Supreme Court of California Justia
Docket No. S042323

People v. Burney

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

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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.

Opinion Information
Date:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 07/30/2009S042323Automatic Appealopinion issued

BURNEY (SHAUN) ON H.C. (S133439)


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

2The People (Respondent)
Represented by Annie Featherman Fraser
Office of the Attorney General
P.O. Box 85266
San Diego, CA

3The People (Respondent)
Represented by Lilia E. Garcia
Office of the Attorney General
P.O. Box 85266
San Diego, CA

4Burney, 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 2009Opinion: Affirmed

Dockets
Sep 16 1994Judgment of death
Sep 23 1994Filed certified copy of Judgment of Death Rendered
September 16, 1994.
Oct 11 1994Application for Extension of Time filed
By Court Reporter Armella Martin and Others to Complete R.T.
Oct 13 1994Extension of Time application Granted
To the Court Reporters To 11-7-94 To Complete R.T.
Nov 18 1998Counsel 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 1998Compensation awarded counsel
Nov 19 1998Filed:
Request by Inmate for Dual representation.
Nov 19 1998Filed:
Request by Counsel for Dual representation appointment.
Dec 14 1998Note:
Superior Court mailed Record to Counsel on 12-7-98.
Dec 28 1998Application for Extension of Time filed
To request Record correction
Jan 4 1999Extension of Time application Granted
To 3-1-99 To request Record correction
Feb 25 1999Application for Extension of Time filed
By Applt to request correction of the Record.
Mar 1 1999Extension of Time application Granted
To 4-30-99 To request Record correction
Apr 27 1999Application for Extension of Time filed
By Applt to request correction of the Record.
Apr 28 1999Extension of Time application Granted
To 6-29-99 To request Record correction
May 27 1999Received:
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 1999Compensation awarded counsel
Feb 4 2000Change of Address filed for:
Atty Geraldine Russell
Mar 8 2000Compensation awarded counsel
Atty Russell
Apr 25 2000Record on appeal filed
C-14 (3,711 Pp.) and R-23 (4,378 Pp.) Including Material Under Seal
Apr 25 2000Appellant's opening brief letter sent, due:
6/5/2000
May 1 2000Compensation awarded counsel
Atty Russell
May 26 2000Application for Extension of Time filed
To file Aob.
May 31 2000Extension of Time application Granted
To 8/4/2000 To file Aob.
Jul 31 2000Application for Extension of Time filed
to file AOB (2nd request)
Aug 1 2000Extension of Time application Granted
to 10-3-2000 to file AOB.
Aug 29 2000Counsel's status report received (confidential)
Sep 25 2000Application for Extension of Time filed
To file AOB. (3rd request)
Sep 28 2000Extension of Time application Granted
To 12/4/2000 to file AOB.
Oct 17 2000Compensation awarded counsel
Atty Russell
Nov 22 2000Application for Extension of Time filed
To file AOB. (4th request)
Nov 29 2000Extension of Time application Granted
To 2/2/2001 to file AOB.
Jan 2 2001Counsel's status report received (confidential)
Jan 10 2001Compensation awarded counsel
Atty Russell
Jan 25 2001Application for Extension of Time filed
To file AOB. (5th request)
Jan 31 2001Extension of Time application Granted
To 4/3/2001 to file AOB.
Mar 5 2001Counsel's status report received (confidential)
Mar 22 2001Application for Extension of Time filed
To file AOB. (6th request)
Mar 26 2001Application for Extension of Time filed
Suppl. declaration for ext. of time to file AOB.
Apr 5 2001Extension of Time application Granted
To 6/4/2001to file AOB.
Apr 23 2001Compensation awarded counsel
Atty Russell
Apr 30 2001Counsel's status report received (confidential)
from atty Russell.
May 23 2001Application for Extension of Time filed
To file AOB. (7th request)
Jun 19 2001Extension of Time application Granted
To 8/3/2001 to file AOB.
Jun 29 2001Counsel's status report received (confidential)
from atty Russell
Jul 26 2001Application for Extension of Time filed
To file AOB. (8th request)
Jul 30 2001Extension of Time application Granted
To 10/2/2001 to file AOB.
Aug 29 2001Counsel's status report received (confidential)
Aug 29 2001Compensation awarded counsel
Atty Russell
Sep 27 2001Application for Extension of Time filed
To file AOB. (9th request)
Oct 12 2001Extension 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 2001Counsel's status report received (confidential)
Nov 13 2001Compensation awarded counsel
Atty Russell
Nov 27 2001Request for extension of time filed
To file AOB. (10th request)
Nov 28 2001Extension 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 2002Counsel's status report received (confidential)
from atty Russell.
Jan 25 2002Request for extension of time filed
To file AOB. (11th request)
Jan 30 2002Extension 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 2002Compensation awarded counsel
Atty Russell
Mar 1 2002Counsel's status report received (confidential)
Mar 15 2002Request for extension of time filed
To file AOB. (12th request)
Mar 19 2002Extension 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 2002Counsel's status report received (confidential)
Apr 30 2002Counsel's status report received (confidential)
(revised).
May 21 2002Compensation awarded counsel
Atty Russell
May 21 2002Compensation awarded counsel
Atty Russell
Jun 10 2002Request for extension of time filed
To file AOB. (13th request)
Jun 13 2002Extension 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 2002Counsel's status report received (confidential)
Jul 2 2002Filed:
One volume of supplemental clerk's transcript. (44 pp.)
Jul 19 2002Request for extension of time filed
To file AOB. (14th request)
Jul 24 2002Extension 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 2002Received letter from:
appellant, dated 8-20-2002, requesting sealed trial juror records. (Note: counsel advised by telephone to file formal motion).
Sep 5 2002Motion for access to sealed record filed
Motion by appellant for access to sealed trial juror records.
Sep 6 2002Counsel's status report received (confidential)
Sep 13 2002Request for extension of time filed
To file appellant's opening brief. (15th request)
Sep 18 2002Extension 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 2002Compensation awarded counsel
Atty Russell
Oct 25 2002Counsel's status report received (confidential)
Oct 29 2002Compensation awarded counsel
Atty Russell
Nov 13 2002Compensation awarded counsel
Atty Russell
Nov 19 2002Request for extension of time filed
To file appellant's opening brief. (16th request)
Nov 21 2002Extension 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 2002Counsel's status report received (confidential)
Jan 15 2003Request for extension of time filed
to file appellant's opening brief. (17th request)
Jan 21 2003Extension 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 2003Filed:
applt's application to file overlength AOB. (brief submitted under separate cover)
Feb 19 2003Filed:
Declaration of attorney Geraldine S. Russell re fixed fee guideline 5 (iv) (confidendtial).
Feb 19 2003Order filed
granting applt's application to file overlength AOB.
Feb 19 2003Appellant's opening brief filed
(291 pp.)
Feb 26 2003Counsel's status report received (confidential)
Mar 5 2003Compensation awarded counsel
Atty Russell
Mar 10 2003Request for extension of time filed
to file respondent's brief. (1st request)
Mar 13 2003Extension of time granted
to 5/20/2003 to file respondent's brief.
Apr 28 2003Counsel's status report received (confidential)
May 1 2003Letter 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 2003Filed:
letter from applt, dated 5-5-2003, in response to court's letter of 5-1-2003.
May 5 2003Filed:
Respondent's response to request for access to sealed juror records.
May 6 2003Request for extension of time filed
to file respondent's brief. (2nd request)
May 7 2003Compensation awarded counsel
Atty Russell
May 8 2003Extension 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 2003Motion 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 2003Request for extension of time filed
to file respondent's brief. (3rd request)
Jun 12 2003Extension 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 2003Counsel's status report received (confidential)
Jul 25 2003Respondent's brief filed
(135 pp.)
Jul 31 2003Filed:
Declaration of attorney Geraldine S. Russell (confidential).
Jul 31 2003Request for extension of time filed
to file reply brief. (1st request)
Aug 5 2003Compensation awarded counsel
Atty Russell
Aug 6 2003Extension 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 2003Counsel's status report received (confidential)
Sep 8 2003Request for extension of time filed
to file appellant's reply brief. (2nd request)
Sep 11 2003Extension 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 2003Counsel's status report received (confidential)
Nov 5 2003Request for extension of time filed
to file appellant's reply brief. (3rd request)
Nov 12 2003Extension 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 2003Counsel's status report received (confidential)
Jan 5 2004Request for extension of time filed
to file reply brief. (4th request)
Jan 8 2004Extension 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 2004Counsel's status report received (confidential)
Mar 3 2004Request for extension of time filed
to file appellant's reply brief. (5th request)
Mar 9 2004Extension 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 2004Counsel's status report received (confidential)
May 6 2004Request for extension of time filed
to file appellant's reply brief. (6th request)
May 12 2004Extension 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 2004Counsel's status report received (confidential)
Jul 2 2004Request for extension of time filed
to file appellant's reply brief. (7th request)
Jul 8 2004Extension 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 2004Counsel's status report received (confidential)
Sep 2 2004Request for extension of time filed
to file appellant's reply brief. (8th request)
Sep 7 2004Extension 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 2004Appellant's reply brief filed
(33,142 words; 126 pp.)
Oct 28 2004Counsel's status report received (confidential)
Dec 16 2004Filed:
Declaration of attorney Geraldine S. Russell (confidential).
Dec 22 2004Compensation awarded counsel
Atty Russell
Dec 28 2004Counsel's status report received (confidential)
Jan 31 2005Received:
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 2005Filed 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 2005Counsel's status report received (confidential)
Apr 8 2005Habeas funds request filed (confidential)
Apr 25 2005Related habeas corpus petition filed (concurrent)
No S133439
Apr 27 2005Counsel's status report received (confidential)
May 4 2005Compensation awarded counsel
Atty Russell
May 11 2005Compensation awarded counsel
Atty Russell
May 18 2005Compensation awarded counsel
Atty Rusell
Jun 6 2005Filed:
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 2005Filed:
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 2005Order filed re habeas funds request (confidential)
Werdegar, J., was absent and did not participate.
Feb 1 2007Received:
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 2008Received:
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 2008Compensation awarded counsel
Atty Russell
Feb 25 2009Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 6, 2009, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Feb 27 2009Received:
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 2009Filed:
letter from respondent, dated March 6, 2009, advising that Deputy Attornery General Annie Featherman Fraser will argue the case for respondent.
Apr 1 2009Case ordered on calendar
to be argued Monday, May 4, 2009, at 1:30 p.m., in San Francisco
Apr 13 2009Filed:
appellant's focus issues letter, dated April 10, 2009.
Apr 8 2009Received:
appearance sheet from attorney Geraldine S. Russell, indicating 45 minutes for oral argument for appellant.
Apr 13 2009Received:
appearance sheet from Deputy Attorney General Annie Featherman Fraser, indicating 30 minutes for oral argument for respondent.
Apr 13 2009Filed:
respondent's focus issues letter, dated April 8, 2009.
Apr 16 2009Filed:
amended declaration of service for appellant's focus issues letter dated April 10, 2009.
Apr 23 2009Received:
respondent's additional authorities letter, dated April 22, 2009.
May 4 2009Cause argued and submitted
May 7 2009Compensation awarded counsel
Atty Russell
Jul 29 2009Notice of forthcoming opinion posted
Jul 30 2009Opinion filed: Judgment affirmed in full
opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ
Aug 10 2009Rehearing petition filed
(1,116 words; 5 pp.)
Aug 13 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 28, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.

Briefs
Feb 19 2003Appellant's opening brief filed
(291 pp.)
Jul 25 2003Respondent's brief filed
(135 pp.)
Oct 25 2004Appellant's reply brief filed
(33,142 words; 126 pp.)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website