Filed 7/30/09
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S042323
v.
SHAUN KAREEM BURNEY,
Orange County
Defendant and Appellant.
Super. Ct. No. C-94692
A jury convicted defendant Shaun Kareem Burney of second degree
robbery (Pen. Code, §§ 211, 212.5, 213, subd. (a)(2)),1 kidnapping (§ 207, subd.
(a)), kidnapping for purposes of robbery (§ 209, subd. (b)), and the first degree
murder of Joseph Kondrath (§ 187). Allegations of robbery-murder and
kidnapping-murder special circumstances (§ 190.2, subd. (a)(17)(A), (a)(17)(B))
were found true, and defendant was found to have personally used a deadly
weapon (a firearm) in the commission of the murder. (§ 12022.5.) Following the
penalty phase of the trial, a jury returned a verdict of death against defendant. The
trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e))
and imposed a sentence of death. Defendant‟s appeal is automatic. (§ 1239, subd.
(b).) We affirm the judgment in its entirety.
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
I.
PROCEDURAL HISTORY
In late July 1992, the Orange County grand jury returned an indictment
against defendant and two codefendants, charging them each with second degree
robbery (count I), kidnapping (count II), kidnapping for purposes of robbery
(count III), and first degree murder (count IV). The indictment alleged against all
three defendants the special circumstances of murder in the commission of a
robbery and murder in the commission of a kidnapping. As to defendant, the
indictment alleged as to all counts the personal use of a firearm, but shortly after
the commencement of the guilt phase of the trial, the trial court granted the
prosecution‟s motion to dismiss the firearm-use allegations against defendant in
counts I, II, and III. As to the two codefendants, the indictment alleged they were
vicariously armed with a firearm.
The three defendants were tried jointly in a jury trial that began in April
1994. The death penalty was sought only against defendant. The jury found him
guilty of the four counts charged against him, found that the murder was of the
first degree, found the two special circumstance allegations true, and found true
the allegation that defendant personally used a firearm in the commission of the
murder.2 At the penalty phase of defendant‟s trial, the jury determined that
defendant‟s punishment should be death.
2
The jury found codefendant Allen Dean Burnett II (Burnett) guilty of the
four counts charged against him, found that the murder was of the first degree,
found the two special circumstance allegations true, and found true the allegation
that Burnett was armed with a firearm in the commission of the murder. The jury
was unable to reach a verdict on the robbery and murder counts and the special
circumstances as to codefendant Scott Boxer Rembert (Rembert), and the court
declared a mistrial as to those counts. The jury found Rembert guilty of the
kidnapping and kidnapping for robbery charges. The record does not reveal the
(footnote continued on next page)
2
II.
FACTS
A. Introduction
In the early morning hours of June 10, 1992, defendant and his two
codefendants, Burnett and Rembert, left their apartment intending to find and
assault Ron Hussar, and to steal Hussar‟s car stereo. When Hussar could not be
found, the three men decided to steal an automobile and then drive to an area
where members of a rival gang resided, so they could shoot at them. The three
men observed the victim, Joseph Kondrath, entering his automobile in a carport
adjacent to Kondrath‟s apartment building. At gunpoint, they forced Kondrath out
of the vehicle, robbed him of his wallet, and forced him into the trunk of his
automobile.
The three men drove to the residence of Jeffrey Howard, from whom they
borrowed a shotgun. They drove to an area where rival gang members resided, but
did not observe any gang members. The group then drove to, and fired gunshots
into, an apartment belonging to Cynthia Melson, Burnett‟s former girlfriend, and
thereafter returned the shotgun to Howard.
The three men discussed the need to kill Kondrath because he had seen
their faces and could identify them. They drove to Crescent Avenue in Anaheim
and stopped the automobile. Defendant opened the trunk of the vehicle and fired
one shot, which fatally struck Kondrath in the head. The men then fled the scene.
(footnote continued from previous page)
outcome of Rembert‟s retrial, but the Attorney General states in his briefing that
“[u]pon a third jury trial, Rembert was convicted of first degree murder with true
findings of special circumstances.” Both Burnett and Rembert ultimately were
sentenced to life in prison without the possibility of parole.
3
The next day, defendant informed Jeannette Roper, Rembert‟s girlfriend, that he
had shot the victim. During a videotaped police interrogation several days later,
defendant confessed that he had kidnapped and murdered Kondrath. Both
Rembert and Burnett gave statements to the police, confirming that the three men
discussed killing the victim because he had seen their faces, and that defendant
shot Kondrath while the victim lay in the trunk.
B. Guilt Phase Evidence
1. The prosecution
Defendant was arrested on June 16, 1992, subsequently waiving his rights
under Miranda v. Arizona (1966) 385 U.S. 436, and consenting to an audiotaped
and videotaped interview with Detective Georgia Erickson and Detective Paul
Gallagher. A transcript of the interview was read to the jury. The interview was
redacted to eliminate references to the codefendants by name, replacing each
occurrence of the codefendants‟ names with the word “other” or “others.”3
During the course of the interview with Detectives Erickson and Gallagher,
defendant offered numerous and sometimes contradictory versions of the events
that took place on the night of Kondrath‟s murder. Defendant initially stated he
had no information regarding a murder beyond knowing that a body had been
found near the residence of his friend David Wilson, but defendant did not dispute
the statement of one of the detectives that defendant had been “going around town
telling people that [he] did it.” Defendant stated that on the night of Kondrath‟s
3
Transcripts of police interviews with both of defendant‟s codefendants also
were read to the jury. The statements are described in detail in connection with
defendant‟s claim that the trial court erred in failing to sever his trial from that of
his codefendants. The court instructed the jury that the statement of each
defendant was to be considered only as to that particular defendant.
4
murder, he and his two companions departed from an apartment where he had
resided “on and off.” The three men were angry at an acquaintance named Ron
Hussar because Hussar had refused to take David Wilson to the hospital when
Wilson accidentally shot himself in the foot. In retaliation, they planned to steal
Hussar‟s car stereo and to assault Hussar. All three men donned latex gloves upon
leaving the apartment in order to avoid leaving fingerprints when stealing Hussar‟s
stereo. When they arrived at Hussar‟s residence, neither Hussar nor his
automobile was present. The three men were exploring Hussar‟s neighborhood,
still wearing the latex gloves, when they encountered Kondrath.
In his statement to the police, defendant stated that his companions
suggested that he take the victim‟s automobile and, although defendant initially
was hesitant, he joined his two companions in “rushing” the victim. According to
this version of the events, defendant took the victim‟s keys, but after he and the
others entered the vehicle, defendant asked to be dropped off at the apartment
where he had been residing. When the two men returned to that apartment some
time later, they informed defendant they had parked the vehicle at an undisclosed
location.
After further police questioning, defendant admitted he had not been
dropped off but had stayed with his two companions. Defendant stated that his
companions placed the victim in the trunk without defendant‟s knowledge or
participation, although ultimately he admitted actively participating in forcing the
victim from his vehicle and into the trunk at gunpoint. Initially, defendant denied
that the trio had used a firearm to take the automobile from the victim. Defendant
subsequently admitted that before the three men approached the victim, defendant
handed the firearm to one of his companions. Defendant explained that the
robbery had commenced when, after observing the victim enter his vehicle,
defendant approached the driver‟s side window and asked the victim the time.
5
Prior to approaching the victim, defendant and the others discussed “jacking” the
victim — which he explained to officers meant robbing him. When the victim
rolled down the window of his automobile to respond to defendant‟s query about
the time, defendant‟s companion forced the victim from his vehicle at gunpoint.
The victim requested that defendant take the automobile but not hurt him. One of
defendant‟s companions asked Kondrath for his wallet, which the victim handed to
him, after which defendant and his companions placed Kondrath in the trunk.
According to defendant‟s statement, defendant drove away, with the victim
in the trunk. Sometime later, one of his companions stated to the group that,
because the victim had observed them, it was necessary to kill him. One of
defendant‟s companions said something about a credit card and then threw an
object out of the window.
Defendant gave conflicting accounts concerning why the trio next went to
the residence of Jeffrey Howard. Initially, he informed the detectives that the
three men drove there because Howard had paged defendant. Later, defendant
stated that he drove to Howard‟s residence because one of his companions directed
him to do so. Defendant stated that while he remained in the vehicle, one of his
companions went upstairs to Howard‟s apartment and returned with a shotgun.
Defendant and the others then drove to the neighborhood where they
believed Watergate Crips gang members resided. As they were driving, one of
defendant‟s companions asked the victim whether he could hear them, and after
the victim answered that he could, the victim was told to “shut up.” Defendant
then made a U-turn; the two other men exited from the automobile, and one of
them fired the shotgun several times into the air. Defendant and his cohorts
returned to Howard‟s residence to return the shotgun. At that location, defendant
removed the latex gloves he had been wearing, because they were torn. To avoid
6
leaving fingerprints, he placed socks on his hands. His two companions kept their
latex gloves on.
During the police interview, defendant initially denied having shot the
victim and claimed he had informed others he had shot the victim “[j]ust to seem
like a bad ass.” Eventually, however, defendant admitted that he himself had shot
and killed the victim, allegedly at the instigation of his companions. Defendant‟s
companions informed defendant repeatedly that the victim had to be killed
because he had seen the men and would be able to identify them, and one of them
threatened to “blast” the victim. Defendant stated that at first, he merely opened
and then shut the trunk. When defendant opened the trunk again, the victim said,
“don‟t hurt me.” One of defendant‟s companions handed defendant a firearm and
again directed him to kill the victim. Defendant did not hand the firearm back to
his companion, who was drunk, because defendant feared being accidentally hit by
gunfire if his companion were to attempt to shoot the victim. Instead, because he
did not want to look at the victim‟s face, he shot him without taking aim.
Defendant expressed remorse for having taken the victim‟s life, and stated that at
the time he fired into the trunk, he did not intend to kill Kondrath and did not
believe he had hit him with the shot.
After shooting Kondrath, defendant handed the gun back to one of his
companions and ran away, meeting them and another man, Dwight Chandler, at
the apartment where defendant had been staying. According to defendant‟s
statement, on the night of the murder defendant did not ingest drugs and consumed
only one 12-ounce can of beer. The next day, when defendant inquired
concerning the whereabouts of the murder weapon, he was told it was gone.
7
Later, defendant informed his girlfriend Summer and his friend Dwight Chandler
about his participation in Kondrath‟s murder.4
Huntington Park Police Officer Joseph Settles testified that on June 10,
1992, he was employed as a civilian traffic enforcer for the Anaheim Police
Department. At approximately 8:00 p.m. that day, he observed a white
Volkswagen Jetta illegally parked in front of no-parking signs on Crescent
Avenue. Settles issued a citation, and then opened an unlocked door to look inside
the vehicle. Although he observed nothing unusual inside the automobile, outside
he noticed a dark puddle caused by something dripping from the trunk beneath the
right rear tire. After Settles called for additional police assistance, officers arrived
and pried open the trunk, where they found the body of a White male, later
identified as Joseph Kondrath.
David Schindler, who resided on Crescent Avenue, testified that at
approximately 5:00 a.m. on June 10, 1992, he was in his garage when he heard a
loud noise. Schindler was uncertain whether what he heard was a gunshot, or had
come from an automobile or a firecracker. The area was poorly illuminated.
Schindler looked outside and saw two Black or Hispanic individuals, whom he
could not identify, in the vicinity of a white automobile approximately 50 to 100
yards from his garage. This vehicle was parked in a no-parking zone in an
industrial area containing empty and abandoned buildings. As Schindler watched,
the two individuals fled by jumping a fence and running to a drainage ditch or
culvert. Later, Schindler approached the vehicle but observed nothing unusual.
He did not call the police.
4
Dwight Chandler had died by the time of trial.
8
William Townsend testified that at approximately 6:00 a.m. on June 10,
1992, he discovered a wallet lying in the street on Manchester Avenue in Anaheim
approximately one mile from Crescent Avenue. The wallet contained Joseph
Kondrath‟s personal papers, family photographs, and one dollar. Townsend
turned the wallet over to the police later that day.
Dr. Masamichi Katsuyama conducted an autopsy on Kondrath‟s body. He
testified there was a gunshot entrance wound on the left side of the back of
Kondrath‟s head. There was discoloration to the back of the right hand, indicating
that the weapon had been fired relatively close to the skin. A badly deformed
bullet, having characteristics consistent with a .357-caliber bullet, was recovered
near the midline of Kondrath‟s head. There were no other traumas or injuries to
the victim‟s body. The cause of death was loss of blood from the gunshot wound
to the head.
Anaheim police Detective James Conley examined Kondrath‟s Jetta after
his body was found. Latent fingerprints lifted from the automobile were identified
as Kondrath‟s. A spent shotgun shell and shotgun casing were found on the right
rear floorboard. A torn piece of latex was found between the right front passenger
seat and the car door. Kondrath‟s Visa credit card was found in the same location.
Mud debris was found on the floorboard between the front seats, and on a T-shirt,
brace, and towel located on the right rear seat.
Detective Georgia Erickson testified that she interviewed Jeffrey Howard
approximately one week after Kondrath was murdered. Howard informed
Detective Erickson that codefendant Burnett arrived at Howard‟s residence early
in the morning June 10, 1992, and asked to borrow a shotgun and shotgun shells.
Burnett told Howard that he had a person confined in the trunk of his automobile.
Howard informed Detective Erickson that Burnett returned the shotgun later that
morning, and that he saw defendant behind the wheel of the automobile when
9
Howard accompanied Burnett to the first floor of his residence. Burnett told
Howard he wanted the shotgun in order to shoot at a rival gang.
Jeffrey Howard testified that on June 10, 1992, he resided at 326 South
Claudina Street in Anaheim. Between midnight and 2:00 a.m. that morning,
codefendants Rembert and Burnett came to his residence and awakened him.
Rembert was armed with a Derringer pistol that Howard previously had seen in
Rembert‟s possession. Burnett asked Howard for a 12-gauge shotgun, which
Howard gave him. During his testimony, Howard could not recall whether
Burnett had explained why he wanted the shotgun. Howard testified that in
addition to the shotgun, Howard gave Burnett red shotgun shells, loaded the
shotgun with three shells, and gave Rembert a “handful” of bullets for the
Derringer pistol. According to Howard, approximately one hour later Burnett
returned the shotgun. Howard placed that weapon under his bed and went back to
sleep, testifying he did not check the shotgun to determine whether it had been
fired. Howard did not recall whether he informed Detective Erickson that
Rembert and Burnett had said that someone was confined in the trunk of the
automobile, that he had gone downstairs with Burnett, that he had stated to the
detective that defendant was driving, or that Burnett had told him he intended to
shoot at rival gang members. Howard denied ever carrying the Derringer pistol.
He acknowledged that in his interview with the police, he had not mentioned that
Rembert accompanied Burnett when Burnett arrived to borrow the shotgun.
Howard testified that he did not observe defendant when the codefendants arrived
at his apartment for the first time, and that the street below his apartment was not
visible from the second story.
Howard further testified that on June 11, 1992, he returned the shotgun to
Ryan Leuta, who owned the gun and occasionally lent it to others. Howard denied
10
ever having possession of the Derringer pistol. He gave the remainder of the
shotgun shells and bullets in his possession to Detective Erickson.
Detective Conley testified that a shotgun and a .357-caliber Derringer pistol
were recovered from the residence of Ryan Leuta on June 16, 1992. Criminalist
Dennis Fuller testified that in his opinion, the shell casing found on the rear
floorboard of the victim‟s automobile had been fired from the shotgun recovered
from Leuta‟s residence.
Jeffrey Howard‟s mother-in-law, Deborah Cook, testified that she resided
with her daughter, Lakesha Howard, and Jeffrey Howard at the Howards‟
apartment. On June 10, 1992, at approximately 4:00 a.m., she was awakened by a
knock on the front door. She answered the door and a male, who may have been
codefendant Burnett, asked for Jeffrey. About an hour later, the same person
returned and asked for Jeff. Cook denied having informed Detective Erickson that
three persons approached the door on both occasions on June 10. Cook was not
acquainted with defendant.
Cynthia Melson testified that on June 10, 1992, she resided in an apartment
located on Pine Street in Westminster. Melson‟s roommate, Marcia, and Melson‟s
mother, Marjorie, also were present in the apartment on the morning of June 10.
Melson was codefendant Burnett‟s ex-girlfriend, and Burnett and Rembert
previously had resided at the Pine Street apartment with Melson. Melson had been
acquainted with Burnett for approximately three years, but had ended their
relationship approximately six months previously because they did not get along.
Melson testified that at approximately 4:42 a.m., five or six shots were fired at her
apartment. After the shots were fired, Melson heard her former boyfriend Burnett
yell “fuck you.” The shots damaged Melson‟s front door, the upstairs bedroom
window, the downstairs kitchen window, and a wall in Marcia‟s bedroom. A
bullet missed Marcia‟s head by six inches. Melson later discovered red shotgun
11
cartridges on a patio by the front door of her residence. Melson was not
acquainted with defendant and had not seen him prior to the trial.
Westminster Police Officer Cotrell testified that he recovered expended
shotgun shell casings and wadding from inside the Melson residence after the
shooting. Shotgun shell casings discovered at that location were from the same
type of cartridge as the casings recovered from Kondrath‟s automobile.
Criminalist Fuller opined that the shotgun shell casings found at the Melson
residence and in the victim‟s automobile had been fired from the same shotgun.
As Fuller explained, shotgun wadding protects pellets inside the shotgun and is
expelled from the barrel of a shotgun. Fulton testified that wadding recovered
from Melson‟s residence was made by the same manufacturer that produced the
shotgun shells admitted in evidence. A copper slug and jacket found at the
Melson apartment were consistent with a jacketed hollow-point bullet and had
been fired from the Derringer pistol. The projectile recovered from the victim‟s
head was a jacketed hollow-point .357- or .38-caliber bullet with markings
consistent with having been fired from the top barrel of the Derringer. Based on
test firing of the Derringer, Fuller concluded that the weapon was fired at close
range.
Rembert‟s ex-girlfriend Jeannette Roper testified that on the morning of
June 10, 1992, she was awakened by a phone call from Rembert. Rembert
instructed her that if anyone were to inquire concerning his whereabouts the
preceding night, she was to say he had spent that night with her. Later that day,
Roper went to Rembert and Burnett‟s apartment, where she saw defendant. She
testified that defendant informed her he had walked up to an automobile and asked
the male driver for the time, but then pointed a firearm at him and ordered him to
get out of the vehicle. Defendant told her he shot the driver, and that it was his
seventh murder. Detective Erickson testified that she spoke to Roper on June 15.
12
Roper informed her that defendant stated he had shot a man in the head and then
placed him in the trunk of the man‟s automobile. Erickson testified that Roper
stated defendant and his codefendants initially had planned to, but ultimately did
not, steal the victim‟s car stereo.
2. The defense
Defendant did not testify or present any other evidence in his defense.
During opening and closing arguments, defense counsel contended that defendant
was not guilty of murder under a felony-murder theory, because the robbery and
kidnapping of Kondrath ended before the homicide took place. Counsel also
asserted that defendant was guilty of only second degree murder, because
Kondrath‟s murder was not deliberate and premeditated.
Codefendant Burnett did not testify, but presented evidence indicating that
he was a chronic alcoholic and was intoxicated on the night of the murder.
Codefendant Rembert also did not testify. He presented the testimony of a
psychologist who had conducted testing on Rembert. The psychologist concluded
Rembert had a submissive personality and was “likely to go along with the
crowd.” She testified he was dependent on alcohol, abused drugs, suffered from
depression, and had been diagnosed with adult antisocial behavior. She opined
that Rembert “may not really have comprehended what was going on in a timely
manner to make the kind of decision that he could have made.” The psychologist
acknowledged that Rembert previously had been arrested for assaulting a
girlfriend and had pleaded guilty to assault in another case, but she nonetheless
stated she did not believe Rembert had assaultive or aggressive tendencies.
13
C. Penalty Phase Evidence
1. The prosecution
The prosecution presented evidence regarding uncharged acts of violence,
including multiple occasions on which defendant assaulted his former girlfriend
and one occasion on which he assaulted his stepfather. Sylvia Carmona, who
dated defendant for several years starting when she was 15 years of age and
defendant was 16 years of age, testified that on one occasion, defendant locked her
inside his residence and then hit her with his hand, causing a black eye for which
she sought treatment at a hospital. Carmona admitted that she had thrown an iron
at defendant prior to this assault, and that she “put [defendant] down all the time.”
Carmona testified that on another occasion, defendant choked her, and that on a
third occasion, defendant pulled her hair, causing her to fall to the ground.
Lee Thomas, defendant‟s stepfather, testified regarding defendant‟s violent
conduct toward him. In May 1992, Thomas was residing in an apartment with
defendant and his mother Ernestine Burney Thomas. Defendant was upset
concerning a comment made by Thomas and confronted him outside the
apartment. After a verbal exchange, defendant struck Thomas on the side of his
face. After a further heated verbal exchange between defendant, Thomas, and
Ernestine, defendant lunged at Thomas with a knife. Thomas testified that
defendant hit Thomas either with the back of his hand holding the knife, or with
the blunt part of the knife, but did not cut Thomas. At this point, Thomas picked
up a large rock and warned defendant to depart. When Thomas went upstairs,
defendant slashed the tires and the seat of Thomas‟s automobile with the knife.
When the police arrived, defendant informed them the argument began because
Thomas had made a comment about women with large buttocks and breasts, and
stated he made a stabbing motion at Thomas and would have killed him had
Ernestine not stepped in between them. He also informed the police that Thomas
14
had hit him on a prior occasion, knocking him down. The police arrested
defendant for assault, but the charges were dismissed.
Kondrath‟s parents, his fiancée, and one of his sisters testified concerning
the impact of the murder upon them, the good and peaceful nature of the victim,
and how much the victim‟s friends and family missed him.
2. The defense
Forensic psychologist Dr. Stephen Wells interviewed defendant and
testified on his behalf. Dr. Wells opined that defendant, 18 years of age at the
time of the murder, was a child in terms of intellectual development and social
maturity. Wells believed defendant did not intend to kill the victim until he was
influenced to do so by codefendant Rembert. Defendant was experiencing the
symptoms of a manic-depressive mental disorder at the time of the murder.
Defendant was a “follower” rather than a “leader.” According to Wells, defendant
expressed remorse for the murder and would not pose a danger to others in prison.
Wells determined that a series of traumatic events in defendant‟s life
profoundly had affected his emotional functioning. When defendant was eight
years of age, his mother took him to the out-of-town funeral of her father. When
they returned, defendant‟s father, David Burney, had changed the locks on the
door of the family residence, where he was residing with another woman.
Defendant and his mother stayed in motels and with friends for the next six
months. At the time, defendant spoke of committing suicide and was taken to a
psychologist. Defendant eventually reestablished contact with his father and,
when he was 14 years of age, visited him in North Carolina at Christmas.
Defendant remained in that state, residing with his father for a while but, after a
disagreement, was ejected from his father‟s home and resided with his aunt for the
remainder of the school year.
15
Wells further testified that when defendant was 18 years of age, his mother
Ernestine married Lee Thomas. Defendant did not get along with Thomas, who
physically abused Ernestine on many occasions, and defendant felt powerless to
prevent this abuse. Wells also described the circumstances of defendant‟s assault
on Thomas. At the time of trial, Ernestine no longer was residing with Thomas,
but instead with defendant‟s father, David Burney. According to Wells, David
Burney, who had had no contact with defendant since ejecting him from his home
in 1988, refused to testify on defendant‟s behalf in the present proceedings.
David Burney‟s sister, Brenda Burney, testified that David was dishonest
and unreliable, and had not been a good father to defendant.
Rogelio Onofre testified that after being released from jail following the
assault on Thomas, defendant resided with Onofre, a friend of his since grade
school, and Onofre‟s mother, Maria Gomez. Defendant wanted to reside with his
mother, but could not do so because his release from police custody was
conditioned on defendant having no further contact with her husband, Thomas.
Defendant was deeply upset when, six days before the murder, Onofre‟s young
niece accidentally drowned in a Jacuzzi. Onofre testified that his mother asked
defendant to leave her residence because she believed he was associating with the
wrong persons.
Forensic psychologist William Vicary examined defendant and concluded
he was depressed and suicidal prior to the murder. Defendant frequently
consumed alcohol and smoked marijuana. Defendant informed Vicary that he
drank 40 ounces of malt liquor before committing the murder. Vicary
acknowledged that defendant earlier had told a defense investigator that he had
had nothing to drink before the murder. Vicary concluded that defendant was
traumatized by the absence of his father. Defendant‟s mother physically abused
him when he was a child, and defendant was traumatized by twice having been
16
required to leave his father‟s home and then, just before the murder, being ejected
from his mother‟s home. After defendant was required to leave Onofre‟s
residence, he stayed with the codefendants and another person, who were gang
members and who exerted a negative influence on defendant.
Vicary testified that defendant experienced remorse for killing the victim
and would not constitute a danger while incarcerated. Vicary acknowledged,
however, that he had determined defendant had an antisocial personality, and that
on one occasion after defendant‟s arrest, he had violently attacked a Hispanic
inmate who had called him a “nigger.”
Ernestine Burney Thomas testified that she had a good relationship with
defendant and that he loved children and enjoyed helping others. Rogelio Onofre
testified that defendant was a loving person and a good friend, and that although
he had seen defendant arguing with his ex-girlfriend Sylvia Carmona, he could not
imagine defendant pulling the trigger or shooting the victim. Maria Gomez
testified that she had known defendant since he was nine years of age, and that he
was like a son to her. Gomez stated that defendant was helpful with household
chores, and that she could not believe that defendant could have been involved
with a murder. Carol Warren, whose daughter Leslie Coulter was defendant‟s best
friend since childhood, testified that defendant was well-behaved, a sweet person,
and a “joy to be around.” Leslie Coulter testified that defendant was a very sweet
person who always helped others, was good with children, and had known the
codefendants only for a few months prior to the night of the murder. Coulter also
stated that defendant was a good friend and a leader rather than a follower, and
that she never had observed him acting violently or being involved in a fight.
17
III.
DISCUSSION
A. Asserted Errors Affecting the Guilt Phase of Trial
1. Denial of defendant’s motion to quash the grand jury indictment
(a) Facts
At trial, defendant unsuccessfully moved to quash the indictment on the
ground that the Orange County grand jury selection process was unconstitutional
because of the absence of Asian-American prospective jurors in the venire. On
appeal, defendant contends that the trial court's denial of his motion to quash was
erroneous and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution and parallel provisions of the California
Constitution, requiring reversal of the guilt and penalty judgments. Defendant‟s
claim is without merit.
In connection with his motion to quash, defendant filed a motion for joinder
in a case already pending in Orange County Superior Court, People v. Robert
Chien-Nan Chan (1994, No. 93ZF0012) (Chan). The defendant in Chan, joined
by defendant and numerous other defendants whose trials were then pending in
Orange County, alleged unconstitutional discrimination against Asian-Americans
in Orange County‟s grand jury selection process.
A lengthy hearing was held in the Chan proceedings. John Weeks, who
held a Ph.D. in demography, testified on behalf of the defendants. Weeks
explained that, from a pool of 157 applicants for the 1992-1993 Orange County
Grand Jury that indicted the defendants, 30 persons ultimately were selected as
grand jurors. Of the 157 applicants for the grand jury, nine were nominated by
judges, and the others were self-nominated. None of the nine persons nominated
by judges was Asian-American. In the previous 10 years, only one Asian-
18
American had been nominated by a judge. Regarding the grand jury that returned
the indictment against defendant, four of the persons nominated by judges actually
became grand jurors. In past years, persons nominated by judges were statistically
more likely to become grand jurors. Weeks acknowledged that, because judges
subsequently selected all of the members of the grand jury, every person
ultimately chosen for grand jury service had been, in effect, nominated by a judge.
For purposes of the defense motion to quash the indictment, Weeks considered the
composition of the grand jury pool, as opposed to the grand jury itself, to be the
relevant inquiry.
In the 1992-1993 grand jury pool, there were nine minority group members,
including two Asian-Americans. The two Asian-Americans later withdrew their
applications, and accordingly no Asian-Americans were seated on the grand jury.
One African-American and four Hispanic jurors were seated on the grand jury.
The percentage of Asian-Americans in the grand jury pool was only
1.3 percent. Among persons over 18 years of age in Orange County, the
percentage of Asian-Americans was 11.7 percent. In his initial testimony, Weeks
did not exclude from his calculations Asian-Americans who were not fluent in the
English language and therefore were not qualified to serve as grand jurors. Under
this initial analysis, the “absolute disparity” for Asian-Americans in the jury pool
was 10.4 percent (11.7 percent minus 1.3 percent) and the “relative disparity” was
89 percent (10.4 over 11.7 multiplied by 100). Weeks concluded there was no
statistical possibility that such a relative disparity could occur by chance. Weeks
testified again after adjusting his calculations to exclude non-English speaking
Asian-Americans, and stated that the absolute disparity for Asian-Americans in
the grand jury pool was 6.4 percent or less, depending on the level of proficiency
of English that was being considered.
19
Among 2,335 persons contacted in a random Orange County sampling who
indicated they qualified for federal jury service on the basis of their American
citizenship and proficiency in English, the percentage of Asian-Americans was 8.5
percent. Persons who sit as grand jurors, however, are usually older than the
general population and retired. Weeks estimated that, within Orange County,
there were 5,601 Asian-Americans of retirement age (i.e., 60 years of age or older)
but under 75 years of age who would qualify for grand jury service. Some of
those persons, Weeks testified, might not speak English perfectly, and a large
proportion of them would have been born outside the United States. Weeks
speculated that a lack of familiarity with the grand jury system would make Asian-
American potential grand jurors reluctant to participate in it. Weeks did not know
whether Asian-Americans tended to be involved in family businesses more than
persons in the general population and, therefore, to retire at a later age. Taking
these calculations and variables into account, Weeks concluded there was “some”
systematic exclusion of Asian-Americans and other minorities in the application
process for the grand jury pool.
A declaration signed by Orange County Jury Commissioner Alan Slater,
with attached exhibits, was admitted into evidence for purposes of the hearing on
the motion to quash the grand jury indictments. In the declaration and in
testimony given at the hearing, Slater explained that a committee of 15 superior
court judges selected a grand jury panel of 30 persons from which 19 would be
randomly selected to serve as grand jurors. The remaining 11 persons on the panel
would serve as alternates.
Throughout the year, the superior court clerk‟s office distributed grand jury
information to an ever-increasing number of “organizations of all varieties,”
20
encouraging as many persons as possible to apply to serve as grand jurors.5 Slater
further testified that the clerk‟s office attempted to be inclusive of all possible
ethnic groups, attempted to enlist the mass media in an effort to inform persons in
the community about jury service, and sent persons to speak about grand jury
service to “anyone who is willing to listen.”
Grand jurors are required to work full time for a year and at times on
evenings and weekends, and are compensated by daily fees of $25, up to a
maximum of $100 per week. In the previous 10 years, there had been 22
applications by Asian-Americans for grand jury service and six occasions on
which Asian-Americans had been chosen as grand jurors.
William Gyak, the Orange County demographer, testified that, of the
persons in the county between the ages of 60 years and 74 years of age who were
5
Among such organizations sent materials, on a mass mailing list for
minority organizations, were the following: American Vietnamese Fellowship;
Asian American Planning Council; Asian American Drug Abuse Program; Asian
American Christian Fellow Student Activities; Asia American Youth Services;
Asian Hispanic American Association, California State University, Fullerton
(CSUF); Asian Pacific American Legal Center; Asia Pacific Counseling
Treatment Center; Asian Rehabilitation Services; The Cambodian Family;
Cambodian Student Association, CSUF; Chinese Christian Fellowship; Chinese
Student Association, CSUF; Elderly Korean American Association of Orange
County; Hoi Ai Huu Cuu N. Trung Voung; Hoi Phat Giao Tuong Te.Nam Cal.;
International Sangha Baiksu; Japanese American Citizens League; Japanese
American Citizens; Japanese Student Association, CSUF; Korean American
Association; Korean American Bible Study, CSUF; Korean Student Association,
CSUF; Korean Youth Center; Lao Family Community, Inc.; Little Saigon
Community Development Organization; Little Tokyo Service Center; Operation
Japanese American Association; Oriental Service Center; Filipino American
Student Association; United Cambodian Community, Inc.; Vietnamese American
Council; Vietnamese Chamber of Commerce; Vietnamese League of Orange
County; Vietnamese Pharmacists Association; Vietnamese Service Center; and
Vietnamese Student Association, CSUF.
21
very proficient in the English language, only 2.1 percent, or 3,011, were Asian-
Americans and Pacific Islanders. Of the 240,000 Asian-Americans and Pacific
Islanders in the county, 91,000 resided in areas having average incomes above the
county median. For the prior 10-year period, Asian-Americans who applied for
grand jury duty had a statistically greater chance of becoming a grand juror than
did White applicants. Gyak explained that comparative disparities in statistics
tend to be magnified when the group under consideration forms a very small
proportion of the population in question.
Finally, John Mei Liu, a professor of comparative culture, testified that
Asians constituted a distinct group.
(b) Discussion
We set forth the relevant legal inquiry in People v. Horton (1995) 11
Cal.4th 1068, 1087-1088. Although that decision concerned petit juries, the same
standard applies in evaluating the composition of grand juries. (Vasquez v. Hillery
(1986) 474 U.S. 254, 261-262.)6
“Under the federal and state Constitutions, an accused is entitled to a jury
drawn from a representative cross-section of the community. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 16; Duren v. Missouri (1979) 439 U.S. 357, 358-367;
People v. Howard (1992) 1 Cal.4th 1132, 1159.) That guarantee mandates that the
pools from which juries are drawn must not systematically exclude distinctive
groups in the community. (People v. Mattson (1990) 50 Cal.3d 826, 842.) „In
order to establish a prima facie violation of the fair-cross-section requirement, the
6
Although defendant is African-American rather than Asian-American, he
need not be a member of a particular group to challenge its exclusion. (People v.
Johnson (1989) 47 Cal.3d 1194, 1217, fn. 3; People v. Wheeler (1978) 22 Cal.3d
258, 281.)
22
defendant must show (1) that the group alleged to be excluded is a “distinctive”
group in the community; (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the number of
such persons in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.‟ (Duren v.
Missouri, supra, 439 U.S. at p. 364; [citation].) The relevant „community‟ for
cross-section purposes is the judicial district in which the case is tried. (People v.
Mattson, supra, 50 Cal.3d at p. 844; Williams v. Superior Court (1989) 49 Cal.3d
736, 744-745.) If a defendant establishes a prima facie case of systematic
underrepresentation, the burden shifts to the prosecution to provide either a more
precise statistical showing that no constitutionally significant disparity exists or a
compelling justification for the procedure that has resulted in the disparity in the
jury venire. (People v. Sanders (1990) 51 Cal.3d 471, 491.)
“As to the third element of the Duren test, a defendant does not meet the
burden of demonstrating that the underrepresentation was due to systematic
exclusion, by establishing only statistical evidence of a disparity. A defendant
must show, in addition, that the disparity is the result of an improper feature of the
jury selection process. (People v. Howard, supra, 1 Cal.4th at p. 1160; People v.
Bell (1989) 49 Cal.3d 502, 530.) When a county‟s jury selection criteria are
neutral with respect to race, ethnicity, sex, and religion, the defendant must
identify some aspect of the manner in which those criteria are applied (the
probable cause of the disparity) that is constitutionally impermissible. (People v.
Sanders, supra, 51 Cal.3d at p. 492; People v. Bell, supra, 49 Cal.3d at p. 524.)”
(People v. Horton, supra, 11 Cal.4th at pp. 1087-1088, italics omitted.)
In the present case, the trial court hearing the motion to quash the grand jury
indictments issued an order denying the motion, concluding that it “border[ed] on
being frivolous.” Acknowledging a conflict in the law regarding whether “Asians”
23
constituted a cognizable group for purposes of constitutional analysis, the court
nonetheless concluded that they did not constitute a cognizable group, because they
did not share a common language or common historical factors. Rather, according
to the court, the term “Asians” includes groups such as Chinese and Filipino,
separate ethnic groups that do constitute cognizable groups. Additionally, relying
on People v. Bell, supra, 49 Cal.3d 502, 527, footnote 14, in which we criticized the
use of tests more complex than the absolute disparity test when the group allegedly
excluded is very small, the court concluded that because the absolute disparity in
the present case was estimated at 3.8 percent by Gyak, and 6.4 percent by Weeks,
the disparity was constitutionally insignificant. (See People v. Bell, supra, 49
Cal.3d at p. 528, fn. 15 [noting that absolute disparity levels of less than 11.49
percent have been found to be constitutionally insignificant]) The trial court also
stated it was making its decision without reaching the third prong of the test
articulated in Duren v. Missouri, supra, 439 U.S. 357, 364.
Whether “Asians” can or do constitute a cognizable group is an unsettled
issue. We previously have observed, however, that “it is at least questionable
whether the generic description Asian . . . can constitute a „cognizable group.‟ ”
(People v. Johnson, supra, 47 Cal.3d at p. 1217, fn. 3, citing United States v. Sgro
(1st Cir. 1987) 816 F.2d 30.) We need not decide that question, however, because
defendant has not met his burden of satisfying the third prong of the test
articulated in Duren v. Missouri, supra, 439 U.S. 357 — that there was
“systematic exclusion” of Asians from the grand jury selection process. (People v.
Bell, supra, 49 Cal.3d at pp. 527-528 [declining to resolve the question of whether
a cognizable group was underrepresented, because defendant failed to show any
disparity was caused by “systematic exclusion”].) As detailed above, Jury
Commissioner Slater‟s declaration and testimony detailed the exhaustive efforts
undertaken by the Orange County Superior Court Clerk‟s office to invite Asian-
24
Americans to apply for grand jury service. The defendants bringing the motion to
quash offered no evidence to rebut the showing of substantial efforts undertaken
by the county to include Asian-Americans in the venire, and offered no proof of
any improper feature of the jury selection process. The defendants therefore failed
to establish a prima facie case that the statistical discrepancies identified were
caused by any systematic exclusion of Asian-Americans. Defendant‟s briefing in
this court focuses upon the status of Asians as a cognizable group and upon the
statistical comparisons that should be applied to claims of discrimination against
prospective grand jurors, but points to no evidence in the record that would
establish systematic exclusion. Accordingly, there is no merit in defendant‟s
claim that Asian-Americans unconstitutionally were excluded from the grand jury
that indicted him, and the trial court properly denied the motion to quash his
indictment on that basis.
2. Denial of defendant’s severance motion
Defendant puts forth intertwined claims that the trial court erred in denying
his pretrial and midtrial motions for severance, and in admitting into evidence at
the guilt phase the redacted statements of codefendants Rembert and Burnett,
admission of which assertedly implicated him in the charged crimes and deprived
him of his right to confront and cross-examine witnesses under the Sixth
Amendment to the United States Constitution in violation of People v. Aranda
(1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123
(Bruton). Defendant contends the trial court‟s denial of his motions for severance
violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the federal Constitution and parallel provisions of the California Constitution,
requiring reversal of the guilt and penalty judgments. For the reasons outlined
below, we conclude that the trial court did not err.
25
(a) Facts
Defendant gave a long, detailed statement to the police implicating himself
and his codefendants in the crimes committed against victim Joseph Kondrath.
Codefendants Rembert and Burnett also made statements to law enforcement
officers implicating defendant and themselves in the crimes, and naming
defendant as Kondrath‟s killer.
Before trial, defendant moved to sever his trial from that of his
codefendants. Defendant contended that a joint trial would be unfair because,
among other reasons, the prosecution intended to introduce into evidence the
statements made by codefendants Rembert and Burnett to the police, in violation
of Aranda, supra, 63 Cal.2d 518, and Bruton, supra, 391 U.S. 123. Defendant
asserted that a joint trial would prejudice him, because Rembert‟s and Burnett‟s
statements implicated him in the charged offenses, and because the codefendants‟
defenses were in conflict with his own. The prosecutor opposed the motion,
arguing the statements could be redacted to remove references identifying each of
the other codefendants, thereby protecting all three defendants‟ constitutional right
of confrontation. The prosecutor submitted to the trial court proposed redactions
in the statements. The court denied the severance motion, concluding that the
proposed redactions sufficiently protected the rights of each defendant. The
redacted statements of defendant and both codefendants were read to the jury
during trial. The jury was instructed to consider these statements against the
speaker only and not against any other defendant. After admission of the
statements, defendant renewed his motion for severance, and the court again
denied the motion.
As noted, defendant‟s statement and his codefendants‟ statements were
received in evidence in a redacted form that eliminated direct references to
defendant, Burnett, or Rembert by deleting the names of each declarant‟s
26
codefendants, and substituting terms such as “the others” or “the other.”7 The
codefendants‟ statements largely tracked defendant‟s own statement, but as
pertinent here, both Burnett and Rembert stated that they advised “the others” not
to kill the victim, contradicting defendant‟s contention in his own statement that
“the others” repeatedly urged defendant to shoot Kondrath.
Specifically, codefendant Burnett‟s statement confirmed that the three
codefendants departed from their shared apartment the night of the murder,
intending to steal Ron Hussar‟s stereo. According to Burnett‟s statement,
although Burnett was drunk and did not want to go, he went anyway. Burnett also
informed the police that all three defendants wore latex gloves and encountered
the victim sitting in his automobile as they left Hussar‟s carport. The three men
spoke about robbing the victim and using his automobile to “blast” the Watergate
gang, who were involved in an ongoing dispute with Burnett. Burnett stated that
one of the codefendants asked the victim for the time, and that when Kondrath
rolled down the car window, this codefendant placed a gun through the window
and ordered the victim out of his automobile. Burnett said he and the others
“snatched” the victim out of his automobile and ordered him into the trunk.
According to Burnett‟s statement, with the victim still in the trunk Burnett
proceeded to Jeffrey Howard‟s residence and borrowed a shotgun with which to
“blast” the Watergate gang members. Upon arriving in Santa Ana, the Watergate
gang‟s territory, Burnett and “the others” did not observe any Watergate members.
7
The transcripts of the redacted statements were read to the jury, and copies
of them were provided to each of the jurors during their deliberations. The words
“the other” and “the others” do not appear in quotations or brackets, and are not
otherwise highlighted. With the exception of some statements that have been
deleted with the use of obvious censor‟s lines, the redactions in the transcripts that
were read and provided to the jurors are not apparent.
27
Burnett nonetheless fired the shotgun into the air just to let the Watergate gang
members know they were there. Burnett then returned the shotgun to Howard.
Burnett and “the others” obtained additional bullets for the handgun from Howard.
Burnett related in his statement that he “passed out” or fell asleep in the
backseat of the automobile. When he awoke, the vehicle was stopped. Burnett
wanted to leave, but one of the “others” told him to shoot the victim because the
latter had observed them. According to Burnett, he refused and told his
companion not to do it. Burnett informed “the others” that the victim could just be
left somewhere and they could walk home. The third companion also said not to
shoot the victim. The person with the gun, however, said, “fuck it, I‟ll do it.” One
of Burnett‟s companions wiped down the automobile with a sock. The person
with the gun opened the trunk, shot the victim one time, and closed the trunk.
Burnett stated that he and “the others” then ran away.
In his statement to the police, codefendant Rembert initially denied all
culpability and informed the detectives that he merely had heard about the murder.
Ultimately Rembert admitted being present during the commission of the charged
crimes and was asked: “What pushed the others over the edge?” Rembert replied,
“one was drunk and the other one just wanted to go ahead and do it.” Throughout
the interview, Rembert insisted that he did not have any role in the murder, and
that he told the others not to kill the victim. When asked about the reason for the
killing, Rembert replied his companions were not thinking and must have been
drunk. Rembert claimed he was across the street when the victim was killed.
Rembert also stated that when the three men left the apartment, they spoke of
stealing a stereo, but there was no discussion of killing anyone. Toward the end of
the interview, Rembert informed the detectives that the two other men had tricked
the victim by asking him for the time and, after the victim rolled down his
28
window, Rembert‟s companions put a gun to the victim‟s head and ultimately
placed him inside the trunk of the victim‟s vehicle.
(b) Discussion
(1) Aranda/Bruton
Turning first to the constitutional issue, defendant contends the admission
into evidence, at his joint trial, of the codefendants‟ out-of-court statements
violated state law and deprived him of his rights to confront and cross-examine
witnesses under the Sixth Amendment to the United States Constitution. (Bruton,
supra, 391 U.S. 123; Aranda, supra, 63 Cal.2d 518.) We recently set forth the
governing law in great detail in People v. Lewis (2008) 43 Cal.4th 415 (Lewis).
As we explained in that case, “[a] criminal defendant has a right, guaranteed by
the confrontation clause of the Sixth Amendment to the United States
Constitution, to confront adverse witnesses. The right to confrontation includes
the right to cross-examination. (Pointer v. Texas (1965) 380 U.S. 400.) A
problem arises when a codefendant‟s confession implicating the defendant is
introduced into evidence at their joint trial. If the declarant codefendant invokes
the Fifth Amendment right against self-incrimination and declines to testify, the
implicated defendant is unable to cross-examine the declarant codefendant
regarding the content of the confession.
“In Bruton, the United States Supreme Court held that the admission into
evidence at a joint trial of a nontestifying codefendant‟s confession implicating the
defendant violates the defendant‟s right to cross-examination guaranteed by the
confrontation clause, even if the jury is instructed to disregard the confession in
determining the guilt or innocence of the defendant. (Bruton, supra, 391 U.S. at
pp. 127-128, 135-137.) The high court reasoned that although juries ordinarily
can and will follow a judge‟s instructions to disregard inadmissible evidence,
29
„there are some contexts in which the risk that the jury will not, or cannot, follow
instructions is so great, and the consequences of failure so vital to the defendant,
that the practical and human limitations of the jury system cannot be ignored.‟ (Id.
at p. 135.) Such a context is presented when „the powerfully incriminating
extrajudicial statements of a codefendant, who stands accused side-by-side with
the defendant, are deliberately spread before the jury in a joint trial.‟ (Id. at
pp. 135-136.)” (Lewis, supra, 43 Cal.4th at p. 453.)
In Aranda, supra, 63 Cal.2d 518, this court came to a conclusion similar to
that subsequently reached by the high court in Bruton, but we also held that a
codefendant‟s confession may be introduced at the joint trial if it can be edited to
eliminate references to the defendant without prejudice to the confessing
codefendant. (Aranda, supra, 63 Cal.2d at pp. 530-531; see also Lewis, supra, 43
Cal.4th at p. 454.) As the United States Supreme Court similarly concluded,
“[T]he Confrontation Clause is not violated by the admission of a nontestifying
codefendant‟s confession with a proper limiting instruction when . . . the
confession is redacted to eliminate not only the defendant‟s name, but any
reference to his or her existence.” (Richardson v. Marsh (1987) 481 U.S. 200,
211.)
“[E]diting a nontestifying codefendant‟s extrajudicial statement to
substitute pronouns or similar neutral terms for the defendant‟s name will not
invariably be sufficient to avoid violation of the defendant‟s Sixth Amendment
confrontation rights.” (People v. Fletcher (1996) 13 Cal.4th 451, 468.) If a
codefendant‟s confession cannot be so edited, severance is required. (Lewis,
supra, 43 Cal.4th at p. 454; Aranda, supra, 63 Cal.2d at pp. 530-531.) “ „[T]he
sufficiency of this form of editing must be determined on a case-by-case basis in
light of the statement as a whole and the other evidence presented at the trial.‟ ”
(Lewis, supra, 43 Cal.4th at p. 454, quoting People v. Fletcher, supra, 13 Cal.4th
30
at p. 468.) “ „[R]edactions that simply replace a name with an obvious blank
space or a word such as “deleted” or a symbol or other similarly obvious
indications of alteration . . . leave statements that, considered as a class, so closely
resemble Bruton‟s unredacted statements that . . . the law must require the same
result.‟ ” (Lewis, supra, 43 Cal.4th at p. 455, italics omitted, quoting Gray v.
Maryland (1998) 523 U.S. 185, 192 (Gray).) When, despite redaction, the
statement obviously refers directly to the defendant, and involves inferences that a
jury ordinarily could make immediately, even were the confession the very first
item introduced at trial, the Bruton rule applies and introduction of the statement at
a joint trial violates the defendant‟s rights under the confrontation clause. (Lewis,
supra, 43 Cal.4th at p. 455; Gray, supra, 523 U.S. at pp. 196-197.)
Turning to the present case, we observe that the redacted statements of
codefendants Rembert and Burnett did not completely eliminate any reference to
the “existence” of accomplices (cf. Richardson v. Marsh, supra, 481 U.S. at
p. 211) and, as the Attorney General concedes, the statements in conjunction with
other evidence led to the obvious inference that defendant was “the other” who
shot Kondrath. (Gray, supra, 523 U.S. at p. 193.) The redactions in the present
case did not satisfy the standard set forth in Gray, supra, 523 U.S. at pages 196-
197. As explained above, when, despite redaction, a codefendant‟s statement
obviously refers directly to the defendant and implicates him or her in the charged
crimes, the Bruton rule applies and introduction of the statement at a joint trial
violates the defendant‟s rights under the confrontation clause. (Lewis, supra, 43
Cal.4th at p. 455; Gray, supra, 523 U.S. at pp. 196-197.)
It is well established, however, that Aranda/Bruton error is not reversible
per se, but rather is scrutinized under the harmless-beyond-a-reasonable-doubt
standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Anderson
(1987) 43 Cal.3d 1104, 1128.) In determining whether improperly admitted
31
evidence so prejudiced a defendant that reversal of the judgment of conviction is
required, we have observed that “if the properly admitted evidence is
overwhelming and the incriminating extrajudicial statement is merely cumulative
of other direct evidence, the error will be deemed harmless.” (Id. at p. 1129.)
In the present case, the prosecution advanced, and the jury was instructed
on, three theories of first degree murder relating to the homicide of Joseph
Kondrath: felony murder based upon robbery, felony murder based upon
kidnapping, and deliberate and premeditated murder. The jury returned a general
verdict finding defendant guilty of the first degree murder of Kondrath. As set
forth below, overwhelming evidence, apart from the codefendants‟ statements,
supports defendant‟s conviction of either deliberate, premeditated first degree
murder, or one or both theories of felony murder, as well as the true findings on
the kidnapping-murder special circumstance and the robbery-murder special
circumstance. Accordingly, when viewed in the context of the instructions given
to the jury and the evidence supporting defendant‟s convictions for the first degree
murder, robbery, and kidnapping of Kondrath and the kidnapping-murder and
robbery-murder special circumstances, any error in admitting the codefendants‟
statements was harmless beyond a reasonable doubt. (Chapman v. California,
supra, 386 U.S. at p. 24; see Lewis, supra, 43 Cal.4th at p. 456.)
To prove a defendant guilty of kidnapping, the prosecution must establish
that (1) the defendant took, held, or detained another person by using force or by
instilling reasonable fear; (2) using that force or fear, the defendant moved the
other person, or made the other person move a substantial distance; and (3) the
other person did not consent to the movement. (§ 207, subd. (a).)
There was overwhelming evidence establishing that defendant committed
the crime of kidnapping — that is, that he either forced Kondrath into the trunk of
Kondrath‟s automobile at gunpoint, or aided and abetted in the kidnapping of
32
Kondrath by participating in transporting him over a substantial distance without
his consent.8 There also was overwhelming evidence provided by defendant‟s
own statement to the police (and his statements to other witnesses) establishing
that defendant killed Kondrath during the commission of that kidnapping, and that
he did so to advance the commission of the kidnapping — that is, to eliminate
Kondrath as a witness. (See People v. Green (1980) 27 Cal.3d 1, 61.) Defendant
informed the police that he and the codefendants forced Kondrath into the trunk of
Kondrath‟s automobile at gunpoint and repeatedly discussed the need to kill him
because he had seen their faces and would be able to identify them.
Defendant contended at trial, and asserts in his briefing in this court, that
the kidnapping-related counts cannot stand, and therefore the prosecution cannot
establish absence of prejudice arising from the Aranda/Bruton error, because the
kidnapping was completed prior to Kondrath‟s murder. This is so, he asserts,
because at the time defendant shot Kondrath (1) the automobile was parked on the
side of the road; (2) movement of the victim had ceased; (3) defendant had
reached a place of temporary safety; (4) there was no other ongoing felonious
conduct; and (5) defendant did not exhibit a single-minded purpose in committing
the shooting.
8
“[T]he word „substantial‟ means a „significant amount‟ as contrasted with a
distance that is „trivial.‟ ” (People v. Morgan (2007) 42 Cal.4th 593, 606-607.)
The record does not provide us with the exact distance Kondrath was transported,
but in defendant‟s statement to the police, he admitted to moving the victim more
than a “trivial” distance. Specifically, defendant stated that after forcing Kondrath
into the trunk of Kondrath‟s vehicle, defendant and “the others” drove to the home
of Jeffrey Howard, then to the Watergate Crips gang area, then back to Howard‟s
home, and finally to Crescent Avenue, where they parked the vehicle and
defendant shot Kondrath.
33
This defense, however, was not affected or undermined by the admission of
the codefendants‟ redacted statements, because nothing in either Rembert‟s or
Burnett‟s statements contradicted defendant‟s assertion that he and the others had
stopped the vehicle, and had ceased moving the victim, at the time he shot
Kondrath. In any event, defendant‟s claim substantively is without merit. As we
previously have recognized, “the crime of kidnapping continues until such time as
the kidnapper releases or otherwise disposes of the victim and [the defendant] has
reached a place of temporary safety . . . .” (People v. Barnett (1998) 17 Cal.4th
1044, 1159; see also People v. Silva (1988) 45 Cal.3d 604, 632; People v. Chacon
(1995) 37 Cal.App.4th 52, 60.) In the present case, defendant and his
codefendants placed the victim in the trunk of his own automobile, where he
remained while the men drove around shooting at targets, and where he lay when
he was shot. The circumstance that defendant had stopped the vehicle before
shooting the victim does not establish that the victim had been released or
otherwise disposed of, because the kidnapping was clearly still in progress when
defendant stopped the car on a dark, isolated street, opened the trunk, and shot the
victim in the head. “Because [the victim] was still being detained at the time of
his murder, he was killed while defendant was engaged „in the commission of‟ the
kidnapping.” (People v. Silva, supra, 45 Cal.3d at p. 632; see People v. Farmer
(1983) 145 Cal.App.3d 948, 952 [“A victim forcibly transported without [his]
consent is still „kidnapped‟ while the detention continues and an injury inflicted
during detention is inflicted „in the commission of‟ the kidnapping”].) Moreover,
defendant had not reached a place of safety, as is evident by witness David
Schindler‟s testimony that he saw two men flee the area of the shooting, and
defendant‟s own statement to the police that he ran from the scene after shooting
Kondrath.
34
The strong evidence of guilt — excluding the codefendants‟ statements but
including defendant‟s own statements, in which he admitted all of the elements
supporting the kidnapping-related counts and the kidnapping-murder special
circumstance — supports the conclusion that any error in the admission of the
codefendants‟ redacted statements was harmless beyond a reasonable doubt.
Notably, the prosecutor did not rely upon Burnett‟s or Rembert‟s statements in
discussing the kidnapping-related counts. Rather, during closing argument to the
jury, the prosecutor pointed to defendant‟s own statement in support of the
prosecution‟s contention that defendant was guilty of the kidnapping-related
counts. Accordingly, we conclude that any error in the admission of the
codefendants‟ redacted statements at the joint trial was harmless beyond a
reasonable doubt (Chapman v. California, supra, 386 U.S. at p. 24) with regard to
the jury‟s consideration of the kidnapping count, the kidnapping-felony-murder
theory of first degree murder, and the special circumstance of murder during the
commission of a kidnapping.
The error also is harmless beyond a reasonable doubt in relation to the
jury‟s consideration of the robbery-felony-murder theory and the special
circumstance of murder during the commission of a robbery. Robbery is the
taking of “personal property in the possession of another against the will and from
the person or immediate presence of that person accomplished by means of force
or fear and with the specific intent permanently to deprive such person of such
property.” (See CALJIC No. 9.40.) In his own statement, defendant told the
police that he and his codefendants forced the victim from his car and into the
trunk of the vehicle at gunpoint. Defendant told the police that he used the ruse of
asking the victim for the time in order to get him to roll down his window; that
prior to approaching the victim, he and the others discussed “jacking” the
victim — which, he explained to the officers, meant robbing him; that he joined
35
his codefendants in forcing the victim from the victim‟s automobile and into the
trunk of the vehicle at gunpoint; and that the keys to the automobile were
mistakenly left in the keyhole of the trunk, forcing defendant to retrieve them
before driving off in the victim‟s automobile.9
Accordingly, defendant admitted all of the elements supporting the
robbery-related counts and the robbery-murder special circumstance, and strong
evidence of guilt — exclusive of the codefendants‟ statements — supports the
conclusion that any error in the admission of the codefendants‟ redacted
statements was harmless beyond a reasonable doubt with regard to the robbery-
related counts and the robbery-murder special circumstance.
Finally, defendant‟s statements to the police also provide overwhelming
evidence in support of a conviction for deliberate, premeditated first degree
murder. A murder that is premeditated and deliberate is murder of the first degree.
(§ 189.) “ „In this context, “premeditated” means “considered beforehand,” and
“deliberate” means “formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course of
action.” ‟ ” (People v. Jurado (2006) 38 Cal.4th 72, 118, quoting People v.
Mayfield (1997) 14 Cal.4th 668, 767.) “ „An intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and reflection rather
than unconsidered or rash impulse.‟ [Citation.] A reviewing court normally
9
As set forth in detail in relation to defendant‟s contention that his
convictions for the robbery-related counts are not supported by sufficient
evidence, post, overwhelming evidence, contained in defendant‟s own statements,
alternatively supports a finding that defendant was guilty of robbery because he
intentionally aided and abetted the codefendants in taking the victim‟s wallet and
therefore intended to permanently deprive the victim of money contained in that
wallet.
36
considers three kinds of evidence to determine whether a finding of premeditation
and deliberation is adequately supported — preexisting motive, planning activity,
and manner of killing — but „[t]hese factors need not be present in any particular
combination to find substantial evidence of premeditation and deliberation.‟ ”
(People v. Jurado, supra, 38 Cal.4th at pp. 118-119.)
Defendant informed the police that very shortly after forcing the victim into
the trunk at gunpoint, and again just before he shot the victim, defendant and his
codefendants discussed the need to kill the victim because he would be able to
identify them. Defendant further stated that, immediately prior to the shooting, his
codefendant handed him the gun and instructed him to kill the victim, which
defendant did by pointing the gun into the trunk and firing once. These facts
provide overwhelming evidence of all three elements: preexisting motive,
planning activity, and the manner of killing — pointing and shooting a gun at
close range at the victim‟s head. It is true defendant also stated to the police that
he did not want to shoot Kondrath but did so at the urging of his codefendants,
who, he informed the police, repeatedly insisted the victim must be killed because
he had seen their faces. Despite defendant‟s urging his codefendants to let the
victim live, defendant fired his weapon into the trunk, but only once, without
aiming and with no intent to kill the victim. This alternative explanation,
however, does not vitiate defendant‟s statements to the police that unequivocally
establish both deliberation and premeditation on his part. Moreover, in light of the
evidence of premeditation, a jury reasonably could disbelieve defendant‟s
statements to the extent they attempted to minimize his culpability. Accordingly,
defendant‟s own statements, standing alone and considered without reference to
his codefendants‟ statements, provide overwhelming evidence supporting a
conviction for deliberate, premeditated murder, and any error in admitting his
37
codefendants‟ statements was harmless beyond a reasonable doubt with regard to
this theory of first degree murder.
Because the Aranda/Bruton error was harmless beyond a reasonable doubt
as to all three theories of first degree murder submitted to the jury, as well as to the
true findings on the robbery-murder and kidnapping-murder special
circumstances, such error provides no basis for reversing defendant‟s conviction
for the first degree murder of Joseph Kondrath and for the kidnapping and robbery
of Kondrath, or for setting aside the jury‟s true findings on the kidnapping-murder
and robbery-murder special circumstances.
(2) Denial of defendant’s severance motions
We also conclude the trial court did not abuse its discretion in denying
defendant‟s motions for severance — motions founded on defendant‟s contention
that admission of the codefendants‟ statements would prejudice him at a joint trial.
Our Legislature has expressed a preference for joint trials. (Lewis, supra, 43
Cal.4th at p. 452; People v. Boyde (1988) 46 Cal.3d 212, 231, 250; cf. People v.
Soper (2009) 45 Cal.4th 759, 771-772 [expressing judicial preference for joinder
in context of joined charges].) “Section 1098 provides in pertinent part: „When
two or more defendants are jointly charged with any public offense, whether
felony or misdemeanor, they must be tried jointly, unless the court order[s]
separate trials.‟ The court may, in its discretion, order separate trials if, among
other reasons, there is an incriminating confession by one defendant that
implicates a codefendant, or if the defendants will present conflicting defenses.”
(Lewis, supra, 43 Cal.4th at p. 452, citing People v. Avila (2006) 38 Cal.4th 491,
574-575; see People v. Massie (1967) 66 Cal.2d 899, 917.) “Additionally,
severance may be called for when „there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from
38
making a reliable judgment about guilt or innocence.‟ ” (Lewis, supra, 43 Cal.4th
at p. 452, quoting Zafiro v. United States (1993) 506 U.S. 534, 539 [addressing
severance under Fed. Rules Crim.Proc., rule 14, 18 U.S.C.]; see also People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 40.)
We review a trial court‟s denial of a severance motion for abuse of
discretion based upon the facts as they appeared when the court ruled on the
motion. (Lewis, supra, 43 Cal.4th at p. 453; People v. Hardy (1992) 2 Cal.4th 86,
167.) If we conclude the trial court abused its discretion, reversal is required only
if it is reasonably probable the defendant would have obtained a more favorable
result at a separate trial. (Lewis, supra, 43 Cal.4th at p. 453; People v. Coffman
and Marlow, supra, 34 Cal.4th at p. 41; People v. Keenan (1988) 46 Cal.3d 478,
503.) “If the court‟s joinder ruling was proper when it was made, however, we
may reverse a judgment only on a showing that joinder „ “resulted in „gross
unfairness‟ amounting to a denial of due process.” ‟ ” (Lewis, supra, 43 Cal.4th at
p. 452, quoting People v. Mendoza (2000) 24 Cal.4th 130, 162; see also People v.
Soper, supra, 45 Cal.4th at p. 783 [“if a trial court‟s ruling on a motion to sever is
correct at the time it was made, a reviewing court still must determine whether, in
the end, the joinder of counts or defendants for trial resulted in gross unfairness
depriving the defendant of due process of law”].)
As a threshold matter, in each count defendant was charged along with both
of his codefendants with having committed “ „common crimes involving common
events and victims.‟ ” (Lewis, supra, 43 Cal.4th at p. 453, quoting People v.
Keenan, supra, 46 Cal.3d at p. 500.) In light of this circumstance, the trial court
was presented with a “classic case” for a joint trial. (Lewis, supra, 43 Cal.4th at
p. 453; see also People v. Avila, supra, 38 Cal.4th at p. 575; People v. Coffman
and Marlow, supra, 34 Cal.4th at p. 40; People v. Keenan, supra, 46 Cal.3d at
pp. 499-500.)
39
Moreover, in judging the circumstances as they appeared at the time of the
ruling on the motion (see People v. Cleveland (2004) 32 Cal.4th 704, 726), any
error under Aranda and Bruton in admitting the codefendants‟ statements is to be
evaluated under Gray, supra, 523 U.S. 185, decided in 1998, four years after
defendant‟s 1994 trial. (Lewis, supra, 43 Cal.4th at p. 456.) In Gray, the high
court extended Bruton‟s reasoning regarding unredacted statements to redacted
statements, holding that the Sixth Amendment barred the admission of statements
that were redacted in a manner that operated “just like a confession that names the
defendant — they point an accusatory finger at the person „sitting at counsel
table,‟ i.e., the defendant on trial. ([Gray, supra, 523 U.S.] at p. 192.)” (Lewis, at
p. 455.) As the Attorney General concedes, the redactions in the present case,
although not as “obvious” as those considered in Gray, where the court substituted
blanks and the word “delete” for the defendant‟s proper name, nonetheless led to
the obvious inference that defendant was “the other” who shot Kondrath. Before
Gray, however, “the law regarding the admissibility of redacted codefendant
confessions was unsettled. (See, e.g., People v. Fletcher, supra, 13 Cal.4th 451.)
Although Gray is retroactive to this case and we apply it here, we cannot fault the
trial court for failing to anticipate Gray's holding.” (Lewis, supra, 43 Cal.4th at
p. 455.) Therefore, no abuse of discretion appears in the denial of severance in the
present case. (Ibid.)
Defendant nonetheless contends he was prejudiced by the denial of the
severance motion and the admission of the codefendants‟ statements, because the
defenses presented by his two codefendants were antagonistic to his defense. He
asserts that both Burnett‟s and Rembert‟s statements minimized their own
culpability in Kondrath‟s murder and in the crimes that preceded it, laying blame
instead on defendant — improperly painting him as the “main perpetrator” and
thereby undermining his defense that he was guilty only of second degree murder
40
because he did not participate in the victim‟s kidnapping and robbery, and because
he shot the victim only under threat by his codefendants.
Aside from defendant‟s own self-serving statements to the police, no
evidence was presented at trial indicating that Burnett and Rembert, rather than
defendant, were the “main perpetrators” of the crimes against Kondrath. As
related above, defendant admitted in his statement that he joined his codefendants
in robbing the victim of his automobile, asked the victim for the time as a ruse
before forcing him from his automobile at gunpoint, was present when his
codefendants demanded the victim‟s wallet and forced the victim into the trunk of
his own automobile, and returned to the trunk to retrieve the victim‟s keys upon
realizing the victim had left them in the keyhole.
Most notably, Jeanette Roper testified that defendant informed her — as he
admitted in his statement to the police — that he shot the victim, and although he
now contends the evidence established that he did so under threat of harm from his
codefendants, neither his statement to the police nor any other evidence supports
such a claim. In his statement, defendant merely claimed that the codefendants
informed him repeatedly that the victim must be killed because he had seen the
three men and would be able to identify them, and that one of the codefendants
threatened to “blast” the victim himself. Nothing in defendant‟s statement
indicates that either Burnett or Rembert threatened defendant with harm if he did
not shoot the victim, and no other evidence establishes that Burnett or Rembert,
rather than defendant — who was the actual shooter — was “more culpable” for
Kondrath‟s murder. Indeed, defendant specifically informed the detectives that he
did not hand the gun to Burnett and did not insist that Burnett shoot the victim —
not because defendant feared that Burnett intentionally would hurt defendant, but
because he was frightened that Burnett was too drunk and accidentally might shoot
defendant. Instead, defendant willingly chose to shoot the victim himself, and
41
because defendant did not want to look at the victim‟s face, he shot him assertedly
without taking aim.
Antagonistic defenses do not warrant severance unless the acceptance of
one party‟s defense would preclude acquittal of the other. (Lewis, supra, 43
Cal.4th at p. 461; People v. Hardy, supra, 2 Cal.4th at p. 168.) Here, defendant‟s
defense and those of his codefendants “were not so irreconcilable that only one
could be guilty.” (Lewis, supra, 43 Cal.4th at p. 461.) “The prosecution presented
independent evidence supporting each defendant‟s participation in the group‟s
mutual criminal endeavors. No gross unfairness resulted from the joint trial.”
(Ibid.; see also People v. Avila, supra, 38 Cal.4th at pp. 574-576; People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Box (2000) 23 Cal.4th
1153, 1195-1197.)
Defendant also asserts that the joint trial prejudiced him because his own
statement was redacted to replace all instances of Burnett‟s name with the word
“other,” thereby precluding defendant from informing the jury that Burnett, who
was older than defendant and had gang ties, initiated the events on the night of
Kondrath‟s murder, and that defendant acted only at the urging of his older
codefendants. No evidence of any significance was eliminated as a result of the
redaction of defendant‟s statement. First, the circumstance that codefendant
Burnett may have instigated the night‟s events does not obviate defendant‟s own
admitted culpability in the crimes committed against Kondrath. Moreover,
although defendant‟s specific references to Burnett were replaced with the word
“other,” the jury nonetheless was made aware of the substance of defendant‟s
statements — that he left the apartment with two men, one of whom wanted to
seek out Watergate Crips gang members in revenge for an earlier assault, that this
42
same man directed defendant to go to Jeffrey Howard‟s home to borrow a shotgun,
and that the men he was with fired that weapon in Watergate Crips territory.10
The sole statement defendant points to in his own account that was deleted from
the transcript of defendant‟s interview is his assertion that Burnett gave him the
weapon and told him to kill the victim. The omission of this statement did not
prejudice defendant, however, because other statements made by him to the police
informed the jurors that one of “the others” handed defendant a gun and told him
to kill the victim, and that the reason defendant did not hand the gun back to “the
other” was that defendant feared being accidentally shot by his drunken
companion.
In sum, neither the redaction of the codefendants‟ statements nor the
redaction of defendant‟s own statement prejudicially undermined defendant‟s
defense, and the joint trial itself did not result in gross unfairness depriving
defendant of a fair trial. If any error occurred, it did not result from the trial
court‟s denial of severance, but from its related but separate ruling admitting
codefendants Rembert‟s and Burnett‟s redacted statements. As we have explained
above, the admission at the joint trial of these two statements “did not result in
gross unfairness to defendant,” and any error was harmless. (Lewis, supra, 43
Cal.4th at p. 456.)
10
Nor was defendant precluded from arguing that he was unduly influenced
by his “older” codefendants. Defendant was 18 years of age at the time of the
murder. Rembert was 20 years of age, and Burnett also was 18 years of age, a few
months older than defendant. Not only was the jury informed of the ages of the
three defendants, but the age difference that defendant attempts to portray as
dispositive, is, in fact, quite minimal, and nothing either in defendant‟s own
redacted statement or in the redacted statements of the codefendants omitted
information regarding the age disparity among the three defendants.
43
3. Denial of motion for sequestered Hovey voir dire
Defendant contends the trial court‟s denial of his motion for sequestered
voir dire pursuant to Hovey v. Superior Court (1980) 28 Cal.3d 1 was erroneous
and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the federal Constitution and parallel provisions of the California Constitution,
requiring reversal of the guilt and penalty judgments. This claim is without merit.
“ „In Hovey v. Superior Court[, supra,] 28 Cal.3d 1, 80, this court decided
that in capital prosecutions the death-qualification portion of each prospective
juror‟s voir dire should be sequestered, meaning that it should be conducted out of
the presence of other prospective jurors. This court did not hold that sequestered
voir dire was constitutionally required; instead, we mandated this practice as a rule
of procedure.‟ ” (Lewis, supra, 43 Cal.4th at p. 493, quoting People v. Jurado,
supra, 38 Cal.4th 72, 100; see also People v. Vieira (2005) 35 Cal.4th 264, 287-
288; People v. Cudjo (1993) 6 Cal.4th 585, 628.) “ „In 1990, however, the voters
abrogated this aspect of Hovey by enacting Proposition 115, which added section
223 to the Code of Civil Procedure. That statute provides, in part, that “where
practicable” the trial court must conduct voir dire “in the presence of the other
jurors in all criminal cases, including death penalty cases.” (Code Civ. Proc.,
§ 223.)‟ ” (Lewis, supra, 43 Cal.4th at p. 493.)
We review the trial court‟s denial of defendant's motion for individual
sequestered voir dire under the abuse of discretion standard. (People v. Navarette
(2003) 30 Cal.4th 458, 490; People v. Waidla (2000) 22 Cal.4th 690, 713-714.) A
trial court abuses its discretion only if its ruling falls outside the bounds of reason.
(People v. Waidla, supra, 22 Cal.4th at p. 714.)
In the present case, defendant requested that the prospective jurors be
examined outside the presence of the other jurors as to all issues, because
individual questioning would lead the jurors to respond more truthfully and
44
extensively, would prevent them from being influenced or affected by responses
made by other prospective jurors, and would protect the privacy of prospective
jurors. The trial court denied the motion without giving a statement of reasons,
but indicated it would revisit its decision if necessary after the commencement of
voir dire. The court informed counsel, however, that it would conduct questioning
to ensure that a jury satisfactory to both sides was selected, and that if the allotted
peremptory challenges proved inadequate, the court would provide additional
challenges to all sides until a satisfactory jury was seated. It is evident, from the
trial court‟s statement, that the court intended to revisit the issue of individualized
voir dire if necessary and that it understood it had discretion to conduct individual
voir dire, but that it declined to do so because it felt that group voir dire, with
questioning conducted by the trial court and with ample peremptory challenges
provided to defendant, adequately would safeguard defendant‟s constitutional
right to an impartial jury. In view of the circumstance that defendant offered only
generalized grounds for conducting individual voir dire, not specific to his case,
the trial court‟s ruling did not fall outside the bounds of reason. (See People v.
Jurado, supra, 38 Cal.4th at p. 102.)
On appeal, defendant contends he was prejudiced by the court‟s refusal to
conduct sequestered voir dire of the prospective jurors. He points to a comment
made by the court to one of the prospective jurors during voir dire. This
prospective juror, who expressed strong support for the death penalty for any
defendant found guilty of murder, erroneously believed that only one of the three
defendants was charged with murder. The court and the prospective juror then
engaged in the following colloquy:
“The Court: Only [for] one of the defendants will the people be seeking the death
penalty. [¶] Juror D.M.: Oh, Okay. [¶] The Court: The prosecutor, the district
45
attorney of the county, elects who, if anyone, he chooses to seek the death penalty
on. [¶] And at the time of the penalty phase he will explain to you, I‟m sure, the
reasons that he had for selecting one defendant over the other two, assuming that
any of these people ever get convicted of anything. [¶] Can you accept that even
though we‟re talking to you about penalty, these folks still have a presumption of
innocence and are still presumed to be innocent until the contrary is proven? [¶]
Juror D.M.: Yes, that I do. . . . [¶] The Court: Would you accept the proposition
that the prosecution has the right to seek the death penalty for certain individuals
that fall in the category of these three defendants out here, if they choose, and you
won‟t second guess the prosecutor as to why he chose to seek the death penalty on
one defendant over the other two? [¶] Juror D.M.: No.”
The prospective juror ultimately was excused for cause.11
Defendant argues that the trial court‟s comment illustrates the prejudice he
suffered from the court‟s refusal to conduct sequestered voir dire. According to
defendant, the court‟s comment tainted the jury pool by diminishing the
prospective jurors‟ sense of responsibility and giving them the impression that the
prosecutor had authority to determine the penalty to be imposed. He claims the
11
After this prospective juror was excused, defendant‟s counsel expressed
concern that the court had suggested to the prospective jurors that they could not
second-guess the prosecution‟s decision to seek the death penalty. The court
agreed not to use such wording, and in subsequent questions explained to
prospective jurors that it was the role of the jurors to decide whether capital
(footnote continued on next page)
46
court‟s comments reinforced the view that defendant “deserved” the penalty of
death.
Defendant‟s generalized assertions of prejudice are without merit. The
court‟s questioning of the juror who ultimately was excused for cause clearly
made reference to the prosecution‟s decision to seek the death penalty against only
one of the three defendants and, even under the most strained reading, could not
reasonably be understood to advise prospective jurors that defendant “deserved”
death. Defendant was not prejudiced by the court‟s refusal to conduct sequestered
voir dire, and accordingly was not unconstitutionally deprived of a fair and
impartial jury.
4. Admission of autopsy and crime-scene photographs and contents of
victim’s wallet
Defendant contends the trial court committed error by overruling his
objection to the admission of crime-scene photographs and the contents of the
victim‟s wallet. He claims the asserted error violated his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and parallel
provisions of the California Constitution, requiring reversal of the guilt and
penalty judgments. This claim is without merit.
Defendant objected to the admission of two photographs, People‟s exhibits
6 and 8, and to the admission of the contents of the victim‟s wallet, claiming this
evidence was unduly prejudicial within the meaning of Evidence Code section
352. The photograph designated as People‟s exhibit 6 depicted a bullet being held
(footnote continued from previous page)
punishment was appropriate if the charges against defendant were proved.
Defendant did not seek any corresponding admonition to the prospective jurors.
47
in a glove and either “an open skull or at least open flesh.” The photograph
designated as People‟s exhibit 8 showed the victim‟s wound and his hair, with
blood dripping from the gunshot wound. The contents of the victim‟s wallet
included a photograph of two small children, a photograph of a small child seated
on a horse, the victim‟s identification, and a one-dollar bill on which the words “I
love you” were written. Defendant‟s counsel contended such evidence properly
was admissible only at the penalty phase of the trial. The trial court overruled
defendant‟s objection to the admission of the photographs, concluding they were
probative and “not particularly ghastly.” The court also overruled defendant‟s
objection to the admission of the wallet‟s contents, finding the evidence was not
inflammatory.
We find no error in the admission of either photograph. A trial court has
wide discretion to admit autopsy photographs. (People v. Riel (2000) 22 Cal.4th
1153, 1193; People v. Ochoa (1998) 19 Cal.4th 353, 415.) Neither photograph in
the present case was unduly prejudicial. Although photographs of murder victims
often are graphic and disturbing, neither photograph here was “so gruesome as to
have impermissibly swayed the jury.” (People v. Smithey (1999) 20 Cal.4th 936,
974.) The photographs also had substantial probative value. In his statement,
defendant informed the detectives that he shot the victim without aiming and did
not believe, at the time of the shooting, that he had hit him. The photographic
evidence indicated that the victim had been shot in the head at close range while
holding his hand in front of his head, and was probative on the issue of malice and
intent to kill. (People v. Loker (2008) 44 Cal.4th 691, 705; People v. Crittenden
(1994) 9 Cal.4th 83, 133; People v. Box, supra, 23 Cal.4th 1153, 1199.) The
prosecution was not obligated to “ „accept antiseptic stipulations in lieu of
photographic evidence‟ ” on these issues. (People v. Loker, supra, 44 Cal.4th at
p. 705.)
48
There also was no error in admitting the contents of the victim‟s wallet.
The prosecution referred to the photographs and the contents of the victim‟s wallet
in both its opening statement and its closing argument at the guilt phase. During
the closing argument, the prosecutor urged that the circumstance that the billfold
section of the victim‟s wallet was empty of any money suggested that cash had
been taken from the wallet during the charged crimes. Defendant refers to this
circumstance, contending that the admission of the wallet improperly allowed the
prosecution to treat evidence that linked the codefendants to the taking of the
victim‟s wallet during the robbery as proof of defendant‟s guilt of that offense,
despite his statement that he did not participate in the taking of the wallet.
The contents of the wallet had probative value, and were not unduly
prejudicial. Although defendant claimed to the police that he did not participate in
the taking of the victim‟s wallet, the uncontroverted facts establish that defendant
was guilty as an aider and abettor of any theft of money from the wallet.
Defendant tricked the victim into rolling down his window by asking him the time,
and thereafter he and his two codefendants forced the victim from his vehicle at
gunpoint and eventually into the trunk of the automobile. The codefendants
evidently demanded the victim‟s wallet before forcing him into the trunk, but the
circumstance that defendant did not make the demand or personally take the wallet
does not obviate his culpability for the offense of robbery, in light of the events
described above. Although the wallet contained family photographs and a
notation on the dollar bill apparently indicating that someone loved the victim,
these items were unlikely to provoke such a strong emotional response from the
jury as to interfere with its duty to rationally decide the issue of defendant‟s guilt.
The admission in evidence of the contents of the wallet at the guilt phase was not
erroneous.
49
5. Alleged instructional error
Defendant contends that various asserted instructional errors at the guilt
phase of his trial violated his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution and parallel provisions of the California
Constitution, requiring reversal of the guilt and penalty judgments. These claims
lack merit.
(a) Instruction on flight
The court instructed the jury with the standard language of CALJIC
No. 2.52: “The flight of a person immediately after the commission of a crime or
after he is accused of a crime is not sufficient in itself to establish his guilt, but is a
fact which, if proved, may be considered by you in the light of all the other
proved facts in deciding the question of his guilt or innocence. The weight to
which such circumstance is entitled is . . . a matter for you the jury to determine.”
Defendant objected to the instruction, asserting that evidence indicating that he left
the scene of the shooting did not warrant giving the instruction, because defendant
admitted shooting the victim and the prosecution did not rely upon defendant‟s
conduct in leaving the scene to establish defendant‟s guilt. The prosecution
argued that the instruction was warranted because the witness David Schindler
testified that he observed two suspects jump a fence following a shooting, and
because defendant informed the detectives that he fled after the homicide.
Defendant contends the instruction violated his rights under the Sixth,
Eighth, and Fourteenth Amendments, because it compelled the jury to draw an
impermissible inference of guilt. We previously have rejected such arguments,
and similarly find the claim meritless in the present case. (People v. Mendoza,
supra, 24 Cal.4th at pp. 179-181; People v. Smithey, supra, 20 Cal.4th at p. 983.)
Defendant is correct that because of his pretrial admission that he shot the victim,
neither the identity of the actual shooter nor defendant‟s consciousness of guilt
50
was a contested issue at the trial. Nonetheless, although defendant did not present
any evidence in his defense, he pleaded not guilty to the charges, thereby putting
in issue “ „all of the elements of the offenses.‟ ” (People v. Moon (2005) 37
Cal.4th 1, 28, quoting People v. Steele (2002) 27 Cal.4th 1230, 1243.) Even if
defendant conceded at trial his guilt of criminal homicide, “the prosecution is still
entitled to prove its case and especially to prove a fact so central to the basic
question of guilt as intent.” (Moon, at p. 28.)
We previously have rejected the notion that the flight instruction is
improper when an accused concedes the issue of identity and merely contests his
or her mental state at the time of the crime. (People v. Smithey, supra, 20 Cal.4th
at p. 983.) “As we have said, even where the defendant concedes some aspect of a
criminal charge, the prosecution is entitled to bolster its case, which requires proof
of the defendant‟s guilt beyond a reasonable doubt, by presenting evidence of the
defendant‟s consciousness of guilt.” (People v. Loker, supra, 44 Cal.4th at
p. 707.)
(b) Felony murder based on robbery and kidnapping instruction
The trial court instructed the jury pursuant to CALJIC No. 8.21 that “[t]he
unlawful killing of a human being, whether intentional, unintentional or
accidental, which occurs during the commission or attempted commission of the
crime or as a direct causal result of robbery or kidnapping is murder of the first
degree when the perpetrator had the specific intent to commit such crime. The
specific intent to commit robbery or kidnapping and the commission or attempted
commission of such crime must be proved beyond a reasonable doubt.”
Defendant contends that the trial court erred in refusing his proposed modification
to CALJIC No. 8.21, which would have added the following language: “If the
unlawful killing is committed after the commission or attempted commission of
51
the crime of robbery or kidnapping is completed, and is not a direct causal result
of robbery kidnapping, you may not use the attempted commission or commission
of the crime or robbery or kidnapping to find that the killing is a murder of the
first degree.”12
A trial court must instruct the jury, even without a request, on all general
principles of law that are “ „closely and openly connected to the facts and that are
necessary for the jury‟s understanding of the case.‟ [Citation.] In addition, „a
defendant has a right to an instruction that pinpoints the theory of the
defense . . . .‟ ” (People v. Roldan (2005) 35 Cal.4th 646, 715.) The court may,
however, “properly refuse an instruction offered by the defendant if it incorrectly
states the law, is argumentative, duplicative, or potentially confusing [citation], or
if it is not supported by substantial evidence [citation].” (People v. Moon, supra,
37 Cal.4th at p. 30.)
In the present case, defendant‟s trial counsel conceded that the requested
modification merely “restated” the existing instructional language.13 The
12
The trial court declined to give this modified instruction proffered by
defendant, but stated that defense counsel nonetheless was free to argue to the jury
his theory that the underlying felonies were completed prior to the murder and
thus could not serve as predicate felonies. Defense counsel did so. The
prosecution disputed this theory of the case, stating it was “laughable” to contend
that the victim‟s kidnapping was “over” as he lay in the trunk of his car before
defendant shot him.
13
This is especially so because the jury also was instructed pursuant to
CALJIC No. 9.44 that a “robbery is still in progress after the original taking of
physical possession of the stolen property while the perpetrator is in possession of
the stolen property and fleeing in an attempt to escape. Likewise it is still in
progress so long as immediate pursuers are attempting to capture the perpetrator or
to regain the stolen property. A robbery is complete when the perpetrator has
eluded any pursuers, has reached a place of temporary safety, and is in
unchallenged possession of the stolen property after having effected an escape
with such property.”
52
proposed instruction would not have provided the jury with anything beyond what
it otherwise learned from CALJIC No. 8.21 and CALJIC No. 9.44, and
accordingly it was duplicative and properly was refused by the trial court. (People
v. Ochoa (2001) 26 Cal.4th 398, 455 [affirming refusal to give virtually identical
proposed instruction].)
(c) Instruction on felony murder in furtherance of a conspiracy
The jury was instructed pursuant to CALJIC No. 8.26 that “[i]f a number of
persons conspire together to commit robbery or kidnapping, and if the life of
another person is taken by one or more of them in furtherance of the common
design, and if such killing is done to further that common purpose or is an ordinary
and probable result of the pursuit of that purpose, all of the co-conspirators are
deemed in law to be equally guilty of murder of the first degree, whether the
killing is intentional, unintentional, or accidental.” Defendant requested that the
court add the following sentence to the instruction: “If the killing is not done in
furtherance of the common design, or not to further the common purpose and is
not an ordinary and probable result of the pursuit of that purpose, you may not use
the fact that a number of persons have conspired together to commit robbery or
kidnapping to determine that all are equally guilty of murder in the first degree.”
Again, defendant‟s proffered modification did nothing more than restate the
existing instruction to highlight defendant‟s theory of the case. The jury was
instructed pursuant to a correct statement of the law, and defendant was not
entitled to an instruction that merely stated the converse of the language that
already appeared in the existing instruction. (People v. Moon, supra, 37 Cal.4th at
p. 32; People v. Ochoa, supra, 26 Cal.4th at p. 455.)
53
(d) Instruction on felony murder based upon aiding and abetting
The jury was instructed pursuant to CALJIC No. 8.27: “If a human being is
killed by any one of several persons engaged in the commission or attempted
commission of the crime of robbery or kidnapping, all persons, who either directly
and actively commit the act constituting such 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.” Seeking to modify the instruction by pinpointing the ensuing
consequences in the event the jury believed the robbery or kidnapping was
completed prior to the shooting of the victim, defendant requested language
adding: “If a human being is killed by one of several persons after the commission
or attempted commission of the crime and robbery or kidnapping was completed,
who either directly and actively commit the act constituting such 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,
[the defendants] are not guilty of the murder of the first degree by that reason
alone, whether the killing is intentional, unintentional, or accidental.”
The jury properly was instructed concerning the consequences of a
determination that the underlying felonies had been completed prior to the
shooting. (CALJIC No. 8.27.) As with the instructions discussed above,
defendant‟s modification merely restated the existing instruction by presenting the
converse of the instructional command, and by stating a circumstance that flowed
logically from the existing language. The trial court‟s refusal to add duplicative
54
language to the existing instruction was not error. (People v. Moon, supra, 37
Cal.4th at p. 32; People v. Ochoa, supra, 26 Cal.4th at p. 455.)
(e) Special instruction that the prosecution was bound by the
contents of defendant’s statement to the police
Defendant contends the trial court erred in refusing to give a special
instruction concerning the weight and impact of his statement to the police.
Defendant asked the trial court to instruct the jury that “[t]he prosecution, having
presented defendant‟s statement in order to prove their case, are bound by that
statement and its explanation for the conduct in the absence of proof to the
contrary.” This proposed instruction was based upon the so-called Toledo doctrine
(People v. Toledo (1948) 85 Cal.App.2d 577; People v. Estrada (1923) 60
Cal.App. 477), concerning which we have observed: “The courts may sometimes
say that the prosecution is „bound by‟ extrajudicial statements of defendant which
are introduced by the prosecution and which are irreconcilable with guilt, but this
concept is applicable only where there is no other competent and substantial
evidence which could establish guilt.” (People v. Acosta (1955) 45 Cal.2d 538,
542-543 (Acosta).) Moreover, we noted, if there is any “ „well established
circumstance‟ ” that is “ „incompatible‟ ” with the defendant‟s exculpatory
statement, then the jury may consider all the evidence in determining whether to
convict. (Id. at pp. 541-542.)
In the present case, the trial court properly refused to give the special
instruction requested by the defense. Opinions rendered by the Courts of Appeal
subsequent to Toledo demonstrate that its holding has been superseded at least in
part. “First, the so-called Toledo doctrine (whose genesis seems to have been
merely an argument offered on appeal) actually refers to a principle of judicial
review invoked in homicide prosecutions obviating a defendant‟s burden of
showing mitigation or justification where the prosecution‟s proof itself tends to
55
show same or a lesser unlawful homicide. [Citations.] . . . To the extent that the
doctrine is founded upon a notion that the prosecution is bound by their witnesses‟
statements [citation] on the antiquated theory of vouchsafing one‟s own witnesses
[citation], that theory has long since been discarded in favor of the modern rule
allowing impeachment of a witness by any party, „including the party calling him.‟
(Evid. Code, § 785; People v. Chacon (1968) 69 Cal.2d 765, 779.) In the final
analysis the question of defendant‟s guilt must be resolved from all the evidence
considered by the jury.” (People v. Ross (1979) 92 Cal.App.3d 391, 400, fn.
omitted.)
Defendant‟s requested special instruction was founded on an antiquated and
questionable statement of the law. Moreover, even within the terms of this court‟s
discussion in Acosta, supra, 45 Cal.2d at pages 451-452, the prosecution presented
“ „well-established circumstance[s]‟ ” that were inconsistent with the exculpatory
content of defendant‟s statement. The jury plainly was entitled to consider all of
the evidence in arriving at its verdict. The trial court did not err in refusing to
instruct the jury as requested by the defense.
(f) Special instruction regarding threats and menace
Defendant contends the trial court erred in refusing to deliver a special
instruction that threats, menace, or compulsion may vitiate the mental state
required for first degree murder.
The court instructed the jury pursuant to CALJIC No. 8.20, as follows: “If
you find that the killing was preceded and accompanied by a clear, deliberate
intent on the part of the defendant to kill, which was the result of deliberation and
premeditation, so that it must have been formed upon pre-existing reflection and
not under a sudden heat of passion or other condition precluding the idea of
deliberation, it is murder of the first degree.” The trial court further instructed the
56
jury concerning second degree murder pursuant to CALJIC No. 8.30, as follows:
“Murder of the second degree is also the unlawful killing of a human being with
malice aforethought when there is manifested an intention unlawfully to kill a
human being but the evidence is insufficient to prove deliberation and
premeditation.” Defendant requested an additional instruction, which read: “You
may consider evidence showing the existence of threats, menaces or compulsion
that played a part in inducing the unlawful killing of a human being for such
bearing as it may have on the question of whether the murder was of the first or
second degree.” The trial court declined to give the additional instruction.
Defendant contends that in the absence of the requested instruction, his trial
counsel was precluded from directly arguing to the jury that defendant‟s lack of
intent was predicated on the legal theory of duress — further contending that this
circumstance forced counsel to argue only generally that the evidence did not
support first degree murder, but instead supported a verdict of second degree
murder. We find no error. It is well established that duress does not constitute a
defense to murder, and does not reduce murder to manslaughter. (People v.
Anderson (2002) 28 Cal.4th 767, 771-783.) Nonetheless, duress may negate the
deliberation or premeditation required for first degree murder, and an instruction
such as the one requested by defendant may be appropriate if warranted by the
circumstances of the case. (Id. at p. 784.)
No evidence was received at defendant‟s trial suggesting that defendant
was threatened before he shot the victim. Contrary to defendant‟s assertion that
the evidence established he shot the victim fearing that if he did not do so, his
codefendant would shoot him, defendant‟s statement indicates that he shot the
victim rather than handing the gun back to his codefendant because he feared that
if his codefendant attempted to shoot the victim, his codefendant‟s drunken state
would cause him to mistakenly shoot defendant. Indeed, when asked by Detective
57
Erickson why, upon hearing his codefendant‟s exhortations to kill the victim,
defendant did not simply hand him the gun and tell him to kill the victim himself,
defendant responded, “ ‟Cause . . . I don‟t want him to shoot me by accident.”
Although defendant‟s statement also indicates that defendant‟s codefendant
repeatedly informed him “you gotta kill him,” there is no evidence of any threat,
menace, or compulsion accompanying these words.
The requested instruction was not supported by substantial evidence
indicating that any threat, menace, or compulsion motivated defendant‟s conduct,
and the trial court did not err in refusing to so instruct the jury. (People v. Moon,
supra, 37 Cal.4th at p. 32.)
(g) Failure to instruct on lesser included offenses
Defendant contends the trial court erred in failing to instruct the jury on its
own motion concerning second degree felony-murder, false imprisonment,
involuntary manslaughter, and certain lesser included offenses to the charged
offense of robbery. The trial court is obligated to instruct the jury on all general
principles of law relevant to the issues raised by the evidence, whether or not the
defendant makes a formal request. (People v. Blair (2005) 36 Cal.4th 686, 745;
People v. Breverman (1998) 19 Cal.4th 142, 154 [duty to instruct on court‟s own
motion]; People v. Flannel (1979) 25 Cal.3d 668, 684 [duty to instruct upon
request].) “That obligation encompasses instructions on lesser included offenses if
there is evidence that, if accepted by the trier of fact, would absolve the defendant
of guilt of the greater offense but not of the lesser.” (People v. Blair, supra, 36
Cal.4th at p. 745, citing People v. Memro (1995) 11 Cal.4th 786, 871; see also
People v. Breverman, supra, 19 Cal.4th at p. 154.) “To justify a lesser included
offense instruction, the evidence supporting the instruction must be substantial —
that is, it must be evidence from which a jury composed of reasonable persons
58
could conclude that the facts underlying the particular instruction exist.”
(People v. Blair, supra, 36 Cal.4th at p. 745, citing People v. Breverman, supra,
19 Cal.4th at p. 162.)
Defendant asserts he was entitled to a second degree felony-murder
instruction because there was evidence indicating that he lacked the intent to
commit robbery and that the crime of kidnapping was completed prior to the
killing. According to defendant, therefore, it would be reasonable for the jury to
doubt that the killing had taken place during the course of one of the felonies listed
in section 189. Defendant also contends that had the jury been properly instructed
regarding lesser included offenses of robbery — including theft, unlawful taking
of an automobile, joyriding, and theft from a person — it is reasonably probable
that he would have been found guilty of a felony that qualified the killing as
second degree felony-murder.
There was no substantial evidence to justify instruction on second degree
felony-murder. Overwhelming evidence established that defendant was guilty of
kidnapping Joseph Kondrath. The victim was forced into his automobile trunk at
gunpoint, driven a substantial distance, and remained in the trunk when defendant
shot and killed him. As we concluded with regard to defendant‟s Aranda/Bruton
claim discussed above, there is no merit in defendant‟s contention that the
circumstance that defendant had stopped the car before shooting the victim
establishes that the felony of kidnapping had been completed before the victim
was murdered. Kidnapping is one of the offenses listed in section 189, and
because of the overwhelming evidence supporting defendant‟s conviction for
kidnapping Kondrath, if defendant was guilty of felony murder, that felony murder
was of the first degree.
Defendant contends that an instruction on the asserted lesser included
offenses of robbery such as theft, auto theft, joyriding, or theft from a person was
59
warranted, because a reasonable juror could conclude that defendant lacked the
intent to commit robbery in light of the circumstance that he did not share his
codefendants‟ intent to take the victim‟s wallet and did not intend to permanently
deprive the victim of his automobile at the time of the robbery — the specific
intent required for robbery under the facts of the present case. In the alternative,
he asserts that instruction on lesser included offenses was warranted because a
reasonable juror could have concluded that the taking of the victim‟s wallet and
automobile was not accomplished by the threat of force.
Defendant was not entitled to instruction on any lesser included offenses of
robbery, or to an instruction on second degree felony-murder, because there is no
rational basis to conclude that the murder was committed during the unlawful
taking of a vehicle, joyriding, or theft, but not during the commission of a robbery.
If theft from the victim was committed, that theft clearly was accomplished by the
threat of force — the use of a gun to take both the victim‟s wallet and his
vehicle — and therefore constituted robbery. The evidence that the killing
occurred during the commission of a crime that did not involve force is too
insubstantial to support a second degree felony-murder instruction, and the trial
court's failure to so instruct the jury did not constitute error. (People v. Neely
(1993) 6 Cal.4th 877, 897.)
Nor is there substantial evidence to support an instruction on any lesser
included offenses of robbery on the basis that defendant did not intend
permanently to deprive the victim of his automobile. Evidence in the record
establishes that defendant and his companions discussed “jacking” the victim just
moments before approaching him, discussed killing the victim very shortly after
forcing him into the trunk at gunpoint and absconding with his vehicle, and
ultimately did kill the victim. Defendant contends an instruction on lesser
included offenses nonetheless was warranted because he told police that, at some
60
point during the night, after the victim had been forced into the trunk and
defendant and his companions had taken possession of the vehicle, he said to his
codefendants that they should simply abandon the car and leave the victim
unharmed, rather than killing him. Defendant‟s statement establishes, at best, that
at some point during the robbery, defendant briefly suggested changing the
planned course of action. This circumstance does not provide substantial evidence
that defendant intended, at the time he and his companions forced the victim from
his car and into the trunk at gunpoint, to borrow the car only temporarily, rather
than permanently. Accordingly, defendant‟s claim is not supported by any
evidence, let alone substantial evidence, justifying a second degree felony-murder
instruction.
There also is no substantial evidence to justify instruction on involuntary
manslaughter based upon the theory that the victim‟s death could have occurred
during the commission of the crime of false imprisonment, a felony that is not
inherently dangerous and that therefore would not support a conviction of second
degree felony-murder. The evidence establishing that defendant and his
companions forced the victim into the trunk of his automobile at gunpoint and
drove around with him in that posture points indisputably to kidnapping.
Defendant offered no evidence or argument that his sole purpose was to forcibly
detain the victim at the scene of the shooting. The evidence of an intent merely to
detain, rather than transport, the victim was too insubstantial to support the giving
of an instruction on involuntary manslaughter. The trial court‟s failure to so
instruct the jury did not constitute error. (People v. Neely, supra, 6 Cal.4th at
p. 897.)
61
6. Sufficiency of the evidence
(a) Robbery and first degree felony-murder predicated on robbery
Defendant contends the evidence is insufficient to support his robbery
conviction, his conviction of murder in the course of robbery or attempted
robbery, and the special circumstance finding that he committed the murder while
engaged in the commission of robbery. He contends the jury‟s verdict on these
charges therefore violated his due process rights under the state and federal
Constitutions.
“ „To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable, credible,
and of solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.‟ ” (People v. Wallace (2008) 44 Cal.4th 1032,
1077; see also People v. Kipp (2001) 26 Cal.4th 1100, 1128; People v. Mayfield,
supra, 14 Cal.4th 668, 790-791 [same standard of review applies to determine the
sufficiency of the evidence to support a special circumstance finding].) “ „ “If the
circumstances reasonably justify the trier of fact‟s findings, the opinion of the
reviewing court that the circumstances might also be reasonably reconciled with a
contrary finding does not warrant a reversal of the judgment.” ‟ ” (People v. Bean
(1988) 46 Cal.3d 919, 933, quoting People v. Hillery (1965) 62 Cal.2d 692, 702;
see also People v. Valdez (2004) 32 Cal.4th 73, 104.) “The standard of review is
the same when the prosecution relies mainly on circumstantial evidence.”
(Valdez, at p. 104.)
As stated above with reference to defendant‟s Aranda/Bruton claim,
robbery is the taking of “personal property in the possession of another, against the
will and from the person or immediate presence of that person, accomplished by
means of force or fear and with the specific intent permanently to deprive such
62
person of such property . . . .” (CALJIC No. 9.40.) Both robbery and felony
murder based on robbery require that the intent to rob arise before force or fear is
applied. Thus, “[i]f the defendant does not harbor the intent to take property from
the possessor at the time he applies force or fear, the taking is only a theft, not a
robbery.” (People v. Davis (2005) 36 Cal.4th 510, 562.) Similarly, “an intent to
steal that arises after the infliction of the fatal wounds cannot support a felony-
murder conviction.” (Id. at pp. 564-565.) Finally, the special circumstance of
murder during the commission of a robbery requires that the murder be committed
“in order to advance [the] independent felonious purpose” of robbery, but the
special circumstance is not established when the felony is merely incidental to the
murder. (People v. Green, supra, 27 Cal.3d at p. 61; see People v. Davis, supra,
36 Cal.4th at p. 568; People v. Horning (2004) 34 Cal.4th 871, 907-908.)
In the present case, the prosecutor argued to the jury that a robbery had
been committed because the victim‟s wallet, automobile, and car keys had been
taken. Defendant contends there was insufficient evidence of robbery because he
and his companions did not, at the time they took the victim‟s car keys and
automobile at gunpoint, intend permanently to deprive the victim of his keys or his
automobile, but intended instead to use the vehicle only temporarily. With regard
to the wallet, defendant contends he did not share the specific intent of his
codefendants to deprive the victim of his wallet. We conclude, to the contrary,
that substantial evidence supports a finding that defendant committed a robbery,
and that he possessed the specific intent to permanently deprive the victim at least
of his automobile (and probably his wallet as well).
First, it is undisputed that defendant and his codefendants at gunpoint
forced the victim from his automobile and into the trunk of the vehicle. Defendant
conceded to the police that he employed the ruse of asking the victim the time in
order to persuade him to lower his window; that prior to approaching the victim,
63
he and the others discussed “jacking” the victim — which he explained to officers
meant robbing him; that he joined his codefendants in forcing the victim from his
automobile and into the trunk of the vehicle at gunpoint; and that the victim left
the car keys in the keyhole of the trunk, requiring defendant to retrieve them in
order to drive away. He also told Jeannette Roper that the men initially had
planned to, but ultimately did not, steal the victim‟s car stereo. Very shortly after
forcing the victim into the trunk at gunpoint, defendant and his codefendants
discussed the need to kill the victim, because he would be able to identify them.
Defendant clearly attempted to minimize his culpability as much as possible,
consistent with the evidence. Toward this end, he informed the police that he told
his codefendants that rather than killing the victim, they simply should park his
vehicle somewhere, leaving the victim unharmed in the trunk, but that because his
codefendants repeatedly urged him to kill the victim, he did kill him — without
actually wanting to do so.
Although defendant contends this evidence establishes that he did not
possess the intent, at the time he took the automobile from the victim, permanently
to deprive him of the use of his automobile, nevertheless a reasonable jury,
considering this same evidence, could reject defendant‟s explanation as
unreasonable. The jury was not required to believe defendant‟s claim to the police
that at the time he forced the victim into the trunk at gunpoint, he intended only to
temporarily borrow the victim‟s automobile and eventually return it.
Additionally, substantial evidence supports a finding that defendant was
guilty of robbery because he intentionally aided and abetted the codefendants in
taking the victim‟s wallet and therefore intended permanently to deprive the
victim of the money contained in that wallet. The victim‟s wallet was found on a
street other than the one where the shooting took place. The wallet contained no
money except for a one-dollar bill, which was found in the “wallet portion” as
64
opposed to the “billfold part” of the wallet. As the prosecution argued to the jury,
the circumstance that the billfold section of the wallet was empty supported an
inference that money had been taken from it. There also was substantial evidence
suggesting that defendant shared the intent of his codefendants to steal money
from the victim‟s wallet. Defendant informed the detectives that one of his
codefendants demanded the victim‟s wallet immediately after defendant and the
others forced the victim from his automobile at gunpoint, all three having just
discussed “jacking” the victim. The victim handed the wallet to one of the
codefendants before he was forced into his trunk. A reasonable jury could infer
from this evidence that defendant shared the codefendants‟ intent to take the
victim‟s wallet and money at the time defendant willingly joined them in forcing
the victim from his automobile and into the vehicle trunk at gunpoint.
Defendant‟s argument regarding the sufficiency of the evidence of the
robbery-murder special circumstance fails for the same reasons that apply to his
primary sufficiency-of-the-evidence argument. The sole intent required for the
jury to find true the robbery-murder special-circumstance allegation is the intent to
commit a robbery before or during the killing. (People v. Koontz (2002) 27
Cal.4th 1041, 1079-1080; People v. Musselwhite (1998) 17 Cal.4th 1216, 1263.)
As explained above, the evidence was sufficient to permit a reasonable jury to find
that defendant shot the victim in the course of robbing him.
(b) Kidnapping for robbery, and first degree felony-murder
predicated on kidnapping for robbery
Defendant contends the evidence was insufficient to support his conviction
of kidnapping for robbery, and of first degree felony-murder to the extent the latter
offense was predicated upon murder perpetrated in the commission of a
kidnapping for robbery.
65
“Any person who kidnaps or carries away any individual to commit
robbery” is guilty of kidnapping for robbery. (§ 209, subd. (b).) “Kidnapping for
robbery, or aggravated kidnapping, requires movement of the victim that is not
merely incidental to the commission of the robbery, and which substantially
increases the risk of harm over and above that necessarily present in the crime of
robbery itself.” (People v. Rayford (1994) 9 Cal.4th 1, 12.)
Defendant does not challenge the sufficiency of the evidence establishing
that the victim was kidnapped, but asserts that the evidence was insufficient to
establish that the victim was kidnapped to facilitate the commission of a robbery.
His claim of error is based upon the same arguments, discussed above, that he
made regarding the asserted absence of intent to commit robbery. For the reasons
already stated, defendant‟s related claim regarding kidnapping for robbery also
must fail.
(c) First degree felony-murder predicated on kidnapping
Defendant contends insufficient evidence supports any verdict of felony
murder predicated upon a finding that the murder was committed in the course of a
kidnapping. As noted above, however, there was substantial evidence
demonstrating that defendant committed the crime of kidnapping — that is, that he
forced the victim into the trunk of his own automobile at gunpoint, and then
transported him over a substantial distance without his consent. There also was
substantial evidence indicating that defendant killed Kondrath during the
commission of that kidnapping, and that he killed the victim in order to advance
the commission of the kidnapping — that is, to eliminate Kondrath as a witness.
(See People v. Green, supra, 27 Cal.3d at p. 61.) The evidence was sufficient to
permit a reasonable jury to find that defendant shot the victim in the course of
kidnapping him.
66
7. Asserted cumulative error
We have not identified any error that was prejudicial, whether considered
separately or cumulatively. (See People v. Salcido (2008) 44 Cal.4th 93, 111.)
B. Asserted Errors Affecting the Penalty Phase of Trial
1. Asserted “spillover” effect from denial of defendant’s severance
motion
We concluded above that the trial court did not err in denying defendant‟s
motion for severance, and that whatever error accrued from the admission of the
codefendants‟ redacted statements at the joint trial was harmless beyond a
reasonable doubt. We must address this issue again, however, because defendant
claims the trial court‟s asserted error at the guilt phase created a “spillover” effect
at the penalty phase of his trial.
Defendant contends the denial of his severance motion prejudiced him at
the penalty phase of the trial because the joinder of the trial of the three
defendants, and the admission of the codefendants‟ statements, permitted the
prosecutor to refer repeatedly to defendant‟s primary role in the murder.
According to defendant, the prosecution emphasized that he was the actual
shooter — not an accomplice like his codefendants — and, because of this
heightened culpability, that defendant should be sentenced to death. Defendant
contends this argument was improper and highly prejudicial in light of section
190.3, factor (j), which allows the jury to consider “[w]hether or not the defendant
was an accomplice to the offense and his participation in the commission of the
offense was relatively minor.”
Although the prosecutor referred to factor (j) and remarked upon
defendant‟s primary role in committing the crimes against Kondrath, the
comments were fully supported by defendant‟s own statement — in which he
admitted robbing, kidnapping, and shooting the victim — and the testimony of
67
David Schindler, who saw two men fleeing the scene of the shooting. The
prosecutor did not refer at the penalty phase of the trial to the redacted statements
of the codefendants, which were not admitted into evidence against defendant, and
the jury was instructed not to consider those statements as evidence against
defendant at the penalty phase.
We concluded above that defendant was not prejudiced by any error in
admitting the redacted statements of his codefendants at the guilt phase of the trial.
Similarly without merit is defendant‟s contention that the admission of these
statements at the guilt phase — and the related denial of his motion for
severance — prejudiced him at the penalty phase of his trial.14
2. The trial court’s refusal to instruct the jury that defendant’s age
was a mitigating factor
Defense counsel requested a modified instruction concerning age as a factor
in mitigation. Pointing to the circumstance that defendant was 18 years of age at
the time of the crime, he requested that the court modify CALJIC No. 8.85 to
instruct the jury explicitly that “examples of mitigating factors include” “[t]he
14
Defendant contends the trial court erred in refusing to instruct the jury that
evidence introduced at the guilt phase regarding defendant‟s criminal activity
should not be considered a factor in aggravation. Defendant sought to have the
trial court instruct the jury that “[e]vidence has been introduced in the guilt and
penalty phases of this trial that may show that the defendant engaged in criminal
activity which you may not consider as a factor in aggravation. You may consider
only the crimes which I will define for you in determining whether or not the
defendant has engaged in criminal activity which involves the use or the express
or implied threat to use force or violence.” The trial court declined to provide the
jury with this requested instruction. Defendant does not explain, and we fail to
discern, how providing the jury with this instruction would have obviated the
asserted prejudicial “spillover” effect from the denial of severance, and because
we find no “spillover” we also conclude the trial court did not err in refusing this
proposed instruction.
68
defendant‟s age, immaturity, or lack of emotional development at the time of the
commission of the crime.” The trial court refused defendant‟s proffered
modification and instructed the jury pursuant to the court‟s own modification of
CALJIC No. 8.85 that “[t]he age of the defendant at the time of the crime shall not
be considered as an aggravating factor.”
We discern no error in either the court‟s own modification of the
instruction, or in its refusal to instruct the jury as requested by defendant. The trial
court is not constitutionally required to instruct the jury that age is relevant only to
mitigation. (People v. Panah (2005) 35 Cal.4th 395, 499-500; People v. Kraft
(2000) 23 Cal.4th 978, 1078-1079.) The trial court did instruct the jury that
defendant's age could not be considered as an aggravating factor, and the
instructions as a whole permitted the jury to consider defendant‟s youth as a
mitigating factor. (People v. Panah, supra, 35 Cal.4th at pp. 499-500; CALJIC
No. 8.85 [instructing jury that it may consider in mitigation 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 that the defendant offers as a basis for a sentence less than
death”].)
3. Admission of victim-impact testimony
Defendant contends the trial court erred in admitting victim-impact
evidence at the penalty phase of his trial, claiming the evidence was unduly
prejudicial. The victim‟s father, Joseph Kondrath, mother, Joanna Kondrath,
sister, Ronna Kondrath, and fiancée, Claudia Divito, testified concerning the
deleterious impact of the victim‟s murder on themselves and others, how much
they missed the victim, and the victim‟s sweet and peaceful nature.
69
We frequently have upheld the introduction of victim-impact evidence.
“Unless it invites a purely irrational response from the jury, the devastating effect
of a capital crime on loved ones and the community is relevant and admissible as a
circumstance of the crime under section 190.3, factor (a).” (People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1056-1057.) “The federal Constitution bars victim
impact evidence only if it is „so unduly prejudicial‟ as to render the trial
„fundamentally unfair.‟ ” (Id. at p. 1056, quoting Payne v. Tennessee (1991) 501
U.S. 808, 825.)
In the present case, each witness‟s testimony was brief and apparently was
delivered without undue emotion, as far as the record demonstrates. The victim-
impact evidence admitted in this case was typical of this type of evidence that we
routinely have allowed, and came within the limits established for such evidence.
(See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 444 [family members spoke of
their love of the victims and how they missed having them in their lives;
photographs were presented of the victims while alive].) Admission of the victim-
impact testimony received in the present case did not violate defendant‟s
constitutional rights.
4. Challenge to pattern instructions
(a) CALJIC No. 8.87
Defendant contends the trial court erred in instructing the jury pursuant to
CALJIC No. 8.87 (1989 rev.) concerning its consideration of evidence of
uncharged crimes.15 The prosecution introduced evidence of three acts of
violence committed by defendant against his ex-girlfriend, Sylvia Carmona, and
15
Language similar to former CALJIC No. 8.87 now appears in CALCRIM
No. 764.
70
an act of violence committed by defendant against his stepfather, Lee Thomas. At
the conclusion of the penalty phase, the trial court instructed the jury pursuant to
the 1989 revision of CALJIC No. 8.87, which stated in relevant part:
“Evidence has been introduced for the purpose of showing that the
defendant has committed the following criminal acts: assaults and batteries on
Sylvia Carmona on July 15, 1991, July 17, 1991, and in May of 1992 and assault
with a deadly weapon on Lee Thomas on May 9, 1992, which involved the express
or implied use of force or violence or the threat of force or violence. Before a
juror may consider any of such criminal acts as an aggravating circumstance in
this case, a juror must first be satisfied beyond a reasonable doubt that the
defendant did in fact commit such criminal acts.”
Defendant contends that the use of revised CALJIC No. 8.87 was error
because its language constituted a directed verdict to the jury as to (1) whether the
uncharged conduct constituted a crime, and (2) whether the evidence involved the
express or implied use of force or violence or the threat of force or violence under
section 190.3, factor (b). “We have held, however, that the characterization of
other crimes as involving express or implied use of force or violence, or the threat
thereof, is a legal question properly decided by the court.” (People v. Loker,
supra, 44 Cal.4th at p. 745; see People v. Monterroso (2004) 34 Cal.4th 743, 793.)
Defendant also contends that because the trial court instructed the jury in
the terms of CALJIC No. 8.87, and failed to require unanimity regarding factors in
aggravation, the penalty phase of his trial was constitutionally inadequate in that
the error interfered with the jury‟s ability to make a reliable determination of the
appropriate punishment, in violation of the Eighth Amendment of the United
States Constitution. The second paragraph of CALJIC No. 8.87 informed the jury:
“It is not necessary for all jurors to agree. If any juror is convinced beyond a
71
reasonable doubt that such criminal activity occurred, that juror may consider that
activity as a fact in aggravation.”
Defendant acknowledges that we previously have held that nothing in the
federal Constitution or in statutory law requires the penalty phase jury to agree
unanimously that a particular aggravating circumstance exists. (People v.
Williams (2008) 43 Cal.4th 584, 648-649; People v. Berryman (1993) 6 Cal.4th
1048, 1101-1102.) Defendant contends, however, that our prior conclusions have
been abrogated by the United States Supreme Court‟s decisions in Apprendi v.
New Jersey (2000) 530 U.S. 446 and Ring v. Arizona (2002) 536 U.S. 584. We
previously have rejected this contention. “While each juror must believe that the
aggravating circumstances substantially outweigh the mitigating circumstances, he
or she need not agree on the existence of any one aggravating factor. This is true
even though the jury must make certain factual findings in order to consider
certain circumstances as aggravating factors. As such, the penalty phase
determination „is inherently moral and normative, not factual . . . .‟ (People v.
Rodriguez (1986) 42 Cal.3d 730, 779.) Because any finding of aggravating factors
during the penalty phase does not „increase[] the penalty for a crime beyond the
prescribed statutory maximum‟ (Apprendi, supra, 530 U.S. at p. 490), Ring
imposes no new constitutional requirements on California‟s penalty phase
proceedings. Accordingly, our rulings rejecting the need to instruct on the
presumption of innocence during the penalty phase still control.” (People v.
Prieto (2003) 30 Cal.4th 226, 263.)
72
(b) CALJIC No. 8.85
Defendant contends the trial court erred by refusing to modify the language
of pattern instruction CALJIC No. 8.85,16 which set forth the mitigating factors to
be considered by the jury in making its penalty determination. Defendant sought
to modify the instructions to add 22 additional specific examples of mitigating
evidence such as “[w]hether the defendant was a loving and helpful man in his
relationship with his friends and relatives”; “[w]hether the defendant has a
calming and guiding effect upon other inmates”; and “the absence of any prior
felony or misdemeanor convictions.” The trial court refused to modify the
standard instruction as requested by defendant and instructed the jury according to
the pattern language of CALJIC No. 8.85, with the modification discussed above
relating to defendant‟s age.
Defendant contends that asserted defects in pattern instruction CALJIC
No. 8.85 prejudicially affected the jurors‟ understanding of their weighing
function, in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. We decline to reconsider our prior
decisions holding that this instruction is not flawed for its failure to identify which
facts may be considered aggravating and which may be considered mitigating
(People v. Cruz (2008) 44 Cal.4th 636, 681; People v. Valencia (2008) 43 Cal.4th
268, 309 [“CALJIC No. 8.85 is both correct and adequate”]); that the trial court is
not compelled to delete assertedly inapplicable factors from the instruction
(People v. Farnam (2002) 28 Cal.4th 107, 191-192); and that the instruction does
not “ „encourage the double counting of aggravating factors.‟ ” (People v. Ayala
(2000) 24 Cal.4th 243, 289.)
16
Language similar to former CALJIC No. 8.85 now appears in CALCRIM
No. 763.
73
(c) Special instruction regarding the role of sympathy and mercy
Defendant contends the trial court‟s refusal to give his proffered
instructions regarding the consideration of sympathy and mercy violated his rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution and parallel provisions of the state Constitution. Defendant‟s
proposed instruction informed the jury that mitigating evidence did not excuse the
offense, but that “fairness, sympathy, compassion, or mercy, may be considered in
extenuating or reducing the degree of moral culpability.”
The trial court instructed the jury pursuant to CALJIC No. 8.85, which
provided, in relevant part, that the jury may consider “[a]ny 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 that the defendant offers as a basis for a sentence less than death, whether
or not related to the offense for which he is on trial.” (CALJIC No. 8.85, factor
(k).) The prosecutor did not argue to the jury that it should not consider sympathy
or mercy. We have concluded that CALJIC No. 8.85 adequately instructs the jury
concerning the circumstances that may be considered in mitigation, including
sympathy and mercy. (People v. Brasure (2008) 42 Cal.4th 1037, 1070.) There
was no error. (People v. Wader (1993) 5 Cal.4th 610, 663; People v. Caro (1998)
46 Cal.3d 1035, 1067.)
(d) Special instructions regarding mitigating factors
Defendant contends the trial court‟s refusal to give his proffered
instructions concerning the distinction between (and the proper use of) aggravating
and mitigating factors violated his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution and parallel provisions
of the state Constitution. These instructions would have advised the jury, in varied
ways, that they might consider any evidence in mitigation — including
74
specifically the absence of prior felony convictions — and that any mitigating
factor, standing alone, could support a determination that death was not the
appropriate punishment in this case. Defendant also sought to have the jury
instructed that the view of any one juror that a factor in mitigation exists is
sufficient to allow any other juror to consider such factor to have been established,
and that the jurors may require a degree of certainty — for proof of guilt —
greater than proof beyond a reasonable doubt. Defendant contends his requested
special instructions merely supplemented the general principles contained in the
pattern CALJIC instructions rendered by the court.
In asserting error in the trial court‟s rejection of his proposed instructions,
defendant contends, again, that CALJIC No. 8.85 is defective. He asserts that his
proffered special instructions would have corrected those defects, but the sole
specific example he provides is that one of his instructions would have informed
the jury that the absence of any prior felony conviction incurred by defendant
could not be treated as a factor in aggravation but only as mitigation. The pattern
instruction, however, does not suggest that the absence of any mitigating factor
should be considered in aggravation. (People v. Page (2008) 44 Cal.4th 1, 51.)
As noted above, we repeatedly have held CALJIC No. 8.85 to be “correct and
adequate.” (People v. Valencia, supra, 43 Cal.4th at p. 309.) There was no error.
(e) CALJIC No. 8.84.1
Defendant contends he was denied his right to due process and to a reliable
determination of penalty under the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution because the trial court instructed
the jury, pursuant to CALJIC No. 8.84.1, that it “must determine what the facts are
from the evidence received during the entire trial unless you are instructed
otherwise.” Defendant, acknowledging that his proffered alternative set of
75
instructions merely supplemented the standard CALJIC instructions, sought to
have the jury instructed regarding the consideration to be given to the guilt phase
evidence and verdict and to the evidence of uncharged violent acts.17 The trial
court declined to give defendant‟s proffered instructions. Defendant asserts that
the pattern instruction erroneously permitted the jury to consider in aggravation
the crimes his codefendants committed against Cynthia Melson when they fired
into her apartment.
Defendant‟s claim is without merit. Defendant told the detectives that he
willingly accompanied his codefendants to obtain a gun that was to be used to fire
at members of the Watergate Crips gang. Defendant drove his codefendants to the
area where Cynthia Melson lived. Forensic experts testified that the shotgun shell
17
Specifically, defendant sought the following instructions with respect to the
determination of penalty:
“You may not treat the verdict and finding of first degree murder
committed under special circumstances[s], in and of themselves, as constituting an
aggravating factor . . . .”
“You must not consider as an aggravating factor the existence of any
special circumstance if you have already considered the facts of the special
circumstance as a circumstance of the crimes for which the defendant has been
convicted. In other words, do not consider the same factors more than once in
determining the presence of aggravating factors.”
“Evidence has been introduced in the guilt and penalty phases of this trial
that may show that the defendant engaged in criminal activity which you may not
consider as a factor in aggravation. You may consider only the crimes which I
will define for you in determining whether or not the defendant has engaged in
criminal activity which involves the use or the express or implied threat to use
force or violence.”
“Although evidence was presented at the guilt phase of this trial, which
may have tended to establish that the defendant may have been involved in non-
violent criminal activity that did not result in a felony conviction, you may not
consider that evidence in determining which sentence to impose. Remember, the
only facts that can be considered by you as aggravating factors are those set forth
in subparagraphs (a), (b), and (c) above.”
76
casings and wadding recovered from inside the Melson residence were from the
same type of cartridge as the casings recovered from Kondrath‟s automobile.
From this evidence, the jury was entitled to conclude that defendant aided and
abetted in the firing of shots into Melson‟s apartment and, therefore, because that
shooting constituted part of the criminal activities committed by defendant that
night, the jury was entitled to consider the incident at the penalty phase of the trial.
It is also beyond dispute that the incident constituted criminal activity involving
the use of force — activity that therefore could be considered by the jury in
aggravation pursuant to factor (b) of section 190.3.
(f) CALJIC No. 8.88
The trial court instructed the jury in the language of CALJIC No. 8.88,18
which defines factors in aggravation and mitigation. Defendant asserts the court
erred by refusing to give the modified version of the instruction he requested
regarding the proper manner of weighing aggravating and mitigating factors.19
18
Language similar to former CALJIC No. 8.88 now appears in CALCRIM
No. 763.
19
Specifically, defendant sought to have the jury instructed that:
“Each juror makes an individual evaluation of each fact or circumstance
offered in mitigation of penalty.”
A finding of mitigation could be made by one or more members of the jury,
and “any member of the jury who finds the existence of a mitigating factor may
consider such a factor established, regardless of the number of jurors who concur
that the factor has been established.”
Only specific aggravating factors may be considered, and although any
evidence might constitute a factor in mitigation, “[y]ou are not permitted to
consider any factor as aggravating unless it is specified on the list of factors you
have been given previously. There is, however, no limitation on what you may
consider as mitigating.”
In considering mitigating evidence, any such evidence may warrant a
sentence less than death, and “you may return a verdict of life imprisonment
(footnote continued on next page)
77
We repeatedly have held that the standard version of CALJIC No. 8.88 is adequate
and correct. (People v. Boyette, supra, 29 Cal.4th 381, 464-465; People v.
Gutierrez (2002) 28 Cal.4th 1083, 1160-1161; People v. Gurule (2002) 28 Cal.4th
557, 661-662.) Defendant‟s proffered instructions merely restated the principles
that flowed logically from the pattern instructions, and the trial court was not
required to inform the jury that the sole aggravating factors it may consider are
those listed in its instructions. (People v. Berryman, supra, 6 Cal.4th at p. 1100.)
(g) Burden of proof
Defendant also proffered jury instructions purporting to inform the jury
regarding the respective burdens of proof required at the penalty phase.20 The trial
court properly declined to give these instructions.
(footnote continued from previous page)
without possibility of parole even if you find that the factors and circumstances in
aggravation outweigh those in mitigation.”
20
Defendant‟s proffered instructions stated, in relevant part:
“A mitigating circumstance need not be proved beyond a reasonable doubt
nor even by a preponderance of the evidence, and each juror may find a mitigating
circumstance to exist if there is any evidence to support it.”
“A defendant in a criminal action is presumed to be innocent until the
contrary is proved, and in the case of a reasonable doubt as to whether the
aggravating factors exist, he is entitled to have you not consider such factors in
your deliberations on the appropriate penalty unless so proved. All twelve jurors
must agree as to the existence of any aggravating factor before it may be
considered by you. If the jury does not unanimously agree that the existence of an
aggravating factor has been proven, no juror may consider it in reaching their
penalty verdict.”
“If you have a doubt as to which penalty to impose, death or life in prison
without the possibility of parole, you must give the defendant the benefit of the
doubt and return a verdict fixing the penalty at life in prison without the possibility
of parole.”
78
“[E]xcept for prior violent crimes evidence and prior felony convictions
under section 190.3, factors (b) and (c), the court need not instruct regarding a
burden of proof . . . . [Citations.]” (People v. Cruz, supra, 44 Cal.4th at p. 681.)
Because “ „[u]nlike the guilt determination, “the sentencing function is inherently
moral and normative, not factual” [citation] and, hence, not susceptible to a
burden-of-proof quantification‟ ” (People v. Manriquez (2005) 37 Cal.4th 547,
589), it is sufficient that the jury was instructed that “ „[t]o 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 possibility of parole.‟ ” (Ibid.) Moreover, “[t]he United
States Supreme Court decisions rendered in Ring v. Arizona (2002) 536 U.S. 584
and Apprendi v. New Jersey (2000) 530 U.S. 466 do not compel a different
conclusion.” (Ibid.; see also People v. Williams, supra, 43 Cal.4th at p. 649 [the
high court‟s decision in Cunningham v. California (2007) 549 U.S. 270 does not
compel a different result].)
(h) Special instruction regarding role of mitigating factors
Finally, defendant asserts the trial court erred in refusing to give an
instruction informing the jury that, with regard to the statutory aggravating factors,
the “factors which I have just listed are the only factors that can be considered by
you as aggravating factors[,]” but that “[a]ny one of the mitigating factors,
standing alone, may support a decision that death is not the appropriate
punishment in this case.”
No modified instruction was warranted. The jury was instructed pursuant
to CALJIC No. 8.88 regarding the weighing of aggravating and mitigating
circumstances. We note, too, that in argument to the jury, the prosecution
acknowledged, “if you find one factor that is mitigating, that alone can be the basis
79
for your returning a verdict other than death.” It thus was clear to the jury that a
single mitigating factor, standing alone, could justify a verdict of life
imprisonment rather than a verdict of death.
5. Asserted prosecutorial misconduct
Defendant alleges prosecutorial misconduct occurred stemming from
several remarks made by the prosecutor during closing argument. As noted above,
defendant requested that the trial court instruct the jury that the absence of
mitigation did not constitute aggravation, that defendant demonstrated remorse,
and that defendant likely would not be a danger to others were he to be sentenced
to life imprisonment without the possibility of parole. Defendant asserts that the
objective of these requests, all denied by the trial court, was to preclude the
prosecution from arguing contrary propositions. Defendant now contends the
prosecutor‟s purported assertions in closing argument that the absence of
mitigation constituted aggravation, that defendant failed to demonstrate any
remorse, and that defendant would present a danger to others were he not
sentenced to death, constituted misconduct.
Defendant acknowledges that he did not object to the prosecutor‟s closing
argument, but contends that his claim of prosecutorial misconduct is not forfeited
on appeal, because he requested special instructions that would have informed the
jury of the converse of the prosecutor‟s statements. In the alternative, he urges us
to review his claim pursuant to section 1259, which permits an appellate court to
review a claim of instructional error in the absence of objection at trial if a
defendant‟s substantial rights were affected. Neither of defendant‟s arguments for
preservation of the issue has merit, and his claim is forfeited. (People v. Carasi
(2008) 44 Cal.4th 1263, 1315.) As we concluded above, defendant‟s claims of
instructional error lack merit, and therefore he has not shown an abridgement of a
80
substantial right. In any event, a request for a special jury instruction is not the
equivalent of or a substitute for a required objection to prosecutorial misconduct.
Even if defendant had preserved this claim, it lacks merit. The prosecutor
is entitled to note the absence of the mitigating circumstance of remorse and may
comment upon a capital defendant‟s potential for future dangerousness. (People v.
Salcido, supra, 44 Cal.4th at p. 160 [finding no statutory bar to a logical comment
on a defendant‟s lack of remorse, and finding such remarks proper]; People v.
Davenport (1985) 41 Cal.3d 247, 288 [a prosecutor‟s comments on a capital
defendant‟s future dangerousness are “within the proper bounds of argument to the
jury”].) Moreover, the record does not support defendant‟s contention that “the
prosecutor argued that absence of mitigation constituted aggravation.” The
prosecutor, although observing that defendant did not avail himself of
opportunities to succeed at home, in school, or at work, did not urge at any point
that the absence of mitigating factors, including remorse, should be considered in
aggravation.
6. “Spillover” effect of guilt phase errors on penalty determination
Defendant renews many of the same claims he made concerning the guilt
phase of his trial, contending that alleged guilt-phase errors rendered the penalty
determination unreliable. Specifically, he points to the asserted errors in admitting
autopsy and crime scene photographs, the claimed insufficiency of the evidence
supporting his convictions for kidnapping for robbery and first degree murder;
asserted instructional errors concerning flight and the defense theory of the case;
and the court‟s failure to instruct on various lesser included offenses. He claims
that these asserted errors in the aggregate improperly prejudiced the jury at the
penalty phase of the proceedings. As explained above, there is no merit in any of
defendant‟s claims that error was committed at the guilt phase, and accordingly his
81
contention that such errors cumulatively were prejudicial at the penalty phase
lacks merit.
7. Failure to instruct the jury not to “double count” special
circumstances, and related prosecutorial misconduct
As described above, defendant requested special jury instructions that
would have informed the jurors that they could not “double count” certain facts as
factors in aggravation if those facts had been relied upon by the jury in
determining defendant‟s guilt of the charged crimes, or in determining the truth of
the special circumstance allegations. As noted earlier, the trial court was not
required to deliver these requested special instructions.
Defendant now contends that the prosecutor misled the jury by stating that
the two special circumstance findings were to be considered separately in
aggravation apart from the circumstances of the crime, and that in so doing, the
prosecutor urged the jury to double count the special circumstances.
Defendant did not object to the prosecutor‟s remarks at trial, and
accordingly his claim is forfeited. (People v. Carasi, supra, 44 Cal.4th at
p. 1315.) Even if there were no forfeiture, we would conclude that nothing in
those remarks misled the jury into considering — as separate instances of
aggravation — the evidence establishing the special circumstances and the special
circumstances findings themselves. The prosecutor stated: “The (a) factor, which
is the circumstance of the crime and the special circumstances, which were two in
this case, that you the jury found, and you can consider those as aggravating
factors . . . .” This isolated statement cannot logically be read as urging the jury to
double count the special circumstances when considered in the context of the
prosecutor‟s complete argument to the jury, which otherwise made clear that the
circumstances of the crime should be considered in aggravation only once.
“ „[W]e have already concluded that the standard instructions do not inherently
82
encourage the double counting of aggravating factors.‟ ” (People v. Ayala, supra,
24 Cal.4th at p. 289.) There is no reasonable likelihood that the prosecutor‟s
isolated statement, when considered together with the instruction given to the jury
regarding the proper consideration of aggravating factors, caused the jury to apply
the challenged instruction in a way that violates the Constitution. (Ibid.)
Accordingly, no special instruction regarding “double counting” was necessary.
(People v. Melton (1988) 44 Cal.3d 713, 768-769.)
8. Challenges to California’s death penalty scheme
Defendant contends the California sentencing scheme is constitutionally
flawed because it does not require explicit findings by the jury as to which
aggravating factors it relied upon in reaching a death verdict. “[N]othing in the
federal Constitution requires the penalty phase jury to (1) make written findings of
the factors it finds in aggravation and mitigation [citations]; (2) agree unanimously
that a particular aggravating circumstance exists [citations]; (3) find all
aggravating factors proved beyond a reasonable doubt or by a preponderance of
the evidence [citations]; (4) find that aggravation outweighs mitigation beyond a
reasonable doubt [citations]; or (5) conclude beyond a reasonable doubt that death
is the appropriate penalty. [Citations.]” (People v. Williams, supra, 43 Cal.4th at
pp. 648-649.) The application of these principles to the determination of penalty
does not violate equal protection principles established by the Fourteenth
Amendment to the United States Constitution. (People v. Cruz, supra, 44 Cal.4th
at p. 681 [“capital defendants are not similarly situated to noncapital defendants,
[so] the death penalty law does not violate equal protection by denying capital
defendants certain procedural rights given to noncapital defendants”]; People v.
Valencia, supra, 43 Cal.4th at p. 311; People v. Johnson (1992) 3 Cal.4th 1183,
1242-1243; People v. Bacigalupo (1991) 1 Cal.4th 103, 145-146.)
83
Similarly, we have considered and rejected defendant‟s claims that
California‟s death penalty scheme is unconstitutional because it permits the jury to
make multiple use of a single underlying felony (People v. Gates (1987) 43 Cal.3d
1168, 1188-1190); that unfettered prosecutorial discretion renders the death
penalty scheme unconstitutional (People v. Brown (2004) 33 Cal.4th 382, 403);
and that the 1978 death penalty statute unconstitutionally fails to narrow the class
of death-eligible murders. (People v. Mungia (2008) 44 Cal.4th 1101, 1141.)
Defendant has not persuaded us to reconsider our prior holdings, and we decline to
do so.
9. Denial of automatic motion to modify the penalty verdict
After the jury returned a verdict of death, defendant moved for a new
penalty trial, and, alternatively, for modification of the penalty verdict under
section 190.4. He contended he did not receive a fair trial because of the improper
admission of the redacted statements of his codefendants at the joint trial on the
issue of guilt, and because of the trial court‟s refusal to give defendant‟s requested
special instructions regarding aggravating factors. Defendant also asserted that a
sentence of death was unfair because the codefendants blamed him for the
underlying crimes, minimizing their own role, when in actuality it was the
codefendants who urged and instigated defendant to shoot the victim. The trial
court denied both motions.
Defendant now contends the trial court erred because it failed to consider
the lesser sentences imposed upon his codefendants, who he continues to allege
are more culpable than he in the murder. Codefendant Burnett was found guilty of
murder along with defendant and was sentenced to life imprisonment without
possibility of parole. Codefendant Rembert was not convicted of the murder until
after appellant was sentenced to death (see fn. 2, ante). Defendant did not present
84
a proportionality argument to the trial court in his motion or at the hearing on the
motion, and he therefore forfeited this issue. (See People v. Riel, supra, 22
Cal.4th at p. 1220 [the contemporaneous objection rule applies to cases in which
the modification hearing was conducted after this court‟s decision in People v. Hill
(1992) 3 Cal.4th 959, 1013.)
In any event, defendant‟s claim is without merit. Defendant contends the
trial court erred by failing to consider all applicable facts regarding defendant‟s
involvement in the murder — most notably, that he is assertedly less culpable for
the murder than his codefendants.21 Defendant is unable to point to any evidence
in the record, however — outside his own statement to the police — to support his
claim, and our own examination of the record reveals that the trial court
considered all of the available evidence in arriving at its decision to deny
defendant‟s motion for new trial, or in the alternative to set aside the verdict of
death.
First, the trial court specifically found that the “defendant did not commit
murder while acting under extreme duress, or in fact, any duress at all,” which
indicates the court considered and rejected defendant‟s contention at trial that he
killed Kondrath because of threats or compulsion exerted by his codefendants.
Moreover, contrary to defendant‟s assertion on appeal, there is no evidence in the
record to support his claim that his codefendants were “more culpable” than he in
21
“This court‟s refusal to conduct intercase proportionality review of a death
sentence does not violate the federal Constitution. [Citation.] But when a
defendant requests intracase proportionality review, as defendant does here, we
review the particular facts of the case to determine whether the death sentence is
so disproportionate to the defendant‟s personal culpability as to violate the
California Constitution‟s prohibition against cruel or unusual punishment.”
(People v. Wallace (2008) 44 Cal.4th 1032, 1098-1099.)
85
the murder. Defendant willingly left the apartment with Burnett and Rembert,
intending to assault Ron Hussar and to steal his stereo. Defendant actively
participated in the carjacking involving the murder victim. Defendant drove the
victim‟s automobile, with the victim in the trunk, to Jeffrey Howard‟s residence to
obtain a shotgun, then to a rival gang‟s territory in search of rival gang members,
and finally, to the residence of Cynthia Melson, where codefendants fired more
shots. Finally, and most notably, it was defendant, not either of his codefendants,
who shot and killed the victim even though the victim was pleading for his life.
Although defendant asserts throughout his briefing that his codefendants were
“more culpable” than he because he shot the victim at their urging, this assertion
does not supersede the evidence in the record establishing defendant‟s primary
role in the victim‟s murder.
Under these circumstances, the trial court carefully and properly performed
its duty under section 190.4. No error under state law or federal constitutional law
appears.
10. Alleged cumulative error
Defendant asserts that numerous alleged errors committed during both the
guilt phase and the penalty phase of his trial, even if not individually requiring
reversal of the judgment, cumulatively impacted the jury‟s penalty determination
and require reversal of the judgment of death. We find no error, whether
considered singly or cumulatively, that would warrant reversal.
11. California methods of execution
Defendant contends California‟s “default” method of execution — lethal
injection — is unconstitutional because the state‟s failure to comply with the
statutory mandate to develop proper standards for the administration of lethal
injection violates his right to due process of law. He also asserts that both lethal
86
injection and the alternative method of execution, the administration of lethal gas,
constitute cruel and unusual punishment in violation of the Eighth Amendment of
the United States Constitution. As we previously have held, a challenge to the
method of a future execution is not cognizable on appeal, because such a claim
does not impugn the validity of the judgment. (People v. Demetrulias (2006) 39
Cal.4th 1, 45; People v. Holt (1997) 15 Cal.4th 619, 702.)
12. Violations of international law
Defendant contends that the asserted denials of his state and federal
constitutional rights constitute violations of international law. We have found no
denial of defendant‟s constitutional rights, and accordingly the premise of
defendant‟s argument fails. (People v. Mungia, supra, 44 Cal.4th 1101, 1142-
1143.) Additionally, defendant implies his rights under international law were
violated because he suffers from mental impairment. No evidence in the record
supports this claim.
IV.
CONCLUSION
For the foregoing reasons, we affirm the judgment in its entirety.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
87
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Burney
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S042323
Date Filed: July 30, 2009
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Robert R. Fitzgerald
__________________________________________________________________________________
Attorneys for Appellant:
Geraldine S. Russell, under appointment the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood, Warren P. Robinson and Annie
Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Geraldine S. Russell
Post Office Box 2160
La Mesa, CA 91943-2160
(619) 589-5444
Annie Featherman Fraser
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2196
Automatic appeal from a judgment of death.
Date: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
Thu, 07/30/2009 | S042323 | Automatic Appeal | opinion issued | BURNEY (SHAUN) ON H.C. (S133439) |
1 | The People (Respondent) Represented by Attorney General - San Diego Office Warren Robinson, Deputy Attorney General P.O. Box 85266 San Diego, CA |
2 | The People (Respondent) Represented by Annie Featherman Fraser Office of the Attorney General P.O. Box 85266 San Diego, CA |
3 | The People (Respondent) Represented by Lilia E. Garcia Office of the Attorney General P.O. Box 85266 San Diego, CA |
4 | Burney, Shaun Kareem (Appellant) San Quentin State Prison Represented by Geraldine S. Russell Attorney at Law P.O. Box 2160 La Mesa, CA |
Disposition | |
Jul 30 2009 | Opinion: Affirmed |
Dockets | |
Sep 16 1994 | Judgment of death |
Sep 23 1994 | Filed certified copy of Judgment of Death Rendered September 16, 1994. |
Oct 11 1994 | Application for Extension of Time filed By Court Reporter Armella Martin and Others to Complete R.T. |
Oct 13 1994 | Extension of Time application Granted To the Court Reporters To 11-7-94 To Complete R.T. |
Nov 18 1998 | Counsel appointment order filed Geraldine S. Russell Is appointed to represent Applt for Both the direct Appeal and Related State Habeas Corpus/Executive Clemency Proceedings. |
Nov 18 1998 | Compensation awarded counsel |
Nov 19 1998 | Filed: Request by Inmate for Dual representation. |
Nov 19 1998 | Filed: Request by Counsel for Dual representation appointment. |
Dec 14 1998 | Note: Superior Court mailed Record to Counsel on 12-7-98. |
Dec 28 1998 | Application for Extension of Time filed To request Record correction |
Jan 4 1999 | Extension of Time application Granted To 3-1-99 To request Record correction |
Feb 25 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
Mar 1 1999 | Extension of Time application Granted To 4-30-99 To request Record correction |
Apr 27 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
Apr 28 1999 | Extension of Time application Granted To 6-29-99 To request Record correction |
May 27 1999 | Received: Copy of Applt's motion to Seal Records; to Settle Record; to Augment; motion to Examine Sealed Transcripts; request for correction (30 Pp.) |
Jun 1 1999 | Compensation awarded counsel |
Feb 4 2000 | Change of Address filed for: Atty Geraldine Russell |
Mar 8 2000 | Compensation awarded counsel Atty Russell |
Apr 25 2000 | Record on appeal filed C-14 (3,711 Pp.) and R-23 (4,378 Pp.) Including Material Under Seal |
Apr 25 2000 | Appellant's opening brief letter sent, due: 6/5/2000 |
May 1 2000 | Compensation awarded counsel Atty Russell |
May 26 2000 | Application for Extension of Time filed To file Aob. |
May 31 2000 | Extension of Time application Granted To 8/4/2000 To file Aob. |
Jul 31 2000 | Application for Extension of Time filed to file AOB (2nd request) |
Aug 1 2000 | Extension of Time application Granted to 10-3-2000 to file AOB. |
Aug 29 2000 | Counsel's status report received (confidential) |
Sep 25 2000 | Application for Extension of Time filed To file AOB. (3rd request) |
Sep 28 2000 | Extension of Time application Granted To 12/4/2000 to file AOB. |
Oct 17 2000 | Compensation awarded counsel Atty Russell |
Nov 22 2000 | Application for Extension of Time filed To file AOB. (4th request) |
Nov 29 2000 | Extension of Time application Granted To 2/2/2001 to file AOB. |
Jan 2 2001 | Counsel's status report received (confidential) |
Jan 10 2001 | Compensation awarded counsel Atty Russell |
Jan 25 2001 | Application for Extension of Time filed To file AOB. (5th request) |
Jan 31 2001 | Extension of Time application Granted To 4/3/2001 to file AOB. |
Mar 5 2001 | Counsel's status report received (confidential) |
Mar 22 2001 | Application for Extension of Time filed To file AOB. (6th request) |
Mar 26 2001 | Application for Extension of Time filed Suppl. declaration for ext. of time to file AOB. |
Apr 5 2001 | Extension of Time application Granted To 6/4/2001to file AOB. |
Apr 23 2001 | Compensation awarded counsel Atty Russell |
Apr 30 2001 | Counsel's status report received (confidential) from atty Russell. |
May 23 2001 | Application for Extension of Time filed To file AOB. (7th request) |
Jun 19 2001 | Extension of Time application Granted To 8/3/2001 to file AOB. |
Jun 29 2001 | Counsel's status report received (confidential) from atty Russell |
Jul 26 2001 | Application for Extension of Time filed To file AOB. (8th request) |
Jul 30 2001 | Extension of Time application Granted To 10/2/2001 to file AOB. |
Aug 29 2001 | Counsel's status report received (confidential) |
Aug 29 2001 | Compensation awarded counsel Atty Russell |
Sep 27 2001 | Application for Extension of Time filed To file AOB. (9th request) |
Oct 12 2001 | Extension of Time application Granted To 12/3/2001 to file AOB, based on counsel's representation that she anticipates filing the AOB by 5/1/2002. |
Oct 26 2001 | Counsel's status report received (confidential) |
Nov 13 2001 | Compensation awarded counsel Atty Russell |
Nov 27 2001 | Request for extension of time filed To file AOB. (10th request) |
Nov 28 2001 | Extension of time granted To 2/1/2002 to file AOB. Counsel anticipates filing the brief by 5/1/2002. Only 2 further extensions totaling 90 additional days are contemplated. |
Jan 2 2002 | Counsel's status report received (confidential) from atty Russell. |
Jan 25 2002 | Request for extension of time filed To file AOB. (11th request) |
Jan 30 2002 | Extension of time granted To 4/2/2002 to file AOB. Counsel anticipates filing the brief by 5/31/2002. Only one further extension totaling 59 additional is contemplated. |
Feb 4 2002 | Compensation awarded counsel Atty Russell |
Mar 1 2002 | Counsel's status report received (confidential) |
Mar 15 2002 | Request for extension of time filed To file AOB. (12th request) |
Mar 19 2002 | Extension of time granted To 5/30/2002 to file AOB. Counsel anticipates filing the brief by 6/30/2002. Only one further extension totaling 30 additional days is contempalted. |
Apr 29 2002 | Counsel's status report received (confidential) |
Apr 30 2002 | Counsel's status report received (confidential) (revised). |
May 21 2002 | Compensation awarded counsel Atty Russell |
May 21 2002 | Compensation awarded counsel Atty Russell |
Jun 10 2002 | Request for extension of time filed To file AOB. (13th request) |
Jun 13 2002 | Extension of time granted to 7-29-2002 to file AOB. After that date, no further extension will be granted. Extension is granted based upon counsel Russell's representation that she anticipates filing the brief by 7-29-2002. |
Jun 27 2002 | Counsel's status report received (confidential) |
Jul 2 2002 | Filed: One volume of supplemental clerk's transcript. (44 pp.) |
Jul 19 2002 | Request for extension of time filed To file AOB. (14th request) |
Jul 24 2002 | Extension of time granted To 9/27/2002 to file AOB. Counsel anticipates filing that brief by 9/27/2002. No further extension will be granted. |
Aug 22 2002 | Received letter from: appellant, dated 8-20-2002, requesting sealed trial juror records. (Note: counsel advised by telephone to file formal motion). |
Sep 5 2002 | Motion for access to sealed record filed Motion by appellant for access to sealed trial juror records. |
Sep 6 2002 | Counsel's status report received (confidential) |
Sep 13 2002 | Request for extension of time filed To file appellant's opening brief. (15th request) |
Sep 18 2002 | Extension of time granted To 11/26/2002 to file appellant's opening brief. Extension is granted based upon counsel Geraldine S. Russell's representation that she anticipates filing that brief by 11/26/2002. After that date, no further extension will be granted. |
Sep 20 2002 | Compensation awarded counsel Atty Russell |
Oct 25 2002 | Counsel's status report received (confidential) |
Oct 29 2002 | Compensation awarded counsel Atty Russell |
Nov 13 2002 | Compensation awarded counsel Atty Russell |
Nov 19 2002 | Request for extension of time filed To file appellant's opening brief. (16th request) |
Nov 21 2002 | Extension of time granted to 1-27-2003 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Geraldine S. Russell's representation that she anticipates filing the brief by 1-25-2003. |
Dec 17 2002 | Counsel's status report received (confidential) |
Jan 15 2003 | Request for extension of time filed to file appellant's opening brief. (17th request) |
Jan 21 2003 | Extension of time granted to 2/24/2003 to file appellant's opening brief. Extension is granted based upon counsel Gerladine S. Russell's representation that she anticipates filing that brief by 2/24/2003. After that date, no further extension will be granted. |
Feb 18 2003 | Filed: applt's application to file overlength AOB. (brief submitted under separate cover) |
Feb 19 2003 | Filed: Declaration of attorney Geraldine S. Russell re fixed fee guideline 5 (iv) (confidendtial). |
Feb 19 2003 | Order filed granting applt's application to file overlength AOB. |
Feb 19 2003 | Appellant's opening brief filed (291 pp.) |
Feb 26 2003 | Counsel's status report received (confidential) |
Mar 5 2003 | Compensation awarded counsel Atty Russell |
Mar 10 2003 | Request for extension of time filed to file respondent's brief. (1st request) |
Mar 13 2003 | Extension of time granted to 5/20/2003 to file respondent's brief. |
Apr 28 2003 | Counsel's status report received (confidential) |
May 1 2003 | Letter sent to: counsel advising that the court is considering whether to unseal, on its own motion, the documents that are the subject of applt's "Request for Access to Sealed Trial Juror Records," filed on 9-6-2002 . (See Cal. Rules of Court, rule 12.5(f)(2).) The court invites counsel to serve and file a response, if they wish, on or before May 5, 2003, addressing whether any of the documents in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d). |
May 5 2003 | Filed: letter from applt, dated 5-5-2003, in response to court's letter of 5-1-2003. |
May 5 2003 | Filed: Respondent's response to request for access to sealed juror records. |
May 6 2003 | Request for extension of time filed to file respondent's brief. (2nd request) |
May 7 2003 | Compensation awarded counsel Atty Russell |
May 8 2003 | Extension of time granted to 6/19/2003 to file respondent's brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General Warren P. Robinson's representation that he anticipates filing that brief by 8/18/2003. |
May 14 2003 | Motion for access to sealed record granted Appellant's "Request for Access to Sealed Trial Juror Records" is granted. The clerk is directed to provide appellant and respondent with a copy of pages 882 through 946 of the clerk's transcript herein. On the court's own motion, the clerk is further directed to unseal the original of pages 882 through 946 of the clerk's transcript. In addition, the clerk is directed to provide appellant and respondent with a copy of page 881 of the clerk's transcript. It is ordered that only counsel for appellant and counsel for respondent, and their respective investigators, may have access to and use the copy of page 881 of the clerk's transcript provided, and may do so only on this appeal and with respect to any petition for writ of habeas corpus by appellant challenging the lawfulness of his confinement pursuant to the underlying judgment of death. On the court's own motion, the clerk is further directed to reseal the original of page 881 of the clerk's transcript. |
Jun 9 2003 | Request for extension of time filed to file respondent's brief. (3rd request) |
Jun 12 2003 | Extension of time granted to 8/18/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Warren P. Robinson's representation that he anticipates filing that brief by 8/18/2003. After that date, no further extension will be granted. |
Jun 30 2003 | Counsel's status report received (confidential) |
Jul 25 2003 | Respondent's brief filed (135 pp.) |
Jul 31 2003 | Filed: Declaration of attorney Geraldine S. Russell (confidential). |
Jul 31 2003 | Request for extension of time filed to file reply brief. (1st request) |
Aug 5 2003 | Compensation awarded counsel Atty Russell |
Aug 6 2003 | Extension of time granted to 9/15/2003 to file appellant's reply brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
Aug 28 2003 | Counsel's status report received (confidential) |
Sep 8 2003 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
Sep 11 2003 | Extension of time granted to 11/14/2003 to file appellant's reply brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
Oct 29 2003 | Counsel's status report received (confidential) |
Nov 5 2003 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
Nov 12 2003 | Extension of time granted to 1/13/2004 to file appellant's reply brief. After that date, only five further extensions totaling 280 additional days will be gratned. Extension is granted based upon counsel Geraldine S. Russell's representation that she anticipates filing that brief. by 10/25/2004. |
Dec 26 2003 | Counsel's status report received (confidential) |
Jan 5 2004 | Request for extension of time filed to file reply brief. (4th request) |
Jan 8 2004 | Extension of time granted to 3/15/2004 to file appellant's reply brief. After that date, only four further extensions totaling 220 additional days will be granted. Extension is granted based upon counsel Geraldine Russell's representation that she anticipates filing that brief by October 25, 2004, |
Feb 24 2004 | Counsel's status report received (confidential) |
Mar 3 2004 | Request for extension of time filed to file appellant's reply brief. (5th request) |
Mar 9 2004 | Extension of time granted to 5/14/2004 to file appellant's reply brief. After that date, only three further extensions totaling about 160 additional days will be granted. Extension is granted based upon counsel Geraldine S. Russell's representation that she anticipates filing that brief by 10/25/2004. |
Apr 26 2004 | Counsel's status report received (confidential) |
May 6 2004 | Request for extension of time filed to file appellant's reply brief. (6th request) |
May 12 2004 | Extension of time granted to 7/13/2004 to file appellant's reply brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon counsel Geraldine S. Russell's representation that she anticipates filing that brief by 10/25/2004. |
Jun 25 2004 | Counsel's status report received (confidential) |
Jul 2 2004 | Request for extension of time filed to file appellant's reply brief. (7th request) |
Jul 8 2004 | Extension of time granted to 9/13/2004 to file appellant's reply brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon counsel Geraldine Russell's representation that she anticipates filing that brief by 10/25/2004. |
Aug 30 2004 | Counsel's status report received (confidential) |
Sep 2 2004 | Request for extension of time filed to file appellant's reply brief. (8th request) |
Sep 7 2004 | Extension of time granted to 10/25/2004 to file appellant's reply brief. Extension is granted based upon counsel Geraldine S. Russell's representation that she anticipates filing that brief by 10/25/2004. After that date, no further extension will be granted. |
Oct 25 2004 | Appellant's reply brief filed (33,142 words; 126 pp.) |
Oct 28 2004 | Counsel's status report received (confidential) |
Dec 16 2004 | Filed: Declaration of attorney Geraldine S. Russell (confidential). |
Dec 22 2004 | Compensation awarded counsel Atty Russell |
Dec 28 2004 | Counsel's status report received (confidential) |
Jan 31 2005 | Received: Letter from DAG Warren P. Robinson, dated 1/28/2005, advising he will be out of the office on vacation from 5/26-6/14/2005, and requests that oral argument not be schuduled during that time. |
Feb 14 2005 | Filed letter from: attorney Geraldine S. Russell, dated 2/9/2005, advising that she will be out of the office from 5/2/2005 through 5/25/2005 and requests that oral argument not be set during that time. |
Feb 24 2005 | Counsel's status report received (confidential) |
Apr 8 2005 | Habeas funds request filed (confidential) |
Apr 25 2005 | Related habeas corpus petition filed (concurrent) No S133439 |
Apr 27 2005 | Counsel's status report received (confidential) |
May 4 2005 | Compensation awarded counsel Atty Russell |
May 11 2005 | Compensation awarded counsel Atty Russell |
May 18 2005 | Compensation awarded counsel Atty Rusell |
Jun 6 2005 | Filed: letter from attorney Russell advising that she will be out of the office from Sept. 19 through Oct. 10, 2005, and requesting that oral argument not be set during that time. |
Jun 22 2005 | Filed: letter from DAG Warren P. Robinson, dated 6/17/2005, requesting oral argument not be set between Sept. 19 and Oct. 17, 2005. Counsel will be out of office on prepaid vacation. |
Aug 10 2005 | Order filed re habeas funds request (confidential) Werdegar, J., was absent and did not participate. |
Feb 1 2007 | Received: letter from atty Geraldine S. Russell, dated January 29, 2007, requesting oral argument not be set during the period from March 19, through April 9, 2007. She will be out of the office. |
Feb 11 2008 | Received: letter from attorney Geraldine R. Russell, dated February 5, 2008, requesting oral argument not be set during the period from June 4, through June 30, 2008. She will be out of the office. |
Oct 22 2008 | Compensation awarded counsel Atty Russell |
Feb 25 2009 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 6, 2009, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
Feb 27 2009 | Received: letter from attorney Geraldine S. Russell, dated February 26, 2009 requesting that the court place the case on its calendar for April due to a pre-paid vacation at the end of April. |
Mar 10 2009 | Filed: letter from respondent, dated March 6, 2009, advising that Deputy Attornery General Annie Featherman Fraser will argue the case for respondent. |
Apr 1 2009 | Case ordered on calendar to be argued Monday, May 4, 2009, at 1:30 p.m., in San Francisco |
Apr 13 2009 | Filed: appellant's focus issues letter, dated April 10, 2009. |
Apr 8 2009 | Received: appearance sheet from attorney Geraldine S. Russell, indicating 45 minutes for oral argument for appellant. |
Apr 13 2009 | Received: appearance sheet from Deputy Attorney General Annie Featherman Fraser, indicating 30 minutes for oral argument for respondent. |
Apr 13 2009 | Filed: respondent's focus issues letter, dated April 8, 2009. |
Apr 16 2009 | Filed: amended declaration of service for appellant's focus issues letter dated April 10, 2009. |
Apr 23 2009 | Received: respondent's additional authorities letter, dated April 22, 2009. |
May 4 2009 | Cause argued and submitted |
May 7 2009 | Compensation awarded counsel Atty Russell |
Jul 29 2009 | Notice of forthcoming opinion posted |
Jul 30 2009 | Opinion filed: Judgment affirmed in full opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ |
Aug 10 2009 | Rehearing petition filed (1,116 words; 5 pp.) |
Aug 13 2009 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 28, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first. |
Briefs | |
Feb 19 2003 | Appellant's opening brief filed (291 pp.) |
Jul 25 2003 | Respondent's brief filed (135 pp.) |
Oct 25 2004 | Appellant's reply brief filed (33,142 words; 126 pp.) |