Citation 44 Cal. 4th 1263, 190 P.3d 616, 82 Cal. Rptr. 3d 265
People v. Carasi
Filed 8/25/08
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S070839
v.
PAUL JOE CARASI,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. SA021795
Paul Joe Carasi (defendant) and his live-in girlfriend, Donna Lee
(codefendant or Lee), were charged, tried, and convicted in the same proceeding
of committing two first degree murders on Mother’s Day 1995. (Pen. Code,
§ 187.)1 The victims were defendant’s mother, Doris Carasi (Doris), and his
former girlfriend, Sonia Salinas (Sonia), the mother of his child. As to each
murder count, the jury returned a lying-in-wait special-circumstance finding
(§ 190.2, subd. (a)(15)), and a finding of personal use of a deadly weapon, i.e., a
knife. (§ 12022.). With respect to Sonia’s murder, the jury also found true the
special circumstances of multiple murder (§ 190.2, subd. (a)(3)), and murder for
financial gain. (§ 190.2, subd. (a)(1).) After a joint penalty trial, the jury returned
1
All unlabeled statutory references are to the Penal Code except as otherwise
stated.
1
a death verdict against defendant, but not against codefendant Lee.2 The trial
court denied defendant’s automatic motion to modify the penalty verdict.
(§ 190.4, subd. (e).) The present appeal from the death judgment is automatic.
(Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)
We find no prejudicial error at defendant’s trial. The judgment will be
affirmed in its entirety.
I. GUILT EVIDENCE
A. Summary
Prosecution evidence showed that defendant and Lee planned to kill Sonia
and Doris, to make the crime look like a robbery, and to place the blame on
unknown third parties. The knife slayings occurred in a remote section of the
parking garage at the Universal Studios CityWalk Mall in Burbank (Universal or
Mall), after defendant took the victims, along with his and Sonia’s two-year-old
son, to a late-night Mother’s Day meal. The child was unharmed, but defendant
was found covered in the women’s blood in the garage, claiming to be a victim of
the same “robbery” as the two women. Lee, who had waited in the garage for the
group to return from dinner, participated in the knife attack and then drove off
with defendant’s and the victims’ personal property. Lee’s getaway was
frustrated, however, and the plot began to unravel, when she was forced to
summon emergency medical aid from the highway for serious wounds sustained in
the attack. According to the prosecution, defendant murdered the victims because
2
The penalty jury could not reach a unanimous verdict as to codefendant
Lee. The vote was split 10 to 2 in favor of death. The prosecution declined to
retry Lee, and she received a sentence of life without the possibility of parole for
each murder count. She is not a party to this automatic appeal.
2
he believed they were trying to keep him from his son, and because he could not
afford to pay court-ordered child support to Sonia in his debt-ridden state.
B. Prosecution Case
1. The Crime Scene
Shortly after 11:00 p.m. on May 14, 1995, Mother’s Day, both the security
office at Universal and a nearby sheriff’s station received reports of criminal
activity in the parking garage — an area which, unlike the Mall, had no security
cameras. Persons who arrived on the scene included Deputy Sheriff Tom Wilford,
security officer Joseph Hildebrand, and Darren Smith, an employee in the Mall.
At trial, Smith and Deputy Wilford gave similar accounts. On the fourth
floor of the garage, defendant was lying on the ground near the stairwell. He
pointed to the fifth floor, and told Smith, “My kid is up there.” Defendant said
something different to Wilford, who arrived moments later — “They killed them.”
Defendant was drenched in fresh blood. Wilford testified that it covered
defendant “from his head to his toes,” including his face and hands. Smith
recalled that defendant slipped in the blood as he moved and tried to stand.
Smith testified that after finding defendant, he climbed the stairs to the fifth
floor. Smith saw bloodstains in the stairwell. He also found a large folding knife
on the steps, with the blade closed and no blood on it. A short time later, in front
of Officer Hildebrand, defendant spontaneously said the knife was his.
The fifth floor served as the roof of the garage, and was not itself fully
covered. There, Smith, Deputy Wilford, and Officer Hildebrand saw a blue, four-
door Chevrolet Caprice, later identified as defendant’s car. It was parked in the
corner against the wall, out in the open air. A few other vehicles were parked on
the same floor, but none was near the Caprice.
Both doors on the driver’s side of the car were open. A small boy was
strapped in a car seat behind the driver’s compartment. He was crying, but
3
seemed physically unharmed. In the presence of Smith, Deputy Wilford, and
Officer Hildebrand, the child screamed “Mommy” repeatedly, and pointed
towards the passenger side of the car.
There, in a small space enclosed on three sides by the car and garage walls
and railing, the witnesses found two women lying in large pools of blood. They
bore stab wounds and appeared to be dead. The bloody trail that Smith had seen
downstairs and in the stairwell continued onto the fifth floor, near the bodies.
Deputy Wilford summoned more law enforcement support. Meanwhile,
defendant arrived on the fifth floor. He paced and shook his hands at one point,
and sat on the ground rocking back and forth at another point. At Wilford’s
request, Officer Hildebrand watched and comforted defendant. Defendant
identified the two women and the boy. Defendant indicated that he was not hurt,
and did not know why he was so bloody. He denied touching the injured victims.
Defendant described the following events to Officer Hildebrand: He
unlocked the car for his family after they returned from dinner. Just as he realized
he did not have all of his keys, defendant was shoved from behind by someone
who demanded money. Though defendant said he had no money, the assailant
removed defendant’s fanny pack from his shoulder and pushed him to the ground.
Defendant stood up and saw Sonia and Doris lying in pools of blood. He headed
downstairs to get help. Defendant heard male voices and the victims’ screams
during the attack, but could not describe the number or appearance of his
assailants, or the manner in which they left the scene.
Paramedics arrived on the fifth floor of the garage a short time later. One
of them, Alan Lenhart, testified that, after determining that the women were dead
and the child was unharmed, he and his partner examined defendant, removing his
4
jacket and shirt — a shirt with Disney characters on the front.3 The only visible
injury was a small cut on his thumb. The cut was not bleeding and, in Lenhart’s
view, could not account for all the blood on defendant. In response to questions,
defendant sometimes moaned or cried out. Other times, however, he seemed calm
and gave clear answers. Lenhart testified that this pattern was unusual. In his
experience, traumatized persons act either withdrawn or upset, but not both.
When the paramedics spoke about canceling an ambulance, defendant seemed
surprised and asked whether his mother was alive.
In his exchange with Lenhart, defendant repeated much of what he had said
to Officer Hildebrand, but added or changed certain details. In the later version,
defendant said for the first time that he leaned inside the car to kiss Sonia, turned
to go downstairs to retrieve the ignition key from the restaurant, and was grabbed
by the hair from behind and sat upon after being pushed down. Contrary to his
prior account, defendant also told Lenhart that the person who attacked him was
not the same person who demanded money.
2. Events Preceding the Crime
In 1991, defendant and Sonia began dating. They both worked for the
Bank of America (Bank) in its check processing center in downtown Los Angeles.
When Sonia became pregnant, she moved into the North Hollywood apartment
defendant shared with his mother, Doris. The couple continued living there after
their son, Michael, was born in January 1993.
3
Criminalist Beverly Kerr, who arrived at Universal after the paramedics
examined defendant, testified that she recovered a pile of clothing and towels from
the fifth floor of the garage, including the long-sleeved Disney shirt that defendant
had apparently worn. The Disney shirt was saturated with blood on the front and
cuffs, and bore a bloody handprint. As discussed below, scientific testing linked
most of these stains to Sonia.
5
In mid-1993, when Michael was about six months old, Sonia became quite
ill. She was hospitalized for long periods during which Doris cared for Michael.
After Sonia left the hospital, her relationship with defendant soured. She moved
with Michael to her family’s home in West Hollywood, and brought him to visit
Doris at her apartment on weekends.
Defendant disliked Sonia’s new living arrangements, and feared her family
might prevent him from seeing his son. According to Sonia’s manager, Martha
Dominguez, defendant said he was willing to kill to prevent such interference.
Defendant told a coworker, Robert Mora, that he wished “that bitch,” Sonia, had
“died” in the hospital. Sonia resumed working at the Bank in mid-1994.
The evidence suggested defendant was controlling and volatile at times,
especially toward women. Dominguez and Mora each described one instance in
which they saw or heard about defendant either violently grabbing or verbally
abusing his mother. Mora testified that defendant sexually propositioned many
women at work. One of them, Wendy Osiow, testified that she complained to
superiors about defendant. In testimony echoed by other coworkers, Nicholas
Latimer described defendant as a “wanna-be cop” who carried a police scanner
and whose car looked like an unmarked police vehicle. According to Latimer,
defendant liked to drive his car to Hollywood and scare street prostitutes into
thinking they were being watched by the vice squad.
Sometime in fall 1994, defendant began dating codefendant Lee, a married
coworker who knew many of the same people as defendant and Sonia. Lee moved
into the apartment defendant shared with his mother, Doris, and decided to divorce
her husband.
Meanwhile, Sonia obtained a court order directing defendant to pay her
$375 in monthly child support and requiring the money to be deducted from his
wages. To facilitate this process, defendant and Sonia both signed a letter, dated
6
December 1, 1994, asking the Bank to deduct one-half of the amount defendant
owed Sonia from each of his two monthly paychecks, and to place the money in
her checking account. This arrangement, which the couple’s letter referred to as
“garnishment,” took effect immediately.
Over the next few months, defendant experienced mounting financial
strain. He earned a gross salary of $1,886 a month, or $22,632 a year. After
deductions, including child support, his net pay totaled $960 a month. On May 8,
1995, six days before the crime, he had $271 in his checking account and $265 in
his savings account.
At the same time, defendant owed over $21,000 in consumer debt. In
addition, defendant and Lee jointly obtained a Household Finance loan in late
1994. The original balance of $10,000 remained unpaid in May 1995.
Defendant resented Sonia as a result of the wage garnishment. One of his
supervisors, Lydia Moreno, testified that defendant said he could not pay his bills
because of child support payments, that creditors called him at work, and that he
was “fucked for the next seven years, because he was going to have to file
bankruptcy.” Osiow overheard defendant say he wished Sonia “were dead” to
avoid giving her “half [his] stuff.” Defendant told Latimer many times that Sonia
was a “bitch” and a “whore” because of the money deducted from his paycheck.
At some point before February 1995, while confiding in Dana Shafer, one
of his managers, defendant asked if the Bank made “legal referrals” to help answer
child custody and support questions. In late March or early April 1995, defendant
discussed whether to declare bankruptcy with an attorney, Rene Lopez de
Arenosa. Codefendant Lee was present during this meeting.
Defendant and Lee were both upset with Sonia about parenting issues.
Coworker Deborah Trudeau testified that Lee became agitated when she once saw
Sonia with defendant’s son, Michael, at work. Both Lee and defendant
7
complained to Trudeau, Osiow, and others that Sonia was impeding visitation with
Michael. According to his friend Mora, defendant said, “Fuck that bitch. She
won’t get away with taking my kid. I’ll get her one day.” Defendant told his
manager, Shafer, that Sonia “wasn’t going to be around” to challenge custody.
In April 1995, relations further deteriorated between defendant and Lee on
the one hand and Sonia and Doris, on the other hand. The events were relayed at
trial by supervisors and coworkers (e.g., Dominguez, Moreno, and Trudeau) who
learned about them from Sonia, Lee, or defendant.
Following an argument, Doris ordered defendant and Lee out of her
apartment. They moved to a unit across the hall in the same building. The
incident triggered heart problems in Doris, who was briefly hospitalized.
Afterwards, over the Easter weekend, Sonia stayed in Doris’s apartment and cared
for her. Defendant approached Sonia on Easter Sunday, April 16, 1995, and asked
her to take a drive with him. He then disclosed his sexual relationship with Lee.
Sonia became upset and “backhanded” defendant. When they returned to the
apartment complex, defendant acted like he was having a seizure and was helped
to his apartment by two bystanders. When Doris tried to see defendant, Lee would
not let her inside the door, and the two women physically fought one another.
Defendant subsequently talked about getting a restraining order against Doris.
On May 5, 1995, Sonia and Michael moved into Doris’s apartment,
planning to stay one week. According to Sonia’s family, she and Doris were
considering leaving North Hollywood and relocating together, with Michael, in
either Whittier or San Francisco.
The next day, May 6, 1995, which was about a week before the murders,
defendant and Lee were seen walking with one another at Universal by two Bank
managers, Adrienne Gavura and Shafer, who went there together with friends.
Gavura testified that defendant and Lee seemed shocked by the encounter. Shafer
8
testified that defendant and Lee looked guilty. The same week, another coworker
overheard Lee say she was “going to do something stupid” for which she would go
“to prison.” Both defendant and Lee had scheduled one week’s vacation from
work beginning Monday, May 15, 1995.
On Sunday May 14, 1995, defendant took Sonia, Doris, and Michael to the
Country Star restaurant at Universal. When they entered the garage at 8:51 p.m.,
ample parking was available in areas much closer to the restaurant than the rooftop
on which the car was later found. Their waitress commented to a coworker that
defendant was acting strange. At trial, she recalled that he ordered the “strongest”
drink on the menu (a seven-liquor ice cream treat) before dinner. Also, he was
patient with his fidgety son and brusque toward the women. They left the
restaurant around 10:45 p.m.
Meanwhile, codefendant Lee drove to Universal that night, entering the
garage at 9:57 p.m. A few minutes earlier, at 9:49 p.m., a brief call was made
from a pay phone located inside the Country Star Restaurant to defendant’s cell
phone, and was charged to his home phone number. The same cell phone was
found in Lee’s car later that night, as discussed below. The hostess at Tony
Roma’s restaurant, which is located between the Country Star restaurant and the
parking garage, testified that she twice saw Lee walking fast toward the garage
that night with a grave expression on her face.
3. Discovery of Lee and Evidence along Highway 170
At 11:20 p.m. on May 14, 1995, shortly after the crime, two California
Highway Patrol officers arrived at callbox 166 along Highway 170, five miles
from Universal. They were responding to an emergency call from codefendant
Lee, who reported being robbed and stabbed at that spot. The officers found Lee
lying on the ground near her car, on top of a jacket, with her hands to her side.
The car was locked with the keys inside. Lee moaned in pain, and muttered
9
something about there being “nothing [she] could do” and not knowing “what
happened.” She had suffered an abdominal laceration from which she was
bleeding and from which her intestines protruded. The officers dressed the wound
and called paramedics.
After Lee was taken to the hospital, and additional investigators arrived on
the scene, a search was made of the ivy-covered embankment that sloped down
from the road. The search produced two fanny packs, one belonging to defendant
and the other to Doris, and Sonia’s purse. These items were covered in blood.
Other bloodstained items found nearby included a knife with a blunted tip, a blue
sweater, a latex glove, a washcloth, and a pair of wool gloves. Inside Lee’s car,
investigators found defendant’s cell phone in the center console, and Lee’s fanny
pack and two plastic Ziploc baggies under the driver’s seat — all bloodstained.
4. Postcrime Investigation
On May 15, 1995, the day after the murders, defendant visited Sonia’s
family. He was overheard telling someone on the telephone that he was “going to
jail for a lot of years for this.”
On May 15 and 16, Lee spoke with homicide detectives while awake and
coherent in the hospital. She first denied knowing about her injuries or the items
found along Highway 170, and later screamed profanely at the officers to leave her
alone. The clothing she wore when admitted to the hospital was bloodstained and
had cuts in it. It was obtained by investigators and subjected to scientific testing,
as discussed below.
Around the same time, officers saw defendant visiting Lee in the hospital,
where they photographed cuts on his hands. They also obtained the jeans and
jacket he wore the day of the murders. Both items were bloodstained. The jacket
had cuts in it. The clothing underwent scientific testing, as discussed below.
10
Detectives arrested defendant on May 18, 1995. While being transported to
jail and passing the courthouse, defendant turned to one of the detectives and
asked what he “would get,” or words to that effect, if he pled guilty. During the
booking process, defendant said he wanted to talk to codefendant Lee. Detectives
arranged the call and heard him say, “Remember what we talked about.”
5. Autopsy Results and Forensic Evidence
Defendant’s mother, Doris, sustained multiple penetrating stab wounds to
the chest and back. Her most serious injury was a gaping knife wound to the
throat that had been inflicted in a sawing motion, and that nearly decapitated her.
It would have quickly caused death, and was likely inflicted last. Doris had no
defensive knife wounds on her hands.
Serological testing, including DNA analysis, established that Doris’s blood
was consistent with blood found on the rear seat of defendant’s car, on the Disney
shirt he apparently wore the day of the crime, on the jeans defendant and
codefendant Lee wore the same day, and on one of the wool gloves found near Lee
along Highway 170.
Sonia Salinas was stabbed through the chest to the breast bone. She also
suffered numerous deep incisions to her face and throat that intersected in the
neck. Her carotid arteries and jugular vein were cut. These injuries would have
quickly caused death and probably occurred last. Sonia had several deep
defensive knife wounds on her hands.
Serological and DNA analysis established that Sonia’s blood was consistent
with blood found on the front seat of defendant’s car, on the Disney shirt
(including the bloody handprint), on defendant’s jeans and jacket, and on the
bloody trail running between the areas at the crime scene where defendant and the
victims were found. Sonia’s blood also was consistent with blood found on items
11
tossed along Highway 170, including the knife, defendant’s fanny pack, the latex
glove, and the plastic baggies found under the front seat of Lee’s car.
Codefendant Lee suffered an evisceration in which the knife had been
thrust deeply into the abdomen and moved around. She sustained another stab
wound to the back, and a large cut on the inside of the left leg, above the ankle.
Serological tests, including DNA analysis, established that Lee’s blood was
consistent with blood found on Sonia’s left shoe at the crime scene, and on items
found along Highway 170. Such items included the fanny packs belonging to
defendant and Doris, Sonia’s purse, the blue sweater, one of the wool gloves, and
the plastic baggies found inside Lee’s car.
Defendant Carasi suffered cuts on both hands. Serological testing,
including DNA analysis, established that his blood was consistent with blood
found on the Disney shirt, on his jeans and jacket, and on the bloody trail at the
crime scene. Defendant’s blood also was consistent with blood found on his fanny
pack and the blunt-tipped knife recovered along Highway 170, and on the plastic
baggies found in Lee’s car.
Dr. Eugene Carpenter, the pathologist who performed the autopsies, opined
that each victim was restrained against a hard object. He testified that most knife
fatalities involve injuries near the heart, not the throat, and that the large number
of wounds sustained by Sonia and Doris was rare. On direct and cross-
examination, the witness associated such injuries with domestic disputes and other
crimes of passion. Dr. Carpenter further testified that defendant suffered at least
one palm injury consistent with a “knifer’s wound,” which occurs when the knife
strikes bone, and the hand slides down the handle onto the blade. Cuts on Sonia’s
hands were consistent with her having repeatedly deflected and grabbed the blade.
Steven Dowell, a criminalist specializing in tool mark analysis for the
coroner’s office, compared the knife found along Highway 170 to the victims’
12
injuries. Several of Doris’s wounds were consistent with the depth and width of
the knife’s blade. The blunted tip could have left certain irregular abrasions on
Sonia’s skin. No wound was inconsistent with the suspected murder weapon.
Elisabeth Devine, a crime reconstruction specialist with the sheriff’s
department, opined that Sonia and Doris were probably first attacked inside the car
on the passenger side, and that each victim ended up outside the car, where they
received their lethal neck wounds. Devine believed more than one assailant was
involved. It was likely that Sonia left the bloody handprint on the Disney shirt
while grasping at her attacker, and that Sonia’s shoe was in motion when it came
in direct contact with blood from codefendant Lee’s wounds.
C. Defense Case
Defendant did not testify at trial. He called two witnesses, both of whom
also testified for the prosecution, to suggest that he did not kill the victims, and
that law enforcement bungled the investigation. First, Sonia’s sister, Maria,
testified that defendant was upset when visiting her house the day after the
murders. He was curled up on the floor, screaming and grabbing at a neighbor
who sat nearby. Defendant’s other witness, Criminalist Beverly Kerr, indicated
that serological testing was not performed on every bloodstain found on the
Disney shirt or near defendant’s car at the crime scene.4
4
Codefendant Lee testified on her own behalf, and denied involvement in the
murders. She described a tumultuous affair with defendant, including odd sex
practices, financial problems, and disputes with Sonia and Doris. According to
Lee, she and defendant argued 10 days before the crime, and tried to reconcile at
Universal on May 6, 1995. On May 14, the night of the murders, she agreed to
meet defendant, Sonia, and Doris at Universal to discuss future plans. Lee
testified that she parked near defendant’s car, and looked for the group in the Mall,
but never saw them. Back in her car, she fell asleep and awoke when some
unknown person, possibly a carjacker, grabbed and attacked her. She sped away,
and stopped along Highway 170, injured and in pain. Lee denied stabbing the
(footnote continued on next page)
13
II. PENALTY EVIDENCE
A. Prosecution Case
Evidence was introduced about the effect of Sonia’s murder on persons
close to her. Sonia’s parents and two sisters described Sonia as a loving, giving,
and devoted member of a close-knit family, which continued to mourn her loss.
They testified that she fought to overcome her own illnesses and insecurities,
worked hard at home and the office, and sought to improve herself to provide a
better life for her son, Michael. According to these witnesses, Michael, who was
five years old at the time of trial, suffered from memories of seeing his father kill
his mother and grandmother, and yearned for his mother’s love. Also, Sonia’s wit,
drive, tenacity, and generosity were described by Martha Dominguez, the Bank
manager who hired Sonia and became her close friend. The jury saw a video
showing still photographs of both murder victims.
B. Defense Case
Defendant, who was 30 years old at the time of the crime, called three male
friends from his boyhood. They described his hobbies (e.g., computers, science
fiction, and Disneyland), compassion (e.g., helping neighbors after an earthquake),
and family ties (e.g., grieving when his father died in the early 1990’s).
(footnote continued from previous page)
victims or disposing of any evidence, and had no memory of being stabbed or
possessing bloody items from the crime scene. A psychologist described possible
emotional reasons for Lee’s amnesia. Lee’s other witnesses, some of whom
testified for the prosecution, indicated that two bloodstained washcloths were
found near callbox 166 on Highway 170 two weeks after the crime. On rebuttal,
the prosecution linked bloodstains on one of the washcloths to Lee.
14
Defendant’s manager at the Bank from 1989 to 1993 testified that he was a
model employee who volunteered for charitable events. Similar testimony was
given by a married couple who employed defendant in their photography studio
starting when he was in high school. Shortly before the murders, defendant and
codefendant Lee had visited this couple and spoke about starting a photography
business.
Defendant called a female friend of Lee’s who testified that Lee said
defendant made her feel happy.5
III. PRETRIAL ISSUES
A. Jury Selection
1. Procedural Background
Jury selection started with about 450 prospective jurors. Consistent with
the law at the time, the trial court conducted all questioning. (See People v. Stitely
(2005) 35 Cal.4th 514, 537, fn. 11 (Stitely).) It occurred in four stages.
The first stage involved screening for financial and physical hardship, and
exposure to pretrial publicity. Because the pool initially was so large, prospective
jurors were divided into smaller groups at the start of this phase. Each group of
prospective jurors received special instructions when they first entered the
courtroom. As discussed further below, they learned that the case involved two
5
Codefendant Lee, who was about 15 years older than defendant, presented
testimony from female relatives and a female friend that Lee suffered verbal and
physical abuse by her father, sexual abuse by her grandfather, physical abuse by
her first husband, and marital strife with her second and third husbands. The
psychologist who testified for Lee at the guilt phase opined that she was
traumatized by past abuse, that she found emotional refuge with defendant (despite
their odd sex life), and that she went into a dissociative state and suffered amnesia
following a fight with defendant before the capital crime.
15
killings at Universal on Mother’s Day 1995, and that defendant had been charged
with two murder counts and three special-circumstance allegations.
Second, the trial court conducted preliminary death penalty screening. In
this phase, prospective jurors completed a four-question form asking whether they
would refuse to sustain either a murder conviction or the special circumstances to
avoid a penalty phase, or would automatically impose a death sentence or life
without the possibility of parole (LWOP) regardless of the aggravating and
mitigating evidence.6 They were orally examined, and some were excused for
cause, based on their answers on this preliminary death penalty questionnaire.
The third phase involved general voir dire of the 100 or so prospective
jurors who survived the first two rounds. They completed the lengthy main
questionnaire covering many topics, including the death penalty.7 The court
instructed them again on the two murder counts and the three special
circumstances. It also named both victims. The court then randomly called a
series of 12 people into the jury box, and examined them individually and as a
group. Except for personal matters, voir dire was not sequestered. The court
6
Questions No. 1 and No. 2 asked whether, despite evidence showing
beyond a reasonable doubt that the defendant was guilty of first degree murder and
that an alleged special circumstance was true, the prospective juror would
“REFUSE to vote” to sustain the murder or special circumstance charge,
respectively, “in order to avoid the possibility of a penalty phase.” Questions No.
3 and No. 4 asked whether, assuming a penalty trial occurred, the prospective juror
would “AUTOMATICALLY vote” for death or LWOP, respectively, “regardless
of the evidence in aggravation and/or mitigation.”
7
Of the 70 questions appearing on this form, 30 concerned capital
punishment. For example, prospective jurors were asked to describe their general
views of the death penalty, whether such views would interfere with their ability to
be objective at the guilt phase or to consider imposing either death or LWOP at the
penalty phase, and whether an intentional killing should always or never trigger
the death penalty.
16
urged counsel to suggest additional or clarifying questions. The court asked many
of counsel’s questions, and resolved excusals for cause.
In the fourth and final stage, both sides took turns exercising peremptory
challenges. Although the panel had been previously “passed” for cause, the court
asked questions about the death penalty and other things, and solicited additional
questions from counsel in every case. It also resolved new challenges for cause.
Whenever a prospective juror was excused, a replacement was selected, and
peremptory challenges resumed at random against the 12 people in the box.
Defendant exhausted his peremptory challenges, and unsuccessfully sought 14
more to compensate for those he had used when the court denied his challenges for
cause.8 Defendants then unsuccessfully claimed the prosecution had exercised its
peremptory challenges in a discriminatory fashion under People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
Questioning resumed, involving one prospective juror. Without exercising any
more peremptory challenges, codefendant Lee and the prosecutor accepted the
panel as constituted. Twelve jurors and four alternates were sworn.
2. Limits on Voir Dire
During the initial or hardship/publicity phase of voir dire, defendant moved
orally and in writing to amend the court’s preliminary questionnaire. As noted,
the four questions on that form targeted prospective jurors who would never allow
8
Here, as in other capital trials involving multiple defendants, defendant and
codefendant Lee received 20 peremptory challenges that were “exercised jointly,”
as well as five additional challenges apiece that were “exercised separately.”
(Code Civ. Proc., § 231, subd. (a).) The People received, in turn, 20 peremptory
challenges, plus “additional challenges equal to the number of all the additional
separate challenges allowed the defendants.” (Ibid.) Defendant unsuccessfully
requested more peremptory challenges than those prescribed by statute both before
and near the end of this phase of jury selection.
17
the case to proceed to a penalty phase, or who would always vote for death or
LWOP. Under defendant’s proposed amendment, the first two questions, which
asked about refusing to return a murder conviction or to sustain special
circumstances, referred to “[two] counts” of “premeditated” murder, and identified
the three special circumstances as “lying in wait,” “financial gain,” and “multiple
murder.” Defendant’s other two questions, which asked about voting
automatically for death or LWOP, similarly differed from the court’s version by
identifying the “premeditated” nature of the murder and the special circumstances
(“lying in wait,” “financial gain,” and “multiple murder[ ]”).9
Defendant argued that he was entitled to delve into specific facts at this
early stage to adequately identify “automatic death” jurors. He emphasized that
“two homicides” were alleged. The prosecutor disagreed. He observed that the
court’s questionnaire generally conformed to Witherspoon v. Illinois (1968) 391
9
Defendant’s questions read in full as follows: (1) “If the evidence
convinces you beyond a reasonable doubt that the defendant is guilty of 2 counts
of murder of the first degree, i.e., willful, deliberate, and premeditated [murder]
with special circumstances, would you nevertheless REFUSE to vote that (he) (or)
(she) was guilty of murder of the first degree in order to avoid the possibility of a
penalty phase in the trial?” (2) “If the evidence convinces you beyond a
reasonable doubt that the defendant was convicted of first degree willful,
deliberate, and premeditated murder and that a special circumstance of lying in
wait, financial gain, or multiple murder alleged was true, would you nevertheless
REFUSE to vote that the special circumstance was true in order to avoid a penalty
phase in the trial?” (3) “If there is a penalty phase in this trial, and you had
already found willful, deliberate[,] and premeditated murder with special
circumstances of lying in wait, financial gain[,] or multiple murder[ ], would you,
regardless of the evidence in aggravation and/or mitigation, AUTOMATICALLY
vote for the penalty of death?” and (4) “If there is a penalty phase in this trial, and
you had already found willful, deliberate[,] and premeditated murder with special
circumstances of lying in wait, financial gain[,] or multiple murder[ ], would you,
regardless of the evidence in aggravation and/or mitigation, AUTOMATICALLY
vote for the penalty of life in prison without possibility of parole?”
18
U.S. 510, 522, fn. 21 (Witherspoon), concerning the excusal of prospective jurors
who would always choose LWOP or death, and that defendant’s case-specific
factors could be explored later in voir dire.
The court declined to amend its preliminary questionnaire to accommodate
the defense. The questionnaire’s purpose, the court stated, was to identify those
jurors who would always or never vote for death under any circumstance,
including special circumstance cases in which only a single murder was alleged.
Nevertheless, the court made clear that it was not barring reference to “all
the things” counsel had raised. The court assured counsel that it would orally
instruct on the murder and special circumstance allegations before prospective
jurors completed the preliminary questionnaire and answered oral inquiries about
it. The court further observed that jurors would have those case-specific factors in
mind when they subsequently completed the main questionnaire (which included
more death penalty questions), and were examined about those written replies
during general voir dire. The court alluded to the standard it would apply at that
stage under Wainwright v. Witt (1985) 469 U.S. 412 (Witt), which would permit
the court to disqualify persons based on their views on capital punishment, even if
they would not always choose LWOP or death.
Two days later, codefendant Lee joined defendant in challenging the court’s
preliminary questionnaire and the decision to leave it unchanged. The court
reaffirmed its ruling that case-specific factors would be excluded from the four-
question form on the one hand, but that prospective jurors would be instructed on
such factors before any death qualification occurred on the other hand. The court
explained that it sought to strike a balance in questioning jurors about use of the
death penalty in “any case” versus “this case,” and that it did not want them to
prejudge penalty or undergo “brainwashing.”
19
Later the same day, the court assured the defense that its concerns would be
met. “[W]e will find out from these jurors whether[,] if one or all of these special
circumstances . . . are found to be true, whether without regard to any other
evidence that they might hear in mitigation, they would automatically vote for
death. That question will be posed.” (Italics added.) The court indicated that
nothing in its earlier ruling was intended to foreclose questioning on the factors
the defense had sought to include in the preliminary death penalty questionnaire.
The trial court adhered to the foregoing plan — giving instructions and
conducting examinations in the manner proposed to counsel. First, before
answering any written or oral questions on capital punishment, all prospective
jurors were instructed (in groups) that the case involved the “murder,” “killing,” or
“death” of two people, or “women,” whose bodies were found in the Universal
garage on Mother’s Day 1995. At the same time, before death qualification began,
the court described the charges to all prospective jurors. They learned that
defendant had been charged with two counts of first degree premeditated murder
and three special circumstances — multiple murder, murder committed for
financial gain, and murder perpetrated while lying in wait.10
Second, the same facts and charges arose during the oral examination. As
to everyone who answered “yes” to any of the four questions on the preliminary
10
This instruction, which was read to the first group of prospective jurors and
later given in the same basic form to all the other groups, stated that they must
decide whether defendant “is guilty of murder of the first degree, which means a
murder that is willful, deliberate, and premeditated, not accidental, inadvertent,
that sort of thing, but calculated, planned . . . . [I]n this case the special
circumstances are three in number . . . . [¶] First there is an allegation that the
murder was committed for financial gain. Second, it is alleged that the murder
was perpetrated by lying in wait. And third, there is a special circumstance which
is being convicted of more than one charge of murder in the same trial.”
20
death penalty questionnaire, the court asked whether they would always vote for
or against LWOP or the death penalty if allegations of premeditated murder with
one or more special circumstances were sustained.11 Similar exchanges occurred
during both general voir dire and the peremptory challenge phase, where answers
on the main questionnaire indicated the person might have difficulty voting for a
particular penalty. In some instances, the court inquired about the person’s views
on penalty assuming defendant was convicted of first degree murder and one or
more special circumstances were found true.12 At other times, the oral
examination focused more specifically on premeditated murder, multiple murder,
and murder involving financial gain and lying in wait.13
11
For example, the first prospective juror who underwent this process circled
“yes” when asked on the preliminary death penalty questionnaire whether he
would automatically vote for LWOP regardless of the evidence at the penalty
phase. The court then asked him the following question: “[J]ust as a hypothetical,
if someone[’s] entire family was killed in the Nazi holocaust and they felt that
there was some individual who was party to that . . . and there was a trial, and it
was found to be first degree murder and they did it by lying in wait, so [at least
one] special circumstance was found to be true, you would still be voting for life.”
(Italics added.) The juror answered in the affirmative. After further questioning,
during which the juror adhered to his LWOP stance, he was excused for cause.
12
For example, one of the first prospective jurors to undergo general voir dire
indicated on the main questionnaire that his views on the death penalty would
likely influence his vote at the guilt phase. When asked about this answer, the
juror explained that he was opposed to the death penalty, would always choose
LWOP over death, and had no doubts on the issue. In the process, the court asked
whether such views would change if “one or more special circumstances were
found to be true,” and if aggravation outweighed mitigation. (Italics added.) The
person answered in the negative, and was ultimately excused for cause.
13
For example, one female prospective juror wrote on the main questionnaire
that the death penalty was appropriate for someone who “kills another person
simply for financial gain.” This answer prompted the court to examine the woman
to determine whether she would always impose death in such cases, and whether
(footnote continued on next page)
21
Despite these developments, defendant and codefendant Lee never stopped
complaining about the court’s ruling. For instance, during voir dire on the
preliminary questionnaire, counsel faulted the court for not being “more case
specific about people who would automatically give death.” Counsel also noted
later, during general voir dire, that jurors had not been asked point-blank whether
they would “always” impose death under the circumstances the defense had tried
to include in the initial questionnaire, e.g., “murdering two people for financial
gain.” At one point, counsel recognized that he was testing the court’s patience
and essentially apologized for rehashing the issue.
On appeal, defendant repeats his claim that the trial court erred in limiting
reference to “case specific factors” he sought to include in the preliminary
questionnaire, namely premeditated multiple murder, lying in wait, and financial
gain. Defendant insists that several challenges for cause were erroneously denied
as a result, and that he was forced to use peremptory challenges to ensure that
none of these persons sat on the jury. The “flip side” of this argument also is
raised. Defendant complains that prospective jurors were not asked whether they
would always impose LWOP in such specific cases, and that various prosecution
challenges for cause were thus erroneously granted over defense objection. Here,
as in the trial court, defendant claims violations of his right to due process and to a
(footnote continued from previous page)
she would consider evidence in mitigation. The court engaged in similar
dialogues during general voir dire with persons whose questionnaires indicated
that they understood the case involved “lying in wait,” as well as “financial gain,”
or who wrote that they would consider whether the murders were “planned” or
“premeditated” at sentencing. Other prospective jurors were examined about
statements in their questionnaires regarding the appropriate penalty for “multiple”
or “serial” murderers whose actions result in the death of “several people.”
22
fair and impartial jury under the Fifth, Sixth, and Fourteenth Amendments to the
federal Constitution, and parallel state constitutional provisions.
At the time of defendant’s trial, as now, qualifications to serve on a capital
jury were not limited to determining whether the person opposed or supported the
death penalty in every case. Then, as now, both federal and state law permitted
the excusal for cause of a prospective juror whose views on capital punishment
would “ ‘prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’ ” (Witt, supra, 469 U.S. 412, 424,
fn. omitted.) In articulating this standard, the high court made clear that Witt,
supra, at page 424, “clarif[ied]” Witherspoon by allowing excusals for cause in a
potentially broader range of circumstances, that is, even where the prospective
juror has not made it “unmistakably clear” that he would “automatically” vote a
certain way. (Witherspoon, supra, 391 U.S. 510, 522, fn. 21.)
The trial court has considerable discretion to place reasonable limits on voir
dire (People v. Zambrano (2007) 41 Cal.4th 1082, 1120 (Zambrano)), and to
determine the number and nature of questions on the death penalty. (Stitely,
supra, 35 Cal.4th 514, 540.) We have explained that death-qualifying voir dire
seeks to determine prospective jurors’ attitudes about capital punishment only in
the abstract, and whether, without knowing the specifics of the case, they have an
open mind on penalty. (Zambrano, supra, 41 Cal.4th at p. 1120, quoting People v.
Clark (1990) 50 Cal.3d 583, 597.) Thus, a defendant cannot insist upon questions
that are “ ‘so specific’ ” that they expose jurors to the facts of the case, or tempt
them to prejudge penalty based on the aggravating and mitigating evidence.
(Zambrano, supra, 41 Cal.4th at p. 1121, quoting People v. Cash (2002) 28
Cal.4th 703, 721-722 (Cash).)
Nevertheless, voir dire cannot be so abstract that it fails to identify those
jurors whose death penalty views would prevent or substantially impair their
23
performance under Witt, supra, 469 U.S. 412, 424. Rules have developed to
balance the competing interests. Thus, on the one hand, the trial court cannot bar
questioning on any fact present in the case “that could cause some jurors
invariably to vote for the death penalty, regardless of the strength of the mitigating
circumstances.” (Cash, supra, 28 Cal.4th 703, 721, italics added.) But the court’s
refusal to allow inquiry into such facts is improper only if it is “categorical”
(People v. Vieira (2005) 35 Cal.4th 264, 286 (Vieira), italics added) and denies all
“opportunity” to ascertain juror views about these facts. (Id. at p. 287.)
In Cash, the defense sought to determine whether prospective jurors could
consider LWOP for someone who had “killed more than one person” — alluding
to anticipated penalty phase evidence that, when he was a juvenile, the defendant
had murdered his grandparents. (Cash, supra, 28 Cal.4th 703, 719.) The trial
court concluded that because this circumstance appeared nowhere in the
information, it could not be disclosed to prospective jurors and no questioning on
the topic would be allowed. (Ibid.) The ruling was enforced at every phase of
voir dire. (See id. at pp. 721, 722.) On appeal, this court reversed the death
judgment — our lone reversal for limiting death penalty inquiry into case-specific
facts. We explained that the nature of the error prevented us from determining
whether any seated juror “held the disqualifying view that the death penalty should
be imposed invariably and automatically on any defendant who had committed
one or more murders other than the [charged] murder.” (Id. at p. 723.)
We reached a different result in Vieira, supra, 35 Cal.4th 264. There,
before voir dire began, the defendant moved to modify the court’s questionnaire to
ask whether prospective jurors would automatically impose death if they convicted
him of “ ‘two or more murders.’ ” (Id. at p. 284.) The court did not include this
question in the written questionnaire, or ask about multiple murder during oral
questioning about the death penalty. Vieira itself does not make clear whether the
24
court read the information alleging multiple murder to prospective jurors
beforehand. Nevertheless, this court found no violation of Cash, supra, 28 Cal.4th
703. We emphasized that the trial court never ruled or otherwise suggested that
prospective jurors could not be asked, during general voir dire, the multiple
murder question excluded from the written questionnaire. “[R]efusal to include
the question [in the written form] was not error so long as there was an
opportunity to [orally] ask the question during voir dire.” (Vieira, supra, 35
Cal.4th at p. 287.)
The gravamen of Cash and Vieira — both of which were decided after
defendant’s trial — is that the defense cannot be categorically denied the
opportunity to inform prospective jurors of case-specific factors that could
invariably cause them to vote for death at the time they answer questions about
their views on capital punishment. By definition, such an opportunity arises where
the trial court instructs all prospective jurors on such case-specific factors before
any death-qualification begins. It is logical to assume that when prospective jurors
are thereafter asked (orally or in writing) whether they would automatically vote
for life or death regardless of the aggravating and mitigating circumstances, they
have answered the question with those case-specific factors in mind, and are aware
of the factual context in which the exchange occurs. This assumption seems all
the more reasonable where answers given orally in open court refer to the specific
facts and charges contained in the court’s instruction and indicate that they are
being taken into account.
Here, we assume solely for the sake of argument that premeditated murder
committed while lying in wait and for financial gain are potentially inflammatory
circumstances analogous to multiple murder and prior murder, that they could
transform an otherwise death-qualified juror into one who could not decide
penalty fairly, and that exploration of juror attitudes about the death penalty in
25
such cases cannot be wholly disallowed. (See Zambrano, supra, 41 Cal.4th 1082,
1122 [declining to treat issue of victim’s dismemberment in such a manner].)
Even so, under the unique circumstances of this case, no error occurred.
Contrary to what defendant suggests, the trial court never ruled that
prospective jurors were prohibited from learning about the foregoing
circumstances or from considering them when expressing their views on capital
punishment. Although it denied defendant’s motion to include any case-specific
factors in the preliminary questionnaire, the court kept its promise to counsel and
told all prospective jurors about the specific facts and charges the defense had
sought to include therein. Thus, jurors knew the case involved two counts of
premeditated murder and the three special circumstances of multiple murder, lying
in wait, and financial gain. The court also conveyed this information before
anyone completed either the preliminary or general questionnaire, and before they
were orally examined about their answers on either written form. A significant
number of prospective jurors indicated in the nonsequestered presence of their
colleagues, in response to instructions that they all received, that they were taking
these case-specific factors into account when asked orally and in writing whether
they would automatically vote a certain way.
We are thus satisfied that the court’s procedures in this case were adequate
to ascertain the prospective jurors’ attitudes on case-specific factors that might
disqualify them to participate in a capital trial. No error under Cash, supra, 28
Cal.4th 703, or Vieira, supra, 35 Cal.4th 264, occurred.14
14
Though the briefs are far from clear on this point, defendant suggests the
trial court erred in refusing to ask whether prospective jurors’ views on penalty
would be affected if one of the murder victims was defendant’s mother. However,
defendant did not include this topic in his motion to amend the trial court’s
preliminary death penalty questionnaire — the ruling under review here. Nor was
(footnote continued on next page)
26
3. Denial of Challenge for Cause/Pretrial Publicity
Defendant claims the trial court abused its discretion by not excusing
Prospective Juror J.D. for cause. He also asserts violations of his right to due
process and to a representative jury, but does not state whether the federal or state
Constitution is involved. In any event, the argument on appeal, as in the trial
court, is that exposure to news stories about the crime biased J.D. against
defendant on the issue of guilt. We disagree.15
(footnote continued from previous page)
matricide mentioned in counsel’s ensuing complaints to the court after it denied
that motion. Indeed, in his reply brief on appeal, defendant emphasizes a point
towards the end of voir dire (i.e., during the peremptory challenge phase), when
the court asked a male prospective juror, who was single and lived with his
mother, whether he favored a guilty verdict for someone “charged with murdering
his mother as opposed to murdering some other person.” Defense counsel
challenged the juror for cause because of “parallels” between his situation and
defendant’s, and because the juror favored death for premeditated murders.
However, notwithstanding Justice Werdegar’s dissenting view, nothing in this
exchange, or in any other voir dire allusion to family ties, persuades us that
defendant ever asked the court to decide below that matricide or intrafamilial
murder was one of those rare circumstances which, like multiple murder or prior
murder, could cause any juror invariably to vote for death, and which must be
disclosed to all prospective jurors before death qualification begins. (See Cash,
supra, 28 Cal.4th 703, 721, 723.) Hence, the claim is forfeited, and we do not
address it on the merits here. (See People v. Robinson (2005) 37 Cal.4th 592, 639
[failure to object and suggest changes to written and oral questions during death
qualification forfeits complaints about their scope and content].)
15
As to this and certain other appellate claims, defendant contends that an
issue raised and decided in the trial court resulted in constitutional violations, but
he did not present those constitutional theories below. In such instances, it
appears that (1) the appellate claim is the kind that required no trial court action to
preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court was asked to apply, but merely assert that the
trial court’s act or omission, in addition to being wrong for reasons actually
presented to that court, had the legal consequence of violating the Constitution.
(footnote continued on next page)
27
On the main questionnaire completed before general voir dire (i.e., the third
phase of jury selection), question No. 35 asked, “Before coming here today, did
you have opinions or beliefs whatsoever about this case?” Prospective Juror J.D.
answered, “From newspaper accounts at [the] time and due to details of story[,] I
believed that both defendants were directly involved in murder for financial gain.
Also, there had been a planned out plot for these murders. Finally, committing the
murders on Mother’s Day showed marked anger and hate directed to victims.” In
a related vein, question No. 36 asked for the nature and source of any pretrial
information to which prospective jurors had been exposed. J.D. again mentioned
news reports of a financially motivated double murder in a parking structure at
Universal on Mother’s Day. He also recollected that the victims were related to or
associated with one of the defendants.
On voir dire, the trial court asked J.D., a medical laboratory technician,
whether his written answers reflected circumstances that he remembered hearing
or seeing in the media, or whether — as suggested on his questionnaire — he
actually believed they were true. Without apparent hesitation, J.D. clarified his
written answer to question No. 35, saying, “I would have reworded that[;] rather
than saying ‘I believe’ is [sic] I recollect from the story.” J.D. confirmed that he
did not believe everything contained in media accounts, that such accounts were
(footnote continued from previous page)
To that extent, defendant’s new constitutional arguments are not forfeited on
appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 (Boyer), applying
People v. Partida (2005) 37 Cal.4th 428, 433-439.) No separate constitutional
discussion is required, or provided, where rejection of a claim that the trial court
erred on the issue presented to that court necessarily leads to rejection of any
constitutional theory or “gloss” raised for the first time here.
28
not evidence in the present case, that he would adjudicate the case no differently
than if he had heard nothing about the crime, and that he would rely solely on the
evidence presented at trial. J.D. insisted that he would be fair and impartial, and
cited his need to be neutral at work in balancing the competing demands of others.
Defendant moved to excuse J.D. for cause because he “believes that the
defendants are guilty” based on pretrial publicity. The motion was denied. The
trial court said it accepted J.D.’s assurances that news stories involved only
allegations, not evidence. The court also credited J.D.’s explanation that he was
imprecise in answering question No. 35, and that he should have written that he
recalled news accounts about the crime, not that he “believed” their truth or
accuracy. Defendant subsequently exercised a peremptory challenge against J.D.,
who did not serve on the jury.
The foregoing events do not require reversal of the judgment.
Preliminarily, defendant has not preserved his claim that Prospective Juror J.D.
was biased and should have been excused for cause. Although he exercised a
peremptory challenge to remove J.D., and exhausted all such challenges (and
asked for more), defendant never expressed dissatisfaction with the jury as
constituted. (People v. Wilson (2008) 43 Cal.4th 1, 14; People v. Crittenden
(1994) 9 Cal.4th 83, 121 & fn. 4.) Such lapse results in forfeiture of the claim
where, as here, the trial occurred in 1997, after Crittenden was decided. (People v.
Blair (2005) 36 Cal.4th 686, 741-742.) Otherwise, a defendant could challenge
denial of a challenge for cause on appeal even if he was satisfied with the overall
composition of the jury, and expressed no misgivings to the trial court. (People v.
Weaver (2001) 26 Cal.4th 876, 911.)
Moreover, under the principles invoked by defendant, a prospective juror is
biased and disqualified to serve only if his state of mind will prevent him from
acting impartially and without prejudice to any party. (People v. Ayala (2000) 24
29
Cal.4th 243, 271-272 (Ayala); see People v. Ledesma (2006) 39 Cal.4th 641, 668-
669, citing Code of Civ. Proc., § 225, subd. (b)(1).) If the prospective juror’s
statements are equivocal or conflicting, the trial court’s determination of his state
of mind is binding on appeal. (Ayala, supra, 24 Cal.4th at p. 272, citing People v.
Carpenter (1999) 21 Cal.4th 1016, 1035.) The trial court is in the best position to
make this assessment, since it can observe demeanor and tone, and decide
credibility firsthand. (People v. McPeters (1992) 2 Cal.4th 1148, 1175.)
Here, nothing J.D. said in court indicated that he was biased against
defendant or disqualified to serve based on news stories about the capital crime.
J.D. candidly disclosed that he remembered learning about allegations of multiple
murder against defendant, and stated unequivocally that he did not accept them as
true and had not prejudged guilt. As noted by the trial court, such answers
arguably conflicted with one response J.D. provided on his written questionnaire
before the oral examination. As noted, where assessment of the juror’s state of
mind depends upon the resolution of any conflicting or ambiguous statements and
upon a credibility determination, we defer to the findings of the trial court. Here,
the court explicitly credited J.D.’s in-person statements clarifying his written
questionnaire and insisting that he remained open minded and fair about the case.
We therefore conclude that the court did not abuse its discretion in finding no bias
on J.D.’s part, and in denying defendant’s challenge for cause.
4. Wheeler/Batson Claim
As noted, near the end of jury selection, defendant exhausted his
peremptory challenges and failed to persuade the trial court to grant more.
Codefendant Lee, joined by defendant, then moved under both Wheeler, supra, 22
Cal.3d 258, and Batson, supra, 476 U.S. 79, to dismiss the panel of prospective
jurors and start jury selection anew. They argued that the prosecution had
exercised most of its peremptory challenges against female prospective jurors (i.e.,
30
20 of 23), and that such conduct was discriminatory and unconstitutional under
state and federal law. (See J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127,
129; People v. Jurado (2006) 38 Cal.4th 72, 104.)
The trial court initially expressed conflicting views on the matter. On the
one hand, the “numbers” did not surprise the court, because women
“predominate[d]” in the pool of prospective jurors and more women than men
were likely to be excused as a result. On the other hand, the court stated that while
it was inclined to deny the Wheeler/Batson motion without prejudice, it would
require the prosecution to explain its reasons for exercising any peremptory
challenges against women “[f]rom this point forward.” 16
Seeking clarification, the prosecutor asked whether the court had found a
prima facie Wheeler/Batson violation. “[I]f the court is not finding a prima facie
case,” said the prosecutor, “the People should [not] have to justify anything.” The
prosecutor denied any gender bias. No mention of specific jurors or reasons for
excusing them was made.
The trial court acknowledged that it was not prepared to “determine
whether there [was] a prima facie case” at that time. Hence, the court deferred a
decision on the issue until after it had carefully examined its notes and the record.
Jury selection then resumed. Later the same day, the 12-person jury panel was
sworn. A few days later, four alternate jurors were sworn.
16
The trial court also expressed concern that the Wheeler/Batson motion was
untimely, because defendant did not bring it until the peremptory challenge
process was almost complete and the jury was on the verge of being sworn. The
Attorney General does not make a timeliness argument on appeal, and we do not
address the point. (See, e.g., Zambrano, supra, 41 Cal.4th 1082, 1104, fn. 2, and
cases cited.)
31
The Wheeler/Batson motion was ultimately denied during the prosecution’s
case at the guilt trial. The court adopted the prosecution view, and rejected the
contrary defense claim, that no prima facie case of purposeful gender
discrimination had been made. It ruled as follows: “I have analyzed the pattern of
peremptories by the People and the background of the jurors who were excused. I
have taken into consideration the ultimate makeup of the jury that is hearing this
case with respect to their sexes and the range of ages of the sexes, the females. [¶]
And I’ve also considered the fact that, as is usually the case and was again here,
the majority of representation is women on the panel as a whole, and on the basis
of that, I find no indication of any concern . . . with respect to the Wheeler motion
aspects. There just is no basis for it, and the motion is denied.”
Defendant renews his Wheeler/Batson claim on appeal. He insists denial of
the motion violated his rights to due process, equal protection, and a representative
jury under the Fifth, Sixth, and Fourteenth Amendments to the federal
Constitution, and under applicable state constitutional provisions. No error
occurred.
Critical here is whether defendant established a prima facie case of
purposeful discrimination. In this first stage of any Wheeler/Batson inquiry, the
burden rests on the defendant to “ ‘show[ ] that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.’ ” (Johnson v. California
(2005) 545 U.S. 162, 168; accord, Miller-El v. Dretke (2005) 545 U.S. 231, 239
(Miller-El); Batson, supra, 476 U.S. 79, 96.) In other words, this is not a case in
which, after a prima facie case is found, the state must offer permissible
nondiscriminatory reasons for the strikes (i.e., the second stage of the
Wheeler/Batson analysis), or the trial court must decide whether the defendant has
carried his burden of showing the discriminatory use of such strikes (i.e., the third
stage of the analysis). (Johnson v. California, supra, 545 U.S. at p. 168.) Indeed,
32
as the prosecutor indicated below, he was not obliged to disclose such reasons, and
the trial court was not required to evaluate them, unless and until a prima face case
was made. (Zambrano, supra, 41 Cal.4th 1082, 1104-1105 & fn. 3; see generally
People v. Bell (2007) 40 Cal.4th 582, 596 (Bell).)
Defendant correctly observes that the trial court’s finding that he failed to
establish a prima facie Wheeler/Batson violation must be reviewed in light of
intervening legal developments. In Johnson v. California, supra, 545 U.S. 162,
the United States Supreme Court reversed People v. Johnson (2003) 30 Cal.4th
1302, in which we confirmed that the relevant California standard — even if it
sometimes had been expressed as a “ ‘reasonable inference’ ” (People v. Johnson,
supra, 30 Cal.4th at p. 1312) — was to show that it was “more likely than not”
that purposeful discrimination had occurred. (Id. at p. 1318.) The high court has
since disapproved this exacting standard for federal constitutional purposes, and
has said that a prima facie burden is simply to “produc[e] evidence sufficient to
permit the trial judge to draw an inference” of discrimination. (Johnson v.
California, supra, 545 U.S. at p. 170.)
Where, as here, it is not clear which standard the trial court used, we
independently determine whether the record permits an inference that the
prosecutor excused jurors on prohibited discriminatory grounds. (Bell, supra, 40
Cal.4th 582, 597.) Defendant argues that the statistical disparity between the
number of prosecutorial strikes used against men and women establishes a prima
facie inference of discriminatory motive. Under the particular circumstances of
the case, we disagree.
At the first opportunity to exercise a peremptory challenge, the prosecution
accepted the panel, consisting of five women and seven men. The defense
declined to follow suit, and the process of exercising alternating peremptory
challenges began.
33
In the ensuing round, the defense jointly excused two women and three
men, and the prosecution excused four women. The prosecution accepted the
panel, which then consisted of eight women and four men. The defense did not
find the panel acceptable at that point.
As the back-and-forth peremptory process continued, defendants jointly
excused three women and two men, and the prosecution excused four women.
Next, when the panel consisted of seven women and five men, the prosecution
excused a man.
Thereafter, defendants jointly excused a man. For the third time, the
prosecution accepted the panel, which again consisted of eight women and four
men. The defense did not choose to do so.
In the next go-around, defendants jointly excused three women and one
man, and the prosecution excused three women. When the panel thereafter
consisted of eight women and four men, the prosecution excused a man.
Defendants then jointly excused two women, interspersed with the
prosecution’s excusal of one woman. For the fourth time, the prosecution
accepted the panel, which then consisted of six women and six men. Again, the
defense did not follow suit.
Defendants jointly excused one woman and, for the fifth time, the
prosecution accepted the panel, then consisting of five women and seven men.
Defendants responded by jointly excusing one man. For the sixth time, the
prosecution accepted the panel, again consisting of five women and seven men.
Defendants then jointly excused one man, the prosecution excused one
woman, and codefendant Lee excused one man. For the seventh time, the
prosecution accepted the panel, then consisting of six women and six men.
Next, defendant excused one woman. Then, when the panel consisted of
five women and seven men, the prosecution excused a man. Codefendant Lee
34
followed by excusing one man and, for the eighth time, the prosecution accepted
the panel, consisting of five women and seven men. Defendant responded by
excusing two men and one woman. Codefendant Lee excused two men, and the
prosecution excused four women.
Thereafter, between the prosecution’s excusal of one woman and
defendant’s excusal of one man, codefendant Lee accepted the jury. The
prosecution excused one woman, codefendant Lee accepted the jury, and the
prosecution excused one more woman. It was at that point that defendants
objected under Wheeler/Batson, and the court took under submission the question
whether they had made a prima facie case. Then, defendant having exhausted his
peremptory challenges, and codefendant Lee and the prosecution having accepted
a panel of five women and seven men, those 12 jurors were sworn.
In sum, after initially accepting the panel without exercising any
peremptory challenges at all, the prosecutor accepted the panel eight additional
times with seeming disregard for the number of females or the ratio of female to
male jurors. On two such occasions, the prosecution was willing to have
defendant tried by a jury of eight women and four men. Two other times, there
were six men and six women in the jury box — another split suggesting men were
not being favored over women. The prosecution chose, on two more occasions, to
peremptorily excuse a man when the panel consisted of seven or more women.
In our view, the prosecution’s pattern of excusals and acceptances during
the peremptory challenge process reveals no obvious discrimination towards
female jurors and is patently inconsistent with any such inference. Hence, the trial
court did not err in finding no prima facie Wheeler/Batson violation.17
17
After reviewing the questionnaires and voir dire of each woman the
prosecutor excused, Justice Kennard finds potential nondiscriminatory reasons for
(footnote continued on next page)
35
Defendant next argues the trial court erred in not conducting a comparative
juror analysis and that we must perform this function for the first time on appeal.
However, for reasons we have recently explained, it is not necessary or
appropriate for us to speculate as to the reasons that may have motivated the
prosecutor’s challenges. (Bell, supra, 40 Cal.4th 582, 600.) Nor does Miller-El,
supra, 545 U.S. 231, 241-252, decided after defendant’s trial, mandate such an
analysis under the present circumstances. (Bell, supra, 40 Cal.4th at p. 601.)
In a “first-stage Wheeler-Batson case, comparative juror analysis would
make little sense. In determining whether defendant has made a prima facie case,
the trial court did not ask the prosecutor to give reasons for his challenges, the
prosecutor did not volunteer any, and the court did not hypothesize any. Nor,
(footnote continued from previous page)
the excusal of all but one such panelist, and thus commendably agrees that no
prima facie case of gender bias arose. In People v. Bonilla (2007) 41 Cal.4th 313,
345-349 (Bonilla), we used a similar methodology to reject an arguable inference
of discrimination, but nothing in our case law suggests, as Justice Kennard would
have it, that this is the only valid means of doing so. Justice Kennard certainly
fails to persuade us that our own approach is flawed in this regard. Justice
Kennard insists we may not infer a lack of gender bias from the prosecutor’s
acceptance, several times, of a jury in which women equaled or exceeded men in
number. She speculates that the prosecutor could safely assume such acceptances
would not really end the selection process to the extent the defense had available
challenges remaining. The prosecutor, she ventures, may simply have been trying
to save his own challenges to ensure the most favorable — i.e., the most gender-
biased — possible jury at the end of the process. But to speculate, without
evidentiary support, that the prosecutor’s acceptances were insincere, and that his
tactics unfairly targeted women, ignores a simple reality. On each such occasion,
the defense could easily have accepted the same female-laden panels. In short, the
prosecutor ran the repeated and genuine risk of ending up with a jury consisting
largely of women. Such evidence provides powerful support for our conclusion
that the prosecutor’s peremptory strikes, though mostly affecting women, were in
fact not exercised on the basis of gender alone or in a discriminatory manner.
36
obviously, did the trial court compare the challenged and accepted jurors to
determine the plausibility of any asserted or hypothesized reasons. Where, as
here, no reasons for the prosecutor’s challenges were accepted or posited by either
the trial court or this court, there is no fit subject for comparison.” (Bell, supra, 40
Cal.4th 582, 600-601.) “Whatever use comparative juror analysis might have in a
third-stage case for determining whether a prosecutor’s proffered justifications for
his strikes are pretextual, it has little or no use where the analysis does not hinge
on the prosecution’s actual proffered rationales, and we [may properly] decline to
engage in a comparative analysis” in a first-stage case. (Bonilla, supra, 41 Cal.4th
313, 350.)18
B. Denial of Severance
Defendant, along with codefendant Lee, moved for severance before trial.
Defendant renewed his motion both before and after opening statements at the
guilt phase, during the presentation of evidence at the guilt phase, and after the
penalty phase, in a motion for new trial. He now contends the trial court erred in
denying these motions, thereby violating his federal and state constitutional rights
to due process and a fair trial. His theory here, as below, is that the conflicting
defenses prejudiced him at every phase of trial, i.e., that while he accused
unknown third parties of the murders, Lee suggested that defendant was to blame.
18
We further decline to disturb the trial court’s Wheeler/Batson ruling based
on defendant’s assertion that the prosecutor was following an unwritten policy of
the Los Angeles County District Attorney’s Office to limit women on capital
juries because of their willingness to show mercy and to consider mitigating
evidence in cases involving intrafamilial conflict and murder. Nothing in the
appellate record supports this view. Indeed, defendant relies exclusively on
newspaper and law review articles not submitted with his Wheeler/Batson motion
below or properly presented to this court on appeal.
37
The Legislature has expressed a preference for joint trials. (People v. Avila
(2006) 38 Cal.4th 491, 574 (Avila).) Section 1098 states that multiple defendants
jointly charged with a felony offense “must be tried jointly, unless the court
order[s] separate trials.” This rule applies to defendants charged with “ ‘common
crimes involving common events and victims.’ ” (People v. Tafoya (2007) 42
Cal.4th 147, 162, quoting People v. Keenan (1988) 46 Cal.3d 478, 500 (Keenan).)
However, separate trials may be ordered in the face of antagonistic
defenses. (Avila, supra, 38 Cal.4th 491, 575.) As discussed further below, such
conflict exists only where the acceptance of one party’s defense precludes the
other party’s acquittal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41
(Coffman and Marlow), citing People v. Hardy (1992) 2 Cal.4th 86, 168 (Hardy).)
We review the denial of severance for abuse of discretion — a deferential standard
based on the facts as they appeared when the ruling was made. (Avila, supra, 38
Cal.4th at p. 575, citing Hardy, supra, 2 Cal.4th at p. 167.) A ruling that was
correct when made will stand unless joinder causes such “ ‘ “gross unfairness” ’ ”
as to violate defendant’s due process rights. (People v. Lewis and Oliver (2006)
39 Cal.4th 970, 998 (Lewis and Oliver).)
Contrary to what defendant suggests, this was a “ ‘classic’ case” for
joinder. (Coffman and Marlow, supra, 34 Cal.4th 1, 40, quoting Kennan, supra,
46 Cal.3d 478, 499.) The prosecution claimed that defendant and Lee planned and
committed the multiple murder together. Both stood accused in equal measure of
the same offenses involving the same special-circumstance allegations. The
evidence against each defendant was strong. It included their joint visit to the
crime scene one week before the murders, their presence and apparent phone
contact at the crime scene one hour beforehand, the knife wounds each bore
afterwards, and the discovery of the victims’ blood on their clothes.
38
By the same token, statements made by each defendant before or during
trial did not implicate the other and, if credited by the jury, would have been
mutually exculpatory. In particular, both denied any participation in the murders.
Defendant told police and medical personnel at the crime scene that he was
attacked on the top floor of the garage by robbers he never saw and could not
identify. Similarly, Lee testified at trial that she was stabbed by an unknown
assailant while sitting in her car waiting for defendant and the victims in the same
location. All of these circumstances, including the compatible nature of each third
party culpability defense, strongly supported the court’s denial of severance here.
Defendant insists, however, that Lee’s counsel provided an alternate theory
portraying defendant as the person who murdered Sonia and Doris, and who
stabbed Lee. Specifically, in closing argument at the guilt phase, Lee’s counsel
acknowledged that jurors might not believe that an “unknown gang of thugs”
committed the murders. Earlier, in Lee’s opening statement, counsel highlighted
evidence suggesting that the murders were committed in a rage, that Lee and
defendant became estranged the week beforehand, and that Lee had no reason to
kill Sonia or Doris. Lee’s counsel described his client as one of “three victims.”19
19
We note that defendant’s attorney, who gave no opening statement at the
guilt phase, claimed during closing argument that the prosecution had not proved
defendant’s role in the murders beyond a reasonable doubt. Counsel questioned
the competence of investigators, the reliability of forensic evidence, and the
strength of expert testimony. He urged the jury to draw favorable inferences from
evidence admitted to prove planning and motive, and from defendant’s statements
after the crime. Alternatively, counsel argued that the elements of malice
aforethought and premeditation required for murder had not been proved insofar
as the killings were provoked by various circumstances, including Sonia and
Doris’s joint efforts to separate defendant from his son, and defendant’s financial
distress and looming bankruptcy.
39
Even assuming counsel sought to subtly shift blame from Lee to defendant,
and such innuendo constituted conflicting defenses under the authorities cited
above, severance could properly be denied. We have said that a joint trial is
prohibited only where “ ‘the conflict is so prejudicial that [the] defenses are
irreconcilable, and the jury will unjustifiably infer that this conflict alone
demonstrates that both [defendants] are guilty.’ ” (Hardy, supra, 2 Cal.4th 86,
168.) “When, however, there exists sufficient independent evidence against the
moving defendant, it is not the conflict alone that demonstrates his or her guilt,
and antagonistic defenses do not compel severance.” (Coffman and Marlow,
supra, 34 Cal.4th 1, 41, italics added.)
Independent evidence supported the prosecution theory and implicated
defendant in the murders. Before the crime occurred, he blamed the victims for
distancing him from his son, and complained about paying Sonia child support,
emphasizing his bankrupt state. Defendant drove the victims to their last meal,
arriving late at night and parking in a remote spot where the murders occurred. He
was found at the crime scene covered in the victims’ blood, with knife cuts on his
hands. He behaved oddly and made suspicious statements at that time about how
the attack occurred. In light of such evidence, any tension between defendants’
theories of the case could not alone have produced the guilty verdicts.
Finally, defendant characterizes Lee’s testimony as “contrived,” and claims
he suffered “prejudicial spillover” in the joint trial. For reasons stated above, the
trial court was not required to grant severance on this ground. The prosecution
presented abundant evidence establishing that defendant murdered the victims as
part of a selfish and vengeful plan that he and Lee devised and perpetrated
together. Nothing in Lee’s defense could have so tainted defendant as to have
caused the jury to convict him solely on that ground. No constitutional or other
error occurred.
40
IV. GUILT ISSUES
A. Ex Parte In Camera Meetings
The trial judge, Honorable Leslie W. Light, presided over the present case
for over 10 months. During that period, the court conferred in camera 10 times
with Henry J. Hall, counsel for codefendant Lee, outside the presence of both
defendant and his counsel, Ralph A. Courtney III. These hearings were
transcribed and sealed in the trial court.
Thereafter, while the case was pending on automatic appeal, defendant filed
a motion in this court to unseal or otherwise gain access to the foregoing
transcripts. On June 25, 2003, we ordered that three of the transcripts be unsealed
(one conference on November 19, 1997, and two conferences on December 2,
1997), and that transcripts of three other conferences remain sealed (August 5,
1997, March 30, 1998, and April 1, 1998). The same order also gave appellate
counsel access to reporter’s transcripts of four additional conferences (and to one
portion of the sealed clerk’s transcript), but declined to unseal such items or allow
their use in court papers that were not themselves filed or lodged under seal
(conferences on November 10, 1997, November 13, 1997, January 12, 1998, and
March 2, 1998).
Defendant’s main complaint on appeal is that his absence and the absence
of his counsel from the foregoing conferences resulted in violations of his right to
counsel, to presence, to due process, and to a fair and public trial under the Sixth
and Fourteenth Amendments of the federal Constitution. We will reject the claim.
Proceedings held in chambers and outside the presence of a party are
generally disfavored. (Ayala, supra, 24 Cal.4th 243, 262; see id. at pp. 293-294
(dis. opn. of George, C. J.); see also People v. Prince (2007) 40 Cal.4th 1179,
1279 (Prince) [openness presumed in public trial guarantee].) However, the trial
court retains discretion to conduct in camera ex parte proceedings to protect an
41
overriding interest that favors confidentiality. (See, e.g., People v. Gurule (2002)
28 Cal.4th 557, 593-594 (Gurule) [privileged attorney-client information]; People
v. Lawley (2002) 27 Cal.4th 102, 159 (Lawley) [identity of confidential
informant]; Ayala, supra, 24 Cal.4th at p. 261 [trial strategy]; People v. Webb
(1993) 6 Cal.4th 494, 516 (Webb) [privileged psychotherapy records].)
In addition, the federal constitutional right to counsel arises at critical
stages of the prosecution or when necessary to assure a meaningful defense.
(United States v. Wade (1967) 388 U.S. 218, 225; People v. Koontz (2002) 27
Cal.4th 1041, 1069 (Koontz).) Likewise, a federal constitutional right to be
present in court exists where necessary to protect the defendant’s opportunity for
effective cross-examination, or to allow him to participate at a critical stage and
enhance the fairness of the proceeding. (People v. Waidla (2000) 22 Cal.4th 690,
741-742 (Waidla), citing Kentucky v. Stincer (1987) 482 U.S. 730, 744-745 & fn.
17.) Such protections usually do not cover in camera discussions on matters
bearing no reasonable, substantial relation to the defense of the charge. (People v.
Rogers (2006) 39 Cal.4th 826, 855; Waidla, supra, 22 Cal.4th at p. 742.)
Defendant makes no serious attempt to show a violation of these principles
based on the transcripts that we unsealed or otherwise provided to counsel on
appeal. He asks us to infer from the sheer number of in camera ex parte
proceedings that codefendant Lee’s counsel received “unfettered” access to the
trial court, and functioned as a “super-prosecutor” in the case. As so framed, the
claim is speculative and fails outright. Indeed, the court met at least three times
with defendant’s attorney in chambers, outside the presence of Lee’s counsel,
suggesting the procedure was not one-sided or unfair.20
20
The Attorney General suggests defendant has forfeited his right to complain
about the ex parte in camera procedure on appeal to the extent he failed to object
(footnote continued on next page)
42
In any event, we have carefully reviewed all 10 transcripts sealed at trial
and used to support the present claim on appeal. (E.g., Gurule, supra, 28 Cal.4th
557, 595; Lawley, supra, 27 Cal.4th 102, 160; Webb, supra, 6 Cal.4th 494, 518.)
The matters discussed in those conferences did not bear directly on the evidence at
trial, the conduct of the defense, or the outcome of the case. Nor do the transcripts
reveal any attempt by Attorney Hall to curry favor with the trial court or to benefit
his client Lee at the expense of defendant.
To the contrary, and as an example, defendant instigated the closed
proceedings that are the subject of the three transcripts we ordered unsealed on
appeal. On those occasions, Hall consulted with the trial court about telephone
calls and handwritten notes he had received directly from defendant complaining
about his attorney, Courtney, offering to help Lee with her defense, and
threatening to commit suicide. The court suggested that Hall should promptly
disclose these communications to Courtney and inform defendant that no contact
could occur in Courtney’s absence. Hall said he took such action. It seems
unreasonable for defendant to now complain about ex parte in camera meetings
held to ensure that his own actions did not place Lee’s counsel in an ethical or
tactical bind. No constitutional error occurred.
(footnote continued from previous page)
at trial. However, as the Attorney General recognizes, defendant’s counsel was
apparently aware of only three of these conferences around the time they occurred
— the same number of times defendant’s counsel appeared in chambers without
Lee’s counsel. Thus, it appears defendant did not have sufficient information to
object below on the precise ground raised here, i.e., that counsel for codefendant
Lee “established a practice” of making in camera ex parte presentations to the trial
court, and that the total number of these conferences was excessive. We find no
forfeiture.
43
Almost as an afterthought, defendant argues in his reply brief on appeal that
the proceedings from which he and his counsel were excluded violated the
presence requirements set forth in section 977. (Id., subd. (b)(1) [accused must be
present at specified proceedings in all felony cases, and must be present “at all
other proceedings” unless he executes a written waiver form].) Even assuming
such statutory error occurred, it was harmless for the reasons we have set forth
above. (See People v. Rundle (2008) 43 Cal.4th 76, 134, citing People v. Watson
(1956) 46 Cal.2d 818, 836.)
B. Bankruptcy Consultation
As discussed below in conjunction with a challenge to the financial-gain
special circumstance, the prosecution sought to prove that defendant killed Sonia,
at least in part, to avoid paying her $375 a month in court-ordered child support.
Over defendant’s assertion of the attorney-client privilege, the trial court admitted
prosecution evidence that he consulted with a bankruptcy attorney before the
capital crime. Defendant now argues that the trial court erred in rejecting his
privilege claim. He also asserts a violation of his federal constitutional right to
due process and a fair trial. We decline to reverse the judgment on such grounds.
As relevant here, the prosecution called Attorney Rene Lopez de Arenosa
to testify that defendant consulted him about bankruptcy shortly before the
murders. The prosecutor indicated that because the conversation occurred in front
of codefendant Lee, an extraneous third party, it was not confidential or protected
under the attorney-client privilege. Defendant disagreed and asserted the
privilege, urging the court to hold an evidentiary hearing if it had any doubts.
After taking a brief break to research the matter, the court indicated that the issue
was close, and agreed to hold a hearing. The court said it tentatively favored the
prosecution view, but noted the contrary argument that Lee (though married to
someone other than defendant) was living with defendant in an intimate
44
relationship at the time, and was “arguably a putative wife” whose presence at the
bankruptcy meeting did not affect confidentiality.
At the ensuing hearing, Attorney Arenosa testified that, in early 1995, he
met with defendant and his mother, Doris, to discuss her bankruptcy, and that he
once represented defendant in a paternity case. In March or April 1995, defendant
made another appointment. He arrived at Arenosa’s office with codefendant Lee,
calling her his girlfriend.
Arenosa further testified as follows: Lee was present in the room during
defendant’s 30-minute meeting with Arenosa. The discussion focused solely on
defendant’s financial condition and discharging his debts in bankruptcy.
Defendant showed Arenosa his credit card bills. According to Arenosa, he and
defendant spoke in English, except when they discussed specific debts in Spanish.
Lee’s financial situation was not discussed. Arenosa did not meet with defendant
or Lee again, and prepared no bankruptcy documents.
The only other witness at the evidentiary hearing was defendant. He
confirmed that the meeting concerned his possible bankruptcy. Defendant
testified that one of the bills he mentioned was the Household Finance loan he
shared with Lee. Defendant viewed Arenosa as his attorney, wrote him a check
for his services that day, and assumed the conversation was confidential.
Defendant recalled that the conversation occurred in English and Spanish, with
defendant speaking mainly in Spanish. On cross-examination, defendant admitted
that he and Lee had exchanged letters written in a mixture of Spanish and English.
He indicated that Lee understood Spanish, and had been studying to learn more.
After the hearing, the court entertained additional argument. Alluding to
applicable statutory law, which we discuss below, the prosecutor reiterated that
Lee’s presence defeated confidentiality between defendant and Arenosa, because
there was no reason for her to be at the meeting other than to offer emotional
45
support. Defendant’s counsel countered that Lee was present to serve both her and
defendant’s interests insofar as they were both liable for one of the debts that he
might discharge in bankruptcy.
The trial court rejected defendant’s claim. It concluded that his bankruptcy
planning had nothing to do with Lee, because it concerned only the discharge of
his debts. The court explained that Lee “wasn’t a necessary party” and she
“wasn’t there to further [defendant’s] interest.” Hence, the court agreed with the
prosecution, that Lee’s presence meant the conversation with Arenosa was not
confidential and that it could not be excluded on privilege grounds. However, in
an abundance of caution, the court limited the information that Arenosa could
disclose to the jury about the meeting, namely, that he met with defendant and Lee
on a certain day, and that the discussion with defendant concerned bankruptcy.
Consistent with this ruling, Arenosa testified for the prosecution at trial that
defendant and Lee visited his law office in late March or early April 1995, and that
he spoke with defendant about bankruptcy. On cross-examination, Lee’s counsel
elicited that the meeting focused on defendant’s, not Lee’s, financial state.
By statute, a client holds a privilege to prevent the disclosure of his
confidential communications with an attorney. (Evid. Code, §§ 952-954.) A
person becomes a client when he consults an attorney to retain him or secure legal
services or advice. (Id., § 951.) The transmission of information between lawyer
and client in the course of that relationship is “confidential” and protected only if
it occurs “by a means which, so far as the client is aware, discloses the information
to no third persons other than those who are present to further the interest of the
client in the consultation or those to whom disclosure is reasonably necessary for
the transmission of the information or the accomplishment of the purpose for
which the lawyer is consulted.” (Id., § 952, italics added; see People v. Gionis
(1995) 9 Cal.4th 1196, 1207.) Moreover, the client can later forfeit, or waive, the
46
privilege as to any confidential communication otherwise protected thereunder if
he “has disclosed a significant part of the communication or has consented to
disclosure made by anyone.” (Evid. Code, § 912, subd. (a); see People v. Barnett
(1998) 17 Cal.4th 1044, 1124.)
Defendant argues here, much as he did below, that even if Lee was not
“reasonably necessary for the transmission of the information or the
accomplishment of the purpose” of defendant’s bankruptcy consultation, she was
“present to further [their joint] interest.” (Evid. Code, § 952.) In making this
argument, defendant emphasizes the applicable Law Revision Commission
Comment stating that an attorney-client communication retains its confidential
character “even though it is made in the presence of another person — such as a
spouse, parent, business associate, or joint client — who is present to further the
interest of the client in the consultation.” (Cal. Law Revision Com. com., 29B pt.
3 West’s Ann. Evid. Code (1995 ed.) foll. § 952, p. 210.) Defendant suggests this
principle applies here because Lee was his intimate partner and they shared
liability on the Household Finance loan.
We need not, and do not, decide the issue. Even assuming error occurred, it
was harmless under any applicable standard. At most, Arenosa’s testimony
established that defendant, by seeking legal advice about declaring bankruptcy,
was deeply concerned about his personal financial state shortly before the capital
crime. However, the jury learned in great detail from other witnesses that
defendant’s debts, including his child support payments, exceeded his assets and
income, and that he was having trouble paying his bills. Defendant told one of his
supervisors, Moreno, that he was “fucked for the next seven years, because he was
going to have to file bankruptcy.” Jurors also learned that he had asked one
manager at work, Shafer, for a referral to an attorney, alluding to his child support
problems. The jury almost certainly would not have reached a different outcome
47
at the guilt phase had the trial court excluded Arenosa’s brief and limited
testimony confirming that a bankruptcy consultation with him had occurred.
C. Pathologist’s Testimony
During the prosecution case, the pathologist, Dr. Carpenter, testified that
200 of the 4,000 autopsies he had handled involved knife slayings. He explained
that only one of the 200 knife cases involved multiple victims, and that none
involved injuries like those Sonia and Doris sustained. Defendant unsuccessfully
objected and moved to strike this part of the witness’s testimony as irrelevant.
A short time later, the prosecutor took a different tack, asking the
pathologist about the “histories” he had received from police and coroner’s
investigators in both this case and the other 200 knife deaths he had handled.
Codefendant Lee summarily objected on hearsay grounds. In his offer of proof,
the prosecutor explained that Dr. Carpenter would testify that he had never seen a
robbery murder involving knife injuries like those inflicted on Sonia and Doris.
The prosecutor indicated that such testimony would undermine defendant’s
statements to investigators at the crime scene that Sonia and Doris were stabbed to
death during a robbery. The court overruled Lee’s objection. Dr. Carpenter then
testified that, based on case histories from investigators, the 200 knife deaths he
examined arose from either barroom brawls or domestic disputes, and that only a
few stab wounds were inflicted on each occasion.
Defendant now claims the trial court erred in admitting Dr. Carpenter’s
testimony insofar as it concerned the nonrobbery nature of the 200 other knife
deaths. As support for his inferences about the circumstances of those cases, the
witness purportedly relied on information that was not of a “type that reasonably
may be relied upon by an expert in forming [his] opinion.” (Evid. Code, § 801,
subd. (b).) The investigators’ case histories in those matters were not a proper
basis for expert opinion, defendant insists, because they were preliminary, having
48
been obtained before the investigations in the prior cases were complete or the
facts were adjudicated. A federal due process violation from the admission of this
evidence is alleged.
Defendant has forfeited this claim by not raising it below. (See Evid. Code,
§ 803 [authorizing exclusion, “upon objection,” of opinion testimony based on
improper matter].) The trial court was never presented with the specific objection
raised here, and was therefore denied the opportunity to determine whether experts
commonly and reasonably rely on the information used by Dr. Carpenter in
reaching opinions of the kind he offered. (Id., § 353, subd. (a).) Absent such a
record, this court likewise cannot assess the propriety of the trial court’s ruling
admitting such evidence in light of defendant’s present theory. (Id., subd. (b).)
Under such circumstances, the claim is procedurally barred on appeal.
Reversal is not warranted in any event. Contrary to defendant’s
insinuation, Dr. Carpenter’s testimony was by no means the only evidence that
“effectively identified” defendant as the killer, and that eliminated robbery as the
likely motive for the capital crime. For months, defendant expressed resentment
toward Sonia and Doris over child custody and support issues. He wished Sonia
were dead, and he wanted a restraining order against Doris. Defendant was the
last person seen alive with the victims, and he was discovered immediately after
the murders at the crime scene covered in their blood, with cuts on his hands. His
behavior and statements were suspicious. Evidence such as Lee’s actions before
and after the crime pointed to her cooperation with defendant in a plan to lure the
victims to their deaths and to make the crime look like a robbery. Any error in the
admission of Dr. Carpenter’s testimony about the nonrobbery nature of most knife
killings could not have harmed defendant under any applicable standard of
prejudice.
49
D. Provocation and Lesser Included Offense Instructions
The trial court instructed on two theories of first degree murder: murder by
means of lying in wait, and willful, deliberate, and premeditated murder.
(CALJIC Nos. 8.10, 8.11, 8.20, 8.25.) The court also instructed on
unpremeditated second degree murder (CALJIC No. 8.30), and informed the jury
of its duty to fix the degree of murder (CALJIC No. 8.70), and to give defendant
the benefit of any reasonable doubt on that issue. (CALJIC No. 8.71.) However,
the court denied defendant’s request for instructions on the lesser included offense
of voluntary manslaughter, including an instruction explaining that provocation in
the form of a sudden quarrel or heat of passion may reduce murder to
manslaughter.21 The court denied a related request for CALJIC No. 8.73, that
evidence of provocation could be considered in determining the degree of
murder.22
On appeal, defendant repeats his claim that the requested instructions were
warranted because the jury could conclude that the killings, even if intentional,
occurred in a rage, such that defendant was not guilty of first degree murder and
was guilty, at most, only of a lesser offense (i.e., voluntary manslaughter or
unpremeditated second degree murder). The evidence cited in support of this
21
The specific manslaughter instructions the court rejected were CALJIC
Nos. 8.37 (manslaughter), 8.40 (voluntary manslaughter), 8.42 (sudden quarrel or
heat of passion), 8.50 (murder distinguished from manslaughter), 8.72 (doubt as to
murder versus manslaughter), 8.74 (unanimity on murder versus manslaughter),
8.75 (verdict forms for murder and manslaughter), and 17.49 (use of multiple
verdict forms).
22
CALJIC No. 8.73 states that if provocation played a role in an unlawful
homicide, but was insufficient to reduce the offense to manslaughter, the jury
should “consider the provocation for the bearing it may have on whether the
defendant killed with or without deliberation and premeditation.”
50
argument comes from prosecution witnesses, and includes (1) expert testimony
describing the victims’ injuries as consistent with a crime of passion, (2) the
victims’ alleged hostility and conspiracy to separate defendant from his son
Michael in the months and weeks before the killing, and (3) the asserted lack of
any plan by defendant to kill the victims. Defendant contends the instructional
error violated his right to due process and a fair trial under the Fifth, Sixth, and
Fourteenth Amendments to the federal Constitution.
Where an intentional and unlawful killing occurs “upon a sudden quarrel or
heat of passion” (§ 192, subd. (a)), the malice aforethought required for murder is
negated, and the offense is reduced to voluntary manslaughter — a lesser included
offense of murder. (People v. Breverman (1998) 19 Cal.4th 142, 153-154.) Such
heat of passion exists only where “the killer’s reason was actually obscured as the
result of a strong passion aroused by a ‘provocation’ sufficient to cause an
‘ “ordinary [person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.” ’ ”
(Id. at p. 163.) To satisfy this test, the victim must taunt the defendant or
otherwise initiate the provocation. (People v. Spurlin (1984) 156 Cal.App.3d 119,
125-126; e.g., People v. Berry (1976) 18 Cal.3d 509, 512-515 [young wife
repeatedly subjected older husband to sexual insults, rejection, and admissions of
infidelity, causing him to strangle her in jealous rage]; cf., People v. Manriquez
(2005) 37 Cal.4th 547, 585-586 [provocation lacking where defendant calmly shot
bar patron who insulted and goaded him into firing]; see also People v. Guitierrez
(2002) 28 Cal.4th 1083, 1144 [revenge does not reduce murder to manslaughter].)
In a related vein, the “ ‘existence of provocation which is not “adequate” to
reduce the class of the offense [from murder to manslaughter] may nevertheless
raise a reasonable doubt that the defendant formed the intent to kill upon, and
carried it out after, deliberation and premeditation’ ” — an inquiry relevant to
51
determining whether the offense is premeditated murder in the first degree, or
unpremeditated murder in the second degree. (People v. Wickersham (1982) 32
Cal.3d 307, 329, quoting People v. Valentine (1946) 28 Cal.2d 121, 132.) First
degree willful, deliberate, and premeditated murder involves a cold, calculated
judgment, including one arrived at quickly (Koontz, supra, 27 Cal.4th 1041,
1080), and is evidenced by planning activity, a motive to kill, or an exacting
manner of death. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Such state of
mind “is manifestly inconsistent with having acted under the heat of passion —
even if that state of mind was achieved after a considerable period of provocatory
conduct.” (People v. Wharton (1991) 53 Cal.3d 522, 572.)
We see no substantial evidence that the killings were provoked and that
defendant was guilty only of the lesser offenses on which instruction was sought.
No conspiracy by the victims against defendant appears on this record. In
December 1994, after defendant and Sonia ended their relationship and stopped
living together, Sonia obtained child custody and support orders — something she
was legally entitled to do. She also took the laudable step of maintaining a
relationship with defendant’s mother, Doris — the grandmother of their son,
Michael. Thus, over Easter weekend in April 1995, Sonia helped Doris recuperate
after a brief hospital stay. Then, on May 5, 1995, about two weeks before the
capital crime, Sonia stayed in Doris’s apartment for one week. While there was
some evidence that Sonia and Doris might thereafter relocate with Michael in
another city, it is not clear defendant knew of this possibility. In any event, none
of these events were sufficient “to arouse feelings of homicidal rage or passion in
an ordinarily reasonable person.” (People v. Pride (1992) 3 Cal.4th 195, 250.)
Far from being “the source” of any rage or passion (People v. Spurlin,
supra, 156 Cal.App.3d 119, 126), Sonia was arguably taunted by defendant. In
late 1994, he began dating codefendant Lee, a mutual colleague of theirs. Before
52
long, coworkers and bosses learned of defendant’s new relationship. On April 16,
1995, Easter Sunday, defendant invited Sonia on a drive and admitted that his
relationship with Lee was sexual, causing Sonia to reflexively slap him. It appears
Sonia did nothing to provoke sexual jealously in defendant.
Moreover, contrary to what defendant claims, all the available evidence
suggests that, having desired Sonia’s death for a considerable period of time, he
actively planned the murders with codefendant Lee for at least one week.
Prosecution witnesses testified defendant repeatedly said he wished Sonia was
dead. The guilty look the pair displayed when spied by their managers at
Universal on May 6, 1995, implied they were scouting the crime scene at the time.
The planning process included defendant inviting the victims to a late-night
Mother’s Day meal before the murders — an invitation timed so that their guard
would likely be down. He parked in the corner against the garage wall on the top
floor with few cars nearby, creating what the prosecutor called a “killing zone.” It
appears codefendant Lee carefully timed her arrival on the scene, with defendant
first calling her from the restaurant a few minutes beforehand. Through this
arrangement, defendant had the benefit of a second person, Lee, in restraining and
killing the victims, and in removing property from the scene in order to stage a
robbery. Defendant also brought an extra knife that was found, unused, in the
stairwell of the garage. Lee carried washcloths and Ziploc bags that could have
been used to clean up and dispose of evidence — items that were found
bloodstained in or near her car along Highway 170.
Finally, there was no evidence that “heated words were exchanged or a
physical struggle took place between the victim[s] and the accused before the
fatal[ ]” attack. (People v. Wickersham, supra, 32 Cal.3d 307, 329.) As noted,
part of the lethal planning involved the victims’ last meal. According to the
waitress, the only testy behavior she saw during the Mother’s Day dinner came
53
from defendant, not his two female guests. Indeed, defendant told the paramedic
at the crime scene that he leaned into the car to kiss Sonia shortly before being
attacked from behind by unknown assailants. He reported no quarrel with the
victims.
In sum, all the evidence indicated either that defendant was not the killer of
Sonia and Doris (based on his robbery story at the crime scene) or that the killings
were the product of his long-simmering resentment towards them over family
issues, and that he exacted the ultimate revenge when he slashed them to death.
There was no evidence sufficient to support either voluntary manslaughter
instructions or unpremeditated second degree murders instructions based on heat
of passion. The defense request for such instructions was thus properly denied.
V. SPECIAL CIRCUMSTANCE ISSUES
A. Sufficiency of Evidence of Financial Gain
In addition to sustaining special circumstances involving multiple murder
and murder while lying in wait, the jury found that Sonia’s murder “was
intentional and carried out for financial gain.” (§ 190.2, subd. (a)(1).) The
prosecution’s theory in this regard, as reflected in evidence and argument at trial,
was that defendant killed Sonia to end the $375 monthly child support payments
she received by garnishing his wages at the Bank. In various motions (e.g.,
regarding acquittal, instructions, and a new trial) defendant argued that the
prosecution did not prove he expected or received any direct financial gain from
Sonia’s death. The trial court rejected all such challenges to the financial gain
special circumstance.
Defendant argues here, as below, that he had nothing to gain from
eliminating child support payments to Sonia because he was required to support
his son Michael even after Sonia died. Under defendant’s view, the prosecution
could not sustain its burden of proof absent evidence that he anticipated an
54
inheritance, insurance, or other direct pecuniary gain from Sonia’s death.
Violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the federal
Constitution have allegedly occurred. We disagree.
Section 190.2, subdivision (a)(1) applies to murders motivated by financial
gain. (People v. Hamilton (1989) 48 Cal.3d 1142, 1178, applying People v.
Howard (1988) 44 Cal.3d 375, 409-410, and People v. Bigelow (1984) 37 Cal.3d
731, 751.) However, such gain need not be the sole or main motive for the
murder. (People v. Sapp (2003) 31 Cal.4th 240, 282, following People v. Noguera
(1992) 4 Cal.4th 599, 635 (Noguera).) Nor must defendant experience any actual
pecuniary benefit from the victim’s death. (People v. Edelbacher (1989) 47
Cal.3d 983, 1025 (Edelbacher).) “ ‘[T]he relevant inquiry is whether the
defendant committed the murder in the expectation that he would thereby obtain
the desired financial gain.’ ” (Ibid., quoting People v. Howard, supra, 44 Cal.3d
at p. 409.)
In Edelbacher, supra, 47 Cal.3d 983, the defendant killed his estranged
wife, with whom he had a child, in order to avoid making child support payments.
Such payments were in arrears and were the subject of a wage garnishment order
entered shortly before her death. The defendant, who struggled to pay other bills
as well, also owed his wife a substantial amount to equalize the community
property division in their pending marital dissolution action. Edelbacher first
rejected the defendant’s claim that the financial gain special circumstance was
overbroad and unconstitutional as applied there. To the contrary, this court
reasoned that it would be arbitrary and irrational to conclude that “cancellation of
a debt or the avoidance of a loss” does not constitute a financial benefit, since such
motivation is no less repugnant than killing someone for direct “profit.” (Id. at
p. 1025.) Edelbacher further found the evidence sufficient to show a financial
motive for murder. We emphasized the benefit the defendant expected to receive
55
either by the extinguishment of debts upon his wife’s death, or by gaining custody
of his son and acquiring control of the son’s inheritance from the estate. (Id. at
p. 1026.)
Likewise, the jury could readily infer beyond a reasonable doubt that
defendant killed Sonia because he believed her death would ease his financial
strain. The evidence showed that the $375 monthly child support obligation
substantially reduced his net pay, that his modest income from the Bank was his
main asset, that his liabilities overshadowed his assets, and that he had difficulty
paying his monthly bills such that he worried about declaring bankruptcy. More to
the point, defendant perceived his child support obligation to Sonia as a
tremendous burden, calling her a “bitch” and “whore” who deserved to die, and
saying that his financial future would be “fucked” if nothing changed. The jury
could conclude that defendant sought to benefit financially from Sonia’s death by
gaining control of the money which, by court order, he was paying her for
Michael’s support, and by having the ability to decide that less money should be
spent in that regard. The prosecution made a similar point in closing argument.
We reject defendant’s related claim that the financial gain special
circumstance is unconstitutionally vague and overbroad under federal law. As
noted above, a similar contention failed in Edelbacher, supra, 47 Cal.3d 983.
Nothing in our interpretation of the statute there, or its application here, extends
death eligibility to every homicide involving a family member to whom the killer
owed a duty of support. The special circumstance is limited to those murders,
including those intrafamilial murders, committed with the expectation that they
would produce the desired financial benefit. (Id. at p. 1025.) No overbreadth or
vagueness problem appears. (Accord, Noguera, supra, 4 Cal.4th 599, 636.)
56
B. Validity of Lying-in-Wait Special Circumstance
The prosecution alleged, and the jury found, that defendant “intentionally
killed” both victims “while lying in wait.” (§ 190.2, former subd. (a)(15), added
by Prop. 7, § 6, approved by voters, Gen. Elec. (Nov. 7, 1978); see now id., subd.
(a)(15), as amended by Prop. 18, approved by voters, Prim. Elec. (Mar. 7, 2000)
eff. Mar. 8, 2000 [changing “while” lying in wait to “by means of” lying in wait].)
On appeal, defendant claims the special circumstance applicable to his crime fails
to adequately narrow the class of death-eligible murders because it applies “to
virtually all homicides.” He suggests the trial court erred in rejecting a similar
claim he raised several times at trial (e.g., in moving for acquittal, discussing
proposed instructions, and seeking a new trial). A due process violation under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution is
asserted here.
However, as we have explained many times before, the version of the
lying-in-wait special circumstance at issue here is not unconstitutionally overbroad
on the ground urged by defendant. It is limited to intentional murders that involve
a concealment of purpose and a meaningful period of watching and waiting for an
opportune time to attack, followed by a surprise lethal attack on an unsuspecting
victim from a position of advantage. (People v. Morales (1989) 48 Cal.3d 527,
557.) Such is the case where, as here, the defendant ambushes the victim after
luring him or her to a secluded spot on a pretext. (E.g., Bonilla, supra, 41 Cal.4th
313, 331-332 & fn. 6; People v. Webster (1991) 54 Cal.3d 411, 448-449.) We
therefore conclude no constitutional violation or other error occurred.
VI. PENALTY ISSUES
A. Effect of Joinder on Sentencing
Near the start of the guilt phase defendant moved for a mistrial and,
alternatively, for severance based on a newspaper article published the same day
57
concerning a Texas capital case. The article suggested that female murderers were
less likely to be executed for capital crimes than their male counterparts.
Defendant, who presented no evidence that any juror read the article, insisted that
a joint penalty trial would unduly prejudice him because the jury was likely to
show “deference” to codefendant Lee simply because she was a woman. The trial
court denied the motion. It noted that the motion could be renewed later in the
event defendants were convicted and faced a joint penalty trial — an option
defendant never exercised.
On appeal, defendant claims that a joint penalty trial is “inherently skewed”
against male defendants and in favor of female codefendants due to “misplaced
chivalry” by lay jurors. The court’s failure to grant severance on this ground
allegedly violated various federal and state constitutional rights. Defendant
emphasizes Eighth Amendment requirements favoring individualized sentencing
determinations (see Lockett v. Ohio (1978) 438 U.S. 586, 605 (Lockett) (plur. opn.
by Burger, C. J.)), and due process prohibitions against joint trials that are grossly
unfair. (See Lewis and Oliver, supra, 39 Cal.4th 970, 998.)
No error occurred. Defendant offers only generalized assumptions about
cultural stereotypes and gender biases in criminal cases. Nothing suggests the jury
failed to properly perform its sentencing function in reaching different outcomes
for defendant (a death verdict) and Lee (a hung jury leading to LWOP). Indeed,
there were bases in the evidence for this disparity. Defendant was the leader in the
killings, and codefendant Lee was the determined follower. The prosecutor noted
that they were “equally responsible” for the slayings, but that the penalty
determination was “separate” as to each defendant.
Moreover, in advising the jury how to weigh and consider the factors in
aggravation and mitigation, the instructions stated, among other things, that the
penalty determination as to each defendant must be “based solely on the evidence
58
applicable to that defendant, uninfluenced by what penalty has been or may be
determined as justified and appropriate as to the other defendant.” (CALJIC No.
8.84.) Jurors were also told that penalty must be “decide[d] separately” as to each
defendant. (CALJIC No. 17.00.)
In light of the foregoing, the jury was adequately apprised of the
individualized nature of the sentencing determination. No evidence of gender bias
or improper comparisons between defendants appears. The claim of error fails.
B. “Skipper/Lockett” Error
At the penalty phase, defendant sought to introduce the testimony of
Barbara Schochet, a psychotherapist Sonia visited several times in the weeks
before the capital crime. Counsel argued that Sonia’s statements to Dr. Schochet
during therapy would “blunt” prosecution evidence that portrayed Sonia and her
family in an unblemished light, and that suggested Sonia and her family were
close. Counsel also argued that Sonia’s distrust and insecurity toward her own
family, and her belief that she could easily manipulate defendant, caused her to act
in ways that “pushed him over the edge” and showed he was not “the main actor”
in the crime.23
23
Defense counsel did not link Dr. Schochet’s proffered testimony to any
specific statutory sentencing factor. Counsel suggested, however, that Sonia’s
statements during therapy were offered to mitigate penalty under various theories,
such as to counter prosecution evidence concerning the circumstances of the
capital crime, including victim impact testimony (see § 190.3, factor (a)), to show
defendant acted under extreme duress or under the substantial domination of
another (see id., factor (g)), to show he was a mere accomplice whose participation
in the capital crime was relatively minor (see id., factor (j)), and to minimize his
culpability and otherwise extenuate the gravity of the capital crime. (See id.,
factor (k).)
59
The prosecutor objected on grounds the evidence violated the
psychotherapist-patient privilege, the hearsay rule, and relevance requirements.
The trial court granted the prosecutor’s request for a hearing on the admissibility
of the proffered testimony.
At the hearing, Dr. Schochet took the stand and read out loud from 10
pages of handwritten notes that she made during Sonia’s therapy sessions. Sonia
reportedly made the following statements therein: As to her relationship with
defendant, Sonia worried that she would lose her son to defendant, she viewed her
relationship with defendant as volatile, and she found him to be unavailable when
she needed him. As to her relationship with her own parents, Sonia feared
becoming as dependent on defendant as her mother had become with respect to
her father. Sonia recalled the trauma her mother experienced when her father left
the marriage after 25 years and fathered a child with someone else. As to
defendant’s personality, Sonia described him as sweet and nice, and “easily
influenced” to the point that she could “tell him what to do.” According to Sonia,
defendant was not as smart as she was, and she preferred someone who could take
more control. However, she also believed he was vindictive, short-tempered, and
anger-prone.
As pertinent here, the trial court sustained the prosecutor’s relevance
objection and excluded Dr. Schochet’s testimony. The court reasoned that the
feelings Sonia expressed to Dr. Schochet were irrelevant absent evidence that she
communicated them somehow to defendant, and that his conduct was affected as
result. Otherwise, the court said, any mitigating inferences were speculative.
On appeal, defendant claims the trial court erred in not finding Dr.
Schochet’s testimony relevant and admissible on the theories he presented below.
In his view, the jury could reasonably infer from Sonia’s description of her own
state of mind that she had started to detach from both defendant and her own
60
family after giving birth to Michael, that she had turned to defendant’s mother,
Doris, for support in raising Michael, that she and Doris had colluded to alienate
defendant from Michael, and that such actions sent defendant into a rage that
caused him to kill both women. By preventing the jury from taking these
inferences into account, the trial court’s ruling allegedly violated defendant’s right
to present relevant mitigating evidence, and to due process and a fair penalty trial,
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution.
As noted by defendant, the federal Constitution requires that the sentencer
in a capital case not be precluded from considering relevant mitigating evidence.
(Skipper v. South Carolina (1986) 476 U.S. 1, 4; Eddings v. Oklahoma (1982) 455
U.S. 104, 110; Lockett, supra, 438 U.S. 586, 604 (plur. opn. by Burger, C. J.)
Such evidence includes “any aspect of a defendant’s character or record and any
of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.” (Lockett, supra, at p. 604; accord, People v. Easley
(1983) 34 Cal.3d 858, 877-878 & fn. 10.) However, while the range of
constitutionally pertinent mitigation is quite broad (People v. Whitt (1990) 51
Cal.3d 620, 647), it is not unlimited. Both the United States Supreme Court and
this court have made clear that the trial court retains the authority to exclude, as
irrelevant, evidence that has no logical bearing on the defendant’s character, prior
record, or the circumstances of the capital offense. (Lockett, supra, 438 U.S. at
p. 604, fn. 12; Coffman and Marlow, supra, 34 Cal.4th 1, 115-116; People v. Frye
(1998) 18 Cal.4th 894, 1015.)
Here, the trial court properly determined “in the first instance” that the
proffered mitigation was irrelevant. (People v. Frye, supra, 18 Cal.4th 894, 1015.)
Defendant sought to prove that Sonia’s insecurities and distrust of her own family
caused her to act in ways that estranged her from them and from defendant, and
61
that drove her to form a close bond with Doris. Defendant also sought to prove
that Sonia’s view of defendant as someone she could “easily influence[ ]” caused
her to act in ways that provoked him into killing both her and Doris. However,
Sonia’s personal thoughts and feelings, as expressed during psychotherapy, are not
the same as actions. Defendant’s contrary assumption defies common sense.
Thus, the court properly determined that Sonia’s state of mind had no tendency in
reason to prove the occurrence of a chain of events triggering a lethal response on
defendant’s part — events necessary to raise the mitigating inferences he has
argued here and below. (See Evid. Code, §§ 210, 351.) We find no constitutional
violation or evidentiary error in the exclusion of Dr. Schochet’s testimony.
C. Lingering Doubt Evidence
Defendant contends the trial court violated his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution in not allowing
consideration of any doubts that may have “lingered” in the minds of jurors who
were not certain of his guilt beyond all doubt. (See People v. Zapien (1993) 4
Cal.4th 929, 989.) As we shall explain, this claim focuses on two categories of
evidence that, as he did below, defendant insists showed Sonia’s “manipulation”
and “provocation” of defendant: (1) Dr. Schochet’s testimony describing Sonia’s
statements about defendant, their relationship, and her own family during therapy,
and (2) a pair of letters Sonia wrote to defendant in November and December
1994, in which she expressed her love for him and her interest in resuming an
intimate relationship.
The trial court did not mishandle this evidence for various reasons
unrelated to the concept of lingering doubt. First, as noted above, Sonia’s
statements to Dr. Schochet expressing feelings about defendant and other family
members did not establish “manipulati[ve]” or “provocati[ve]” acts on the part of
62
Sonia or defendant, as he claims. The court thus properly excluded this evidence
as having no bearing on any mitigating inference defendant sought to raise.
Second, defendant erroneously implies in his opening brief on appeal that
the trial court excluded Sonia’s letters to defendant. However, after noting that
they were received and presumably read by defendant and were found in his
possession, the trial court admitted the letters into evidence. The court reasoned
that counsel, to the extent he deemed the letters “relevant to the issues before the
jury,” could “make an argument as to how [such evidence] may have affected
[defendant].” No constitutional violation or other error on lingering doubt
occurred.
D. Prosecutor’s Closing Argument
Defendant argues that the prosecutor committed misconduct in closing
argument at the penalty phase, that the trial court exacerbated the issue to some
extent, and that his rights under the Fifth, Eighth, and Fourteenth Amendments of
the federal Constitution were thereby violated. We disagree.
Defendant’s main complaint concerns the prosecutor’s statements that “the
minimum penalty” is not adequate for some killers, and that, on behalf of the
“millions of people in the State of California who enacted the death penalty,”
defendant deserved the “maximum” penalty for the capital crime. Defendant
(along with codefendant Lee) objected to these remarks. The trial court responded
by telling the jury to disregard public opinion in sentencing defendant, that the
applicable law allowed the jury to choose between LWOP and death, and that the
choice was each juror’s alone to make. A short time later, in defendant’s closing
argument, the court barred counsel from discussing the penalties associated with
any form of criminal homicide (e.g., manslaughter) other than first degree murder.
Contrary to what defendant claims, the prosecutor did not mischaracterize
LWOP as a “slap on the wrist,” and the court did not err in denying rebuttal
63
argument on the “range of penalties for criminal homicide.” The prosecutor’s
remarks concerning “minimum” and “maximum” penalties properly implied that
LWOP and death were the only two penalties available in defendant’s case. (See,
e.g., Prince, supra, 40 Cal.4th 1179, 1295 [LWOP is the minimum punishment];
People v. Memro (1995) 11 Cal.4th 786, 879 [death is worse than LWOP]; People
v. Gonzalez (1990) 51 Cal.3d 1179, 1230, fn. 27 [defendant deserves the
maximum penalty].) There was no misconduct in this regard, and nothing for
defendant to rebut.
Regarding the prosecutor’s related reference to the electorate, any
impropriety was cured by the court’s admonition to disregard the comment and to
follow the sentencing instructions. Jurors could not have been misled to impose
death for abstract political reasons unrelated to the evidence in defendant’s case.
(Compare People v. Rowland (1992) 4 Cal.4th 238, 276 [questioning references to
voters on death penalty matters] with People v. Jones (1998) 17 Cal.4th 279, 309
[allowing references to jury’s civic duty to return a verdict based on the
evidence].)
The last instance of alleged misconduct occurred when the prosecutor
called defendant the “worst of the worst” with respect to death-eligible murderers.
Defendant insists this comment urged imposition of the death penalty for reasons
extraneous to his case.
The claim is forfeited for failure to object below. (See Stitely, supra, 35
Cal.4th 514, 572.) It also lacks merit. Our prior cases suggest it is not uncommon
for defense counsel to argue that his client is not the “worst of the worst” in terms
of death eligibility, and that death is not warranted. (See, e.g., People v.
Benavides (2005) 35 Cal.4th 69, 110; People v. Hughes (2002) 27 Cal.4th 287,
400; People v. Sakarias (2000) 22 Cal.4th 596, 638.) Here, the prosecutor told
jurors that he expected such an argument from the defense. There was nothing
64
improper about this approach. (E.g., People v. Ochoa (2001) 26 Cal.4th 398, 450-
452 [prosecutor may address counsel’s suggestion that defendant is not in the
group deserving death (i.e., the worst of the worst) by noting that he is not in the
group deserving life (i.e., the best of the worst)].) Indeed, the prosecutor linked
his argument to the premeditated, painful, and personal nature of the murders. We
will not reverse the judgment on misconduct grounds.
E. Effect of Ex Parte In Camera Meetings on Modification Motion
Defendant registers a second complaint on appeal about the 10 ex parte in
camera proceedings that occurred between the trial court and codefendant Lee’s
counsel, insisting they impaired his federal and state constitutional rights at
sentencing (i.e., to due process and to freedom from cruel and unusual
punishment). He assumes that Lee’s counsel, Hall, presented adverse extraneous
information about defendant during these proceedings, that such information
tainted the court’s view of the evidence in aggravation and mitigation, and that the
court erroneously denied his automatic motion to modify the penalty verdict under
section 190.4, subdivision (e) (section 190.4(e)) as a result. The primary concern
seems to be that the court ignored mitigating evidence and overemphasized
aggravating evidence.
As a preliminary matter, we agree with the Attorney General that defendant
has forfeited his challenge to the section 190.4(e) ruling by failing to object below.
Defendant cannot object for the first time on appeal where, as here, the hearing,
which occurred in 1998, postdated the finality of People v. Hill (1992) 3 Cal.4th
959, 1013. (Lewis and Oliver, supra, 39 Cal.4th 970, 1064.)
On the merits, the record of the section 190.4(e) hearing belies any claim of
error. In ruling on the motion, the trial court applied the correct legal standard. It
referred more than once to its duty to make an independent determination
concerning the propriety of the death penalty, and to independently reweigh the
65
evidence in aggravation and mitigation and determine whether, in the court’s own
judgment, the weight of the evidence supports the jury verdict. (People v.
Burgener (2003) 29 Cal.4th 833, 891.)
In reviewing the evidence in mitigation, the trial court acknowledged that,
until the time of the capital crime, defendant had lived a law abiding life, and had
done “some good things.” The court also observed that the outcome at sentencing
might have been different had the murders actually occurred during a “lengthy and
vituperative [family] argument” in which defendant suddenly grabbed a knife and
killed Sonia and Doris in a blinding rage. However, the court made clear in
independently assessing the evidence, that the death verdict was amply supported
by the planned and premeditated nature of the murders, and the cruel and brutal
manner in which they were committed.
Along these lines, the court said, “the premeditation in this case was
exceptional. It was calculated. It was not in any sense emotionally compelled.”
Also critical in the court’s view was that defendant destroyed his own family. The
court emphasized that “[h]e’s deprived [his son] Michael of his mother and he’s
deprived Michael of his father, namely, Mr. Carasi himself. He made this child an
orphan. And in his presence.”
As to the 10 closed proceedings to which defendant now objects, we note
that no discussion about the appropriate penalty for either defendant appears in the
relevant transcripts, most of which are still sealed. The trial court also made no
mention during the section 190.4(e) hearing to such proceedings or to its
interactions with Lee’s counsel at any point in time. Nor did the court deny the
modification motion based on aggravating evidence not admitted at trial. Thus,
our review of the record leads us to conclude that the court carefully and properly
performed its duty in denying the motion to modify the death verdict under section
190.4(e). We reject defendant’s contrary claim.
66
F. Validity of Death Penalty Law
Defendant contends the death penalty law under which he was sentenced
denied him due process and a fair penalty determination under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution, and under parallel
provisions of the state Constitution. We have previously rejected similar claims
and do so again here. Thus, the homicide and death penalty statutes adequately
narrow the class of first degree murderers eligible for the death penalty. The
scheme is not overbroad because of the sheer number, nature, and scope of the
special circumstances, including the lying-in-wait and financial-gain special
circumstances applied here. (Stitely, supra, 35 Cal.4th 514, 573, and cases cited
therein.) Nor did the trial court err in failing to instruct that the standard of proof
for finding aggravating factors must be beyond a reasonable doubt, or that the jury
must unanimously agree on this issue. High court decisions in Apprendi v. New
Jersey (2000) 530 U.S. 466, and Ring v. Arizona (2002) 536 U.S. 584, have not
changed our conclusions in this regard. (Boyer, supra, 38 Cal.4th 412, 485, and
cases cited therein.)
VII. CONCLUSION
The judgment is affirmed in its entirety.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
67
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
I join the majority in affirming defendant’s two murder convictions and the
special circumstances of multiple murder, murder for financial gain, and lying in
wait. For the reasons given in Justice Werdegar’s concurring and dissenting
opinion, however, I would reverse the judgment of death, based on the trial court’s
refusal to ask prospective jurors whether the circumstances that defendant killed
his mother and the mother of his child would cause them automatically to vote for
death, without consideration of the mitigating circumstances presented at the
penalty phase.
I write separately to explain my views on another issue: Whether defendant
made a prima facie showing that the prosecution’s peremptory challenges against
prospective women jurors were motivated by group bias. On this issue, as
explained below, I disagree with the majority’s reasoning underlying its
conclusion (with which I agree) that defendant failed to make a prima facie case.
I
During jury selection, the prosecutor exercised 23 peremptory challenges,
20 of them against women. At the end of voir dire, counsel for codefendant
Donna Lee moved to strike the jury panel on the ground that the prosecutor had
impermissibly exercised sex-based peremptory challenges. Defendant joined in
codefendant Lee’s motion.
1
The trial court, commenting that the percentage of the prosecution’s
challenges against women was “eyebrow-raising, to say the least,” took the motion
under submission to determine whether the defense had made a prima facie
showing that the challenges were motivated by group bias. More than a month
later, long after the evidentiary portion of the trial had started, the court denied the
motion without asking the prosecution to give its reasons for the challenges,
explaining that it had considered “the background of the jurors who were
excused,” the gender of the persons selected to serve as jurors, and the
circumstance that the majority of the panel consisted of women.
II
Peremptory challenges against prospective jurors may not be based on
impermissible group bias, such as race or sex. (Batson v. Kentucky (1986) 476
U.S. 79; J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 129; People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).) The party objecting to the challenges
must establish a prima facie case of group bias “ ‘by showing that the totality of
the relevant facts gives rise to an inference of discriminatory purpose.’ ” (Johnson
v. California (2005) 545 U.S. 162, 168.) The challenger must then offer a
justification for the strikes, after which the trial court must decide whether the
party objecting to the peremptory challenges has shown that they were motivated
by group bias. (Ibid.)
Ordinarily, this court reviews for substantial evidence a trial court’s
determination that the defendant failed to make the requisite prima facie showing
of impermissible group bias. (People v. Bonilla (2007) 41 Cal.4th 313, 341;
People v. Jones (1998) 17 Cal.4th 279, 293.) But here, as the majority explains,
we must “independently determine whether the record permits an inference that
the prosecutor excused jurors on prohibited discriminatory grounds.” (Maj. opn.,
ante, at p. 33; see also People v. Kelly (2007) 42 Cal.4th 763, 779.)
2
In Wheeler, this court gave examples of evidence relevant to establish a
prima facie showing of bias: “[T]he party may show that his opponent has struck
most or all of the members of the identified group from the venire, or has used a
disproportionate number of his peremptories against the group. He may also
demonstrate that the jurors in question share only this once characteristic — their
membership in the group — and that in all other respects they are as
heterogeneous as the community as a whole. Next, the showing may be
supplemented when appropriate by such circumstances as the failure of his
opponent to engage these same juror in more than desultory voir dire . . . . Lastly,
. . . the defendant need not be a member of the excluded group in order to
complain of a violation of the representative cross-section rule; yet if he is, and
especially if in addition his alleged victim is a member of the group to which the
majority of the remaining jurors belong, these facts may also be called to the
court’s attention.” (Wheeler, supra, 22 Cal.3d at pp. 280-281, italics added, fn.
omitted; see also People v. Kelly, supra, 42 Cal.4th at pp. 779-780.)
Here, the prosecution exercised a disproportionate number of its
peremptory challenges — 20 out of 23 challenges, or 87 percent — against
women. Also belonging to that group was codefendant Lee, against whom the
prosecutor was seeking the death penalty. Because the evidence of guilt as to both
defendant and codefendant Lee was overwhelming, the primary issue at trial was
likely to be that of penalty, and the prosecutor may have feared that women would,
out of sympathy for Lee, not vote for death.1
These facts, according to the majority, do not give rise to an inference of
discriminatory purpose. (Johnson v. California, supra, 545 U.S. 162, 168.) The
1
Indeed, the jury convicted both defendants as charged, but it was unable to
reach a verdict on penalty as to codefendant Lee.
3
majority explains: “[A]fter initially accepting the panel without exercising any
peremptory challenges at all, the prosecutor accepted the panel eight additional
times with seeming disregard for the number of females or the ratio of female to
male jurors. On two such occasions, the prosecution was willing to have
defendant tried by a jury of eight women and four men. Two other times, there
were six men and six women in the jury box — another split suggesting men were
not being favored over women. The prosecution chose, on two more occasions, to
peremptorily excuse a man when the panel consisted of seven or more women.”
(Maj. opn., ante, at p. 35.) This “pattern of excusals and acceptances” (ibid.), the
majority concludes, demonstrates that the prosecutor’s peremptory challenges
were not sex-based.
The majority’s reasoning is unpersuasive in light of the tactical realities of
jury selection in a multidefendant capital case. True, the prosecutor here twice
accepted jury panels that included eight women. But this occurred very early in
the jury selection process, when defendant and codefendant Lee had many
peremptory challenges remaining and it was highly unlikely that both would
accept the jury panel as then constituted. Understanding this, an experienced
prosecutor might well perceive a tactical advantage in declining to exercise a
peremptory challenge at that stage. By conserving peremptory challenges early in
the jury selection process, the prosecutor could expect to have more remaining
challenges than the defense as jury selection neared its conclusion. In particular, a
prosecutor wanting to reduce the number of women on the final jury panel might
well accept a panel containing a high ratio of women to men early in the selection
process, with the expectation that peremptory challenges could more effectively be
used to reduce this ratio later, after the two defendants had exhausted their
peremptory challenges.
4
The majority points out that the prosecutor several times accepted jury
panels of six men and six women. (Maj. opn., ante, at p. 35.) True. But in a case
where a majority of the prospective jurors under consideration were women, a
prosecutor biased against women could reasonably have regarded such a panel as
acceptable. Nor is it significant that here the prosecutor excused two men when
the panel contained a majority of women. A prosecutor biased against women
would not necessarily permit that bias to prevail over all other considerations and
might well exercise some peremptory challenges against men whose questionnaire
answers and voir dire responses suggested that they would be highly
unsympathetic to the prosecution in the particular case.
The above-mentioned “pattern of excuses and acceptances” (maj. opn.,
ante, at p. 35) is the sole basis for the majority’s rejection of defendant’s claim of
impermissible group bias underlying the prosecution’s exercise of 20 out of 23
peremptory challenges against women. Had that pattern been the only evidence
on this issue, I would have concluded that defendant has established a prima facie
case of impermissible group bias. But there is other evidence, not at all discussed
by the majority, that strongly indicates sex-neutral reasons for the prosecutor’s
challenges.
To determine whether a defendant has made the requisite prima facie
showing, this court often examines the background of the jurors who were
excused, as revealed by their answers to the juror questionnaires and during voir
dire, to see whether those answers suggest a reason for the prosecutor’s
peremptory challenges. (See, e.g., People v. Bonilla, supra, 41 Cal.4th at pp. 346-
349.) After a careful and thorough examination of answers given in the jury
questionnaires and at voir dire, I conclude there were obvious sex-neutral reasons
for the challenges.
5
The answers of 12 of the 20 women who were excused by the prosecutor
show a strong reluctance to impose the death penalty. Defendant concedes that
seven of the women challenged (Prospective Jurors Mariannel B.-D., Rose W.,
Joyce C., Bianca G., Abigail H., Deanna M., and Lois S.) “did express some
aversion to [the] death penalty in principle or in practice.” Similar views were
expressed in the answers of five other prospective jurors (Jeanette A., Janet H.,
Carol R., Linda R., and Rosemarie K.). Defendant, however, insists that these five
women were not opposed to the death penalty because each had checked off a box
on the jury questionnaire indicating a desire to keep the current death penalty law
“as it is.” But, as explained below, other questionnaire answers by these five
women indicated that even if they were not opposed to the death penalty in the
abstract, they would personally be reluctant to vote for it.
Question 52 on the jury questionnaire asked: “Given the fact that you have
two options available to you, can you see yourself, in an appropriate case,
choosing the death penalty?” Prospective Juror Jeanette A. answered “no.”
Question 51 asked whether, in an appropriate case, life imprisonment without the
possibility of parole, rather than death, would be an option. Her answer was
“yes.” As to Prospective Juror Janet H., she wrote “I don’t know!” in answer to
question 52, and “yes” to question 51. These answers strongly suggest that both
women would be reluctant to vote for death.
Prospective Juror Carol S. wrote on her questionnaire, “I’d be loath to vote
for the death penalty,” explaining, “I believe that violence leads to more violence,
killing to more killing.” She held “very strong” feelings on the death penalty.
Although elsewhere in her questionnaire she voiced a willingness to vote for death
“if the circumstances called for it,” it is likely that the prosecutor viewed these
answers as indicative of a strong reluctance to vote for death.
6
Prospective Juror Linda R. wrote on the questionnaire: “I don’t particularly
like the death penalty, but I understand that in certain circumstances it is
appropriate.” Explaining her dislike for the death penalty, she wrote: “No human
has the right to decide life or death as does God.” Based on these comments, the
prosecutor could reasonably conclude that Linda R. would have a problem voting
for death.
Prospective Juror Rosemarie K.’s answers to the questionnaire suggest that
she had previously been opposed to the death penalty, but that she now believed it
was appropriate if the offense was “horrendous,” such as the brutal murder of a
child. The prosecutor could have reasonably concluded from this answer that for
this prospective juror, this case would not be sufficiently “horrendous” to justify
the death penalty because the victims were adults.
Thus, with respect to the 12 prospective jurors discussed above, their
expressed reluctance to impose the death penalty provides a proper and sex-neutral
basis for the prosecutor’s peremptory challenges.
Five other women challenged by the prosecutor had extensive professional
or personal involvement in counseling or psychology. Sally M.-P. was a licensed
clinical social worker (LCSW) who had a masters degree in social work and was
considering pursuit of a Ph.D. in psychology; she had been a therapist for seven
years. Gloria B., too, was an LCSW, with a master’s degree in social work; she
supervised a sexual trauma team that included psychologists, social workers, and a
psychiatrist. Carolyn S. had a master’s degree in “counseling psychology” and
had been a vocational rehabilitation counselor. Angela G. had recently graduated
from college with a degree in psychobiology and planned to attend medical
school. And Linda D. had a bachelor’s degree in psychology and was living with
a biofeedback therapist who had an “MFC license” and had worked as a counselor.
7
Psychiatric testimony usually plays a major role for the defense at the
penalty phase of a capital case. Here, codefendant Lee relied on such testimony at
both the guilt and the penalty phase of this case. In excusing prospective jurors
with a strong background in counseling or psychology, the prosecutor may well
have been concerned that they would give greater credence to such testimony.
Two other women excused by the prosecutor were closely associated with
persons likely to be unsympathetic to the prosecution. Prospective Juror Rose P.
was a former member of the American Civil Liberties Union and had twice
married men who had served prison sentences, one for murder; she herself had
twice been arrested (though not convicted). Juror Erma R.’s son was a criminal
defense attorney previously employed by the Los Angeles County Public
Defender’s Office, which represented defendant in this case.
The above discussion accounts for 19 out of the 20 women challenged by
the prosecutor. The prosecutor’s reasons for excusing the 20th woman are not
clear from the record. Nevertheless, the presence of sex-neutral reasons for 19 of
the 20 peremptory challenges against women suggests that the challenges were
based on reasons other than the sex of the prospective jurors. These reasons,
rather than the “pattern of excusals and acceptances” relied on by the majority
(maj. opn., ante, at p. 35), forms the basis for my conclusion that the trial court
properly denied defendant’s Batson-Wheeler motion asserting impermissible bias
against women as a group.
KENNARD,
J.
8
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
Would knowledge that defendant’s offenses involved the premeditated
murder of his own mother and the mother of his child cause some otherwise
impartial jurors to invariably vote for a sentence of death? I believe the answer is
yes and that the trial court therefore erred in failing to question jurors about these
facts of defendant’s case. I therefore dissent from the affirmance of the penalty
judgment.
Individuals accused of capital crimes enter a long journey through our
judicial system in which the end result may be the loss of their life at the hand of
the state. Because it is a constitutional imperative that “[n]o state shall . . . deprive
any person of [his] life . . . without due process of law,”1 the procedures governing
capital trials are designed to ensure fundamental fairness to the accused. We
address in this case the procedures applicable to a critical early phase of a capital
trial: jury selection.
It is vitally important to the accused in particular and society in general that
the jury selected for trial in a capital crime is fair and impartial,2 and is composed
1
United States Constitution, Fourteenth Amendment; see also California
Constitution, article I, section 7, subdivision (a) (same).
2
See United States Constitution, Sixth Amendment (“the accused shall enjoy
the right to a speedy and public trial, by an impartial jury” [italics added]); see
also California Constitution, article I, section 16 (“Trial by jury is an inviolate
right and shall be secured to all”).
1
of persons who would neither always vote for a life sentence nor always vote for
death, but would weigh the applicable factors shown by the evidence and follow
the law as instructed by the trial court. “We have long recognized that ‘[t]he right
to unbiased and unprejudiced jurors is an inseparable and inalienable part of the
right to a trial by jury guaranteed by the [C]onstitution.’ (Lombardi v. California
St. Ry. Co. (1899) 124 Cal. 311, 317.)” (People v. Earp (1999) 20 Cal.4th 826,
852 (Earp).) “In a state such as California that in capital cases provides for a
sentencing verdict by a jury, ‘the due process clause of the Fourteenth Amendment
of the federal Constitution requires the sentencing jury to be impartial to the same
extent that the Sixth Amendment requires jury impartiality at the guilt phase of the
trial.’ [Citations.] California’s Constitution provides an identical guarantee.” (Id.
at pp. 852-853.)
To ensure impartiality in this case, defendant sought to ask prospective
jurors whether they could remain fair and impartial upon learning that he was
accused of luring his own mother, and the mother of his young child, into a fatal
ambush on Mother’s Day. The majority declines to address the merits of
defendant’s claim, asserting he forfeited it by failing to raise it at trial. As
explained below, the majority gives the record a parsimonious reading, but in any
event, any failure on defendant’s part to make a more specific objection would be
excused on grounds of futility.
On the merits, the trial court’s refusal to question prospective jurors about
the matricidal and intrafamilial aspects of the case makes it impossible to
determine whether any of the jurors held the disqualifying view that the death
penalty “should be imposed invariably and automatically on any defendant”
(People v. Cash (2002) 28 Cal.4th 703, 723 (Cash)) who had killed both his own
mother and the mother of his child. Accordingly, the penalty judgment must be
reversed.
2
I
The process by which a large pool of prospective jurors are winnowed
down to ensure that the final 12 jurors (plus some alternates) satisfy the
constitutional requirement of impartiality is called voir dire, meaning “To speak
the truth.” (Black’s Law Dict. (5th ed. 1979) p. 1412, col. 2.) “ ‘Voir dire plays a
critical function in assuring the criminal defendant that his Sixth Amendment right
to an impartial jury will be honored. Without adequate voir dire the trial judge’s
responsibility to remove prospective jurors who will not be able impartially to
follow the court’s instructions and evaluate the evidence cannot be fulfilled.’ ”
(Earp, supra, 20 Cal.4th at p. 852.)
Voir dire examination protects an accused’s right to a fair trial “ ‘by
exposing possible biases, both known and unknown, on the part of potential jurors.
Demonstrated bias in the responses to questions . . . may result in a juror’s being
excused for cause; hints of bias not sufficient to warrant challenge for cause may
assist parties in exercising their peremptory challenges.’ [Citation.] ‘The ability
of a defendant, either personally, through counsel, or by the court, to examine the
prospective jurors during voir dire is thus significant in protecting the defendant’s
right to an impartial jury.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 689-690
(Roldan).)
Although courts have broad discretion in deciding what questions to ask on
voir dire (People v. Cleveland (2004) 32 Cal.4th 704, 737; Mu’Min v. Virginia
(1991) 500 U.S. 415, 424), such discretion is not limitless. In capital cases, such
questions should be directed at determining whether “the juror’s views would
‘prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’ ” (Wainwright v. Witt (1985) 469
U.S. 412, 424.) Prospective jurors holding such disqualifying views may be
excluded from a capital jury for cause whether the juror’s views favor or disfavor
3
the death penalty. (Cash, supra, 28 Cal.4th at p. 720; see People v. Livaditis
(1992) 2 Cal.4th 759, 772-773.)
In appropriate cases, voir dire questioning, to be effective, should include
the facts or circumstances of the case at hand so the questioning does not occur in
a factual vacuum. “A prospective juror who would invariably vote either for or
against the death penalty because of one or more circumstances likely to be
present in the case being tried, without regard to the strength of aggravating and
mitigating circumstances, is . . . subject to challenge for cause.” (People v.
Kirkpatrick (1994) 7 Cal.4th 988, 1005, italics added.) “Consequently, to preserve
the right to a fair and impartial jury on the question of penalty, the death
qualification process must probe ‘prospective jurors’ death penalty views as
applied to the general facts of the case.’ ” (Earp, supra, 20 Cal.4th at p. 853,
italics added.)
We applied these principles to reverse the penalty phase judgment in Cash.
In that case, the prosecution proposed to introduce evidence at the penalty phase
that the defendant, when he was 17 years old, had murdered his elderly
grandparents. His defense attorney sought to question prospective jurors to
determine whether they “could return a verdict of life without parole for a
defendant who had killed more than one person, without revealing that defendant
had killed his grandparents.” (Cash, supra, supra, 28 Cal.4th at p. 719.) This
court unanimously found the trial court erred in denying this request. “[T]he trial
court’s ruling prohibited defendant’s trial attorney from inquiring during voir dire
whether prospective jurors would automatically vote for the death penalty if the
defendant had previously committed another murder. Because in this case
defendant’s guilt of a prior murder (specifically, the prior murders of his
grandparents) was a general fact or circumstance that was present in the case and
that could cause some jurors invariably to vote for the death penalty, regardless of
4
the strength of the mitigating circumstances, the defense should have been
permitted to probe the prospective jurors’ attitudes as to that fact or circumstance.
In prohibiting voir dire on prior murder, a fact likely to be of great significance to
prospective jurors, the trial court erred.” (Id. at p. 721, italics added.)
Decisions of this court subsequent to Cash have indicated the scope of its
holding. In People v. Vieira (2005) 35 Cal.4th 264, 284, the trial court refused to
put the case-specific information that the defendant was charged with multiple
murder into the “death qualification” questionnaire directed to exploring the
prospective jurors’ attitudes about capital punishment in general. We declined to
reverse, explaining the court “never suggested that defense counsel could not raise
the issue in voir dire. The trial court never ruled that the question was
inappropriate.” (Id. at p. 286.) As we characterized the issue in Vieira, counsel
simply neglected to follow up on the court’s invitation to supply it with
supplemental questions during oral voir dire. (See also Earp, supra, 20 Cal.4th at
p. 855 [insertion of critical information into the jury questionnaire suffices].)
In Roldan, we similarly declined to reverse, observing that the defendant
failed to explain why the existing information he had about the prospective jurors
was “insufficient to exercise his challenges intelligently . . . [or] what additional
information he had hoped to discover by having the court ask additional
questions.” (Roldan, supra, 35 Cal.4th at p. 693.) Cash, we noted, was
distinguishable because there “the defendant sought to ask prospective jurors
additional questions on a particularly relevant topic that, on the facts of that case,
could have undermined their assertions of impartiality.” (Roldan, at p. 693.) The
revelation in Cash that the defendant had previously committed two murders
“could potentially have prejudiced even a reasonable juror.” (Roldan, at p. 694.)
In Roldan, by contrast, “[t]here were . . . no prior murders, no sensational sex
crimes, no child victims, no torture.” (Ibid.; cf. Earp, supra, 20 Cal.4th at p. 853
5
[trial court’s questionnaire informed the jury the charges against defendant
“pertained to ‘sexual misconduct involving the death of a child’ ” and asked each
juror “whether those charges would have any effect” on the juror’s sentencing
decision]; People v. Clark (1990) 50 Cal.3d 583, 596-597 & fn. 3 [defendant was
not precluded from questioning jurors in the general voir dire about bias arising
from the victim’s serious burn injuries].)
We most recently confronted the issue in People v. Zambrano (2007) 41
Cal.4th 1082. There the defendant killed and then dismembered his victim,
removing his head and hands with an axe or a saw. (Id. at p. 1097.) The trial
court declined to permit defense counsel to voir dire the prospective jurors about
their ability to remain impartial in choosing between life and death in light of the
dismemberment evidence, ruling that inquiry about the “ ‘method of killing’
would, in effect, be asking them to prejudge the case.” (Id. at p. 1119.) We
affirmed. Summarizing the relevant legal principals, we stated: “[A]s we have
said on many occasions, ‘[d]efendant ha[s] no right to ask specific questions that
invite[] prospective jurors to prejudge the penalty issue based on a summary of the
aggravating and mitigating evidence [citation], to educate the jury as to the facts of
the case [citation], or to instruct the jury in matters of law [citation].’ [Citations.]
[¶] We have explained that ‘[t]he Witherspoon-Witt . . . voir dire seeks to
determine only the views of the prospective jurors about capital punishment in the
abstract . . . . The inquiry is directed to whether, without knowing the specifics of
the case, the juror has an “open mind” on the penalty determination.’ [Citation.]
. . . [¶] On the other hand, we have indicated that because ‘ “[a] prospective juror
who would invariably vote either for or against the death penalty because of one or
more circumstances likely to be present in the case being tried . . . is . . . subject to
challenge for cause,” ’ the death qualification process ‘must probe “prospective
jurors’ death penalty views as applied to the general facts of the case, whether or
6
not those facts [have] been expressly charged.” ’[3] [Citation.] [¶] Reconciling
these competing principles dictates that ‘death-qualification voir dire must avoid
two extremes. On the one hand, it must not be so abstract that it fails to identify
those jurors whose death penalty views would prevent or substantially impair the
performance of their duties as jurors in the case being tried. On the other hand, it
must not be so specific that it requires the prospective jurors to prejudge the
penalty issue based on a summary of the mitigating and aggravating evidence
likely to be presented. [Citation.] In deciding where to strike the balance in a
particular case, trial courts have considerable discretion. [Citations.]’ ” (People v.
Zambrano, supra, 41 Cal.4th at pp. 1120-1121.)
We concluded the trial court in Zambrano did not abuse its discretion.
“The sole fact as to which the defense unsuccessfully sought additional inquiry —
the condition of the adult murder victim’s body when found — was not one that
could cause a reasonable juror — i.e., one whose death penalty attitudes otherwise
qualified him or her to sit on a capital jury — invariably to vote for death,
regardless of the strength of the mitigating evidence. No child victim, prior
murder, or sexual implications were involved. Nor, to the extent juror emotions
might thereby be aroused, would there be evidence that [the victim] was
dismembered while alive.” (People v. Zambrano, supra, 41 Cal.4th at p. 1122,
italics omitted; but see id. at p. 1201 (conc. & dis. opn. of Kennard, J.) [“the
murder victim’s dismemberment by defendant was ‘a general fact or
3
That in appropriate cases the jury must be informed of relevant facts of the
case beyond those charged in the information is well established. (Earp, supra, 20
Cal.4th at p. 853; People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005; see also Cash,
supra, 28 Cal.4th at p. 719 [prior murder not alleged in the charging documents].)
7
circumstance’ likely to elicit a strong emotional response from the jurors” and
“may be of great significance to a prospective juror”].)
In sum, in order to ensure the state fulfills its constitutional mandate to
provide a capital defendant with a fair and impartial jury, questioning on voir dire
should include mention of case-specific facts and circumstances if they are such as
could convert an otherwise fair and reasonable juror into one who would
invariably vote for the death penalty regardless of the mitigating circumstances.
II
The majority avoids addressing the difficult issue of whether the trial court
erred by refusing to question prospective jurors with particular facts of the case by
concluding defendant procedurally forfeited the issue. The record shows
otherwise. To preserve this issue for appellate review, a criminal defendant need
only have objected to the questionnaire “or to the manner or completeness of the
[trial] court’s questioning on this issue.” (Roldan, supra, 35 Cal.4th at p. 694.)
By doing so, a defendant alerts the trial court to a possible error and provides the
opportunity for correction. (People v. Saunders (1993) 5 Cal.4th 580, 590
[addressing Pen. Code, § 1025].) This defendant clearly did.
From the beginning, defense counsel for both defendant and codefendant
Donna Lee were unhappy with the completeness of the trial court’s voir dire
questioning. Both in various terms urged the trial court to inform prospective
jurors the case involved willful, premeditated murder with special circumstances,
and two murders, not just one, as well as other particulars. At one point, counsel
for codefendant Lee argued this court’s precedents authorized a more factually
detailed voir dire inquiry to determine “whether the potential juror has a fair and
open mind . . . under the circumstances of the case.” (Italics added.) The trial
court disagreed, responding the voir dire process is intended to determine whether
a juror will vote for the death penalty in “any case,” not just this particular case.
8
The court later clarified it intended to determine whether any of the prospective
jurors would automatically vote for death if one or more of the special
circumstances were proven true.
Later in the voir dire, counsel for codefendant raised the point again,
stating: “The point that I was trying to make is that when we started doing the
four-question initial screening, the court indicated at that time when I objected that
it would be more case specific about people who would automatically give death
in a case involving two who are —” (Italics added.) The court cut counsel off,
saying: “No, no, I didn’t, sir. If I [said that], I misspoke myself. The case law is
quite clear that you do not get to this specific case.” (Italics added.) That the trial
court understood counsel’s objection embraced a claim that jurors should be
informed during voir dire that the two victims were related to the accused is clear.
But if any question remained, it was soon dispelled. When considering the
responses of Prospective Juror A.L., codefendant’s counsel stated: “Your Honor,
. . . throughout this trial, with probably ten jurors who have expressed very strong
support for the death penalty, we have repeatedly asked to talk about case specific
kind[s] of considerations and you have steadfastly refused to do so.”
Codefendant’s counsel continued: “We don’t even know whether [Prospective
Juror A.L.] could consider a death penalty under the circumstances of this case as
alleged by the prosecution, that two brutal murders, familial, for financial gain.”
(Italics added.) Counsel for defendant expressly joined codefendant’s objection.
The trial court responded: “I have found no case that says, yes, you should
ask a juror can you impose a death sentence where it’s two murders for cause —
for financial gain with ambush where the defendant is the son of one of the victims,
where he’s the ex-boyfriend of the other one, et cetera. So there you and I part
company.” (Italics added.) Later, justifying its denial, the court stated: “But the
law doesn’t say that if your view is that somebody who kills their mother for
9
financial gain and under ambush, and your feelings are under those
circumstances, the death penalty is appropriate, that you are challengeable for
cause.” (Italics added.) Clearly, the trial court understood that both defense
counsel were seeking to have the prospective jurors informed of, and questioned
about, the fact defendant allegedly killed his mother and the mother of his son in
an ambush.
Contrary to the majority’s conclusion, therefore, defendant adequately
apprised the trial court of both the existence and the nature of his objection to the
“manner or completeness of the [trial] court’s questioning on this issue” (Roldan,
supra, 35 Cal.4th at p. 694), permitting the trial court to correct the error. But
even accepting the majority’s reasoning that defense counsel’s failure to mention
the word “matricide” in his written motion or his complaints following the court’s
initial denial of his objection could theoretically constitute a forfeiture (maj. opn.,
ante, pp. 26-27, fn. 14), any failure to object with more specificity was excusable
in the circumstances. The requirement of a timely objection “is only the general
rule. A defendant will be excused from the necessity of either a timely objection
and/or a request for admonition if either would be futile.” (People v. Hill (1998)
17 Cal.4th 800, 820 [referring to prosecutorial misconduct].) Here, given that the
trial court repeatedly and pointedly refused to mention even the lying-in-wait,
financial-gain and multiple-murder special circumstances when questioning
individual prospective jurors, defense counsel may reasonably have believed that
requesting the court to also mention the matricidal and intrafamilial aspects of the
case would have been futile. Such futility excuses any failure on counsel’s part to
register a more specific objection.4
4
Moreover, by relying on the forfeiture doctrine, the majority overlooks that
although a party may forfeit the right to raise a claim of error on appeal by failing
(footnote continued on next page)
10
Having found the issue properly preserved for this court’s review, I turn to
the merits.
III
The trial court refused to ask prospective jurors whether they could remain
impartial in a case in which a defendant lured his own mother, as well as the
mother of his child, to their deaths in a premeditated Mother’s Day ambush. That
decision was contrary to our precedents. (People v. Zambrano, supra, 41 Cal.4th
at pp. 1120-1121; Roldan, supra, 35 Cal.4th at p. 694; People v. Vieira, supra, 35
Cal.4th at pp. 284-286; Cash, supra, 28 Cal.4th at p. 723; Earp, supra, 20 Cal.4th
at p. 853; People v. Kirkpatrick, supra, 7 Cal.4th at p. 1005.) As we explained in
Cash, the real question to be answered during voir dire is “whether the juror’s
views about capital punishment would prevent or impair the juror’s ability to
return a verdict of life without parole in the case before the juror.” (Cash, at
p. 720, italics added.) If an otherwise fair prospective juror — that is, someone
with the professed ability to follow the law and vote for either the death penalty or
life imprisonment depending on the circumstances — would be so affected upon
learning certain facts that the juror could no longer vote for life imprisonment
(footnote continued from previous page)
to object, that circumstance “does not compel the conclusion that, by operation of
his default, the appellate court is deprived of authority [to address the issue]. An
appellate court is generally not prohibited from reaching a question that has not
been preserved for review by a party.” (People v. Williams (1998) 17 Cal.4th 148,
161-162, fn. 6, italics added.) As I conclude defendant adequately raised the issue
below and that any failure to do so was in any event excused, however, I express
no opinion whether it would be appropriate to reach the issue in the complete
absence of an objection.
11
regardless of the strength of the mitigating evidence, then that prospective juror
should be excluded.
Not every fact is of a type that would be likely to undermine a juror’s
ability to remain impartial. Our opinions give some content to the question. For
example, this court has found that many prospective jurors might no longer be able
to consider a life term an adequate or proportionate punishment for a murderer
who has previously taken someone’s life (Cash, supra, 28 Cal.4th at p. 721), who
killed more than one person in the present crime (People v. Vieira, supra, 35
Cal.4th at p. 286), or who committed sexual acts on a child (Earp, supra, 20
Cal.4th at p. 855). Similarly, we have suggested that “sensational sex crimes,”
crimes against children or those involving torture might also be the sort of facts
that should be revealed to prospective jurors on voir dire. (Roldan, supra, 35
Cal.4th at p. 694.) By contrast, dismemberment of the victim, at least in the
absence of evidence the victim was alive when it occurred, does not qualify.
(People v. Zambrano, supra, 41 Cal.4th at pp. 1118-1123; but see id. at p. 1201
(conc. & dis. opn. of Kennard, J.).)
Taken together, these cases paint a coherent picture, delineating the types of
extreme situations in which an otherwise impartial and reasonable juror might find
he or she is no longer able to consider a life sentence for a particular offender. In
such cases, inquiry using the critical facts or circumstances of the case — either
directly from the trial court or the attorneys (People v. Vieira, supra, 35 Cal.4th at
p. 286) or in the jury questionnaire (Earp, supra, 20 Cal.4th at p. 855) — is
necessary to ensure that the regular and alternate jurors ultimately selected will be
impartial and able to faithfully follow the law.5
5
The principle applies to both sides: The prosecutor is entitled to question
prospective jurors on a variety of topics during voir dire to ensure those ultimately
(footnote continued on next page)
12
In the instant case, defendant was accused of luring his own mother, Doris
Carasi, as well as the mother of his child, Sonia Salinas — on Mother’s Day — to
an isolated part of a shopping mall parking lot, at which time in the presence of his
infant son he completed his premeditated plan to brutally stab them to death with
the assistance of his new girlfriend, Donna Lee. He was thus charged with
committing “the most horrible crime of matricide.” (People v. Weber (1906) 149
Cal. 325, 349.) Although our society’s constant exposure to media reports of
violence may cause some to become jaded, rare is the day one learns an accused
has killed his own mother. Matricide provokes strong, visceral emotions, a fact
used many times in ancient and classic stories,6 books and movies7 to heighten
dramatic tension and instill a sense of revulsion in the reader or viewer. That
(footnote continued from previous page)
chosen are impartial and can faithfully follow the law. “A prosecutor may
properly inquire whether a prospective juror could impose the death penalty on a
defendant in a felony-murder case (People v. Pinholster (1992) 1 Cal.4th 865,
916-917), on a defendant who did not personally kill the victim (People v. Ochoa
[(2001)] 26 Cal.4th [398,] 431 . . .), on a young defendant or one who lacked a
prior murder conviction (People v. Livaditis[, supra,] 2 Cal.4th [at pp.] 772-773),
or only in particularly extreme cases unlike the case being tried (People v.
Bradford [(1997)] 15 Cal.4th [1229,] 1320).” (Cash, supra, 28 Cal.4th at p. 721.)
6
In ancient Greek mythology, Orestes and Electra murder their mother,
Clytemnestra, as revenge for her part in the death of their father, Agamemnon.
Roman Emperor Nero is infamous for ordering the death of his mother, Agrippina
the Younger, in 59 A.D. Shakespeare refers to this latter fact in Hamlet, act III,
scene 2, where the Prince of Denmark, angry with his mother, goes to her but
cautions himself to speak harsh words to her only and not to commit physical
violence against her (“I will speak daggers to her, but use none”), saying, “let not
ever the soul of Nero enter this firm bosom,” noting that the crime of matricide is
“unnatural.”
7
E.g., Savage Grace (IFC Films 2007), Heavenly Creatures (Miramax Films
1994), Carrie (United Artists 1976), Psycho (Paramount 1960).
13
defendant could murder the one who brought him into the world could well have
convinced an otherwise fair and reasonable prospective juror that the perpetrator
of such an abominable act would not respond to the rehabilitative power of the
state and would be impervious to the redemptive power of any religious or
spiritual intervention; that he was, in short, beyond hope.
That defendant killed not just his own mother but Sonia Salinas, the mother
of his child, further aggravates the situation. That he and Salinas together brought
another life into the world, and that by his hand defendant deprived his son of not
only his grandmother but his own mother as well, could very likely have
confirmed for a reasonable prospective juror that a life sentence for defendant
could never be justified.
The trial court thus erred by refusing to question the prospective jurors
concerning these facts. As was the case in Cash, “[b]ecause the trial court’s error
makes it impossible for us to determine from the record whether any of the
individuals who were ultimately seated as jurors held the disqualifying view that
the death penalty should be imposed invariably and automatically on any
defendant who had [killed his mother and the mother of his child], it cannot be
dismissed as harmless.” (Cash, supra, 28 Cal.4th at p. 723.) As in Cash,
defendant’s judgment of death should be reversed.
IV
This court has issued no shortage of decisions involving the procedures
applicable to the questioning and excusing of prospective jurors in capital cases.
Although all would agree with the general rule that those accused of capital crimes
are entitled to a fair and impartial jury, the devil is often in the details of how that
jury is ultimately chosen — which prospective jurors are retained and which are
properly excused. As we map the outer boundaries of the constitutional
requirements applicable to jury selection, our best efforts to ensure fairness
14
sometimes fall short of the mark.8 In this case, awareness of the unusual and
disturbing facts of the case reasonably could have convinced an otherwise fair and
impartial juror that he or she would be unable to vote for a life sentence regardless
of the strength of the mitigating evidence. Accordingly, the trial court erred by
refusing to conduct the case-specific inquiry defendant sought. Because the
majority holds otherwise, I dissent from the affirmance of the penalty judgment.
WERDEGAR, J.
I CONCUR:
KENNARD, J.
8
See, e.g., People v. Johnson (2003) 30 Cal.4th 1302, 1306 (Johnson I)
(moving party had burden to “show that it is more likely than not the other party’s
peremptory challenges, if unexplained, were based on impermissible group bias”),
overruled in Johnson v. California (2005) 545 U.S. 162; Johnson I, at pp. 1324-
1325 (appellate courts need not undertake a comparative juror analysis for the first
time on appeal in a third-stage Batson case), overruled in Snyder v. Louisiana
(2008) ___ U.S. ___ [128 S.Ct. 1203], as explained in People v. Lenix (2008) 44
Cal.4th 602, 611-612, 630; People v. Johnson (2006) 38 Cal.4th 1096 (remand a
permissible remedy for Batson error), called into question in Snyder v. Louisiana,
128 S.Ct. at p. 1212 (refusing to order remand because there was no “realistic
possibility” the “subtle question of causation could be profitably explored further
on remand at this late date, more than a decade after petitioner’s trial”).
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Carasi
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S070839
Date Filed: August25 , 2008
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Leslie W. Light
__________________________________________________________________________________
Attorneys for Appellant:
Eric S. Multhaup, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and
Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Eric S. Multhaup
20 Sunnyside Avenue, Suite A
Mill Valley, CA 94941
(415) 821-6000
Ana R. Duarte
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2648
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 08/25/2008 | 44 Cal. 4th 1263, 190 P.3d 616, 82 Cal. Rptr. 3d 265 | S070839 | Automatic Appeal | closed; remittitur issued | CARASI (PAUL) ON H.C. (S129603) |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Ana R. Duarte, Deputy Attorney General 300 S. Spring Street, Suite 500 Los Angeles, CA |
| 2 | Carasi, Paul Joe (Appellant) San Quentin State Prison Represented by Eric Stephen Multhaup Attorney At Law 20 Sunnyside Avenue, Suite A Mill Valley, CA |
| Disposition | |
| Aug 25 2008 | Opinion: Affirmed |
| Dockets | |
| May 26 1998 | Judgment of death |
| Jun 4 1998 | Filed certified copy of Judgment of Death Rendered 5-26-98. |
| Jun 4 1998 | Penal Code sections 190.6 et seq. apply to this case |
| Aug 20 1999 | Record certified for completeness |
| Jun 7 2002 | Filed: applt's application for appointment of counsel. (IFP form) |
| Jun 12 2002 | Date trial court delivered record to appellant's counsel 18,365 pp. record |
| Jun 12 2002 | Counsel appointment order filed appointing Eric S. Multhaup to represent applt for the direct appeal. |
| Jun 27 2002 | Appellant's opening brief letter sent, due: 5-13-2003. |
| Aug 20 2002 | Counsel's status report received (confidential) from atty Multhaup. |
| Sep 11 2002 | Received copy of appellant's record correction motion (16 pp.) |
| Sep 19 2002 | Compensation awarded counsel Atty Multhaup |
| Oct 18 2002 | Counsel's status report received (confidential) from attorney Multhaup. |
| Nov 21 2002 | Filed: Request by inmate for dual representation. |
| Nov 21 2002 | Filed: Request by counsel for dual representation appointment. |
| Nov 26 2002 | Compensation awarded counsel Atty Multhaup |
| Dec 5 2002 | Record certified for accuracy |
| Dec 18 2002 | Order filed Attorney Eric S. Multhaup, previously appointed to represent appellant Paul Joe Carasi for the direct appeal in the above automatic appeal now pending in this court, is hereby appointed to also represent appellant Paul Joe Carasi for habeas corpus/executive clemency proceedings related to the above automatic appeal. |
| Dec 18 2002 | Compensation awarded counsel Atty Multhaup |
| Dec 24 2002 | Counsel's status report received (confidential) |
| Jan 15 2003 | Compensation awarded counsel Atty Multhaup |
| Feb 13 2003 | Motion for access to sealed record filed Motion for order directing that sealed transcripts be provided to counsel for appellant. |
| Feb 18 2003 | Filed: Supplemental declaration of service of motion for order directing that sealed transcripts be provided to counsel for appellant. |
| Feb 18 2003 | Counsel's status report received (confidential) from atty Multhaup. |
| Feb 24 2003 | Record on appeal filed Clerk's transcript 23 volumes (5979 pp.) and reporter's transcript 99 volumes (12211 pp.) including material under seal. ASCII disks. Copy of People's exhibit #185 (audio cassette). Clerk's transcript includes 3095 pp. of juror questionnaires. |
| Feb 24 2003 | Filed: Response to Appellant's Motion for Order Directing That Sealed Transcripts Be Provided To Counsel For Appellant. |
| Mar 5 2003 | Compensation awarded counsel Atty Multhaup |
| Mar 27 2003 | Filed: Reporter's transcript, dated 12/5/2002. (1 volume - 3 pp.) |
| Apr 17 2003 | Counsel's status report received (confidential) from atty Multhaup. |
| May 7 2003 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| May 8 2003 | Extension of time granted to 7/14/2003 to file appellant's opening brief. |
| May 14 2003 | Letter sent to: counsel advising that the court is considering whether to unseal, on its own motion, the documents that are the subject of appellant's "Motion for Order Directing That Sealed Transcripts Be Provided to Counsel for Appellant," filed on February 13, 2003. (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 30, 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 overridding 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 28 2003 | Filed letter from: Respondent, dated 5/28/2003, in response to court's letter of 5/14/2003. |
| May 30 2003 | Filed letter from: Appellant, dated 5/29/2003, in response to the court's letter of 5/14/2003. |
| Jun 9 2003 | Compensation awarded counsel Atty Multhaup |
| Jun 11 2003 | Compensation awarded counsel Atty Multhaup |
| Jun 11 2003 | Compensation awarded counsel Atty Multhaup |
| Jun 25 2003 | Motion for access to sealed record granted Appellant's "Motion for Order Directing that Sealed Transcripts Be Provided to Counsel for Appellant" (Motion), filed on February 13, 2003, is granted in part and denied in part. In the following respects, the Motion is granted. The clerk is directed to provide appellant and respondent with a copy of the reporter's transcript herein at pages 1014-1017 (volume 3B, November 10, 1997), pages 1319-1335 (volume 5A, November 13, 1997), pages 1678-1685 (volume 8A, November 19, 1997), pages 2105-2116 (volume 12A, December 2, 1997), pages 2267-2275 (volume 12B, December 2, 1997), pages 5037-5041 (volume 29A, January 12, 1998), pages 9850-9856 (volume 57A, March 2, 1998), and with a copy of the clerk's transcript herein at pages 899-912 (volume IV). In all other respects, including as to the reporter's transcript herein at pages 755-756 (volume 2A, August 5, 1997), pages 11898-11934 (volume 73A, March 30, 1998), and pages 12283-12287 (volume 75A, April 1, 1998), the Motion is denied. On the court's own motion, the parties having received notice and an opportunity to be heard, the clerk is directed to unseal the reporter's transcript at pages 1678-1685 (volume 8A, November 19, 1997), pages 2105-2116 (volume 12A, December 2, 1997), and pages 2267-2275 (volume 12B, December 2, 1997). It is ordered that only counsel for appellant and counsel for respondent, and their respective investigators, may use the copy of the reporter's transcript at pages 1014-1017 (volume 3B, November 10, 1997), pages 1319-1335 (volume 5A, November 13, 1997), pages 5037-5041 (volume 29A, January 12, 1998), pages 9850-9856 (volume 57A, March 2, 1998), and the copy of the clerk's transcript at pages 899-912 (volume IV). Use of such materials is limited to this appeal and to any petition for writ of habeas corpus challenging the lawfulness of confinement pursuant to the underlying judgment of death. To the extent the parties quote or describe such materials in court papers, those papers must themselves be filed or lodged under seal. On the court's own motion, the parties having received notice and an opportunity to be heard, the clerk is further directed to reseal the materials described in the preceding paragraph of this order. |
| Jul 8 2003 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Jul 10 2003 | Extension of time granted to 9-12-2003 to file AOB. |
| Jul 18 2003 | Received letter from: attorney Multhaup, dated 7-16-2003, requesting clarification of the court's order of 6-25-2003. |
| Aug 21 2003 | Counsel's status report received (confidential) |
| Sep 5 2003 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Sep 9 2003 | Extension of time granted to 10/14/2003 to file appellant's opening brief. |
| Oct 14 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Oct 17 2003 | Extension of time granted to 10/24/2003 to file appellant's opening brief. |
| Nov 3 2003 | Application for relief from default filed by appellant to file opening brief. (238 pp. brief submitted under separate cover on 10/31/2003) |
| Nov 4 2003 | Counsel's status report received (confidential) |
| Nov 6 2003 | Order filed Appellant's application for permission to late file appellant's opening brief is granted. |
| Nov 6 2003 | Appellant's opening brief filed (238 pp.) |
| Nov 7 2003 | Respondent's brief letter sent; due: July 6, 2004. (Calif. Rules of Court, rule 39.57(c)) |
| Nov 7 2003 | Filed: Declaration by attorney Eric Multhaup (confidential). |
| Nov 19 2003 | Compensation awarded counsel Atty Multhaup |
| Dec 4 2003 | Filed letter from: respondent, dated 12/4/2003, requesting copy of appellants's sealed supplement. |
| Feb 6 2004 | Counsel's status report received (confidential) |
| Mar 30 2004 | Respondent's brief filed (73,025 words - 249 pp.) |
| Apr 5 2004 | Counsel's status report received (confidential) |
| Jun 1 2004 | Filed: Declaration of attorney Eric S. Multhaup submitted in conjuction with fixed fee progress payment (confidential). |
| Jun 1 2004 | Counsel's status report received (confidential) |
| Jun 1 2004 | Appellant's reply brief filed (17,608 words - 80 pp.) |
| Jun 7 2004 | Compensation awarded counsel Atty Multhaup |
| Jun 9 2004 | Compensation awarded counsel Atty Multhaup |
| Oct 28 2004 | Counsel's status report received (confidential) |
| Dec 1 2004 | Related habeas corpus petition filed (concurrent) No. S129603. |
| Jan 24 2005 | Compensation awarded counsel Atty Multhaup |
| Aug 12 2005 | Habeas funds request filed (confidential) |
| Sep 21 2005 | Order filed re habeas funds request (confidential) George, C.J., was absent and did not participate. |
| Jan 23 2007 | Exhibit(s) lodged from Los Angeles County Superior Court |
| Jan 24 2007 | Note: exhibits lodged in our L.A. office received this date in San Francisco: People's trial exhibits, nos. 20, 21, 26, 27, 50, 51, 52, 56, 60, 61, 62, 63, 65, 66, 67A, 67B, 143, 207 and 211. |
| Mar 14 2007 | Filed: corrected master index to reporter's transcript. |
| Jun 15 2007 | Exhibit(s) lodged co-defendant Lee's exhibits, A and B. |
| Aug 14 2007 | Letter sent to: counsel informing them that the court is considering whether to unseal, on its own motion, pages 899-912 of the volume IV of the Confidential Clerk's Transcript in this case (codefendant Donna Lee's motion to sever). Counsel invited to serve and file a response, if they wish, on or before August 27, 2007, addressing whether the document in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 8.160(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 2.550(d).) |
| Aug 21 2007 | Filed: letter from attorney John Steinberg, dated August 16, 2007, in response to the court's letter of August 14, 2007. |
| Aug 21 2007 | Filed: letter from appellant, dated August 17, 2007, in response to the court's letter of August 14, 2007. |
| Nov 16 2007 | Exhibit(s) lodged People's exhibits, nos. 186A, 186B, 257; and Court's exhibit no. 6. |
| Mar 13 2008 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. 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. |
| Mar 13 2008 | Received: letter from Deputy Attorney General Ana Duarte, dated March 13, 2008, regarding the scheduling of oral argument. |
| Apr 30 2008 | Case ordered on calendar to be argued on Wednesday, June 4, 2008, at 9:00 a.m., in Los Angeles |
| May 6 2008 | Filed: respondent's focus issue letter, dated May 5, 2008. |
| May 6 2008 | Received: appearance sheet from Deputy Attorney General Ana R. Duarte, indicating 30 minutes for oral argument for respondent. |
| May 13 2008 | Received: appearance sheet from attorney Eric Multhaup, indicating 30 minutes for oral argument for appellant. |
| May 21 2008 | Filed: appellant's focus issue letter, dated May 21, 2008. |
| May 23 2008 | Supplemental brief filed by appellant. (1,610 words; 11 pp.) |
| May 28 2008 | Order filed Any response to appellant's supplemental brief filed on May 23, 2008, must be served and filed on or before May 30, 2008. Any reply must be served and filed on or before June 3, 2008. |
| May 30 2008 | Supplemental brief filed Respondent's response to appellant's supplemental brief. (2,795 words; 10 pp. ) |
| Jun 3 2008 | Supplemental reply brief filed (AA) by appellant. (6 pp.) |
| Jun 4 2008 | Cause argued and submitted |
| Jun 5 2008 | Compensation awarded counsel Atty Multhaup |
| Aug 22 2008 | Notice of forthcoming opinion posted |
| Aug 25 2008 | Opinion filed: Judgment affirmed in full opinion by Baxter, J. -----joined by George, C.J., Chin, Moreno, and Corrigan, JJ. Concurring and Dissenting Opinion by Kennard, J Concurring and Dissenting Opinion by Werdegar, J -----joined by Kennard, J. |
| Sep 8 2008 | Rehearing petition filed by appellant. (1398 words; 8 pp.) |
| Sep 16 2008 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 21, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Oct 16 2008 | Rehearing denied The petition for rehearing is denied. |
| Oct 16 2008 | Remittitur issued (AA) |
| Oct 17 2008 | Exhibit(s) returned to superior court. |
| Oct 23 2008 | Received: acknowledgment of receipt of remittitur. |
| Oct 27 2008 | Received: acknowledgment for receipt of exhibits. |
| Jan 20 2009 | Change of contact information filed for: attorney Eric S. Multhaup. |
| Jan 29 2009 | Received: Letter from U.S.S.C., dated January 23, 2008, advising appellant's petition for writ of certiorari was filed on January 14, 2009, No. 08-8249. |
| Apr 27 2009 | Certiorari denied by U.S. Supreme Court |
| Briefs | |
| Nov 6 2003 | Appellant's opening brief filed |
| Mar 30 2004 | Respondent's brief filed |
| Jun 1 2004 | Appellant's reply brief filed |
