Supreme Court of California Justia
Docket No. S026700
People v. Brown



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.

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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.

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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.

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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, 08/11/2003S026700

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

2Brown, 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 2003Opinion: Affirmed

Dockets
May 14 1992Judgment of death
 
May 19 1992Filed certified copy of Judgment of Death Rendered
  5-14-92.
Jan 7 1997Counsel appointment order filed
  Ronald S. Smith Is appointed to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings.
Feb 14 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Feb 26 1997Extension of Time application Granted
  To April 21,1997 To request Record correction
Apr 18 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 23 1997Extension of Time application Granted
  To Applt To 6-20-97 To request Corr. of Record.
Jun 20 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 26 1997Extension of Time application Granted
  To Applt To 8-19-97 To request Corr. of Record.
Jul 23 1997Compensation awarded counsel
 
Aug 19 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Aug 21 1997Extension of Time application Granted
  To Applt To 10-20-97 To request Corr. of Record.
Oct 20 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Oct 22 1997Extension of Time application Granted
  To December 22, 1997 To request Record correction.
Dec 22 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Jan 8 1998Extension of Time application Granted
  To February 20,1998 To request Record correction no further Extensions of time will be Granted.
Feb 9 1998Compensation awarded counsel
 
Mar 3 1998Received:
  Copy of Applt's request for correction of Record & Applic. for Augmentation (32 Pp.)
Mar 11 1998Compensation awarded counsel
 
May 27 1998Record 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 1998Appellant's opening brief letter sent, due:
  7-6-98.
Jun 5 1998Compensation awarded counsel
 
Jun 17 1998Compensation awarded counsel
 
Jul 6 1998Application for Extension of Time filed
  To file Aob.
Jul 8 1998Extension of Time application Granted
  To 9-4-98 To file AOB
Aug 26 1998Compensation awarded counsel
 
Sep 4 1998Application for Extension of Time filed
  To file Aob.
Sep 9 1998Extension of Time application Granted
  To 11-6-98 To file AOB
Nov 6 1998Application for Extension of Time filed
  To file Aob.
Nov 13 1998Extension of Time application Granted
  To 1-5-99 To file Aob.
Jan 5 1999Application for Extension of Time filed
  To file Aob.
Jan 6 1999Extension of Time application Granted
  To 3-8-99 To file AOB
Mar 8 1999Application for Extension of Time filed
  To file Aob.
Mar 18 1999Extension of Time application Granted
  To 5-7-99 To file Aob.
May 6 1999Application for Extension of Time filed
  To file Aob.
May 12 1999Extension of Time application Granted
  To 7-6-99 To file AOB
Jul 6 1999Application for Extension of Time filed
  To file Aob.
Jul 12 1999Extension of Time application Granted
  To 9-7-99 To file AOB no further Extensions of time Are Contemplated.
Sep 7 1999Application for Extension of Time filed
  To file Aob.
Sep 15 1999Extension of Time application Granted
  To 11/8/99 To file Aob. no further Extensions of time will be Granted.
Nov 8 1999Application for Extension of Time filed
  To file Aob.
Nov 18 1999Extension of Time application Denied
  To file Aob.
Jan 3 2000Filed:
  Appl for Relief from Default, request for Perm. to file Aob. (AOB submitted Under Separate Cover)
Jan 7 2000Order filed:
  Applt's Application for Relief from Default to file AOB Is Granted.
Jan 7 2000Appellant's opening brief filed
  (279 Pps.)
Jan 21 2000Filed:
  Confidential Declaration of Atty Ronald S. Smith.
Jan 24 2000Compensation awarded counsel
  Atty Smith
Jan 28 2000Application for Extension of Time filed
  To file Resp's brief.
Feb 4 2000Extension of Time application Granted
  To 4/7/2000 To file Resp's brief.
Mar 31 2000Application for Extension of Time filed
  To file Resp's brief.
Apr 7 2000Extension of Time application Granted
  To 6/6/2000 To file Resp's brief.
Jun 5 2000Application for Extension of Time filed
  To file Resp's brief.
Jun 8 2000Change of Address filed for:
  Aplt
Jun 12 2000Extension of Time application Granted
  To 8/6/2000 To file Resp's brief.
Jul 14 2000Counsel's status report received (confidential)
 
Aug 2 2000Application for Extension of Time filed
  to file resp's brief. (fourth request)
Aug 7 2000Extension of Time application Granted
  to 10-5-2000 to file resp's brief.
Sep 18 2000Counsel's status report received (confidential)
 
Sep 19 2000Compensation awarded counsel
  Atty Smith
Oct 4 2000Application for Extension of Time filed
  To file resp's brief. (5th request)
Oct 11 2000Extension of Time application Granted
  To 10/23/2000 to file resp's brief.
Oct 18 2000Respondent's brief filed
  (187 pages)
Nov 8 2000Application for Extension of Time filed
  To file reply brief (1st request)
Nov 15 2000Extension of Time application Granted
  To 1/8/2001 to file reply brief.
Nov 17 2000Counsel's status report received (confidential)
 
Jan 9 2001Application for Extension of Time filed
  To file reply brief. (2nd request)
Jan 18 2001Extension of Time application Granted
  To 3/9/2001 to file reply brief.
Jan 22 2001Counsel's status report received (confidential)
 
Jan 30 2001Compensation awarded counsel
  Atty Smith
Mar 7 2001Counsel's status report received (confidential)
 
Mar 12 2001Application for Extension of Time filed
  To file Reply Brief (3rd request).
Mar 16 2001Extension of Time application Granted
  To 5/8/2001 to file reply brief.
May 9 2001Application for Extension of Time filed
  To file reply brief. (4th request)
May 9 2001Counsel's status report received (confidential)
 
May 11 2001Extension of Time application Granted
  To 7/9/2001 to file reply brief. No further extensions are contemplated.
Jul 9 2001Application for Extension of Time filed
  To file reply brief. (5th request)
Jul 9 2001Counsel's status report received (confidential)
 
Jul 13 2001Extension of Time application Granted
  To 9/7/2001 to file reply brief. No further extensions of time will be granted.
Aug 9 2001Counsel's status report received (confidential)
 
Sep 4 2001Counsel's status report received (confidential)
 
Sep 7 2001Application for Extension of Time filed
  To file reply brief. (6th request)
Sep 13 2001Extension of Time application Denied
  To file reply brief.
Oct 22 2001Application for relief from default filed
  to file reply brief. (81 pp. reply brief submitted under separate cover)
Oct 25 2001Counsel's status report received (confidential)
 
Oct 29 2001Order filed:
  Applt.'s application for relief from default to file reply brief is granted.
Oct 29 2001Appellant's Reply Brief filed. (81 pp.)
 
Nov 26 2001Counsel's status report received (confidential)
 
Nov 28 2001Compensation awarded counsel
  Atty Smith
Jan 25 2002Counsel's status report received (confidential)
 
Apr 9 2002Counsel's status report received (confidential)
 
Jun 17 2002Counsel's status report received (confidential)
 
Sep 20 2002Counsel's status report received (confidential)
 
Dec 6 2002Counsel's status report received (confidential)
 
Feb 24 2003Exhibits lodged
  Court's Exhibit #6 received from Riverside County Superior Court.
Apr 8 2003Oral 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 2003Case ordered on calendar
  6-3-03, 2pm, L.A.
May 12 2003Filed letter from:
  Appellant's counsel, dated 5/8/2003, re focus issues for oral argument and requesting 45 minutes for argument.
May 15 2003Order filed
  The request of appellant for 45 minutes for oral argument is granted.
May 28 2003Filed letter from:
  Respondent's counsel, dated 5/23/2003, re focus issues for oral argument.
Jun 3 2003Cause argued and submitted
 
Jun 18 2003Compensation awarded counsel
  Atty Smith
Jul 25 2003Counsel's status report received (confidential)
 
Aug 11 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by Werdegar, J. -- joined by George C.J., Kennard, Baxter, Chin, Brown & Moreno JJ.
Aug 25 2003Rehearing petition filed
  by appellant. (30 pp.)
Aug 27 2003Time 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 2003Rehearing denied
  On the court's own motion the opinion is modified. Petition for rehearing DENIED.
Oct 29 2003Opinion modified - no change in judgment
 
Oct 29 2003Remittitur issued (AA)
 
Nov 6 2003Received:
  receipt for remittitur.
Nov 14 2003Counsel's status report received (confidential)
 
Nov 14 2003Filed:
  Declaration of attorney Ronald S. Smith regarding progress payment (confidential).
Nov 25 2003Compensation awarded counsel
  Atty Smith
Dec 10 2003Exhibit(s) returned
  to superior court.
Dec 12 2003Order filed (150 day statement)
 
Dec 17 2003Compensation awarded counsel
  Atty Smith
Dec 19 2003Received:
  received acknowledgment of receipt of exhibit from superior court.
Jan 26 2004Received:
  Copy of appellant's cert petition. (22 pp. - excluding appendices)
Jan 30 2004Received 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 2004Received:
  copy of appellant's supplemental brief filed in U.S.S.C. (9 pp.)
Mar 17 2004Counsel's status report received (confidential)
 
May 24 2004Certiorari denied by U.S. Supreme Court
 
Jun 17 2004Related habeas corpus petition filed (post-judgment)
  No. S125670
Jun 17 2004Counsel's status report received (confidential)
 
Jun 21 2004Filed:
  Declaration of attorney Ronald S. Smith (confidential).
Jun 23 2004Compensation awarded counsel
  Atty Smith
Aug 26 2005Motion to withdraw as counsel filed
  by attorney Ronald S. Smith, to withdraw as direct appeal and habeas corpus counsel.
Aug 26 2005Motion for appointment of counsel filed
  by Federal Public Defender - LA.
Aug 26 2005Related habeas corpus petition filed (post-judgment)
  No. S136785
Sep 6 2005Filed:
  Amended application for appointment of the Federal Public Defender - LA as counsel of record.
Sep 6 2005Filed:
  Supplemental proof of service of motion to withdraw as counsel of record.
Sep 9 2005Filed:
  Supplement to amended application for appointment of Federal Public Defender as counsel of record.
Sep 21 2005Withdrawal 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 2000Appellant's opening brief filed
 
Oct 18 2000Respondent's brief filed
 
Oct 29 2001Appellant's Reply Brief filed. (81 pp.)
 
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