IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
DEWAYNE MICHAEL CAREY,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. TA042208
A jury found defendant Dewayne Michael Carey guilty of one count of first
degree murder (Pen. Code, § 187, subd. (a))1 with the special circumstances of
murder in the commission of robbery and burglary (§ 190.2, subd. (a)(17)(A),
(G)), one count of first degree residential robbery (§ 211), and one count of first
degree burglary. (§ 459.) The jury further found that defendant personally used a
deadly weapon, a knife, in the commission of the murder. (§ 12022, subd. (b).)
Defendant waived a jury trial on prior conviction allegations, and the trial
proceeded to the penalty phase, at which the jury returned a verdict of death.
The trial court found true the previously bifurcated allegations that
defendant suffered a prior serious felony conviction within the meaning of section
667, subdivision (a)(1), that defendant served a prior prison term under section
667.5, subdivision (b), and that defendant fell within the provisions of section
All statutory references are to the Penal Code unless otherwise noted.
1170.12, subdivisions (a)-(d) (the “Three Strikes” Law), and it denied defendant’s
automatic application to modify the verdict (§ 190.4, subd. (e)). The court
sentenced defendant to death for the murder and to a determinate term, stayed, on
the noncapital counts and enhancements. This appeal is automatic. (§ 1239, subd.
(b).) We affirm the judgment.
On April 19, 1995, Billy Campbell found his wife, Ernestine, dead in the
hallway of their home in Harbor City in Southern California. Ernestine’s body
was in an upright position at the bottom of the staircase; her hands were tied to the
handrail. She had been stabbed to death, and many items of property had been
stolen from the home. On the morning of the murder, defendant was seen leaving
the Campbell home, and he was later connected to property stolen from the
Campbells. After his arrest, defendant confessed to killing Ernestine Campbell.
Ernestine Campbell’s murder
At 9:00 a.m. on April 19, 1995, the day of Ernestine Campbell’s murder,
Bertram Ashe, who lived two houses away from Billy and Ernestine Campbell,
was taking a walk in the neighborhood when he heard the front door to the
Campbell residence open and close. He watched defendant walk from the
Campbells’ porch toward the sidewalk. Defendant greeted Ashe and continued
toward the house next door, where he lived with his aunt and uncle, Naomi and
Herbert Baker, and their daughter Pamela.
That morning Ernestine Campbell attended a class at Los Angeles Harbor
College from 9:00 a.m. until about 9:50 a.m. Around 10:30 a.m., Robert Lee
Vaughn, a family friend, arrived at the Campbell residence to do maintenance
work. When Vaughn knocked on the door, he heard Ernestine call out from
inside, asking him to return in 30 minutes.
Just before 11:00 a.m., Vaughn saw defendant come out of the Bakers’
garage and walk to his yellow Ford pickup truck, which was parked on the street.
Defendant started his truck and then, leaving the engine running, asked Vaughn
for a ride to the gas station, explaining that he did not have enough gas to drive
there himself. After a second knock on the Campbells’ door went unanswered,
Vaughn agreed to drive defendant to the gas station.
Vaughn mentioned to defendant that Ernestine Campbell had not answered
the door. At defendant’s suggestion, Vaughn telephoned the Campbell residence
from a phone booth at the gas station; no one answered.
Sometime after 11:00 a.m., Jack Shaw, who lived across the street from the
Campbells, was in his driveway working on his car, when he heard a scream; he
was unsure from where it came and did not respond. Several minutes later, Shaw
saw a yellow Ford pickup truck drive past his house; the driver waved as he drove
After visiting the gas station, Vaughn returned to the Campbell residence.
Vaughn knocked on both the front and side doors, but received no response. A
few minutes later, he walked to Billy Campbell’s office and told him that the
latter’s wife had not responded at the house. Billy Campbell telephoned home, but
no one answered.
Campbell and Vaughn then drove to the Campbell residence, where
Campbell discovered his wife’s body tied to the banister of the interior staircase.
Campbell called 911, and he told a paramedic, “I think my wife has fallen on a
knife and killed herself.” Vaughn testified that when he entered the hallway he
saw Ernestine Campbell’s body sitting upright on the staircase with her hands tied
to the handrail. After calling 911, Billy Campbell retrieved a small steak knife
from the kitchen and cut his wife’s body down from the railing.
At about 11:40 a.m., Los Angeles County Sheriff’s Deputy Robert Stevens
arrived at the Campbell home. Stevens searched the home and saw that the screen
on the kitchen window had been partially removed. He also found blood on the
stairs and on the blade of a kitchen knife that lay near Ernestine Campbell’s feet.
A severed electrical cord was tied to the banister and a second, smaller knife lay at
the top of the stairs.
When Los Angeles County Fire Department paramedics Brian Dallas Jones
and Derrick Ho responded to the scene at 11:42 a.m., Ernestine’s body lay on the
floor at the bottom of a stairway. In a vain effort to resuscitate her, Jones cut open
Ernestine’s shirt, revealing stab wounds to her chest and neck. Ho saw a large
kitchen knife next to Ernestine’s left hand and a second knife lying at the top of
About 2:05 p.m., Los Angeles County Sheriff’s Homicide Detective Byron
Wisberger arrived at the Campbell residence. He saw a large butcher knife on the
first step of the stairway, a cut electrical cord attached to the stairway handrail, and
a second, smaller knife on one of the upper stairs. He also saw a single earring
and a bracelet on the stairs. On the kitchen counter was an open purse, its contents
scattered about the stove. In an upstairs bedroom, Wisberger found two other
purses, their apparent contents strewn about the bed. All the doors were locked,
except for a closed but unlocked sliding door leading to the patio. The kitchen
window was also closed but unlocked, and its glass was smudged with handprints;
the window screen was hanging loosely.
Los Angeles County Deputy Medical Examiner Solomon Riley testified
that Ernestine Campbell died as a result of multiple stab wounds. Seven of the
wounds were to the left side of her chest, penetrating the heart and left lung. To
the right side of the neck were two stab wounds, one of which was an inch deep
and penetrated the thyroid gland. There were abrasions on the bridge of the nose
and between the upper lip and nose. There also was bruising under the skin of the
right wrist. Blood leaks from the victim’s eyes indicated a lack of blood supply to
the brain, which could have resulted from suffocation or strangulation.
Defendant’s activities after the murder
Defendant’s friend Robert Leach testified that defendant arrived at his
house around 11:30 a.m. or noon on April 19, 1995. Defendant was in good
spirits and was better dressed than usual. Defendant asked Leach to help him
remove some items from his truck, including a .12-gauge shotgun and a large
Sparkletts water bottle containing change and paper money. They counted the
money from the bottle, which totaled about $1,200. The two men then had dinner,
after which defendant left Leach’s house. Defendant left behind the items from
his truck, saying he would return the next day.
Detective Wisberger testified that, in an interview conducted about 8:45
p.m. on April 19, 1995, defendant mentioned getting a ride to the gas station with
Vaughn and thereafter leaving home around 11:00 a.m. to visit his friend Leach.
Defendant denied any knowledge of Ernestine Campbell’s murder. After the
interview, Wisberger saw a full gasoline can in defendant’s truck.
That same evening between 11:00 and 11:30 p.m., defendant telephoned
Leach and said the police had questioned him for two hours about a neighbor who
had been killed earlier that day. After telling Leach that he had given the
detectives Leach’s name, address, and telephone number, defendant asked Leach
not to tell the police about the money or the gun that Leach had earlier helped
remove from defendant’s truck.
The next day, Leach took the gun and some of the coins to his friend
Christopher Floyd’s house and stored the items in Floyd’s garage. Leach told
Floyd that the gun belonged to defendant. After leaving Floyd’s house, Leach
encountered defendant on a nearby street. When Leach inquired about the money
and the gun, defendant assured Leach they were “legit.”
Several days after the murder, Leach and two female companions
exchanged some $780 worth of coins from the Sparkletts water bottle for paper
currency. Defendant then picked up the money from Leach and gave him about
On April 21, 1995, defendant came to the house of his former girlfriend
Michele Leathers to visit their young daughter. According to Leathers, defendant
gave his daughter approximately twelve $2 bills; he gave her half sister one or
two. Defendant told Leathers that he got the money “legally.” Leathers recalled
that defendant appeared calm during the visit.
Defendant’s cousin Pamela Baker testified that, on April 22, 1995,
defendant attended a family barbeque. Baker was surprised that defendant had
bought meat for the barbeque because he usually did not have money, but she did
not ask where defendant had gotten the money.
Defendant’s female friend Peggy Moseley testified that in the latter part of
April, defendant took her to a park where he gave her a small bottle of cologne, a
watch, a diamond pendant, and three $100 bills. A few days later, defendant gave
Moseley five silver dollars and some loose change. Moseley described defendant
as being “his normal self” during this period.
On May 2, 1995, the police interviewed Leach, and he told them about
concealing the shotgun and the money in the Sparkletts water bottle for defendant.
He said that defendant had assured him the property was “legit.” Leach gave the
detectives a bag of dimes and other property belonging to Billy Campbell and his
murdered wife Ernestine, and he took the detectives to Floyd’s house, where they
recovered the shotgun.
About 2:30 a.m. on May 3, 1995, defendant appeared at Peggy Moseley’s
house “ranting and raving.” According to Moseley, defendant was very emotional
and asked her to come outside to talk. She did so while her fiancé, Edward
Moseley, called the police. Defendant said something had happened. According
to Peggy Moseley, defendant was “babbling” but saying “nothing in particular.”
Peggy Moseley got into defendant’s car to talk to him and he started
driving. Defendant drove to a hotel and got a room where they spent the night.
Throughout the night, defendant repeatedly said he wanted to “go away” with
Moseley. The next morning, he was not as agitated and they spent the day driving
around. Defendant did not mention the murder.
Detective Wisberger testified that on May 4, 1995, he saw defendant’s
truck parked across the street from the home of Kenneth Reedus, defendant’s
cousin. Wisberger and his partner Detective Isaac Aguilar spoke to Reedus.
During their conversation, Reedus received a telephone call from defendant.
Aguilar spoke to defendant and they agreed to meet at the Baker residence at
8:00 p.m. The detectives waited until 9:15 p.m., but defendant did not arrive.
Leach testified that approximately two weeks after the murder, defendant
showed him a gold bracelet with diamonds; he would not tell Leach where the
bracelet came from.
Defendant’s arrest and confession
After receiving information that defendant might be in Tustin, Orange
County, Detective Wisberger contacted Tustin Police Officer Kenneth Maddox
and asked him to be on the lookout for defendant. On May 7, 1995, Maddox
found defendant and Peggy Moseley at a motel in Tustin. He arrested defendant
and transported him and Moseley to the Tustin Police Department. There, police
officers contacted Edward Moseley and told him to bring them Peggy Moseley’s
purse. Found in the purse were jewelry and other items belonging to the
That afternoon, Detectives Wisberger and Aguilar began interviewing
defendant. After being advised of his rights under Miranda v. Arizona (1966) 384
U.S. 436, defendant denied any knowledge of, or involvement in, the murder.
Defendant claimed that at the time of the murder he had been at home watching
the O.J. Simpson trial on television. Wisberger knew there had been no coverage
of the Simpson trial that day because of extensive coverage of the Oklahoma City
bombing, which occurred the same day as Ernestine Campbell’s murder.
When defendant was told a witness had seen him outside the Campbell
residence, he said that Leach had committed the burglary and murder, and that
defendant had acted only as a lookout. Upon further questioning, defendant said,
“Robert Leach had nothing to do with this.” Defendant explained, both in an
unrecorded statement and in a later recorded version, that the night before the
murder he formulated a plan to burglarize the Campbell home to obtain money for
his friend Peggy Moseley. On the day of the murder, defendant approached the
front door of the Campbells’ home and rang the doorbell to see if anybody was
home. Nobody answered the door. Defendant then entered through the kitchen
window and placed several items, including coins and jewelry, into a pillowcase.
Defendant was upstairs when Ernestine Campbell came home; he walked down
the stairs, armed with a shotgun he had found in the house.
Defendant and Ernestine Campbell spoke for about 10 or 15 minutes. She
urged defendant to leave and said she would not tell defendant’s uncle or the
police. Defendant did not believe her, however, and proceeded to tie her to the
stair railing with an electrical cord. He then used a small knife to stab her several
times in the neck and chest. These initial wounds were not fatal, and at one point
Ernestine Campbell screamed. Defendant discarded the smaller knife in the
kitchen sink and retrieved a larger knife with which he stabbed Ernestine three or
four more times in the chest until he thought she was dead. Defendant left the
knife in her chest, and continued burglarizing the home.
Defendant threw the stolen property over the wall separating the
Campbells’ home from that of the Bakers, with whom he lived, and hid it in the
Bakers’ garage. After leaving the Bakers’ home, defendant noticed that Vaughn,
the Campbells’ friend, was still in the neighborhood. He did not want Vaughn to
discover Ernestine Campbell’s body right away, so he asked Vaughn to take him
to the gas station.
After returning from the gas station, defendant retrieved the stolen property
he had hidden in the Bakers’ garage and drove to his friend Leach’s house. Later
that day, he gave some of the property to Peggy Moseley and hid the pillowcase
filled with jewelry behind some bushes in an alley behind his mother’s house.
Detective Aguilar later recovered the pillowcase from the alley.
The Campbells’ daughter, Helene Campbell, testified that various items of
property had been taken from her parents’ home, including jewelry, a shotgun, and
a five-gallon Sparkletts water bottle containing coins and bills. She identified
various photographic exhibits of items recovered by police as depicting property
belonging to her family.
Los Angeles County Deputy Sheriff Lauren Hernandez, a forensic
identification specialist, testified that two fingerprints lifted from a white
cardboard jewelry box taken as evidence matched defendant’s thumbprints.
Defendant’s jailhouse admissions
On May 8, 1995, the day after his arrest, defendant called his former
girlfriend Michele Leathers from jail. She asked him how he could have killed an
innocent lady. Defendant replied, “Yes, but that’s nor here or there.”
On June 27, 1995, defendant called his cousin Pamela Baker from jail.
When Baker asked him why he had killed Ernestine Campbell, defendant said he
needed quick money to fund Peggy Moseley’s illegal drug use.
The defense presented no evidence at the guilt phase.
Prosecution’s Penalty Phase Case
Prior felony convictions
At the penalty phase, the prosecution presented evidence that defendant had
two prior felony convictions (voluntary manslaughter and possession of a weapon
while in custody) as circumstances in aggravation. (§ 190.3, factor (c).) The
pertinent facts are these:
On July 3, 1985, Jose Hernandez was living on St. Andrews Place in Los
Angeles. That day, Hernandez, his brother-in-law Juan Ramos and his nephew
were pushing Hernandez’s car, which had a flat tire, into a parking space in front
of the apartment building where defendant happened to be sitting. This upset
defendant, who started shoving Ramos, striking him several times. Ramos yelled
for help and three or four friends, including Eli Martinez, responded. The men
began fighting and Martinez attempted to break up the fight.
After the fight ended, defendant went into the apartment building and
returned with a gun. He approached Martinez and shot him in the chest.
The next day, Los Angeles Police Detective Frank Bishop went to
defendant’s apartment to arrest him. Defendant attempted to flee but was
apprehended by another officer. Defendant told the police that he, his mother, his
aunt and several friends were drinking outside the apartment building when three
or four Hispanic men moved a car to a space in front of the building. Defendant
did not want the car there and an argument ensued. Defendant hit one of the men
in the nose; in turn the man hit defendant and whistled for help. The man’s friends
arrived, and the fight escalated. Defendant said that the other men pulled out
knives, chains, and sticks. Defendant then got a gun from his apartment to protect
his mother. When he returned, Martinez walked toward him quickly with
something in his hand and said, “Shoot me. Shoot me.” Defendant shot Martinez
in the chest from about five or six feet away. Defendant said Martinez got what he
The medical examiner concluded that Martinez died from a gunshot wound
to the chest. The presence of gunpowder stippling on Martinez’ left arm suggested
that the gun was fired from a distance of no more than 12 to 18 inches.
Defendant was arrested for the murder of Martinez, but he ultimately
pleaded guilty to voluntary manslaughter (§ 192), in exchange for a sentence of 13
years in state prison.
Defendant’s second felony conviction resulted from a crime committed
while he was serving that sentence.
On March 5, 1987, correctional officers at Folsom State Prison searched a
cell shared by defendant and another inmate. The officers found a metal weapon
measuring 9-3/4 inches long and 1-3/4 inches wide, which had been sharpened to a
point. Defendant admitted ownership of the weapon and was convicted of
possession of a weapon while in custody (§ 4502). He was sentenced to an
additional two-year prison term.
Prior uncharged acts
The prosecution presented evidence of three criminal acts committed by
defendant involving the use, or attempted use, of force or violence. (§ 190.3,
Norman Hughes testified at defendant’s trial that on May 29, 1979,
defendant was at Hughes’s house drinking beer when Hughes asked defendant to
leave. Somewhat later that night, a “boulder” was thrown through Hughes’s
window. The next night, another “boulder” came through the window, and
Hughes saw defendant fleeing the area. Hughes and his brother Darryl gave
chase, eventually joined by their friend, Kenneth Merritt. When defendant
emerged from a nearby apartment building, they grabbed him. While Merritt left
to summon the police, two or three of defendant’s friends then came out of the
apartment building and began circling the Hughes brothers. One of the men
handed defendant a pocket knife. He approached Norman Hughes, making a
slashing motion with the knife. When police arrived, they arrested defendant and
retrieved the knife.
The second incident occurred January 26, 1988, when Johnny Westbrook,
an inmate at Folsom State Prison, was stabbed in the neck by defendant while in
the exercise yard. An inmate-manufactured weapon was found at the scene.
The third incident involved the September 15, 1989 stabbing of inmate
David Snidow at Folsom State Prison. After the attack, a prison-made weapon
flecked with blood was found lying next to Snidow. Correctional officers
searched the area and found additional weapons.
Correctional Officer Robert Buda testified at defendant’s capital trial that
he interviewed inmate Riley Jones after the incident. Jones provided information
that prompted Officer Buda to search the cell shared by defendant and another
inmate. Officer Buda found evidence that weapons had been manufactured in the
Jones testified at defendant’s trial that he and defendant were in the same
black prison gang and that they planned to kill Snidow because he was White and
in a rival gang. Defendant and another inmate manufactured the weapons, and
defendant brought three knives into the work center. Jones distracted Snidow so
defendant and a fellow inmate could attack him. The men stabbed Snidow at least
seven or eight times.
An administrative charge of conspiracy to commit assault was lodged
against defendant, but the charge was dismissed for insufficient evidence because
inmate Jones refused to implicate defendant.2
Michele Leathers testified that when defendant telephoned her from jail on
the day he was arrested for Ernestine Campbell’s murder, he admitted having
“stabbed many people” while in prison. Defendant did not answer when she asked
if any of those individuals died.
Victim impact testimony
Helene Campbell testified that her mother had devoted her life to the
betterment of herself and others. At the age of eight her mother went to work in
the fields of Brookhaven, Mississippi, to help support the family. After high
school, she moved to California to attend nursing school, and in 1963 she married
Billy Campbell. She completed her full-time studies while continuing to work
part-time and raise her two children.
At defendant’s trial, Detective Wisberger testified that when he interviewed
Snidow on March 14, 1996, Snidow confirmed that in September 1989 he had
been stabbed by “several black males” at Folsom State Prison. Snidow then asked
Wisberger, “What’s in this for me?” When Wisberger replied he had nothing to
offer, Snidow refused to talk further.
Snidow testified at defendant’s capital trial that he did not remember
whether he was incarcerated on September 15, 1989, or whether he had been
stabbed at Folsom. Snidow further testified that he did not recognize pictures
depicting his injuries and did not remember talking to Detective Wisberger about
Ernestine Campbell became a licensed vocational nurse, then a physician’s
assistant, and later a substance abuse counselor. When the family began
experiencing financial difficulties, she worked two jobs to earn additional income.
Ernestine Campbell volunteered her time and energy to help others, even
cooking for defendant’s aunt and uncle after the aunt had a nervous breakdown.
In 1994, Ernestine Campbell was injured in an automobile accident. She
underwent brain surgery, which left her unable to return to work. She returned to
school, taking a business course so she could help her husband at his office. It was
this class that she was attending when defendant broke into her home.
Dr. Juanita Watts-Strozier testified that when she became a staff physician
at Kaiser Permanente Hospital in Inglewood in 1984, she met Ernestine Campbell.
Over a 12-year period, the two became close friends, and she and her family were
devastated by Ernestine Campbell’s death.
Defense’s Penalty Phase Case in Mitigation
In mitigation, the defense presented evidence of defendant’s emotional and
physical abuse as a child.
John Carey, defendant’s father, testified that defendant was born in
Atchison, Kansas, on March 21, 1960. He was the oldest of three children. The
family moved often, and by the time defendant started school they were living in
New Haven, Connecticut. From the time defendant was an infant, John punished
him by hitting him with his hand or with a belt.
When defendant was about 10 years old, the family moved to California.
Several months later defendant’s parents divorced, and his father returned to
Kansas. After living with their mother for a year, the children joined their father
in Kansas. Defendant’s stepmother beat him and his brother. Once a neighbor
heard the boys’ screams and called the police.
Meanwhile defendant’s mother had become an alcoholic. After an
argument with his stepmother when defendant was 15 years old, he returned to
California to live with his mother.
Defendant’s cousin, Shirley Reedus, testified that she often saw defendant
while they were in grammar school in California. Defendant had no problems in
school at that time. Once Reedus saw defendant’s father beat him.
Defense investigator Richard Fox testified that when he interviewed
Norman Hughes about the 1979 stone-throwing incident, Hughes told him that
defendant had threatened him with either a large stick or a pipe, not a knife.
Perry Scranton, a longtime friend of defendant’s, testified he was present
on July 3, 1985, when defendant shot Eli Martinez after an argument about
parking a car in front of defendant’s apartment building. One of the Hispanic men
whistled and in response 10 to 15 Hispanics armed with sticks, chains, knives, and
bottles appeared “out of nowhere.” Defendant left to retrieve a gun. One of the
Hispanic men was holding a metal pipe. The man yelled, “Kill me. Kill me.” He
drew back as if getting ready to strike defendant, who then shot him.
Albert Colquitt was defendant’s cabinetry instructor while defendant was
incarcerated at Calipatria State Prison in 1992. Colquitt described defendant as an
excellent student and a role model for other prisoners.
II. EXCLUSION OF JUROR FOR CAUSE
Defendant contends that by excusing Prospective Juror S.M. for cause,
based on her opposition to the death penalty, the trial court violated defendant’s
federal and state constitutional rights to an impartial jury, a fair capital sentencing
hearing, and due process of law.3
In her responses to the jury questionnaire, S.M. indicated that she held
moral or philosophical beliefs preventing her from imposing the death penalty.
She also wrote that she could not personally participate in a decision that would
result in the execution of defendant. These answers prompted the trial court to
question S.M. further during voir dire. At that time, S.M. said she could impose
the death penalty only in a case of multiple murder. The trial court then asked her
if she would be able to impose the death penalty if a defendant was convicted of
first degree murder with a robbery or a burglary special circumstance; S.M.
responded, “I still don’t believe in [the] death penalty, sir.” Defense counsel then
Defense counsel: “Now, let me ask you this, ma’am: If you heard
evidence . . . that the person charged with the murder in this case, or any case,
would have previously been convicted of killing someone, do you think that’s a
situation in which you might be able to give the death penalty?”
S.M.: “Yes, sir.”
Defense counsel: “You could give the death penalty in that situation?”
Defendant did not object at trial to the excusal of Prospective Juror S.M.
This court has held that by failing to object a defendant does not forfeit a claim of
error under Wainwright v. Witt (1985) 469 U.S. 412 and Witherspoon v. Illinois
(1968) 391 U.S. 510 (People v. Schmeck (2005) 37 Cal.4th 240, 262; People v.
Cleveland (2004) 32 Cal.4th 704, 734; People v. Memro (1995) 11 Cal.4th 786,
818), and we have noted that the United States Supreme Court has considered such
claims despite a defendant’s failure to object at trial. (People v. Holt (1997) 15
Cal.4th 619, 652, fn. 4; People v. Cain (1995) 10 Cal.4th 1, 61, fn. 22.) Finding
no error on the merits, we need not address whether defendant here forfeited his
claim of error.
S.M.: “Yes, sir. Because it has been done before. And, you know, I still
don’t want the convicted person to commit another murder, you know.”
Defense counsel: “So are you saying then that maybe -- even though you
think a person, in the situation I’ve outlined, perhaps should get the death penalty,
that you couldn’t -- if you were a juror in this case, you couldn’t vote for the death
penalty, even under that situation?”
S.M.: “I don’t understand, sir.”
Defense counsel: “Well, I -- again, going to the situation where a person
who is charged in the case was convicted by the jury of murder, and you
subsequently learned that that person had previously killed someone, is that a
person that you could personally vote to give the death penalty, or is your feeling
still, no matter what the facts were, that you could never vote for the death
S.M.: “Well, it really depends on a situation. If, before he -- just like I said
before, if it was multiple murders, you know. Not unless it’s multiple murders, I
could probably vote for death penalty.”
In an attempt to clarify that response by S.M., the trial court asked her
whether she could impose the death penalty if she “were convinced that the
evidence established [defendant’s] guilt [of murder] beyond a reasonable doubt
and that the special circumstance, the robbery or the burglary, was true, . . .
without knowing any more.” S.M. replied that she was confused by the
questioning. The trial court made another attempt at clarification.
The court: “. . . You’ve told us that if this were a case where Mr. Carey
was charged with multiple murders -- ”
The court: “-- and he were to have been found to have committed those
murders, and they were murders in the first degree, that you might be able to
impose the death penalty or vote for the death penalty. Right?”
S.M.: “Yes, sir.”
The court: “Okay.
“Well, how about a case where he’s not charged with multiple murders, but
he is convicted of the murder, and it’s a first degree, and you’re convinced it was
during a robbery or a burglary, and you find that to be true. Now you get in the
penalty phase, and you find that some time in the past, not in this same case, that
he was convicted of another killing of some kind. Not in this case.”
The court: “Could you vote for a death penalty in that situation?”
S.M.: “No, sir.”
The trial court then excused Prospective Juror S.M. for cause.
A trial court may excuse for cause a prospective juror who on voir dire
expresses views about capital punishment, either for or against, that “would
‘prevent or substantially impair’ the performance of the juror’s duties as defined
by the court’s instructions and the juror’s oath.” (People v. Crittenden (1994) 9
Cal.4th 83, 121, quoting Wainwright v. Witt, supra, 469 U.S. at p. 424; see also
People v. Bolden (2002) 29 Cal.4th 515, 536-537.) “A challenge for cause may be
based on the juror’s response when informed of facts or circumstances likely to be
present in the case being tried.” (People v. Cash (2002) 28 Cal.4th 703, 720,
citing People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005.) The determinative
question is whether the juror’s views on the death penalty “ ‘ “ ‘would prevent or
impair the juror’s ability to return a verdict of death in the case before the
juror.’ ” ’ ” (Ibid., quoting People v. Ochoa (2001) 26 Cal.4th 398, 431.)
A reviewing court will uphold a trial court’s ruling on a challenge for cause
by either party “ ‘if it is fairly supported by the record, accepting as binding the
trial court’s determination as to the prospective juror’s true state of mind when the
prospective juror has made statements that are conflicting or ambiguous.’ ”
(People v. Blair (2005) 36 Cal.4th 686, 743, quoting People v. Jenkins (2000) 22
Cal.4th 900, 987.) Having observed the juror during voir dire, the trial court is in
the best position to assess the juror’s state of mind. (See People v. Moon (2005)
37 Cal.4th 1, 14.)
Here, Prospective Juror S.M., both in her questionnaire and during voir
dire, expressed her opposition to the death penalty, except in a case of multiple
murders. In her answer to the trial court’s final question, S.M. said, in no
uncertain terms, that she would not vote for death in a case such as this, which
involved a single murder. (People v. Cash, supra, 28 Cal.4th at p. 720.) Thus, the
trial court properly excused her for cause. (People v. Crittenden, supra, 9 Cal.4th
at p. 121.) To the extent her earlier answer to defense counsel indicated her ability
to impose the death penalty on the facts of this case, it conflicts with her final
response, made to the question posed by the trial court. Under such
circumstances, we accept the trial court’s implied determination that Prospective
Juror S.M.’s views on the death penalty would have prevented or substantially
impaired her performance of the duties required of a juror in a capital case.
(People v. Bolden, supra, 29 Cal.4th at p. 537.)
III. ISSUES RELATING TO GUILT
The prosecutor advanced two theories of defendant’s guilt: one was felony
murder (the murder was committed in the course of burglarizing the Campbells’
home or robbing Ernestine Campbell of her jewelry), the other was premeditated
and deliberated murder.
Admission of Autopsy Photographs
Defendant faults the trial court for admitting, over his objection, autopsy
photographs depicting the victim’s wounds. He contends the photographs were
irrelevant and were more prejudicial than probative. (See Evid. Code, § 352.)
Defendant also argues the trial court failed to make an affirmative showing that it
had weighed prejudicial impact against probative value. Finally, defendant asserts
the trial court’s error in admitting the photographs violated his rights to due
process, a fair jury trial and a reliable capital trial under both the state and federal
At trial, defendant did not raise a relevance objection to the admission of
the photographs. Therefore, he has forfeited any such claim on appeal. (People v.
Clark (1992) 3 Cal.4th 41, 125-126 [“In the absence of a timely and specific
objection on the ground sought to be urged on appeal, the trial court’s rulings on
admissibility of evidence will not be reviewed”]; cf. People v. Barnett (1998) 17
Cal.4th 1044, 1130 [relevance objection does not preserve a challenge under Evid.
Code, § 352].) Even if properly before us, defendant’s argument lacks merit.4
Defendant here and in a number of other claims urges that the error or
misconduct he is asserting infringed various of his constitutional rights to due
process and a fair trial. What we stated in People v. Boyer (2006) 38 Cal.4th 412,
441, footnote 17, applies here. “In most instances, insofar as defendant raised the
issue at all in the trial court, he failed explicitly to make some or all of the
constitutional arguments he now advances. In each instance, unless otherwise
indicated, it appears that either (1) the appellate claim is of a kind . . . that required
no trial court action by the defendant to preserve it, or (2) the new arguments do
not invoke facts or legal standards different from those the trial court itself was
asked to apply, but merely assert that the trial court’s act or omission, insofar as
wrong for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution. To that extent, defendant’s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
(footnote continued on next page)
The prosecutor first sought to admit People’s exhibits 9 and 10. Exhibit 9,
an autopsy photograph depicting the murder victim’s chest, shows five lacerations
with some closed by sutures. Exhibit 10, an autopsy photograph depicting the
victim’s neck and upper chest, shows two cuts on the right side of her neck and
one of the chest wounds shown in exhibit 9. The prosecutor argued that the
photographs were relevant to show the location of the injuries, to illustrate
paramedic Derrick Ho’s testimony about the nature of the victim’s wounds, and
that they were probative of whether defendant had acted with malice. Defense
counsel objected, asserting the photographs were inflammatory, but the trial court
overruled the objection.
The prosecutor later sought to admit exhibit 15, a photo board displaying
nine separate autopsy photographs. Each of the photographs depicted portions of
the murder victim’s body that had stab wounds. Specifically, photograph 15-G
was a graphic image of the victim’s rib cage with the skin removed. The
prosecutor argued that the depth of the stab wound depicted in the photographs
supported an inference of malice on the part of the killer.
Defense counsel objected to the admission of the photographs, particularly
photograph 15-G, asserting their inflammatory nature.5 The trial court admitted
(footnote continued from previous page)
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”
The Attorney General argues that defendant has preserved his claim of error
to exhibit 15 only to the extent that more than one picture of each wound was
admitted. He reasons: “This is because [defendant] effectively acquiesced to half
of the photographs by stating that only one photograph for each wound was
(footnote continued on next page)
eight of the nine photographs but excluded photograph 15-G, finding that it was
not sufficiently probative of malice to outweigh its highly inflammatory nature.
Autopsy photographs of a murder victim are always relevant at trial to
prove how the crime occurred; the prosecution need not prove these details solely
through witness testimony. (People v. Pollock (2004) 32 Cal.4th 1153, 1170; see
also People v. Turner (1990) 50 Cal.3d 668, 706.) Such photographs may also be
relevant to prove that the killer acted with malice. (People v. Clair (1992) 2
Cal.4th 629, 660.) Here, the prosecutor offered exhibits 9, 10, and 15 to prove
how the crime occurred, by showing the location of the wounds and to illustrate
the paramedic’s testimony. The prosecutor also offered the photographs to prove
malice, based on an alternate theory of first degree murder. The autopsy
photographs were therefore relevant (People v. Pollock, supra, at p. 1170), and
their relevance is not lessened, contrary to defendant’s argument, because the
cause of death was undisputed. (People v. Stitely (2005) 35 Cal.4th 514, 545; see
also People v. Lewis (2001) 25 Cal.4th 610, 641.)
(footnote continued from previous page)
warranted.” Although defense counsel might have been more specific, it is
apparent from the exchange between defense counsel and the trial court that the
defense objected to the inflammatory nature of exhibit 15 as a whole, and to
photograph “15-G” in particular. First, defense counsel informed the trial court
that he wanted to “discuss” the autopsy photographs included in exhibit 15.
During this discussion, defense counsel argued that photograph 15-G was
“particularly inflammatory.” After discussing whether the photographs in exhibit
15 were cumulative of other photographs introduced at trial, defense counsel
stated: “I’m particularly concerned about the inflammatory nature of People’s ‘G.’
Our objection would be most strenuous to that.”
Evidence Code section 352
Defendant complains that the autopsy photographs were more prejudicial
than probative, and therefore should not have been admitted under Evidence Code
section 352. We review a trial court’s ruling under section 352 for abuse of
discretion. (People v. Lucas (1995) 12 Cal.4th 415, 449.) On appeal, a trial
court’s exercise of discretion to admit evidence under that evidentiary statute is
reversed only if “the probative value of the photographs clearly is outweighed by
their prejudicial effect.” (People v. Crittenden, supra, 9 Cal.4th at p. 134, citing
People v. Wilson (1992) 3 Cal.4th 926, 938.) Prejudicial in this context is
“evidence that uniquely tends to evoke an emotional bias against a party as an
individual” and has only slight probative value. (Ibid.)
We have reviewed the photographs in question. Although autopsy
photographs of a murder victim are always unpleasant, the photographs in this
case are not overly graphic and are relevant to the manner in which Ernestine
Campbell was killed. (See People v. Hinton (2006) 37 Cal.4th 839, 896 [photos
showing where bullets entered victims’ bodies were probative and neither
gruesome nor offensive].) Because the probative value of the autopsy photographs
that were admitted into evidence in exhibits 9, 10, and 15 was not clearly
outweighed by their prejudicial effect, the trial court did not abuse its discretion.
Contrary to defendant’s contention, the trial court did weigh the
photographs’ prejudicial effect against their probative value. Although the trial
court did not expressly describe that weighing process with respect to exhibits 9
and 10, the record shows that the court heard defense counsel argue that each
photograph was prejudicial, and the court indicated awareness of its duty to
conduct the weighing process required by Evidence Code section 352. (People v.
Crittenden, supra, 9 Cal.4th at p. 135.) As to exhibit 15, which included multiple
photographs, the trial court expressly stated it was excluding photograph “15-G”
because the prejudicial effect of that image outweighed its probative value.
Nor were the photographs inadmissible as cumulative of witness testimony
(People v. Price (1991) 1 Cal.4th 324, 441), or of other photographs (People v.
Cole (2004) 33 Cal.4th 1158, 1199).
Because the autopsy photographs of the murder victim were properly
admitted into evidence at the guilt phase, defendant’s claim that the photographs
improperly influenced the penalty phase necessarily fails.
Instructions assertedly undermining the reasonable doubt
Defendant contends that several standard jury instructions drawn from
CALJIC (5th ed. 1988) and given here lowered the requisite standard of proof
beyond a reasonable doubt. He cites specifically those instructions pertaining to
(1) circumstantial evidence (CALJIC Nos. 2.02 [sufficiency of circumstantial
evidence to prove specific intent or mental state], 8.83 [sufficiency of
circumstantial evidence to prove a special circumstance], and 8.83.1 [sufficiency
of circumstantial evidence to prove mental state]); and (2) witness credibility and
weight of the evidence (CALJIC Nos. 1.00 [respective duty of judge and jury],
2.21.1 [discrepancies in testimony], 2.21.2 [witness willfully false], 2.22
[weighing conflicting testimony], 2.27 [sufficiency of testimony of one witness],
and 2.51 [motive]).
At trial, defendant did not object to these instructions. Notwithstanding his
failure to do so, defendant’s claim is cognizable on appeal to the extent it
implicates his substantial rights. (§ 1259; see People v. Gray (2005) 37 Cal.4th
168, 235 [notwithstanding a failure to object at trial, a defendant may raise on
appeal an instructional error claim that affects his substantial rights].)
Defendant initially argues that CALJIC Nos. 2.02, 8.83, and 8.83.1
(1) misled the jury into believing it could convict defendant if he “reasonably
appeared” to be guilty, even if it entertained a reasonable doubt as to his guilt and,
(2) implied that defendant was required to present, at the very least, a “reasonable”
defense to the prosecution’s case. He complains specifically of language common
to all three instructions stating that if one interpretation of the evidence “appears to
you to be reasonable and the other interpretation to be unreasonable, you must
accept the reasonable interpretation and reject the unreasonable.” As defendant
concedes, we have in the past rejected similar arguments. (People v. Hughes
(2002) 27 Cal.4th 287; People v. Maury (2003) 30 Cal.4th 342, 428; People v.
Crew (2003) 31 Cal.4th 822, 847.) We see no reason to reconsider these
Defendant contends, however, that none of these cited cases considered
“the possibility that the jurors might indeed apply the instructions in conjunction
with CALJIC No. 2.90 (telling the jury that the defendant ‘is presumed to be
innocent’ and that the prosecution bears ‘the burden of proving [him] guilty
beyond a reasonable doubt’), and in the context of the jury instructions as a whole,
and yet still be misled.” Defendant appears to suggest that the jury, even though
properly instructed, might still have been confused about the requisite standard of
proof. We reject that argument. “ ‘Jurors are presumed to be intelligent, capable
of understanding instructions and applying them to the facts of the case.’ ”
(People v. Lewis, supra, 26 Cal.4th at p. 390; see also People v. Welch (1999) 20
Cal.4th 701, 771.) Moreover, we have in the past rejected the claim that CALJIC
Nos. 2.02 and 2.90, when given together, erode the reasonable doubt standard of
proof. (People v. Cook (2006) 39 Cal.4th 566, 601; People v. Navarette (2003) 30
Cal.4th 458, 501.)
Defendant next argues that CALJIC Nos. 1.00 and 2.51 misinformed the
jury that its duty was merely to decide whether defendant was guilty or innocent,
rather than whether he was guilty or not guilty beyond a reasonable doubt. We
have in the past rejected this argument. (People v. Crew, supra, 31 Cal.4th at
pp. 847-848; see People v. Nakahara (2003) 30 Cal.4th 705, 714.)
Pointing to CALJIC Nos. 2.21.1 and 2.21.2, defendant claims that these
instructions lessened the burden of proof. CALJIC No. 2.21.1 bears on
discrepancies within and between the testimony of witnesses, stating that two
people will often see or hear the same event differently, an assertion we have
characterized as a “fact” of common experience. (People v. Fudge (1994) 7
Cal.4th 1075, 1111; see Judicial Council of Cal. Crim. Jury Instns. (2006)
CALCRIM No. 105 [“Do not automatically reject testimony just because of
inconsistencies or conflicts. . . People sometimes honestly forget things or make
mistakes about what they remember. Also, two people may witness the same
event yet see or hear it differently.”].) Defendant does not persuade us that
CALJIC No. 2.21.1, dilutes the burden of proof beyond a reasonable doubt.
CALJIC No. 2.21.2 allows the jury to reject the testimony of a witness “willfully
false in one material part of his or her testimony” unless “from all the evidence,
you believe the probability of truth favors his or her testimony in other
particulars.” We have in the past rejected the contention that CALJIC No. 2.21.2
lowers the beyond-a-reasonable-doubt burden of proof. (People v. Crew, supra,
31 Cal.4th at p. 848.) Defendant offers no reason to reconsider that decision.
Defendant also contends that CALJIC No. 2.22 effectively replaced the
beyond-a-reasonable-doubt burden of proof with the lesser preponderance-of-the-
evidence burden of proof in directing the jury to determine each factual issue in
the case by deciding which witnesses were most convincing, regardless of the
number of witnesses who testified to a particular version of events. Again, we
previously have rejected this argument. (People v. Maury, supra, 30 Cal.4th at
Finally, defendant argues that CALJIC No. 2.27 erroneously suggested to
the jury that both the prosecution and the defense had a burden to prove facts. As
defendant acknowledges, we have rejected this claim in our previous decisions.
(People v. Rogers (2006) 39 Cal.4th 826, 889; People v. Noguera (1992) 4 Cal.4th
Defendant offers no persuasive reason why this court should reconsider its
prior decisions rejecting the claims of instructional error raised.
Variance between information and jury instruction
Defendant asserts the trial court erred in instructing the jury on first degree
premeditated murder and first degree felony murder because the information
charged defendant only with malice murder under section 187, and not with felony
murder under section 189. In defendant’s view, by citing to subdivision (a) of
section 187, which defines murder as “the unlawful killing of a human being, or a
fetus, with malice aforethought,” the information at most charged him with malice
murder in the second degree. Defendant contends that by so instructing the jury,
the trial court exceeded its jurisdiction and violated defendant’s constitutional
rights to due process, to notice of the charged crime, and to trial by jury (U.S.
Const., 5th, 6th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15 & 16) as well as his
right to a fair and reliable capital guilt trial. (U.S. Const., 13th & 14th Amends.;
Cal. Const., art. I, § 17.) Defendant argues that our decision in People v. Dillon
(1983) 34 Cal.3d 441, which he asserts held that felony murder and premeditated
murder are separate crimes, implicitly overruled our decision in People v. Witt
(1915) 170 Cal. 104, 107-108, that a defendant may be convicted of felony murder
even though the information charged only murder with malice. We cannot agree.
Although defendant did not object at trial to the first degree murder
instructions, he has not forfeited his claim. (§ 1259 [appellate court may review
refusal to issue instruction despite defendant’s failure to object at trial if
defendant’s substantial rights were affected thereby]; People v. Williams (1999) 21
Cal.4th 335, 340 [challenge to jurisdiction may be raised for the first time on
Since deciding People v. Dillon, supra, 34 Cal.3d 441, we have reaffirmed
our holding in People v. Witt, supra, 170 Cal. at pages 107-108 in a number of
decisions. (E.g., People v. Anderson (2002) 28 Cal.4th 767, 776; People v.
Nakahara, supra, 30 Cal.4th at p. 712.) We have held that when an accusatory
pleading charges “murder, without specifying the degree,” it will be sufficient to
charge murder in any degree. (People v. Anderson, supra, at p. 776.) In addition,
we have held that felony murder and premeditated murder are not separate crimes,
but rather different varieties of the same crime. (People v. Valdez (2004) 32
Cal.4th 73, 114, fn. 17; People v. Silva (2001) 25 Cal.4th 345, 367.) Moreover,
we have in the past rejected the jurisdictional argument now raised by defendant.
(People v. Hughes, supra, 27 Cal.4th at pp. 369-370.) We have held that in
instructing a jury on first degree murder when the information charged malice
murder under section 187, a trial court does not violate a defendant’s federal
constitutional rights to due process, notice, proof beyond a reasonable doubt, or a
unanimous verdict. (Ibid.) Here the information charged both a burglary and a
robbery special circumstance, putting defendant on notice that the prosecution was
proceeding on a felony-murder theory. (See People v. Williams (2006) 40 Cal.4th
287, 305 [evidence in aggravation of premeditation and deliberation in the
circumstances of a murder is not subject to notice requirement of § 190.3, and
therefore absence of notice does not deny due process]; People v. Nakahara,
supra, 30 Cal.4th at p. 712 [felony murder and premeditated murder need not be
separately pleaded].) Defendant presents no persuasive reason to reconsider those
Defendant faults the trial court for not instructing the jury that it must
unanimously agree whether defendant was guilty of premeditated murder or felony
murder. Defendant claims that this error violated his rights under sections 7, 15,
16, and 17 of article I of the California Constitution, as well as the Sixth, Eighth,
and Fourteenth Amendments to the federal Constitution.
We repeatedly have held that jurors need not unanimously agree on a
theory of first degree murder as either felony murder or murder with
premeditation. (People v. Nakahara, supra, 30 Cal.4th at p. 712; People v. Kipp
(2001) 26 Cal.4th 1100, 1132.) We have also concluded that neither Ring v.
Arizona (2002) 536 U.S. 584, nor Apprendi v. New Jersey (2000) 530 U.S. 466,
requires a different result. (People v. Nakahara, supra, at p. 713.) Accordingly,
defendant’s claim fails.
IV. ISSUES RELATING TO PENALTY
Trial Court’s Rejection of Proposed Instructions
Defendant faults the trial court for rejecting three penalty phase instructions
the defense had proposed. As a result, defendant argues, he was deprived of the
rights enunciated in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885, and in
People v. Sears (1970) 2 Cal.3d 180, 190, and of his state and federal
constitutional rights to a jury trial and a fair penalty determination.
Defendant refers first to a defense-proposed jury instruction stating that the
absence of a statutory mitigating factor does not constitute an aggravating factor.
The proposed instruction read:
“Only those factors which are applicable on the evidence adduced at trial
are to be taken into account in the penalty determination. All factors may not be
relevant and a factor which is not relevant to the evidence in a particular case
should be disregarded. The absence of a statutory mitigating factor does not
constitute an aggravating factor.”
As we have held in the past, it is not error for a trial court not to give a jury
instruction that a lack of mitigating evidence does not constitute aggravation.
(People v. Hinton, supra, 37 Cal.4th at p. 912; People v. Cunningham (2001) 25
Cal.4th 926, 1041.)
It was not error for the trial court to refuse the instruction even though the
court instructed the jury, under another defense-drafted instruction, that: “The
factors in the above list which you determine to be aggravating circumstances are
the only ones which the law permits you to consider. You are not allowed to
consider any other factors or circumstances as the basis for deciding that the death
penalty would be an appropriate punishment in this case.” Although we have
suggested that a trial court should instruct the jury that the absence of mitigating
evidence does not constitute aggravating evidence when the court or parties
improperly suggest the contrary (People v. Livaditis (1992) 2 Cal.4th 759, 784 [“a
specific instruction to that effect is not required, at least not unless the court or
parties make an improper contrary suggestion”]), the defense instruction given the
jury here did not suggest a contrary rule. The instruction given, along with
CALJIC No. 8.88, correctly told the jury of its discretion in deciding which of the
statutory sentencing factors were applicable to the facts of defendant’s case. “A
jury properly advised about the broad scope of its sentencing discretion is unlikely
to conclude that the absence of [mitigating] factors . . . is entitled to significant
aggravating weight.” (People v. Melton (1988) 44 Cal.3d 713, 769.)
The other jury instruction proposed by the defense and refused by the trial
“Evidence has been introduced for the purpose of showing the specific
harm caused by the defendant’s crime. Such evidence, if believed, was not
received and may not be considered by you to divert your attention from your
proper role of deciding whether defendant should live or die. You must face this
obligation soberly and rationally, and you may not impose the ultimate sanction as
a result of an irrational, purely subjective response to emotional evidence and
argument. On the other hand, evidence and argument on emotional though
relevant subjects may provide legitimate reasons to sway the jury to show mercy.”
We have in the past rejected the argument that a trial court must instruct the
jury not to be influenced by emotion resulting from victim impact evidence.
(People v. Griffin (2004) 33 Cal.4th 536, 591 [trial court need not give duplicative
instructions]; People v. Ochoa, supra, 26 Cal.4th at p. 455 [proposed instruction
that jury may not impose death penalty as a result of an irrational, subjective
response to emotional evidence is duplicative of CALJIC No. 8.84.1].) Moreover,
in People v. Harris (2005) 37 Cal.4th 310, 358, we upheld the rejection of a jury
instruction identical to the one proposed by defendant here. In Harris, the trial
court concluded the instruction was confusing because it cautioned the jury against
a subjective response to emotional evidence and argument without specifying
whether the subjective reaction was that of the victim’s family or that of the jurors
themselves. (Id. at p. 359.) The trial court here also expressed “concerns” about
the propriety of the proposed instruction before rejecting it, although the court
never articulated on the record what its concerns were.
Finally, defendant faults the trial court for rejecting the following proposed
“The permissible aggravating factors are limited to those aggravating
factors upon which you have been specifically instructed. Therefore, the
defendant’s background may only be considered by you as mitigating evidence.”
We have in the past upheld the refusal to give materially indistinguishable
instructions. (People v. Hinton, supra, 37 Cal.4th at p. 912; People v. Ochoa,
supra, 26 Cal.4th at p. 457.) A defendant’s criminal history, which is part of his
background, may be considered in aggravation. (§ 190.3, factors (b), (c).)
In sum, the trial court here did not err in rejecting the above discussed jury
instructions that defendant requested at the penalty phase.
California’s Death Penalty Law
Defendant presents a number of arguments that California’s death penalty
statute is unconstitutional. As defendant acknowledges, we have in the past
rejected these arguments, and he presents no compelling reason for us to
reconsider those holdings. Below we briefly describe those previous holdings.
that California’s imposition of the death penalty
violates international norms and therefore constitutes cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the federal
Constitution. “International law does not prohibit a sentence of death rendered in
accordance with state and federal constitutional and statutory requirements.”
(People v. Hillhouse (2002) 27 Cal.4th 469, 511.) Defendant’s claim that the
death penalty is imposed regularly as a form of punishment in this state “is a
variation on the familiar argument that California’s death penalty law does not
sufficiently narrow the class of death-eligible defendants to limit that class to the
most serious offenders, a contention we have rejected in numerous decisions.”
(People v. Perry (2006) 38 Cal.4th 302, 322; People v. Bell (2007) 40 Cal.4th 582,
621; People v. Demetrulias (2006) 39 Cal.4th 1, 43-44.)
Allowing the jury to consider the circumstances of the crime under section
190.3, factor (a) does not lead to the arbitrary and capricious imposition of the
death penalty. (People v. Guerra (2006) 37 Cal.4th 1067, 1165; People v. Hinton,
supra, 37 Cal.4th at p. 913; People v. Kennedy (2005) 36 Cal.4th 595, 641.)
The trial court need not instruct, and the death penalty statute is not
unconstitutional for failing to require, that a jury may impose the death sentence
only if it is persuaded beyond a reasonable doubt that the aggravating factors
outweigh the mitigating factors and that death is the appropriate penalty. (People
v. Box (2000) 23 Cal.4th 1153, 1216-1217.) A capital jury need not apply any
particular burden of proof in determining penalty (People v. Kipp (1998) 18
Cal.4th 349, 381), nor must it reach unanimity on which aggravating factors apply
(People v. Smith (2005) 35 Cal.4th 334, 374), in determining that death is the
California’s death penalty law is not unconstitutional for not imposing, and
a trial court does not err by not instructing on, a burden of proof that death is
appropriate, either beyond a reasonable doubt or by a preponderance of the
evidence. (People v. Perry, supra, 38 Cal.4th at p. 321; People v. Box, supra, 23
Cal.4th at p. 1216.) Neither is this state’s death penalty law invalid for not
Former rule 420, subdivision (b), of the California Rules of Court,
renumbered rule 4.420 as of January 1, 2001, states that when a trial court under
the Determinate Sentencing Act determines the base term of imprisonment,
“[c]ircumstances in aggravation and mitigation shall be established by a
preponderance of the evidence.” Cunningham v. California (2007) 549 U.S. ___
[127 S.Ct. 856; 166 L.Ed.2d 856] as it applies to our Determinate Sentencing Act
is not implicated by the penalty determination made in this capital case. (See
People v. Prince (April 30, 2007, S036105) ___ Cal.4th ___ [pp. 156-157].)
requiring a jury instruction on the burden of proof. (People v. Box, supra, at
p. 1216; see also People v. Morrison (2004) 34 Cal.4th 698, 731 [neither Apprendi
v. New Jersey, supra, 530 U.S. 466, nor Ring v. Arizona, supra, 536 U.S. 584,
warrants reconsideration of our conclusion that California’s death penalty statute
is not unconstitutional because it does not provide the jury with instructions on the
burden of proof].)
A jury in a capital case need not make written findings or achieve
unanimity as to aggravating circumstances. (People v. Kennedy, supra, 36 Cal.4th
at p. 641; People v. Morrison, supra, 34 Cal.4th at p. 730.)
California’s capital sentencing scheme does not run afoul of equal
protection because our determinate sentencing law takes a different statutory
approach to sentencing in noncapital cases. (People v. Smith, supra, 35 Cal.4th at
pp. 374-375.) “[P]ersons convicted under the death penalty law are manifestly not
similarly situated to persons convicted under the Determinate Sentencing Act and
accordingly cannot assert a meritorious claim to the ‘benefits’ of the act under the
equal protection clause.” (People v. Williams (1988) 45 Cal.3d 1268, 1330.)
Accordingly, our death penalty statute does deny equal protection to capital
defendants by not requiring either jury unanimity on aggravating circumstances or
written factual findings supporting the jury’s penalty determination. (People v.
Smith (2007) 40 Cal.4th 483, 527; People v. Blair, supra, 36 Cal.4th at p. 754.)
The jury at the penalty phase properly may consider a defendant’s
unadjudicated criminal activity and need not agree unanimously that the defendant
committed those acts. (People v. Smith (2003) 30 Cal.4th 581, 642; People v.
Michaels (2002) 28 Cal.4th 486, 541-542.)
The trial court need not label each sentencing factor as either aggravating or
mitigating. (People v. Maury, supra, 30 Cal.4th at pp. 443-444.) In addition, the
trial court is not required to delete inapplicable factors from the list of sentencing
factors presented to the jury. (People v. Kennedy, supra, 36 Cal.4th at p. 641.)
The use of restrictive adjectives, such as “extreme” and “substantial,” in the
sentencing statute and instructions do not render either unconstitutional. (People
v. Kennedy, supra, 36 Cal.4th at p. 641.)
The language in CALJIC No. 8.88 directing the jury to determine whether
the aggravating circumstances are “so substantial” in comparison to the mitigating
circumstances is not unconstitutionally vague. (People v. Chatman (2006) 38
Cal.4th 344, 409.) Moreover, CALJIC No. 8.88 is not defective in requiring the
jury to determine whether the death penalty is “warranted” rather than
“appropriate.” (People v. Perry, supra, 38 Cal.4th at p. 320.)
The trial court need not instruct the jury that a life sentence is mandatory if
circumstances in aggravation do not outweigh those in mitigation. (People v.
Perry, supra, 38 Cal.4th at p. 320.)
Finally, the federal Constitution does not require intercase proportionality
review. (People v. Kennedy, supra, 36 Cal.4th at p. 641.)
V. CUMULATIVE ERROR
Defendant argues that the cumulative effect of the alleged errors in both
phases of his trial undermined the fundamental fairness of his trial and the
reliability of his sentence. We have found no errors, and thus find no cumulative
The judgment is affirmed.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Carey
Original Appeal XXX
Date Filed: May 31, 2007
County: Los Angeles
Judge: John Joseph Cheroski
Attorneys for Appellant:Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Gary D. Garcia,
Deputy State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Gary D. Garcia
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
John Yang, Deputy Attorney General
300 S. Spring Street, Suite 5212
Los Angeles, CA
|2||Carey, Dewayne Michael (Appellant)|
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Jeannie R. Sternberg
303 Second Street, Suite 400 South
San Francisco, CA
|3||Carey, Dewayne Michael (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Gary Garcia, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|May 31 2007||Opinion: Affirmed|
|Dec 16 1996||Judgment of death|
|Jan 16 1997||Filed certified copy of Judgment of Death Rendered|
|Nov 6 2000||Order appointing State Public Defender filed|
to represent appellant for the direct appeal.
|Dec 22 2000||Received:|
notice from superior court that record was transmitted to applt's counsel on 12-15-2000.
|Dec 29 2000||Counsel's status report received (confidential)|
from State P.D.
|Feb 27 2001||Counsel's status report received (confidential)|
from State P.D.
|Mar 14 2001||Application for Extension of Time filed|
By Applt. to request corr. of the record. (1st request)
|Mar 16 2001||Extension of Time application Granted|
To 5/14/2001 to applt. to request corr. of the record.
|Apr 30 2001||Counsel's status report received (confidential)|
from State P.D.
|May 7 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (2nd request)
|May 8 2001||Filed:|
Suppl. declaration of service of application by applt. to request corr. of the record.
|May 8 2001||Extension of Time application Granted|
To 7/13/2001 to applt. to request corr. of the record.
|Jul 2 2001||Counsel's status report received (confidential)|
from State P.D.
|Jul 6 2001||Application for Extension of Time filed|
by applt to request correction of the record. (3rd request)
|Jul 10 2001||Extension of Time application Granted|
To 9/11/2001 to applt. to request corr. of the record.
|Sep 4 2001||Counsel's status report received (confidential)|
from State P.D.
|Sep 4 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (4th request)
|Sep 13 2001||Extension of Time application Granted|
To 11/13/2001 to applt. to request corr. of the record.
|Nov 5 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 6 2001||Application for Extension of Time filed|
by applt. to request corr. of the record. (5th request)
|Nov 9 2001||Extension of Time application Granted|
To 1/14/2002 to applt. to request corr. of the record.
|Jan 4 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 7 2002||Request for extension of time filed|
By applt. to request correction of the record. (6th request)
|Jan 15 2002||Extension of time granted|
To 3/15/2002 to applt. to request correction of the record. Dep. State PD Garcia anticipates filing the request to correct the record by 4/15/2002. Only one further extension for 30 additional days is contemplated.
|Jan 17 2002||Counsel appointment order filed|
appointing Arlene Binder to represent applt for habeas corpus/executive clemency proceedings related to the automatic appeal.
|Mar 5 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 8 2002||Request for extension of time filed|
By applt. to request correction of the record. (7th request)
|Mar 12 2002||Extension of time granted|
To 5/14/2002 to applt. to request correction of the record. Dep. State PD Garcia anticipates filing the request by 5/14/2002. No further extension is contemplated.
|May 9 2002||Counsel's status report received (confidential)|
by State Public Defender.
|May 13 2002||Received copy of appellant's record correction motion|
Motion to correct, augment and settle the record. (37 pp.)
|Jun 6 2002||Counsel's status report received (confidential)|
from atty Binder.
|Jul 9 2002||Counsel's status report received (confidential)|
from State P.D.
|Jul 19 2002||Compensation awarded counsel|
|Aug 1 2002||Counsel's status report received (confidential)|
from atty Binder.
|Aug 28 2002||Compensation awarded counsel|
|Sep 9 2002||Counsel's status report received (confidential)|
from State P.D.
|Oct 3 2002||Counsel's status report received (confidential)|
from atty Binder.
|Nov 8 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 7 2003||Counsel's status report received (confidential)|
from State P.D.
|Mar 7 2003||Counsel's status report received (confidential)|
from atty Binder.
|Mar 12 2003||Counsel's status report received (confidential)|
from State P.D.
|May 12 2003||Counsel's status report received (confidential)|
from State P.D.
|May 14 2003||Compensation awarded counsel|
|May 29 2003||Record on appeal filed|
17 vols. of clerk's transcript (3,935 pp.) and 23 vols. of reporter's transcript (1,883 pp.), including material under seal and the 3,156 pp. of juror questionnaires; ascii disks.
|May 29 2003||Appellant's opening brief letter sent, due:|
|Jul 1 2003||Counsel's status report received (confidential)|
from State P.D.
|Jul 1 2003||Request for extension of time filed|
to file appellant's opening brief. (1st request)
|Jul 8 2003||Extension of time granted|
to 9/8/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Aug 4 2003||Counsel's status report received (confidential)|
from atty Binder.
|Aug 27 2003||Compensation awarded counsel|
|Sep 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Sep 3 2003||Request for extension of time filed|
to file appellant's opening brief. (2nd request)
|Sep 9 2003||Extension of time granted|
to 11/7/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered toinform his or her assisting attorney or entity, if any and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Nov 3 2003||Extension of time granted|
to file appellant's opening brief. (3rd request)
|Nov 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Nov 12 2003||Extension of time granted|
to 1/6/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and assiting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Dec 30 2003||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Dec 30 2003||Counsel's status report received (confidential)|
from State P.D.
|Jan 9 2004||Extension of time granted|
to 3/8/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Mar 1 2004||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Mar 1 2004||Counsel's status report received (confidential)|
from State P.D.
|Mar 5 2004||Extension of time granted|
to 5/7/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Mar 23 2004||Letter sent to:|
|May 3 2004||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|May 4 2004||Counsel's status report received (confidential)|
from State P.D.
|May 7 2004||Extension of time granted|
to 7-6-2004 to file AOB. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
|Jun 29 2004||Request for extension of time filed|
to file AOB. (7th request)
|Jun 29 2004||Counsel's status report received (confidential)|
from State P.D.
|Jul 7 2004||Extension of time granted|
to 9-7-2004 to file AOB. After that date, only two further extensions totaling about 90 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it. Extension granted based upon Deputy SPD Gary Garcia's representation that he anticipates filing the brief by 12-7-2004.
|Aug 6 2004||Counsel's status report received (confidential)|
from atty Binder.
|Aug 26 2004||Compensation awarded counsel|
|Aug 31 2004||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Aug 31 2004||Counsel's status report received (confidential)|
from State P.D.
|Sep 7 2004||Extension of time granted|
to 11/8/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy State Public Defender Gary D. Garcia's representation that he anticipates filing that brief by 12/7/2004.
|Nov 1 2004||Counsel's status report received (confidential)|
from State P.D.
|Nov 1 2004||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Nov 5 2004||Extension of time granted|
to 12/8/2004 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Gary D. Garcia's representation that he anticipates filing that brief by 12/8/2004. After that date, no further extension will be granted.
|Dec 8 2004||Appellant's opening brief filed|
(56,345 words; 198 pp. - excluding attachments)
|Dec 8 2004||Request for judicial notice filed (AA)|
|Jan 3 2005||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jan 6 2005||Extension of time granted|
to 3/8/2005 to file respondent's brief.
|Feb 28 2005||Respondent's brief filed|
|Mar 4 2005||Filed:|
certificate of compliance for respondent's brief. (16949 words; 59 pp.)
|Mar 14 2005||Counsel's status report received (confidential)|
from atty Binder, dated 1-28-2005.
|Mar 22 2005||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Mar 23 2005||Extension of time granted|
to 5/19/2005 to file appellant's reply brief.
|Apr 4 2005||Motion to withdraw as counsel filed|
by Arlene Binder to withdraw as habeas corpus counsel.
|Apr 27 2005||Withdrawal of counsel allowed by order|
Good cause appearing, the application of appointed counsel for permission to withdraw as habeas corpus/executive clemency attorney of record for appellant Dewayne Michael Carey, filed April 4, 2005, is granted. The order appointing Arlene Binder as habeas corpus/executive clemency counsel of record for appellant Dewayne Michael Carey in the above automatic appeal now pending in this court, filed January 17, 2002, is hereby vacated. Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for condemned inmate Dewayne Michael Carey. Binder is hereby directed to deliver to Executive Director Millman, within 30 days from the filing of this order, all case transcripts, case files, habeas corpus investigation work product, trial files, investigation reports, and related materials that she has obtained from appellant or his trial counsel, paralegals, experts and investigators, or from any other source.
|Apr 27 2005||Order filed|
In conjunction with the order filed this day permitting Arlene Binder to withdraw as habeas corpus/executive clemency counsel of record for appellant Dewayne Michael Carey, with regard to the above automatic appeal now pending in this court, Binder is hereby ordered to reimburse the court the sum of $10,000, subject to her ability to demonstrate to the court that she should be credited, as appropriate, for habeas corpus "work performed that is determined by the court to be of value to the court." (See Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in Cal. Supreme Ct., guideline 11 ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"], subpt. B.).
|May 12 2005||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|May 16 2005||Extension of time granted|
to 7-18-2005 to file reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension granted based upon Deputy SPD Gary D. Garcia's representation that he anticipates filing the brief by 9-19-2005.
|Jul 11 2005||Request for extension of time filed|
to file reply brief. (3rd request)
|Jul 14 2005||Extension of time granted|
to 9/16/2005 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Gary D. Garcia's representation that he anticipates filing that brief by 9/16/2005. After that date, no further extension is contemplated.
|Sep 16 2005||Appellant's reply brief filed|
(12,815 words; 51 pp.)
|Sep 19 2005||Filed:|
"Amended" proof of service of appellant's reply brief.
|Apr 20 2006||Exhibit(s) lodged|
People's exhibits 9, 10, 15 and 15G.
|Sep 20 2006||Exhibit(s) lodged|
People's exhibit 17
|Jan 16 2007||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 5, 2007, 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.
|Feb 8 2007||Case ordered on calendar|
to be argued Tuesday, March 6, 2007, at 1:30 p.m., in San Francisco
|Feb 15 2007||Filed:|
appellant's focus issue letter, dated February 15, 2007.
|Feb 20 2007||Filed letter from:|
Deputy Attorney General John Yang, dated Februay 20, 2007, re focus issues for oral argument.
|Feb 23 2007||Received:|
letter from DSPD Gary Garcia, dated February 22, 2007, re additional authorities for oral argument.
|Feb 28 2007||Request for judicial notice denied|
Defendant's request for judicial notice of reporter's transcripts of juror voir dire in Gray v. Mississippi (1987) 481 U.S. 648 and in Adams v. Texas (1980) 448 U.S. 38 is denied. Defendant's request for judicial notice of reporter's transcript excerpts from prosecutorial argument made at the penalty phase in 51 California death penalty cases is denied. Defendant's request for judicial notice of selected pages from the opening brief and the reporter's transcript in People v. Dunkle, S014200 [(2005) 36 Cal.4th 861] is denied.
|Mar 6 2007||Cause argued and submitted|
|Mar 22 2007||Order appointing Habeas Corpus Resource Center filed|
The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Dewayne Michael Carey, filed April 27, 2005, is hereby vacated. On the court's own motion, the Habeas Corpus Resource Center is hereby appointed to represent appellant Dewayne Michael Carey for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus/executive clemency counsel Arlene Binder's declaration, in support of her motion to withdraw, to the effect that she was unable to discharge her duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Dewayne Michael Carey.
|May 21 2007||Counsel's status report received (confidential)|
|May 30 2007||Notice of forthcoming opinion posted|
|May 31 2007||Opinion filed: Judgment affirmed in full|
majority opinion by Kennard, J. -----joined by George, CJ., Baxter, Werdegar, Chin, Moreno, Corrigan, JJ.
|Jun 15 2007||Rehearing petition filed|
by appellant. (2,565 words; 10 pp.)
|Jun 18 2007||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 August 29, 2007, or the date upon which rehearing is either granted or denied, whicever occurs first.
|Jul 23 2007||Counsel's status report received (confidential)|
|Jul 25 2007||Rehearing denied|
The petition for rehearing is denied. Werdegar, J., was absent and did not participate.
|Jul 25 2007||Remittitur issued (AA)|
|Jul 25 2007||Exhibit(s) returned|
to our office in Los Angeles for return to superior court. (People's exhibits, nos. 9, 10, 15 and 15G)
|Jul 31 2007||Exhibit(s) returned|
to our Los Angeles office for return to superior court. (People's exhibit, no. 17)
|Aug 1 2007||Received:|
receipt for remittitur.
|Aug 1 2007||Received:|
copy of appellant's Petition for Writ of Certiorari (17 pp. excluding appendices).
|Aug 8 2007||Received:|
acknowledgment from superior court of receipt of People's exhibits, nos. 9, 10, 15 and 15G.
|Aug 10 2007||Received:|
letter from U.S.S.C., dated August 3, 2007, advising that cert petn. filed on July 30, 2007, No. 07-5687.
|Aug 16 2007||Received:|
acknowledgment from superior court of receipt of People's exhibit no. 17.
|Aug 28 2007||Change of contact information filed for:|
applt counsel HCRC.
|Sep 19 2007||Counsel's status report received (confidential)|
|Oct 16 2007||Motion filed (AA)|
appellant's emergency application for stay of execution date-setting hearing calendared for October 26, 2007.
|Oct 16 2007||Related habeas corpus petition filed (post-judgment)|
case no. S157242.
|Oct 24 2007||Order filed|
The "Emergency Application for Stay of Execution Date-Setting Hearing Calendared for October 26, 2007," filed on October 16, 2007, is granted. Execution of the judgment of death entered against DeWayne Michael Carey by the Superior Court of Los Angeles County and affirmed by this court on May 31, 2007 (41 Cal.4th 109), is hereby stayed pending final determination of (1) the petition for certiorari pending in the United States Supreme Court (07-5687) and (2) the petition for writ of habeas corpus pending in this court (S157242).
|Nov 8 2007||Received:|
Letter from U.S.S.C. advising that petition for certiorari was denied on November 5, 2007. No. 07-5687.
|Aug 13 2008||Order filed|
Attorney Arlene Binder's request for reconsideration of the court's reimbursement order of April 27, 2005, via confidential letters from Binder received on March 3, 2008, and July 17, 2008, is hereby granted. In conjunction with the separate orders filed on April 27, 2005, permitting Binder to withdraw as habeas corpus/executive clemency counsel of record for condemned inmate Dewayne Michael Carey in the above automatic appeal now final in this court, and ordering Binder to reimburse the court the sum of $10,000, Binder is hereby granted a credit in that amount, thereby eliminating the reimbursement sum in its entirety.
|Dec 8 2004||Appellant's opening brief filed|
|Feb 28 2005||Respondent's brief filed|
|Sep 16 2005||Appellant's reply brief filed|