Supreme Court of California Justia
Docket No. S087243
People v. Brown

Filed 7/12/04


Plaintiff and Respondent,
Super. Ct. No. C44897
Defendant and Appellant.

A jury convicted defendant John George Brown, Jr., of first degree murder,
found true the special circumstance allegation of intentionally killing a peace
officer engaged in the performance of his duties, and returned a verdict of death.
On automatic appeal, this court affirmed the judgment in its entirety. (People
v. Brown (1988) 46 Cal.3d 432 (Brown I).) On petition for writ of habeas corpus,
however, we found Brady error (Brady v. Maryland (1963) 373 U.S. 83) in the
prosecution’s failure to disclose that the result of a radioactive immunoassay of a
blood sample taken from defendant shortly after the crimes was positive for
phencyclidine. (In re Brown (1998) 17 Cal.4th 873.)
On retrial, a jury again convicted defendant of first degree murder and
found true the special circumstance allegation. (See Pen. Code, § 190.2,

subd. (a)(7); all undesignated statutory references are to the Penal Code.)1 The
second jury also returned a death verdict. This appeal is automatic. (Cal. Const.,
art. VI, § 11; Pen. Code, § 1239.) We find no reversible error and affirm the
judgment in its entirety.
A. Guilt Phase Evidence
Since the prosecution’s case-in-chief on retrial substantially replicated the
evidence presented at the original trial, we draw in part on our factual statement in
Brown I.
“In June 1980 defendant was a wanted man; he had failed to appear for a
jury trial and another criminal hearing, and two bench warrants were issued for his
arrest. After telling his former live-in girlfriend he was not going back to jail and
did not want to die in prison, defendant bought a gun and changed his name to
Gordon Mink. [¶] Meanwhile the Garden Grove police were looking for him.”
(Brown I, supra, 46 Cal.3d at p. 440.)
About 11 o’clock on the evening of June 7, Officer Paul McInerny and his
partner, Reserve Officer Dwight Henninger, saw defendant’s car in the parking lot
of the Cripple Creek Bar. In response to their radio call for assistance, Officers
Donald Reed and Glenn Overly arrived a few minutes later. “After discussing [the
situation], all four officers—all in full uniform—entered the crowded bar through
two separate doors and worked their way to the center of the room. [¶]
Defendant, who was sitting in the corner with a group of other ‘. . . people,’ saw

In addition, the jury found defendant guilty of three counts of assault with
intent to commit murder (§ 217) and one count of assault on a peace officer
(§ 245, subd. (b)). It found true allegations that as to all crimes he personally used
a firearm (§ 12022.5) and that as to one of the assaults he inflicted great bodily
injury (§ 12022.7).

the officers enter; a nearby patron heard him say ‘the pigs are here,’ as he started
for the door. The officers recognized defendant and moved in his direction. At
the door, Officer Reed caught up with defendant and put his hand on defendant’s
shoulder. Before any of the officers could draw his weapon, defendant pulled a
gun and fired at least eight times. Two lethal shots hit Officer Reed; three shots
gravely wounded Officer Overly; Officer Henninger was seriously wounded; a
private citizen, Terezia, suffered permanent and grave injury after being shot
between the eyes; and another citizen, McKinney, was shot in the leg.
“Defendant fled and hid in some bushes outside the bar. About two hours
later, with numerous officers at the scene, he was found crouched in the dirt. As
he was brought out of the bushes an officer called out, ‘Where’s the gun?’
Defendant stated, ‘I threw it.’ His gun, hat and keys were thereafter found
nearby.” (Brown I, supra, 46 Cal.3d at pp. 440-441.)
At trial, “experts testified defendant’s fingerprints were found on internal
parts of the recovered weapon that could be reached only by disassembling the
handle of the gun, and that the weapon found was probably the murder weapon.”
(Brown I, supra, 46 Cal.3d at p. 441.) In addition, ammunition found in
defendant’s pockets was similar to the ammunition in the gun. At the time of his
arrest, defendant gave the police the name of Gordon Mink, the alias he had been
using for some time. According to those who processed him at the jail, he
appeared lucid, aware of surrounding events, and responsive to directions.
Nothing in his behavior indicated he might be under the influence of any drug.
The defense was diminished capacity. A preliminary drug screening test
was positive for phencyclidine (PCP), and an expert witness opined defendant had
PCP in his blood at the time of the killing. Based on defendant’s statement that he
had ingested lysergic acid (LSD), PCP, and methamphetamine prior to and on the
day of the shooting, a forensic psychiatric expert testified to a significant
possibility defendant’s mental state was impaired due to drug intoxication. The
defense also presented some evidence suggesting third party culpability.
In rebuttal, the prosecution submitted test results showing negative for all
drugs, including PCP and methamphetamine.
B. Penalty Phase Evidence

The prosecution offered evidence of two prior felony convictions in 1969,
one for breaking and entering and one for aggravated battery.
Evidence of four incidents involving force or violence was also presented.
Robert Paulk testified that in 1969, when he was on uniformed patrol duty as a
Vero Beach police officer, defendant attempted to run him down with a vehicle
when Paulk approached to discuss an expired registration tag. In 1978, defendant
assaulted Frank Veitenheimer with a heavy object outside a bar, shattering his eye
orbit and breaking his nose. Veitenheimer required several weeks of
hospitalization as well as surgery. In 1980, while incarcerated in county jail,
defendant forced another inmate, James Brummel, to commit an act of oral
copulation. In 1981, also while incarcerated in county jail, defendant stole a pair
of wire cutters from fellow inmate Kevin Burbridge, who possessed them because
his jaw had been wired closed to repair a break.
The defense offered testimony from two of defendant’s uncles concerning
difficulties in his youth, including physical and psychological abuse by his
alcoholic father. Based on a review of medical records, declarations by relatives,
and prison records, Dr. David Foster, a neuropsychiatrist, testified, among other
things, that defendant had brain damage and suffered from posttraumatic stress
disorder as well as bipolar disorder.

A. Guilt Phase Issues
1. Reasonable doubt instruction
At the time defendant committed his crimes in 1980 and at his first trial in
1982, the standard reasonable doubt instruction provided: “A defendant in a
criminal action is presumed to be innocent until the contrary is proved, and in the
case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled
to a verdict of not guilty. This presumption places upon the State the burden of
proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as
follows: It is not a mere possible doubt; because everything relating to human
affairs, and depending on moral evidence, is open to some possible or imaginary
doubt. It is that state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction, to a moral certainty, of the
truth of the charge.” (CALJIC No. 2.90 (4th ed. 1979); see Stats. 1927, ch. 604,
§ 1, p. 1039.) At his retrial, defendant requested the court give this same version.
Instead, the court instructed the jury according to the current version, which omits
reference to “moral evidence” and “moral certainty”: “A defendant in a criminal
action is presumed to be innocent until the contrary is proved, and in the case of a
reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a
verdict of not guilty. This presumption places upon the People the burden of
proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as
follows: It is not a mere possible doubt; because everything relating to human
affairs is open to some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all evidence, leaves the
minds of the jurors in that condition that they cannot say they feel an abiding
conviction of the truth of the charge.” (CALJIC No. 2.90 (7th ed. 2003); see
Pen. Code, § 1096.)
Characterizing the current version of CALJIC No. 2.90 as a “ ‘weaker’
definition of reasonable doubt,” defendant contends its use violated various
constitutional rights, in particular the proscription against ex post facto laws and
the correlative right to due process. At the outset, we question the premise of
defendant’s argument—that CALJIC instructions come within the purview of the
ex post facto clause. That provision prohibits any legislative act that criminalizes
conduct innocent when done, makes a crime greater than when done, increases or
changes the punishment, or alters the rules of evidence to permit conviction on
lesser or different evidence than when the crime was committed. (Carmell v.
Texas (2000) 529 U.S. 513, 522-525.) On its face the ex post facto clause operates
as a check only on the exercise of legislative power, but similar limitations apply
to judicial enlargement of a criminal act under principles of due process. (Bouie v.
Columbia (1964) 378 U.S. 347; see In re Baert (1988) 205 Cal.App.3d 514,
In contrast to legislative enactments or judicial decisions, the California
Jury Instructions, Criminal (CALJIC) does not have the force of law. (People
v. Alvarez (1996) 14 Cal.4th 155, 217; see People v. Runnion (1994) 30
Cal.App.4th 852, 858.) Rather, “[i]t may be described as a semiofficial form
book” containing “carefully drafted statements . . . generally accepted as accurate
and safe to use. Moreover, an active editorial committee keeps abreast of new
decisions and prepares changes and revisions for supplements of the work.”
(5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 627,
p. 893.) Thus, modification of a particular instruction only reflects judicial action
that may come within the purview of due process for retroactive application; it
does not constitute such judicial action itself.
The revision of CALJIC No. 2.90 illustrates this point. The CALJIC
committee modified the instruction in response to Victor v. Nebraska (1994) 511
U.S. 1 and People v. Freeman (1994) 8 Cal.4th 450. (See People v. Aguilar
(1997) 58 Cal.App.4th 1196, 1208.) In Victor v. Nebraska, the defendant
challenged the references to “moral evidence” and “moral certainty.” The high
court upheld the constitutionality of CALJIC No. 2.90 but did not condone
retention of these references because their common meaning had changed since
the instruction’s original formulation, “and it may continue to do so to the point
that it conflicts with the Winship [reasonable doubt] standard [(In re Winship
(1970) 397 U.S. 358)].” (Victor, at p. 16.) In People v. Freeman, this court as
well noted that in light of Victor v. Nebraska, “today it might be more perilous for
trial courts not to modify [CALJIC No. 2.90] in a narrow and specific manner
. . . .” (Freeman, at p. 504.) Appendix B to the 7th edition of CALJIC, containing
the history of the reasonable doubt instruction, cites both Victor v. Nebraska and
People v. Freeman as the genesis of the current version. (CALJIC, supra,
appen. B, pp. 519, 524.)
Since CALJIC instructions do not constitute legislative or decisional law
and thus cannot implicate ex post facto concerns or due process, defendant’s only
argument is that the revised CALJIC No. 2.90 is itself defective. The analysis in
Victor v. Nebraska, supra, 511 U.S. 1, rebuts this contention. As we explained in
People v. Freeman, supra, 8 Cal.4th at page 503, the high court “concluded that
although the questioned terms add nothing of value to the instruction, they do not
render it unconstitutional.” If the inclusion of “moral evidence” and “moral
certainty” adds nothing of value, then plainly their exclusion can take away
nothing of value. Moreover, the court expressly stated, “An instruction cast in
terms of an abiding conviction as to guilt, without reference to moral certainty,
correctly states the government’s burden of proof. [Citation.]” (Victor, at
pp. 14-15.) Defendant therefore has no basis for complaint.2 (See People
v. Aguilar, supra, 58 Cal.App.4th at pp. 1207-1209.)
2. CALJIC No. 17.41.1
Over defendant’s objection, the trial court instructed the jury pursuant to
CALJIC No. 17.41.1, which provides: “The integrity of a trial requires that jurors,
at all times during their deliberations, conduct themselves as required by these
instructions. Accordingly, should it occur that any juror refuses to deliberate or
expresses an intention to disregard the law or to decide that case based on penalty
or punishment, or any other improper basis, it is the obligation of the other jurors
to immediately advise the court of the situation.” Defendant contends the
instruction was erroneous because it undermined his right to a trial by jury, to due
process, and to a unanimous verdict. (U.S. Const., Amends. VI, XIV; Cal. Const.,
art. I, § 16; see People v. Gainer (1977) 19 Cal.3d 835, 848-849.)
People v. Engelman (2002) 28 Cal.4th 436, this court addressed the
propriety of giving CALJIC No. 17.41.1. We acknowledged that the instruction
“creates a risk to the proper functioning of jury deliberations and that it is
unnecessary and inadvisable to incur this risk” (Engelman, at p. 449), but
nevertheless found no constitutional infirmity with respect to either the right to
trial by jury or to a unanimous verdict. (Id. at pp. 439-440.) In particular, we

For these same reasons, we would reject defendant’s argument even if it
were premised on the Legislature’s deletion of “moral evidence” and “moral
certainty” from section 1096, on which the CALJIC committee in part relied in
revising CALJIC No. 2.90. (See Use Note to CALJIC No. 2.90 (7th ed. 2003)
p. 94.) In addition, trial courts are not mandated to instruct in the terms of section
1096. (See § 1096a; People v. Freeman, supra, 8 Cal.4th at pp. 503-504.)

rejected the analogy—also drawn by defendant here—to the “dynamite”
instruction disapproved in People v. Gainer, supra, 19 Cal.3d 835. “CALJIC
No. 17.41.1 does not share the flaws we identified in Gainer. The instruction is
not directed at a deadlocked jury and does not contain language suggesting that
jurors who find themselves in the minority, as deliberations progress, should join
the majority without reaching an independent judgment. The instruction does not
suggest that a doubt may be unreasonable if not shared by a majority of the jurors,
nor does it direct that the jury’s deliberations include such an extraneous factor.
CALJIC No. 17.41.1 simply does not carry the devastating coercive charge that
we concluded should make us ‘uncertain of the accuracy and integrity of the jury’s
stated conclusion’ and uncertain whether the instruction may have ‘ “operate[d] to
displace the independent judgment of the jury in favor of considerations of
compromise and expediency.” ’ [Citation.]” (Engelman, at pp. 444-445.)
Defendant makes no argument warranting reconsideration of our
conclusions. Nor does he cite anything in the record indicating the jurors in his
case were improperly influenced by the instruction in their deliberations. (See
People v. Ortiz (2003) 109 Cal.App.4th 104, 119, fn. 7.) Accordingly, we find no
B. Penalty Phase Issues
1. Victim impact evidence
a. Ex post facto
Prior to commencement of the penalty phase, defense counsel moved to
exclude victim impact evidence on the ground its admission would violate the
proscription against ex post facto laws because such evidence was not admissible
at the time defendant committed his crimes. (See People v. Boyd (1985) 38 Cal.3d
762, 775-776.) The trial court declined to do so, and defendant now argues the
ruling was constitutional error.
In California, the admissibility of victim impact evidence is governed by
judicial construction of the state’s death penalty law, not by statute. (See People
v. Edwards (1991) 54 Cal.3d 787, 833-834.) Accordingly, the due process clause
rather than the ex post facto clause controls our analysis. (See generally In re
Baert, supra, 205 Cal.App.3d at pp. 517-519.) Under either provision, however,
defendant’s argument fails.
Carmell v. Texas, supra, 529 U.S. at pages 543-544, the United States
Supreme Court reaffirmed a long-standing principle of ex post facto jurisprudence:
“ ‘Statutes which simply enlarge the class of persons who may be
competent to testify in criminal cases are not ex post facto in their application to
prosecutions for crimes committed prior to their passage; for they do not attach
criminality to any act previously done, and which was innocent when done; nor
aggravate any crime theretofore committed; nor provide a greater punishment
therefor than was prescribed at the time of its commission; nor do they alter the
degree, or lessen the amount or measure, of the proof which was made necessary
to conviction when the crime was committed.
“ ‘. . . [A]lterations which do not increase the punishment, nor change the
ingredients of the offence or the ultimate facts necessary to establish guilt, but—
leaving untouched the nature of the crime and the amount or degree of proof
essential to conviction—only remove existing restrictions upon the competency of
certain classes of persons as witnesses, relate to modes of procedure only, in
which no one can be said to have a vested right, and which the State, upon grounds
of public policy, may regulate at pleasure. Such regulations of the mode in which
the facts constituting guilt may be placed before the jury, can be made applicable
to prosecution or trials thereafter had, without reference to the date of the
commission of the offence charged.’ ” (Carmell v. Texas, supra, 529 U.S. at
pp. 543-544, quoting Hopt v. Territory of Utah (1884) 110 U.S. 574, 589-590.)
In the context of victim impact evidence, this principle has consistently
been held to permit admission even when the basis, usually statutory, post-dated
the defendant’s crimes. “ ‘[V]ictim impact evidence is simply another form or
method of informing the sentencing authority about the specific harm caused by
the crime in question, evidence of a general type long considered by sentencing
authorities.’ [Citation.]” (Neill v. Gibson (10th Cir. 2001) 278 F.3d 1044, 1052,
quoting Payne v. Tennessee (1991) 501 U.S. 808, 825.) “Further, the [court in
Thompson v. Missouri (1898) 171 U.S. 380] indicated it could not ‘perceive any
ground upon which to hold a statute to be ex post facto which does nothing more
than admit evidence of a particular kind in a criminal case upon an issue of fact
which was not admissible under the rules of evidence as enforced by judicial
decisions at the time the offence was committed . . . . The statute [at issue] did
nothing more than remove an obstacle . . . that withdrew from consideration of the
jury testimony which, in the opinion of the legislature, tended to elucidate the
ultimate, essential fact to be established . . . .’ ” (Neill, at p. 1052.) Simply put,
even in the context of victim impact evidence, “the fact that a statute works to a
defendant’s disadvantage does not constitute an ex post facto violation.
[Citation.]” (State v. Muhammad (N.J. 1996) 678 A.2d 164, 181; see Collins v.
Youngblood (1990) 497 U.S. 37, 50; Washington v. Murray (4th Cir. 1991) 952
F.2d 1472, 1480; Livingston v. State (Ga. 1994) 444 S.E.2d 748, 752; State v.
Clark (N.M. 1999) 990 P.2d 793, 809; Mitchell v. State (Okla. 1994) 884 P.2d
1186, 1204; see also Davis v. State (Ind. 1993) 598 N.E.2d 1041, 1051.)
Thus, even assuming decisional law imposed greater restriction on the
admissibility of victim impact evidence at the time of defendant’s crimes in
comparison to the time of trial, the application of current law had no constitutional
b. Evidence Code section 352 and Payne v. Tennessee
In addition to objecting to victim impact evidence on ex post facto grounds,
defendant argued the evidence should be excluded as more prejudicial than
probative under Evidence Code section 352, as well as outside the scope of Payne
v. Tennessee, supra, 501 U.S. 808, thus violating his right to due process and a
reliable penalty determination.
Payne v. Tennessee, the United States Supreme Court partially overruled
Booth v. Maryland (1987) 482 U.S. 496 and South Carolina v. Gathers (1989) 490
U.S. 805, which had categorically foreclosed both evidence and argument
regarding victim impact. Instead, the court held “that if the State chooses to
permit the admission of victim impact evidence and prosecutorial argument on
that subject, the Eighth Amendment erects no per se bar.” (Payne v. Tennessee,
supra, 501 U.S. at p. 827.) “[A] State may properly conclude that for the jury to
assess meaningfully the defendant’s moral culpability and blameworthiness, it
should have before it at the sentencing phase evidence of the specific harm caused
by the defendant. ‘[T]he State has a legitimate interest in counteracting the
mitigating evidence which the defendant is entitled to put in, by reminding the
sentencer that just as the murderer should be considered as an individual, so too
the victim is an individual whose death represents a unique loss to society and in
particular to his family.’ [Citation.]” (Id. at p. 825.)
People v. Edwards, supra, 54 Cal.3d 787, this court explained the effect
of this reversal on California death penalty law. Although victim impact is not
expressly enumerated as a statutory aggravating factor, we concluded such
evidence was generally admissible as a circumstance of the crime under
section 190.3, factor (a).3 (Edwards, at p. 833.) “The word ‘circumstances’ as
used in factor (a) of section 190.3 does not mean merely the immediate temporal
and spatial circumstances of the crime. Rather it extends to ‘[t]hat which
surrounds materially, morally, or logically’ the crime. [Citation.] The specific
harm caused by the defendant does surround the crime ‘materially, morally, or
logically.’ ” (Ibid.) “ ‘[A]t the penalty phase the jury decides a question the
resolution of which turns not only on the facts, but on the jury’s moral assessment
of those facts as they reflect on whether defendant should be put to death. It is not
only appropriate, but necessary, that the jury weigh the sympathetic elements of
defendant’s background against those that may offend the conscience.
[Citations.]’ ” (Id. at p. 834, quoting People v. Haskett (1982) 30 Cal.3d 841,
863-864.) In sum, “the injury inflicted is generally a circumstance of the crime as
that phrase is commonly understood. We need not divorce the injury from the
acts.” (Edwards, at p. 835.) This holding was not without limits, however, and
“only encompasses evidence that logically shows the harm caused by the
defendant.” (Ibid.; see also Payne v. Tennessee, supra, 501 U.S. at p. 825 [due
process prohibits the introduction of victim impact evidence “so unduly prejudicial
that it renders the trial fundamentally unfair”].)
With these guiding considerations in mind, we turn to the specific evidence
at issue, keeping in mind that at the penalty phase defendant offered section 190.3,
factor (k) testimony describing an abusive and troubled childhood, in addition to a

It is not entirely clear from the record that defendant specifically objected
to the victim impact evidence as not within the scope of factor (a) and the rationale
of Edwards; however, respondent does not argue waiver. In light of our
disposition on the merits, we need not definitely resolve this procedural point.

psychiatrist’s opinion he suffered from posttraumatic stress disorder and other
mental disorders, and guilt phase evidence he acted under the influence of drugs.
The prosecution’s evidence generally fell into two categories: testimony by
the surviving assault victims, John Terezia, Officer Henninger, and Officer Overly
and testimony from Officer Reed’s family members. With regard to the assault
victims’ own injuries, we have held such evidence admissible under section 190.3,
factor (b). (People v. Taylor (2001) 26 Cal.4th 1155, 1172; see People v. Benson
(1990) 52 Cal.3d 754, 795-797.) “If victim impact evidence is permitted under
factor (b), it should certainly be permitted under factor (a).” (People v. Edwards,
supra, 54 Cal.3d at p. 835.) Defendant objects, however, that because the retrial
occurred 20 years after the crimes, the additional testimony as to how the
witnesses were coping with what happened the night of the murder and were still
suffering from their injuries was irrelevant and highly prejudicial. Defendant cites
no authority or rationale for temporally circumscribing the scope of victim impact
evidence as he proposes. (See id. at p. 833.) Indeed, it is only logical that the
effects, both psychological and physical, of a violent and murderous assault such
as defendant’s would be enduring. As a direct result of defendant’s crimes, such
effects are plainly relevant (People v. Mitcham (1992) 1 Cal.4th 1027,
1062-1063); and we find nothing in the particular testimony unduly inflammatory
or otherwise prejudicial. (Ibid.; see People v. Brown (2003) 31 Cal.4th 518, 573;
see also People v. Marks (2003) 31 Cal.4th 197, 235-236.) Moreover, Henninger
testified that the incident had had a positive effect on his day-to-day living and that
he had “moved forward with what was important to me and to the community and
to my family.” Overly similarly felt that “it had actually helped me to become a
better police officer because I realize through the activity that night things that I
needed to do that . . . enhanced my abilities to be a better police officer.” Also in a
positive vein, Terezia, who had been shot between the eyes and required several
years of rehabilitation to relearn basic functions, had been assisted in the process
by his wife, who would not let him feel sorry for himself. Defendant contends
testimony by Terezia’s wife was irrelevant because she herself had not been a
crime victim. While not a direct victim of the assault, she was a witness to the
impact on Terezia; and her testimony was limited to giving additional details about
his rehabilitation.
With regard to testimony by Reed’s surviving family members, we find
nothing in their testimony that went beyond the scope of admissible victim impact
testimony under People v. Edwards, supra, 54 Cal.3d 787. For the most part, their
testimony concerned either the immediate effects of the murder—such as Linda
Reed’s description of the circumstances the night of the killing when she was
informed of the death of her husband and Randell Novell’s recounting the next
day seeing newspaper headlines of the incident—or the residual and lasting impact
they continued to experience—such as Novell’s feelings when passing his
brother’s grave. (See People v. Pollock (2004) 32 Cal.4th 1153, 1182; People
v. Boyette (2002) 29 Cal.4th 381, 444-445.) To the extent they also recollected
past incidents or activities they shared with Reed, their testimony simply served to
explain why they continued to be affected by his loss and to show the “victim’s
‘uniqueness as an individual human being,’ whatever the jury might think the loss
to the community resulting from his death might be.” (Payne v. Tennessee, supra,
501 U.S. at p. 823.) In this regard, the United States Supreme Court in Payne
acknowledged that just as the defendant is entitled to be humanized, so too is the
victim: “ ‘[J]ustice, though due to the accused, is due to the accuser also. The
concept of fairness must not be strained till it is narrowed to a filament. We are to
keep the balance true.’ ” (Id. at p. 827, quoting Snyder v. Massachusetts (1934)
291 U.S. 97, 122 (maj. opn. of Cardozo, J.); see also Pollock, at p. 1182.)

Defendant contends Novell’s testimony about his custom of saluting his
brother’s grave every time he drives past the cemetery and Reed’s father’s
testimony he has not gone fishing since his son’s death constituted inadmissible
evidence. We consider these simply manifestations of the psychological impact
experienced by the victims, in no way inconsistent with our prior decisions nor
“fundamentally unfair” within the meaning of Payne v. Tennessee, supra, 501 U.S.
at page 825. Each in its own respect, these responses are understandable human
reactions, particularly Novell’s given the circumstances of the crime—a police
officer deliberately killed in the line of duty. Defendant further argues that the
Reed family members were not direct witnesses to the crime and for that reason
should not have been permitted to testify. We find no authority for such a rule,
which would eliminate the vast majority of victim impact evidence in murder
cases—a result inconsistent with the underlying rationale of Payne v. Tennessee,
supra, 501 U.S. 808, 819, that “the assessment of harm caused by the defendant as
a result of the crime charged has understandably been an important concern of the
criminal law . . . .” In the case of murder, the “harm caused” will first and
foremost be suffered by surviving family members.
2. Prosecutorial misconduct
the prosecutor committed misconduct in making
certain arguments in favor of the death penalty. He failed to object to any portion
of the argument or seek a curative admonition and therefore has waived the issue
on appeal. (People v. Ashmus (1991) 54 Cal.3d 932, 989.) Even disregarding this
procedural default, we find no error.
The prosecutor told the jury: “What I am saying is this: If you kill a police
officer, a good police officer in the performance of his duties, his duties to keep us
safe – you folks parked in the jury parking lot. People are out there walking
around, the whole county right now, if you stop – let me just take a little liberty
with you. Let’s stop right now. Everybody that is moving everywhere in Orange
County and, then we say (snaps fingers), you can move now, their freedom is
dependent upon police officers. Because if you don’t have a policeman out there,
or at least a criminal that has no rights – no feeling about the rights of anyone, if
you don’t have a policeman to deter that guy, we don’t have freedom, if you think
about it. And that is what Don Reed stood for. He stood for our freedom. He was
there basically enforcing the laws that allowed us – that allows us to move about
In addition, the prosecutor quoted Randell Novell’s testimony regarding an
incident in which Novell “was driving home from work one day, and I saw a guy
on a Harley Davidson motorcycle with long hair and tattoos. And I pulled up next
to the guy, and I was within a hair of just turning left into him. And I thought, “ ‘I
can’t do it. I have children. I have a wife. I can’t do it.’ ” But that [is the] kind
of uncontrollable anger that you have to control. [¶] I never had those thoughts
since or ever before that, but it was very difficult, very difficult time. And that
kind of anger dispels itself and it becomes a great cloud of sadness. It is not there
every day, but it is for me. It is there more days than others because I drive by
Donny’s grave probably two or three times a week. And I always salute his grave
when I drive by because I have a great deal of respect for what he did . . . .” He
also recalled testimony about Novell’s feelings for his brother: “ ‘Well, he gave
his life, for the people of Garden Grove. [Defendant] chose to use the death
penalty on my brother and penalize him for trying to protect the citizens and killed
him. For that I salute him. I salute my brother’s bravery.’ ” The prosecutor then
followed with his own words: “It says it all. Don Reed that day put on that
uniform to protect us and to enforce the law. It is now your turn. The . . . law is
[CALJIC No.] 8.85 and the law is loading that balance beam objectively. [¶] And
quite frankly, Don Reed did it for us, and I salute Don Reed. You can salute Don
Reed by applying the law.”
We find nothing objectionable in these remarks. “ ‘[A] prosecutor is given
wide latitude during argument. The argument may be vigorous as long as it
amounts to fair comment on the evidence, which can include reasonable
inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that
counsel during summation may state matters not in evidence, but which are
common knowledge or are illustrations drawn from common experience, history
or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not
limited to ‘Chesterfieldian politeness’ ” [citation] . . . .’ ” (People v. Wharton
(1991) 53 Cal.3d 522, 567-568.) The arguments here did not exceed these bounds.
Since, as previously discussed, the victim impact evidence was admissible, the
prosecutor could recall that evidence and urge the jurors to rely on it in voting to
impose the death penalty. (See Payne v. Tennessee, supra, 501 U.S. at p. 827; see
also People v. Sanders (1995) 11 Cal.4th 475, 548-549; People v. Kirkpatrick
(1994) 7 Cal.4th 988, 1017; People v. Fierro (1991) 1 Cal.4th 173, 235.) In doing
so, he asked them to “salute Don Reed” not on the basis of inflammatory rhetoric
or emotion but “by applying the law [set forth in CALJIC No. 8.85 enumerating
the applicable statutory aggravating and mitigating circumstances].” In reminding
the jurors that we all depend on not only the presence but the commitment of law
enforcement officers to help ensure safe and peaceable communities, he did no
more than draw from common experience.
3. CALJIC No. 17.41.1
At the penalty phase, the court instructed the jury that it should “be guided
by the previous instructions given in the guilt phase of this trial which are
applicable and pertinent to the determination of penalty.” Defendant contends the
inclusion of CALJIC No. 17.41.1 (see ante, at p. 8) infringed upon his
constitutional rights because “[a] juror who was disinclined to impose the death
penalty would have felt pressure, due to this erroneous instruction, to go along
with the majority in ‘saluting’ Don Reed by voting for death or risk being reported
to the court for failing to follow the law.”
As previously discussed (see ante, at pp. 8-9), CALJIC No. 17.41.1 is not
constitutionally defective. (People v. Engelman, supra, 28 Cal.4th 436.)
Defendant offers no basis for reconsidering this conclusion in the context of
penalty deliberations. Moreover, “the sentencing function is inherently moral and
normative, not factual.” (People v. Rodriguez (1986) 42 Cal.3d 730, 779.) As in
this case, jurors are instructed to weigh the aggravating and mitigating
circumstances and in doing so to “assign whatever moral or sympathetic value you
deem appropriate to each and all of the various factors you are permitted to
consider. . . . To return a judgment of death, each of you must be persuaded that
the aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.” (CALJIC
No. 8.88 (7th ed. 2003).) These instructions plainly inform the jurors of the nature
of their task and the basis on which they are to determine the appropriate penalty.
(Cf. Engelman, at p. 444.) Defendant’s speculation that the court’s oblique
reference to CALJIC No. 17.41.1 interfered with this process is just that,
speculation. We find no error.
4. Constitutionality of California’s death penalty statute
Defendant raises a number of constitutional challenges to California’s death
penalty statute, claims we have consistently rejected and find no persuasive reason
to reexamine.
Accordingly, we continue to hold:

(1) The death penalty law adequately narrows the class of death-eligible
offenders. (People v. Prieto (2003) 30 Cal.4th 226, 276.)
(2) Consideration of the circumstances of the crime under section 190.3,
factor (a) does not result in arbitrary or capricious imposition of the death penalty.
(People v. Prieto, supra, 30 Cal.4th at p. 276; see Tuilaepa v. California (1994)
512 U.S. 967, 987-988.) Defendant’s argument that a seemingly inconsistent
range of circumstances can be culled from death penalty decisions proves too
much. What this reflects is that each case is judged on its facts, each defendant on
the particulars of his offense. Contrary to defendant’s position, a statutory scheme
would violate constitutional limits if it did not allow such individualized
assessment of the crimes but instead mandated death in specified circumstances.
(See generally Lockett v. Ohio (1978) 438 U.S. 586, 602-606.)
(3) The death penalty law is not unconstitutional for failing to impose a
burden of proof—whether beyond a reasonable doubt or by a preponderance of the
evidence—as to the existence of aggravating circumstances, the greater weight of
aggravating circumstances over mitigating circumstances, or the appropriateness
of a death sentence. (People v. Jenkins (2000) 22 Cal.4th 900, 1054.) Unlike the
statutory schemes in other states cited by defendant, in California “ ‘the sentencing
function is inherently moral and normative, not factual’ [citation] and, hence, not
susceptible to a burden-of-proof quantification.” (People v. Hawthorne (1992) 4
Cal.4th 43, 79; see also People v. Prieto, supra, 30 Cal.4th at pp. 262-263.)
(4) The jury is not constitutionally required to achieve unanimity as to
aggravating circumstances. (People v. Jenkins, supra, 22 Cal.4th at p. 1053.)
Recent United States Supreme Court decisions in Apprendi v. New Jersey
(2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584 have not altered our
conclusions regarding burden of proof or jury unanimity. (See People v. Prieto,
supra, 30 Cal.4th at p. 275.)

(5) The absence of a requirement the jury make written findings does not
render the law unconstitutional. (People v. Jenkins, supra, 22 Cal.4th at p. 1053.)
(6) Nor is it defective in failing to require intercase proportionality review.
(People v. Prieto, supra, 30 Cal.4th at p. 276.)
(7) The jury may properly consider evidence of unadjudicated criminal
activity involving force or violence under factor (b) of section 190.3 and need not
make a unanimous finding on factor (b) evidence. (People v. Anderson (2001) 25
Cal.4th 543, 584; see People v. Prieto, supra, 30 Cal.4th at p. 263.) Contrary to
defendant’s implication, “the court must instruct, on its own motion, that no juror
may consider any alleged other violent crime in aggravation of penalty unless
satisfied beyond a reasonable doubt that the defendant committed it [citations].”
(Anderson, at p. 584.)
(8) “[T]he use of certain adjectives—i.e., ‘ “extreme” ’ and
“ ‘substantial’ ”—in the list of mitigating factors does not render the statute
unconstitutional [citation].” (People v. Prieto, supra, 30 Cal.4th at p. 276.)
(9) The trial court is not required to instruct that certain statutory factors
can only be considered in mitigation. (Tuilaepa v. California, supra, 512 U.S. at
p. 979.) Since there is no requirement that the court identify which factors are
aggravating and which are mitigating (see, e.g., People v. Catlin (2001) 26 Cal.4th
81, 178), neither must it restrict the jurors’ consideration of the evidence in this
regard. (See People v. Zapien (1993) 4 Cal.4th 929, 990.)
(10) Death penalty defendants are not denied equal protection because the
statutory scheme does not contain disparate sentence review. (People v. Jenkins,
supra, 22 Cal.4th at p. 1053; People v. Allen (1986) 42 Cal.3d 1222, 1286-1288.)
(11) Nor is the law constitutionally deficient because the prosecutor retains
discretion whether or not to seek the death penalty. (People v. Ochoa (2001) 26
Cal.4th 398, 462.)

(12) The prosecution’s use of peremptory challenges to remove
prospective jurors who express scruples about imposing the death penalty does not
violate any constitutional guarantee. (People v. Cox (1991) 53 Cal.3d 618,
648-649.) Nor does the fact that we generally leave to the judgment of the trial
court the determination whether a prospective juror’s attitude toward imposing the
death penalty will support an excusal for cause. (See Wainwright v. Witt (1985)
469 U.S. 412, 424-429.)
(13) The fact that trial judges are elected does not undermine their fairness
or impartiality when ruling on penalty modification applications pursuant to
section 190.4, subdivision (e). (See Evid. Code, § 664; People v. Coddington
(2000) 23 Cal.4th 529, 644-645; People v. Visciotti (1992) 2 Cal.4th 1, 49; see
also DePew v. Anderson (6th Cir. 2002) 311 F.3d 742, 752-753; Stretton v.
Disciplinary Bd. of Supreme Court of Pennsylvania (3d Cir. 1991) 944 F.2d 137,
(14) The use of victim impact evidence is constitutionally permissible.
(Payne v. Tennessee, supra, 501 U.S. at p. 822.)
5. Alleged violation of international law
Defendant further argues that California’s death penalty statute is
unconstitutional because the use of the death penalty as a regular form of
punishment falls short of international norms of humanity and decency. In a
related vein, he contends that the statute violates international law as set forth in
the International Covenant on Civil and Political Rights (ICCPR) and that use of
the death penalty violates international standards because only a small minority of
countries consider death an appropriate form of punishment.
Setting aside whether defendant has standing to invoke the terms of an
international treaty in this circumstance (see, e.g., Hanoch Tel-Oren v. Libyan
Arab Republic (D.D.C. 1981) 517 F.Supp. 542, 545-547), we question whether
defendant’s argument regarding the ICCPR fails at its premise. Although the
United States is a signatory, it signed the treaty on the express condition “[t]hat the
United States reserves the right, subject to its Constitutional constraints, to impose
capital punishment on any person (other than a pregnant woman) duly convicted
under existing or future laws permitting the imposition of capital punishment,
including such punishment for crimes committed by persons below eighteen years
of age.” (138 Cong. Rec. S4781-01 (Apr. 2, 1992); see Comment, The Abolition
of the Death Penalty: Does “Abolition” Really Mean What You Think it Means?
(1999) 6 Ind. J. Global Legal Studies 721, 726 & fn. 33.) Given states’
sovereignty in such matters within constitutional limitations, our federal system of
government effectively compelled such a reservation.
In any event, we have previously considered and rejected the various
permutations of defendant’s arguments. (See People v. Hillhouse (2002) 27
Cal.4th 469, 511; People v. Jenkins, supra, 22 Cal.4th at p. 1055; see also People
v. Ghent (1987) 43 Cal.3d 739, 778-779 (maj. opn. of Lucas, C.J.); id. at
pp. 780-781 (conc. opn. of Mosk, J.).) As succinctly stated in People v. Hillhouse,
at page 511: “International law does not prohibit a sentence of death rendered in
accordance with state and federal constitutional and statutory requirements.
[Citations.]” Since we find no other defect in imposing the death penalty against
defendant, we decline to find the law defective based on any provision of
international law.
6. Delay in carrying out execution
Defendant contends the delay in his execution—he has spent almost two
decades on death row—constitutes a denial of due process and cruel and unusual
punishment under the federal and state Constitutions. (See, e.g., Lackey v. Texas
(1995) 514 U.S. 1045 (mem. opn. of Stevens, J., on denial of cert.).) This delay
has been attributable not only to the normal postconviction review process but also
the fact that defendant obtained a new trial when this court granted relief on
habeas corpus. As explained in People v. Anderson, supra, 25 Cal.4th at page
606: “we have consistently concluded, both before and since Lackey, that delay
inherent in the automatic appeal process is not a basis for concluding that either
the death penalty itself, or the process leading to its execution, is cruel and unusual
punishment. [Citations.]” Defendant presents no reason for reexamining this
determination, particularly under circumstances in which he has benefited from
that process in the form of a new trial. As previously discussed, any reliance on
international law or extraterritorial decisional law has no bearing on the validity of
a death sentence that satisfies federal and state constitutional mandates. (See ante,
at pp. 22-23.)
7. Cumulative error
Since we find no error, we reject defendant’s argument that any cumulative
effect warrants reversal.
C. Sentencing Issues
1. Conduct credits
With respect to the sentence on his noncapital offenses, defendant was
awarded credit for 7,237 actual days in custody. The defense requested the trial
court award an additional 3,618 days of conduct credit (see § 4019) on the theory
that because the prior judgment had been reversed, the court should consider the
proceeding as an initial sentencing and treat defendant as if he had not been
previously convicted and sentenced. The court declined and reserved the
calculation of conduct credits for the Department of Corrections.

We recently rejected the argument that a defendant is entitled to additional
days of credit in these circumstances in In re Martinez (2003) 30 Cal.4th 29. (See
People v. Buckhalter (2001) 26 Cal.4th 20, 40, fn. 10.) There, the court concluded
that for a defendant whose conviction is reversed on appeal, “prereversal prison
time ought not be viewed as presentence custody, and . . . credit accrual should be
calculated in accordance with [the defendant’s] ultimate postsentence status.”
(Martinez, at p. 31.) Even though reversal sets the entire matter at large
(cf. § 1180), the statutory scheme awards conduct credits based on the defendant’s
custodial status. Section 4019, subdivision (a)(4) authorizes credits only for
confinement “in a county jail . . . following arrest and prior to the imposition of
sentence for a felony conviction,” not for postsentence confinement in state prison.
“[T]he pre- and postsentence credit systems serve disparate goals and target
persons who are not similarly situated. The presentence credit scheme, section
4019, focuses primarily on encouraging minimal cooperation and good behavior
by persons temporarily detained in local custody before they are convicted,
sentenced, and committed on felony charges. By contrast, the worktime credit
scheme for persons serving prison terms emphasizes penological considerations,
including the extent to which certain classes of prisoners, but not others, deserve
or might benefit from incentives to shorten their terms through participation in
rehabilitative work, education, and training programs . . . .” (Buckhalter, at p. 36;
see Martinez, at p. 36.)
Accordingly, the trial court did not err in rejecting defendant’s calculation
of his custody credits.
The judgment is affirmed.


Assigned by the Acting Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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

Name of Opinion People v. Brown

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.

Date Filed: July 12, 2004


County: Orange
Judge: John J. Ryan


Attorneys for Appellant:

Marilee Marshall, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, William W. Wood and Robert M. Foster, Deputy Attorneys General, for
Plaintiff and Respondent.


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

Marilee Marshall
Marilee Marshall & Associates
48 North El Molino Avenue, Suite 202
Pasadena, CA 91101
(626) 564-1136

Robert M. Foster
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2284

Opinion Information
Date:Docket Number:
Mon, 07/12/2004S087243

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

2Brown, John George (Appellant)
San Quentin State Prison
Represented by Marilee Marshall
Marilee Marshall & Associates
523 West Sixth Street, Suite 1109
Los Angeles, CA

Jul 12 2004Opinion: Affirmed

Mar 31 2000Judgment of death
Apr 4 2000Filed certified copy of Judgment of Death Rendered
Apr 4 2000Penal Code sections 190.6 et seq. apply to this case
May 2 2000Filed:
  Application for appointment of Counsel (Ifp Form)
Jun 9 2000Record certified for completeness
Mar 12 2001Filed:
  Request by counsel for dual representation appointment.
Mar 12 2001Filed:
  Request by inmate for dual representation.
Apr 11 2001Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Marilee Marshall is hereby appointed to represent appellant John George Brown for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court.
Apr 11 2001Compensation awarded counsel
  Atty Marshall
Apr 20 2001Date trial court delivered record to appellant's counsel
  5,948 pp. record
May 9 2001Note:
  Orange County Superior Court appeals clerk telephonically advised us that the clerk's transcript is 2,660 pp. and the reporter's transcript is 3,288 pp. (Written confirmation will follow.)
May 9 2001Appellant's opening brief letter sent, due:
  11-21-2001 (pursuant to Calif. Rules of Court, rule 39.57(b).
Jun 18 2001Counsel's status report received (confidential)
Jul 2 2001Received:
  copy of applt's request to correct and augment the record on appeal. (6 pp.)
Jul 12 2001Received:
  copy of supplemental declaration of service of applt.'s request to correct and augment the record.
Jul 20 2001Compensation awarded counsel
  Atty Marshall
Aug 27 2001Counsel's status report received (confidential)
Oct 29 2001Counsel's status report received (confidential)
Nov 26 2001Request for extension of time filed
  To file AOB. (1st request)
Dec 4 2001Filed:
  Suppl. declaration in support of application for extension of time to file AOB.
Dec 7 2001Extension of time granted
  To 1/22/2002 to file AOB.
Jan 2 2002Counsel's status report received (confidential)
Jan 10 2002Record certified for accuracy
Jan 22 2002Request for extension of time filed
  To file AOB. (2nd request)
Jan 24 2002Extension of time granted
  To 2/21/2002 to file AOB.
Feb 21 2002Request for extension of time filed
  To file AOB. (3rd request)
Feb 22 2002Extension of time granted
  To 3/25/2002 to file AOB.
Mar 21 2002Counsel's status report received (confidential)
Mar 21 2002Record on appeal filed
  C-9 (2911 pp.) and R-13 (2942 pp.) including material under seal. Seventeen ASCII disks plus an additional thirty-six under seal. Clerk's transcript includes 1754 pp. of juror questionnaires.
Mar 25 2002Request for extension of time filed
  To file AOB. (4th request)
Mar 27 2002Extension of time granted
  To 4/25/2002 to file AOB.
Apr 4 2002Compensation awarded counsel
  Atty Marshall
Apr 26 2002Request for extension of time filed
  To file AOB. (5th request)
Apr 30 2002Extension of time granted
  To 5/28/2002 to file AOB.
May 28 2002Counsel's status report received (confidential)
  from atty Marshall.
May 28 2002Request for extension of time filed
  To file A0B. (6th request)
May 30 2002Extension of time granted
  To 6/26/2002 to file AOB. Counsel anticipates filing that brief by 6/26/2002. No further extension is contemplated.
Jun 26 2002Request for extension of time filed
  To file AOB. (7th request)
Jul 1 2002Extension of time granted
  To 7/26/2002 to file AOB. Counsel anticipates filing that brief by 7/26/2002. No further extension will be granted.
Jul 22 2002Appellant's opening brief filed
  (210 pp.)
Jul 22 2002Respondent's brief letter sent; due:
  11-19-2002. (Calif. Rules of Court, rule 39.57(c))
Jul 29 2002Counsel's status report received (confidential)
  from atty Marshall.
Aug 5 2002Filed:
  Declaration of atty. Marshall pursuant to Penal Code Section 1241 (confidential).
Aug 7 2002Compensation awarded counsel
  Atty Marshall
Nov 12 2002Counsel's status report received (confidential)
Nov 14 2002Respondent's brief filed
  (58 pp.)
Jan 13 2003Counsel's status report received (confidential)
Jan 13 2003Request for extension of time filed
  to file appellant's reply brief. (1st request)
Jan 14 2003Extension of time granted
  To 3/14/2003 to file appellant's reply brief.
Mar 14 2003Counsel's status report received (confidential)
Mar 14 2003Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Mar 18 2003Extension of time granted
  to 5/14/2003 to file appellant's reply brief. Extension is granted based upon counsel Marilee Marshall's representation that she anticipates filing that brief by 5/14/2003. After that date, no further extension is contemplated.
May 14 2003Appellant's reply brief filed
  (30 pp.)
May 16 2003Filed:
  Corrected declaration of service by mail of appellant's reply brief.
Jun 6 2003Counsel's status report received (confidential)
Jun 18 2003Compensation awarded counsel
  Atty Marshall
Aug 6 2003Counsel's status report received (confidential)
Aug 19 2003Compensation awarded counsel
  Atty Marshall
Nov 4 2003Related habeas corpus petition filed (concurrent)
  No. S120253
Nov 10 2003Compensation awarded counsel
  Atty Marshall
Apr 5 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 24, 2004, in San Francisco, or for the June calendar, to be held the week of June 1 in Los Angeles. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument.
Apr 9 2004Received:
  letter from atty Marilee Marshall, dated 4-8-2004, advising the court of her prepaid vacation, and requesting that oral argument be set for the week of May 24, as opposed to the week of June 1, 2004.
Apr 28 2004Case ordered on calendar
  Tuesday May 25, 2004 at 1:30 PM (San Francisco Session).
Apr 29 2004Change of contact information filed for:
  Marilee Marshall counsel for appellant.
May 12 2004Filed letter from:
  Appellant's counsel Marilee Marshall, dated 5/8/2004, re focus issues for oral argument.
May 12 2004Filed letter from:
  Respondent's counsel, dated 5/11/2004, re focus issues for oral argument.
May 18 2004Received:
  Letter from respondent's counsel, dated 5/17/2004, re additional authority for oral argument.
May 25 2004Cause argued and submitted
  George, C.J., recused; Stein (1/1), assigned justice pro tem
Jun 7 2004Compensation awarded counsel
  Atty Marshall
Jul 12 2004Opinion filed: Judgment affirmed in full
  Majority Opinion by Brown, J. -- Joined by Kennard, Acting C.J., Baxter, Werdegar, Chin, Moreno, JJ and Stein, J.* [*Assigned by the Acting Chief Justice pursuant to article VI, section 6 of the California Constitution.]
Jul 28 2004Rehearing petition filed
  by appellant. (1694 words - 9 pp.)
Jul 28 2004Compensation awarded counsel
  Atty Marshall
Jul 30 2004Time extended to consider modification or rehearing
  to 10-8-2004, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 1 2004Rehearing denied
  Petition for rehearing denied. George, C.J., was recused and did not participate.
Sep 1 2004Remittitur issued (AA)
Sep 13 2004Received:
  Acknowledgment of receipt of remittitur.
Nov 1 2004Received:
  Copy of appellant's cert petition. (26 pp. - excluding appendix)
Nov 8 2004Received:
  Letter from U.S.S.C., dated 1/11/2004, advising cert petiton filed 10/28/2004 as No. 04-7054.
Jan 3 2005Received:
  Copy of respondent's brief in opposition to cert petition. (19 pp.)
Feb 22 2005Certiorari denied by U.S. Supreme Court

Jul 22 2002Appellant's opening brief filed
Nov 14 2002Respondent's brief filed
May 14 2003Appellant's reply brief filed
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website