Filed 8/11/03
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S026700
v.
ANDREW LAMONT BROWN,
Riverside
County
Defendant and Appellant.
Super. Ct. No. CR-31401
Andrew Lamont Brown was convicted in 1992 in Riverside County
Superior Court of the robbery and first degree murder of Christina Ann Barraza
Ramirez. (Pen. Code, §§ 187, 211; all further statutory references are to this code
unless otherwise indicated.) The jury also sustained a special circumstance
allegation that defendant committed the murder while engaged in the commission
of a robbery (§ 190.2, former subd. (a)(17)(i), now redesignated subd. (a)(17)(A))
and two enhancement allegations that he personally used a firearm in the
commission of his crimes (§ 12022.5, subd. (a)). On March 5, 1992, the jury set
the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This
appeal is automatic. (§ 1239, subd. (b).)
After considering the claims raised on appeal, we affirm the judgment in its
entirety.
I. FACTS
A. Guilt Phase
Levi Gardner bought a Mitsubishi Mighty Max pickup truck on November
1, 1988. Defendant asked him if he would like to buy some deep-dish tire rims for
his truck. Gardner replied that he would have to see them before committing to
buying some. Defendant said he could obtain some. P.M. (a 15-year-old minor)
overheard the conversation and confirmed it.
In November 1988, defendant was living “off and on” in a home near
Perris, California, with Mark Bender, Broderick Fields, P.M., Andrew White and
others. Defendant told White he “was going to do a jack move to get some rims”
(by which he meant he was going to “rob somebody at gunpoint for their car”) and
asked White to join him. White declined. On November 11, 1988, defendant,
Fields, Mark Bender and P.M. left in Bender’s Oldsmobile Cutlass and drove
around, looking for some deep-dish rims to steal.
Joe Ramirez was married to victim Christina Ramirez. In November 1988,
he owned a red 1985 Nissan minitruck with a red camper shell. It had been
lowered (“like a low rider truck”) and had a Kenwood brand stereo and amplifier
inside. It also had distinctive deep-dish tire rims, each bearing small decorative
holes and custom painted red to match the truck. The rims were locked on the
axels except for the front left rim. On November 11th, a little before 9:00 p.m.,
Christina left her home to take her cousins, who had been visiting, to her sister’s
apartment. She took her sister’s car but soon returned, complaining the brakes
were not working well. Her husband told her to take his truck instead. She
planned to stop at Dairy Queen for a snack on the way back but had no money, so
Joe gave her a $50 bill because it was the smallest bill he had. She then left in the
truck.
2
Christina went to her parents’ home in Riverside but left with her sister
around 9:00. She had a quick meal with her sister at a restaurant and then drove
alone in the red truck towards the Dairy Queen in Riverside. The car containing
defendant, Fields, Bender and P.M. was traveling in the opposite direction when
defendant saw the rims on Christina’s truck and exclaimed, “[t]hose are the ones
we need.” They made a U-turn and followed the victim for two traffic lights.
Christina eventually stopped for a red light, and Bender stopped directly behind
her. According to P.M.’s testimony, defendant jumped out carrying a .38-caliber
pistol, ran to the driver’s side of the red truck, and fired one shot through the
window, shattering it. He then pulled Christina out and got into the truck from the
driver’s side. Fields also jumped from Bender’s car at this time, ran to the
passenger side of the truck and got in. Both the Cutlass, now with just Mark
Bender and P.M. inside, and the red Nissan truck, driven by defendant with Fields
as a passenger, then left the scene. They met later at Perry Bender’s house.
Juan Williams was in a brown Mercedes Benz, stopped at the red light
directly behind Mark Bender’s Cutlass. He saw only one man run up to the
driver’s side of the red truck. He described the assailant as a young Hispanic
male, between five feet three inches and five feet six inches tall. The assailant
threw the victim from the truck and then drove off in it. Williams testified he did
not see a second man enter the truck on the passenger side, although a police
officer testified later in the trial that Williams told him the night of the murder that
he had seen two men run up to the truck.
Rena Stanfill was in a Ford Bronco behind Williams’s Mercedes. She was
about 30 to 35 feet from the crime. She described the car in front of the Mercedes
as a medium-sized American car. In front of that car was a red or maroon pickup
3
truck. She saw two men alight from the American car and run to the red pickup
truck. One man, an African-American about five feet 10 inches tall,1 ran to the
driver’s side and pulled a woman from the truck; the victim struck the pavement
face first. The second man, who was either Hispanic or African-American,
jumped into the passenger side of the truck. The two men then left the scene in the
truck, followed by the American car. Stanfill, who was driving with her windows
rolled up and the radio turned on, did not hear a gunshot.
Christina Ramirez suffered a single gunshot wound to the neck. The bullet
entered the left side of her neck and traveled downward, injuring and lodging in
her spine. She did not die immediately, but expired on December 21, 1988; the
gunshot wound was the cause of death. The bullet recovered from her body was
consistent with having been fired from a .38-caliber handgun.
Around 11:45 that night, Mark Bender, with Fields and P.M., arrived in the
Cutlass at Perry Bender’s home. (Perry is Mark Bender’s brother.) Mark was
visibly upset; inside Perry’s home, he blurted out: “I know he shot her. I know
she is hurt bad.” He was referring to defendant. Around midnight, defendant
arrived in the Ramirezes’ red truck, playing loud music on the stereo. He had a
.38-caliber handgun. When Perry asked him how he obtained the truck, he said he
got it in Riverside and that he “[s]moked the bitch.” Perry saw defendant rifling
through a woman’s purse; defendant found $50 in it.
Sometime between 11:00 p.m. and 1:00 a.m., Timothy Gardner, Levi’s
brother, saw defendant in front of Harb’s Liquor Store/Market.2 He was sitting in
1
Both defendant and Broderick Fields are African-American and stand
approximately six feet tall.
2
Timothy Gardner did not specify that this incident occurred on the night of
November 11th, merely saying it was in November 1988.
4
a red minitruck with a camper shell and deep-dish rims; the stereo was playing
loudly. Defendant asked him where Levi Gardner was. He asked Timothy
Gardner to tell his brother that he had some “deeps” for him.
Defendant apparently parked the truck in a secluded place in the hills of
Mead Valley. On November 12th, he offered to sell a single deep-dish tire rim to
Levi Gardner for $50. It was painted red and had circular holes in it. Gardner
wanted to see all four rims before committing to the purchase, so they got in
Gardner’s truck and defendant directed him to a remote location in the hills.
Down a dirt road, they came upon a red pickup truck with a camper shell. It had
deep-dish rims, but was missing one from the front. Gardner had a “bad feeling”
about the deal and declined to buy them. Defendant offered to lower the price if
Gardner helped him remove the other three rims, but he declined.
Kevin Davis also saw the red truck in the Mead Valley hills sometime in
November 1988. Defendant offered to sell him a Kenwood brand car stereo,
amplifier and speakers, but he declined. He once saw defendant in the parking lot
of a liquor store with a rim matching those on the victim’s truck. He had also seen
defendant with a .38-caliber handgun. Tony Dilleworth also testified that
defendant tried to sell him a Kenwood brand car stereo, amplifier and speakers in
November 1988.
Acting on a tip, the Riverside Sheriff’s Department located and towed the
victim’s truck from the hills. It was missing one wheel and all of its stereo
components. Heavy scratch marks around the lug nuts suggested someone had
used the wrong tool to try and remove the remaining wheels. Police found a small
amount of blood in the doorjamb on the driver’s side. Defendant apparently
blamed Rick Kinney, an acquaintance, for the truck’s disappearance from the hills.
He later confronted Kinney, saying: “Where’s my truck at? I took that truck that
5
you’re riding around today, that red truck in the hills, that was mine.” Manny
Kelly, who was with Kinney at the time, overheard this conversation.
The day after the crime, a crowd of people, including defendant and
Andrew White, were gathered in the early evening in front of a liquor store.
According to White, defendant described for the group how he acquired the red
pickup truck, saying he “smoked the bitch.” When people in the group expressed
skepticism at this account, defendant swore it was true and invoked his gang, Fruit
Town, as proof it was true. Defendant asked White to help him remove the rims
from the car and, although White had experience in such things because he had
been a car thief, he declined because he had heard that defendant had shot a person
in order to obtain the truck.
B. Penalty Phase
The prosecution’s case in aggravation consisted of evidence of eight
different violent crimes defendant had committed, as well as victim impact
evidence.
On January 12, 1988, Flecia Bennett lived with defendant and their two
children. She wanted to buy some cigarettes at the store. Defendant did not want
her to go and socked her in the mouth, drawing blood. In response, Bennett hit
him in the head with a chair. Defendant produced a .38-caliber handgun and,
pointing it at Bennett’s face from a distance of two feet, said, “Bitch, I’m going to
kill you.”
On January 27, 1988, Sharon Lee Baker was working as the desk clerk at
the University Lodge in Riverside. Defendant walked up to the front desk,
produced a large knife, called Baker a “bitch,” and ordered her to give him all her
money or he would kill her. She said the bartender would be returning soon and
defendant should leave. He left but promised to come back with a gun to kill her.
6
He came back a few days later with a woman and two children, trying to rent a
room. The police were called, and defendant was arrested.
On November 5, 1988, six days before Christina Ramirez was shot,
defendant, Broderick Fields, P.M. and Mark Bender were out driving when they
saw an Oldsmobile Cutlass Supreme with straight lace rims at a gas station. The
car was occupied by two teenagers, Gloria A. and Monica R.; the driver, 20-year-
old Danny Alcaraz, was looking under the hood. Defendant pointed a .38-caliber
handgun at the girls and ordered them out of the car. They fled, and defendant
jumped into the car and drove away. Defendant traded the rims to Mark Bender in
exchange for a black Ford Pinto. Andrew White saw the straight lace rims on
Bender’s car, but Bender later removed them. The rims were recovered from
Bender’s residence. The Oldsmobile was found in a hilly area of Mead Valley;
the tires and stereo system were missing.
On November 14, 1988, three days after Christina Ramirez was shot,
Danny Coria was riding around with his friend Simon Mireles. Coria was driving
his Suzuki Samurai with expensive deep-dish chrome rims. He stopped at a park,
whereupon a Chevy Blazer or Jimmy appeared; Willie Woods was the driver, and
defendant was in the front passenger seat. One of them yelled, “Get out,” and then
a shot was fired, striking Coria in the arm and breaking it. One of the robbers
opened the door of the Suzuki, and both Coria and Mireles fled on foot. Although
Coria identified Woods as the shooter, he was unsure by the time of defendant’s
trial and thought defendant was the shooter. Woods testified that, although he had
pleaded guilty to the crimes against Coria, defendant was the one who actually
fired the shot that struck Coria in the arm. The trial court took judicial notice that
the transcript of Woods’s plea hearing showed Woods never denied the charges
that he attempted to murder and rob Coria, or that he personally used a firearm in
those crimes.
7
The very next day, on November 15, 1988, Francisco Carillo drove to
Castle Park in Riverside with his brother Silvester Carillo and three others. Carillo
was driving his 1979 Grand Prix, which had been lowered. They left the park
around midnight. A Chevy Blazer, driven by Willie Woods with defendant in the
front passenger seat, pulled alongside. Defendant jumped out and shot Francisco
Carillo in the arm, the bullet passing through his chest and heart. Francisco
slumped forward and stepped on the gas. Another shot rang out. Silvester was
able to steer the car and drive away. Kevin Davis, who was also in the Blazer,
positively identified defendant as the shooter. Francisco Carillo died from a single
gunshot wound; forensic evidence showed the weapon had been fired from less
than three feet away, and possibly as little as 16 inches away.
Maria Ramirez, Christina’s mother-in-law, testified that nothing in her
family was the same after Christina’s murder. Her son, Joe, became severely
depressed, stopped going to work, and obtained several guns. He stayed in his
bedroom for nearly a year, coming out only to eat and go to the bathroom. He
threatened suicide once, and displayed a lot of anger, punching holes in walls and
doors. He blamed himself for Christina’s death. Maria and her husband never
went far from home because they had to keep watch on their son. She had him
committed for observation and counseling, but this did not help because her son
was such a private person. Once, when she was late coming home, he was literally
shaking and crying, overcome by the possibility that she had been shot. His entire
personality had changed, and he was overcome with fear. Maria Ramirez said her
son was doing better by the time of trial; he had rid himself of his guns and was
taking classes to become a firefighter. He did not like to testify in court because
he wanted to focus on the future and not the past. When asked whether her son
still had fears “to this day,” she replied, “Yes, they’ll be with him for his lifetime.”
8
Christina Ramirez’s mother, Susie Barraza, also testified. She stated that
Christina was an easygoing girl who had a lot of friends. She met Joe, and they
decided to marry although Joe was only 19 years old and Christina only 17 years
old. They got married in Las Vegas on October 15, 1988, less than a month before
the shooting. A wedding reception had been planned for November 12th;
Christina was shot the day before. Mrs. Barraza had a hard time coping with her
daughter’s death and started therapy, which continued at the time of trial. She was
afraid to venture out at night and always had someone accompany her when she
did go out.
Although defendant did not testify at the penalty phase, he called several
witnesses. Their testimony apparently served one of two purposes. First, he
called witnesses who attempted to raise a doubt as to his guilt of some of the
uncharged offenses on which the prosecution relied for aggravating evidence.
Second, he presented evidence relevant to his personal characteristics that might
be considered mitigating, such as his deprived and violent childhood and
borderline intelligence.
Raul Valadez testified he was in the car when Francisco Carillo was shot
and that the gunman held the gun in his right hand. A police officer had
previously testified defendant was left-handed.
Robert Hathaway, a detective for the Riverside Police Department, testified
that Sharon Lee Baker had described her attacker at the University Lodge as a
Black male, 35 to 40 years old, weighing approximately 200 pounds. When
arrested, defendant was 18 years old and weighed 160 pounds. Hathaway testified
that Baker was unable to identify her attacker from a photographic lineup.
William Palmer, a Riverside County probation officer, testified he
interviewed Willie Woods when preparing the probation report following Woods’s
guilty plea to the attempted murder of Danny Coria. Woods told him that he
9
(Woods) was innocent and that he had not even been present at the scene of the
crime, having spent that evening in a club and theater with friends. He knew the
identities of the true culprits, however, and identified someone named “Torrey” as
the actual gunman. Woods said he borrowed the stolen Suzuki from Broderick
Fields, thereby explaining why he was in Coria’s car when police arrested him.
Paul Sham, a criminalist employed by a California Department of Justice
regional crime lab, testified he examined the rifling characteristics on the bullets
recovered from Christina Ramirez, Danny Coria, and Francisco Carillo and
concluded they had been fired from three different .38-caliber handguns.
Wesley Armstrong, defendant’s uncle, testified and provided background
information about defendant’s childhood. Lula Armstrong McMaryion was his
mother, defendant’s grandmother. He had several siblings, one of whom was
Catherine Armstrong Williams, defendant’s mother. When defendant was young,
he was in the care of his mother. Once, when defendant was five or six years old,
Armstrong went to Catherine’s apartment to pick defendant up and take him to
McMaryion’s home for babysitting. Armstrong found defendant alone in the
apartment, in a dark closet with the door closed. Armstrong surmised that
defendant had been crying because his eyes were swollen. On the drive to
McMaryion’s home, defendant appeared to be in pain. Armstrong lifted
defendant’s shirt and discovered he had bruises and open wounds on his back, as
though he had been whipped with an electrical cord or a clothes hanger.
Defendant was later removed from his mother’s custody and placed first in foster
care, then with his grandmother. McMaryion was very lenient with defendant,
explaining that because defendant had been abused as a child, she did not want to
impose too much discipline on him. Armstrong wished to remove defendant from
his mother’s home in Compton and have him come live with him in Cerritos
because the neighborhood in Compton was getting very rough, with a lot of gang
10
activity. Defendant stayed with McMaryion until his teenage years. Armstrong
loved his nephew.
Armstrong’s account of defendant’s young life was confirmed by
defendant’s mother, Catherine Williams. Williams testified she was 16 years old
when she gave birth to defendant. His father was Oscar Brown, with whom she
lived for a time. They would fight, and he struck her several times in defendant’s
presence. She left him after he shot her while she was holding defendant. When
defendant was about three years old, she was advised defendant was a hyperactive
child, but she did not seek any treatment or medication for him. When she was 19
years old, she took a parenting class and attended some therapy sessions in an
attempt to regain custody, but she was unsuccessful. She did not approve of
defendant living with her mother because there was no discipline and the
neighborhood was too dangerous. She did not recall whether she ever struck
defendant.
Lula Mae Armstrong McMaryion, defendant’s grandmother, testified that
defendant came to live with her when he was five years old and stayed until he
was 17 or 18 years old. When defendant was six, school authorities told her
defendant could not sit still in class, but she never sought any treatment or
medication for him. Confirming other witnesses’ descriptions of the
neighborhood, she testified she and defendant sometimes slept on the floor
because they were afraid bullets would come through the windows. She testified
she believed defendant was not guilty.
Angela Matthews testified she was defendant’s cousin, she was close to
him, she loved him and she did not want to see anything happen to him.
Geneva Cofield was defendant’s foster mother. She took custody of him
when he was about five years old, and she confirmed he had welts and cuts over a
large percentage of his body. Some of the injuries were old and some were new.
11
He had wounds on his buttocks and back, as well as on his penis. He also had
some cigarette burns on his body. She testified defendant told her that he had been
beaten by a man named “RC” as well as by his mother, and that his mother would
take his clothes away so he could not leave home. When Cofield first took
custody of defendant, he was very skinny as if he were undernourished. He also
suffered from diarrhea, so much so that she took him to the hospital. She was very
fond of defendant, and he asked if he could call her “mama” and her husband
“dad.” She thought that if she had been allowed to keep custody of defendant, he
would not be in the trouble in which he then found himself. She noticed that when
defendant would obtain a toy, he would sometimes tear it up and bury it in the
ground. As a result, she had defendant see a psychologist.
Kay Miller, Cofield’s daughter, testified she was 17 years old when
defendant came to their home as a foster child. Miller corroborated Cofield’s
account of defendant’s injuries and his unhealthy appearance. Miller testified she
enjoyed him as a foster brother and missed him when he was removed from the
home. Mack Taylor, who was a children’s services worker with the Los Angeles
Department of Social Services, testified that his department’s records corroborated
Cofield’s account of defendant’s childhood injuries. Taylor also testified that he
became involved in the case when defendant was 12 years old, that defendant’s
mother, Catherine Williams, wished to regain custody of defendant, but that his
grandmother, Lula McMaryion, opposed a change in custody. The resulting
conflict between defendant’s mother and grandmother caused defendant to
experience a lot of stress.
Dr. Chin Choo testified she was a resident in psychiatry at the Martin
Luther King Medical Center when, on January 16, 1987, defendant, then 17 years
old, was admitted into the emergency room. He was delusional and disoriented,
with impaired memory, rambling speech and inappropriate affect. He was also
12
paranoid, saying “the Crips are after me.” He had poor impulse control,
suicidal/homicidal ideation tendencies, and appeared to be responding to internal
stimuli. Because of his apparent psychosis, he was placed in four-point restraint
for his own protection and that of others, and prescribed Haldol, a psychotropic
medication. Defendant admitted to smoking Sherman cigarettes, that is, cigarettes
laced with phencyclidine (PCP). By January 19th, his condition had improved and
he was released. Dr. Choo testified on cross-examination that defendant’s
psychosis could have been caused by ingesting PCP.
Dr. Nancy Kaser-Boyd, a clinical psychologist, testified that defendant was
one of the most physically abused children she had ever seen. In addition to the
beatings and burnings, she opined that he was subjected to psychological abuse,
such as being isolated in a dark closet, deprived of his clothes, beaten while he
was naked, and being allowed to watch while his mother was beaten. Being
removed from his mother’s custody, not really knowing his father, and then seeing
his mother and grandmother fight over custody all contributed to his profound
feelings of vulnerability, anxiety, and depression. Such children are at higher risk
for drug and alcohol abuse. The witness noted that defendant reported waking in
the night and worrying someone was coming to get him; she likened defendant’s
experience to posttraumatic stress disorder. These experiences also led to arrested
emotional development which, coupled with his probable hyperactivity as a child,
his low intelligence (Dr. Kaser-Boyd testified defendant had an IQ of 77), and his
having attended six different schools between the seventh and 11th grades, all
contributed to his poor academic performance. Dr. Kaser-Boyd testified that
defendant should have been in special education, but his guardian, his
grandmother, was not sophisticated enough to attend to defendant’s special needs.
Defendant’s two aunts (Louise Matthews and Mary McGowan), his
girlfriend (Flecia Bennett), and a high school principal (Carl Phillips) also testified
13
on defendant’s behalf, as did Professor James Johnson, who described the
community in Compton where defendant had grown up.
II. DISCUSSION
A. Guilt Phase Issues
1. Admission of Broderick Fields’s Out-of-court Statements
a. Facts
Juan Williams testified for the defense. He stated he was in a brown
Mercedes Benz behind the victim’s truck when the crime occurred. He observed a
“slight[ly] built Hispanic [man]” go from the passenger side of the car in front of
him to the driver’s side of the pickup truck, pull the female driver out, and throw
her to the street. Williams was at most “two car lengths” from this scene. The
Hispanic-looking man then entered the driver’s side of the truck and drove off.
Williams did not see a second man. This testimony tended to undermine the
testimony given by another eyewitness, Rena Stanfill, who testified that while
seated in the car behind Williams’s car, she saw two men run up to the victim’s
truck, one on each side, and that the African-American man went to the driver’s
side while the man who could have been either Hispanic or African-American
went to the passenger side of the truck. Defendant is an African-American; the
second man, alleged to be Broderick Fields, is a medium-to-dark complected
African-American male standing between 5 feet 11 inches to six feet one inch tall.
The prosecution sought to cast doubt on Williams’s testimony by calling
Detective Esquivel to testify in rebuttal to a statement Broderick Fields had made
to him in an out-of-court interrogation. Defendant objected, claiming admission
of Fields’s out-of-court statements to Detective Esquivel would violate the
14
Aranda/Bruton rule3 and his Sixth Amendment right to confront and cross-
examine the witnesses against him, and that the statements did not comprise
proper impeachment or a proper declaration against penal interest excepted from
the hearsay rule under Evidence Code section 1230. The trial court rejected these
objections, the first two impliedly, the latter two expressly. Before Esquivel
testified, the trial court cautioned the jury that Esquivel’s testimony was for the
limited purpose of impeachment. Detective Esquivel then testified he interrogated
Fields on January 13, 1989. Fields admitted to him he was in Mark Bender’s car,
directly behind a red truck on the night of the crime; he said that he got out and
went to the passenger side of the truck, entered the truck, and left the scene in the
truck. Nowhere in Esquivel’s recounting of Fields’s statements did he reveal
defendant’s name or indicate defendant was the person who entered the victim’s
truck from the driver’s side, although the implication was that someone did so and
drove it away with Fields sitting in the passenger seat.
b. Discussion
Defendant raises both constitutional and statutory arguments against the
admission of Esquivel’s testimony recounting Fields’s out-of-court statements. “It
is well established that ‘we do not reach constitutional questions unless absolutely
required to do so to dispose of the matter before us.’ ” (People v. Leonard (1983)
34 Cal.3d 183, 187.) Accordingly, we first address defendant’s statutory
arguments. (See People v. Duarte (2000) 24 Cal.4th 603, 610.)
Defendant first contends the trial court erred by admitting Esquivel’s
testimony because the evidence was not relevant to impeach Juan Williams’s
3
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391
U.S. 123.
15
testimony. (Evid. Code, §§ 785 [“The credibility of a witness may be attacked or
supported by any party, including the party calling him”], 210 [defining “relevant
evidence”].) At the threshold, respondent argues that defendant did not object on
the ground of relevance and thus should be held to have forfeited this issue for
appeal. Although defendant did not register a formal and specific objection on
relevance grounds, he did complain the proposed testimony was not proper
impeachment. The trial court spoke as if it were deciding the question of
relevance, once stating that “[i]t looks to me as though this [evidence] is relevant”
and later saying it found “the area of inquiry is relevant for rebuttal [of Juan
Williams].” Defendant may thus have believed his objections in limine were
understood by the trial court to encompass the issue of relevance. We conclude
the issue is properly before us.
Turning to the merits, we note Williams testified he saw one man, a slightly
built Hispanic, go to the driver’s side of the victim’s truck. Defendant claims
Fields’s out-of-court statement that he (Fields) went to the passenger side door of
the same truck does not undermine or impeach Williams’s testimony. Neither
defendant nor respondent apprehends, however, that Williams also testified he did
not see a young African-American man enter the truck from the passenger side.
“As with all relevant evidence, however, the trial court retains discretion to
admit or exclude evidence offered for impeachment. [Citations.] A trial court’s
exercise of discretion in admitting or excluding evidence is reviewable for abuse
[citation] and will not be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Williams’s ability accurately to perceive and recall is certainly called into question
if, from a distance of “[a]t the most two car lengths,” he did not see the second
man. Although, as defendant points out, there could be some reasonable
16
explanation for Williams’s failure to see the second man, that possibility is
insufficient to establish that the trial court’s decision to admit Fields’s
extrajudicial statements was arbitrary or capricious. Accordingly, we conclude the
trial court did not abuse its discretion in finding the evidence relevant.
Defendant next contends Fields’s statement to Detective Esquivel was not a
true declaration against Fields’s penal interest and thus was not properly excepted
from the hearsay rule by Evidence Code section 1230. That section provides:
“Evidence of a statement by a declarant having sufficient knowledge of the subject
is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and the statement, when made, was so far contrary to the declarant’s
pecuniary or proprietary interest, or so far subjected him to the risk of civil or
criminal liability, or so far tended to render invalid a claim by him against another,
or created such a risk of making him an object of hatred, ridicule, or social
disgrace in the community, that a reasonable man in his position would not have
made the statement unless he believed it to be true.” (Ibid.)
We addressed the procedural prerequisites for the declaration-against-
penal-interest exception to the hearsay rule in People v. Duarte, supra, 24 Cal.4th
603. There we explained that in order to qualify for admission, “[t]he proponent
of such evidence must show that the declarant is unavailable, that the declaration
was against the declarant’s penal interest when made and that the declaration was
sufficiently reliable to warrant admission despite its hearsay character.” (Id. at
pp. 610-611.) The first prong of this test is satisfied because the parties stipulated
to Fields’s unavailability, possibly because he had exercised his privilege against
compelled self-incrimination. (Id. at pp. 609-610.)
Defendant claims Fields’s statements to Detective Esquivel fail the second
part of the test because the prosecution, as the proponent of the evidence, failed to
establish that Fields’s statements were truly contrary to his penal interests.
17
Defendant argues the transcript of the interrogation indicates Fields “clearly tried
to distance himself from being the shooter” and that he “denied having any
knowledge that a crime had been committed.” We disagree with defendant’s
selective reading of the record.
During the hearing to determine the admissibility of Fields’s statements, the
trial court read into the record part of the transcript of Fields’s interrogation by
Detective Esquivel. It indicates Detective Esquivel informed Fields he was under
arrest for suspicion of murder and that Fields said he saw a person run to the other
side of the truck with a gun.4 Fields told Esquivel he heard a gunshot, although
defendant denied to Fields that he shot the victim, saying he shot out the window
and the victim fainted. Fields admitted he went to the passenger side of the truck
and got in, resignedly exclaiming: “I mean, fuck it, and that’s how it went.” The
trial court concluded Fields’s statement was “reasonabl[y] against his penal
interest. He doesn’t want to do any time but I think it’s fairly obvious he isn’t
going to walk out of there. He is under arrest.” On these facts, we conclude the
trial court did not abuse its discretion in finding Fields spoke to Esquivel knowing
his statements were against his penal interest. Although he does not admit to
firing the fatal shot, he knew he was being charged with murder, he admitted to
hearing a gunshot, and he admitted to participating in stealing the victim’s truck.
These statements were clearly against his penal interests; his denial of having been
the shooter did not absolve him of the crimes to which he admitted. By admitting
he entered the car and assisted defendant in fleeing the scene, he was admitting his
complicity in a robbery murder, an admission “so far contrary to the declarant’s
4
Fields initially denied seeing a gun, although he admitted hearing a
gunshot. Later, he admitted seeing the gun.
18
interests ‘that a reasonable man in his position would not have [admitted it] unless
he believed it to be true.’ ” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay,
§ 146, p. 857, quoting Evid. Code, § 1230; People v. Duarte, supra, 24 Cal.4th at
pp. 610-611; see People v. Fuentes (1998) 61 Cal.App.4th 956, 961.)
Defendant also contends Detective Esquivel’s testimony as to Fields’s
statements fails the third requirement for admissibility because the prosecution did
not show the evidence was sufficiently trustworthy to permit its admission without
having the declarant subject to cross-examination. “To determine whether the
declaration passes the required threshold of trustworthiness, a trial court ‘may take
into account not just the words but the circumstances under which they were
uttered, the possible motivation of the declarant, and the declarant’s relationship to
the defendant.’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 607.) The
trial court found the evidence bore sufficient indicia of trustworthiness, a decision
we review on appeal for abuse of discretion. (Ibid.; People v. Gordon (1990) 50
Cal.3d 1223, 1250-1251.)
As noted, there was evidence from which the trial court could reasonably
conclude Fields knew his statement was against his penal interest: He knew
defendant had a gun, he knew defendant ran up to the victim’s truck, he knew
defendant fired the gun and pulled the victim from her truck, and he knew they
were stealing the victim’s truck. Although he denied personally committing the
murder, he did not attempt to cast blame for the murder on defendant, repeatedly
saying he did not know if the victim had died, and that defendant had told him he
merely shot out the window and the victim fainted as a result. This was thus not a
case in which Fields admitted to some culpability in order to shift the bulk of the
blame to another. Although he did say defendant had a gun, his story nevertheless
admitted he and defendant were relatively equally to blame. Like the trial court,
we conclude the circumstances surrounding Fields’s statement indicate it “was
19
sufficiently reliable to warrant admission despite its hearsay character.” (People v.
Cudjo, supra, 6 Cal.4th at p. 607.) The trial court therefore did not err in ruling
the evidence was admissible under Evidence Code section 1230.
There being no statutory basis to find the trial court erred in admitting
Detective Esquivel’s testimony recounting Fields’s out-of-court statements, we
turn to defendant’s constitutional arguments. Defendant first contends admission
of Esquivel’s testimony violated the Aranda/Bruton rule. (See ante, fn. 3.) We
must reject this contention at the threshold. The Aranda/Bruton rule addresses the
situation in which “an out-of-court confession of one defendant . . . incriminates
not only that defendant but another defendant jointly charged.” (People v.
Fletcher (1996) 13 Cal.4th 451, 455, italics added, fn. omitted.) “The United
States Supreme Court has held that, because jurors cannot be expected to ignore
one defendant’s confession that is ‘powerfully incriminating’ as to a second
defendant when determining the latter’s guilt, admission of such a confession at a
joint trial generally violates the confrontation rights of the nondeclarant.” (Ibid.,
italics added.) In this case, Fields was not jointly charged or tried with defendant,
but was separately tried and convicted of murder. Accordingly, the
Aranda/Bruton rule does not preclude admission of Fields’s extrajudicial
statements against defendant.5
Defendant next argues his constitutional right to confrontation under the
Sixth Amendment to the United States Constitution was violated by the admission
5
In any event, even if Fields had been tried jointly with defendant, Fields’s
statement was not “facially incriminating” of defendant and so would not run afoul
of the rule. (Richardson v. Marsh (1987) 481 U.S. 200, 207-208.) The trial court
here was careful to limit the prosecutor’s examination of Detective Esquivel to
ensure no mention of defendant would be made.
20
of Fields’s out-of-court statements to Detective Esquivel.6 The Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” This federal constitutional right
to confront adverse witnesses in a criminal prosecution applies to the states
(Pointer v. Texas (1965) 380 U.S. 400) and is also guaranteed independently by
the California Constitution (Cal. Const., art. I, § 15) and by statute (§ 686). The
primary reason an accused is entitled to confront adverse witnesses is to permit
cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678; Alvarado
v. Superior Court (2000) 23 Cal.4th 1121.) “[T]he right of confrontation and
cross-examination is an essential and fundamental requirement for the kind of fair
trial which is this country’s constitutional goal. Indeed, . . . to deprive an accused
of the right to cross-examine the witnesses against him is a denial of the
Fourteenth Amendment’s guarantee of due process of law.” (Pointer v. Texas,
supra, at p. 405.)
“[T]he right to confront and to cross-examine is not absolute and may, in
appropriate cases, bow to accommodate other legitimate interests in the criminal
trial process.” (Chambers v. Mississippi (1973) 410 U.S. 284, 295; People v.
Cromer (2001) 24 Cal.4th 889, 897 [“Notwithstanding the importance of the
confrontation right, it is not absolute”].) The high court has recently explained
6
Defendant also purports to rely on his right to a fair trial, to a reliable guilt
and penalty phase determination, and to due process under the Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution, as well as
“analogous state constitutional provisions.” He invokes this constitutional
authority for virtually every claim of error. Because he does not elaborate on
these separate bases for relief, providing neither separate argument nor separate
and relevant citation to legal authority, we decline to address these additional,
essentially boilerplate, constitutional claims for this and the remaining issues.
(People v. Hardy (1992) 2 Cal.4th 86, 150.)
21
that admission of hearsay evidence is not inconsistent with the confrontation
clause if such statements fall within a “ ‘firmly rooted hearsay exception’ ” or they
contain “ ‘particularized guarantees of trustworthiness’ such that adversarial
testing would be expected to add little, if anything to the statements’ reliability.”
(Lilly v. Virginia (1999) 527 U.S. 116, 124-125 (plur. opn.); id. at p. 140 (conc.
opn. of Breyer, J.).) Because we have previously concluded that the evidence of
Fields’s out-of-court statements bore sufficient guarantees of trustworthiness, we
find no confrontation clause violation occurred when the trial court admitted the
statements into evidence.
Even, however, were we to assume the trial court erred by admitting
Fields’s statements, any error was harmless beyond a reasonable doubt (Lilly v.
Virginia, supra, 527 U.S. at pp. 139-140) because the evidence of defendant’s
guilt was overwhelming. Eyewitness Rena Stanfill observed the crime and P.M.
corroborated her account, identifying defendant. Defendant was linked to the
stolen truck and its distinctive deep-dish rims in several ways. Andrew White
heard him in front of Harb’s Liquor Store/Market admitting he shot through the
window of the victim’s truck and pulled her out to the street before stealing her
truck. Defendant also told Perry Bender he “smoked the bitch,” and Mark Bender,
another eyewitness, told his sister-in-law that defendant hurt the victim. Although
Detective Esquivel testified and recounted Broderick Fields’s out-of-court
statements, the account was sanitized, defendant’s name was not mentioned, and
the testimony was brief. Moreover, the jury was told the evidence was for the
limited purpose of impeaching Juan Williams and was not to be used as
substantive evidence of defendant’s guilt. (See post, pt. II.A.2.) In sum, we find
no constitutional error. We also find that, even if we assume error, it was harmless
beyond a reasonable doubt.
22
2. The Trial Court’s Comment on Fields’s Out-of-court Statements
Before permitting the jury to hear Detective Esquivel’s testimony
recounting Fields’s extrajudicial statements, the trial court cautioned the jury,
saying: “[T]his is to advise you and instruct you that the questions to be asked of
Sergeant Esquivel are asked for the burden of proving and sole purpose[] of
impeachment of any of the testimony of Defense Witness Juan Williams who was
called yesterday and cannot be considered by you for any other purpose. You will
be further instructed on that later but this is offered for the limited purpose of
impeachment. It is impeachment of Juan Williams under the instructions that you
will receive.” Defendant contends the trial court violated his constitutional rights
under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution, as well as analogous state constitutional guarantees, by commenting
on the evidence in this manner.7
Defendant claims that the wording of the instruction improperly removed
an issue from the jury. In particular, he contends that because the court instructed
the jury that Detective Esquivel’s testimony regarding Fields’s statements “is
impeachment of Juan Williams,” rather than “is for the impeachment of Juan
Williams,” the court improperly commented on the evidence. Defendant
magnifies the seriousness of this issue, for it appears the trial court merely
misspoke, as evidenced by its earlier statements that the evidence was for “the sole
purpose of impeachment” and for “the limited purpose of impeachment.” In any
7
Although respondent argues defendant forfeited this claim by failing to
object, we find defendant may properly raise the issue under section 1259, which
provides in part: “The appellate court may also review any instruction given,
refused or modified, even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected thereby.” (Italics
added.)
23
event, even were we to assume error, it could have caused no prejudice. The jury
was instructed that it should consider the instructions as a whole and that it was
“the sole judge[] of the believability of a witness and the weight to be given to the
testimony of each witness.” More specifically, the court instructed the jury that “I
have not intended by anything I have done or any questions I may have asked or
by any ruling I may have made to intimate or suggest what you should find to be
the facts or that I believe or disbelieve any witness. If anything I have done or
said has to so indicate [sic], you will disregard it and form your own conclusion.”
Further: “Do not conclude that because an instruction is given I am expressing
any opinion as to the facts.” Finally, Juan Williams was more seriously
impeached by the testimony of Officer Robert Sayers, who testified that when he
interviewed Williams the night of the murder, Williams reported seeing two
suspects run up to the victim’s truck. This was the essence of the impeachment
value provided by Broderick Fields’s statements to Detective Esquivel. Any
irregularity in the trial court’s limiting instruction was thus harmless.
3. Hearsay Statements by Mark Bender
Defendant next contends the trial court violated his constitutional rights
under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution and analogous state constitutional provisions by admitting Julie
Bender’s testimony that she heard her brother-in-law, Mark Bender, implicate
defendant in the murder. As we explain, the trial court properly admitted the
evidence under the spontaneous utterance exception to the hearsay rule.
At the time of the crime, Julie Bender was married to Perry Bender. She
testified that one night she saw defendant in a red pickup truck. Around midnight
that same night, Mark Bender, her brother-in-law, came into her house. Mark was
upset and started crying. He shook his head back and forth, and his body was
24
shaking. He then said: “I know he shot her. I know she is hurt bad.” When
asked to whom he was referring, Mark replied, “Bam.” “Bam” is defendant’s
nickname.
Just before Julie Bender testified on this point, defendant objected on
hearsay grounds and the court held a lengthy hearing. The court eventually
overruled defendant’s hearsay objection, admitting the statement under the
spontaneous utterance exception to the hearsay rule. Evidence Code section 1240
provides: “Evidence of a statement is not made inadmissible by the hearsay rule if
the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such perception.”
Defendant first contends the trial court abused its discretion in admitting the
evidence because the declarant, Mark Bender, was no longer “under the stress of
excitement caused by” witnessing defendant’s crime. Defendant also contends
that admission was improper because the declarant did not purport to be
“narrat[ing], describ[ing], or explain[ing] an act, condition, or event [he]
perceived.” Both of these arguments depend on a determination of preliminary
facts by the trial court; such determinations will be upheld if supported by
substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
“When the statements in question were made and whether they were
delivered directly or in response to a question are important factors to be
considered on the issue of spontaneity. [Citations.] But as we emphasized in
People v. Washington, ‘Neither lapse of time between the event and the
declarations nor the fact that the declarations were elicited by questioning deprives
the statements of spontaneity if it nevertheless appears that they were made under
the stress of excitement and while the reflective powers were still in abeyance.’ ”
(People v. Poggi (1988) 45 Cal.3d 306, 319, quoting People v. Washington (1969)
25
71 Cal.2d 1170, 1176, italics added in Poggi.) The trial court noted the declarant,
Mark Bender, was crying, shaking and visibly upset when he made the statement,
explaining: “He is still reacting to the events himself by objective manifestation.”
The court was well aware that the passage of time was relevant to the spontaneity
of the statement, but nevertheless concluded the statement satisfied the statutory
requirement of spontaneity.
Substantial evidence supports the trial court’s ruling. Although Mark
Bender’s statement was made about two and one-half hours after the crime, that
fact is not dispositive of the issue. (See People v. Raley (1992) 2 Cal.4th 870,
893-894 [statement made 18 hours after event held spontaneous under Evid. Code,
§ 1240].) “The crucial element in determining whether a declaration is
sufficiently reliable to be admissible under this exception to the hearsay rule is . . .
the mental state of the speaker. The nature of the utterance—how long it was
made after the startling incident and whether the speaker blurted it out, for
example—may be important, but solely as an indicator of the mental state of the
declarant. . . . [U]ltimately each fact pattern must be considered on its own merits,
and the trial court is vested with reasonable discretion in the matter.” (People v.
Farmer (1989) 47 Cal.3d 888, 903-904, overruled on another point in People v.
Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) Here, the facts available to the trial
court amply justify its conclusion that the declarant continued to labor mightily
under the emotional influence of the disturbing events he perceived, so much so
that he could not stop his body from shaking nor stem the flow of tears.
We reach the same conclusion regarding defendant’s argument that the
declarant did not purport to be describing an event he personally witnessed.
Evidence indicates Mark Bender was in the driver’s seat of the car directly behind
the victim’s truck when defendant shot her. His view of the scene was as clear as
any of the witnesses’, and he no doubt saw what other witnesses reported:
26
Defendant went up to the driver’s side of the truck and pulled the victim out, her
body hitting the street face first. Although Bender’s statement (“I know he shot
her. I know she is hurt bad”) does not unquestionably carry the inference that he
spoke from personal knowledge of having actually seen defendant pull the trigger,
neither does the statement purport to be a repetition of something Bender had
heard from someone else. Although closer than the question of spontaneity, we
conclude that, under the circumstances, there is substantial evidence to support the
trial court’s decision that Bender purported to be describing events he had
personally seen.
Defendant also contends the trial court’s ruling to admit the evidence
violated his right to confrontation under the state and federal Constitutions
because he was unable to cross-examine Mark Bender. Defendant did not make
this particular objection at trial and thereby forfeited it for appeal. (People v.
Dennis (1998) 17 Cal.4th 468, 529.) In any event, the claim is meritless: “The
hearsay exception for spontaneous declarations is among those ‘firmly rooted’
exceptions that carry sufficient indicia of reliability to satisfy the Sixth
Amendment’s confrontation clause. (White v. Illinois (1992) 502 U.S. 346, 355,
fn. 8 [112 S.Ct. 736, 742, 116 L.Ed.2d 848] and accompanying text.)” (People v.
Dennis, supra, at p. 529.) Thus, even assuming defendant preserved this
constitutional claim, we reject it.
4. Prohibiting Impeachment of P.M. with a Pending Juvenile
Criminal Case
Defendant next contends the trial court prejudicially erred, and also violated
a number of his rights under the state and federal Constitutions, by prohibiting him
from questioning P.M., a prosecution witness, about charges pending in juvenile
court accusing P.M. of rape. As we explain, the trial court did not abuse its
discretion.
27
a. Facts
P.M., 15 years old at the time of the crime, was by his own admission the
fourth person in the car along with driver Mark Bender, defendant, and Broderick
Fields. P.M. testified at the preliminary hearing8 on February 21 and 24, 1989,
and stated he saw defendant shoot the victim, Christina Ramirez, the driver of the
red truck. In March 1990, several months after he testified at defendant’s
preliminary hearing, P.M. was charged in juvenile court with committing rape in
January 1990, and that matter was still pending when defendant’s trial commenced
on November 18, 1991. The question arose at the beginning of defendant’s trial
whether P.M. could be impeached on cross-examination by asking him whether he
expected some benefit in his juvenile rape case as a result of his favorable
testimony for the prosecution in defendant’s case.
The prosecutor, Mr. Pacheco, explained: “The rape case came much later,
and [P.M.] has an attorney on that matter, and that’s Mr. Burns, Michael Burns. I
don’t know what the disposition of that case is and I have stayed away from that
case in all particulars. It’s none of my business and I didn’t want to do anything
for [the witness] on that case. Mr. Burns has inquired about that and I told him
I’m not doing anything about it.”
He then elaborated: “I have deliberately not done anything for [P.M.] on
that rape case. I was asked by Mr. Burns to do something for Mr. [M.] in some
way, and I explained to Mr. Burns that if I did something for [him], then that
8
Concern arose at the preliminary hearing that P.M. was unrepresented and
might incriminate himself at the hearing. The preliminary hearing was halted and
the witness allowed to consult counsel. Once he was represented by counsel, the
witness invoked his right under the Fifth Amendment to the United States
Constitution not to answer further questions. The prosecution then granted him
immunity, and he continued to testify.
28
certainly would be admissible on cross-examination of [P.M.], which would then
allow counsel to get into his pending rape charge. [¶] If I didn’t do something for
[the witness] and he took that as an offense against himself and refused to testify,
then, fine, he is unavailable as a witness and I have the opportunity to use his prior
testimony. [¶] So I don’t lose anything by not doing anything for [P.M.]. And that
was the theory that I went through, or the thought process I went through, and
nothing has been done for [the witness] in regard to this particular testimony.
Nothing has been promised to [P.M.]. I haven’t told Mr. Burns I would give him
anything and I haven’t told [the witness] that either. In fact, I’ve steadfastly gotten
away from that, or stayed away from it.”
Defense counsel accepted the prosecutor’s assertions, but expressed
concern that P.M. might subjectively believe he would benefit in his rape case if
he cooperated and testified against defendant. In addition, counsel wondered
whether P.M.’s attorney, Mr. Burns, his attorney at the preliminary hearing, Mr.
Lomazow, or the prosecutor in the rape case, Mr. Hernandez, had promised P.M.
anything. The trial court seemed disinclined to order those attorneys into a
hearing, so defense counsel proposed a compromise: They would telephone
Burns, Lomazow and Prosecutor Hernandez and attempt to discern whether any
promises had been made. The court was amenable to that proposal, saying: “As I
say, I’m not saying I wouldn’t [hold a hearing]. And it may be appropriate.”
Accordingly, the matter was deferred.
The parties renewed the issue later in the trial. Before the prosecution
called P.M. to the stand, his attorney, Mr. Burns, appeared and, out of the jury’s
presence, affirmed that “no offers have been made to [P.M.] . . . with regard to his
pending case in juvenile court.” Burns explained he had not formally requested
any continuances, but had informally waived pretrial proceedings, and that
although the 18 months the case had been pending was unusual, good cause had
29
been shown for the continuances. For example, P.M. failed to appear “on at least
four occasions.” Burns asserted that if he thought it would have a positive effect
on his client’s disposition, he would bring P.M.’s cooperation in defendant’s case
to the attention of the juvenile court. He affirmed he would do anything in his
power to see that his client served the least amount of time.
P.M. then testified out of the jury’s presence. He confirmed that no one
told him his testimony against defendant would benefit him in his own rape case.
Similarly, he did not think he would suffer any detriment if he declined to testify
against defendant. When asked on cross-examination whether he expected to get a
benefit from testifying, he replied in the negative.
The trial court eventually ruled that “the nature of the pending proceedings
against [P.M.] are not relevant to cross-examination on credibility. I will not
preclude . . . defense counsel from asking [him] . . . whether he expects any benefit
from his testifying here today, whether he expects any benefit from the People in
any respect, if they wish to ask that question. They’re not obligated to. [¶] But in
terms of getting into the fact that there’s a juvenile pending proceeding against
him and the nature of the charges and that, I think the probative value on
credibility is rather minimal and it’s greatly outweighed by possible prejudice in
this case to the People, undue prejudice to the People.” The court also noted its
“greatest concern” was the “consumption of time” in proving whether P.M. was
correctly charged with rape. The trial court specifically cited Evidence Code
section 352 as a basis for its decision. P.M. eventually testified before the jury
that he saw defendant shoot through the window of the truck, pull the victim out,
get in and drive away in the truck.
30
b. Discussion
Defendant contends he was denied his constitutional right to cross-examine
P.M. by the trial court’s ruling prohibiting him from raising the pending rape
charges as evidence of the witness’s motive for testifying. As a general matter, a
defendant is entitled to explore whether a witness has been offered any
inducements or expects any benefits for his or her testimony, as such evidence is
suggestive of bias. (People v. Duran (1976) 16 Cal.3d 282, 294; Evid. Code,
§ 780, subd. (f) [“the court or jury may consider in determining the credibility of a
witness any matter that has any tendency in reason to prove or disprove the
truthfulness of his testimony at the hearing, including . . . [¶] . . . [¶] (f) The
existence or nonexistence of a bias, interest, or other motive”].) Contrary to
defendant’s assertion, however, his right to cross-examination is not a matter of
“absolute right.” Although we have said that “[c]ross-examination to test the
credibility of a prosecuting witness in a criminal case should be given wide
latitude” (Curry v. Superior Court (1970) 2 Cal.3d 707, 715), such latitude does
not “prevent the trial court from imposing reasonable limits on defense counsel’s
inquiry based on concerns about harassment, confusion of the issues, or relevance”
(People v. Box (2000) 23 Cal.4th 1153, 1203; see Delaware v. Van Arsdall, supra,
475 U.S. at p. 679). Moreover, reliance on Evidence Code section 352 to exclude
evidence of marginal impeachment value that would entail the undue consumption
of time generally does not contravene a defendant’s constitutional rights to
confrontation and cross-examination. (See generally People v. Ramos (1997) 15
Cal.4th 1133, 1166.)
The trial court held a hearing on the question whether promises had been
made to P.M. Prosecutor Pacheco persuasively denied any such promises. The
witness’s attorney, Mr. Burns, also denied anyone had made such promises. P.M.
himself denied the existence of such promises and also denied entertaining the
31
subjective belief that he would enjoy any benefits. The decision on admissibility
had been deferred to allow defense counsel time to inquire of the prosecutor in the
rape case about any promises of leniency, but defense counsel produced no such
evidence at the renewed hearing. No doubt the trial court was also aware that
P.M. had testified against defendant at the preliminary hearing, before P.M. had
allegedly even committed the rape. At that hearing, he would have had no
incentive to seek a benefit for a case that did not yet exist. Under the
circumstances, we find the trial court did not abuse its discretion in concluding
that, under Evidence Code section 352, any slight impeachment effect of the
remote possibility the witness was testifying in hopes of leniency was outweighed
by the undue consumption of time such questioning would entail. This routine
application of state evidentiary law does not implicate defendant’s constitutional
rights.9 “[U]nless the defendant can show that the prohibited cross-examination
would have produced ‘a significantly different impression of [the witnesses’]
credibility’ (Van Arsdall, supra, 475 U.S. at p. 680 [106 S.Ct. at p. 1436]), the trial
court’s exercise of its discretion in this regard does not violate the Sixth
Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946.)
Even were we to assume the trial court erred, we find any error was
harmless beyond a reasonable doubt. (Delaware v. Van Arsdall, supra, 475 U.S.
at p. 684 [applying the reasonable doubt standard]; People v. Price (1991) 1
Cal.4th 324, 423 [same].) P.M.’s testimony was largely consistent with that of
other witnesses, and defendant’s guilt was also supported by evidence of his
9
Defendant further contends that even if the impeaching value of the rape
charges was remote, it was for the jury to evaluate and not the trial court. He is
mistaken. (People v. Dyer (1988) 45 Cal.3d 26, 48 [“The trial court, not the jury,
determines at the outset whether the evidence is relevant”].)
32
involvement with the stolen truck, the attempt to remove the locked rims, and his
admissions to other persons. For example, he told a group of people how he
“smoked that bitch,” shot through the truck window, pulled a woman out and
threw her to the ground, and then drove off in her truck. Under the circumstances,
we find any error in excluding evidence of P.M.’s rape charges harmless beyond a
reasonable doubt.
5. Evidence of Gang Affiliation
Andrew White testified at defendant’s preliminary hearing and claimed he
was present in front of a market when defendant admitted he “smoked that bitch”
for her truck. Further, according to White, defendant “said that he put this on Fruit
Town, that he was gonna put this on Fruit Town, Blood . . . .” He explained that
Fruit Town was the name of defendant’s gang and that by saying he was going to
“put this on Fruit Town,” defendant was swearing an oath of similar solemnity to
having sworn on the memory of his mother. Before trial, defendant sought to
exclude any reference before the jury to Fruit Town or to his taking an oath on his
gang. The trial court made a tentative ruling finding the evidence admissible,
except for the reference to the notorious street gang, the Bloods, which White had
mentioned at the preliminary hearing.10 In his opening statement, the prosecutor
stated that defendant told witnesses he had “smoked the bitch” and swore to the
truth of his assertion by invoking Fruit Town, his gang.
Defendant contends the trial court’s failure to limit the prosecutor’s use of
this evidence violated his constitutional rights under the Fifth, Eighth and
Fourteenth Amendments to the United States Constitution, as well as analogous
state constitutional guarantees. We reject the constitutional claims at the
10
Fruit Town is apparently a “set,” or subset, of the Bloods street gang.
33
threshold, for we find defendant failed to preserve these issues for appeal by
failing to object on the state and federal constitutional grounds now asserted.
Setting aside the constitutional claims, we also understand defendant to
contend that the trial court erred under Evidence Code section 352 by ruling the
evidence was admissible. Although defendant raised this issue in limine,
respondent claims defendant failed to preserve this claim for appeal because he did
not renew his evidentiary objection at trial. The general rule is that “when an in
limine ruling that evidence is admissible has been made, the party seeking
exclusion must object at such time as the evidence is actually offered to preserve
the issue for appeal” (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3),
although a sufficiently definite and express ruling on a motion in limine may also
serve to preserve a claim (People v. Ramos, supra, 15 Cal.4th at p. 1171). We
need not resolve the point, for we find respondent’s claim unfounded. Following
the trial court’s in limine ruling, which it expressly said was tentative, defense
counsel asked if “the Court could reconsider [later in the trial] whether the
testimony is so inflamed at that point that this [evidence of defendant’s gang] is
simply cumulative and not of any additional probative value in light of the
prejudice, I’d ask the Court to consider it at that time.” The trial court replied: “I
would do so when you make your objection because we will have heard the
evidence in the actual trial setting and we’ll be better able to evaluate the probative
value and effect on the jury at that time than now. I agree.” Just before calling
Andrew White to the stand, defendant renewed his objection, which, after some
discussion, the trial court again denied. We find defendant adequately preserved
the Evidence Code section 352 claim for appeal.
Turning to the merits, we conclude the trial court did not abuse its
discretion in admitting the Fruit Town evidence. (People v. Gurule (2002) 28
Cal.4th 557, 654-655 [alleged violations of Evid. Code, § 352 tested by abuse of
34
discretion standard].) “We have recognized that admission of evidence of a
criminal defendant’s gang membership creates a risk the jury will improperly infer
the defendant has a criminal disposition and is therefore guilty of the offense
charged.” (People v. Williams (1997) 16 Cal.4th 153, 193.) Here, the risk was
minimal. The evidence of defendant’s gang membership was not extensive, and
the trial court took pains to exclude any reference to the Bloods, which might well
have been more prejudicial and served little purpose. Admission of defendant’s
Fruit Town reference, on the other hand, was very probative, serving to assist the
jury in determining whether defendant’s statement that he shot the victim was
mere braggadocio or a true statement of fact. By swearing to its truth on his gang,
defendant himself distinguished his statement from mere bravado. The trial court
thus did not abuse its discretion in admitting the statement over defendant’s
Evidence Code section 352 objection.
6. Evidence of Defendant’s Nickname
Defendant’s nickname was Bam Bam or simply Bam. He contends the trial
court prejudicially erred by permitting the prosecutor to elicit and use this
nickname. We disagree.
Defense counsel moved in limine to prevent the prosecutor from referring
to, or eliciting from witnesses, that defendant’s nickname was Bam or Bam Bam.
The apparent basis of the objection was both Evidence Code section 352 and
relevance. The prosecutor protested, arguing that some of the witnesses knew
defendant only by his nickname. The trial court observed the nickname “has some
negative connotations. ‘Bam’ might have a connotation associated with weapons.
When a gun is fired it goes—some people describe it as going ‘bam.’ ” After
further argument, the trial court announced that “[b]asically I’m going to grant
[the defense] request as to [the prosecutor] using that name, but I don’t know
35
whether it’s going to be possible to completely instruct witnesses who may only
know him as I heard Bam say this or Bam did that and say and describe
[defendant] as that person.” (Evidence adduced later, at the penalty phase,
established that defendant’s nickname was bestowed during his childhood and was
a reference to the Flintstones cartoon character of the same name.)
The parties continued to discuss the issue. The prosecutor stated: “I can
assure the Court that I won’t emphasize or even unduly emphasize his nickname at
all, and I will try to avoid it as much as possible. But the problem is some of these
witnesses may have to be impeached with their prior statements, and in their prior
statements they refer to the individual who committed the crime as Bam. And if
we don’t tell the jury the defendant is Bam, then the name Bam in the prior
inconsistent statements means nothing. The jury might even think they’re
referring to somebody else.” The trial court agreed the prosecutor should not
emphasize the nickname but also recognized that it may be impossible to sanitize
the entire trial of defendant’s nickname. It instructed the prosecutor “not to use
the word ‘Bam’ in framing a question unless it’s necessary . . . to elicit a specific
statement from a witness, a prior inconsistent statement or other statement that
they’re seeking to elicit.” Recognizing that a witness may blurt out the nickname,
the trial court informed the parties that “if it comes out inappropriately and there’s
a motion to strike, I’ll strike it.” The court also suggested that if the prosecutor
asked a witness about the nickname for no apparent reason, it would sustain an
objection under Evidence Code section 352.
The prosecutor revisited the topic later in the trial and the parties discussed
it again. The trial court reiterated its ruling that the prosecutor should not
36
emphasize the nickname, but that if using the nickname is “the only way a
question can be asked,” it would be permitted.11
Thereafter, when questioning witness Timothy Gardner, the prosecutor
initially referred to defendant in neutral terms. The following colloquy then
occurred:
“Q [by the prosecutor] Okay. And what did you see when you walked up
to the fence?
“A [by witness Gardner] I seen Bam in the truck.
“Q You said Bam?
“A Yeah. I seen Bam in the truck.
“Q Is that the defendant?
“A Yeah.
“Q Is that his nickname or something?
“A Yeah. That’s what I knew him as until everything happened.”
The defense made no objection. In several subsequent instances, a witness
used defendant’s nickname without any encouragement by the prosecutor. In
these instances, the prosecutor merely clarified that the person known to the
witness as Bam or Bam Bam was defendant.
11
Defendant contends that “when pressed by the defense not to use the term
‘Bam’ or ‘Bam Bam’ the prosecutor refused.” We find this statement is not
supported by the record. Defense counsel, Mr. Cotsirilos, stated: “Your Honor, I
think it’s our request if wherever possible Mr. Brown be referred to as ‘the
defendant’ or ‘Mr. Brown’ and it not be used as an inflammatory technique.” The
prosecutor, Mr. Pacheco, replied: “I will not do that.” Although defendant claims
this shows the prosecutor refused to agree to refer to defendant in neutral terms,
the more reasonable reading of this passage is that the prosecutor said he would
not use the nickname “as an inflammatory technique.” This interpretation is
consistent with the prosecutor’s assertions throughout, as well as the trial judge’s
comment immediately after this passage: “Basically that’s what I said before.”
37
Two instances did not follow this pattern. In questioning witness Kevin
Davis, the prosecutor asked: “[D]o you know a person by the name of Andrew
Lamont Brown or Bam?” (Italics added.) The witness replied in the affirmative,
and the defense made no objection. Finally, in questioning witness Manny Kelly,
the following occurred:
“Q [the prosecutor] Did you know a person by the name of Bam Bam?
“A [witness Kelly] No, I didn’t.
“Q Okay. Did you meet Bam Bam at some point?
“A I had never met him before.
“Q Did you see him at some point?
“A Well, I saw a side view of him. That’s the first—the most I ever seen
of him.
“Q Do you see Bam Bam here today here in Court?
“A That would have to be him. I just seen a side view just for a minute of
him. I didn’t see his face or anything.
“Q This person Bam Bam, you point to the defendant. Is this Bam Bam or
not?
“A I couldn’t say it was. It’s just a side view. I just saw like his cheek,
you know.”
There was no defense objection.
Respondent contends at the threshold that defendant forfeited this issue for
appeal by failing to object each time a prosecution witness used the nickname, or
when the prosecutor used the nickname. Although a defendant’s motion in limine
would satisfy the requirement of an objection if the court’s ruling were sufficiently
clear and express (People v. Morris (1991) 53 Cal.3d 152, 189-190, overruled on
another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1), the trial
court’s ruling on this subject lacked clarity. The court at first stated it was
38
granting the defense motion, but it later backtracked, explaining that to prevent all
the witnesses from blurting out defendant’s nickname might be impossible. The
court then cautioned the prosecutor to use discretion in questioning witnesses and
invited defense counsel to object and move to strike in individual instances.
We need not decide whether defendant adequately preserved this issue
because, even assuming the issue is properly before us, we find the trial court did
not abuse its discretion. (People v. Gurule, supra, 28 Cal.4th at pp. 654-655.) The
court carefully weighed defendant’s concern over the potentially prejudicial effect
of the nickname with the prosecutor’s assertion that many of the witnesses knew
defendant only by that name. The court then reasonably concluded that it would
be impossible to sanitize the entire trial of any references to the nickname, but
instructed the prosecution to minimize its use in order to reduce any prejudice.
Our review of the record supports these decisions; sometimes reference to
defendant’s nickname was necessary to render a witness’s testimony
understandable, but there was no gratuitous use of, or reference to, the nickname.
Defendant relies on two federal appellate court cases, but both are
distinguishable. In United States v. Grayson (2d Cir. 1948) 166 F.2d 863, the
court merely noted that charging the defendant in the name of his alias was
improper, there being no question of his identity, although the error “would not . . .
even remotely tend to justify a reversal.” (Id. at p. 867.) Similarly, in United
States v. Beedle (3rd Cir. 1972) 463 F.2d 721, which defendant also cites, the
court noted that use of the defendant’s alias “served no useful end and could only
prejudice [the defendant].” (Id. at p. 725.) By contrast, several witnesses in the
instant case knew defendant primarily or exclusively by his nickname. Because
defendant’s identity was at issue, the trial court did not err in cautioning the
prosecutor not to emphasize the nickname, but acquiescing in the inevitability that
it would come out before the jury.
39
Even assuming error occurred, it was clearly harmless on the facts of this
case. Except for the questioning of witness Manny Kelly, the prosecutor did
nothing to elicit defendant’s nickname. Indeed, the nickname came out in defense
counsel’s cross-examination of witnesses as well. These instances were brief,
mild and factual and could not have been prejudicial.
Although the prosecutor’s questioning of Kelly was different because he
used the nickname several times in succession in his questioning, the references
came in only after numerous witnesses had referred to defendant as Bam, and they
could not have prejudiced defendant. We conclude that, even assuming the trial
court abused its discretion, defendant would not have achieved a more favorable
result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)12
7. Alleged Prosecutorial Misconduct: Arguing Future
Dangerousness, Alleged Griffin Error
In his guilt phase closing argument, Prosecutor Pacheco made the following
comments: “Ask yourself what exactly [defense counsel] are . . . saying in their
closing argument. What are they telling you? Did they tell you he didn’t do it?
No, they didn’t tell you that. They told you basically [the evidence does not show
guilt] beyond a reasonable doubt, be afraid, be fearful beyond a reasonable doubt.
Well, [the applicable standard is] not beyond any doubt. The judge is going to tell
you that. Remember, it’s not possible to be perfect. If you apply a perfect
standard to imperfect evidence, everybody is going to be acquitted. No one ever
will be convicted. This man will walk free. This man will be out there in the
12
Because this issue concerns the mere admission of evidence that was not
particularly inflammatory, we reject defendant’s contention that admission of his
nickname requires we test the error under Chapman v. California (1967) 386 U.S.
18, 24.
40
streets with you and I.” Defendant objected to this argument, asserting the
argument was “improper” and asked that the jury be admonished. The trial court
did not make an express ruling, merely stating: “I think counsel should argue the
evidence rather than the consequences of the jury’s decision. Let’s stick with the
evidence.”
The prosecutor then continued: “If he wasn’t there, where was he?
Everyone else says he was there. Where was he? No alibi witness took the stand
and said he was with me that night watching T.V. You didn’t hear any of that, did
you? All of the evidence points to one man. One man only. The defendant.
Don’t be afraid to convict him. You know he did it. We all know that he did it.
It’s up to you.” The prosecutor ended his argument shortly thereafter.
Following the close of argument, defense counsel reiterated their objection
to the prosecutor’s comment that an acquittal would lead to defendant “being out
in the street with the jury.” The prosecutor informed the court that, for his
argument, he was relying on People v. Hughey (1987) 194 Cal.App.3d 1383.
Defense counsel then moved for a mistrial or, in the alternative, to have the jury
specifically admonished that the prosecutor’s comments on this topic were
“improper” and that the jury should disregard them. Counsel also argued that “the
jury is not to decide this case either on public passion or any concern for the
consequences of the decision, strictly on the facts.” The trial court denied the
motion for mistrial, explaining: “There is no reference to committing other
crimes. The District Attorney is arguing the evidence and the effects of the
evidence and the fact that the evidence is not perfect; and if it were, if this jury
requires perfect evidence, then [p]eople would be acquitted [in] every case that
came in. I think that’s a fair comment. As to the state of the evidence and
whether it has to be perfect or just beyond a reasonable doubt[, the court will
define those terms in the instructions].” The court further explained: “I do not
41
find that the statements were misconduct. I did admonish the jury that they will
decide the case on the evidence. I think that’s sufficient.”
Defendant claims five separate errors arose from the portion of the
prosecutor’s argument quoted above. He claims the prosecutor improperly:
(i) argued defendant would pose a danger in the future; (ii) appealed to the
passions and sympathy of the jury; (iii) invited the jury to rely on speculative
matters; (iv) implied he knew facts not in evidence; and (v) commented on
defendant’s failure to testify in violation of Griffin v. California (1965) 380 U.S.
609 (Griffin).
To preserve a claim of prosecutorial misconduct for appeal, a criminal
defendant must make a timely objection, make known the basis of his objection,
and ask the trial court to admonish the jury. (People v. Hill (1998) 17 Cal.4th 800,
820 [criminal defendant may not complain on appeal of prosecutorial misconduct
unless he objected “on the same ground” at trial].) As we explained in the
analogous situation of a civil case in which it was alleged that one attorney made
prejudicial comments in closing argument: “The purpose of the rule requiring the
making of timely objections is remedial in nature, and seeks to give the court the
opportunity to admonish the jury, instruct counsel and forestall the accumulation
of prejudice by repeating improprieties, thus avoiding the necessity of a retrial. . . .
In the absence of a timely objection the offended party is deemed to have waived
the claim of error through his participation in the atmosphere which produced the
claim of prejudice.” (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602,
610.) Failure to make a specific and timely objection and request that the jury be
admonished forfeits the issue for appeal unless such an objection would have been
futile. (Hill, supra, at p. 820.)
(i) Defendant first contends the prosecutor committed misconduct by
urging the jury to consider his future dangerousness. This claim was
42
unquestionably preserved because defense counsel complained of Pacheco’s
comment that an acquittal would lead to defendant “being out in the street with the
jury.” However, we agree with the trial court that there was no misconduct. The
prosecutor reasonably relied on People v. Hughey, supra, 194 Cal.App.3d 1383, in
which the Court of Appeal, in rejecting the defendant’s claim of prosecutorial
misconduct, stated that “[s]uggesting that a defendant will commit a criminal act
in the future is not an inappropriate comment when there is sufficient evidence in
the record to support the statement.” (Id. at p. 1396.) In light of the unprovoked
and vicious attack defendant perpetrated, there was sufficient evidence to support
the prosecutor’s argument.
Moreover, even were the comment improper, it could not have prejudiced
defendant. “To prevail on a claim of prosecutorial misconduct based on remarks
to the jury, the defendant must show a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew
the most damaging rather than the least damaging meaning from the prosecutor’s
statements. [Citation.]” (People v. Frye, supra, 18 Cal.4th at p. 970.) In this
case, the remarks were brief and fleeting, asserting nothing the evidence did not
already suggest: defendant posed a danger to people in the community. Any
misconduct was thus harmless.
(ii) Defense counsel made but passing mention of defendant’s second
claim, that the prosecutor improperly appealed to the jurors’ passions and
sympathy. Assuming this ground was preserved for appeal, we find no
misconduct. The prosecutor’s argument, while forceful, did not clearly appeal to
the jurors’ passions and prejudices.
(iii) & (iv) Defense counsel nowhere mentioned that one basis of their
objection to the prosecutor’s argument was that it encouraged the jury to rely on
43
speculative matters or implied knowledge of information not presented to the jury.
Accordingly, these two claims were not preserved for appeal. Even were we to
conclude these issues were properly preserved, they are baseless. We often have
explained that a prosecutor may engage in vigorous argument before the jury,
drawing reasonable deductions from the evidence. (People v. Hill, supra, 17
Cal.4th at p. 819.) The prosecutor here did no more than this.
(v) Defense counsel similarly failed to preserve a claim of Griffin error by
objecting on that basis at trial. Even assuming the issue was preserved, however,
there was no error. Griffin, supra, 380 U.S. 609, protects a defendant’s right not
to have the prosecutor comment on his failure to testify. A prosecutor is
permitted, however, to comment on a defendant’s failure to introduce material
evidence or call logical witnesses. (People v. Hughes (2002) 27 Cal.4th 287, 372.)
By directing the jury’s attention to the fact defendant never presented evidence
that he was somewhere else when the crime was committed, the prosecutor did no
more than emphasize defendant’s failure to present material evidence. He did not
capitalize on the fact defendant failed to testify. Accordingly, there was no Griffin
error.
8. Failure to Instruct the Jury that Fields Was an Accomplice as a
Matter of Law
Defendant next contends the trial court violated his state and federal
constitutional rights to a fair trial, to a reliable penalty determination, and to due
process of law by failing to grant his request13 to instruct the jury that Broderick
13
Although respondent characterizes this issue as whether the trial court
failed to instruct the jury sua sponte that Fields was an accomplice, defendant
clearly requested the instruction.
44
Fields was an accomplice as a matter of law. We disagree; further, we find that if
error occurred, it was harmless.
“An accomplice is . . . defined as one who is liable to prosecution for the
identical offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.” (§ 1111.) If sufficient evidence is
presented at trial to justify the conclusion that a witness is an accomplice, the trial
court must so instruct the jury, even in the absence of a request. (People v. Tobias
(2001) 25 Cal.4th 327, 331.) Of course, an accomplice has a natural incentive to
minimize his own guilt before the jury and to enlarge that of his cohorts;
accordingly, the law requires an accomplice’s testimony be viewed with caution to
the extent it incriminates others. (People v. Lawley (2002) 27 Cal.4th 102, 161;
see generally People v. Guiuan (1998) 18 Cal.4th 558; CALJIC. No. 3.18.)
Moreover, an accomplice’s testimony must be corroborated before a jury may
consider it. (§ 1111.)
Although the evidence of Fields’s statements to Esquivel was not, strictly
speaking, testimony before the jury, it was still subject to section 1111’s
corroboration requirement. “Testimony,” as used in section 1111, includes “ ‘all
out-of-court statements of accomplices . . . used as substantive evidence of guilt
which are made under suspect circumstances. The most obvious suspect
circumstances occur when the accomplice has been arrested or is questioned by
the police.’ ” (People v. Williams, supra, 16 Cal.4th at p. 245, italics added.) At
first blush, because Fields was subject to prosecution for the same criminal
offenses as defendant, one might conclude he was an accomplice.
Respondent argues, however, that Fields’s out-of-court statements were not
“ ‘used as substantive evidence of guilt.’ ” (People v. Williams, supra, 16 Cal.4th
at p. 245; see also People v. Andrews (1989) 49 Cal.3d 200, 214 [“Section 1111
applies to an accomplice’s out-of-court statements when such statements are used
45
as substantive evidence of guilt” (italics added)].) Because Fields’s statements
were not used to incriminate defendant but to impeach defense witness Juan
Williams, respondent argues, the trial court was not obligated to instruct the jury
that Fields was an accomplice as a matter of law.
We need not resolve this point because we conclude the trial court was
correct for another reason. Recall that Fields’s statements were properly found to
be declarations against penal interest. “The usual problem with accomplice
testimony—that it is consciously self-interested and calculated—is not present in
an out-of-court statement that is itself sufficiently reliable to be allowed in
evidence.” (People v. Sully (1991) 53 Cal.3d 1195, 1230, italics added.) For
example, we have explained that out-of-court statements made in the course of and
in furtherance of a conspiracy “were not made under suspect circumstances and
therefore were sufficiently reliable to require no corroboration.” (People v.
Williams (1997) 16 Cal.4th 635, 682.) Fields’s statements to Esquivel were
themselves made under conditions sufficiently trustworthy to permit their
admission into evidence despite the hearsay rule; namely, they were declarations
against his penal interest. Therefore, no corroboration was necessary, and the
court was not required to instruct the jury to view Fields’s statements with caution
and to require corroboration.
Even were we to assume the trial court erred by refusing to instruct the jury
that Fields was an accomplice, any error was manifestly harmless. “A trial court’s
failure to instruct on accomplice liability under section 1111 is harmless if there is
sufficient corroborating evidence in the record. [Citation.] ‘Corroborating
evidence may be slight, may be entirely circumstantial, and need not be sufficient
to establish every element of the charged offense. [Citations.]’ . . . The evidence
‘is sufficient if it tends to connect the defendant with the crime in such a way as to
satisfy the jury that the accomplice is telling the truth.’ [Citation.].)” (People v.
46
Lewis (2001) 26 Cal.4th 334, 370.) Fields’s statements were amply corroborated
by testimony from other eyewitnesses to the crime, as well as witnesses who
testified to defendant’s own statements that he “smoked that bitch” and took her
truck.
9. Jury Instructions Regarding P.M.
a. CALJIC No. 3.19
Defendant contends the trial court violated his state and federal
constitutional rights to a fair trial, to a reliable penalty determination, and to due
process of law by failing to grant his request to instruct the jury that P.M. was an
accomplice as a matter of law. (See CALJIC No. 3.16.) Instead, the trial court
decided the jury should determine the issue and instructed it thusly: “You must
determine whether the witness [P.M.] was an [ac]complice as I have defined that
term. [¶] The defendant has the burden of proving by a preponderance of the
evidence that [P.M.] was an accomplice in the crimes charged against the
defendant.” (See CALJIC No. 3.19.) Defendant contends the trial court erred
because there was ample evidence showing P.M. was subject to prosecution for
the same crimes as defendant.
We disagree. “Whether a person is an accomplice within the meaning of
section 1111 presents a factual question for the jury ‘unless the evidence permits
only a single inference.’ [Citation.] Thus, a court can decide as a matter of law
whether a witness is or is not an accomplice only when the facts regarding the
witness’s criminal culpability are ‘clear and undisputed.’ ” (People v. Williams,
supra, 16 Cal.4th at p. 679.)
The evidence in this case did not permit the “clear and undisputed”
inference that P.M. was an accomplice. P.M. testified that when he got in the car
with defendant and Mark Bender, he did not know they intended to steal
47
someone’s wheel rims. He testified he found out about the plan once he was in the
backseat of the car, but did not agree to it. The jury was certainly free to
disbelieve this testimony, but it was sufficient evidence to support the trial court’s
decision that the witness was not an accomplice as a matter of law. Accordingly,
we find the trial court did not err in refusing to give CALJIC No. 3.16.
Even were we to assume the trial court erred, we would find no prejudice.
As we explained, ante, at part II.A.8, failure to instruct on accomplice liability
under section 1111 is harmless if there was adequate corroboration of the witness.
Here, the testimony from other eyewitnesses, as well as that from witnesses who
testified to defendant’s own statements that he “smoked that bitch” and took her
truck, provide sufficient corroborative evidence to render any instructional error
harmless.
b. CALJIC No. 3.10
In a related claim, defendant also contends the trial court violated his state
and federal constitutional rights to a fair trial, to a reliable penalty determination,
and to due process of law by modifying the language of CALJIC No. 3.10. Thus,
the court instructed the jury: “An accomplice is a person who is subject to
prosecution for the identical offense charged in Counts I [the robbery of Christina
Ramirez] and II [the murder of Ramirez] of the Information against the defendant
on trial by reason of aiding and abetting.” (Italics added.) As noted, ante, at part
II.A.9.a, the court also instructed the jury that it was to determine whether P.M.
was an accomplice, and that defendant bore the burden of proof on that question
by a preponderance of the evidence. Defendant contends that, by wording the
instruction in the conjunctive (“and”) rather than the disjunctive (“or”), the trial
court unfairly increased his burden of establishing the witness was an accomplice
48
subject to the corroboration rule because it required him to prove P.M. was an
accomplice for both the robbery and the murder.14
We disagree. Defendant’s argument hinges on the possibility that the jury
may have found P.M. was “subject to prosecution for” only one of the two charged
crimes, i.e., that P.M. was “subject to prosecution for” the robbery but not the
murder, or for the murder but not the robbery. As there was absolutely no
evidence suggesting he was guilty of the murder only, we may discard that
possibility. But because he was in the car with Mark Bender, Broderick Fields and
defendant when both crimes were committed, it is possible he was “subject to
prosecution” for robbery if he acted “with (1) knowledge of the unlawful purpose
of the perpetrator; . . . (2) the intent or purpose of committing, encouraging, or
facilitating the commission of the offense, [and] (3) by act or advice aid[ed],
promote[d], encourage[d] or instigate[d] the commission of the crime.” (People v.
Beeman (1984) 35 Cal.3d 547, 561.) It is not possible, however, for P.M. to have
been “subject to prosecution” for only the robbery and not the murder, for the
victim’s death, even if unintentional or accidental, would constitute first degree
felony murder under these circumstances. (People v. Pulido (1997) 15 Cal.4th
713; see § 189.) Hence, if P.M. was subject to prosecution for robbery, he
necessarily was also subject to prosecution for murder. Thus, the court did not err
by phrasing the instruction in the conjunctive.
Even were we to assume the trial court erred, defendant suffered no
prejudice. The alleged harm in phrasing CALJIC No. 3.10 in the conjunctive was
that the jury may erroneously have believed P.M. was not an accomplice to the
14
Defendant also claims this alleged error was exacerbated by the court’s
failure to instruct sua sponte with CALJIC Nos. 3.02 and 3.00. We address this
claim, post, at part II.A.9.c.
49
murder, and that his testimony therefore need not be corroborated. As explained,
ante, at part II.A.4, ample evidence corroborated P.M.’s testimony, including
defendant’s admission to more than one person that he “smoked that bitch,”
defendant’s possession of the victim’s truck, and Rena Stanfill’s eyewitness
account of the crime. Any error was thus harmless.
c. CALJIC Nos. 8.27, 3.00, 3.02
In a related claim, defendant also contends the trial court violated his state
and federal constitutional rights to a fair trial, to a reliable penalty determination,
and to due process of law by denying his request to instruct the jury with CALJIC
No. 8.27. Defendant further claims the alleged error in giving CALJIC No. 3.10
in the conjunctive was exacerbated by the court’s failure to instruct sua sponte on
aiding and abetting, specifically with CALJIC Nos. 3.02 and 3.00. We disagree.
CALJIC No. 8.27, as defendant proposed, provides: “If a human being is
killed by any one of several persons engaged in the commission or attempted
commission of the crime of [robbery], all persons, who either directly and actively
commit the act constituting that crime, or who with knowledge of the unlawful
purpose of the perpetrator of the crime and with the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, aid,
promote, encourage, or instigate by act or advice its commission, are guilty of
murder of the first degree, whether the killing is intentional, unintentional, or
accidental.” It does not appear defendant specifically asked the trial court to give
CALJIC Nos. 3.00 or 3.02. They are, of course, the standard aider and abettor
instructions.15
15
CALJIC No. 3.00 provides: “Persons who are involved in [committing]
[or] [attempting to commit] a crime are referred to as principals in that crime.
Each principal, regardless of the extent or manner of participation is equally
(footnote continued on next page)
50
“A court must instruct sua sponte on general principles of law that are
closely and openly connected with the facts presented at trial. [Citations.]”
(People v. Ervin (2000) 22 Cal.4th 48, 90.) Of course, there was no suggestion
that defendant was a mere aider and abettor; it was the prosecution’s theory—and
the evidence showed—that defendant was the one who personally fired the gun,
killing the victim. Moreover, P.M. had been granted immunity and was not on
trial. It would thus appear aiding and abetting instructions were unnecessary.
Despite these facts, defendant contends these three instructions were
necessary to allow the jury properly to consider P.M.’s testimony. In particular,
defendant argues there was substantial evidence from which the jury could find
P.M. was an aider and abettor and thus an accomplice whose testimony required
corroboration before it could be considered. This argument, then, is merely a
variant of the claim that P.M. was an accomplice as a matter of law. Inasmuch as
the trial court instructed the jury with CALJIC No. 3.19, which allowed the jury to
(footnote continued from previous page)
guilty. Principals include: [¶] 1. Those who directly and actively [commit] [or]
[attempt to commit] the act constituting the crime, or [¶] 2. Those who aid and
abet the [commission] [or] [attempted commission] of the crime.”
CALJIC No. 3.02 provides: “One who aids and abets [another] in the
commission of a crime [or crimes] is not only guilty of [that crime] [those crimes],
but is also guilty of any other crime committed by a principal which is a natural
and probable consequence of the crime[s] originally aided and abetted.
“In order to find the defendant guilty of the crime[s] of ______, [as charged
in Count[s] _______,] you must be satisfied beyond a reasonable doubt that:
“1. The crime [or crimes] of _________ [was] [were] committed;
“2. That the defendant aided and abetted [that] [those] crime[s];
“3. That a co-principal in that crime committed the crime[s] of ________;
and
“4. The crime[s] of ________ [was] [were] a natural and probable
consequence of the commission of the crime[s] of ________.”
51
find P.M. an accomplice subject to the corroboration requirement, the court did
not err in refusing to give CALJIC No. 8.27 or failing to give CALJIC Nos. 3.00
or 3.02 sua sponte. “[T]he general rule is that a trial court may refuse a proffered
instruction if it . . . is duplicative.” (People v. Gurule, supra, 28 Cal.4th at p. 659.)
As explained, ante, at part II.A.4, even were we to assume that the failure to
instruct interfered with defendant’s ability to have the jury conclude P.M. was an
accomplice, any error was harmless because P.M.’s testimony was amply
corroborated.
10. Instruction with CALJIC No. 2.11.5 Concerning Unjoined
Perpetrators
Defendant’s next claim of error concerns CALJIC No. 2.11.5. The trial
court delivered that instruction as follows: “There has been evidence in this case
indicating that a person or persons other than the defendant was or may have been
involved in the crime or crimes for which the defendant is on trial. [¶] Do not
discuss or give any consideration to why the other person or persons are not being
prosecuted in this trial or whether he has been or will be prosecuted.” Defendant
contends this instruction improperly removed from the jury’s consideration the
potentially impeaching fact that P.M. had been granted immunity. In addition, he
argues the instruction precluded consideration of the fact that Mark Bender and
Broderick Fields were potential accomplices subject to prosecution. Defendant
claims the instruction, by eliminating potential grounds of bias and motive that
could have undermined the testimony of those three witnesses,16 violated his
16
Mark Bender’s testimony was admitted as a spontaneous utterance.
Fields’s statements were made out of court, but were admitted as declarations
against penal interest to impeach the testimony of defense witness Juan Williams.
52
rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution, as well as analogous state constitutional provisions.
At the outset, we note it appears defense counsel made a tactical decision
specifically to withdraw their objection to the instruction. Accordingly, the
doctrine of invited error bars consideration of this claim on appeal. (People v.
Lewis (2001) 25 Cal.4th 610, 667.) Assuming the issue was preserved for
appellate review, it is meritless.
We have addressed and rejected this precise claim in other cases. “The
purpose of [CALJIC No. 2.11.5] is to discourage the jury from irrelevant
speculation about the prosecution’s reasons for not jointly prosecuting all those
shown by the evidence to have participated in the perpetration of the charged
offenses, and also to discourage speculation about the eventual fates of unjoined
perpetrators. [Citation.] When the instruction is given with the full panoply of
witness credibility and accomplice instructions, as it was in this case, [jurors] will
understand that although the separate prosecution or nonprosecution of
coparticipants, and the reasons therefor, may not be considered on the issue of the
charged defendant’s guilt, a plea bargain or grant of immunity may be considered
as evidence of interest or bias in assessing the credibility of prosecution witnesses.
[Citation.] Although the instruction should have been clarified or omitted
[citations], we cannot agree that giving it amounted to error in this case.” (People
v. Price, supra, 1 Cal.4th at p. 446; see also People v. Cain (1995) 10 Cal.4th 1,
35, quoting Price with approval.)
Here, the jury was instructed that, “[i]n determining the believability of a
witness, you may consider anything that has a tendency [in] reason to prove or
disprove the truthfulness of the testimony of the witness, including but not limited
to . . . . The existence or nonexistence or a bias[,] interest or other motive.” (See
CALJIC No. 2.20.) The jury was also instructed not to “single out any particular
53
sentence or individual point or instruction and ignore the others. Consider the
instructions as a whole and each in light of all the others.” (See CALJIC No.
1.01.) Finally, the jury was specifically instructed that Mark Bender was an
accomplice as a matter of law. In light of these instructions, we conclude that
although the instruction challenged here could have been clearer, the trial court did
not err in giving it, and there was no reasonable likelihood the jury understood
CALJIC No. 2.11.5 to preclude its consideration of P.M.’s grant of immunity, or
the potential accomplice status of Mark Bender and Broderick Fields. (See People
v. Kelly (1992) 1 Cal.4th 495, 525.)
11. Instruction with CALJIC No. 2.01 Concerning Circumstantial
Evidence
Defendant next contends the trial court violated his state and federal
constitutional rights to a reliable guilt and penalty verdict and to due process of
law by denying his request to have the jury instructed with CALJIC No. 2.01.
That instruction provides in pertinent part: “[A] finding of guilt as to any crime
may not be based on circumstantial evidence unless the proved circumstances are
not only (1) consistent with the theory that the defendant is guilty of the crime, but
(2) cannot be reconciled with any other rational conclusion.”17 The trial court did
not err.
17
CALJIC No. 2.01 provides in full: “However, a finding of guilt as to any
crime may not be based on circumstantial evidence unless the proved
circumstances are not only (1) consistent with the theory that the defendant is
guilty of the crime, but (2) cannot be reconciled with any other rational
conclusion.
“Further, each fact which is essential to complete a set of circumstances
necessary to establish the defendant’s guilt must be proved beyond a reasonable
doubt. In other words, before an inference essential to establish guilt may be
found to have been proved beyond a reasonable doubt, each fact or circumstance
(footnote continued on next page)
54
“[W]e have consistently held that CALJIC No. 2.01 is not necessary unless
the prosecution substantially relies on circumstantial evidence to prove its case.
[Citations.] Indeed, where circumstantial inference is not the primary means by
which the prosecution seeks to establish that the defendant engaged in criminal
conduct, the instruction may confuse and mislead, and thus should not be given.”
(People v. Anderson (2001) 25 Cal.4th 543, 582.) The Use Note following
CALJIC No. 2.01 itself provides: “This instruction is unnecessary where the
prosecution does not substantially rely on circumstantial evidence.” (Use Note to
CALJIC No. 2.01 (7th ed. 2003) p. 33.)
We agree with respondent that the People’s case relied primarily on direct,
not circumstantial, evidence. P.M. testified he saw defendant shoot the victim and
steal her truck. Rena Stanfill saw essentially the same thing, although she did not
hear the gunshot because her windows were rolled up and her radio was playing.
Mark Bender, an eyewitness and probable accomplice, told his brother and sister-
in-law that defendant “hurt” the victim. Defendant told Andrew White in front of
the liquor store that he “smoked that bitch.” Both Perry Bender and Julie Bender
testified to the same thing. Although there were circumstantial aspects to the
People’s evidence, as defendant details in his brief, the primary emphasis of the
(footnote continued from previous page)
on which the inference necessarily rests must be proved beyond a reasonable
doubt.
“Also, if the circumstantial evidence [as to any particular count] permits
two reasonable interpretations, one of which points to the defendant’s guilt and the
other to [his] [her] innocence, you must adopt that interpretation that points to the
defendant’s innocence, and reject that interpretation that points to [his] [her] guilt.
“If, on the other hand, one interpretation of this evidence appears to you to
be reasonable and the other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.”
55
prosecution’s case was direct evidence. Accordingly, the trial court did not err in
refusing to instruct the jury with CALJIC No. 2.01.
B. Penalty Phase Issues
1. Refusal to Permit Evidence of the Sentences of Other Perpetrators
Defendant requested that the trial court take judicial notice of the sentences
meted out to Mark Bender and Broderick Fields, claiming this information was
mitigating evidence. The trial court denied the motion, and defendant now
contends this was error. He admits we have rejected this legal claim several times
in the past (see, e.g., People v. Hines (1997) 15 Cal.4th 997, 1068), but urges us to
reconsider, relying on Parker v. Dugger (1991) 498 U.S. 308.
“We have consistently held that evidence of an accomplice’s sentence is
irrelevant at the penalty phase because ‘it does not shed any light on the
circumstances of the offense or the defendant’s character, background, history or
mental condition.’ ” (People v. McDermott (2002) 28 Cal.4th 946, 1004-1005,
quoting People v. Cain, supra, 10 Cal.4th at p. 63.) Defendant presents no
persuasive reason to reconsider that conclusion. Parker v. Dugger, supra, 498
U.S. 308, on which he relies, does not direct a different result. “Parker did not
hold evidence of an accomplice’s sentence must be introduced in mitigation at the
penalty phase, or that a comparison between sentences given codefendants is
required. [Citation.] The Parker court merely concluded a Florida trial judge, in
sentencing the defendant to death, had in fact considered the nonstatutory
mitigating evidence of the accomplice’s sentence, as under Florida law he was
entitled to do. [Citation.] Parker does not state or imply the Florida rule is
constitutionally required, and California law is to the contrary; we have held such
evidence irrelevant because it does not shed any light on the circumstances of the
offense or the defendant’s character, background, history or mental condition.”
56
(Cain, supra, at p. 63.) We conclude the trial court did not err in refusing to grant
the request for judicial notice.
Defendant next raises several claims concerning the jury instructions at the
penalty phase.
2. Failure to Instruct the Jury with CALJIC No. 2.01 Concerning
Circumstantial Evidence
As he did for the guilt phase, defendant contends the trial court violated his
constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution by refusing to instruct the jury at the penalty phase
with CALJIC No. 2.01.18 As explained, ante, at part II.A.11, CALJIC No. 2.01 is
required only where the prosecution substantially relies on circumstantial
evidence. “[W]here circumstantial inference is not the primary means by which
the prosecution seeks to establish that the defendant engaged in criminal conduct,
the instruction may confuse and mislead, and thus should not be given.” (People
v. Anderson, supra, 25 Cal.4th at p. 582.)
Defendant claims the prosecution relied substantially on circumstantial
evidence for the penalty phase, primarily to prove the existence of unadjudicated
criminal conduct. We disagree. To prove the robbery of Danny Alcaraz and the
assault on Monica Rodriguez, the prosecution relied principally on the eyewitness
testimony of P.M. The fact that Alcaraz’s stolen car was found in an area near
defendant’s home, and that Andrew White saw defendant driving a car similar to
the one he stole from Alcaraz, was circumstantial evidence, but the prosecution’s
primary evidence—P.M.’s eyewitness testimony—was direct, not circumstantial.
18
Somewhat inexplicably, defendant does not state that he is also relying on
his state constitutional rights for this issue.
57
The same is true for the other incidents of unadjudicated crimes. To prove
the assault on Flecia Bennett, the prosecution relied principally on the victim’s
own eyewitness account. To prove the murder of Francisco Carillo, the
prosecution relied principally on Kevin Davis’s and Willie Woods’s eyewitness
testimony. To prove the robbery and attempted murder of Danny Coria, the
prosecution principally relied on the victim’s and Willie Woods’s direct
eyewitness testimony. To prove the attempted robbery of Sharon Baker, the
prosecution relied on the victim’s eyewitness testimony. Although the prosecution
presented some circumstantial evidence, it was merely incidental to the direct
evidence. Inasmuch as the prosecution relied substantially on direct evidence to
prove these unadjudicated crimes, we conclude the trial court properly refused
CALJIC No. 2.01 at the penalty phase.
3. Failing to Instruct the Jury, and Prohibiting Defendant from
Arguing, that a Minor Is Not Subject to the Death Penalty
Defendant requested the following instruction: “An individual under 18 is
not subject to the death penalty. You may consider the fact that Mr. Brown was
19 at the time of this offense.” The trial court refused the instruction, noting, “I
think that’s an improper instruction for the jury, to tell them that somebody under
18 isn’t subject [to the death penalty]. Again[, it] invites them to start speculating
why . . . the Legislature has made this classification. That’s not an issue for the
jury.” The court also noted the subject was adequately covered in CALJIC No.
8.85, factor (i).
Defendant contends the trial court’s refusal to give his requested age-
related instruction violated his constitutional rights under the Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution, as well as
58
analogous state constitutional provisions.19 We disagree and instead find the trial
court correctly refused the proffered instruction. “[T]he general rule is that a trial
court may refuse a proffered instruction if it . . . is argumentative, or is
duplicative.” (People v. Gurule, supra, 28 Cal.4th at p. 659.) “Although
instructions pinpointing the theory of the defense might be appropriate, a
defendant is not entitled to instructions that simply recite facts favorable to him.”
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1159.) By instructing the jury that
those younger than 18 years old are legally ineligible for the death penalty, the
proffered instruction highlighted a single, mitigating aspect of defendant’s age—
that he had only recently become eligible for the ultimate penalty—and was thus
improperly argumentative.
In a related claim, defendant argues the trial court improperly prohibited
him from mentioning in closing argument that those younger than 18 years old are
ineligible for the death penalty. We perceive no error. Counsel were free to argue
that defendant’s youth mitigated his crime and in fact mentioned this fact
obliquely, discussing defendant’s troubled adolescence. The further information
that the Legislature has chosen 18 years as the lower limit for the death penalty
was irrelevant to defendant’s individual culpability or whether he was more or less
deserving of the death penalty. (People v. Garceau (1993) 6 Cal.4th 140, 206
[assuming, without deciding, that mentioning irrelevant information in closing
19
Defendant notes a similar instruction was delivered to the jury in People v.
Marshall (1990) 50 Cal.3d 907. In Marshall, the jury was instructed: “[The
defendant] was 18 years old when he committed the crimes of which you have
found him guilty. [¶] If defendant had been under 18 years old when the crimes
were committed, he would be subject to neither life imprisonment without
possibility of parole nor the death penalty.” (Id. at p. 930.) We neither approved
nor disapproved this instruction in Marshall.
59
argument is improper].) Accordingly, the trial court did not err in precluding
defense counsel from mentioning that fact.
4. Failure to Instruct the Jury that the Circumstances of the Crime
Can Be Either Aggravating or Mitigating
Defendant next argues the trial court violated his rights under the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as
well as analogous state constitutional guarantees, by refusing this proffered
instruction: “The circumstances of a crime can be considered mitigating or
aggravating. You are not authorized to consider the bare fact that Mr. Brown has
suffered a murder conviction as aggravating, but instead are required to consider
the circumstances surrounding it.” We find no error. The court instructed the jury
with CALJIC No. 8.85, specifically telling it: “In determining which penalty is to
be imposed upon the defendant you shall consider all of the evidence which has
been received during any part of the trial of this case, except as you may be
hereafter instructed. You shall consider, take into account and be guided by the
following factors, if applicable: [¶] First, the circumstances of the crime of which
the defendant was convicted in the present proceeding and the existence of any
special circumstance found to be true.” In addition, the court instructed the jury
with CALJIC No. 8.88, defining the terms “aggravating” and “mitigating.”20 The
jury was thus provided sufficient guidance as to how it should evaluate and weigh
20
CALJIC No. 8.88 provides: “An aggravating factor is any fact, condition
or event attending the commission of a crime which increases [its] guilt or
enormity, or adds to its injurious consequences which is above and beyond the
elements of the crime itself. [¶] A mitigating circumstance is any fact, condition
or event which as such does not constitute a justification or excuse for the crime in
question, but may be considered as an extenuating circumstance in determining the
appropriateness of the death penalty.”
60
the circumstances of the offense. The first sentence of the proposed instruction
was duplicative of these standard instructions (People v. Gurule, supra, 28 Cal.4th
at p. 659); the second sentence, prohibiting the jury from assigning aggravating
effect to the circumstances of the offense without first considering the
“circumstances surrounding it,” was argumentative and also properly refused
(ibid.).
5. Failure to Instruct the Jury that It Should Not Consider
Deterrence or the Cost of the Death Penalty
Defendant next argues the trial court violated his rights under the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as
well as analogous state constitutional guarantees, by refusing this proffered
instruction: “Your perception of the general deterrent effect, and your perception
of the cost of the decision you reach, are improper for you to consider. You are
specifically instructed to ignore any comments made on these topics.” He cites
People v. Thompson (1988) 45 Cal.3d 86, 132, as authority for the proposition that
the court would not have erred had it given this instruction. Because neither party
raised the issue of either the cost or the deterrent effect of the death penalty, the
trial court did not err in refusing the proposed instruction. (People v. Hines, supra,
15 Cal.4th at pp. 1066-1067.) “We have held a trial court may refuse to read this
instruction where neither deterrence nor cost is raised by the parties. (People v.
Benson (1990) 52 Cal.3d 754, 806-807 [276 Cal.Rptr. 827, 802 P.2d 330].)
Moreover, so long as these issues are not raised, there can be no prejudice from
the instruction’s omission.” (People v. Ochoa (2001) 26 Cal.4th 398, 456.)
Defendant argues the jury “could well have erroneously concluded that it
would have been more economical to sentence him to death than keep him in
prison for the next approximate[ly] 50 years.” Such speculation, however,
provides no basis for the proposed instruction. Although defendant contends the
61
prosecutor raised the issue in closing argument, we disagree. The prosecutor
argued: “Ladies and gentlemen, don’t let the price of your compassion be another
victim. If you give him life without parole, you could create another victim.”
This was not an argument based on the cost of the death penalty, but instead
invoked defendant’s future dangerousness. The same is true for the prosecutor’s
argument in rebuttal that “[w]e can’t put him in the prison system until he passes
away at 65 or 55 and give him 30, 40 years of an opportunity to kill a guard or kill
a doctor or kill someone else.” We thus find no error.
6. Failure to Instruct the Jury that the Responsibility for Deciding
the Penalty Rested Solely with the Jury
Defendant next argues the trial court violated his rights under the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as
well as analogous state constitutional guarantees, by refusing this proffered
instruction: “The responsibility for determining if life without the possibility of
parole or the death penalty is an appropriate sentence for Mr. Brown rests solely
with this jury, based solely on the evidence presented in this trial.” This
instruction was largely duplicative of CALJIC No. 8.88, which informed the jury
that “[I]t is now your duty to determine which of the two penalties, death or
confinement in the state prison for life without possibility of parole, shall be
imposed upon the defendant.” As such, it was properly refused. (People v.
Gurule, supra, 28 Cal.4th at p. 659.) Because counsel’s closing arguments made
no suggestion that the responsibility for the sentencing decision lay elsewhere (see
Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329 [“constitutionally
impermissible to rest a death sentence on a determination made by a sentencer
who has been led to believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere”]), any error was
harmless.
62
7. Failure to Instruct the Jury on Lingering Doubt
Defendant next argues the trial court violated his rights under the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as
well as analogous state constitutional guarantees, by refusing two proposed
instructions addressing the issue of lingering doubt. The first rejected instruction
stated: “The adjudication of guilt is not infallible and any lingering doubts you
may entertain on the question of guilt may be considered by you in determining
the appropriate penalty, including the possibility that at some time in the future,
facts may come to light which have not yet been discovered.” The second rejected
instruction was similar, though shorter: “[The jury should consider] whether or
not you have lingering or residual doubt as to whether Andrew Brown shot
Christina Ramirez.”
“[A]lthough it is proper for the jury to consider lingering doubt, there is no
requirement that the court specifically instruct the jury that it may do so.” (People
v. Slaughter (2002) 27 Cal.4th 1187, 1219.) The rule is the same under the state
and federal Constitutions. (Franklin v. Lynaugh (1988) 487 U.S. 164, 173-174;
People v. Lawley, supra, 27 Cal.4th at p. 166.) Moreover, although defendant
contends the proposed instructions “would have merely given the jury the
opportunity to consider any lingering doubt they may have had concerning the . . .
murder,” the instructions given already permitted such an opportunity. Thus, the
proposed lingering doubt instructions were subsumed by the instruction based on
section 190.3, factor (k), which informed the jury to “consider” and “take into
account” “any other circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime and any other sympathetic or other
aspect of the defendant’s character or record.”
Defendant argues the first proposed lingering doubt instruction was also
necessary to permit the jury’s proper consideration of penalty phase evidence
63
showing he had committed several unadjudicated criminal acts, allowing it to
disregard such evidence if it harbored a lingering doubt as to his guilt of those
crimes. We agree with respondent that the instruction was unnecessary because
the court instructed the jury not to consider evidence of other criminal acts unless
defendant’s guilt was proved beyond a reasonable doubt.21
Defendant also contends a lingering doubt instruction was necessary
because two jurors who deliberated at the penalty phase had not been a part of the
jury that found defendant guilty in the guilt phase of trial.22 Thus, he argues:
“These two former alternate jurors were thus never given the authority to reject
imposition of the death penalty on the basis of any evidence relevant to the
circumstances of the crime appellant had been convicted of in the guilt phase of
the trial. . . .” This claim is belied by the section 190.3, factor (k) instruction,
which permitted the new jurors, as well as the existing ones, to consider any
lingering doubts the jurors might have had and to reject the death penalty in favor
of a life sentence. Accordingly, we conclude the trial court did not err in refusing
the two proposed lingering doubt instructions.
8. Rejection of Pinpoint Instructions
Defendant contends the trial court violated his rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution, as well as
21
Thus, the jury was instructed: “Before a juror may consider any of such
criminal acts or activity as an aggravating circumstance in this case, a juror must
first be satisfied beyond a reasonable doubt that the defendant, Andrew Lamont
Brown, did in fact commit such criminal act or activity. You may not consider
any evidence of any other criminal acts or activity as an aggravating
circumstance.” (See CALJIC No. 8.87.)
22
Between the guilt and penalty phases of the trial, Juror Victoria H. was
replaced by Alternate Juror Robin R. due to medical reasons, and Juror Cheryl K.
was replaced by Alternate Juror Herbert S. due to a death in her family.
64
to analogous state constitutional provisions, by erroneously rejecting a series of
proposed pinpoint penalty phase instructions. They read:
“You may consider any other circumstance which extenuates the gravity of
the crime even though it is not a legal excuse for the crime and any sympathetic or
other aspect of Mr. Brown’s character or record that he offers as a basis for a
sentence less than death, whether or not related to the offense for which he is [on]
trial. These include, but are not limited to: . . .
“Whether or not Mr. Brown was properly treated for any physical cruelty or
abuse you feel he suffered, or medical condition he had, and the effect of any lack
of care on his development.
“Whether or not Mr. Brown’s educational needs were neglected by the
schools he attended.
“Whether or not Mr. Brown has borderline intelligence.
“Whether or not Mr. Brown was raised in a violent, and negative
community environment, and the effect of that environment on him.
“Whether or not Mr. Brown was exposed to violence in his household as an
infant and a child and the effect of this upon him.
“Evidence of neglect or abuse in a defendant’s background are relevant in
our law because of a long-held belief in our society that people who commit
criminal acts that are attributable to a disadvantaged background, or who suffered
neglect, abuse, or mental limitation, may be less morally culpable than those who
have not.
“Mercy, or compassion you feel based on the evidence is appropriate for
you to consider in deciding whether to sentence Mr. Brown to death.”
We find no error. “We previously have explained that the standard
CALJIC penalty phase instructions ‘are adequate to inform the jurors of their
sentencing responsibilities in compliance with federal and state constitutional
65
standards.’ [Citation.] Moreover, the general rule is that a trial court may refuse a
proffered instruction if it is an incorrect statement of law, is argumentative, or is
duplicative.” (People v. Gurule, supra, 28 Cal.4th at p. 659.) The jury was
instructed with CALJIC No. 8.85, which explains the various aggravating and
mitigating factors. In particular, it was instructed with section 190.3, factor (k),
which is essentially duplicated by the first paragraph of the rejected instruction.23
The trial court thus did not err in refusing this proposed instruction, and we reject
defendant’s contention that his proposed instruction should have been repeated for
the jury as a preface to the other rejected instructions. (Gurule, supra, at p. 659
[court need not give duplicative instructions].)
Defendant also claims the court should have instructed the jury to consider
any “physical cruelty or abuse he suffered, or medical condition he had.” The
court essentially gave this instruction, informing the jury that it could consider
“physical abuse or cruelty suffered [by defendant] during his formative years.”
(See, ante, fn. 23.) This instruction was also duplicative. (People v. Gurule,
supra, 28 Cal.4th at p. 659.)
Many of the other instructions the trial court rejected (concerning lack of
medical care, educational neglect, borderline intelligence, violent childhood
community and household, neglect and abuse) attempted to highlight selected
23
Thus, the jury was instructed: “You shall consider, take into account and
be guided by the following factors, if applicable . . . twelfth, any other
circumstance which extenuates the gravity of the crime even though it is not a
legal excuse for the crime and any sympathetic or other aspect of the defendant’s
character or record such as physical abuse or cruelty suffered during his formative
years that the defendant offers as a base—basis for a sentence less than death,
whether or not related to the offense for which he is on trial. You must disregard
any jury instruction given to you in the guilt or innocence phase of this trial which
conflicts with this principal [sic].”
66
portions of the evidence and were thus properly rejected as argumentative. “ ‘[A]
court may properly refuse an instruction that is argumentative’ [citation] or that
‘single[s] out only a partial list of potential mitigating factors for the jury’s
consideration.’ ” (People v. Cox (1991) 53 Cal.3d 618, 678, fn. 21.)
Although the final proposed instruction concerning mercy and compassion
was not argumentative, we nevertheless find the trial court did not err in refusing
it. As defendant himself admits, we have held that “ ‘a jury told it may
sympathetically consider all mitigating evidence need not also be expressly
instructed it may exercise mercy.’ [Citations.]” (People v. Bolin (1998) 18 Cal.4th
297, 344.) Because defendant’s jury had been instructed in the language of
section 190.3, factor (k), we must assume the jury already understood it could
consider mercy and compassion; accordingly, the trial court did not err in refusing
the proposed mercy instruction.
9. Consideration of Unadjudicated Criminal Conduct
Defendant contends the trial court violated his rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution, as well as
analogous provisions of the California Constitution, by permitting the jury to
consider unadjudicated criminal conduct as aggravating factors. This argument is,
in fact, a facial attack on the constitutionality of section 190.3, factor (b), which
provides: “In determining the penalty, the trier of fact shall take into account any
of the following factors if relevant: [¶] . . . [¶] (b) 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.” As
defendant admits, we long ago rejected this argument. Thus, in People v.
Balderas (1985) 41 Cal.3d 144, 205, we stated: “we must also reject defendant’s
argument that other crimes are inadmissible per se in a penalty trial. Contrary to
67
defendant’s suggestion, admission of evidence of uncharged criminal violence
does not impose the death penalty for a noncapital offense of which defendant was
never convicted. Rather, the evidence of criminality, if proved beyond a
reasonable doubt ([People v.] Robertson [(1982)] 33 Cal.3d [21,] 53-55), is simply
one factor the penalty jury is to consider in deciding the appropriate punishment
for the capital offense.” Although defendant urges this court to reconsider
Balderas, he provides no persuasive reason to do so. As we recently held, “[w]e
repeatedly have rejected claims, identical to that made by defendant, that criminal
activity occurring subsequent to the commission of the charged offense is
inadmissible under section 190.3, factor (b).” (People v. Hart (1999) 20 Cal.4th
546, 648-649.)
Defendant argues the trial court compounded the alleged error by failing to
instruct the jury on the elements of these other crimes. He asks: “How could the
jury determine that defendant was guilty of the uncharged offenses and consider
them in aggravation if the trial judge fails to provide them with the proper tools
and guidance to make such a finding?” There was no error. As we have
explained: “[A] criminal defendant may have tactical reasons to forgo lengthy
instructions on the elements of alleged other crimes. [Citation.] We fail to see
how forcing a capital defendant to forgo this tactical option vindicates his federal
constitutional rights. As we made clear in Phillips . . . if a defendant requests an
instruction explaining the elements of the other crimes at issue, he is entitled to
have the jury so instructed.” (People v. Hardy, supra, 2 Cal.4th at p. 207, citing
People v. Phillips (1985) 41 Cal.3d 29, 72, fn. 25.) Defendant did not request
such instructions.
Finally, defendant complains that the trial court directed a verdict with
respect to one of the instances of unadjudicated criminal conduct. Although its
instructions to the jury regarding the unadjudicated crimes were all couched in
68
terms of the “alleged” violations, the court described one of the alleged crimes as
if it had already been found true. Thus, the court, in describing the various
unadjudicated crimes, stated: “The incident occurring on or about November 5th,
1988, in which the defendant committed an assault with a firearm on Monica
Rodrigues and Gloria Alonso, a violation of Penal Code section 245(a)(2).”
Defendant claims “this violated appellant’s right to have the jury decide the facts
of the case and instead took the fact-finding function away from the jury in
violation of appellant’s Sixth Amendment rights.”
Given that the trial court spoke of the other crimes by saying “the defendant
is alleged to have committed” (italics added), it seems clear the court merely
misspoke. Indeed, when describing the evidence of attempted robbery against
Sharon Baker, the court stated: “The incident occurring on or about January 27,
1988, in which the defendant committed, committed—excuse me, in which it is
alleged the defendant committed . . . .” (Italics added.) Reading the instructions
as a whole, it seems extremely unlikely the jury believed it was required to
determine beyond a reasonable doubt whether defendant committed the other
crimes, but was to accept that defendant in fact committed an assault with a
firearm on Rodrigues and Alonso. Any error was harmless.
10. Failure to Instruct the Jury Following Substitution of Jurors at
the Penalty Phase
Before the start of the penalty phase of trial, Alternate Juror Robin R.
replaced Juror Victoria H. due to medical reasons. Then, during the presentation
of penalty phase evidence but before jury deliberations had begun, Alternate Juror
Herbert S. replaced Juror Cheryl K. due to a death in her family. Defendant
contends his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution, as well as analogous provisions of the California
Constitution, were violated by the trial court’s failure to instruct the jury sua
69
sponte that the jurors review together the guilt phase evidence in order to discuss
any lingering doubt the two new jurors may have had.
We disagree. “The excusal of a juror for good cause and the substitution of
an alternate at the penalty phase prior to commencement of deliberations do not
require a retrial of the guilt phase or a reweighing of the evidence received at the
earlier phase of the proceedings.” (People v. Cunningham (2001) 25 Cal.4th 926,
1030, italics added; People v. Brown (1988) 46 Cal.3d 432, 460-461.) Inasmuch
as the two new jurors were substituted into the jury before deliberations, no such
instruction was required. To the extent defendant contends the trial court erred by
failing to instruct the jury sua sponte on lingering doubt as a result of the two new
jurors, we reject that claim as well. (Cunningham, supra, at p. 1030.)
11. Admission of Victim Impact Evidence
Defendant contends his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, as well as analogous provisions of
the California Constitution, were violated by the admission of evidence from the
victim’s mother, Susie Barraza, and the victim’s mother-in-law, Maria Ramirez.
We find no error. Admission of victim impact evidence at the penalty phase of a
capital trial is permissible under the Eighth Amendment (Payne v. Tennessee
(1991) 501 U.S. 808), and we have several times ruled such evidence is admissible
as a circumstance of the offense under section 190.3, factor (a) (see, e.g., People v.
Boyette (2002) 29 Cal.4th 381, 443-444).
Defendant concedes that victim impact evidence generally is admissible,
but contends the evidence the trial court admitted “far exceeded even permissible
‘victim impact’ evidence.” First, he argues the evidence from Christina Ramirez’s
mother-in-law was not evidence from a “victim” or “even a filial relative.” We
reject the suggestion that victim impact evidence in a capital trial is or should be
70
limited to blood relatives.24 The jury, in making a normative decision whether the
defendant should live or die, is entitled to hear how the defendant’s crime has
harmed the survivors. (See People v. Marks (July 24, 2003, S040575) __ Cal.4th
___, ___ [pp. 46-47].)
Defendant also contends the trial court did not limit the testimony to the
immediate impact of defendant’s robbery and murder of Christina Ramirez, but
allowed both witnesses to testify they were still scared to go outside at night, more
than three years after the crime. He claims this evidence “was unduly prejudicial
and rendered the penalty phase trial fundamentally unfair.” We perceive no
unfairness. It is common sense that surviving families would suffer repercussions
from a young woman’s senseless and seemingly random murder long after the
crime is over.
We similarly reject defendant’s claims that such evidence is irrelevant and
that the court did not instruct the jury how to consider it. On the contrary, victim
impact evidence is relevant to section 190.3, factor (a) (“The circumstances of the
crime of which the defendant was convicted in the present proceeding”), and the
court instructed the jurors with CALJIC No. 8.85, which tells them to “consider,
take into account and be guided by” such factors. Defendant further argues that
permitting the jury to consider victim impact evidence under section 190.3, factor
24
Defendant’s sole legal authority for this claim is section 1191.1, which
provides in pertinent part that “The victim, or up to two of the victim’s parents or
guardians if the victim is a minor, or the next of kin of the victim if the victim has
died, have the right to appear, personally or by counsel, at the sentencing
proceeding and to reasonably express his, her, or their views concerning the crime,
the person responsible, and the need for restitution.” It is doubtful this statute
applies to the penalty phase of a capital trial, but in any event it has been held that
a trial court has the discretionary power under section 1191.1 to hear witnesses
who are not strictly victims. (People v. Zikorus (1983) 150 Cal.App.3d 324, 332.)
71
(a) renders the “circumstances of the crime” unconstitutionally vague and
overbroad. Defendant failed to preserve this claim for appellate review by making
a timely and specific objection. In any event, we reject it. (People v. Boyette,
supra, 29 Cal.4th at p. 445, fn. 12.)
12. The Prosecutor’s Use of Inconsistent Theories
At Sunnymead Park in November 1987, four men robbed Danny Coria at
gunpoint of his vehicle, a Suzuki Samurai. One of his assailants also shot him in
the arm. He reported that an African-American male wearing a gray jogging suit
pointed a gun at him and fired. Willie Woods was later found driving Coria’s
Suzuki, wearing a gray jogging suit. Coria identified Woods as the man who shot
him, and Woods pleaded guilty to attempted murder in exchange for a 12-year
sentence, which he was serving at the time of defendant’s capital trial. At
defendant’s trial, Coria was no longer sure which of his assailants actually shot
him. Woods testified he was with Broderick Fields, Torrey Bennett and
defendant, but that it was defendant who actually shot Coria. Asked why he
pleaded guilty although he was not the shooter, he explained that he knew none of
the others would come forward because they were members of the same gang and
that police could not find defendant.25
25
Asked whether defendant, Fields and Bennett “somehow would stick
together because of [a] relationship,” Woods replied: “And they are, if they are all
Bloods. I’m the only Crip in the bunch. I know for a fact that they won’t get me.
You know what I’m saying? Just take the 12 [years] and do my 12, be happy. I
should have gotten some time. I was there. Do you know what I’m saying?
Doing the time is not the problem. Do you know what I’m saying? I told [them]:
‘Give me the time. I was there. I should get something.’ You know. But, as far
as the gunman, you can’t find him, ‘Hey, I take it, you know. Why not?’ ”
72
Defendant contends his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, as well as analogous provisions of
the California Constitution, were violated by the prosecution’s arguing
inconsistent theories in Woods’s and defendant’s cases. As he did at trial,26 he
cites Drake v. Kemp (11th Cir. 1985) 762 F.2d 1449 in support. We need not
resolve this issue because its premise—that the prosecutor argued inconsistent
theories in the separate trials of coperpetrators—is flawed. The prosecutor did not
obtain a conviction against Woods by arguing he was necessarily the man who
personally shot Coria. Woods, who was offered a favorable plea bargain, pleaded
guilty to shooting Coria. The matter thus never went to trial. At defendant’s trial,
Coria explained that he was then unsure which man, Woods or defendant, actually
shot him. Woods himself explained for the jury the circumstances of the Coria
shooting. Because the prosecution did not argue inconsistent theories, we reject
defendant’s claim that his constitutional rights were violated.
13. Refusal to Permit Defendant to Introduce Evidence of the Living
Conditions of a Life Prisoner
Defendant moved to admit evidence of the security surrounding a life
prisoner in prison in order to counter the prosecution’s anticipated evidence
concerning defendant’s future dangerousness if sentenced to life in prison. The
trial court denied the request, finding the evidence irrelevant. Defendant now
contends his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution, as well as analogous provisions of the California
Constitution, were violated by this ruling. We disagree. “We have previously
held that evidence of the conditions of confinement that a defendant will
26
Defendant moved in limine to exclude Coria’s and Woods’s evidence on
the theory of inconsistent prosecutorial theories.
73
experience if sentenced to life imprisonment without parole is irrelevant to the
jury’s penalty determination because it does not relate to the defendant’s character,
culpability, or the circumstances of the offense.” (People v. Quartermain (1997)
16 Cal.4th 600, 632.) Defendant recognizes the weight of authority is against him,
but urges this court to reconsider the issue. We find no persuasive reason to do so;
defendant remained free to argue that aspects of his history or background
supported the notion he would not be dangerous in the future, thereby answering
the prosecution’s argument to the contrary. “While defendant might have an
interest in telling the jurors of . . . the rigors of confinement in order to impress
upon them the gravity of their responsibility, that interest could be satisfied in his
argument.” (People v. Daniels (1991) 52 Cal.3d 815, 877-878.)
14. Refusal to Permit Defendant to Introduce Favorable Character
Evidence
After hearing from several witnesses who testified on defendant’s behalf,
defendant called his aunt, Mary McGowan, to the stand. When defense counsel
asked her whether she had “feelings” about the decision between life and death
regarding defendant, the prosecutor objected on the ground the proposed
testimony was cumulative to that of previous witnesses. After a sidebar
discussion, the trial court sustained the objection, specifically citing Evidence
Code section 352. Defense counsel asked no further questions, but later renewed
his request to ask the witness “about her feelings regarding the [life or death]
decision.” The prosecutor indicated he had a continuing objection, and the trial
court indicated his previous ruling sustaining the objection would stand.
Defendant contends the trial court, by excluding McGowan’s testimony as
cumulative, violated his constitutional rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution, as well as analogous
provisions of the California Constitution. He correctly argues that the evidence
74
was admissible (People v. Ochoa (1998) 19 Cal.4th 353, 456 [“A defendant may
offer evidence that he or she is loved by family members or others, and that these
individuals want him or her to live]”) and contends the evidence was not
cumulative, as the trial court found. In particular, he observes that several defense
witnesses testified to having warm and loving feelings towards defendant, but that
none (save one) actually stated a preference between life and death. The one
exception was defendant’s mother, Catherine Williams, who testified she believed
“staying [in prison] for life is just as bad as being put on death row or the death
penalty.”
Evidence Code section 352 permits the exclusion of evidence on the ground
that it is cumulative. A trial court’s exclusion of evidence on this ground will not
be reversed on appeal unless the court abused its discretion. (See People v.
Williams, supra, 16 Cal.4th at p. 213.) We need not decide whether the trial court
abused its discretion here, because the exclusion of McGowan’s testimony, if
error, was harmless in that it is not reasonably possible defendant would have
obtained a different verdict but for the error. (See People v. Ervin (2000) 22
Cal.4th 48, 103 [state law error at the penalty phase tested by the “reasonable
possibility” test]; People v. Brown, supra, 46 Cal.3d at p. 448 [same].) Here, the
jurors could readily have inferred from previous defense witnesses that they
preferred defendant be spared the death penalty. For example, defendant’s aunt,
Louise Matthews, was asked: “Do you have feelings about that decision [between
life and death] you want to express to the jury?” She replied: “I just feel he just,
he never had a chance in growing up.” Similarly, Angela Matthews, defendant’s
cousin, was asked: “Do you have feelings for your cousin that you want to
express regarding the decision that the jury has to make?” She replied: “I love my
cousin dearly. I don’t want to see anything happen to him.” It is not reasonably
75
possible the jury would have reached a different result had it heard from Mary
McGowan.
In addition to the question whether the evidence was properly found to be
cumulative, defendant also argues the exclusion of McGowan’s testimony violated
his right to due process and reliability in the penalty determination under the
Eighth and Fourteenth Amendments to the United States Constitution. A
defendant in a capital case is entitled to have the jury consider any relevant
mitigating evidence. (Skipper v. South Carolina (1986) 476 U.S. 1.) However,
“[e]xclusion of such evidence . . . does not automatically require reversal, but is
instead subject to the standard of review announced in Chapman v. California,
supra, 386 U.S. 18, that is, the error is reversible unless it is harmless beyond a
reasonable doubt.” (People v. Fudge (1994) 7 Cal.4th 1075, 1117-1118; see also
People v. Lucero (1988) 44 Cal.3d 1006, 1031-1032.) In light of the many other
defense witnesses who testified in defendant’s favor at the penalty phase, we find
the exclusion of McGowan’s testimony, if error, was harmless beyond a
reasonable doubt.
15. Exclusion of Defense Evidence that Medication Was Available to
Control Defendant’s Hyperactivity
Defendant sought to elicit from defense witness, Dr. Nancy Kaser-Boyd, a
clinical psychologist, whether defendant was a hyperactive child who could have
been treated with the drug Ritalin. She testified she had “some concerns that
[defendant] may have been hyperactive” based on her interview with defendant’s
mother, and upon learning defendant had a behavior problem in kindergarten. Dr.
Kaser-Boyd related that defendant’s school “thought he needed to be on Ritalin,
which is an amphetamine that’s often given to hyperactive children, and it has the
biological effect of slowing them down and helping them to focus.” When asked
whether “hyperactive children commonly have problems in school, behavioral
76
problems and social problems?” she replied: “Yeah, they do. It depends to some
extent on the severity of the hyperactivity, but even at the more mild ends they
often come to the attention of the teacher.” The prosecutor then objected,
claiming the question called for speculation. When defense counsel asked the
witness whether it is difficult to treat a hyperactive child, the prosecutor again
objected, claiming the answer would be irrelevant. After a sidebar conference, the
trial court sustained the objections, explaining the evidence would be irrelevant
and that defense counsel had failed to lay an adequate foundation that Dr. Kaser-
Boyd had sufficient medical expertise to answer the question.
Defendant contends the trial court’s decision to exclude a portion of Dr.
Kaser-Boyd’s testimony violated his right to present relevant mitigating evidence
under Skipper v. South Carolina, supra, 476 U.S. 1. Even under Skipper, “the
United States Supreme Court has made clear that the trial court retains the
authority to exclude, as irrelevant, evidence that has no bearing on the defendant’s
character, prior record or the circumstances of the offense.” (People v. Frye,
supra, 18 Cal.4th at p. 1015.) Although we review relevance determinations under
a deferential standard of review (see, e.g., People v. Weaver (2001) 26 Cal.4th
876, 933), we find the trial court abused its discretion in restricting Dr. Kaser-
Boyd’s evidence. Defendant wished to present evidence that he may have been
hyperactive as a child, that he may not have received sufficient medical or
psychological treatment at an early age, that leaving his hyperactivity untreated led
to his poor scholastic performance, and that this led him down a road to violence
and crime.27 Such evidence was relevant to section 190.3, factor (k), which allows
27
Defense counsel argued the proposed evidence “is to show that he
developed severe difficulties in school. And part of the doctor’s concern is that
had he—his condition of hyperactivity been dealt with properly he would have
(footnote continued on next page)
77
the jury to consider “[a]ny other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.”
The trial court seemed to labor under the misconception that, to be relevant,
the witness’s testimony would have to demonstrate a correlation between
hyperactivity as a child and violent conduct later in life. Section 190.3, factor (k)
evidence need not be that specific; it was sufficient that the sympathetic evidence
of defendant’s asserted untreated hyperactivity, which was relevant to his
character, tended to extenuate the gravity of the crime. To find this evidence
irrelevant would be to call into question much background and family history
evidence commonly introduced in capital trials as mitigating evidence.
Although the trial court also excluded the evidence for lack of foundation,
the record shows the witness had expertise and experience dealing with
hyperactive children. It would be for the jury to decide whether defendant’s
asserted untreated hyperactivity was a sympathetic factor supporting imposition of
a life sentence rather than a death sentence.
Although the trial court abused its discretion in excluding this evidence, the
error was harmless beyond a reasonable doubt. (People v. Fudge, supra, 7 Cal.4th
at pp. 1117-1118.) As noted, Dr. Kaser-Boyd was able to testify that she had
concerns that defendant was hyperactive as a young child, and that his school
thought he could benefit from taking Ritalin. Following the trial court’s sustaining
the prosecutor’s objection, the witness testified—without objection—that, in her
opinion, defendant’s hyperactivity “very likely did” have an impact on his
(footnote continued from previous page)
been more successful in school. [¶] That later impacted his life. He didn’t
perform well in school, he fell—dropped out at an early age, failed most of his
courses, and she thinks—I mean, I think that has a direct effect on the pattern of
his life.”
78
performance in school. Because defendant was able to put before the jury
essentially the same evidence that had been excluded, we find any error in
excluding evidence regarding defendant’s hyperactivity as a child was harmless
beyond a reasonable doubt.
16. Alleged Use of Improper Rebuttal Evidence
Following presentation of the defense case in mitigation, the prosecution
proposed to call Sandra Thomas to testify that she was a friend of defendant and
that, around the time of the crimes, he told her he would rob people of their cars
and strip them for parts. Specifically, she would testify that defendant mentioned
a Nissan truck (such as Christina Ramirez drove) and a Suzuki (such as Danny
Coria drove). Defendant objected, claiming this evidence was not proper rebuttal
evidence, but the trial court overruled the objection and allowed the evidence to be
admitted. Defendant contends this ruling violated his rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution, as well as
analogous provisions of the California Constitution. In particular, defendant
complains the prosecution was allowed to introduce additional substantive
evidence of his guilt, in the guise of rebuttal evidence, that was more properly part
of its guilt phase case-in-chief. By contrast, he was denied fundamental fairness
because he was barred from introducing evidence that might have fostered a
lingering doubt as to his guilt. (In re Gay (1998) 19 Cal.4th 771, 813-814
[“Evidence intended to create a reasonable doubt as to the defendant’s guilt is not
relevant to the circumstances of the offense or the defendant’s character and
record”].)
We explained the scope of rebuttal in People v. Carter (1957) 48 Cal.2d
737, 753-754: “In a sense all evidence that tends to establish the defendant’s guilt
over his protestations of innocence rebuts the defendant’s case, but it is not all
79
rebuttal evidence within the purpose of section 1093, subdivision 4 [now section
1093, subdivision (d)]. The purpose of the restriction in that section is to assure an
orderly presentation of evidence so that the trier of fact will not be confused; to
prevent a party from unduly magnifying certain evidence by dramatically
introducing it late in the trial; and to avoid any unfair surprise that may result
when a party who thinks he has met his opponent’s case is suddenly confronted at
the end of trial with an additional piece of crucial evidence. Thus proper rebuttal
evidence does not include a material part of the case in the prosecution’s
possession that tends to establish the defendant’s commission of the crime. It is
restricted to evidence made necessary by the defendant’s case in the sense that he
has introduced new evidence or made assertions that were not implicit in his
denial of guilt. [Citations.] A defendant’s reiterated denial of guilt and the
principal facts that purportedly establish it does not justify the prosecution’s
introduction of new evidence to establish that which defendant would clearly have
denied from the start.” (See also People v. Daniels (1991) 52 Cal.3d 815, 859,
quoting Carter with approval.)
Rebuttal evidence, however, “ ‘must be specific, and evidence presented or
argued as rebuttal must relate directly to a particular incident or character trait
defendant offers in his own behalf.’ ” (People v. Fierro (1991) 1 Cal.4th 173,
238.) “The admission of evidence in rebuttal is a matter left to the sound
discretion of the trial court. [Citation.] The court’s decision in this regard will not
be disturbed on appeal in the absence of ‘palpable abuse.’ ” (People v. Hart
(1999) 20 Cal.4th 546, 653.)
Some of Thomas’s testimony properly rebutted mitigating evidence
defendant introduced. For example, Dr. Kaser-Boyd testified that defendant told
her that he “got this job in construction and was hopeful that he could apprentice
himself and learn construction that way.” She said that defendant told her he had
80
been working about one month prior to his arrest. This evidence tended to show
defendant as a hardworking young man trying to improve himself by learning a
trade. In rebuttal, Thomas testified that she was a close friend of defendant, close
enough that defendant considered her a big sister. The following colloquy then
occurred:
“Q. [by the prosecutor] During that time between 1987 and 1989, the day
he got arrested or the time he got arrested, did you ever know him to work an
honest job, anything like that?
“A. [by Sandra Thomas] No, sir.
“Q. Okay. Did he ever talk about working at all?
“A. No, sir.
“Q. Did he ever mention construction work that he was doing?
“A. Not at all.
“Q. Did you ever see him go to work or come back from work or anything
like that?
“A. No.”
Thomas then testified that defendant had told her he stole cars and stripped
them for their parts, which he would sell to make money. In the course of this
conversation, he mentioned he had stolen a Nissan or a Suzuki. Once when she
was with him, a woman drove by in a Suzuki and he said “I’m going to get that
bitch. He said, I’m jacking that. And that was his exact words.” She said he
seemed thrilled to be talking about it. Because Thomas’s testimony responded to
mitigating evidence suggesting defendant was a hardworking person, it was proper
rebuttal and the trial court did not abuse its discretion in admitting it.
In addition, defendant points to testimony from Thomas that defendant
disappeared for two weeks around the time Coria was shot and then reappeared
looking scared and nervous, but holding $600 or $700. This evidence tended to
81
show defendant was implicated in shooting Coria and stealing his Suzuki. We
find this evidence was also properly admitted in rebuttal. After the prosecution
presented evidence from Willie Woods that defendant was the man who actually
shot Coria, the defense called William Palmer to the stand. Palmer, a probation
officer, had interviewed Woods to prepare a probation report. He said Woods told
him a person named Torrey committed the crime (i.e., probably Torrey Bennett).
Thomas’s evidence thus tended to rebut Palmer’s testimony. In short, we find the
trial court did not err in admitting this evidence, and the admission of Thomas’s
testimony in rebuttal did not deny defendant fundamental fairness or any other
constitutional rights.
17. Failure to Hold a Hearing for Alleged Juror Misconduct
Following the penalty verdict, the prosecutor and both defense counsel
joined the 12 jurors and discussed the case. All 12 jurors expressed concern that
defendant’s gang would retaliate against them as a result of the verdict. One juror
in particular thought he may have been followed by a gang member or a member
of defendant’s family. The jury foreperson, however, stated that concern over
retaliation did not affect the jury’s deliberations. The attorneys related their
experience with the jury in declarations filed with the court. Based on these
declarations, defendant moved for a new trial based on jury misconduct. The trial
court denied the motion and made two points. First, the court noted that defense
counsel did not request a hearing. Second, the court explained: “At this point, I
do not believe there is enough here even for the Court to be concerned or feel an
evidentiary hearing is anyway warranted or required. I have read [the declarations
and] I am concerned; but I think, as I say, the declarations themselves belie any
potential problem but the Court would be concerned about that. But, absent any
declaration from jurors or other evidence based on what I have here, I find no
82
reason to be concerned that if this [presumably, fear of retaliation from
defendant’s gang] was mentioned at some point that it played any part in the
deliberations or was in any way prejudicial to the defendant as to the jury’s
decision.”
Defendant contends the trial court violated his rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution, as well as
analogous provisions of the California Constitution, by failing to hold a hearing to
investigate potential jury misconduct. We disagree. “[W]hen a criminal
defendant moves for a new trial based on allegations of jury misconduct, the trial
court has discretion to conduct an evidentiary hearing to determine the truth of the
allegations. We stress, however, that the defendant is not entitled to such a
hearing as a matter of right. Rather, such a hearing should be held only when the
trial court, in its discretion, concludes that an evidentiary hearing is necessary to
resolve material, disputed issues of fact.” (People v. Hedgecock (1990) 51 Cal.3d
395, 415.) “[A hearing] should be held only when the defense has come forward
with evidence demonstrating a strong possibility that prejudicial misconduct has
occurred. Even upon such a showing, an evidentiary hearing will generally be
unnecessary unless the parties’ evidence presents a material conflict that can only
be resolved at such a hearing.” (Id. at p. 419.)
Applying this rule here, we find the trial court did not abuse its discretion in
declining to hold a hearing into potential jury misconduct. Although defense
counsel’s declaration indicated the jury was concerned about possible retaliation,
it also states that a police detective active in the case assured the jury that
defendant “was no longer active in the gangs in Compton, and in fact, was not
welcome in Compton due to problems that developed between [defendant] and his
gang.” Moreover, when asked “whether anger or fear connected with the juror’s
concerns of retaliation affected their deliberations,” the jury foreperson replied in
83
the negative. The prosecutor’s declaration, which also stated that “defense
counsel attempted to elicit contrary information but were clearly informed that any
relationship he had with a gang played no part in reaching [the jury’s] decision in
the guilt or penalty phase,” echoed this statement. Because defendant’s evidence
did not demonstrate “a strong possibility that prejudicial misconduct has occurred”
(People v. Hedgecock, supra, 51 Cal.3d at p. 419), and no material fact was in
dispute, the court’s decision not to hold a hearing was well within its discretion.
84
III. CONCLUSION
The guilt and penalty judgments are affirmed in their entirety.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.
85
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Brown
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S026700
Date Filed: August 11, 2003
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: William R. Bailey, Jr.
__________________________________________________________________________________
Attorneys for Appellant:
Ronald S. Smith, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Esteban Hernandez, William M. Wood, Leslie B. Fleming and David
Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
86
Counsel who argued in Supreme Court (not intended for publication with opinion):
Ronald S. Smith
6500 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90048-4920
(323) 653-2345
David Delgado-Rucci
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2001
87
Opinion Information
| Date: | Docket Number: |
| Mon, 08/11/2003 | S026700 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office David Delgado-Rucci, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Brown, Andrew Lamont (Appellant) San Quentin State Prison Represented by Federal Public Defender - La Linda Griffis, Deputy Federal Public Defender 321 East Second Street Los Angeles, CA |
| Disposition | |
| Aug 11 2003 | Opinion: Affirmed |
| Dockets | |
| May 14 1992 | Judgment of death |
| May 19 1992 | Filed certified copy of Judgment of Death Rendered 5-14-92. |
| Jan 7 1997 | Counsel appointment order filed Ronald S. Smith Is appointed to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings. |
| Feb 14 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Feb 26 1997 | Extension of Time application Granted To April 21,1997 To request Record correction |
| Apr 18 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 23 1997 | Extension of Time application Granted To Applt To 6-20-97 To request Corr. of Record. |
| Jun 20 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jun 26 1997 | Extension of Time application Granted To Applt To 8-19-97 To request Corr. of Record. |
| Jul 23 1997 | Compensation awarded counsel |
| Aug 19 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Aug 21 1997 | Extension of Time application Granted To Applt To 10-20-97 To request Corr. of Record. |
| Oct 20 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 22 1997 | Extension of Time application Granted To December 22, 1997 To request Record correction. |
| Dec 22 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jan 8 1998 | Extension of Time application Granted To February 20,1998 To request Record correction no further Extensions of time will be Granted. |
| Feb 9 1998 | Compensation awarded counsel |
| Mar 3 1998 | Received: Copy of Applt's request for correction of Record & Applic. for Augmentation (32 Pp.) |
| Mar 11 1998 | Compensation awarded counsel |
| May 27 1998 | Record on appeal filed C-18 (4,399 Pp.) and R-53 (7,533 Pp.); Clerk's Transcript includes 2,814 pages of Juror Questionnaires. |
| May 27 1998 | Appellant's opening brief letter sent, due: 7-6-98. |
| Jun 5 1998 | Compensation awarded counsel |
| Jun 17 1998 | Compensation awarded counsel |
| Jul 6 1998 | Application for Extension of Time filed To file Aob. |
| Jul 8 1998 | Extension of Time application Granted To 9-4-98 To file AOB |
| Aug 26 1998 | Compensation awarded counsel |
| Sep 4 1998 | Application for Extension of Time filed To file Aob. |
| Sep 9 1998 | Extension of Time application Granted To 11-6-98 To file AOB |
| Nov 6 1998 | Application for Extension of Time filed To file Aob. |
| Nov 13 1998 | Extension of Time application Granted To 1-5-99 To file Aob. |
| Jan 5 1999 | Application for Extension of Time filed To file Aob. |
| Jan 6 1999 | Extension of Time application Granted To 3-8-99 To file AOB |
| Mar 8 1999 | Application for Extension of Time filed To file Aob. |
| Mar 18 1999 | Extension of Time application Granted To 5-7-99 To file Aob. |
| May 6 1999 | Application for Extension of Time filed To file Aob. |
| May 12 1999 | Extension of Time application Granted To 7-6-99 To file AOB |
| Jul 6 1999 | Application for Extension of Time filed To file Aob. |
| Jul 12 1999 | Extension of Time application Granted To 9-7-99 To file AOB no further Extensions of time Are Contemplated. |
| Sep 7 1999 | Application for Extension of Time filed To file Aob. |
| Sep 15 1999 | Extension of Time application Granted To 11/8/99 To file Aob. no further Extensions of time will be Granted. |
| Nov 8 1999 | Application for Extension of Time filed To file Aob. |
| Nov 18 1999 | Extension of Time application Denied To file Aob. |
| Jan 3 2000 | Filed: Appl for Relief from Default, request for Perm. to file Aob. (AOB submitted Under Separate Cover) |
| Jan 7 2000 | Order filed: Applt's Application for Relief from Default to file AOB Is Granted. |
| Jan 7 2000 | Appellant's opening brief filed (279 Pps.) |
| Jan 21 2000 | Filed: Confidential Declaration of Atty Ronald S. Smith. |
| Jan 24 2000 | Compensation awarded counsel Atty Smith |
| Jan 28 2000 | Application for Extension of Time filed To file Resp's brief. |
| Feb 4 2000 | Extension of Time application Granted To 4/7/2000 To file Resp's brief. |
| Mar 31 2000 | Application for Extension of Time filed To file Resp's brief. |
| Apr 7 2000 | Extension of Time application Granted To 6/6/2000 To file Resp's brief. |
| Jun 5 2000 | Application for Extension of Time filed To file Resp's brief. |
| Jun 8 2000 | Change of Address filed for: Aplt |
| Jun 12 2000 | Extension of Time application Granted To 8/6/2000 To file Resp's brief. |
| Jul 14 2000 | Counsel's status report received (confidential) |
| Aug 2 2000 | Application for Extension of Time filed to file resp's brief. (fourth request) |
| Aug 7 2000 | Extension of Time application Granted to 10-5-2000 to file resp's brief. |
| Sep 18 2000 | Counsel's status report received (confidential) |
| Sep 19 2000 | Compensation awarded counsel Atty Smith |
| Oct 4 2000 | Application for Extension of Time filed To file resp's brief. (5th request) |
| Oct 11 2000 | Extension of Time application Granted To 10/23/2000 to file resp's brief. |
| Oct 18 2000 | Respondent's brief filed (187 pages) |
| Nov 8 2000 | Application for Extension of Time filed To file reply brief (1st request) |
| Nov 15 2000 | Extension of Time application Granted To 1/8/2001 to file reply brief. |
| Nov 17 2000 | Counsel's status report received (confidential) |
| Jan 9 2001 | Application for Extension of Time filed To file reply brief. (2nd request) |
| Jan 18 2001 | Extension of Time application Granted To 3/9/2001 to file reply brief. |
| Jan 22 2001 | Counsel's status report received (confidential) |
| Jan 30 2001 | Compensation awarded counsel Atty Smith |
| Mar 7 2001 | Counsel's status report received (confidential) |
| Mar 12 2001 | Application for Extension of Time filed To file Reply Brief (3rd request). |
| Mar 16 2001 | Extension of Time application Granted To 5/8/2001 to file reply brief. |
| May 9 2001 | Application for Extension of Time filed To file reply brief. (4th request) |
| May 9 2001 | Counsel's status report received (confidential) |
| May 11 2001 | Extension of Time application Granted To 7/9/2001 to file reply brief. No further extensions are contemplated. |
| Jul 9 2001 | Application for Extension of Time filed To file reply brief. (5th request) |
| Jul 9 2001 | Counsel's status report received (confidential) |
| Jul 13 2001 | Extension of Time application Granted To 9/7/2001 to file reply brief. No further extensions of time will be granted. |
| Aug 9 2001 | Counsel's status report received (confidential) |
| Sep 4 2001 | Counsel's status report received (confidential) |
| Sep 7 2001 | Application for Extension of Time filed To file reply brief. (6th request) |
| Sep 13 2001 | Extension of Time application Denied To file reply brief. |
| Oct 22 2001 | Application for relief from default filed to file reply brief. (81 pp. reply brief submitted under separate cover) |
| Oct 25 2001 | Counsel's status report received (confidential) |
| Oct 29 2001 | Order filed: Applt.'s application for relief from default to file reply brief is granted. |
| Oct 29 2001 | Appellant's Reply Brief filed. (81 pp.) |
| Nov 26 2001 | Counsel's status report received (confidential) |
| Nov 28 2001 | Compensation awarded counsel Atty Smith |
| Jan 25 2002 | Counsel's status report received (confidential) |
| Apr 9 2002 | Counsel's status report received (confidential) |
| Jun 17 2002 | Counsel's status report received (confidential) |
| Sep 20 2002 | Counsel's status report received (confidential) |
| Dec 6 2002 | Counsel's status report received (confidential) |
| Feb 24 2003 | Exhibits lodged Court's Exhibit #6 received from Riverside County Superior Court. |
| Apr 8 2003 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as late May calendar, to be held in San Francisco the week of May 27, 2003. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument. |
| Apr 30 2003 | Case ordered on calendar 6-3-03, 2pm, L.A. |
| May 12 2003 | Filed letter from: Appellant's counsel, dated 5/8/2003, re focus issues for oral argument and requesting 45 minutes for argument. |
| May 15 2003 | Order filed The request of appellant for 45 minutes for oral argument is granted. |
| May 28 2003 | Filed letter from: Respondent's counsel, dated 5/23/2003, re focus issues for oral argument. |
| Jun 3 2003 | Cause argued and submitted |
| Jun 18 2003 | Compensation awarded counsel Atty Smith |
| Jul 25 2003 | Counsel's status report received (confidential) |
| Aug 11 2003 | Opinion filed: Judgment affirmed in full Majority Opinion by Werdegar, J. -- joined by George C.J., Kennard, Baxter, Chin, Brown & Moreno JJ. |
| Aug 25 2003 | Rehearing petition filed by appellant. (30 pp.) |
| Aug 27 2003 | Time extended to consider modification or rehearing The time for granting or denying rehearing is extended to and including 11-7-2003, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Oct 29 2003 | Rehearing denied On the court's own motion the opinion is modified. Petition for rehearing DENIED. |
| Oct 29 2003 | Opinion modified - no change in judgment |
| Oct 29 2003 | Remittitur issued (AA) |
| Nov 6 2003 | Received: receipt for remittitur. |
| Nov 14 2003 | Counsel's status report received (confidential) |
| Nov 14 2003 | Filed: Declaration of attorney Ronald S. Smith regarding progress payment (confidential). |
| Nov 25 2003 | Compensation awarded counsel Atty Smith |
| Dec 10 2003 | Exhibit(s) returned to superior court. |
| Dec 12 2003 | Order filed (150 day statement) |
| Dec 17 2003 | Compensation awarded counsel Atty Smith |
| Dec 19 2003 | Received: received acknowledgment of receipt of exhibit from superior court. |
| Jan 26 2004 | Received: Copy of appellant's cert petition. (22 pp. - excluding appendices) |
| Jan 30 2004 | Received letter from: U.S.S.C. dated 1-26-2004, advising cert petition was filed on 1-22-2004, case no. 03-8557. |
| Mar 15 2004 | Received: copy of appellant's supplemental brief filed in U.S.S.C. (9 pp.) |
| Mar 17 2004 | Counsel's status report received (confidential) |
| May 24 2004 | Certiorari denied by U.S. Supreme Court |
| Jun 17 2004 | Related habeas corpus petition filed (post-judgment) No. S125670 |
| Jun 17 2004 | Counsel's status report received (confidential) |
| Jun 21 2004 | Filed: Declaration of attorney Ronald S. Smith (confidential). |
| Jun 23 2004 | Compensation awarded counsel Atty Smith |
| Aug 26 2005 | Motion to withdraw as counsel filed by attorney Ronald S. Smith, to withdraw as direct appeal and habeas corpus counsel. |
| Aug 26 2005 | Motion for appointment of counsel filed by Federal Public Defender - LA. |
| Aug 26 2005 | Related habeas corpus petition filed (post-judgment) No. S136785 |
| Sep 6 2005 | Filed: Amended application for appointment of the Federal Public Defender - LA as counsel of record. |
| Sep 6 2005 | Filed: Supplemental proof of service of motion to withdraw as counsel of record. |
| Sep 9 2005 | Filed: Supplement to amended application for appointment of Federal Public Defender as counsel of record. |
| Sep 21 2005 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for condemned prisoner Andrew Lamont Brown, filed August 26, 2005, is granted. The order appointing Ronald S. Smith as counsel of record for condemned prisoner Andrew Lamont Brown, filed January 7, 1997, is hereby vacated. The Federal Public Defender for the Central District of California is hereby appointed as attorney of record for condemned prisoner Andrew Lamont Brown. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. George, C.J., was absent and did not participate. |
| Briefs | |
| Jan 7 2000 | Appellant's opening brief filed |
| Oct 18 2000 | Respondent's brief filed |
| Oct 29 2001 | Appellant's Reply Brief filed. (81 pp.) |
