Supreme Court of California Justia
Docket No. S043628

People v. Carrington

Filed 7/27/09




IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S043628

v.

CELESTE SIMONE CARRINGTON,

San Mateo County

Defendant and Appellant.

Super. Ct. No. SC29739



After a jury trial, defendant Celeste Simone Carrington was convicted of

the first degree murders of Victor Esparza and Carolyn Gleason, and the jury

found true, as to each count of murder, allegations of burglary and robbery special

circumstances. (Penal Code §§ 187, subd. (a), 190.2, subd. (a) (17)(I) & (VII),

1203.06, subd. (a)(1), and 12022.5, subd. (a).)1 The jury also found true a

multiple-murder special circumstance. (§ 190.2, subd. (a)(3).) Defendant was

convicted of the second degree attempted murder of Dr. Allan Marks, and an

allegation that she personally inflicted great bodily injury during the commission

of that crime was found true. (§§ 664, 187, subd. (a); 12022.7.) She was

convicted of the robbery of each of these three victims, as well as eight counts of

commercial burglary. (§§ 211, 460, subd. (b).) Except as to five of the counts of


1

All further statutory references are to the Penal Code unless otherwise

indicated.


1


commercial burglary, allegations that defendant personally used a firearm in the

commission of these offenses were found true. (§§ 1203.06, subd. (a)(1) and

12022.5, subd. (a).) After the penalty phase of the trial, the jury returned a verdict

of death, and the trial court denied defendant‟s motion to modify the verdict to life

imprisonment without the possibility of parole. (§ 190.4, subd. (e).) This appeal

is automatic. (§ 1239, subd. (b).)

For the reasons discussed below, we reverse defendant‟s convictions for

burglary in counts 9 and 10 and affirm defendant‟s remaining convictions and

death sentence.

I. FACTS

A. Guilt Phase

The offenses of which defendant Celeste Carrington was convicted arose

out of four separate incidents. Most of the facts underlying these offenses were

admitted by defendant in her statements to the police, which she made shortly after

her arrest. The first incident involved the burglary of a Dodge dealership located

at 640 Veterans Boulevard in Redwood City, on the night of January 17, 1992. In

her statement to the police, defendant admitted the following. She previously had

been employed as a janitor for several companies and, having worked in this

building, defendant was aware that the back entrance was often left unlocked.

She went to that location with gloves and a crowbar, which she used to force open

several interior doors. Among other items, she stole a .357 magnum revolver and

five bullets.

The second incident involved the burglary of a building located at 1123

Industrial Road in San Carlos and the murder of Victor Esparza, on the night of

January 26, 1992. In her statement, defendant admitted the following. She

previously had worked on the premises as a janitor and had retained a key to the

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building. She borrowed a car from her neighbor and drove to the location, armed

with the .357 magnum revolver she had stolen from the Dodge dealership. She

used her key to enter the building, accidentally setting off the alarm. Victor

Esparza, who was cleaning the facility, observed her in an office cubicle. She told

him that she worked in the building and must have accidentally set off the alarm.

Esparza asked her to call the building manager to report the alarm, took out his

wallet, and handed her a telephone number. Defendant displayed the gun and took

his wallet, which contained about $45 or $55 in cash. She also demanded the

personal identification number (PIN) for his automated teller machine (ATM)

card, which he wrote down. As defendant walked out of the cubicle, she turned

around and shot Esparza. She later attempted to use his ATM card, but the PIN he

had given her was invalid. Defendant admitted that she intended to kill Esparza,

and that the experience was exciting and made her feel powerful.

The forensic pathologist who performed the autopsy on Esparza, Peter

Benson, testified that Esparza died of a gunshot wound to the head, inflicted from

a distance of approximately six inches. Benson concluded that the angle of the

gunshot wound was not inconsistent with the victim having been shot while

kneeling and looking up at the shooter, nor was it inconsistent with the possibility

that the victim was standing. Celia Hartnett, a criminalist for the San Mateo

County Sheriff‟s Laboratory who examined Esparza‟s body at the crime scene,

testified that in her opinion — based upon the position of the body and the

clothing, the pools of blood on the carpet, the blood on the clothing, and an

abrasion on the forehead — he probably was on his knees when he was shot, with

his arms raised in a defensive position; he likely fell forward and then rotated onto

his back. Hartnett believed that Esparza was shot from a distance of between six

inches and one foot.

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The third incident involved the burglary of an office building located at 777

California Street in Palo Alto in Santa Clara County and the murder of Carolyn

Gleason, on March 11, 1992. In her statement to the police, defendant admitted

the following. She previously had worked as a janitor in the building and had

retained a key. A neighbor gave her a ride to the premises from her apartment in

East Palo Alto. Defendant brought a pair of gloves, a screwdriver, and the same

.357 magnum revolver she had used to kill Victor Esparza. Her key would not

open the door. She observed two cars in the parking lot and two janitors working

in the building. She waited for these individuals to leave before using the

screwdriver to open the door. Defendant walked through the facility looking for

money but found none. She heard Caroline Gleason enter and go into an office.

Defendant watched her and eventually encountered her in the copy room. When

defendant displayed the gun, Gleason begged her to put it away. According to

defendant, she did not want to hurt Gleason, but she became nervous and pulled

the trigger.

After shooting Gleason, defendant took Gleason‟s keys and about $400

from her desk. She went outside to the parking lot and entered Gleason‟s car,

where she found Gleason‟s purse, which contained her ATM card and PIN.

Defendant drove the car to a bank in Palo Alto, where she made two unsuccessful

attempts to withdraw money from Gleason‟s account, but was able to withdraw

$200 from an ATM at a 7-Eleven store and another $100 from a second bank.

She left the car in a hospital parking lot and took a taxi back to her apartment.

An autopsy indicated that Gleason died as the result of a single gunshot to

the head fired from a very close range. The prosecution‟s forensic expert,

criminalist Hartnett, opined — based upon the position of Gleason‟s body, the

height of the blood spatters, the angle of the gunshot wound, and the presence of

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gunshot residue on Gleason‟s sleeve — that the victim was kneeling and had tried

to cover her face when shot.

The fourth incident involved the burglary of a medical office building

located at 80 Brewster Street in Redwood City and the attempted murder of Dr.

Allan Marks, on the evening of March 16, 1992. Defendant, in her statement to

the police, admitted the following. As in two of the earlier incidents, she brought

with her a key she had retained from her prior employment at the building as a

janitor, a pair of gloves, and the same .357 magnum revolver. The doors to the

building still were unlocked when she arrived at 5:30 p.m. After discovering that

she was unable to open any of the internal offices with her key, defendant hid in a

closet for a few hours. She emerged from the closet and spent some time in the

building before observing Dr. Marks leaving his office after a late appointment.

She decided to rob him and pulled out the gun. When Marks observed her, he

“went crazy” and the two struggled over the gun. During the struggle she pulled

the trigger three times, resulting in one misfire and two shots. Marks managed to

force her out of the office and locked the door. Defendant fled the building, taking

with her some access cards and prescription drugs.

Dr. Marks testified to a somewhat different version of the shooting.

According to his account, as he was about to leave his office defendant pushed the

door open and came “barreling through,” causing the door to push him to the side.

He recognized her as a former janitor in the building and began screaming and

waiving his hands. Defendant was standing about three feet from him, holding a

gun in her right hand. She pointed it at his upper body, and he heard gunshots.

He was shot in the left shoulder, left thumb, and right forearm. After being shot,

Marks collapsed to his knees and defendant left the office. He closed the door

behind her and called 911.

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Defendant was arrested a few days later. Her apartment in East Palo Alto

was searched pursuant to three warrants obtained by the Los Altos, Palo Alto, and

Redwood City Police Departments. The police found evidence that connected

defendant to all four incidents: the keys to the Redwood City Dodge dealership;

the gun that had been taken from the dealership, which was the weapon used to

shoot Esparza, Gleason, and Marks; Gleason‟s pager and purse, and the key to the

building in which she was shot; a box from Gleason‟s office that held petty cash; a

piece of paper with Gleason‟s PIN on it; and a drug kit taken from a doctor‟s

office in the medical building in which Marks was shot. After the search was

completed, police officers from each of the three police departments interviewed

defendant, and she confessed to being the perpetrator in each of the four incidents.

The defense presented no evidence at the guilt phase of the trial. In closing

argument, defense counsel conceded that the crimes occurred as defendant

described them in her statements and argued that the murders were not executions.

Defense counsel argued that with respect to the charge involving the robbery of

Gleason, the jury should return a verdict of guilty on the lesser offense of theft and

should find not true the allegation that the murder of Gleason took place during the

commission of a robbery. Defense counsel also urged that as to the charge

involving the attempted murder of Marks, the jury should return a verdict of guilty

on the lesser offense of assault with a firearm.

B. Penalty Phase

At the penalty phase of the trial, the prosecution presented victim impact

evidence. Esparza‟s sister and aunt, with whom he was residing at the time of his

death, testified about the type of person he was and their relationship with him.

Other relatives who resided in Mexico at the time of Esparza‟s death — his

parents, a sister, and a brother — also testified. Gleason‟s two brothers-in-law

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testified about the effect her death had on them and their families and, in

particular, on their brother, Gleason‟s husband. Gleason‟s mother had died, and

her father was hospitalized at the time of defendant‟s trial.

The prosecution also presented evidence establishing that defendant had

attempted to escape from the county jail. This evidence was contained in tape-

recorded statements made by Cindy Keshmiri, an inmate who worked on the food

line at the county jail. Keshmiri told a sheriff‟s deputy, and later an investigator

from the district attorney‟s office, that defendant had asked her for a metal knife.

Keshmiri told the authorities that she provided defendant with a hard plastic knife,

which was a type used by jail staff but not available to inmates. After Keshmiri

gave her the knife, defendant asked for some aluminum foil. Keshmiri assumed

that defendant wanted the foil in order to make the plastic knife look like a metal

one. Keshmiri gave defendant the foil and asked whether she was planning to try

to escape. In response, defendant commented that the deputies do not carry guns.

Defendant added, “[W]ell, I can always take one of the inmates up to the counter

where the deputies are and ask for the scissors to cut their hair.” Keshmiri

interpreted this comment to mean that defendant intended to hold the scissors to

somebody‟s throat in order to escape. At that point, Keshmiri decided to report

these events. Based upon the information provided by Keshmiri, defendant‟s cell

was searched, but no knife or foil was found. At trial, Keshmiri denied having

been acquainted with defendant and claimed not to recall these statements.

Keshmiri‟s tape-recorded interviews with the deputy and the investigator were

admitted into evidence as prior inconsistent statements. In addition, testimony

was presented demonstrating that hard plastic items, such as the knife Keshmiri

provided to defendant, can be fashioned into a sharp weapon.

In mitigation, the defense presented the testimony of a clinical

psychologist, Dr. Myla Young, who testified that although defendant had an

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average I.Q., Young‟s examination of defendant disclosed evidence of a brain

abnormality and learning disorders. Dr. Young could not identify the cause of the

brain abnormality, which could have been caused by a genetic abnormality,

trauma, or illness. According to Dr. Young, the abnormality affected the left side

of defendant‟s brain, which interfered with her ability to “see the bigger picture,”

to think ahead and plan, and to be able to recognize and change behavior that is

unsuccessful. Dr. Young also diagnosed defendant as having a current and long-

standing depression and bipolar disorder.

Friends and neighbors testified regarding defendant‟s family life while

growing up in a low-income housing project in Philadelphia, and regarding

defendant‟s life in the months leading up to her commission of the crimes.

According to a next-door neighbor from Philadelphia, defendant as a girl

frequently was left in charge of her younger brothers and sisters and on occasion

she and her siblings were locked out of the house. At times, the children had

nothing to eat and defendant had to ask a neighbor for food. Through a common

wall, the neighbor could hear defendant‟s mother beating her. As a child,

defendant was anxious and withdrawn. A cousin who resided with the family for

two years recalled that defendant‟s mother seldom was present, and the cousin saw

defendant‟s father only twice. When defendant‟s mother was home, she beat

defendant and sometimes beat the other children.

At the time she committed the crimes, defendant was residing with her

partner, Jackie, and Jackie‟s three children in an apartment in East Palo Alto.

Defendant had been working as a janitor but became unemployed in the latter half

of 1991. At that time, according to her former employer, her behavior changed —

she was less cheerful, began to gain weight, stayed home, and no longer engaged

in activities in the neighborhood. Defendant attempted to support Jackie and her

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children and often took care of the children. Jackie made frequent financial and

emotional demands on defendant.

A psychiatrist, Dr. George Woods, testified that defendant was genetically

predisposed to depression and had “environmental difficulties,” and that both

conditions contributed to her mental state at the time of the charged offenses.

Defendant reported to Dr. Woods that between the ages of seven and 14 years, she

regularly had been sexually abused by her father. When she was 14 years of age,

she became pregnant with her father‟s child and had an abortion. Defendant and

her younger siblings suffered from parental abuse and neglect, and she took care

of them. In Dr. Woods‟ opinion, defendant at the time she committed the crimes

suffered from profound depression. She experienced increasing economic

pressures and was unable to provide adequately for her family. She felt worthless

and hopeless, and had become withdrawn and isolated.

II. DISCUSSION

A. The Search of Defendant’s Apartment

Defendant contends the trial court erred in denying her motion to suppress

the evidence seized during three separate searches of her home and to suppress her

confessions, which were obtained by exploiting officers‟ observations of items

that had been viewed during the first assertedly unlawful search.

Defendant‟s apartment initially was searched pursuant to a warrant obtained

by the Los Altos Police Department, which was investigating two commercial

burglaries unrelated to the present case. In executing the search warrant, the Los

Altos officers were accompanied by officers from the Palo Alto Police

Department, who were investigating the homicide of Gleason. While inside

defendant‟s apartment, the Palo Alto officers observed (but did not seize) items in

plain view that connected defendant to the Gleason offense. The initial search was

9

suspended and, based upon their observations, the Palo Alto police obtained a

second warrant to search the apartment for evidence connecting defendant to the

homicide of Gleason. During this second search, the police seized evidence

connecting defendant to that killing. In addition, during the interrogation of

defendant, officers confronted her with some of the evidence related to the

Gleason homicide observed in her apartment during the initial search. Eventually,

defendant confessed to killing Gleason and Esparza and to shooting Marks. Based

upon defendant‟s confession, the Redwood City police then obtained a warrant to

search for evidence pertaining to the homicide of Esparza and the shooting of

Marks. During the third search, the Redwood City police seized additional

evidence.

Prior to trial, defendant filed a motion pursuant to Penal Code section

1538.5 to suppress evidence seized during the searches of her home, including

items that belonged to the homicide victims, the gun used in all three shootings,

and other incriminating physical evidence. Defendant also sought to suppress her

confessions, on the ground that they were fruits of the assertedly illegal initial

entry and search.

The trial court denied defendant‟s motion, finding that the initial search

warrant obtained by the Los Altos Police Department was supported by probable

cause and that, even if it were not, the officers had proceeded in good faith. The

trial court further determined that the first search was part of a legitimate

investigation and not merely a pretext to look for evidence of other crimes. The

court determined that the Palo Alto officers who accompanied the Los Altos

officers were present because of their interest in the Gleason homicide, but they

properly limited their activities to observing items in plain view. Consequently,

the trial court found, no illegality tainted the second and third searches or

defendant‟s confessions. Defendant unsuccessfully challenged the court‟s ruling

10

by filing a petition for writ of mandate in the Court of Appeal and unsuccessfully

renewed her motion to suppress the evidence at trial. Evidence seized from

defendant‟s home was admitted at the trial, as were her confessions.

1. Probable cause for issuance of the warrant

Defendant contends the affidavit supporting the initial Los Altos Police

Department search warrant was insufficient for two reasons: (1) it did not

establish a sufficient likelihood that contraband or evidence of the subject crimes

would be found at defendant‟s home; and (2) the information in the affidavit was

too stale to establish probable cause. These arguments lack merit.

In reviewing a search conducted pursuant to a warrant, an appellate court

inquires “whether the magistrate had a substantial basis for concluding a fair

probability existed that a search would uncover wrongdoing.” (People v. Kraft

(2000) 23 Cal.4th 978, 1040, citing Illinois v. Gates (1983) 462 U.S. 213, 238-

239.) “The task of the issuing magistrate is simply to make a practical,

commonsense decision whether, given all the circumstances set forth in the

affidavit before him [or her], including the „veracity‟ and „basis of knowledge‟ of

persons supplying hearsay information, there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” (Illinois v. Gates,

supra, 462 U.S. at p. 238.) The magistrate‟s determination of probable cause is

entitled to deferential review. (People v. Kraft, supra, 23 Cal.4th at p. 1041, citing

Illinois v. Gates, supra, 462 U.S. at p. 236.)

Probable cause sufficient for issuance of a warrant requires a showing that

makes it “ „substantially probable that there is specific property lawfully subject to

seizure presently located in the particular place for which the warrant is sought.‟ ”

(People v. Frank (1985) 38 Cal.3d 711, 744, quoting People v. Cook (1978) 22

Cal.3d 67, 84, fn. 6.) That showing must appear in the affidavit offered in support

11

of the warrant. (People v. Frank, supra, 38 Cal.3d at p. 644.) Defendant urges

that the affidavit was deficient in failing to provide the necessary connection

between each of the two crimes under investigation and the likelihood of finding

evidence in defendant‟s home.

The affidavit in support of the warrant obtained by the Los Altos Police

Department stated the following. Defendant previously had worked as a janitor at

Blackard Designs, located at 289 South San Antonio Road, Los Altos, in Santa

Clara County. In December of 1991, defendant was fired from her job for stealing

checks from offices in which she performed janitorial services. On the night of

January 7, 1992, Blackard Designs was burglarized and a single blank check was

stolen. On January 7 or 8, 1992, a nearby business, NDN Enterprises, located at

283 South San Antonio Road, was burglarized and two blank checks were stolen.

Entry into NDN Enterprises was accomplished by removal of the hinge pins on the

exterior door. On January 10, 1992, Christopher Mladineo attempted to cash the

Blackard Designs check, which had been made out to him in the amount of

$2,000. On March 16, 1992, Mladineo was arrested and told authorities that

defendant had given him the check and asked him to cash it for her because she

lacked proper identification. On March 16, 1992, officers had Mladineo make a

pretextual telephone call to defendant, during which defendant admitted she had

stolen the Blackard Designs check.2 On March 19, 1992, an officer spoke with


2

Defendant notes that the affidavit also states — incorrectly — that, during

the telephone call with Mladineo, defendant admitted she still had a key to the
building at 289 South San Antonio Road. During the telephone call, she admitted
stealing the check, but did not say she had a key or that she had burglarized the
building. She stated that she had performed janitorial work there, that the checks
were “always accessible to me” and that she “just helped myself to [one.]”
Defendant does not, however take the position that the inclusion of false
information rendered the warrant invalid. The transcript of the telephone call,


(footnote continued on next page)

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defendant‟s former employer who reported that, as part of her employment,

defendant had a master key to 289 South San Antonio Road, and it was possible

she had duplicated that key. As of March 20, 1992, the checks stolen from NDN

Enterprises still were outstanding and no attempt had been made to cash them.

The affidavit provided sufficient probable cause to support the belief that

defendant had burglarized Blackard Designs and NDN Enterprises and that

evidence from those crimes — including a key to Blackard Designs and the checks

stolen from NDN Enterprises — could be found at defendant‟s residence. The

affidavit explicitly sets forth strong and specific evidence linking defendant to the

Blackard Designs burglary. Based upon all the facts stated in the affidavit, a

magistrate making a practical, commonsense decision, in light of all the facts set

forth in the affidavit, could conclude with a fair probability that the person who

burglarized Blackard Designs was the same person who burglarized NDN

Enterprises: the two businesses were located in close proximity to each other,

both businesses were burglarized on or about the same date, and in both burglaries

blank checks were stolen.

The facts stated in the affidavit established a fair probability that the police

would find evidence from the burglaries in defendant‟s residence. This court

noted in People v. Gonzalez (1990) 51 Cal.3d 1179, 1206, that “ „[a] number of

California cases have recognized that from the nature of the crimes and the items



(footnote continued from previous page)

containing the correct information, was referenced in and attached to the warrant
application. Consequently, in reviewing the sufficiency of the warrant, we shall
disregard the assertion that defendant admitted she had a key to Blackard Designs.
(See Franks v. Delaware (1978) 438 U.S. 154, 155-156; People v. Bradford
(1997) 15 Cal.4th 1229, 1297.)


13

sought, a magistrate can reasonably conclude that a suspect‟s residence is a logical

place to look for specific incriminating items. [Citations.]‟ (People v. Miller

(1978) 85 Cal.App.3d 194, 204; see also People v. Superior Court (Brown) (1975)

49 Cal.App.3d 160, 167-168.).” When property has been stolen by a defendant

and has not yet been recovered, a fair probability exists that the property will be

found at the defendant‟s home. (See People v. Stout (1967) 66 Cal.2d 184, 192-

193; United States v. Maestas (5th Cir. 1977) 546 F.2d 1177, 1180.) Here,

defendant at one time possessed a key to the Blackard Designs building.

According to defendant‟s employer, defendant had the opportunity to make a copy

of that key. Additionally, the two checks stolen from NDN Enterprises still were

outstanding at the time of the search. As the affiant observed based upon his

training and experience, “subjects who steal checks with the intent to commit

forgeries will maintain possession of those stolen checks until they can be

cashed.” It was reasonable to conclude that defendant‟s residence was the most

likely place to find these items.

Defendant contends there was no substantial evidence indicating that she

possessed a key to Blackard Designs at the time the warrant was obtained. To the

contrary, the affidavit contained circumstantial evidence indicating that such a key

was in her possession: at one time defendant possessed a master key to Blackard

Designs and had the opportunity to duplicate it before her employment there was

terminated. The check was stolen during the month after defendant‟s termination;

she had been in possession of the check and had attempted to have it cashed, and

there was no indication of forced entry in the burglary of Blackard Designs. A key

is the type of item one reasonably could expect a defendant to keep at home. The

showing required in order to establish probable cause is less than a preponderance

of the evidence or even a prima facie case. (Illinois v. Gates, supra, 462 U.S. at

p. 235.) The facts stated in the affidavit are sufficient to establish probable cause

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that defendant duplicated the master key to 289 South San Antonio Road, used it

to gain access to the building following her termination, and continued to keep it

in her home.

In the alternative, defendant contends that the information contained in the

affidavit was too stale to provide probable cause for issuance of the search

warrant, which occurred two months after the alleged burglaries. No bright-line

rule defines the point at which information is considered stale. (People v. Brown

(1985) 166 Cal.App.3d 1166, 1169.) Rather, “the question of staleness depends

on the facts of each case.” (People v. Gibson (2001) 90 Cal.App.4th 371, 380.)

“If circumstances would justify a person of ordinary prudence to conclude that an

activity had continued to the present time, then the passage of time will not render

the information stale.” (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.)

Courts have upheld warrants despite delays between evidence of criminal

activity and the issuance of a warrant, when there is reason to believe that criminal

activity is ongoing or that evidence of criminality remains on the premises. (See,

e.g., People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463 [affidavit of a

fire marshal indicated that three items of property allegedly destroyed in a fire had

been in the defendant‟s continuous control for many months after the fire, and

there was no reason to conclude that the defendant had disposed of such property

during the few days between execution of the affidavit and the last day on which

the property had been seen in his possession]; People v. Superior Court (Brown),

(1975) 49 Cal.App.3d 160, 167 [affidavit established probable cause to believe

stolen items were in the defendant‟s residence one month after a burglary, where

stolen items included credit cards and small antiques, “items which would require

protection from the elements and fortuitous harm”]; United States v. Jacobs (9th

Cir. 1983) 715 F.2d 1343 [affidavit was sufficient to support issuance of a search

warrant for articles of clothing worn during a bank robbery, even though nearly

15

four months had passed between the earliest bank robbery in which the clothing

had been worn and the issuance of the warrant].) In the present case, the checks

from NDN Enterprises still were outstanding two months after the burglary. In

view of the nature of the items sought — the outstanding checks still could be

forged and cashed, and a key to Blackard Designs still could be useful to

defendant — there existed a fair probability that these stolen items remained at

defendant‟s residence despite the passage of time.

2. Execution of the search warrant

Defendant maintains that even if the search warrant obtained by the Los

Altos police was valid, the initial search of her home was conducted in an

unlawful manner because the Los Altos Police Department delegated execution of

the warrant to members of the Palo Alto Police Department, who used the warrant

merely as a pretext to gain access to her apartment in order to search for evidence

pertaining to the homicides. Defendant contends that the two subsequent searches

as well as her confessions were tainted by the illegality of the first search.

On March 20, 1992, detectives from the Palo Alto Police Department held

an interagency meeting with law enforcement personnel from several jurisdictions,

including Los Altos, Redwood City, and San Carlos. The purpose of the meeting

was to coordinate the investigations of several crimes the authorities believed

defendant had committed. Later that same day, Palo Alto officers accompanied

the Los Altos officers when the latter officers executed the Los Altos warrant at

defendant‟s residence.

The warrant authorized the officers to search for keys, checks in the name

of NDN Enterprises, and evidence of occupancy and control of the apartment. Los

Altos Police Detective Maculay and Palo Alto Police Sergeant Zook testified that

the officers entered defendant‟s residence for the purpose of serving the Los Altos

16

warrant. Sergeant Zook and Palo Alto Police Detective Hennessy accompanied

the Los Altos officers on their search in order to ensure that the latter officers

would not overlook, damage, or interfere with any evidence related to the Gleason

homicide. At Sergeant Zook‟s request, the officers conducted a plain view search

of the residence. During the search, Sergeant Zook and Detective Hennessy

observed in plain view items of evidence related to the Gleason homicide. Upon

making these observations, Sergeant Zook requested that the Los Altos officers

suspend their search so that the Palo Alto police could seek their own search

warrant. No items of evidence were seized from defendant‟s apartment at that

time.

In the meantime, Palo Alto and Redwood City police officers questioned

defendant concerning the Gleason homicide. Among other things, the officers

confronted her with their observations in her apartment of the items of evidence

related to the Gleason homicide. Defendant eventually confessed to killing

Gleason. Hours later, she confessed to killing Esparza and to shooting Marks.

At approximately 1:38 a.m. on March 21, 1992, Palo Alto police officers

obtained a warrant authorizing them to search defendant‟s residence for evidence

related to the Gleason homicide. The affidavit supporting issuance of that warrant

included the information that a pager belonging to Gleason and a key to the

building in which she was killed had been observed during the earlier search.

While conducting the second search, Palo Alto police officers seized the pager, the

key, Gleason‟s purse, a metal petty cash box missing from Gleason‟s office, a

hand gun, and four spent bullet casings. Between 4:00 a.m. and 5:00 a.m. on the

same day, Los Altos police officers completed their search of defendant‟s

residence pursuant to the warrant they had obtained, but did not seize any

property.

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At approximately 7:00 a.m. on that same day, Redwood City police officers

executed their own warrant authorizing them to search defendant‟s residence for

evidence related to the homicide of Esparza and the non-fatal shooting of Marks.

The affidavit submitted in support of the issuance of that warrant did not contain

any reference to the earlier searches conducted by the Los Altos or Palo Alto

Police Departments, but did refer to defendant‟s confession. Redwood City police

officers seized several items of evidence related to the shooting of Marks,

including keys and medical supplies.

In ruling on a motion to suppress the fruits of an allegedly unlawful search,

the trial court “sits as finder of fact with the power to judge credibility, resolve

conflicts, weigh evidence, and draw inferences.” (People v. Laiwa (1983) 34

Cal.3d 711, 718.) When reviewing a trial court‟s denial of a motion to suppress

evidence obtained pursuant to a warrant, “[w]e defer to the trial court‟s factual

findings, express or implied, where supported by substantial evidence. In

determining whether, on the facts so found, the search or seizure was reasonable

under the Fourth Amendment, we exercise our independent judgment.

[Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Weaver

(2001) 26 Cal.4th 876, 924.)

The federal Constitution controls in deciding issues pertaining to the

exclusion of evidence under the Fourth Amendment. (In re Lance W. (1985) 37

Cal.3d 873, 890, 896.) “The warrant clause of the Fourth Amendment expressly

provides that no warrant may issue except those „particularly describing the place

to be searched, and the persons or things to be seized.‟ [Citations.]” (People v.

Bradford, supra, 15 Cal.4th at p. 1291.)

Officers executing a warrant may seize items of evidence or contraband not

listed in the warrant but observed in plain view. “The plain-view doctrine permits,

in the course of a search authorized by a search warrant, the seizure of an item not

18

listed in the warrant, if the police lawfully are in a position from which they view

the item, if its incriminating character is immediately apparent, and if the officers

have a lawful right of access to the object.” (People v. Bradford, supra, 15 Cal.4th

at pp. 1293-1294.) Thus, “[w]here an officer has a valid warrant to search for one

item but merely a suspicion, not amounting to probable cause, concerning a

second item, that second item is not immunized from seizure if found during a

lawful search for the first item.” (Id. at p. 1294.)

In the present case, officers from the Los Altos and Palo Alto Police

Departments lawfully entered defendant‟s residence to execute the warrant

obtained by the Los Altos Police Department officers. In the course of surveying

the objects in plain view in the common areas of the apartment, the officers

observed two items of evidence relating to the Gleason homicide: a key clearly

labeled with the address of the office building in which Gleason was killed, and a

black pager with a sticker bearing the victim‟s pager number. Without seizing any

items of evidence, the officers suspended the search and sought a second warrant.

Therefore, in their application for the second search warrant, the officers properly

could recite what they had observed in plain view.

The search initiated by the Los Altos police officers was not rendered

invalid by the circumstance that Palo Alto officers accompanied them in

anticipation of locating evidence related to the Gleason homicide. Officers from

another jurisdiction may accompany officers conducting a search pursuant to a

warrant without tainting the evidence (pertaining to crimes that are the subject of

their own investigation) uncovered in the process, even when the officers lack

probable cause to support issuance of their own search warrant. (United States v.

Van Dreel (7th Cir. 1998) 155 F.3d 902, 903-905 [drug task force officers

properly accompanied state officers on a search for evidence of hunting-law

violations (conducted pursuant to a warrant)]; United States v. Ewain (9th Cir.

19

1996) 88 F.3d 689, 693 [postal inspector properly accompanied officers on a

search conducted pursuant to a warrant]; United States v. Bonds (6th Cir. 1993) 12

F.3d 540, 571 [federal agent accompanied state agents acting under a warrant].)

Additionally, the discovery of evidence unrelated to the evidence sought in a

warrant need not be inadvertent. “If a police officer has a valid warrant for one

item, and „fully expects‟ to find another, based upon a „suspicion . . . whether or

not it amounts to probable cause,‟ the suspicion or expectation does not defeat the

lawfulness of the seizure.” (United States v. Ewain, supra, 88 F.3d at p. 693;

quoting Horton v. California (1990) 496 U.S. 128, 138-139; accord, People v.

Bradford, supra, 15 Cal.4th at p. 1294 [discovery of evidence of a crime in plain

view need not be inadvertent].)

Defendant acknowledges these principles, but maintains the search violated

her Fourth Amendment rights because the Los Altos police officers obtained a

warrant to search for items relating to two burglaries when they actually intended

to permit officers from another jurisdiction to conduct a general search for

evidence of other crimes. The trial court found that the Los Altos officers were, at

the time, conducting a legitimate investigation into the two commercial burglaries

committed within their jurisdiction and that they did not seek the warrant related

to those burglaries merely as a pretext to facilitate a general search for evidence

related to the homicides.

We uphold a trial court‟s credibility determinations and factual findings on

appeal if supported by substantial evidence. (People v. Loewen (1983) 35 Cal.3d

117, 123.) Detective Ronald Barfield of the Los Altos Police Department, who

testified at the hearing, described his investigation into the two burglaries, which

included arranging the telephone call between Mladineo and defendant intended to

obtain an admission of her involvement in one of the burglaries. The telephone

call took place on March 16, 1992, and the officers obtained the warrant on the

20

morning of March 20, 1992. Substantial evidence supports the trial court‟s

findings that the Los Altos officers were conducting a legitimate investigation into

the two commercial burglaries committed in their jurisdiction.

Even assuming the officers who conducted the initial search hoped to find

evidence of other offenses, their subjective state of mind would not render their

conduct unlawful. Courts must examine the lawfulness of a search under a

standard of objective reasonableness without regard to the underlying intent or

motivation of the officers involved. (Scott v. United States (1978) 436 U.S.

128, 137-138.) The existence of an ulterior motivation does not invalidate an

officer‟s legal justification to conduct a search. (Whren v. United States (1996)
517 U.S. 806; 813; People v. Woods (1999) 21 Cal.4th 668, 678-680.) “That

the . . . officer may have hoped to find evidence [not listed in the warrant] is

irrelevant to the Fourth Amendment analysis under Whren, because once probable

cause exists, and a valid warrant has been issued, the officer‟s subjective intent in

conducting the search is irrelevant.” (United States v. Van Dreel, supra, 155 F.3d

at p. 905.) The court simply asks “whether the police confined their search to

what was permitted by the search warrant.” (United States v. Ewain, supra, 88

F.3d at p. 694.) In the present case, the police did not exceed the scope of the

search authorized by the warrant, and they observed Gleason‟s property in plain

view in defendant‟s home. These observations were lawful because the presence

of the officers at the location where the observations were made was lawful,

regardless of the officers‟ motivations.

B. Admissibility of Defendant’s Confessions

Defendant contends the trial court erred in denying her motion to suppress

her confessions to the murders of Caroline Gleason and Victor Esparza on the

ground that her statements were involuntary. At approximately 5:15 p.m. on

21

March 20, 1992, defendant was arrested at her home in San Mateo County and

taken to the Redwood City Police Department. Between approximately 7:55 p.m.

and 3:50 a.m., defendant was separately interrogated by the Palo Alto, Redwood

City, and San Carlos Police Departments. During these three interviews,

defendant confessed to the murder of Caroline Gleason, the burglary and

attempted murder of Dr. Marks, and the murder of Victor Esparza.

The trial court denied defendant‟s motion to exclude her statements to the

police, concluding they were voluntarily made. The trial court found that no

implied promises were made to defendant and characterized the interviews as “a

discussion about sleeping better, getting something off your chest or weight off

your shoulders.” For the reasons discussed below, we conclude that the trial court

did not err in denying defendant‟s motion to suppress her confessions.

1. The Murder of Caroline Gleason

Defendant asserts that the police officers persuaded defendant that she

would receive lenient treatment if she confessed to murdering Gleason. An

involuntary confession may not be introduced into evidence at trial. (Lego v.

Twomey (1972) 404 U.S. 477, 483.) The prosecution has the burden of

establishing by a preponderance of the evidence that a defendant‟s confession was

voluntarily made. (Id. at p. 489; People v. Williams (1997) 16 Cal.4th 635, 659.)

In determining whether a confession was voluntary, “ „[t]he question is whether

defendant‟s choice to confess was not “essentially free” because his [or her] will

was overborne.‟ ” (People v. Massie (1998) 19 Cal.4th 550, 576.) Whether the

confession was voluntary depends upon the totality of the circumstances.

(Withrow v. Williams (1993) 507 U.S. 680, 693-694; People v. Massie, supra, 19

Cal.4th at p. 576.) “ „On appeal, the trial court‟s findings as to the circumstances

surrounding the confession are upheld if supported by substantial evidence, but the

22

trial court‟s finding as to the voluntariness of the confession is subject to

independent review.‟ ” (People v. Holloway (2004) 33 Cal.4th 96, 114.)

During the initial interview, Palo Alto Police Detective John Lindsay and

Redwood City Police Sergeant Jon Sherman interrogated defendant for

approximately two and one-half hours. After Lindsay provided defendant with

admonitions required by Miranda v. Arizona (1966) 384 U.S. 436, defendant

agreed to speak with the officers. Lindsay began by informing defendant that she

had been arrested pursuant to a warrant related to a Los Altos burglary, but that he

also wanted to speak with her concerning her possible involvement in a homicide

committed at 777 California Avenue in Palo Alto. Later, Sergeant Sherman told

defendant that if she cooperated during the interview, the officers “would try to

explain this whole thing with, with Los Altos P.D. as [best] we can.” He

continued: “I have no control over that. I‟m in Redwood City here. Um, and, and

I don‟t know what entailed um, in that case involving you in the burglary. I wish I

could so I could explain it to you more fully. Uh, so that you know exactly where

your [sic] stand is (unintelligible). I would hope that you would try to push that

away so that we could get through with what we‟re doing right now. Can you do

that for us?” Defendant replied: “Yeah. I guess so.” Later during the interview,

the officers strategically confronted defendant with items recovered from her

residence such as the key to the building where Gleason‟s body was found, and

Gleason‟s pager. Sergeant Sherman also informed defendant that defendant‟s

neighbor had called defendant on Gleason‟s pager number, and that a video

surveillance camera revealed that she had been present at the 7-Eleven

convenience store where the victim‟s ATM card was used. Defendant denied

involvement in the Gleason homicide.

Detective Lindsay then told defendant that “what happened out there at

777 California was probably an accident” and that there could be mitigating

23

circumstances: “What if she scared you? She confronted you. Or maybe there

was someone else with you.” Lindsay continued: “It‟s like a cancer. And what

you‟ve gotta do is to go out and purge yourself of that. You‟ve got to get that off

your shoulders. Not just for you but, for Jackie, for those three kids. You‟ve got

an incredible weight on your shoulders right now. An incredible weight that

you‟ve been carrying around for quite some time. And it‟s time.” Soon after,

defendant confessed to the burglary of the premises at 777 California Avenue and

to Gleason‟s murder.

“ „Once a suspect has been properly advised of his [or her] rights, he [or

she] may be questioned freely so long as the questioner does not threaten harm or

falsely promise benefits. Questioning may include exchanges of information,

summaries of evidence, outline of theories of events, confrontation with

contradictory facts, even debate between police and suspect. . . . Yet in carrying

out their interrogations the police must avoid threats of punishment for the

suspect‟s failure to admit or confess particular facts and must avoid false promises

of leniency as a reward for admission or confession. . . .‟ [Citation.]” (People v.

Holloway, supra, 33 Cal.4th at p. 115.)

The foregoing statements by Sergeant Sherman demonstrate that

defendant‟s confession to the murder of Gleason was not prompted by any express

or implied promise of leniency. First, the officer‟s statement that he would help

defendant in explaining this “whole thing” to the Los Altos police did not

constitute a promise of leniency when considered in the context both of

defendant‟s prior questions as to why she was arrested and Sherman‟s subsequent

disclaimer of any control over (or information concerning) the Los Altos burglary

investigation. In this context, Sergeant Sherman simply stated that he would

attempt to obtain more information pertaining to the Los Altos burglary in order to

assist defendant in determining her status with respect to that crime.

24

Second, we conclude that defendant‟s confession was not prompted by

Sergeant Sherman‟s comments. Defendant confessed approximately one hour

after his comments were made. During the interview, defendant was confronted

with incriminating evidence that had been recovered at defendant‟s residence as

well as other information linking her to the murder of Gleason, which apparently

prompted her to confess to this crime.

Defendant also contends that Detective Lindsay‟s assurances that the police

merely were attempting to understand defendant‟s motivation in committing the

crimes impermissibly coerced her to confess. To the contrary, Detective

Lindsay‟s suggestions that the Gleason homicide might have been an accident, a

self-defensive reaction, or the product of fear, were not coercive; they merely

suggested possible explanations of the events and offered defendant an

opportunity to provide the details of the crime. This tactic is permissible. (People

v. Holloway, supra, 33 Cal.4th at p. 115.) Moreover, any benefit to defendant that

reasonably could be inferred from the substance of Detective Lindsay‟s remarks

was “ „ “merely that which flows naturally from a truthful and honest course of

conduct,” ‟ ” because the particular circumstances of a homicide can reduce the

degree of culpability, and thus minimize the gravity of the homicide or constitute

mitigating factors in the ultimate decision as to the appropriate penalty. (Ibid.)

Defendant‟s confession to the Gleason homicide was not coerced by threats

or false promises, but was given freely and voluntarily.

2. The Murder of Victor Esparza

Defendant alleges that her confession to the murder of Victor Esparza

should have been suppressed because it was not made freely and voluntarily, but

instead was induced by (1) misleading statements concerning the extent of

defendant‟s exposure to criminal liability, (2) improper promises of leniency,

25

(3) her unduly prolonged interrogation, and (4) improper appeals to her religious

convictions. Viewed under the totality of the circumstances, defendant‟s

confession was the product of her free will.

As an initial matter, defendant urges that deceptive comments made by the

officers at the conclusion of the second interview relating to the nature of the

charges and the potential punishment facing defendant coerced her into

subsequently confessing to the murder of Esparza. The second interview was

conducted from 11:42 p.m. to 12:52 a.m. by Sergeant Sherman and Detective

Steve Blanc of the Redwood City Police Department. During this interview

defendant promptly confessed to shooting Dr. Marks and to the burglary of the

premises at 810 Brewster Avenue in Redwood City. Defendant does not challenge

the admissibility of this confession. By the end of the interview, however,

Sergeant Sherman shifted the questioning to the subject of the Esparza homicide,

informing defendant that “a person was shot and killed . . . late at night” in San

Carlos “[w]hen the building was unoccupied.” Sherman urged defendant to

confess to that crime and pointed out that “[a]t this point, to us you have nothing

else to lose” and that her admission to this homicide “wouldn‟t make any

difference.” He continued: “I want you to pretty much purge yourself of all these

bad things that you‟ve done, so at least you can start again.”

Defendant claims that Sherman‟s statement that admitting she murdered

Esparza “wouldn‟t make any difference” was deceptive, because a prosecutor

more likely would seek — and a jury more likely would impose — a death

sentence if a defendant admitted to committing two murders rather than a single

murder. The use of deceptive statements during an interrogation, however, does

not invalidate a confession unless the deception is “ „ “of a type reasonably likely

to procure an untrue statement.” ‟ ” (People v. Jones (1998) 17 Cal.4th 279, 299;

People v. Thompson (1990) 50 Cal.3d 134, 167.) Considered in this context, the

26

gist of Sergeant Sherman‟s comments was that, in view of the overwhelming

evidence against defendant, her denial of participation in the Esparza homicide

was unlikely to alter the outcome of the case against her. Moreover, when law

enforcement officers describe the moral or psychological advantages to the

accused of telling the truth, no implication of leniency or favorable treatment at

the hands of the authorities arises. (People v. Nelson (1964) 224 Cal.App.2d 238,

251.) Here, Sergeant Sherman focused on the benefit that defendant reasonably

could expect from “purging [her]self” — namely, psychological and moral relief.

Furthermore, we conclude that Sergeant Sherman‟s comments did not

affect defendant‟s decision to confess to the murder of Esparza, because she

maintained her innocence during the remainder of the second interview and,

during the third interview, revealed that she already was aware that confessing to

an additional murder would increase the severity of the punishment: “You know,

yeah, I‟m quite sure that it might come down harder or what have you, especially

this particular case here.” The comments made by Sergeant Sherman during the

second interview were not unduly coercive and did not amount to a promise

affecting the reliability of the subsequent confession, and there is no indication

that defendant relied upon those comments in deciding to confess.

The third and final interview was conducted by Detective Steve Jackson of

the San Carlos Police Department, Sergeant Sherman of the Redwood City Police

Department, and Detective Lindsay of the Palo Alto Police Department. The

interview continued from 1:25 a.m. to 4:03 a.m., focusing upon the homicide of

Esparza and the burglary committed at 1187 Industrial Avenue in San Carlos. In

initiating the interview, the officers confronted defendant with various similarities

between the San Carlos homicide and the crimes to which she had confessed

earlier. The officers pointed out that the same gun was used in all three shootings,

that defendant previously had worked as a janitor in the buildings in which the

27

killings occurred, and that the perpetrator had entered the building on Industrial

Avenue through the same door defendant had used when she worked there as a

janitor. Defendant acknowledged that “everything points to me,” but refused to

accept responsibility in the San Carlos case. Detective Sherman then explained

that he wanted to present a package to the district attorney in which he would be

able to say “that in all cases that you have been charged with, all the cases you‟ve

been involved with, that you helped and assisted the police in their investigation.”

When asked whether she was not telling the truth because she sought to avoid a

harsher penalty, defendant responded: “Okay just depends on the judge and DA

and how are they going to prosecute it. You know, yeah, I‟m quite sure that it

might come down harder or what have you, especially this particular case here. ”

Sergeant Sherman then introduced the possibility that the crime had been

an accident, and he urged without success that defendant confess. Detective

Jackson also suggested that perhaps defendant “bumped” into the victim, became

frightened, and shot him as a result. Detective Lindsay then intervened, telling

defendant that she was “looking at special circumstances” and that refusing to

discuss the San Carlos incident would work against her. Defendant replied she

was aware of that and would have to take her chances. Lindsay proceeded: “I

think that you‟d be hard pressed to find a public defender or a defense attorney

who could look at the similarity in style, the exact same gun, the exact same

bullets, and not say Celeste, if I‟m going to represent you, I need to at least know

if this really did happen, the one in San Carlos.”

Lindsay then made the following statements, which ultimately prompted

defendant‟s confession: “You shot that janitor in San Carlos, and we know you

shot that janitor in San Carlos, and God Bless you, you can sit here and you can

tell me that you didn‟t, there‟s someone up above, bigger than both of us looking

down saying Celeste, you know that you shot that person in San Carlos and its

28

time to purge it all. It is like a cancer that is eating away at you. You felt good, I

know you felt good when you told us what really happened in Palo Alto and what

really happened in Redwood City, it was like a 50 [pound] weight off your

shoulder.” Lindsay continued: “Someone up above is looking at us, and I‟ll tell

you what. If that big guy up there or gal is looking at us and he said hey Lindsay,

you better not be selling her a lot of Bullshit, cause you won‟t sleep well tonight.

That‟s what the big guy is going to say to me. He‟s telling me be honest with her,

be straight up with her. Look her in the eyes and be straight up because if you are

not, then whoever that big person is up in the sky is looking at you going, how can

you look at these two guys, and how can you tell them that that didn‟t happen in

San Carlos. You can‟t do it.” A few moments later, defendant confessed to the

murder of Victor Esparza and later explained that it had been difficult for her to

confess, because the victim did not “stumble upon” her as Detective Jackson

suggested, but rather defendant “just turned and shot him.”

Defendant contends that during this interview the police improperly

attempted to convince her that she would receive more lenient treatment if she

confessed. Defendant contends that promises of leniency were made initially,

when Detective Sherman suggested it would be beneficial to defendant if the

officers could deliver to the district attorney an “entire package” encompassing all

the crimes and inform the prosecution that defendant fully cooperated with the

police. Defendant contends additional promises of leniency were made when the

officers suggested that they merely were interested in understanding defendant‟s

motivations in committing the crimes and that the Esparza homicide may have

been an accident because she may have “snapped” or been frightened.

The statements made by the officers did not imply that by cooperating and

relating what actually happened, defendant might not be charged with, prosecuted

for, or convicted of the murder of Esparza. The interviewing officers did not

29

suggest they could influence the decisions of the district attorney, but simply

informed defendant that full cooperation might be beneficial in an unspecified

way. Indeed, defendant understood that punishment decisions were not within the

control of the police officers. As noted above, she said it “just depends on the

judge and DA and how are they going to prosecute it.” Under these

circumstances, Detective Sherman‟s statement that he would inform the district

attorney that defendant fully cooperated with the police investigation did not

constitute a promise of leniency and should not be viewed as a motivating factor in

defendant‟s decision to confess. (See People v. Jones, supra, 17 Cal.4th at

p. 298.)

We reject the contention that Detective Lindsay‟s comments relating to the

prospect of special circumstances, and his suggestion that defendant‟s denial of

responsibility for the Esparza homicide would worsen her position, represented an

implied promise of leniency. The possibility that special circumstances would be

alleged was realistic, because defendant already had confessed to committing a

murder during the commission of a burglary. No constitutional principle forbids

the suggestion by authorities that it is worse for a defendant to lie in light of

overwhelming incriminating evidence. “ „[M]ere advice or exhortation by the

police that it would be better for the accused to tell the truth when unaccompanied

by either a threat or a promise does not render a subsequent confession

involuntary.‟ ” (People v. Howard (1988) 44 Cal.3d 375, 398; People v. Higareda

(1994) 24 Cal.App.4th 1399, 1409.) Here, the officers did not make statements

that were coercive; they did not threaten defendant and did not specify how her

continued denial of criminal involvement could jeopardize her case.

Defendant‟s contention that the police officers engaged in improper

conjecture concerning the accidental nature of the killing also must be rejected.

As noted in our review of the claims related to defendant‟s confession to the

30

murder of Gleason, the police properly may confront, and even debate with, a

suspect regarding theories based on the circumstances of the crimes and even

debate with the suspect the merits of those theories. (People v. Holloway,

supra, 33 Cal.4th at p. 115.)

Defendant‟s contention that Detective Lindsay improperly associated the

function of the police with that of defense counsel, by telling defendant that the

officers merely were attempting to obtain the same information that defense

counsel would need, is not supported by the record. In essence, Detective Lindsay

remarked that eventually defendant would have to tell her lawyer the truth. He did

not suggest that defendant‟s lawyer and the district attorney would share

information or use her testimony for the same purpose.

Defendant further contends that the period over which the series of

interrogations was conducted was so lengthy that her will was overborne. A

police interrogation that is prolonged may be coercive under some circumstances.

(See Mincey v. Arizona (1978) 437 U.S. 385, 398-399 [the defendant‟s statements

to the police were not the product of a free and rational choice under the

circumstances, where he was questioned for more than three hours, had been

seriously wounded several hours earlier, was confused and unable to think clearly,

and stated repeatedly that he did not wish to speak without having a lawyer

present; Spano v. New York (1959) 360 U.S. 315, 320-324 (confession made by

young, emotionally unstable man after eight-hour interrogation, continued despite

his requests to speak to his attorney and his repeated refusals to answer questions,

was involuntary].)

In the present case, although the questioning continued over the course of

eight hours, it does not appear that defendant‟s will to resist was overborne. The

questioning was not aggressive or accusatory. Instead, the interviewing officers

chose to build rapport with defendant and gain her trust in order to persuade her to

31

tell the truth. There is no indication that defendant was induced by fear to make a

statement. She appeared lucid and aware throughout the entire interrogation

session and never asked the police officers to terminate the interview. Defendant

spoke with confidence, and her answers were coherent. Moreover, the police

repeatedly offered defendant food and beverages, provided her with four separate

breaks, and allowed her to meet privately with her partner, Jackie. We conclude

that under the totality of the circumstances, the length of the interrogation did not

render defendant‟s confessions involuntary.

Finally, defendant asserts that her confession to the murder of Victor

Esparza was obtained through improper appeals to religious belief, because during

the interrogation Detective Lindsay stated “there‟s someone up above, bigger than

both of us looking down saying Celeste, you know that you shot that person in San

Carlos and it‟s time to purge it all.” “[T]he tactic of exploiting a suspect‟s

religious anxieties has been justly condemned.” (People v. Kelly (1990) 51 Cal.3d

931, 953; see People v. Adams (1983) 143 Cal.App.3d 970, 989 [confession

suppressed when the interrogating officer, who attended the same church as the

defendant, made repeated references to the defendant‟s sin, guilt, apostasy, and

“ „reprobate mind‟ ”].) When police comments are not “calculated to exploit a

particular psychological vulnerability of [the] defendant,” however, and “no acute

religious anxiety or sense of guilt was apparent from prior questioning,” appeals to

religion are unlikely to be a motivating cause of a defendant‟s subsequent

confession. (People v. Kelly, supra, 51 Cal.3d at p. 953.)

Here, Detective Lindsay‟s remarks were not calculated to exploit anxieties

or vulnerabilities that might have arisen had defendant held strong religious

beliefs. Religion was not discussed in prior questioning, and defendant stated no

particular religious affiliation. Moreover, although the interrogation was lengthy,

defendant exhibited no sign of being in a particularly fragile mental state that

32

would render her vulnerable to manipulation by reference to religion. The

substance of Detective Lindsay‟s comments sought to evoke defendant‟s better

nature by persuading her that “purg[ing] it all” was morally the right thing to do

and would provide her with psychological relief. Lindsay was effective in

awakening defendant‟s sense of guilt; prior to confessing, she asked whether the

detective was a counselor before joining the police force and apologized for not

telling the truth earlier. After confessing, defendant volunteered that she had

maintained her silence because the murder of Esparza was not an accident, as the

police officers suggested, but an intentional act. “The compulsion to confess

wrong has deep psychological roots, and while confession may bring legal

disabilities it also brings great psychological relief.” (People v. Andersen (1980)

101 Cal.App.3d 563, 583-584, fn. omitted.) Detective Lindsay did not coerce

defendant into confessing through an impermissible appeal to her religious beliefs.

Because the record does not reflect coercive tactics, the trial court did not err in

denying defendant‟s motion to suppress that evidence.

C. Grand Jury Venire

Defendant contends that the indictment must be quashed and her

convictions reversed because she was indicted by a grand jury from which persons

70 years of age and older were excluded systematically. She contends the

exclusion of such persons violated her right to a grand jury drawn from a

representative cross-section of the community under the Sixth Amendment to the

federal Constitution and article I, section 16 of the California Constitution. She

also contends the San Mateo County Jury Commissioner‟s Office failed to follow

state law in selecting the grand jury and thus violated her right to due process of

law under the federal Constitution. (Hicks v. Oklahoma (1980) 447 U.S. 343,

346.)

33

There is no exemption from jury service for elderly persons. A prospective

juror may be excused from such service based upon undue hardship resulting

from, among other causes, “a physical or mental disability or impairment, not

affecting that person‟s competence to act as a juror, that would expose the

potential juror to undue risk of mental or physical harm.” (Cal. Rules of Court,

rule 2.1008(d)(5).) A court, however, may not require a person 70 years of age or

older claiming such disability to furnish verification of his or her condition.

(Ibid.)

At a hearing held in the trial court, however, it was established that two of

the deputy clerks in the San Mateo Superior Court consistently granted

exemptions from jury service to all persons 70 years of age and older, whether or

not they requested exemption. Other deputies did the same on occasion or

exercised greater leniency in granting exemptions to those 70 years of age or older

as compared with other persons. In a random sample taken of the jurors

summoned during a six-week period in May and June of 1993, persons 70 years of

age or older represented only 1.13 percent of the venire, although in the 1990

census, persons over the age of 70 years represented 10.42 percent of the

population. At the hearing, defendant‟s experts testified that persons who were in

this older age group at the time of defendant‟s trial shared distinctive outlooks and

attitudes based not only upon their chronological age but also upon their common

experience of having lived through World War II and the Great Depression.

A violation of the requirement that a jury be drawn from a fair cross-section

of the population is established by showing “(1) that the group alleged to be

excluded is a „distinctive‟ group in the community; (2) that the representation of

this group in the venires from which juries are selected is not fair and reasonable

in relation to the number of such persons in the community; and (3) that this

underrepresentation is due to systematic exclusion of the group in the selection

34

process.” (Duren v. Missouri (1979) 439 U.S. 357, 364.) As defendant concedes.

neither this court nor the United States Supreme Court has held that the Sixth

Amendment right to a jury drawn from a fair cross-section of the community,

applicable to a petit jury, also applies to a state grand jury convened for the

purpose of considering issuance of an indictment. (But see Peters v. Kiff (1972)
407 U.S. 493, 503-504 [if a state chooses to use a grand jury, due process imposes

limitations on the composition of that jury and prohibits systematic exclusion

based upon race].) In addition, defendant has failed to cite any California case

holding that a category composed of older persons is a distinctive group for

purposes of fair-cross-section analysis or that members of a particular age

category constitute a distinctive group because they experienced certain historical

events in common.3 We need not resolve these issues, however, because, even

assuming the grand jury that indicted defendant was selected in violation of state

law or constitutional fair-cross-section requirements, that circumstance would not

require reversal of her conviction. (See People v. Corona (1989) 211 Cal.App.3d

529 (Corona).)

Generally, a conviction will not be reversed because of errors or

irregularities that occurred at a preliminary hearing or grand jury proceeding,

absent a showing that the asserted errors “deprived [the defendant] of a fair trial or

otherwise resulted in actual prejudice relating to [the] conviction.” (People v.

Towler (1982) 31 Cal.3d 105, 123 [purported irregularities in grand jury


3

In a case involving a challenge to San Mateo County jury selection

practices based upon the same hearing underlying defendant‟s claim in the present
case, the court in People v. McCoy (1995) 40 Cal.App.4th 778, 783-786, upheld
the trial court‟s determination that the defendant had not established that persons
70 years of age and older were a distinctive group.


35

proceedings, including the admission of hearsay and improper comments by the

prosecutor, did not require reversal]; see People v. Stewart (2004) 33 Cal.4th 425,

461-463 [asserted misconduct of the prosecutor at the preliminary hearing did not

require reversal of conviction absent a showing that the trial was unfair]; People v.

Pompa-Ortiz (1980) 27 Cal.3d 519, 522 [violation of a defendant‟s right to a

public preliminary hearing did not compel reversal of his conviction absent a

showing that the violation “in some way prejudiced defendant at his subsequent

trial”]; Corona, supra, 211 Cal.App.3d at p. 535 [claim that the defendant‟s right

to a grand jury selected from a fair cross-section of the community had been

violated did not require reversal absent prejudice at trial]; see also Coleman v.

Alabama (1970) 399 U.S. 1, 11 [denial of the defendant‟s right to counsel at the

preliminary hearing was subject to harmless error review].)

The United States Supreme Court, in creating an exception to the foregoing

general rule, has held that purposeful racial discrimination in the selection of

grand jurors, in violation of the constitutional guarantee of equal protection,

requires reversal of the ensuing conviction without a showing of prejudice.

(Vasquez v. Hillary (1986) 474 U.S. 254, 260-264; Rose v. Mitchell (1979) 443

U.S. 545; 556; Strauder v. West Virginia (1880) 100 U.S. 303, 308.) The high

court has included among the rare forms of constitutional errors held not to be

subject to harmless error analysis the “unlawful exclusion of members of the

defendant‟s race from a grand jury.” (Arizona v. Fulminante (1991) 499 U.S. 279,

310.) That court, however, has not extended the requirement of automatic reversal

to other defects in the grand jury process. (See, e.g., United States v. Mechanik

(1986) 475 U.S. 66, 71-72 [violation of the rule prohibiting a grand jury witness

from being present during other portions of the grand jury proceedings does not

require automatic reversal]; Hobby v. United States (1984) 468 U.S. 339, 344-350

36

[discrimination in selection of federal grand jury foreman does not require

automatic reversal of defendant‟s conviction].)

The rationale for reversing a conviction without consideration of prejudice

in instances of racial discrimination is that “intentional discrimination in the

selection of grand jurors is a grave constitutional trespass, possible only under

color of state authority, and wholly within the power of the State to prevent. Thus,

the remedy we have embraced for over a century — the only effective remedy for

this violation — is not disproportionate to the evil it seeks to deter.” (Vasquez v.

Hillary, supra, 474 U.S. at p. 262.) In contrast to the deliberate racial

discrimination addressed in Vasquez v. Hillary, supra, 474 U.S. at page 262, the

unwarranted exemption of some persons over the age of 70 years as a result of

errors committed by court clerks is not the type of “evil” that requires or justifies

the extreme remedy of automatic reversal of a criminal conviction obtained as the

result of a fair trial. Indeed, in the present case the superior court‟s practices

regarding excusal of jurors over 70 years of age were discontinued shortly before

the hearing.4

Consequently, we agree with the Court of Appeal‟s decision in Corona that

an asserted violation of the right to a grand jury drawn from a fair cross-section of

the community does not require reversal of a conviction obtained after a fair trial,


4

Contrary to defendant‟s contention, our conclusion does not leave

defendants without any remedy for improper or unconstitutional practices in the
selection of grand juries. They may pursue pretrial remedies, as defendant did in
the present case. She challenged the trial court‟s ruling in the state Court of
Appeal, which denied her petition for writ of prohibition and mandate. We denied
review of that appellate ruling. Defendant raised the same issue in a pretrial
petition for writ of habeas corpus filed in the federal district court, which she
subsequently withdrew.


37

absent a showing of prejudice. (Corona, supra, 211 Cal.App.3d at p. 535.)

Defendant does not attempt to demonstrate that the purported constitutional error

in selecting the grand jury in her case was prejudicial, and no prejudice is apparent

from the record.

D. Jurisdiction of Grand Jury

Defendant contends that the grand jury lacked jurisdiction to indict her

because, at the time it returned the indictment, proceedings on a previously filed

complaint on the same charges had been stayed. We disagree.

The prosecution originally filed, in the municipal court in San Mateo

County, a complaint against defendant alleging 10 counts, including the two

murders and the attempted murder of which she was convicted in the present case.

Defendant pleaded not guilty to all counts and filed a demurrer alleging San Mateo

County was not the proper venue for trial of the offenses committed at the

workplace of Caroline Gleason, located in Santa Clara County. After the

municipal court sustained the demurrer with leave to amend, the prosecution filed

an amended complaint alleging that acts preparatory to the commission of the

Santa Clara County crimes occurred in San Mateo County. (§ 781.) Defendant

again filed a demurrer challenging venue. The municipal court overruled this

demurrer and proceeded to set a preliminary hearing date. Defendant then filed a

petition for writ of prohibition in the superior court challenging venue for the

offenses committed in Santa Clara County, and Presiding Judge Shelton issued an

order to show cause and a stay of all proceedings in the municipal court.

While the writ proceeding was still pending, the prosecutor initiated a grand

jury proceeding, and that body subsequently returned an indictment against

defendant that included the counts previously charged in the complaint as well as

additional counts of burglary. Similarly to the amended complaint, the indictment

38

alleged that “preparatory acts” to the Santa Clara County offenses occurred in San

Mateo County, and that property taken during the commission of those offenses

was brought to San Mateo County. Over defendant‟s objection, the superior court

vacated the stay of the municipal court proceedings. The municipal court

dismissed the amended complaint, and defendant was arraigned on the indictment.

Defendant filed a demurrer to the indictment, challenging venue with regard to the

offenses committed in Santa Clara County. Defendant also moved to dismiss the

indictment on the ground that the grand jury lacked authority to return an

indictment because proceedings on the complaint were pending and had been

stayed. The trial court overruled the demurrer and denied the motion to dismiss

the indictment.

Defendant contends the grand jury, as an “arm of the superior court,”

lacked authority to act as long as the stay was in effect. To the contrary, neither

the pendency of the complaint nor the stay of proceedings on that complaint

affected the jurisdiction of the grand jury. In the prosecution of a felony, the

People may proceed “either by indictment or . . . by information.” (Cal. Const.,

art. I, § 14; Pen. Code, §§ 682, 737.) It is within the discretion of the prosecution

to accept dismissal of a complaint and begin new proceedings by seeking an

indictment. (People v. Uhlemann (1973) 9 Cal.3d 662, 664, 669.) After a

complaint has been filed, the prosecution is not prohibited from seeking an

indictment on the same charges, even prior to dismissal of the complaint.

(Sherwood v. Superior Court (1979) 24 Cal.3d. 183, 187 [grand jury did not lack

jurisdiction to indict the defendant while a complaint was pending against him on

the same charge].)

The stay issued by the superior court did not affect the prosecution‟s right

to seek an indictment. That order stayed “all proceedings in the Municipal Court

of this county on the case of The People v. Celeste Simone Carrington,

39

CRSf239675.” An indictment and an information initiate “separate proceedings.”

(People v. Combs (1961) 56 Cal.2d 135, 145 [error committed in connection with

the complaint does not affect subsequent proceedings under an indictment for the

same charges]; see People v. Grace (1928) 88 Cal.App. 222, 228 [“The mere fact

that the same offense was charged in the indictment that previously had been

charged in the information does not establish any legal relation or connection

between the information and the indictment . . . and manifestly no error committed

in connection with the one proceeding could affect the other”].) The stay simply

did not apply to any potential grand jury proceedings in the superior court.

Defendant also contends that the prosecutor‟s action in convening a grand

jury while a stay was in effect constituted unfair and unconstitutional forum

shopping, violating her rights to due process and fundamental fairness. By

seeking an indictment, the prosecution may have avoided some delay in obtaining

a probable cause determination while defendant‟s venue challenge to the

complaint was being litigated. The prosecution, however, did not obtain any

unfair advantage in doing so. It did not avoid a ruling on the venue issue.

Defendant demurred to the indictment, alleging that San Mateo County was not a

proper venue for trial of the Santa Clara County offenses, and the superior court

overruled that demurrer. (See §§ 917, 1004, par. 1.) The prosecutor‟s decision to

pursue an indictment was not unlawful and did not result in any unfair advantage

over the defense. Consequently, defendant‟s constitutional rights were not

violated.

E. Venue in San Mateo County for the Gleason Homicide

Defendant contends the indictment was facially deficient because it failed

to allege facts establishing that San Mateo County was a proper county in which to

try the Gleason homicide charges. She claims that therefore the indictment must

40

be quashed, her conviction for Gleason‟s murder must be reversed, and the special

circumstance findings and death sentence must be set aside. Defendant further

contends that the evidence presented at trial was insufficient to establish that San

Mateo County had territorial jurisdiction over those charges, and that conducting

her trial in that county violated her Sixth Amendment right to be tried in the

district in which the crime was committed. (U.S. Const., 6th & 14th Amends.)

Gleason was killed in Santa Clara County. The indictment alleged that

“acts preparatory to the commission” of the burglary, robbery, and murder of

Gleason occurred in San Mateo County and that “property taken in the

commission” of those crimes was brought into San Mateo County. In overruling

defendant‟s demurrer, the trial court concluded that the indictment sufficiently

alleged that venue was proper in San Mateo County.5

Defendant contends the foregoing allegations in the indictment were

insufficient because the charging document failed to allege specific facts,

including the nature of the preparatory acts she engaged in and the fruits of the

homicide that were brought into San Mateo County. Defendant urges that the

absence of more specific allegations violated the pleading requirements of

California law. (§ 959.) She further contends the absence of specific allegations

violated her federal constitutional right to be adequately informed of the nature of

the accusation against her. (U.S. Const., 6th & 14th Amends.)

The trial court‟s ruling was correct. An indictment may employ “ordinary

and concise language without any technical averments or any allegations of matter

not essential to be proved.” (§ 952.) The offense may be alleged “in the words of


5

Defendant filed a petition for writ of prohibition and mandate in the Court

of Appeal challenging this ruling of the trial court. The petition was denied on
May 19, 1993. We denied a petition for review on August 2, 1993.

41

the enactment describing the offense . . . or in any words sufficient to give the

accused notice of the offense of which he [or she] is accused.” (Ibid.) An

indictment is “sufficient if it contains[,] in substance, a statement that the accused

has committed some public offense therein specified” (ibid.) and if it can be

understood “[t]hat the offense charged therein is triable in the court in which it is

filed” (§ 959, par. 5).

Generally, an offense is triable in the county in which a crime was

committed. (§ 777.) If a crime was committed in part in one county and in part in

another county, venue is proper in either. (§ 781.) “Under section 781, a public

offense may be tried in a jurisdiction in which the defendant made preparations for

the crime, even though the preparatory acts did not constitute an essential element

of the crime.” (People v. Price (1991) 1 Cal.4th 324, 385.)

Section 952 specifically provides that the crime itself may be alleged in the

words of the statute that defines it. There is no reason why allegations related to

venue need be more specific. In support of her assertion that the allegations of the

indictment must include specific facts, rather than “blanket conclusions,”

defendant relies upon cases that are inapposite. In Ball v. United States (1891)
140 U.S. 118, 136, the high court relied upon common law requirements that an

accusatory pleading in a homicide prosecution specify the time and place of

death — facts that were critical to the determination of the trial court‟s

jurisdiction. In People v. Wakao (1917) 33 Cal.App. 454, the defendant was

charged with criminal libel, which at that time could be tried in the county in

which the complaining witness resided when the defamatory statements were

circulated. The information alleged that defamatory statements were published in

a newspaper circulated in Sacramento County, but did not allege that the

complaining witness resided in that county. Thus, the critical allegations were

missing entirely from the accusatory pleading. The Ball and Wakao cases clearly

42

are distinguishable from the present case and are not authority for the proposition

that an indictment must allege specific facts demonstrating that venue is proper.

A simple allegation that an offense was committed in a particular county

ordinarily is sufficient. (See, e.g., People v. Berg (1929) 96 Cal.App. 430, 432

[statement that murder was committed “in the County of Los Angeles” sufficient

to allege venue].) Even when the crime is committed in part in one county and in

part in another, the allegation is sufficient if it asserts the basis for venue in

general terms, without alleging specific facts. (See, e.g., People v. Dieguez (2001)

89 Cal.App.4th 266, 281 [information alleged that crime was committed in part in

Contra Costa County and in part in San Francisco County]; People v. Tolbert

(1986) 176 Cal.App.3d 685, 689 [information sufficiently alleged venue for sexual

offenses even though it did not specify in which county they were committed,

because sexual offenses were alleged to be connected to a kidnapping, which was

alleged to have commenced in San Joaquin County].) Thus the indictment in the

present case was sufficient in alleging that “acts preparatory to the commission” of

the crimes occurred in San Mateo County and that “property taken in the

commission” of the crimes was brought into San Mateo County.

Furthermore, to the extent defendant contends that the allegations in the

indictment were insufficient to afford her a reasonable opportunity to prepare and

present a defense, we note that notice is provided not only by the accusatory

pleading but also by the transcript of the preliminary hearing or the grand jury

proceedings. (People v. Jones (1990) 51 Cal.3d 294, 317-318; accord, People v.

Diaz (1992) 3 Cal.4th 495, 557; People v. Marshall (1957) 48 Cal.2d 394, 399, fn.

5.) In addition, a “defendant may learn further critical details of the People‟s case

through demurrer to the complaint or pretrial discovery procedures.” (People v.

Jones, supra, 51 Cal.3d at p. 317.) In the present case, defendant was entitled to

and did receive a copy of the transcript of the grand jury proceedings. (§ 938.1.)

43

Additionally, in its opposition to defendant‟s demurrer and motion to set aside the

indictment, the People described in detail the specific facts upon which they relied

to establish that venue was proper in San Mateo County. Defendant does not

contend that these materials were insufficient to afford her adequate notice of the

factual basis for the allegation of proper venue in San Mateo County.

Defendant alternatively contends that even if the indictment was sufficient,

the evidence presented to the grand jury and at trial was insufficient to establish

that venue was proper in San Mateo County. Before trial, the court denied

defendant‟s motion under section 995 to set aside the indictment, finding that the

transcript of the grand jury proceedings established that sufficient preparatory acts

were committed in San Mateo County because, while in that county, defendant

made arrangements for the ride to Palo Alto, took a duffle bag from her San Mateo

County home containing items to be used in the Palo Alto burglary — including a

gun, a screwdriver, a pair of gloves, and keys — and brought the proceeds of the

crime home to San Mateo County. Evidence of these same preparatory acts was

presented at trial.

As a preliminary matter, the People urge that defendant, by declining to

seek a jury instruction on this issue, forfeited any challenge to the sufficiency of

the evidence to support venue. (See People v. Simon (2001) 25 Cal.4th 1082,

1110, fn. 18 [the defendant, who did not propose a jury instruction on venue or

provide authority to the trial court supporting the giving of such an instruction,

could not complain on appeal of the absence of such an instruction].) In the

present case, after the jury returned its guilt phase verdicts, the trial court noticed

that it had failed to instruct the jury on venue and proposed that jurors be called

44

back to decide that issue.6 The prosecution contended that defendant already had

forfeited her right to a jury determination by failing to request an instruction on

venue. Defense counsel indicated that counsel did not wish to submit the issue to

the jury at that time, and consequently it was not submitted to the jury.

We need not decide whether defendant forfeited her right to challenge

venue because, in any event, the evidence clearly was sufficient to establish venue

in San Mateo County. As noted above, when “the acts or effects thereof

constituting or requisite to the consummation of the offense occur in two or more

jurisdictional territories, the jurisdiction of such offense is in any competent court

within either jurisdictional territory.” (§ 781.) Pursuant to section 781, an offense

may be tried in a county “in which the defendant made preparations for the crime,

even though the preparatory acts did not constitute an essential element of the

crime.” (People v. Price, supra, 1 Cal.4th at p. 385 [Humboldt County had

jurisdiction over a murder committed in Los Angeles County, because the

defendant went to Humboldt County to obtain weapons for the purpose of killing

the victim in Los Angeles County].)

The evidence established, and the trial court found, that defendant

committed preparatory acts in San Mateo County when she collected the items she

planned to use to commit the crimes, including gloves, a screwdriver, a key, and a

gun, from her home in San Mateo County, and made arrangements there to be


6

At the time of defendant‟s trial, case law provided that a defendant had a

right to a jury trial on the facts supporting venue. (See, e.g., People v. Megladdery
(1940) 40 Cal.App.2d 748, 766.) Subsequently, we concluded that the matter of
venue is a question of law for the court, not a question of fact for the jury. (People
v. Posey
(2004) 32 Cal.4th 193, 215.) Nevertheless, because the rule that venue is
a question of fact for the jury had been widespread and longstanding, we
concluded that the new rule should be applied only prospectively. (Ibid.)


45

transported to Palo Alto. Defendant suggests these preparatory acts are

insufficient because there is no evidence defendant was planning to commit a

murder — as opposed to a burglary, theft, or robbery — at the time she made these

preparations in San Mateo County. Nevertheless, if preparatory acts occur in one

county, those acts vest jurisdiction over the crime “even though the intent may

have arisen in another county.” (People v. Bismillah (1989) 208 Cal.App.3d 80,

86.)

Furthermore, defendant does not assert that the burglary and the robbery

were improperly charged in San Mateo County. “When property taken in one

jurisdictional territory by burglary . . . [or] robbery . . . has been brought into

another, . . . the jurisdiction of the offense is in any competent court within either

jurisdictional territory . . . .” (§ 786, subd. (a).) Defendant brought property taken

during the Palo Alto (Santa Clara County) burglary and robbery back to her home

in San Mateo County. The murder was part of the same transaction as the robbery

and burglary, and those offenses were “requisite to the consummation of” the

murder. (§ 781.) Force was used against Gleason in furtherance of the robbery,

and her murder served to eliminate her as a witness to the robbery and burglary.

Consequently, the murder was properly tried in San Mateo County as well.

In this respect, the present case is analogous to People v. Gutierrez (2002)

28 Cal.4th 1083, 1116-1119, in which we held that San Bernardino County had

jurisdiction to try the defendant for the attempted murder of a police officer that

occurred in Riverside County. The defendant in Gutierrez kidnapped a woman in

San Bernardino County and, while driving through Riverside County, was stopped

by a police officer for a traffic violation. Defendant shot at the officer, and a gun

battle ensued. We concluded that San Bernardino County was a proper venue for

trial of the attempted murder of the police officer, because the defendant had

attempted to kill the officer in order to avoid detection or arrest for the kidnapping,

46

which began in San Bernardino County. Because San Bernardino County had

jurisdiction over the kidnapping, it had jurisdiction over the attempted murder as

well. (Id. at p. 1118.) Similarly, in the present case, San Mateo County had

jurisdiction over the robbery and burglary offenses and, because the killing

occurred in connection with those crimes, it had jurisdiction to try the murder

charge as well.7

F. Sufficiency of Evidence of Robbery

Defendant contends that the evidence was insufficient to support her

conviction for the robbery of Gleason, because there was no evidence that she had

formed the intent to steal from Gleason until after she had shot her. “[W]hen a

killer‟s only assaultive conduct occurs before forming the intent to steal, a robbery

has not occurred, because there is no union of act and larcenous intent.” (People

v. Seaton (2001) 26 Cal.4th 598, 644.) Defendant admitted in her confession,

which was in evidence at trial, that she entered the office building with the intent

to steal money and money orders from the company located there. Defendant

admitted that she was in the process of looking for money when she encountered

Gleason, but stated she did not take anything until after the shooting. Defendant

stated she was surprised by Gleason in the copy room and shot her because


7

Defendant contends that her conviction and sentencing in a county lacking

territorial jurisdiction violated her constitutional rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments of the federal Constitution to a jury trial, to
fundamental fairness, to equal protection of the laws, and to reliable guilt and
penalty phase determinations. Defendant acknowledges that this court has held
that the Sixth Amendment right to be tried in the “district wherein the crime shall
have been committed” is not applicable to the states (see Price v. Superior Court
(2001) 25 Cal.4th 1046, 1059-1069), but nevertheless raises the issue here in order
to preserve her right to pursue it in federal court. Because we have concluded that
San Mateo County was a proper venue for trial of the Gleason murder charges,
defendant‟s constitutional claims necessarily must fail.

47

defendant was frightened and nervous. When asked whether she planned to shoot

Gleason and then rob her, or vice versa, defendant stated that she had no particular

intentions. After the shooting, she took Gleason‟s keys and $400 that was in an

envelope in a desk. Defendant drove away in Gleason‟s car, which she later

abandoned. Gleason‟s keys, beeper, and purse later were found in defendant‟s

apartment.

On appeal, we uphold the jury‟s verdict if there was substantial evidence to

support it. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) Considering the

entire record, we determine whether there is evidence that is “ „reasonable in

nature, credible, and of solid value‟ ” from which a “ „reasonable trier of fact

could have found the prosecution sustained its burden of proving the defendant

guilty beyond a reasonable doubt.‟ ” (Id. at p. 576.) We have observed that

“when one kills another and takes substantial property from the victim, it is

ordinarily reasonable to presume the killing was for purposes of robbery.”

(People v. Turner (1990) 50 Cal.3d 668, 688; accord, People v. Bolden (2002) 29

Cal.4th 515, 553; People v. Hughes (2002) 27 Cal.4th 287, 357; People v. Kipp

(2001) 26 Cal.4th 1100, 1128.) “If a person commits a murder, and after doing so

takes the victim‟s wallet, the jury may reasonably infer that the murder was

committed for the purpose of obtaining the wallet, because murders are commonly

committed to obtain money.” (People v. Marshall (1997) 15 Cal.4th 1, 35.) The

jury was free to disbelieve defendant‟s statements to the police that she shot

Gleason in a panic and that she did not possess any specific intent at that time,

especially in view of the circumstance that the prosecution had presented

evidence, through its forensic experts, that defendant‟s version of the

circumstances of the shooting was not entirely truthful. Defendant admitted that

when she encountered Gleason, she was looking for money to steal and that she

was armed with the gun in case she needed to frighten someone. The evidence is

48

sufficient to support the jury‟s finding that defendant formed the intent to steal

before she shot Gleason.

G. Sufficiency of Evidence of Burglary of ATM’s

As charged in counts 9 and 10 of the indictment, defendant was found

guilty of second degree burglary of a Bank of America ATM located at 700

Jefferson Avenue in Redwood City. These counts were based upon defendant‟s

attempt to use Carolyn Gleason‟s ATM card at an ATM located on the outside of

the bank building. Defendant contends — and the Attorney General agrees — that

her convictions on these two counts must be reversed. Subsequent to defendant‟s

trial, we held that inserting a stolen ATM card into an ATM on the outside of a

building does not constitute an “entry” for purposes of the burglary statute.

(People v. Davis (1998) 18 Cal.4th 712, 718-722.) Because the evidence did not

establish an entry, defendant‟s convictions on counts 9 and 10 must be reversed.

H. Instruction on Consciousness of Guilt

Defendant contends the trial court erred in instructing the jury, pursuant to

CALJIC No. 2.03, that if “the defendant made a willfully false or deliberately

misleading statement concerning the crime for which she is now being tried, you

may consider such statement as a circumstance tending to prove a consciousness

of guilt.” Over defense counsel‟s objection that such an instruction was not

appropriate because defendant ultimately confessed, the trial court concluded that

the instruction should be given because defendant initially made false statements

to the police about her involvement in the homicides.

Defendant contends that in People v. Mattson (1990) 50 Cal.3d 826 we

“implicitly acknowledged” that CALJIC No. 2.03 should not be given in a case,

like the present one, in which the defendant initially denied involvement in the

crimes but subsequently confessed. In Mattson, we did not conclude the

49

instruction was given in error but commented that under such circumstances, “the

probative value of, and inference of consciousness of, guilt from the initial denial

was tenuous.” (Id. at p. 872.) We concluded that the giving of the instruction,

even if error, was harmless in light of the overwhelming evidence of guilt,

including the defendant‟s confession.

We find no error in the giving of CALJIC 2.03 in the present case. The fact

that a defendant initially denies involvement and later makes admissions certainly

supports a conclusion that the earlier statement was a lie made to avoid detection

or culpability. Even when a defendant confesses, his or her state of mind or other

details of a crime may remain in dispute. The fact that a defendant initially denied

culpability and later made admissions are relevant facts, which must be weighed in

light of all the evidence. Although defendant admitted her role in each of the

crimes, her counsel continued to dispute her state of mind, urging that she had

committed only a theft — not a robbery — of Gleason, and that she had not

intended to kill Marks. Additionally, the precise circumstances of the shootings

— in particular, whether Esparza and Gleason were on their knees when shot —

were in dispute.

Defendant additionally contends that the consciousness-of-guilt instruction

undermined the requirement that guilt be found beyond a reasonable doubt and

violated her federal constitutional rights to a fair and reliable capital trial by

permitting the jury to infer all of the elements of the charged offenses from the

circumstance that she initially lied to the police. An instruction that permits the

jury to draw an inference of guilt from particular facts is valid only if there is a

rational connection between the fact proved and the fact inferred. (United States

v. Gainey (1965) 380 U.S. 63, 66-67; Tot v. United States (1943) 319 U.S. 463,

467-468.) In the present case, as defendant admits, the jury reasonably could infer

from her false statements that she was conscious of her responsibility for the

50

deaths of Gleason and Esparza, an issue that was not contested. She asserts,

however, that because the instruction did not limit the jury‟s use of the evidence to

this appropriate inference, the instruction permitted the jury to draw other

inferences that were not rationally related to the circumstance that defendant had

lied, including that (1) defendant was conscious of having committed the crimes

with a particular mental state (such as deliberation, premeditation, malice

aforethought, or intent to kill), and (2) defendant was conscious of the truth of the

factual allegations underlying the robbery and burglary special circumstances.

Defendant did not request in the trial court that the consciousness-of-guilt

instruction be modified or limited in any way, and consequently has forfeited any

claim that the instruction should have been modified. (People v. Rodrigues (1994)

8 Cal.4th 1060, 1140.) In any event, it was not misleading as given. “A

reasonable juror would understand „consciousness of guilt‟ to mean

„consciousness of some wrongdoing‟ rather than „consciousness of having

committed the specific offense charged.‟ The instructions advise the jury to

determine what significance, if any, should be given to evidence of consciousness

of guilt, and caution that such evidence is not sufficient to establish guilt, thereby

clearly implying that the evidence is not the equivalent of a confession and is to be

evaluated with reason and common sense. The instructions do not address the

defendant‟s mental state at the time of the offense and do not direct or compel the

drawing of impermissible inferences in regard thereto.” (People v. Crandell

(1988) 46 Cal.3d 833, 871.)

I. Instruction on Firearm-use Enhancements

Defendant contends that the trial court‟s instruction on the allegations that

defendant personally used a firearm in the commission of certain offenses was

erroneous because, in lieu of defining the term “firearm,” the court included an

51

instruction that “firearm includes a Smith and Wesson .357 magnum revolver.”

The evidence showed that the weapon used in this case was a Smith and Wesson

.357 magnum revolver. Consequently, defendant contends, the instruction in

effect directed a verdict on an issue of fact in violation of her Sixth and Fourteenth

Amendment rights to a jury trial and to proof beyond a reasonable doubt under the

federal Constitution, and her right to due process of law under the state

Constitution. (Cal. Const., art. I, § 15.)

We rejected an analogous argument in People v. Brown (1988) 46 Cal.3d

432, 443. In Brown, the defendant was charged with murdering a peace officer

engaged in the performance of his duties. We held that the trial court did not err in

instructing the jury that a Garden Grove Police Officer and a Garden Grove

Reserve Police Officer are peace officers. This instruction “took no element from

the jury; it merely instructed the jury on a point of statutory law — a point not

open to dispute — that a Garden Grove police officer is a peace officer.

[Citations.] The jury was left to make all essential factual determinations,

including whether the victim was a Garden Grove police officer.” (Brown, supra,

46 Cal.3d at pp. 443-444; cf. People v. Flood (1998) 18 Cal.4th 470, 504-507 [the

trial court‟s instruction that certain named individuals are peace officers was

harmless error].) Similarly, in the present case, the jury merely was instructed on

a point of law that was not open to dispute. The jury was left to decide the factual

question of whether defendant used a “Smith and Wesson .357 magnum revolver”

in the commission of the crimes. (See People v. Runnion (1994) 30 Cal.App.4th

852, 856-858 [trial court did not err in instructing the jury that the word “firearm”

includes a handgun].) We find no error.

52

J. Issues Related to Aggravating Factor of Attempted Escape

As noted above, the prosecution presented evidence, through the out-of-

court statements of Cindy Keshmiri, who had been incarcerated with defendant in

the county jail and worked on the food line, that defendant had asked Keshmiri for

a knife and, after Keshmiri provided her with a hard plastic knife, asked her for

aluminum foil. The prosecution theorized that defendant‟s acts constituted an

attempted escape, and thus were admissible in aggravation as “criminal activity

. . . which involved . . . the express or implied threat to use force or violence.”

(§ 190.3, factor (b).) Defendant raises a number of challenges to this evidence and

to the court‟s related instructions regarding it, each of which is discussed below.

1. Absence of instruction that Keshmiri was an accomplice

Defendant argues that, at the penalty phase, the trial court should have

instructed the jury that Keshmiri was an accomplice to any attempted escape by

defendant and that her out-of-court statements required corroboration. The trial

court denied the requested instruction on the ground that the question whether

Keshmiri was an accomplice was an issue for the jury. The trial court was correct.

An “accomplice” is “one who is liable to prosecution for the identical

offense charged against the defendant on trial in the cause in which the testimony

of the accomplice is given.” (§ 1111.) An accomplice‟s testimony is not

sufficient to support a conviction unless it is corroborated by other evidence

connecting the defendant with the commission of the offense. (Ibid.) In this

context, “testimony” includes an accomplice‟s out-of-court statements made under

questioning by police or under other suspect circumstances. (People v. Williams

(1997) 16 Cal.4th 153, 245; People v. Belton (1979) 23 Cal.3d 516, 525-526.) The

requirement of accomplice corroboration applies to the penalty phase of a capital

trial. (People v. Williams, supra, 16 Cal.4th at pp. 244-245.) “Whether a person is

an accomplice within the meaning of section 1111 presents a factual question for

53

the jury „unless the evidence presents only a single inference.‟ [Citation.] Thus, a

court can decide as a matter of law whether a witness is or is not an accomplice

only when the facts regarding the witness‟s criminal culpability are „clear and

undisputed.‟ [Citations.]” (People v. Williams, supra, 16 Cal.4th at p. 679.)

To be an accomplice, Keshmiri would have had to act with knowledge of

defendant‟s criminal purpose and with the intent to encourage or facilitate the

commission of the offense. (See People v. Stankewitz (1990) 51 Cal.3d 72, 90-

91.) Providing assistance without sharing the perpetrator‟s purpose and intent is

insufficient to establish that a person is an accomplice. (People v. Sully (1991) 53

Cal.3d 1195, 1227.) In her out-of-court statements, Keshmiri admitted providing

defendant with a plastic knife but denied any intent to facilitate a crime. Keshmiri

told the investigating officer that when she handed defendant the knife, “I didn‟t

realize what I was doing I guess.” Subsequently, when defendant commented that

the guards did not carry guns, Keshmiri explained, “that‟s when I took it to seem

she meant to escape.” “That‟s why, that‟s why I freaked out.” “I took it as a joke

to begin with . . . and then I said . . . that was stupid.” That same day, Keshmiri

voluntarily reported the incident to the authorities, explaining, “I don‟t want to see

somebody else get hurt over it.” If the jurors believed Keshmiri‟s out-of-court

statements, they reasonably could conclude that she did not intend to assist

defendant in escaping from custody and therefore was not an accomplice.

Consequently, the trial court did not err in permitting the jury to decide whether or

not Keshmiri was an accomplice.

2. Absence of instruction for jury to determine whether Keshmiri was

an accomplice

Defendant contends the trial court erred in failing to instruct the jury, in

accordance with CALJIC No. 3.19, that it was required to determine whether the

witness Keshmiri was an accomplice and that defendant had the burden of proving

54

by a preponderance of the evidence that Keshmiri was an accomplice. (See People

v. Zapien (1993) 4 Cal.4th 929, 982 [trial court must inform the jury, on its own

motion, of the jury‟s obligation to determine whether a witness is an accomplice].)

Defendant contends the trial court‟s error in failing to direct the jury to determine

explicitly whether Keshmiri was an accomplice was compounded by the court‟s

instructions concerning the testimony of an “in-custody informant,” which, she

asserts, erroneously informed the jury that Keshmiri was not an accomplice.

The jury was instructed that an in-custody informant is “a person, other

than a co-defendant, percipient witness, accomplice, or co-conspirator,” who

testifies concerning a statement made by the defendant while both were in

custody. (Italics added.) The jury explicitly was instructed that Cindy Keshmiri

was an in-custody informant. Following these instructions, defendant contends,

the jury assumed that because Keshmiri was an in-custody informant she was not

an accomplice and that corroboration of her testimony was not required.

We must consider whether it is reasonably likely that the trial court‟s

instructions caused the jury to misapply the law. (People v. Cain (1995) 10

Cal.4th 1, 36; People v. Kelly (1992) 1 Cal.4th 495, 525-527.) “[T]he correctness

of jury instructions is to be determined from the entire charge of the court, not

from a consideration of parts of an instruction or from a particular instruction.”

(People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another ground in

People v. Reyes (1998) 19 Cal.4th 743; see Estelle v. McGuire (1991) 502 U.S. 62,

72 [alleged ambiguity in instructions must be viewed in light of the instructions as

a whole and the entire record].)

One could construe the instructions to mean that, because Keshmiri was an

in-custody informant, and because an in-custody informant is someone “other than

. . . an accomplice,” Keshmiri was not an accomplice. We view it as unlikely,

however, that the jury engaged in such an interpretation. Although the trial court

55

did not explicitly tell the jury to decide whether Kesmiri was an accomplice, the

instructions given implicitly required such a determination. The jury was instructed

that an accomplice‟s testimony must be corroborated, and the definition of an

accomplice was provided. The jury also was given instructions concerning how it

was to determine whether an accomplice has been corroborated. Defendant‟s

interpretation would render the instructions on accomplice testimony entirely

superfluous.

We conclude it was more likely that the jurors correctly interpreted the

instructions, in context, to mean that they were required to apply the instruction

regarding in-custody informants only if they concluded that Keshmiri was not an

accomplice. Furthermore, both parties in their arguments correctly interpreted

these instructions. The prosecutor acknowledged in closing argument that the

defense could argue that Keshmiri was an accomplice and that her statements

required corroboration. Defense counsel observed that the instructions concerning

accomplice testimony and in-custody informant testimony were given to the jury in

the alternative. Defense counsel stated that the jurors could find that Keshmiri was

an accomplice; however, “[i]f you were to find that she was not an accomplice but

an in-custody informant,” the instructions would direct the jurors to be cautious in

evaluating her testimony. We find no reasonable likelihood that the jury interpreted

the instructions to require that it assume Keshmiri was not an accomplice.

3. Sufficiency of corroboration

Defendant contends the trial court erred in admitting Keshmiri‟s statements,

because she was an accomplice and there was no corroborating evidence. The trial

court agreed that Keshmiri‟s prior tape-recorded statements were not corroborated.

Even if we assume the trial court was correct, that circumstance did not render her

statements inadmissible because, as discussed above, the jury reasonably could

56

have concluded that she was not an accomplice. The jury was instructed that “[a]

defendant cannot be found to have committed a criminal act based on the testimony

of an accomplice unless such testimony is corroborated by other evidence which

tends to connect such defendant with the commission of the offense.” If the jury

determined that Keshmiri was an accomplice, we presume it followed the court‟s

instructions and did not consider the allegation that defendant had committed an

attempted escape. On the other hand, if the jury determined — as it could have,

under the evidence presented — that Keshmiri was not an accomplice,

corroboration was not required.

4. Sufficiency of evidence of attempted escape

Defendant contends the trial court erred in permitting the jury to hear the

tape recordings of Keshmiri‟s out-of-court statements, because they did not

establish “criminal activity by the defendant which involved the use or attempted

use of force or violence or the express or implied threat to use force or violence.”

(§ 190.3, factor (b).) A jury cannot consider evidence of unadjudicated criminal

activity as an aggravating factor unless it is convinced beyond a reasonable doubt

that the alleged conduct occurred and that it constituted a crime. (People v.

Michaels (2002) 28 Cal.4th 486, 539; People v. Boyd (1985) 38 Cal.3d 762, 772-

774.) The prosecution argued that the conduct described by Keshmiri constituted

an attempt to escape from county jail, in violation of section 4532, subdivision (b).

Defendant contends that, even assuming Keshmiri‟s statements were true,

defendant‟s conduct amounted to no more than preparation to commit a crime, and

not an attempt.

We review the record for “substantial evidence from which a jury could

conclude beyond a reasonable doubt that violent criminal activity occurred.”

(People v. Tuilaepa (1992) 4 Cal.4th 569, 587; see People v. Memro (1985) 38

57

Cal.3d 658, 698.) To prove an attempt, “ „[s]omething more is required than mere

menaces, preparation or planning.‟ [Citation.]” (People v. Miller (1935) 2 Cal.2d

527, 530.) “ „[T]he attempt is the direct movement towards the commission after

the preparations are made.‟ ” (Ibid.) In the present case, Keshmiri‟s statements

were sufficient to support a conclusion that defendant was planning an escape

attempt and prepared for that attempt by obtaining a hard plastic knife, but it is

questionable whether they were sufficient to establish an actual attempt.

Even if defendant is correct that the evidence was insufficient to establish

an attempted escape, however, we conclude that any error in admitting Keshmiri‟s

out-of-court statements was harmless. The weakness of the evidence of an escape

attempt, the numerous challenges to Keshmiri‟s credibility, her refusal to testify at

trial, and the instruction requiring the jury to view her testimony with caution

diminish the likelihood that the jurors gave significant weight to this evidence.

Even if the jurors believed Keshmiri‟s statements, the incident she described was

relatively trivial in comparison to the circumstances of the crimes of which

defendant was convicted — defendant murdered two individuals and attempted to

murder a third during the course of three separate incidents of burglary and

robbery. The prosecutor did argue to the jury that the evidence of an attempted

escape demonstrated defendant‟s willingness to use violence, but did not focus on

this evidence as a justification for the death penalty. Indeed, the prosecutor

admitted that the evidence of defendant‟s escape attempt “pales, quite frankly, in

comparison to the factors in aggravation under [section 190.3, factor] (a), but it

happened. We brought it to your attention and you can consider it and give it

whatever weight you deem appropriate.” Defendant contends that this evidence

was harmful because it may have influenced the jury to conclude that defendant

was an escape risk and that the public could not be protected from her if they

sentenced her to life imprisonment. The weakness of defendant‟s plan and the

58

absence of any evidence that defendant actually attempted to carry out that plan,

however, render it unlikely that the jury considered her to be a serious escape risk.

We find no reasonable possibility that this evidence influenced the jury‟s decision

to impose the death penalty.

5. The trial court’s refusal to excise portions of Keshmiri’s statements

Defendant contends that the trial court erred in refusing to excise certain

statements from the tape recording of Keshmiri‟s interview with law enforcement

authorities, and that these statements were sufficiently inflammatory that they

rendered defendant‟s trial fundamentally unfair, in violation of her rights to due

process of law and to a reliable penalty determination. (U.S. Const., 8th & 14th

Amends.) After the trial court ruled that Keshmiri‟s out-of-court statements could

be admitted as prior inconsistent statements under Evidence Code sections 1235

and 770, defense counsel objected to two portions of the statements: Keshmiri‟s

comments that (1) she regularly teased defendant about why defendant was in

custody, (2) she would “bullshit” with defendant about her killing people and

would “say duck when she goes by.” Defense counsel argued that these

statements were irrelevant and extremely prejudicial, because they suggested that

defendant was willing to participate in humor about committing homicide. The

trial court overruled defendant‟s objections, concluding that the statements were

relevant to show Keshmiri‟s relationship with defendant.

Defendant argues that the prejudicial effect of these comments outweighed

their probative value. Although Keshmiri‟s comments about joking with

defendant revealed something about Keshmiri‟s own character, defendant

contends they also “implied that [defendant] shared some morbid sense of

jocularity regarding the very serious charges she was facing.” On the other hand,

defendant argues, these comments were not necessary to establish defendant‟s

59

relationship with Keshmiri, because that relationship was fully established by

other, less prejudicial portions of Keshmiri‟s interview with the officers.8

We review the trial court‟s ruling for abuse of discretion, which is

established by “a showing the trial court exercised its discretion in an arbitrary,

capricious, or patently absurd manner that resulted in a manifest miscarriage of

justice. [Citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

We find no abuse of discretion. When called to testify, Keshmiri denied

knowing defendant and claimed that the Celeste Carrington she knew was an

entirely different person. Keshmiri‟s out-of-court statement that she teased

defendant regarding the killings helped to establish that the person she spoke about

to the officers was indeed defendant, who had been charged with murder.

Furthermore, Keshmiri‟s accepting attitude toward defendant and her crimes lent

credibility to her statement that defendant approached her for assistance. The trial

court‟s ruling was reasonable and did not deny defendant a fair trial.

K. Admission of Victim-Impact Evidence

Defendant filed a motion in the trial court to limit the scope of victim-

impact evidence that the prosecutor would be permitted to present at trial, and

requested an offer of proof as to evidence that the prosecutor intended to

introduce. The trial court conducted a hearing, at which the prosecutor discussed


8

Keshmiri told Deputy McKague that “we got along real good. I think she

kind of liked me, as a matter of fact. . . . [W]hen [my] niece was up in [the same
dormitory unit as defendant] after I left I asked her to watch out for my niece. So
we got a fairly good rapport going.” Keshmiri explained that defendant chose to
approach her because “we had kind of a connection going.” In her interview with
the district attorney inspector, Bruce Sabin, Keshmiri stated that she and defendant
had many friendly conversations, that Keshmiri was one of the few individuals
with whom defendant spoke, that they had meals together, and that they had
established a rapport.

60

the witnesses she planned to call to testify. At that hearing, defendant argued that

Evidence Code section 352 should apply, that the number of witnesses should be

limited to avoid undue prejudice, and that generally those witnesses who had

closer relationships and more recent contact with the victims were most relevant.

The trial court declined to limit the number of victim-impact witnesses whom the

prosecution could present.

Defendant now argues that specific limitations should be placed on victim-

impact evidence. First, she contends that, absent unusual circumstances, such

evidence should be limited to the testimony of a single witness. (See State v.

Muhammad (N.J. 1996) 678 A.2d 164, 180 [imposing such a limitation, based

upon the court‟s conclusion that “[t]he greater the number of survivors who are

permitted to present victim impact evidence, the greater the potential . . . to

unduly prejudice the jury against the defendant”].) Second, defendant contends

that victim impact evidence is relevant and admissible as a “circumstance of the

crime” (§ 190.3, factor (a)) only if it involves either (1) the effect of the murder on

a family member who was present at the scene during or immediately after the

crime, or (2) consequences of the crime that were known or reasonably apparent to

the defendant at the time she committed the crime. Under this standard, defendant

contends that most of the victim-impact evidence admitted in this case should have

been excluded because none of the witnesses who testified were present at the

scene or immediately after the crime, and the testimony included information

regarding the character of the victims — information that was unknown to

defendant. Additionally, defendant contends that an interpretation of

“circumstances of the crime” so broad as to include the victim-impact evidence

admitted in this case would render that aggravating factor unconstitutionally

overbroad and vague. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7,

15, & 17.)

61

We previously have rejected arguments that victim-impact evidence must

be confined to what is provided by a single witness (People v. Zamudio (2008) 43

Cal.4th 327, 364), that victim-impact witnesses must have witnessed the crime

(People v. Brown (2004) 33 Cal.4th 382, 398), and that such evidence is limited to

matters within the defendant‟s knowledge (People v. Pollock (2004) 32 Cal.4th

1153, 1183). We also have concluded that construing section 190.3, factor (a) to

include victim-impact evidence does not render the statute unconstitutionally

vague or overbroad. (People v. Pollock, supra, 32 Cal.4th at p. 1183.) Defendant

provides no compelling argument for this court to reconsider these decisions.

Defendant additionally contends that the trial court erred in admitting

testimony suggesting that Gleason‟s death caused her mother to die prematurely

and her father to suffer a stroke. Prior to the commencement of the penalty phase,

the trial court agreed that evidence of the death of Gleason‟s mother and the illness

of her father could be admitted in order to explain why they were not called to

testify. In response to defendant‟s concern that the jury might infer that the death

and the illness resulted from the murder of Gleason, the prosecutor agreed that

such an inference would not be appropriate and that she would not make this

argument to the jury.

During the penalty phase, Michael Gleason testified that Caroline

Gleason‟s father recently had had a stroke, that her mother had died earlier in the

year, and that her mother-in-law had died the previous year. In reference to

Gleason‟s mother‟s death, the witness added, “I think the loss of her daughter took

its toll.” The court promptly admonished the witness on its own motion, stating

that “this is an area we can‟t speculate about.”

We find no error in the court‟s admission of evidence regarding the status

of Gleason‟s parents. It is well established that a party may comment on the

opposing party‟s failure to call anticipated witnesses. (People v. Stevens (2007) 41

62

Cal.4th 182, 210, citing People v. Chatman (2006) 38 Cal.4th 344, 403; People v.

Lewis (2001) 25 Cal.4th 610, 670; People v. Szeto (1981) 29 Cal.3d 20, 34; People

v. Vargas (1973) 9 Cal.3d 470, 475; see People v. Bolden (2002) 29 Cal.4th 515,

552-553.) The court allowed the prosecution to introduce evidence intended to

dispel any potential negative implication that might be drawn by the jury or by

defense counsel based upon the prosecution‟s failure to call Gleason‟s parents as

witnesses.

When the witness went further and commented on the possible effect of the

victim‟s death on her mother‟s health, the court properly informed him — in the

presence of the jury — that such speculation was inappropriate. To the extent

defendant contends the trial court should have admonished the jury to ignore or

limit its consideration of this evidence, her claim has been forfeited by her failure

to request an admonition in the trial court. (See People v. Ochoa (1998) 19

Cal.4th 353, 427-428.)

L. Absence of Limiting Instruction on Victim-Impact Evidence

Defendant contends that the trial court erred in failing to instruct the jury,

on its own motion, concerning the proper use of victim-impact evidence.

Although defendant did not request any such instruction in the trial court, she

suggests that the following instruction (one proposed, although not mandated, by

the Supreme Court of Pennsylvania in Commonwealth v. Means (Pa. 2001) 773

A.2d 143, 159) would have been appropriate: “Victim impact evidence is simply

another method of informing you about the nature and circumstances of the crime

in question. You may consider this evidence in determining an appropriate

punishment. However, the law does not deem the life of one victim more valuable

than another; rather, victim impact evidence shows that the victim, like the

defendant, is a unique individual. Your consideration must be limited to a rational

63

inquiry into the culpability of the defendant, not an emotional response to the

evidence.” Defendant contends that in the absence of such an instruction, “there

was nothing to stop raw emotion and other improper considerations from tainting

the jury‟s decision,” in violation of her right to a decision by a rational and

properly instructed jury, the due process right to a fair trial, and the right to a fair

and reliable capital-penalty determination. (U.S. Const. 6th, 8th, & 14th Amends.;

Cal. Const., art. I, §§ 7, 15, 16, & 17.)

We previously have rejected these same contentions. In People v.

Zamudio, supra, 43 Cal.4th at pages 369-370, we found unpersuasive an argument

that the trial court has a duty to give such an instruction on its own motion. We

concluded that (1) the first two sentences of defendant‟s proposed instruction were

covered adequately by CALJIC No. 8.85, which also was read to the jury in the

present case; (2) defendant‟s proposed instruction is incorrect to the extent it

suggests that a juror‟s emotional response to the evidence may play no part in his

or her decision; and (3) an instruction “informing the jury that the law does not

deem the life of one victim more valuable than the other” is “not necessary to the

jury‟s understanding of [the] case.” (People v. Zamudio, supra, 43 Cal.4th at p.

370.)

M. Challenges to California’s Capital Sentencing Scheme

Defendant advances a number of constitutional challenges to the California

death penalty law and to instructions given to the jury based upon that law —

challenges that, she concedes, we previously have rejected. Defendant provides

no convincing reason for us to reconsider our previous holdings on these issues.

Consequently, we reject defendant‟s argument that her death sentence violates

articles VI and VII of the International Covenant of Civil and Political Rights,

which prohibit cruel, inhuman, or degrading punishment and the arbitrary

64

deprivation of life. “ International law does not compel the elimination of capital

punishment in California. ” (People v. Snow (2003) 30 Cal.4th 43, 127.)

We also have rejected the argument, presently made by defendant, that the

assertedly regular imposition of the death penalty as punishment for a substantial

number of homicides — as opposed to exceptional crimes such as treason —

constitutes cruel and unusual punishment because such punishment has been

abolished in the majority of nations, including all of Western Europe.

“California‟s status as being in the minority of jurisdictions worldwide that impose

capital punishment, especially in contrast with the nations of Western Europe,

does not violate the Eighth Amendment. (See, e.g., People v. Moon (2005) 37

Cal.4th 1, 47-48.)” (People v. Mungia (2008) 44 Cal.4th 1101, 1143.) California

does not impose capital punishment as a “ „regular punishment for substantial

numbers of crimes.‟ ” (People v. Demetrulias (2006) 39 Cal.4th 1, 43, italics

omitted.) “The death penalty is available only for the crime of first degree murder,

and only when a special circumstance is found true; furthermore, administration of

the penalty is governed by constitutional and statutory provisions different from

those applying to „regular punishment‟ for felonies. (E.g., Cal. Const., art. VI,

§ 11; §§ 190.1-190.9, 1239, subd. (b).)” (Id. at p. 44.)

“This court‟s refusal to conduct intercase proportionality review of a death

sentence does not violate the federal Constitution. [Citation.]” (People v. Wallace

(2008) 44 Cal.4th 1032, 1098.) Furthermore, because “capital defendants are not

similarly situated to noncapital defendants, the death penalty law does not violate

equal protection by denying capital defendants certain procedural rights given to

noncapital defendants. [Citations.]” (People v. Cruz (2008) 44 Cal.4th 636, 681.)

We previously have rejected defendant‟s challenges to the penalty phase

jury instruction given in this case, CALJIC No. 8.88. The jury need not be told

explicitly that it must return a verdict of life imprisonment without the possibility

65

of parole if the mitigating circumstances outweigh the aggravating circumstances.

(People v. Duncan (1991) 53 Cal.3d 955, 978.) The instruction that jurors may

impose a death sentence only if the aggravating factors are “so substantial” in

comparison to the mitigating circumstances that death is warranted does not create

an unconstitutionally vague standard. (People v. Catlin (2001) 26 Cal.4th 81, 174;

People v. Mendoza (2000) 24 Cal.4th 130, 190.) There is no requirement in the

federal or the state Constitution that the jury reach a unanimous agreement with

respect to the factors in aggravation, that jurors find the factors in aggravation to

be true beyond a reasonable doubt, that the jury find beyond a reasonable doubt

that the circumstances in aggravation outweigh those in mitigation before

imposing the death penalty, or that the jury find beyond a reasonable doubt that

death is the appropriate punishment. (People v. Wallace, supra, 44 Cal.4th at p.

1097.) “We have repeatedly held that the high court‟s recent decisions [in

Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2000) 536 U.S.

584, and Blakeley v. Washington (2004) 542 U.S. 296] do not compel a different

answer. [Citations.]” (People v. Mendoza (2007) 42 Cal.4th 686, 707; see also

People v. Page (2008) 44 Cal.4th 1, 60; People v. Lewis (2008) 43 Cal.4th 415,

421.) “It is settled . . . that California‟s death penalty law is not unconstitutional in

failing to impose a burden of proof — whether beyond a reasonable doubt or by a

preponderance of the evidence — as to the existence of aggravating and mitigating

circumstances, or the appropriateness of a sentence of death. [Citations.]”

(People v. Alfaro (2007) 41 Cal.4th 1277, 1331.)

“Section 190.3, factor (a), which allows the jury to consider „[t]he

circumstances of the crime of which the defendant was convicted in the present

proceeding and the existence of any special circumstances found to be true

pursuant to Section 190.1,‟ does not violate the Fifth, Sixth, Eighth, or Fourteenth

Amendment to the United States Constitution by allowing arbitrary imposition of

66

the death penalty. (Tuilaepa v. California (1994) 512 U.S. 967, 975-976; People

v. Stevens [(2007)] 41 Cal.4th [182,] 211.)” (People v. Loker (2008) 44 Cal.4th

691, 755; see also People v. Williams (2008) 43 Cal.4th 584, 648; People v.

Alfaro, supra, 41 Cal.4th at p. 1330.) “As the United States Supreme Court noted

in upholding factor (a) against an Eighth Amendment challenge, „our capital

jurisprudence has established that the sentencer should consider the circumstances

of the crime in deciding whether to impose the death penalty. [Citation.]‟ ”

(People v. Page, supra, 44 Cal.4th at p. 60.) Nor is section 190.3, factor (a)

applied in an unconstitutionally arbitrary or capricious manner merely because

prosecutors in different cases may argue that seemingly disparate circumstances,

or circumstances present in almost any murder, are aggravating under factor (a).

(People v. Brown, supra, 33 Cal.4th at p. 401.) Rather, “each case is judged on its

facts, each defendant on the particulars of his [or her] offense.” (Ibid.)

N. Motion to Modify the Verdict

The trial court considered and rejected defendant‟s motion, pursuant to

section 190.4, subdivision (e), to modify the death verdict to life imprisonment

without the possibility of parole. Defendant urges that the trial court erred in two

respects in denying the motion.

First, defendant contends that the court failed to apply the proper legal

standard. In ruling upon a motion under section 190.4, subdivision (e), “the trial

court must independently reweigh the evidence of aggravating and mitigating

factors presented at trial and determine whether, in its independent judgment, the

evidence supports the death verdict.” (People v. Steele (2002) 27 Cal.4th 1230,

1267.) In support of her claim that the court applied an incorrect standard,

defendant points to the circumstance that, in announcing its ruling, the court stated

that it needed to “make a determination as to whether the jury‟s finding and

67

verdict that the aggravating circumstances are contrary to law or that the evidence

was presented was not correct.” Defendant notes that this statement is difficult to

interpret, but she suggests the court believed — incorrectly — that the jury‟s

verdict could be set aside only if based upon “incorrect evidence.”

It appears the court misspoke, but we consider it reasonably likely that the

court was observing that the question before it was whether the jury‟s verdict was

“contrary to law or to the evidence presented,” the standard stated in section 190.4,

subdivision (e). The court‟s ruling, when considered in its entirety, indicates that

it exercised its independent judgment and did not limit its determination to

whether the jury‟s verdict was based upon “incorrect” evidence. At the outset, the

court stated that it must “make an independent determination” whether the

imposition of the death penalty was proper, and that it must “weigh the evidence

and evaluate the credibility of the witnesses and determine the probative value of

the evidence, which is what I have done.” The court concluded that the jury‟s

findings were supported by “the overwhelming weight of the evidence and [are]

not contrary to law.” The court thoroughly reviewed the evidence introduced at

both the guilt and penalty phases, and set forth its “independent judgment as to the

truth and the weight” of each of the aggravating and mitigating factors. The court

stated that it “agrees with the jury” after making its own “personal assessment of

the evidence.” The record demonstrates that “the court carefully and

conscientiously performed its duty under section 190.4.” (People v. Steele, supra,

27 Cal.4th at p. 1268.)

Second, defendant contends the trial court also misconstrued section 190.3,

factor (i), in stating that defendant‟s age constituted an aggravating factor.

Defendant notes we have observed that chronological age itself is neither

aggravating nor mitigating, but the word “age” as used in factor (i) is “a metonym

for any age-related matter suggested by the evidence or by common experience or

68

morality that might reasonably inform the choice of penalty.” (People v. Lucky

(1988) 45 Cal.3d 259, 302.) Contrary to defendant‟s assertion, the trial court‟s

finding that age was an aggravating factor in the present case is consistent with our

interpretation of section 190.3, factor (i). The court explained: “The defendant

was approximately 30 years of age and old enough to appreciate the wrongfulness

of her conduct.” The circumstance that defendant‟s age rendered her capable of

appreciating the wrongfulness of her conduct “is a permissible age-related

inference.” (People v. Mendoza, supra, 24 Cal.4th at p. 190; see also People v.

Slaughter (2002) 27 Cal.4th 1187, 1224 [the jury properly could consider the

prosecutor‟s argument that the defendant was “old enough to know better”].)

III. CONCLUSION

For the reasons stated above, defendant‟s convictions on counts 9 and 10

are reversed and the judgment and sentence are otherwise affirmed.


GEORGE, C. J.


WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.



69

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

Name of Opinion People v. Carrington
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S043628
Date Filed: July 27, 2009
__________________________________________________________________________________

Court:
Superior
County: San Mateo
Judge:
Margaret J. Kemp

__________________________________________________________________________________

Attorneys for Appellant:

Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court,
Barry P. Helft, Chief Deputy State Public Defender, and Kathryn E. Collier, 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, Gerald A. Engler, Assistant Attorney General, Bruce Ortega and Amy Haddix, Deputy Attorneys
General, for Plaintiff and Respondent.









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

Barry P. Helft
Chief Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Amy Haddix
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5893


Automatic appeal from a judgment of death.

Opinion Information
Date:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 07/27/2009S043628Automatic Appealopinion issued

CARRINGTON (CELESTE) ON H.C. (S142464)


Parties
1The People (Respondent)
Represented by Attorney General - San Francisco Office
Amy Haddix, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Carrington, Celeste Simone (Appellant)
Central California Women's Facility
Represented by Barry P. Helft
Office of the State Public Defender
221 Main Street, 10th Floor
San Francisco, CA


Disposition
Jul 27 2009Opinion: Affirmed

Dockets
Nov 23 1994Judgment of death
Dec 5 1994Filed certified copy of Judgment of Death Rendered
11-23-94.
Nov 19 1998Counsel appointment order filed
Andrew S. Love Is appointed to represent Applt for the direct Appeal.
Nov 19 1998CAP CONFLICT EXISTS
Jan 15 1999Application for Extension of Time filed
By Applt to request correction of the Record.
Jan 20 1999Extension of Time application Granted
To Applt To 3-19-99 To request Corr. of Record.
Mar 18 1999Application for Extension of Time filed
By Applt to request correction of the Record.
Mar 23 1999Extension of Time application Granted
To 5-18-99 To request Record correction
Apr 2 1999Compensation awarded counsel
May 17 1999Received copy of appellant's record correction motion
Applt's request to correct, augment, settle record; & to examine sealed transcripts (16 pp.)
May 19 1999Filed:
Request by Inmate for Dual representation.
May 19 1999Filed:
Request by Counsel for Dual representation appointment.
May 19 1999Order filed
Atty Andrew S. Love, previously appointed to represent appellant for the direct appeal, is appointed to represent appellant for habeas corpus/executive clemency proceedings related to the automatic appeal.
May 24 1999Compensation awarded counsel
Jun 18 1999Change of Address filed for:
Attorney General
Jun 23 1999Compensation awarded counsel
Jun 22 2000Change of Address filed for:
Atty Andrew Love
Jul 21 2000Counsel's status report received (confidential)
Sep 21 2000Counsel's status report received (confidential)
Nov 22 2000Counsel's status report received (confidential)
Nov 27 2000Received:
Copy of applt's request to correct the record, augment the record, examine sealed transcripts, seal other documents and settle the record on appeal
Jan 24 2001Counsel's status report received (confidential)
from atty Love.
Mar 26 2001Counsel's status report received (confidential)
Jun 8 2001Counsel's status report received (confidential)
Aug 9 2001Counsel's status report received (confidential)
Oct 15 2001Counsel's status report received (confidential)
Dec 12 2001Counsel's status report received (confidential)
Feb 25 2002Counsel's status report received (confidential)
Apr 22 2002Counsel's status report received (confidential)
Jun 20 2002Record on appeal filed
C-32 (8304 pp.) and R-110 (8134 pp.); including material under seal. Clerk's transcript includes 5767 pp. of juror questionnaires.
Jun 20 2002Appellant's opening brief letter sent, due:
July 30, 2002.
Jun 26 2002Compensation awarded counsel
Atty Love
Jul 1 2002Counsel's status report received (confidential)
from atty Love.
Jul 29 2002Request for extension of time filed
To file AOB. (1st request)
Jul 30 2002Extension of time granted
To 9/30/2002 to file AOB. The court anticipates that after that date, only five further extensions totaling 300 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 14 2002Filed:
request by inmate for dual representation.
Aug 14 2002Filed:
request by counsel (SPD) for dual representation appointment.
Aug 14 2002Motion to withdraw as counsel filed
by attorney Andrew S. Love, counsel for appellant.
Aug 14 2002Motion for appointment of counsel filed
for appointment of State Public Defender as counsel for appellant.
Aug 28 2002Order appointing State Public Defender filed
Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant Celeste Simone Carrington, filed August 14, 2002, is granted. The order appointing Andrew S. Love as appellate counsel of record for appellant Celeste Simone Carrington, filed November 19, 1998, and the order appointing Andrew S. Love as habeas corpus/executive clemency counsel of record for appellant Celeste Simone Carrington, filed May 19, 1999, are hereby vacated. The State Public Defender is hereby appointed as attorney of record to represent appellant Celeste Simone Carrington for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court.
Aug 30 2002Counsel's status report received (confidential)
from atty Love.
Sep 24 2002Request for extension of time filed
To file appellant's opening brief. (2nd request)
Sep 27 2002Extension of time granted
To 12/2/2002 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, ofthis schedule, and to tatake all steps necessary to meet it.
Oct 29 2002Counsel's status report received (confidential)
from State P.D.
Nov 25 2002Request for extension of time filed
To file appellant's opening brief. (3rd request)
Nov 27 2002Extension of time granted
To 1/31/2003 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.
Dec 30 2002Counsel's status report received (confidential)
from State P.D.
Jan 24 2003Request for extension of time filed
to file appellant's opening brief. (4th request)
Jan 29 2003Extension of time granted
to 4/1/2003 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 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 3 2003Counsel's status report received (confidential)
from State P.D.
Mar 24 2003Request for extension of time filed
to file appellant's opening brief. (5th request)
Mar 28 2003Extension of time granted
to 6/2/2003 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.
Apr 4 2003Filed:
Augmented clerk's transcript. (1 volume - 298 pp.)
May 2 2003Counsel's status report received (confidential)
May 19 2003Received letter from:
State P.D., dated 5-19-03, with copy of page 7A to augmented clerk's transcript, filed on 4-4-03.
May 27 2003Request for extension of time filed
to file appellant's opening brief. (6th request)
Jun 2 2003Extension of time granted
to 8/1/2003 to file appellant's opening brief. After that date, only two further extensions totaling 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kathryn E. Collier and Asst. State Public Defender Barry Helft's representation that they anticiptes filing that brief by 11/30/2003.
Jul 1 2003Counsel's status report received (confidential)
Jul 17 2003Request for extension of time filed
to file AOB. (7th request)
Jul 23 2003Extension of time granted
to 9-30-2003 to file AOB. 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.
Aug 4 2003Filed:
one vol. of "clerk's supplemental transcript." (120 pp.)
Sep 2 2003Counsel's status report received (confidential)
Sep 23 2003Request for extension of time filed
to file appellant's opening brief. (8th request)
Sep 30 2003Extension of time granted
to 12/1/2003 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Kathryn E. Collier's representation that she anticipates filing that brief by 12/1/2003. After that date, no further extension is contemplated.
Nov 3 2003Counsel's status report received (confidential)
from State P.D.
Nov 20 2003Request for extension of time filed
to file appellant's opening brief. (9th request)
Nov 25 2003Extension of time granted
to 12/31/2003 to file appellant's opening brief. Extension is granted based upon Deputy State Pubilc Defender Kathryn E. Collier's representation that she anticipates filing that brief by 12/31/2003. After that date, no further extension will be granted.
Dec 30 2003Application to file over-length brief filed
by appellant to file opening brief. (382 pp. brief submitted under separate cover)
Jan 2 2004Counsel's status report received (confidential)
from State P.D.
Jan 6 2004Order filed
Appellant's "Application for Leave to File Appellant's Opening Brief Exceeding 280 Page Limit" is granted.
Jan 6 2004Appellant's opening brief filed
(382 pp.)
Jan 7 2004Filed:
Supplemental declartion of service of appellant's opening brief.
Jan 30 2004Request for extension of time filed
to file respondent's brief. (1st request)
Feb 2 2004Extension of time granted
to 4-5-2004 to file respondent's brief.
Mar 2 2004Counsel's status report received (confidential)
from State P.D.
Apr 2 2004Request for extension of time filed
to file respondent's brief. (2nd request)
Apr 12 2004Extension of time granted
to June 4, 2004 to file respondent's brief. After that date, only one further extensions totaling 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Amy Haddix's representation that she anticipates filing that brief by August 3, 2004.
May 4 2004Counsel's status report received (confidential)
from State P.D.
Jun 2 2004Request for extension of time filed
to file respondent's brief. (3rd request)
Jun 4 2004Extension of time granted
to 8/2/2004 to file respondent's brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Deputy Attorney General Amy Haddix's representation that she anticipates filing that brief by 9/17/2004.
Jul 6 2004Counsel's status report received (confidential)
Jul 29 2004Request for extension of time filed
to file respondent's brief. (4th request)
Aug 3 2004Extension of time granted
to 9-17-2004 to file respondent's brief. After that date, no further extension is contemplated. Extension granted based upon Deputy AG Amy Haddix's representation that she anticipates filing the brief by 9-17-2004.
Aug 31 2004Counsel's status report received (confidential)
from State P.D.
Sep 16 2004Respondent's brief filed
(62208 words; 202 pp.)
Sep 16 2004Request for judicial notice filed (AA)
respondent's request.
Sep 30 2004Request for extension of time filed
to file reply brief. (1st request)
Oct 6 2004Extension of time granted
to 12/6/2004 to file appellant's reply brief. After that date, only four further extensions totaling about 240 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kathryn Collier's representation that she anticipates filing that brief by 8/6/2005.
Nov 1 2004Counsel's status report received (confidential)
from State P.D.
Nov 24 2004Request for extension of time filed
to file appellant's reply brief. (2nd request)
Dec 1 2004Extension of time granted
to February 4, 2005 to file the reply brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kathryn E. collier's representation that she anticipates filing that brief by August 6, 2005.
Jan 3 2005Counsel's status report received (confidential)
Jan 28 2005Request for extension of time filed
to file appellant's reply brief. (3rd request)
Feb 1 2005Extension of time granted
to 4/5/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kathryn E. Collier's representation that she anticipates filing that breif by 8/6/2005.
Mar 1 2005Counsel's status report received (confidential)
from State P.D.
Mar 29 2005Request for extension of time filed
to file appellant's reply brief. (4th request)
Apr 7 2005Extension of time granted
to 6/6/2005n to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kathryn E. Collier's representation that she anticipates filing that brief by 8/6/2005.
May 2 2005Counsel's status report received (confidential)
from State P.D.
May 27 2005Request for extension of time filed
to file appellant's reply brief. (5th request)
Jun 7 2005Extension of time granted
to 8/8/2005 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Public Defender Kathryn E. Collier's representation that she anticipates filing that brief by 8/8/2005.
Jul 1 2005Counsel's status report received (confidential)
from State P.D.
Aug 2 2005Request for extension of time filed
to file appellant's reply brief. (6th request)
Aug 9 2005Extension of time granted
to 10/7/2005 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Kathryn E. Collier's representation that she anticipates filing that brief by 10/7/2005. After that date, no further extension is contemplated.
Aug 30 2005Counsel's status report received (confidential)
Oct 7 2005Appellant's reply brief filed
(21,695 words; 86 pp.)
Oct 12 2005Order filed
Appellant's motion for leave to file supplemental opening brief is granted. Any supplemental respondent's brief must be served and filed on or before 11/1/2005.
Oct 12 2005Supplemental brief filed
appellant's supplemental opening brief. (631 words; 4 pp.)
Oct 14 2005Filed letter from:
respondent, dated 10/14/2005, advising respondent declines to file supplemental respondent's brief unless directed by the court.
Oct 31 2005Counsel's status report received (confidential)
from State P.D.
Dec 30 2005Counsel's status report received (confidential)
from State P.D.
Feb 28 2006Counsel's status report received (confidential)
from State P.D.
Apr 5 2006Related habeas corpus petition filed (concurrent)
No. S142464
Mar 11 2009Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the May calendars, to be held the week of May 4 and the week of May 25, 2009, 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 11 2009Filed:
Letter from Chief Deputy State Public Defender Barry P. Helft, dated March 11, 2009, requesting oral argument in May not be set earlier than the calendar for the week of May 25, 2009.
Apr 22 2009Case ordered on calendar
to be argued Wednesday, May 27, 2009, at 1:30 p.m., in San Francisco
Apr 24 2009Received:
appearance sheet for Deputy Attorney General Amy Haddix, indicating 30 minutes for oral argument for respondent.
Apr 29 2009Filed:
appellant's focus issues letter, dated April 29, 2009.
Apr 30 2009Received:
appearance sheet for Deputy State Public Defender Barry Helft, indicating 30 minutes for oral argument for appellant.
May 18 2009Filed:
respondent's supplemental authorities letter, dated May 18, 2009.
May 27 2009Cause argued and submitted
Jul 24 2009Notice of forthcoming opinion posted
Jul 27 2009Opinion filed: Judgment affirmed in full
...defendant's convictions on counts 9 and 10 are reversed and the judgment and sentence are otherwise affirmed. Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Aug 10 2009Rehearing petition filed
by appellant. (2,965 words; 13 pp.)
Aug 13 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 26, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.

Briefs
Jan 6 2004Appellant's opening brief filed
(382 pp.)
Sep 16 2004Respondent's brief filed
(62208 words; 202 pp.)
Oct 7 2005Appellant's reply brief filed
(21,695 words; 86 pp.)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website