or her
parents and close relatives. This argument was not improper. [Citation.]‖ (Ibid.)

(footnote continued from previous page)

should be responsible for their actions, but it also serves two practical functions. It
sends a message to children learning how to behave that they ought to acquire
those habits and beliefs that will facilitate their conformity to the essential rules of
civilized conduct. A strict view of personal accountability also sends a message to
individuals choosing between alternative courses of action that there are likely
important consequences of making [certain bad choices].‘ ‖ (See Wilson, Sorry I
Killed You, but I had a Bad Childhood
(June 1997) Cal. Lawyer, pp. 43-44.)
17
As we discuss below (post, at pp. 32-34), the court gave the pattern jury
instructions CALJIC Nos. 8.85 and 8.88.
25



Defendant also claims that the prosecutor committed misconduct in arguing
to the jury that defendant would pose a danger to inmates and staff if he were
sentenced to life in prison without possibility of parole.
Assertions of future dangerousness are permissible if supported by the
evidence and not based on expert opinion. (E.g., People v. Navarette (2003) 30
Cal.4th 458, 518-519.) Here, there was ample evidence that defendant had, while
in custody himself, threatened incarcerated witnesses. He warned Latrina Howard
that he had ―ways of getting people whether they in jail or not.‖ (Ante, at p. 9.)
He also threatened Rebecca Johnson directly and through Anna Garcia. (Ibid.)
Latrina Howard‘s testimony tended to confirm this threat. She participated in a
conversation in which defendant and his brother said they were ―going to do
something‖ to a witness who had testified against him. (Ibid.) The jury was
entitled to infer that the woman they were referring to was Ms. Johnson.
Defendant objects that no evidence was presented that defendant had acted
on these threats. True. However, given the overwhelming evidence of
defendant‘s past violence (ante, at pp. 5-8), the prosecutor had ample basis on
which to argue that he would make good on his threats given the opportunity.18
Defendant also assigns as misconduct the prosecutor‘s suggestion that specific

18
In a request for judicial notice filed on December 5, 2007, defendant asks
us to notice the testimony of Rebecca Johnson in another case, the prosecution of
defendant‘s confederate Anthony Miller. There, she apparently testified that
Miller, not defendant, assaulted her after she testified in defendant‘s case here.
We deny the request. Defendant makes it to support his claim that the prosecutor
here committed misconduct by eliciting testimony from Johnson concerning the
assault. There was no misconduct. Johnson did not say that defendant was the
person who assaulted her. Moreover, the jury was instructed that the testimony
was admitted only to explain why Johnson might be reluctant to testify in this
case, and that it should not be considered against defendant unless the assault was
somehow tied to him.
26


individuals19 were in prison and so in a position to carry out defendant‘s threats.
However, the court sustained objections to this line of argument. We assume the
jury heeded the court‘s rulings. (E.g., People v. Stitely (2005) 35 Cal.4th 514.)
4. Instructions on Victim Impact Evidence
Defendant contends the jury was not properly instructed on the use of
victim impact evidence.
In accordance with CALJIC No. 8.84.1, the jury was instructed in pertinent
part that ―[y]ou must neither be influenced by bias nor prejudice against the
defendant, nor swayed by public opinion or public feelings. Both the People and
the defendant have the right to expect that you will consider all the evidence,
follow the law, exercise your discretion consciously [sic], and reach a just
verdict.‖
On appeal, defendant contends the trial court should have given the
following instruction sua sponte: ―Victim-impact evidence is simply another
method of informing you about the nature and circumstances of the crime in
question. You may consider this evidence in determining an appropriate
punishment. However, the law does not deem the life of one victim more valuable
than another; rather, victim-impact evidence shows that the victim, like the
defendant, is a unique individual. Your consideration must be limited to a rational
inquiry into the culpability of the defendant, not an emotional response to the
evidence. Finally, a victim-impact witness is precluded from expressing an
opinion on capital punishment and, therefore, jurors must draw no inference
whatsoever by a witness‘s silence in that regard.‖

19
Defendant‘s father, a cousin, and a gang member nicknamed ―Monster
Cody.‖
27



We recently considered this instruction and concluded it is neither required
nor appropriate. (People v. Zamudio, supra, 43 Cal.4th 327, 369-370.) ―Insofar as
this proposed instruction is legally correct, it would not have provided the jurors
with any information they did not otherwise learn from CALJIC No. 8.84.1.
Moreover, because jurors may, in considering the impact of a defendant‘s crimes,
‗exercise sympathy for the defendant‘s murder victims and . . . their bereaved
family members‘ [citation], the proposed instruction is incorrect in suggesting that
a juror‘s ‗emotional response‘ to the evidence may play no part in the decision to
vote for the death penalty. [¶] The first two sentences of the proposed instruction
were adequately covered by another instruction the trial court gave, CALJIC No.
8.85. In this regard, the trial court instructed the jury to ‗consider, take into
account, and be guided by,‘ among other factors, ‗the circumstances of the crime
of which the defendant was convicted in the present proceeding.‘ We have held
that this instruction adequately ‗instruct[s] the jury how to consider‘ victim impact
evidence. [Citation.] [¶] The remainder of the proposed instruction, even if we
assume it to be legally correct, is not the type to give rise to a sua sponte duty to
instruct. A trial court must instruct sua sponte ‗only on those general principles of
law that are closely and openly connected with the facts before the court and
necessary for the jury’s understanding of the case. [Citation.]‘ [Citation.]
Instructions informing the jurors that the law does not deem the life of one victim
more valuable than another, and cautioning them not to draw an adverse inference
from a victim impact witness‘s silence regarding capital punishment, were not
necessary to the jury‘s understanding of this case. Therefore, the trial court had no
sua sponte duty to give such instructions. [Citations.]‖ (Ibid., fn. omitted.)
5. Instruction on Governor’s Commutation Power
During penalty phase deliberations, the jury submitted the following written
question to the court: ―Does a conviction and sentence of Life without possibility
28
of parole mean there is no future possibility of parole regardless of future changes
of Law or Legal precident [sic]?‖ The court advised counsel that it was inclined to
answer the question by mentioning the governor‘s power of commutation, while
emphasizing it should not be considered in determining the appropriate sentence.
Defense counsel expressed her approval of this answer, as did the prosecutor. The
court consulted counsel again after committing the proposed answer to writing.
The instruction read: ―The governor of the State of California has the power to
commute or modify a sentence. This power applies to both life without possibility
of parole and the death sentence. It would be a violation of your duty as a juror to
consider the possibilities of such commutation of an appropriate sentence.‖
Defense counsel again expressed agreement: ―Meets with the defense approval.‖
The court then directed that the instruction be sent in to the jury.
The Attorney General contends the doctrine of invited error bars defendant
from challenging the instruction on appeal. We need not reach this question
because the instruction was not erroneous.
A trial court in a capital case does not err when it answers a jury question
generally related to the commutation power by instructing that the Governor may
commute either a death sentence or a life without possibility of parole sentence,
but that the jury must not consider the possibility of commutation in determining
the appropriate sentence. (People v. Hines (1997) 15 Cal.4th 997, 1073 (Hines);
People v. Ramos (1984) 37 Cal.3d 136, 159, fn. 12 (Ramos).)
Relying on Coleman v. Calderon (9th Cir. 2000) 210 F.3d 1047 (Coleman
II), defendant contends that, given his three prior convictions, the instruction was
erroneous because it failed to inform the jury that commutation was possible for a
twice-convicted felon only upon the recommendation of four justices of this court
(see Cal. Const., art V, § 8, subd. (a)) and only upon consultation with the Board
of Prison Terms (§§ 4802, 4812, 4813).
29

In Coleman II, the Ninth Circuit held that the instruction given there was
prejudicially misleading because it ―suggested that the Governor could, at his sole
discretion, commute a sentence from life imprisonment without the possibility of
parole to some lesser sentence that would include the possibility of parole.‖
(Coleman II, supra, 210 F.3d at p. 1050.)
Coleman II is distinguishable. Unlike this case, the instruction in Coleman
II was not given in response to a jury question. (People v. Coleman (1988) 46
Cal.3d 749, 780-781.) Rather, it was a then-standard instruction given because
section 190.3 required that a penalty phase jury be instructed that a sentence of life
imprisonment without possibility of parole can be modified or commuted by the
Governor. In Ramos, supra, 37 Cal.3d 136, this court held that such an instruction
violated the due process clause of the California Constitution. (Ramos, at pp. 150-
159.) However, the Ramos court itself noted that when the jury raises the
commutation issue, the matter cannot be avoided and is best handled by the sort of
instruction given here. (Id. at p. 159, fn. 12.)
Moreover, as we have stated repeatedly, there is no reason to mention the
restrictions on the Governor‘s power of commutation because they are irrelevant
to the jury‘s determination, and there is good reason not to stress the defendant‘s
record. (People v. Beames (2007) 40 Cal.4th 907, 932 (Beames); Hines, supra, 15
Cal.4th at p. 1074; People v. Carpenter (1997) 15 Cal.4th 312, 360.) In People v.
Hart (1999) 20 Cal.4th 546, we reaffirmed this view and declined to follow the
Ninth Circuit‘s contrary authority in, among other cases, Coleman v. Calderon
(9th Cir. 1998) 150 F.3d 1105. (Hart, at pp. 654-657.)
The Coleman II court further held that the standard instruction in that case
was constitutionally infirm because it invited the jury to speculate that the only
way to prevent the defendant‘s release was to sentence him to death. (Coleman II,
supra, 210 F.3d at pp. 1050-1051.) The instruction given here certainly did not
30
invite the jury to engage in such speculation. To the contrary, the jury was
admonished that considering the possibility of commutation would be a violation
of its oath. Absent any contrary indication, we presume the jury followed the
instruction. (See, e.g., People v. Gray (2005) 37 Cal.4th 168, 217.)
Defendant next contends the instruction given here was erroneous because
the jury‘s question did not directly raise the issue of commutation. We have
recently rejected this argument. ―Defendant asserts the trial court should not have
instructed on commutation, because the jury did not specifically ask about the
Governor‘s commutation power but, rather, inquired about parole. We have held,
however, that commutation instructions are properly given when the jury
implicitly raises the issue of commutation. [Citations.]‖ (Beames, supra, 40
Cal.4th at p. 932.) The point is that jurors are not concerned about the distinction
between parole and commutation. They are simply interested in the bottom line:
Will the defendant ever be released from prison?
While the instruction given by the court appropriately responded to the
commutation issue implicit in the jury‘s question, defendant contends the
instruction requires reversal because it failed to address the issue that was raised
explicitly: whether defendant might be paroled as a result of future legislative or
judicial action. It would have been proper for the court to tell the jury that in
unusual cases, future action by the Legislature or the courts might result in the
parole of a defendant who has been sentenced either to death or to life without
possibility of parole, but that the jury should not speculate on such possibility and
instead should assume the sentence it reaches will be carried out. (People v. Perry
(2006) 38 Cal.4th 302, 321-322; People v. Kipp (1998) 18 Cal.4th 349, 378-379
(Kipp).) However, the failure to give such an instruction is not prejudicial.
During deliberations in People v. Harris, supra, 43 Cal.4th 1269, the jury sent the
court a note asking for a definition of life without possibility of parole. With the
31
approval of counsel, the court told the jury the concept did not require further
definition. We held that the defendant was not prejudiced by the procedure to
which he agreed. The instructions the jury had been given were ―plain and
accurate,‖ leaving ―no room for doubt over defendant‘s eligibility for parole.‖
(Harris, supra, 43 Cal.4th at pp. 1317-1318; accord, People v. Samuels (2005) 36
Cal.4th 96, 135-136.) The same pattern instructions, CALJIC Nos. 8.84 and 8.88,
were given here.
6. CALJIC Nos. 8.85 and 8.88
Defendant challenges two pattern instructions explaining statutory factors
the jury was to consider in making its penalty decision (CALJIC No. 8.85) and on
the weighing of those factors (CALJIC No. 8.88).20
a. CALJIC No. 8.85
As we have recently affirmed, ―CALJIC No. 8.85 is both correct and
adequate.‖ (People v. Valencia (2008) 43 Cal.4th 268, 309.) We have repeatedly
upheld it against the particular attacks made by defendant.
The ―circumstances of the crime‖ factor stated in section 190.3, factor (a)
does not foster arbitrary and capricious penalty determinations. (E.g., People v.
Barnwell (2007) 41 Cal.4th 1038, 1058 (Barnwell).)
The trial court is not obligated to delete inapplicable factors from the
factors that may be considered in mitigation or aggravation. (E.g., Harris, supra,
43 Cal.4th at pp. 1320-1321.)
The use of the phrase ―whether or not‖ to preface certain factors does not
improperly prompt the jury to consider the absence of such factors as aggravating
circumstances.21 (E.g., Harris, supra, 43 Cal.4th at p. 1321.)

20
Defendant relies upon the Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution.
32



The use in the sentencing factors of the phrases ―extreme mental or
emotional disturbance‖ (§ 190.3, factor (d), italics added) and ―extreme duress or
. . . substantial domination of another‖ (id., factor (g), italics added) does not
inhibit the consideration of mitigating evidence or make the factors impermissibly
vague. (E.g., People v. Lewis (2008) 43 Cal.4th 415, 532 (Lewis).)
Written findings are not required as to the aggravating factors. (E.g.,
People v. Watson (2008) 43 Cal.4th 652, 703 (Watson).)
b. CALJIC No. 8.88
CALJIC No. 8.88 adequately advises jurors on the scope of their discretion
to reject death and return a verdict of life without possibility of parole (LWOP).
(E.g., People v. Stitely (2005) 35 Cal.4th 514, 574.) We have also repeatedly
upheld this instruction against similar particular attacks.
The language in CALJIC No. 8.88 directing the jury to determine whether
the aggravating circumstances are ―so substantial‖ in comparison to the mitigating
circumstances is not unconstitutionally vague. (E.g., Watson, supra, 43 Cal.4th at
p. 702.)
The instruction is also not unconstitutional for failing to inform the jury
that: (a) death must be the appropriate penalty, not just a warranted penalty (e.g.,
People v. Moon (2005) 37 Cal.4th 1, 43); (b) an LWOP sentence is required, if it
finds that the mitigating circumstances outweigh those in aggravation (e.g., Moon,
supra, 37 Cal.4th at p. 42) or that the aggravating circumstances do not outweigh
those in mitigation (e.g., Kipp, supra, 18 Cal.4th 349, 381); (c) an LWOP sentence

(footnote continued from previous page)

21
For example, section 190.3, factor (e): ―Whether or not the victim was a
participant in the defendant‘s homicidal conduct or consented to the homicidal
act.‖
33


may be imposed even if the aggravating circumstances outweigh those in
mitigation (Kipp, supra, 18 Cal.4th at p. 381); (d) neither party bears the burden
of persuasion on the penalty determination (e.g., Harris, supra, 43 Cal.4th at p.
1322).
Finally, section 190.3 and the pattern instructions are not constitutionally
defective for failing to assign the state the burden of proving beyond a reasonable
doubt that an aggravating factor exists, that the aggravating factors outweigh the
mitigating factors, and that death is the appropriate penalty. As defendant
acknowledges, we have repeatedly rejected these arguments. (E.g., Lewis, supra,
43 Cal.4th at p. 533.) The recent decisions of the United States Supreme Court
interpreting the Sixth Amendment‘s jury trial guarantee22 do not compel a
different result. (Lewis, at p. 534.)
7. Intercase Proportionality
Contrary to defendant‘s contention, intercase proportionality review for
death penalty cases is not required by the Eighth and Fourteenth Amendments to
the United States Constitution. (E.g., People v. Lindberg (2008) 45 Cal.4th 1, 54.)
8. International Law
Contrary to defendant‘s contention, the death penalty as applied in this state
is not rendered unconstitutional through operation of international law and treaties.
(E.g., Barnwell, supra, 41 Cal.4th at p. 1059.)
9. Asserted Cumulative Error
Finally, there was no cumulative prejudice. We have found only one minor
error: the admission of evidence of defendant‘s noncriminal conduct in bringing

22
Cunningham v. California (2007) 549 U.S. 270; United States v. Booker
(2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona
(2002) 536 U.S. 584; Apprendi, supra, 530 U.S. 466.
34


BB guns to school when he was 12 years old. (Ante, p. 19.) Again, in light of the
evidence of defendant‘s violent crimes as an adult, including his eight armed
robberies, there is no reasonable possibility that this evidence was prejudicial.
(Ibid.)
III. DISPOSITION
We affirm the judgment.
CORRIGAN, J.

WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.

35





CONCURRING OPINION BY MORENO, J.

I disagree with the majority regarding the trial court‘s commutation
instruction to the jury in response to its inquiries. In my view, such an instruction
in that context was error. Moreover, the instruction was erroneously incomplete. I
am bound by our prior case law, however, to conclude that the error was harmless
beyond a reasonable doubt, and on that basis concur in the majority‘s result.
We held in People v. Ramos (1984) 37 Cal.3d 136, 159 (Ramos), that an
instruction during the penalty phase of a capital trial sua sponte informing jurors of
the possibility that the governor may commute a life imprisonment without possibility
of parole sentence — the so-called Briggs instruction — violates the due process
clause of the California Constitution. The court reasoned that such an instruction (1)
invites groundless speculation, (2) undermines a juror‘s sense of personal
responsibility, and (3) undermines the governor‘s power of commutation by
encouraging jurors to preempt that power. (Id. at pp. 156-158.) Nonetheless, the
court recognized that if the jury itself raises a commutation issue, it ―cannot be
avoided‖ and should be addressed briefly, accurately explaining that the commutation
power applies to both life imprisonment without possibility of parole and death
sentences, and emphasizing that it would be a violation of a juror‘s duty to consider
commutation. (Id. at p. 159, fn. 12.)
Since Ramos, we have extended that recognition to situations in which a jury
―implicit[ly]‖ refers to the commutation power, such as a jury‘s question about
1


whether ― ‗our penalty decision [can] be modified through any part of the appeal
process?‘ ‖ (People v. Hines (1997) 15 Cal.4th 997, 1073, 1071, italics omitted.) The
key in Ramos is whether the jury raises the commutation issue so that it ―cannot be
avoided.‖ (Ramos, supra, 37 Cal.3d at p. 159, fn. 12.) Although some of our post-
Ramos cases have been less than rigorous in their reasoning, it is possible to argue
that when juries ask broad, open-ended questions about the possibility of parole or the
appeals process, such as in the above-quoted passage from Hines, jurors are thinking
about commutation, and that a commutation instruction is therefore appropriate.
But extending that rationale to the present case is unwarranted. As the
majority opinion recounts, the jury asked during deliberations: ―Does a conviction
and sentence of Life without possibility of parole mean there is no future possibility
of parole regardless of future changes of Law or Legal precident [sic]?‖ After
consulting with counsel, the court issued this instruction: ―The governor of the State
of California has the power to commute or modify a sentence. This power applies to
both life without possibility of parole and the death sentence. It would be a violation
of your duty as a juror to consider the possibilities of such commutation of an
appropriate sentence.‖ (Maj. opn., ante, at pp. 28-29.)
It is difficult to say from the above that the jury was thinking about
commutation and that therefore the issue of commutation could not be avoided. The
jury‘s question focuses on the power of the Legislature, or of the courts, to make
changes in the law that will affect a life without parole sentence. As such, it was not
necessary to raise the Governor‘s commutation power under existing law in order to
answer it.
Thus, for example, in People v. Turner (2004) 34 Cal.4th 406, 436-437, the
trial court received the following three inquiries from the jury during penalty phase
deliberations: ―(1) ‗We understand the sentence of life in prison without the
possibility of parole to mean exactly what it implies. Does it?‘; (2) ‗After being
2
sentenced to LWOP, if the law changed, could a person so sentenced then be eligible
for parole?‘; and (3) ‗How does LWOP . . . differ from a sentence of life
imprisonment?‘ ‖ After consulting with counsel, the trial court instructed the jury as
follows: ― ‗For the purpose of your deliberations, you are to assume life without the
possibility of parole means what it says.‘ In responding to the second and third
questions, the court told the jury: ‗As to those remaining questions, the court cannot
instruct you further and you are not to speculate or consider such matters.‘ ‖ (Id. at p.
437.)
Here, as in Turner, the jury wanted to know whether changes in the law would
affect a life without parole sentence, and the trial court could have instructed the jury
simply not to ― ‗speculate or consider such matters,‘ ‖ instead of sua sponte
instructing on gubernatorial commutation that the jury‘s questions did not seem to
raise. It cannot be the case that any time penalty phase jurors inquire into the true
nature of a life without parole sentence, it is appropriate to instruct on commutation,
no matter what form that inquiry takes. Because this is not a case where a
commutation instruction ―could not be avoided‖ (Ramos, supra, 37 Cal.3d at p. 159,
fn. 12), and indeed, the trial court‘s answer was not particularly responsive to the
jury‘s questions, I would conclude the trial court erred in instructing about
commutation.
Moreover, I find merit in defendant‘s argument that even if the instruction was
appropriately given, in light of his three prior convictions, the commutation
instruction was erroneous because it failed to inform the jury that commutation was
possible for a twice-convicted felon only upon the recommendation of four justices of
this court. (See Cal. Const., art. V, § 8, subd. (a).) In so arguing, defendant relies on
Ninth Circuit precedent holding that such an omission may in some circumstances
constitute prejudicial error. (Coleman v. Calderon (9th Cir. 2000) 210 F.3d 1047
(Coleman II). The majority reject Coleman II‘s approach, reiterating this court‘s
3
position that ―there is no reason to mention the restrictions on the Governor‘s power
of commutation because they are irrelevant to the jury‘s determination, and there is
good reason not to stress the defendant‘s record.‖ (Maj. opn., ante, at p. 30.)
I find the above unpersuasive in the present case. First, while it may be true
that ―restrictions on the Governor‘s power of commutation . . . are irrelevant to the
jury‘s determination,‖ it is also true that the Governor‘s power of commutation is
itself irrelevant to the jury‘s determination. When as here the trial court instructs in
response to a jury question ostensibly about commutation, it is difficult to see why it
should not instruct the jury in a manner that accurately describes the legal
impediments to obtaining commutation, if defendant is not opposed. As for the
second reason, it is unclear why the general dictum that there is ―good reason not to
stress the defendant‘s record‖ applies in the present case. As the majority recounts,
defendant had an extensive criminal history and several prior convictions, mostly
stemming from the crime spree he engaged in between the time he committed the
murder and the time he was apprehended. Considerable evidence of this criminal
history was introduced during the penalty phase. In his closing argument, the
prosecutor discussed that criminal history at length. In light of this intensive focus on
defendant‘s criminal history during the penalty phase, it is difficult to say that
modifying the commutation instruction in a way that alluded to that history would
have been detrimental to defendant.
It is also within the realm of possibility that the trial court‘s instructional error
was prejudicial. First, the fact that the jury asked these questions during the course of
their deliberations meant that there was some likelihood that the answers mattered to
those deliberations, and that a wrong answer could have influenced the jury against
defendant. Moreover, the court erred not only by erroneously giving the commutation
instruction, but also by not responding to the jury‘s real question, and it is possible
additional prejudice resulted from that omission. Also to be considered in the
4
prejudice equation is the closeness of the case. The fact that the panel‘s deliberations
continued for five days, while not conclusive, is one indication of closeness.
Furthermore, although it was a brutal murder, as most all death-eligible murders are, it
was more impulsive than deliberate, and there is some truth to trial counsel‘s
statement during closing argument that it was not ―the worst of the worst‖ murders.
Also significant, as defense counsel stressed, defendant was 18 years, one month old
at the time he committed the murder and, under the death penalty statute (Pen. Code,
§ 190.5) a person under 18 would not have been subject to the death penalty, even
before the Supreme Court put that rule on a constitutional footing in Roper v.
Simmons (2005) 543 U.S. 551. Indeed, the murder of which defendant was convicted
bore the hallmarks of an ― ‗impetuous and ill-considered action[] and decision[]‘ ‖ (id.
at p. 569) that juvenile criminals are particularly prone to, which the United States
Supreme Court recognized in concluding that such criminals should not be subject to
the death penalty. On the other hand, defendant‘s extensive criminal history could be
considered in aggravation.
5
Although the harmless error question would be close if I were writing on a
clean slate, this court‘s precedent holds that giving an instruction to disregard
commutation renders any commutation instruction harmless. (People v. Coleman
(1988) 46 Cal.3d 749, 782.) Bound by that precedent, I concur that giving the
instruction in this case was not prejudicial error.1
MORENO, J.

1
Because the error was harmless under this court‘s precedent, I do not reach
the question whether the Attorney General is correct that any error was invited. I
note that, generally speaking, the doctrine of invited error applies only in
situations in which defense counsel has requested an instruction based on a
―conscious and deliberate tactical choice.‖ (People v. Lucero (2000) 23 Cal.4th
692, 724.) It is unclear the extent to which that doctrine extends to instructions
that have been consented to rather than requested (ibid.), nor is it clear whether
trial counsel‘s decision in the present case to go along with an instruction that
raised the possibility of gubernatorial commutation, somewhat incompletely,
rather than responding to the juror question narrowly on its own terms, was the
result of a tactical choice or mere inadvertence.

6


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Bramit
__________________________________________________________________________________

Unpublished Opinion


Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S064415
Date Filed: July 16, 2009
__________________________________________________________________________________

Court:

Superior
County: Riverside
Judge: Robert J. McIntyre

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Peter R. Silten,
Deputy State Public Defender, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Gil P. Gonzalez, Deputy
Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Peter R. Silten
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Gil P. Gonzalez
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2200


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 07/16/200946 Cal. 4th 1221, 210 P.3d 1171, 96 Cal. Rptr. 3d 574S064415Automatic Appealopinion issued

Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Gil P. Gonzalez, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Bramit, Michael Lamar (Appellant)
San Quentin State Prison
Represented by Office Of The State Public Defender-Sac
Peter Silten, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA


Opinion Authors
OpinionJustice Carol A. Corrigan
ConcurJustice Carlos R. Moreno

Disposition
Jul 16 2009Opinion: Affirmed

Dockets
Sep 8 1997Judgment of death
Sep 18 1997Filed certified copy of Judgment of Death Rendered
9-8-97.
Sep 18 1997Penal Code sections 190.6 et seq. apply to this case
May 15 1998Record certified for completeness
Sep 4 2001Filed:
applt's application for appointment of counsel (IFP form).
Sep 5 2001Order appointing State Public Defender filed
to represent applt for the direct appeal.
Sep 17 2001Note:
AOB letter sent to counsel. New letter sent 9-19-2001.
Sep 18 2001Date trial court delivered record to appellant's counsel
7,934 pp. record. (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.) (Note: record was sent to counsel on 9-13-2001)
Sep 18 2001Received:
(amended) notice from the superior court of transmittal of the record to applt's counsel on 9-13-2001.
Sep 19 2001Appellant's opening brief letter sent, due:
4-16-2002.
Nov 5 2001Counsel's status report received (confidential)
from State P.D.
Jan 3 2002Counsel's status report received (confidential)
from State P.D.
Jan 15 2002Received copy of appellant's record correction motion
applt's motion to augment, settle and correct the record on appeal. (48 pp.)
Mar 6 2002Counsel's status report received (confidential)
from State P.D.
Apr 8 2002Request for extension of time filed
to file AOB. (1st request)
Apr 24 2002Filed:
Suppl. declaration in support of application for extension of time to file AOB.
Apr 30 2002Extension of time granted
To 6/17/2002 to file AOB. The court anticipates that after that date, only six further extensions totaling 360 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and take all stepsnecessary to meet this schedule.
May 3 2002Counsel's status report received (confidential)
from State P.D.
Jun 17 2002Request for extension of time filed
To file AOB. (2nd request)
Jun 21 2002Extension of time granted
to 8-16-2002 to file AOB. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Jul 3 2002Counsel's status report received (confidential)
from State P.D.
Aug 12 2002Request for extension of time filed
To file appellant's opening brief. (3rd request)
Aug 14 2002Extension of time granted
to 10-15-2002 to file AOB. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Sep 19 2002Counsel's status report received (confidential)
from State P.D.
Oct 8 2002Request for extension of time filed
To file appellant's opening brief. (4th request)
Oct 15 2002Extension of time granted
To 12/16/2002 to file appellant's opening brief. The court anticiapates that after that date, only three further extensions totailng 180 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Nov 4 2002Counsel's status report received (confidential)
from State P.D.
Dec 6 2002Request for extension of time filed
To file appellant's opening brief. (5th request)
Dec 12 2002Extension of time granted
To 2/14/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be gratned. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jan 3 2003Counsel's status report received (confidential)
from State P.D.
Feb 4 2003Request for extension of time filed
to file appellant's opening brief. (6th request)
Feb 6 2003Extension of time granted
to 4/15/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 27 2003Counsel's status report received (confidential)
from State P.D.
Apr 2 2003Request for extension of time filed
to file appellant's opening brief. (7th request)
Apr 4 2003Extension of time granted
to 6/16/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordererd to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Apr 28 2003Counsel's status report received (confidential)
from State P.D.
Jun 6 2003Request for extension of time filed
to file appellant's opening brief. (8th request)
Jun 10 2003Extension of time granted
to 8/15/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 60 additional days will be granted Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jun 13 2003Order filed
Due to clerical error, the order filed on 6-10-2003, is amended to read as follows: Good cause appearing, counsel's request for an extension of time in which to file AOB is granted to 8-15-2003. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jun 25 2003Counsel's status report received (confidential)
from State P.D.
Aug 5 2003Request for extension of time filed
to file appellant's opening brief. (9th request)
Aug 8 2003Extension of time granted
to 10/14/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 28 2003Counsel's status report received (confidential)
from State P.D.
Oct 3 2003Request for extension of time filed
to file appellant's opening brief. (10th request)
Oct 8 2003Extension of time granted
to 12/15/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 28 2003Counsel's status report received (confidential)
from State P.D.
Dec 3 2003Request for extension of time filed
to file appellant's opening brief. (11th request)
Dec 9 2003Extension of time granted
to 2-13-2004 to file AOB. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Dec 26 2003Counsel's status report received (confidential)
from State P.D.
Feb 3 2004Request for extension of time filed
to file appellant's opening brief. (12th request)
Feb 5 2004Filed:
Supplemental declaration in support of application for extension of time to file appellant's opening brief.
Feb 17 2004Counsel's status report received (confidential)
from State P.D.
Feb 17 2004Extension of time granted
to 4/13/2004 to file appellant's opening brief. After that date, only one further extension totaling 30 additional days is contemplated. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 24 2004Counsel's status report received (confidential)
from State P.D.
Apr 8 2004Request for extension of time filed
to file AOB. (13th request)
Apr 12 2004Extension of time granted
to June 14, 2004 to file appellant's opening brief. After that date, only 5 further extensions totaling 300 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it
Apr 22 2004Counsel's status report received (confidential)
from State P.D.
Apr 26 2004Record on appeal filed
Clerk's transcript 27 volumes (5970 pp.) and reporter's transcript 23 volumes (2601 pp.) including material under seal; ASCII disks. Clerk's transcript includes 4396 pages of juror questionnaires. Copy of People's exhibit #40 (video tape) transmitted with record.
Apr 26 2004Letter sent to:
counsel advising that record on appeal, certified for accuracy, was filed this date.
Jun 10 2004Request for extension of time filed
to file appellant's opening brief. (14th request)
Jun 14 2004Extension of time granted
to 8/13/2004 to file appellant's opening brief. After that date, only five further extensions totaling about 300 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter Hensley's representation that he anticipates filing that brief by 6/2005. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Jun 24 2004Counsel's status report received (confidential)
from State P.D.
Aug 13 2004Request for extension of time filed
to file appellant's opening brief. (15th request)
Aug 18 2004Extension of time granted
to 10/12/2004 to file appellant's opening brief.
Oct 5 2004Request for extension of time filed
to file appellant's opening brief. (16th request)
Oct 12 2004Counsel's status report received (confidential)
from State P.D.
Oct 13 2004Extension of time granted
to 12/13/2004 to file appellant's opening brief.
Dec 6 2004Request for extension of time filed
to file appellant's opening brief. (17th request)
Dec 6 2004Counsel's status report received (confidential)
from State P.D.
Dec 10 2004Extension of time granted
to 2/14/2005 to file appellant's opening brief. After that date, only six further extensions totaling about 320 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's represenation that he ancitipates filing that brief by 12/31/2005.
Feb 8 2005Counsel's status report received (confidential)
from State P.D.
Feb 8 2005Counsel's status report received (confidential)
from State P.D.
Feb 8 2005Request for extension of time filed
to file appellant's opening brief. (18th request)
Feb 15 2005Extension of time granted
to 4/15/2005 to file appellant's opening brief. After that date, only four further extensions totaling about 240 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 12/13/2005.
Apr 5 2005Request for extension of time filed
to file AOB. (19th request)
Apr 5 2005Counsel's status report received (confidential)
from State P.D.
Apr 12 2005Extension of time granted
to 6/14/2005 to file appellant's opening brief. After that date, only four further extensions totaling about 240 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter Silten's representation that he anticipates filing that brief by 2/15/2006.
Jun 16 2005Counsel's status report received (confidential)
from State P.D.
Jun 17 2005Request for extension of time filed
to file appellant's opening brief. (20th request)
Jun 21 2005Extension of time granted
to 8/15/2005 to file appellant's opening brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 2/15/2006.
Aug 8 2005Request for extension of time filed
to file appellant's opening brief. (21st request)
Aug 8 2005Counsel's status report received (confidential)
from State P.D.
Aug 12 2005Extension of time granted
to 10/14/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by 2/15/2006.
Sep 30 2005Counsel's status report received (confidential)
from State P.D.
Oct 3 2005Request for extension of time filed
to file appellant's opening brief. (22nd request)
Oct 11 2005Extension of time granted
to 12/13/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by mid 4/2006.
Dec 6 2005Counsel's status report received (confidential)
from State P.D.
Dec 6 2005Request for extension of time filed
to file appellant's opening brief. (23rd request)
Dec 9 2005Extension of time granted
to 2/14/2006 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by mid 4/2006.
Feb 8 2006Counsel's status report received (confidential)
from State P.D.
Feb 8 2006Request for extension of time filed
to file appellant's opening brief. (24th request)
Feb 10 2006Extension of time granted
to April 17, 2006 to file the appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by mid June 2006.
Apr 10 2006Request for extension of time filed
to file appellant's opening brief. (25th request)
Apr 10 2006Counsel's status report received (confidential)
from State P.D.
Apr 13 2006Extension of time granted
to May 16, 2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by May 16, 2006.
Apr 18 2006Order filed
Due to clerical error, the order filed in the above matter on April 13, 2006, is amended to read as follows: Good cause appearing, and based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing the appellant's opening brief by June 16, 2006, counsel's request for an extension of time in which to file that brief is granted to June 16, 2006. After that date, no further extension will be granted.
Jun 9 2006Counsel's status report received (confidential)
from State P.D.
Jun 16 2006Appellant's opening brief filed
(81,700 words; 280 pp.)
Jun 19 2006Respondent's brief letter sent; due:
October 16, 2006
Oct 2 2006Request for extension of time filed
to file respondent's brief. (1st request)
Oct 12 2006Extension of time granted
to December 15, 2006 to file the respondent's brief. After that date, only one further extension totaling about 47 additional days is contemplated. Extension is granted based upon Supervising Deputy Attorney General Gil Gonzalez's representation that he anticipates filing that brief by January 31, 2007.
Oct 12 2006Extension of time granted
to December 15, 2006 to file the respondent's brief. After that date, only one further extension totaling about 47 additional days is contemplated. Extension is granted based upon Supervising Deputy Attorney General Gil Gonzalez's representation that he anticipates filing that brief by January 31, 2007.
Dec 7 2006Request for extension of time filed
to file respondent's brief. (2nd request)
Dec 18 2006Extension of time granted
to January 31, 2007 to file the respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Supervising Deputy Attorney General Gil Gonzalez's respresentation that he anticipates filing that brief by January 31, 2007.
Jan 2 2007Respondent's brief filed
(31,243 words; 101 pp.)
Jan 4 2007Note:
appellant's reply brief due: March 5, 2007 (see Cal. Rules of Court, rule 8.630(c)(1)(D))
Feb 26 2007Request for extension of time filed
to file appellant's reply brief. (1st request)
Mar 5 2007Extension 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 May 4, 2007.
Apr 26 2007Request for extension of time filed
to file appellant's reply brief. (2nd request)
May 2 2007Extension of time granted
to July 3, 2007 to file the appellant's opening brief. After that date, only three further extensions totaling about 75 additional days are contemplated. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by mid-November 2007.
May 4 2007Order filed
Due to clerical error, the order filed in the above matter on May 2, 2007, is amended to read as follows: Good cause appearing, and based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing the appellant's reply brief by mid-November 2007, counsel's request for an extension of time in which to file that brief is granted to July 3, 2007. After that date, only three further extensions totaling about 135 additional days are contemplated.
Jun 26 2007Request for extension of time filed
to file appellant's reply brief. (3rd request)
Jul 3 2007Extension of time granted
to September 4, 2007 to file the appellant's reply brief. After that date, only two further extensions totaling about 75 additional days are contemplated. Extension is granted based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing that brief by Mid November 2007.
Aug 27 2007Request for extension of time filed
to file appellant's reply brief. (4th request)
Aug 31 2007Extension of time granted
Good cause appearing, and based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing the appellant's reply brief by mid-November 2007, counsel's request for an extension of time in which to file that brief is granted to November 5, 2007. After that date, only one further extension totaling about 12 additional days are contemplated.
Oct 29 2007Request for extension of time filed
to file appellant's reply brief. (5th request)
Nov 5 2007Extension of time granted
Good cause appearing, and based upon Deputy State Public Defender Peter R. Silten's representation that he anticipates filing the appellant's reply brief by December 5, 2007, counsel's request for an extension of time in which to file that brief is granted to December 5, 2007. After that date, no further extension is contemplated.
Dec 5 2007Appellant's reply brief filed
(20,275 words; 73 pages)
Dec 5 2007Request for judicial notice filed (AA)
by appellant. (received with this request is a copy of a reporter's transcript volume IV of V pages 711-985)
Feb 6 2009Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 6, 2009, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Feb 11 2009Received:
Letter from Supervising Deputy State Public Defender, Peter Silten, dated February 11, 2009, requesting that the court schedule oral argument for this case in the afternoon during the week of April 6, 2009. This request is to limit expenses for hotel, meals and per diem, etc., due to budget constraints.
Feb 20 2009Letter sent to:
Deputy SPD Peter Silten advising him that the case will be scheduled for oral argument in the afternoon on Monday, April 6, 2009.
Feb 26 2009Received:
amended declaration of service from Deputy State Public Defender, Peter R. Silten, for letter dated February 11, 2009.
Apr 1 2009Case ordered on calendar
to be argued Monday, May 4, 2009, at 1:30 p.m., in San Francisco
Apr 10 2009Filed:
respondent's focus issues letter, dated April 8, 2009.
Apr 10 2009Filed:
appellant's focus issues letter, dated April 10, 2009.
Apr 7 2009Received:
appearance sheet from Deputy State Public Defender Peter R. Silten, indicating 30 minutes for oral argument for appellant.
Apr 10 2009Received:
appearance sheet from Deputy Attorney General Gil P. Gonzalez, indicating 30 minutes for oral argument for respondent.
Apr 20 2009Received:
respondent's additional authorities letter, dated April 20, 2009.
Apr 24 2009Received:
appellant's additional authorities letter, dated April 24, 2009.
May 4 2009Cause argued and submitted
Jul 15 2009Notice of forthcoming opinion posted
Jul 16 2009Opinion filed: Judgment affirmed in full
opinion by Corrigan, J -----joined by George, C.J., Kennard, Baxter, Werdegar and Chin, JJ Concurring Opinion by Moreno, J
Jul 31 2009Rehearing petition filed
(6,100 words; 22 pp.)
Aug 7 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 14, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.

Briefs
Jun 16 2006Appellant's opening brief filed
(81,700 words; 280 pp.)
Jan 2 2007Respondent's brief filed
(31,243 words; 101 pp.)
Dec 5 2007Appellant's reply brief filed
(20,275 words; 73 pages)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 3, 2010
Annotated by kmcfarla

Summary:
On July 16, 2009, defendant Michael Lamar Bramit was convicted of first degree murder and sentenced to death. He does not contest his guilt; there were several witnesses who saw him shoot and kill Jose Fierros with a firearm. But upon automatic appeal, he argues that errors during the pretrial, guilt, and penalty phases of the proceedings deprived him of his state and federal Constitutional rights.

CORRIGAN, J. writes for the court, dismissing defendant’s arguments and affirming defendant’s sentence. MORENO, J. writes separately, concurring in the judgment.

Facts:
Michael Lamar Bramit was eighteen years old on the night of June 14, 1994, when he and his friend Anthony Miller robbed and killed Jose Fierros in the parking lot of a Minimart in Banning, Ca. There were several eyewitnesses, as Fierros has three prostitutes in the car with him. Additional witnesses also saw the beating and eventual shooting, and heard Fierros beg for his life.

The prosecution presented extensive evidence regarding defendant’s prior record, both as a juvenile and in subsequent years, including seven bank robberies and one attempted robbery. No one was hurt during the commission of these crimes, but several victims testified as to the lasting impact that the robberies had on their lives—effects such as paranoia, early retirement, and uneasy feelings toward young black men. Defendant’s girlfriend testified for the prosecution, as to defendant’s repeated acts of violence against her, and evidence of defendant’s efforts to intimidate witnesses before the trial was also presented. Finally, several family members of murder victim Fierros took the stand, speaking to the irreparable impact that the murder rendered on their lives.

Defense, in return, proffered evidence of defendant’s difficult childhood and his good character. He grew up without a father and his mother was addicted to drugs. He lived in over ten different residences throughout his childhood, and while his mother was lost in her addiction, defendant was left to provide for himself and his younger brother and sister. He met an older boy who was involved in gang activity, and soon defendant followed suit. By the time he was sixteen, he was earning money selling crack cocaine. His mother, maternal aunt, grandmother, sister, a neighbor and surrogate mother, and parole officer all testified to the loss they would suffer as a result of defendant’s execution. All agreed—defendant loved his siblings and tried to make the best of bad situation after bad situation.

Issue:
Was defendant’s trial wrought with procedural, prosecutorial, and judicial errors, so as to deprive him of fundamental constitutional rights and render his death sentence invalid?

Holding:
No. Defendant’s assertions of error were in error themselves. There existed no cumulative prejudice against defendant during the trial so as to invalidate his sentence. Trial court’s judgment is affirmed; defendant remains sentenced to death.

Arguments and Reasoning:

Pretrial and Guilt Phase

Defendant argues that the trial court’s excusal of a juror C.S. for cause violated his Constitutional rights, as protected by the Fifth, Sixth, Eighth, and Fourteenth Amendments. But the supreme court held otherwise. First, a trial court’s ruling on a motion to exclude for cause is given deference on appeal, because such determinations are based on information that is more difficult to glean from reading the record—such as the juror’s demeanor, her tone of voice, facial expressions and confidence. Second, the Prosecutor’s assessment that the juror seemed equivocal, and that her opinions on the death penalty would impair her ability to serve as a juror—were neither hasty nor prejudicial, but sound. The record supports C.S.’s excusal, therefore, and did not violate defendant’s rights.

Defendant contends that the jury should not have been instructed on first degree murder and that, therefore, the instructions were in error. Section 187 of the California Penal Code, defense argues, implicates only second degree murder, while section 189 is reserved for first degree murder. Because defendant was not charged under section 189, he argues that he was effectively charged for second degree murder. But according to the supreme court, the defense misinterprets the relevant case law. Indeed, the court has repeatedly held that “charging murder in the terms of section 187 is sufficient to charge murder in any degree.” Thus, the trial court did not err in its instructions to the jury.

The supreme court similarly dismisses defendant’s claim that the jury should have been required to agree unanimously on whether defendant committed premeditated murder or felony murder. The case law does not support such a contention, and even if this were legal requirement, the record shows the jury did unanimously agree.

Finally, defendant claims that the Prosecution failed to present all the facts necessary to support a death sentence. According to the court, however, this claim is “illusory.” The special circumstances found here—that defendant committed the murder during the commission of a robbery—fully support the verdict.

Penalty Phase

Defendant contends that the evidence of his unajudicated, juvenile offenses should not have been admitted, and that such admittance violated his constitutional rights (including the right to a fair trial, the effective confrontation of eyewitnesses, and the effective assistance of counsel). But there is no case law or statutory precedent for prohibiting a capital jury from considering an adult defendant’s juvenile record. Indeed, section 190.3, factor (b), of the Penal Code encourages the consideration of any violent juvenile offense that would have been a crime if committed as an adult. Thus, the admitted evidence does not affect the appropriateness of defendant’s penalty. The court concedes, however, that the fourth incident related by the prosecution—defendant’s possession of a BB gun on school property—should not have been allowed. The court holds that such an error, though, is harmless; indeed, “there can be no reasonable possibility that evidence of the BB gun incident was prejudicial.”

Nor did the trial court err in allowing testimony from the murder victim’s family. Such evidence is inadmissible only if it invites a purely irrational response from the jury, or is so prejudicial as to render the trial fundamentally unfair. Otherwise, the impact of a victim’s death on his loved ones is entirely relevant. Similarly, the videotape shown to the jury by the prosecution was not unconstitutionally prejudicial, as defendant claims. Although the tape did play to the emotions of the jury, it related no new evidence and was merely a “re-packaging” of already seen photographs and snapshots. The trial court held that any prejudicial impact on defendant did not outweigh the tape’s probative value. Victim impact evidence is meant to humanize the victim.

Defendant contends, too, that the testimony regarding the impact of his uncharged bank robberies was inadmissible, and that the prosecution played to racial stereotypes by eliciting racially prejudiced testimony. But under section 190.3, factor (b), any evidence of a defendant’s violent conduct and the impact of such conduct on his victim’s lives is clearly admissible. When a victim of a bank robbery admits that she has lost confidence in “people who are black” because the defendant is black, it should not be assumed that the prosecutor meant to educe racial remarks. Regardless, the defense forfeited these admissions when they failed to object to them during trial. Finally, the prosecution did not “capitalize” on these isolated comments, by remembering them to the jury during oral arguments, and thus, the court concludes “there was no prejudice.”

Prosecutorial Misconduct

Defendant argues that the Prosecutor engaged in misconduct during her penalty phase argument and thus violated defendant’s constitutional rights to confrontation, a fair trial, due process, and a reliable verdict. He asserts two instances of misconduct: first, in reading out loud from the article, "Sorry I killed you, but I had a Bad Childhood," the Prosecutor meant to attack defense’s mitigating evidence and undermine the importance of such evidence in the jury’s deliberations; second, the suggestion that defendant would be a danger to fellow inmates and prison staff if given a life sentence was not supported by the evidence. But the court notes that because the trial court overruled defense’s objections to the article, any alleged error would in fact be judicial. And the article merely represents one more reminder to the jury that sympathy should not control its decision. Therefore, no judicial error exists. Furthermore, the court holds that the Prosecutor’s argument—which suggests defendant would be dangerous if sentenced to life—is a viable argument to make in such cases.

Judicial Error

Defendant claims that the jury was not properly instructed with regard to the weight of victim impact testimony, and that the defense’s suggested instructions should have been offered by the trial court sua sponte (on their own initiative). The court disagrees, however, holding that trial courts have a duty to offer their own instructions only when crucial information is necessary to a juror’s understanding of the case, and is left out of the instructions as given. Defendant’s requested instructions read in relevant part, “the law does not deem the life of one victim more valuable than another; rather, victim-impact evidence shows that the victim, like the defendant, is a unique individual.” But this content, absent from the instructions actually given at trial, is not necessary content, and so the trial court had no duty to intercede.

Defendant also contends that the trial court erred in responding to the to jury’s written question submitted during its deliberations: “does a conviction and sentence of Life without possibility of parole mean there is no future possibility of parole regardless of future changes of Law or Legal precedent?” The trial court responded by explaining the Governor’s commutation power to grant parole, but instructed the jury not to take such matters into consideration. Defendant claims that despite this admonition, the instructions created a false impression that the governor could, on his sole authority, give a convicted defendant parole who had been sentenced to Life without parole; this, in turn, suggested that the only way for the jury to ensure no parole was by imposing a death sentence. Furthermore, such a response was unwarranted, as the jury’s question required no such mention of the Governor’s power. This court holds, however, that the response was not in error, especially since the trial court explicitly warned the jury that any consideration of the Governor’s power would violate its oath. And although the question did not explicitly address the issue of commutation power—the inquiry was implicit, and the trial court was right to answer it explicitly.

Finally, defendant challenges specific language in the state’s uniform jury instructions (“pattern instructions”), alleging that they foster capricious penalty determinations and dissuade the consideration of mitigating factors. Of particular importance, argues defendant, is that the instructions fail to emphasize that a death sentence must be the appropriate sentence, not simply one that is warranted. But the court has repeatedly upheld these instructions in the face of similar attacks; the instructions are not constitutionally defective.

The court closes with three final conclusions:
1. The eighth and fourteenth amendments do not requires intercase proportionality review of all death penalty cases, whereby similar cases are compared to ensure validity.

2. The death penalty, as applied in California, is not unconstitutional under international law.

3. There is no cumulative prejudice or error. The only instance of error was the admission of defendant’s noncriminal juvenile activity (the BB gun incident), but this error was not prejudicial.

MORENO, J., Concurrence:
In his concurring opinion, Justice Moreno disagrees that the trial court’s response to the jury regarding the Governor’s commutation powers was not in error. He asserts that the court’s instructions were erroneous and also incomplete. Bound by the supreme court’s prior case law, however, he asserts that the error was harmless beyond a reasonable doubt, and therefore concurs in the majority’s result.

Precedent holds that the court should explain the Governor’s commutation power even if it was not explicitly raised in the jury's question, if the question makes such an explanation unavoidable. But such was not the case here, Moreno writes, as the jury specifically asked about changes in the law. To this the court could have simply responded that the jury should not consider such changes. Furthermore, for twice-convicted defendants, the governor is not the sole actor in granting parole, but such a sentencing change must be additionally recommended by four justices of the California supreme court. The majority contends that such a limitation on the Governor’s power is irrelevant to the jury’s determination; but in response to the jury's specific question, so is the governor’s power itself. If the matter is to be addressed in the court’s explanation, it may as well be a thorough and accurate explanation.

The Justice also contends that the court’s error may have been prejudicial. Since the jury asked the question, the answer clearly mattered to its deliberations. Not providing an answer to the jury's specific question regarding changes in the law may have affected its considerations and ultimate decision. The fact that the deliberations lasted for five days indicates that the decision was close and controversial.

Justice Moreno concludes by giving weight to the defendant’s point that while this was, of course, a brutal murder, it had the marks of impetuousness and ill-consideration that characterize juvenile crime. The defendant was eighteen years and one month old when he shot Fierros—two months earlier and he would not have been eligible for the death penalty.

The court has held in the past that a warning to disregard the Governor's commutation power renders any commutation instruction harmless, even if made in error. Bound by precedent, Justice Moreno agrees in the majority’s final judgment.

Annotation by Katharine Blake McFarland

Tags: constitutionality of death sentence, death penalty, judicial misconduct, jury instructions, prosecutorial misconduct, victim impact evidence