Filed 5/8/06
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S032509
v.
ERIK SANFORD CHATMAN,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. 143749
A jury convicted Erik Sanford Chatman of first degree murder under the
special circumstance of torture murder and with use of a knife.1 The jury
acquitted him of robbery and rejected a related robbery-murder special-
circumstance allegation.2 It did find defendant guilty of the lesser offense of
grand theft. After the jury returned a death verdict, the court denied defendant’s
motion to modify the verdict3 and imposed sentence. In this automatic appeal, we
affirm the judgment.4
1 Penal Code sections 187, 190.2, subdivision (a)(18), 12022,
subdivision (b). All further undesignated statutory references are to the Penal
Code.
2 Sections 190.2, subdivision (a)(17), 211.
3 Section 190.4.
4 Section 1239, subdivision (b).
1
I. FACTS
A. Guilt Phase
1. Overview
On October 7, 1987, defendant stabbed Rosellina Lo Bue to death at a Photo
Drive-Up store in San Jose. He stabbed Lo Bue 51 times and took cash from the
store. The only eyewitness was defendant’s son, Mario, then two and a half years
old.
These facts are undisputed. Contested at trial was what specific crimes
defendant had committed. While the prosecution alleged first degree murder,
robbery, and attendant special circumstances, defendant contended he was guilty
only of manslaughter or second degree murder and innocent of robbery.
2. Prosecution Evidence
Lo Bue worked at the store along with defendant’s wife, Yvonne Chatman.5
Yvonne usually worked from 9:00 a.m. to 6:00 p.m., while Lo Bue worked from
2:00 or 3:00 p.m. until 6:00 p.m. On the day of the killing, Yvonne opened the
store but falsely told her supervisor that she had to leave because her husband and
son had been in an automobile accident. Yvonne returned home, and Lo Bue was
called to take her place. Yvonne testified that around 3:00 p.m., defendant left
their apartment with their son, Mario. Defendant said they were going to the park,
but instead took the boy to the store. Independent witnesses saw defendant there
with Lo Bue until the 6:00 p.m. closing time. Lo Bue did not appear to be afraid
of defendant.
Mario was seven years old at the time of trial, and testified he saw his father
stab the victim. Mario remembered that the knife came from a yellow box, but did
5 Because defendant and his wife share a common surname, we refer to
Ms. Chatman by her given name to avoid confusion.
2
not recall when he first saw it. Defendant was the only person Mario saw handle
the knife. After the stabbing, defendant ran home with Mario. Mario could not
remember whether defendant carried him. At home, both defendant and Mario
took a shower. Mario said he thought he took the shower because Mario had
blood on his hands.
Around 7:15 p.m., passerby Curtis Jones saw the store apparently unattended
with the door ajar. On closer inspection, Jones saw Lo Bue’s body and called the
police.
The crime scene was in disarray, the walls spattered in blood. Most of the
blood was less than three feet from the floor, indicating the victim had been
stabbed while crouching or reclining. Carpeting behind the main counter was
soaked with blood. The cash drawer lay empty on the counter. There was no
blood on the cash register. A safe under the side counter was open. An envelope
unmarked by blood and containing over $100 in cash, along with checks and
deposit slips, remained in the safe. According to a notation on the envelope, it
contained the store proceeds from October 6, minus $150. October 7 proceeds
were missing. It appeared the safe had been opened after the stabbing, because the
door was spattered with blood but the interior was not. The victim’s purse was
found under the counter. It was covered in blood but still contained a wallet with
about $27 in cash. An envelope containing less than $2 was recovered from one
of the countertops. A telephone receiver had been torn from the wall.
Defendant’s fingerprint was found on a photocopy machine.
The store video surveillance camera was inoperable on the day of the
stabbing. Yvonne knew the camera did not work. She may have told defendant
this, but she could not recall.
Yvonne heard defendant come home that evening. Shortly thereafter she saw
her husband and son standing in bloody water in the tub. Defendant was flustered
3
and had scratches on his chest. Something he said caused her to go to the store,
where she saw paramedics removing Lo Bue’s body. When she returned home,
defendant was excited. She saw cash and checks in a moneybag like one used at
the photo shop. Defendant’s finger was badly cut. He told Yvonne’s mother,
Mary Irving, that he had gotten cut while either fighting or robbing someone.
Later the same evening, at defendant’s insistence, defendant, Yvonne, Mario, and
Irving went to East Palo Alto, where they purchased crack cocaine, using money
defendant had taken from the store. The three adults smoked the drugs in a motel
room.
The next day, when police came to the apartment, Yvonne spoke to them
while defendant hid in the bathroom. Yvonne reported that she had not been to
work because her “boyfriend” and son had been in an automobile accident, and
she had spent the previous night at the boyfriend’s home. After the police left,
defendant told Yvonne that if she “told that he did it, he would . . . get me and my
family, he would drag us all into it.” Yvonne and defendant separated shortly
thereafter.
Defendant lived with Tina Whaley for several months in 1988. She testified
defendant told her he had killed a woman at the Photo Drive-Up. He said the
victim was acting as if she were high on drugs, and while they spoke she pulled a
knife on him. Defendant disarmed the victim, and stabbed her “quite a few times”
because “she kept coming back. He said she wouldn’t die.” He stabbed her “all
over from the neck down, chest, stomach, everywhere.” The victim “went for the
phone and he pulled it out of the wall.” After the stabbing he took about $500
from the cash register, ran home with his son, and showered. He also burned his
clothes. He told his wife what happened, and threatened to kill her if she told
anyone. That evening, along with his wife, son, and mother-in-law, defendant
4
used money he took from the store to buy crack cocaine, which they smoked in a
motel.
Rosalind Wathel was defendant’s girlfriend in Houston, Texas, for about
eight months in 1989. She testified that defendant described the incident and
seemed to be bragging. He told Wathel he had gone there with his son to collect
some photographs. “[H]e wasn’t happy with the photos, and . . . he had stabbed
the girl that was there” repeatedly. After he stabbed her, “he robbed her to go get
some more crack cocaine and alcohol.” He said the girl begged him to stop, and
that “the more she asked him to stop the more he kept stabbing,” because “[i]t felt
good.” He said that “[i]t just start[ed] feeling good and he just kept doing it even
after she had got quiet.” He told his wife and “made her promise not to tell. . . .
[S]he got afraid and left, and took the baby.”
William Speed testified defendant told him that he had stabbed someone in a
fight and he “kind of” seemed to be bragging. He said he stabbed the person in the
neck and “the person was gurgling, kind of choking on his own blood.”
The murder weapon was never found. According to witnesses, no knives
were kept in the store. Lo Bue’s sister testified that the victim never carried one.
Shortly after the killing, Yvonne and her mother, Mary Irving, noticed that a
distinctive kitchen knife was missing from their home. Yvonne last saw the knife
a couple of days before the killing. Its handle was about four inches long with a
blade between seven and a half and 10 inches long. The blade was about an inch
and a half at the hilt and narrowed to a point. It was the only sharp knife the
family owned.
Yvonne’s sister, Denise Taylor, also testified Mary Irving told her that
defendant said he stabbed the victim, who was gasping and gagging for air. At
trial, Irving denied that defendant had said this to her or that she had repeated such
a statement to anyone.
5
An autopsy revealed that Lo Bue died from exsanguination and asphyxiation
due to a collapsed lung. Of the 51 separate knife wounds she sustained, seven
were defensive wounds to the hands and forearms. On the front of the body, there
were two life-threatening neck wounds. One severed the jugular vein; the other
cut through the esophagus and trachea. While not immediately fatal, the latter
wound would have caused labored breathing, accompanied by a gurgling sound.
The frontal wounds cut through all layers of the skin and into the underlying
tissue. They would have bled extensively.
Three of the back wounds were quite serious. They penetrated the chest
cavity and completely pierced through the right lung. They caused significant
bleeding, collapsing the lung and resulting in an inability to breathe. Eight other
back wounds cut through the skin, fatty tissue, and perhaps into underlying
muscle, but did not enter the chest cavity. Thus wounded, Lo Bue would have
died after the lapse of several minutes.
The injuries were inflicted by a single-bladed knife of undetermined length
and width. The wounds did not seem to follow a pattern and were inflicted from
varying angles, with the assailant in varying positions. The victim had no alcohol
or drugs in her system.
The police arrested defendant in Houston, Texas, on April 24, 1990. He was
found hiding in a closet.
3. Defense Evidence
Defendant admitted stabbing Lo Bue. He testified that he went to the store
around 3:00 p.m. to talk with her about his troubled marriage. He did not have a
knife. After the store closed, Lo Bue told him that “Yvonne had confided in her
that she wasn’t happy with the relationship as far as me not having a full-time
job.” Lo Bue said that “she told [Yvonne] that she should go ahead and separate
6
from me and find somebody . . . that she could be happy with.” These words “hit
me like a ton of bricks and I became very upset, because at that time I didn’t know
she was giving my wife advice.” He “started talking loud and said some things
that I shouldn’t have said.” Lo Bue appeared frightened. At this point, Mario said
something and defendant turned toward the boy. When he turned back toward Lo
Bue, she had a knife in her hand and ordered him to leave. He took the knife from
her, cutting his finger in the process. Once armed, “I guess you would say in a
blind rage I started stabbing her with it.” He stabbed Lo Bue until she was dead.
When Mario said something like, “Daddy, I want to go home,” defendant
stopped stabbing Lo Bue. He left the store, taking the knife, some money, and a
telephone with him. He “yanked [the phone] out of the wall.” He was
“panicking,” and took the knife and phone because they contained his finger
prints. He did not decide to take any money until after the stabbing. He did so as
an “afterthought” to give the appearance of robbery. He took the money from a
counter and put it in a store bag with everything else. He ran home with his son as
fast as he could. He went straight into the shower with his son, who had blood on
him from being carried by defendant. He told Yvonne what had happened and she
left the bathroom, taking the items he had brought from the business. Yvonne
later burned checks taken from the business. She told him that she had thrown
some of the other items away, including the knife and phone, but not the money.
Defendant also told Mary Irving what had happened. Later they went to East Palo
Alto, where they spent the night in a motel. Yvonne and Irving bought drugs. He
did not go with them to make the purchase, but all three smoked the drugs.
Defendant denied threatening Yvonne initially. Later, when she threatened
to tell the police, he said that if she did, he would tell the police about her
involvement. He told Tina Whaley what had happened, but denied saying he had
threatened to kill Yvonne. He did not tell her that the stabbing took a long time,
7
saying instead that “it happened all so fast.” Defendant denied telling Rosalind
Wathel anything about the stabbing. They “never talked about it period. I left all
that behind me when I went to Texas.” Although he admitted telling William
Speed about the stabbing, he denied bragging or saying anything about a gurgling
sound. Defendant knew the store had a camera, but denied that Yvonne told him it
did not work.
Defendant presented several other witnesses, some in an attempt to impeach
Rosalind Wathel. Regina Pickens-West was Wathel’s friend. Although Wathel
had testified that Pickens-West was present when defendant told her about the
incident, Pickens-West testified she never heard defendant mention stabbing
anyone. Wathel had testified that she reported defendant’s statements to a
Houston police officer named Chris. Houston Police Officer A.G. Christal, known
as Officer Chris, testified that he sometimes spoke with Wathel, but she never
reported that her boyfriend confessed to a stabbing. Other witnesses testified that
Wathel voluntarily submitted to a day of psychological testing in Houston.
Additional defense evidence included testimony from an astronomer
regarding the available light on the evening of the stabbing. Photos of the crime
scene came in through the testimony of a defense investigator. A paramedic
described the appearance of Lo Bue’s body. Tina Whaley testified she had been
convicted of embezzlement in 1988. Candy Howard testified that once around
October 8, 1987, when she lived in East Palo Alto, Yvonne Chatman and her sister
came to her home in the middle of the night to buy crack cocaine. No man was
with them. Yvonne paid with a $100 bill. San Jose Police Sergeant George
Padilla testified about previous statements some prosecution witnesses had made.
8
B. Penalty Phase
1. Prosecution Evidence
Yvonne testified that about three weeks after the stabbing, defendant choked
her into unconsciousness. Tina Whaley testified that defendant told her that he
had once “started strangling [Yvonne], and that she passed out.” He thought she
had died.
Whaley and others testified that in late December 1988, about two months
after Whaley and defendant separated, defendant burned Whaley’s apartment after
discovering her there with another man. The arson investigator testified that six
separate fires were set throughout the apartment. According to Rosalind Wathel,
defendant told her that he had found a former girlfriend in bed with someone else,
and that “he set the place on fire.” He watched from a distance while firefighters
fought the blaze.
Wathel also testified that she and defendant once argued because she wanted
to use food stamps to buy food while defendant wanted to “cash” them and buy
crack cocaine. He struck her face with his fists and cut her forehead with a
kitchen knife, leaving a scar. After she fell to the floor, “he literally took his boots
and kicked me in the vagina constantly until I passed out.” When she regained
consciousness, defendant was smoking cocaine. He told her that if she had not
“come to, he wanted to know what he was going to do to dispose of my body.”
A witness testified that around 1981, defendant assaulted him and another
custodian at a high school. A police officer testified that in February 1981,
defendant also assaulted him at the high school while the officer was off duty.6
Salvador Lo Bue, the victim’s father, testified about the killing’s impact on
himself and his family.
6 Testimony regarding the high school assaults was presented in rebuttal,
as part of a reopened case-in-chief.
9
2. Defense Evidence
Defendant testified at length about his life, including his unhappy childhood.
His father was African-American and his mother Caucasian. His father, an
alcoholic, beat him with a belt throughout his childhood. Other than the beatings,
he had little interaction with his father. He testified about meeting Yvonne and the
birth of his son. The day Mario was born was “the happiest day of my life.” One
day, when defendant and Yvonne took Mario to meet defendant’s father, his three
younger siblings told him their father had been beating them. The father appeared
and started beating his sister with a belt. The father saw defendant, went into the
bedroom and got a gun. He had pointed a gun at defendant once before.
Defendant called the police and never saw his father again.
Regarding the choking of Yvonne, defendant said he simply grabbed her by
the coat collar and she passed out. He said she “had the look of smoking crack,”
and denied squeezing her neck. He admitted the incident to Tina Whaley, but
insisted he described it just as he had done at trial. He admitted the arson at Tina’s
apartment. He had been drinking, and intended to leave her with nothing, “like I
was being left with nothing.” As to the Rosalind Wathel assault, he maintained
that certain injuries she attributed to him preexisted their acquaintance. He said
she would drink a great deal and would sometimes pass out in the apartment.
Defendant said he could not ask for forgiveness because what he had done
was so terrible, but he hoped the jury could understand why he did it. “Violence
became a part of my life and as I grew older I used violence to solve problems
which wasn’t right, but that’s what I did.” He said he wanted to live.
There was testimony about defendant’s family, school record, and
employment history. Witnesses included two of his boyhood neighbors, two
teachers, and several employers at various jobs, predating and following the
murder. He was generally a good worker. Defendant’s younger brother, Jason,
10
testified about living with their father and about the time their father pulled a gun.
A former Palo Alto police officer also testified about that event.
One of defendant’s high school friends and two of his cousins testified about
the high school incidents, largely exonerating defendant.
3. Rebuttal and Surrebuttal
In rebuttal, one of defendant’s former employers testified that once, when he
confronted defendant with complaints, defendant tried to punch him in the face. A
juvenile probation officer impeached portions of defendant’s testimony. He
testified that while defendant was living with his mother in 1980, a petition against
him was sustained in juvenile court and he was placed on formal probation.
In surrebuttal, a boy’s ranch counselor testified about defendant’s good
behavior there. A juvenile probation officer testified about his report regarding
the assault on the off-duty officer.
II. DISCUSSION
A. Denial of Motions to Disqualify Trial Judge and Related
Misconduct Claim
Defendant twice moved to disqualify the trial judge, John T. Ball. Both
times, another superior court judge heard and denied the motion under Code of
Civil Procedure sections 170.1 and 170.3. Defendant challenges these rulings as
erroneous, and contends the facts underlying the second motion demonstrate
judicial misconduct. We disagree.
1. Facts
Before jury selection began, Judge Ball told the parties that 14 or 15 years
previously, his daughter had been robbed at knifepoint while working at a photo
shop. The judge accompanied his daughter to a live lineup and to the preliminary
hearing where she testified and identified the robber. Defendant moved for Judge
Ball’s disqualification. The judge filed an answer reaffirming these facts and
11
adding that the “incident in question is dim and distant in my mind.” His daughter
was an adult at the time, had not lived with him for about five or six years, and had
not been injured. They had not discussed the incident in over 10 years. He went
on to attest, “I did not make nor do I presently have the slightest connection with
the event occurring to my daughter and the pending matter before me. I in no way
feel bias, prejudice regarding the defendant nor for that matter any person charged
with a crime as a result of my daughter’s victimization.” The motion was assigned
by stipulation to another judge and denied.
After return of the penalty verdict but before rulings on post-verdict motions,
defendant again moved to disqualify Judge Ball. In his motion he cited the
previous grounds, and added allegations that: “[O]n December 14, 1992, after the
death verdict, Judge Ball approached the rail dividing the well of the courtroom
from the spectators and spoke to the victim’s father [who had testified at the
penalty phase]. The Judge mentioned how he (the Judge) knew it has been very
hard. Mr. Lo Bue responded about the fact that he (the Defendant) took his baby’s
life, and that his (the defendant’s) life should be taken.” Defendant supplied a
supporting declaration by John Aaron, who had been in the courtroom. Aaron said
that he could not “remember what was said verbatim or what else was said but the
encounter lasted about forty seconds. I do not recall who spoke first.”
In Judge Ball’s answer, he stated: “During the trial there were various times
wherein Mrs. Lo Bue, mother of the victim, would lose her composure and speak
out. Concern was expressed on the occasions and, upon request and I believe
without request, admonishments were given to the jury. On these occasions, when
present, Mr. Lo Bue, father of the victim, would attempt to control and console his
wife. On December 14, 1992, . . . after the jury reached its verdict, Mr. Lo Bue
accosted me in the courtroom when I returned to the courtroom to deliver items to
my clerk, and attempted to apologize for his wife’s conduct. My best recollection
12
is that I merely acknowledged his concern and indicated it was understandable and
that he should not concern himself with the matter. I extended the same courtesy
to him that I would have extended to anyone expressing anxiety. I specifically cut
short his statements, and by my conduct indicated my inability to discuss the
matter further with him. The comments regarding the Defendant’s punishment
and the loss of his daughter were addressed to my Deputy and not to me. The only
comment I heard related to the apology for his wife’s conduct.” He denied that his
daughter’s experience or his feelings or statements to the victim’s father affected
his feelings toward defendant or the charges.
By stipulation, the motion was assigned to a different judge from the one
who had heard the first disqualification motion. The second motion was denied.
The judge concluded an evidentiary hearing was unnecessary: “[T]he second
incident was handled appropriately by Judge Ball . . . [H]e still maintains and
maintained throughout that incident the appearance of impartiality.”
2. Analysis
Defendant asserts the motions to disqualify should have been granted. At
trial, he relied primarily on Code of Civil Procedure section 170.1, subdivision
(a)(6)(C), which provided that a judge is disqualified if “a person aware of the
facts might reasonably entertain a doubt that the judge would be able to be
impartial. . . .”7 He also argued that “[a] biased decision maker is constitutionally
unacceptable,” citing Withrow v. Larkin (1975) 421 U.S. 35. That case stated that
“ ‘a fair trial in a fair tribunal is a basic requirement of due process.’ ” (Id. at p.
46.)
7 Although section 170.1 has since been renumbered and amended, the
current substantive provisions of Code of Civil Procedure section 170.1,
subdivision (a)(6)(A)(iii), are identical.
13
a. Preservation of the Claim
The Attorney General urges defendant did not challenge these rulings by a
pretrial writ, thus forfeiting the right to complain on appeal. He is partially
correct. Code of Civil Procedure section 170.3, subdivision (d), provides: “The
determination of the question of the disqualification of a judge is not an appealable
order and may be reviewed only by a writ of mandate from the appropriate court
of appeal sought within 10 days of notice to the parties of the decision and only by
the parties to the proceeding.” This provision governs both peremptory
challenges8 and those made for cause.9 (People v. Hull (1991) 1 Cal.4th 266, 272-
275.) In People v. Brown (1993) 6 Cal.4th 322, 335 (Brown), we held a claim
based on the statute was barred, but that a constitutionally based challenge
asserting judicial bias could be raised on appeal.
In Brown, the defendant did file a pretrial writ. We noted that a defendant
“may, and should, seek to resolve such issues by statutory means, and that his
negligent failure to do so may constitute a forfeiture of his constitutional claim.”
(Brown, supra, 6 Cal.4th at p. 336.) We have subsequently indicated, however,
that a defendant who raised the claim at trial may always “assert on appeal a claim
of denial of the due process right to an impartial judge.” (People v. Mayfield
(1997) 14 Cal.4th 668, 811 (Mayfield).)10 While defendant may not raise the
statutory claim on appeal, he may assert a constitutionally based challenge of
judicial bias. (Brown, at p. 335.)
8 Code of Civil Procedure section 170.6.
9 Code of Civil Procedure section 170.1.
10 See also People v. Williams (1997) 16 Cal.4th 635, 652 and footnote 5
(issue forfeited because defendant agreed at trial to have the judge hear the case;
moreover, statutory, but not constitutional, claim would have been forfeited
because of failure to bring a pretrial writ proceeding).
14
b. Merits of the Constitutional Claim
As noted, the statute requires the disqualification of a judge whenever “a
person aware of the facts might reasonably entertain a doubt that the judge would
be able to be impartial . . . .” (Code Civ. Proc., § 170.1, former subd. (a)(6)(C),
see now subd. (a)(6)(A)(iii).) The Attorney General argues the constitutional
standard is narrower. He cites Bracy v. Gramley (1997) 520 U.S. 899, where the
high court explained that “most questions concerning a judge’s qualifications to
hear a case are not constitutional ones, because the Due Process Clause of the
Fourteenth Amendment establishes a constitutional floor, not a uniform standard.
[Citation.] Instead, these questions are, in most cases, answered by common law,
statute, or the professional standards of the bench and bar. [Citations.] But the
floor established by the Due Process Clause clearly requires a ‘fair trial in a fair
tribunal,’ [citation], before a judge with no actual bias against the defendant or
interest in the outcome of his particular case.” (Id. at pp. 904-905, italics added.)
Accordingly, the Attorney General argues that the due process claim requires a
showing of actual bias, whereas the statute requires only the appearance of bias.
We need not further address the distinction because defendant has failed to show
even the appearance of bias.
Potential bias and prejudice must clearly be established by an objective
standard. (In re Scott (2003) 29 Cal.4th 783, 817.) “Courts must apply with
restraint statutes authorizing disqualification of a judge due to bias.” (Ibid.)
Under this standard, there was no error. Defendant’s allegations in support
of his disqualification motions “simply do not support a doubt regarding [the trial
judge’s] ability to remain impartial.” (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 50, fn. omitted.) The mere fact that Judge Ball’s daughter had been the
victim of a knifepoint robbery at a photograph store many years before does not
disqualify him. Judges, like all human beings, have widely varying experiences
15
and backgrounds. Except perhaps in extreme circumstances, those not directly
related to the case or the parties do not disqualify them.11 In this case, the judge
stated unequivocally that he made no connection between the earlier robbery and
the present case. “ ‘[W]e of course presume the honesty and integrity of those
serving as judges.’ ” (Mann v. Thalacker, supra, 246 F.3d at p. 1097.)
The judge’s brief encounter with the victim’s father shortly after the jury’s
penalty verdict likewise did not require his disqualification. Judge Ball did not
seek out the encounter. The victim’s father approached him to apologize for his
wife’s behavior. The judge merely listened briefly and expressed sympathy,
extending “the same courtesy to him that I would have extended to anyone
expressing anxiety.” While a judge in any case must ensure that every litigant
receives a fair trial, no rule precludes a judge from treating members of the public
with courtesy. To require that the judge here simply turn his back on the father
would do nothing to make the proceedings fairer to defendant. The entitlement of
a criminal defendant to a fair trial must never be compromised. Yet the criminal
justice system does not exist for the benefit of criminal defendants alone. Parents
of murder victims also have a stake in the criminal justice system. Courts may
also consider, and be sensitive to, the needs and concerns of crime victims and
their families.
Defendant contends the judge ruling on the second motion should have taken
testimony to resolve asserted factual discrepancies between Judge Ball’s account
and that of the witness, John Aaron. A hearing was unnecessary. Judge Ball’s
account was more complete than Aaron’s, but it was not inconsistent. Aaron
acknowledged he was recounting only part of the conversation, and could not
11 See Mann v. Thalacker (8th Cir. 2001) 246 F.3d 1092, 1096-1097 (fact
that trial judge had personally been the victim of sexual abuse many years earlier
did not disqualify him in a sex abuse case).
16
remember who spoke first. Thus, Aaron’s observations were fragmentary, and
contained nothing to cast doubt on Judge Ball’s more inclusive statement. Given
the circumstances, Judge Ball handled the impromptu incident with the victim’s
father appropriately.
Defendant argues that, standing alone, the father’s statement that defendant’s
life should be taken requires the judge’s disqualification. The argument fails. It is
immaterial whether the comment was directed to the bailiff or the judge, and
whether the judge heard it directly, through staff, or in connection with
defendant’s motion. It is clear that the judge did not solicit the comment.
During a trial any number of things come to a judge’s attention beyond the
strict confines of the written record. Among these are the reactions of spectators
manifested by their facial expressions and other behavior, before, during, and after
court sessions. Indeed, judges must be aware of these things as part of their
diligent trial management and their responsibility to ensure that jurors remain
unaffected by them. Likewise, judges are often asked to rule on the admissibility
of evidence they ultimately exclude. Judges are required to set this information
aside, just as jurors are instructed to do when evidence is stricken.
In this case, given the father’s testimony during the penalty phase, it was
hardly a revelation that he favored the death penalty. Certainly the father should
not have approached the judge. Such conduct is inappropriate, as would be a plea
from a defendant’s family to spare their loved one. Yet events of this nature do
happen. Capital cases unfold in a crucible of strong emotions. Courts cannot
expect that families will always conform their behavior to the standards of trained
professionals. However, the court system must function in the face of
occasionally imperfect behavior from the public. The record contains no evidence
that the father’s comment influenced the court’s rulings. No reasonable person
17
would doubt that a judge could remain impartial merely because of a brief
encounter that the murder victim’s father initiated after the penalty verdict.12
B. Jury Selection
Defendant contends the court erred in excluding two prospective jurors
because of their views on the death penalty. “The applicable law is settled. The
trial court may excuse for cause a prospective juror whose views on the death
penalty would prevent or substantially impair the performance of that juror’s
duties. (People v. Mayfield (1997) 14 Cal.4th 668, 727.) ‘On appeal, we will
uphold the trial court’s ruling if it is fairly supported by the record, accepting as
binding the trial court’s determination as to the prospective juror’s true state of
mind when the prospective juror has made statements that are conflicting or
ambiguous.’ (Ibid.)” (People v. Smith (2003) 30 Cal.4th 581, 601-602 (Smith);
see also Wainwright v. Witt (1985) 469 U.S. 412.) This record reveals no basis to
overturn the court’s rulings.
The first prospective juror responded to the jury questionnaire that she
opposed the death penalty. During voir dire, she was equivocal whether her views
would affect her ability to perform her duties, and was questioned extensively.
When asked whether she could impose the death penalty, she vacillated, and often
expressed considerable uncertainty. Ultimately, she said she could not honestly
say whether she could consider voting for a death sentence. In excusing her, the
court explained, “I think in grasping the totality of her responses, I think it’s clear
to the court that her views would prevent or substantially impair her performance
[of] her duty as a juror . . . . I think she had a clear and adequate opportunity to
express the ability to state she could choose and her inability to state that choice is
12 Defendant also argues the trial judge committed prejudicial misconduct
during this encounter with the victim’s father. We reject the argument for the
same reasons.
18
highly probative to the court, and I’m going to excuse her on that basis.” Under
these circumstances, we defer to the trial court’s determination.
The second prospective juror stated in the questionnaire that he strongly
opposed the death penalty, and would not set aside his personal feelings to follow
the law as the court explained it. During voir dire, he agreed that his views would
substantially impair his ability to make the sentencing choice. He said it would be
“incredibly” hard for him not to have a reasonable doubt if the death penalty were
involved. When asked whether he still felt that he could not set aside his feelings
and follow the law, he responded, “I would certainly try to, but in something like
that it’s very difficult how I feel about it would not enter into my decisions.”
These statements support the trial court’s ruling.
C. Guilt Phase Issues
1. Alleged Misconduct By the Victim’s Mother
Defendant contends that certain actions by the victim’s mother require
reversal.
a. Facts
During jury selection, defense counsel stated that Mrs. Lo Bue was speaking
loudly and emotionally to the prosecutor’s wife in the presence of some
prospective jurors. At defense counsel’s request, the wife was sworn and testified
in limine. She related that Mrs. Lo Bue had said “this was very difficult for her,”
but said nothing about the case. Defense counsel stated he did not want any of the
prospective jurors who might have heard Mrs. Lo Bue to be excused. He also
withdrew an earlier request that the prospective jurors be questioned about what
they may have heard. The court admonished Mrs. Lo Bue to keep her voice “well
modulated.”
19
During defendant’s guilt phase testimony, Mrs. Lo Bue stated, “Excuse me,
can you put the microphone close, please?” A short time later, when defendant
testified that he had repeatedly stabbed the victim “in a blind rage,” Mrs. Lo Bue
interrupted by saying, “Are you satisfied now?” The prosecutor asked the court
whether it wanted to take a recess. At that point, Mrs. Lo Bue said, “No, no I
promise. I’m sorry.” The court told her, “I’m going to have to admonish you . . .
that you have to refrain from speaking in any way or you will have to leave the
courtroom,” and “Any more outbursts and I’ll have to ask you to leave.” She
repeated that she was “sorry.”
Defense counsel submitted a proposed instruction telling the jury it “must
decide this case solely on the evidence presented here in the courtroom” and
“completely disregard any display of emotion, words spoken, or feelings received
from the presence of spectators including the mother of Ms. Lo Bue.” Not
wanting to single out any individual, the court agreed to give the requested
instruction omitting the reference to Mrs. Lo Bue. Defense counsel sought no
further admonition. Before the guilt phase argument, at defense counsel’s request
and outside the presence of the jury, the court “admonish[ed] all individuals
present in the courtroom that during these proceedings any type of conduct that
can be noticed by the jury, any sounds or motions or direction is entirely
inappropriate and would cause serious concern by the Court. And I certainly don’t
want to exercise my authority in excluding any individual from the proceedings,
but if there’s any form of outburst or disruption, conduct that is inappropriate, I
will be forced to take that action.”
During a break in defense counsel’s argument, outside the presence of the
jury, defense counsel stated that two or three times during his argument, Mrs. Lo
Bue had made some “sounds,” and at least one or two jurors looked at her each
time. He requested that the court “ask her not to whisper or make any sounds until
20
we’re finished.” The district attorney, who sat between her and the jury, expressed
the opinion that she had spoken only very softly, and that “her conduct has been
appropriate and exemplary at this point.” Defense counsel said that he merely
wanted the court to restate the admonition. The court stated that it had “informally
asked my staff at the break, my deputy, clerk and reporter, and each have indicated
to me, and the Court will indicate that it has not noticed any commotion or
conduct that I would consider justifying exclusion or further restraint by the
Court.” Nevertheless, at defense counsel’s request, it admonished Mrs. Lo Bue
“to try and contain yourself as much as humanly possible during these
proceedings.” She said, “I’ll try.”
During guilt phase instructions, the court told the jury, at defendant’s request,
that it “must decide this case solely on the evidence presented here in the
courtroom” and “must also completely disregard any display of emotion, words
spoken, or feelings received from the presence of spectators.”
During Mr. Lo Bue’s penalty phase testimony he described going to the
morgue and seeing his daughter’s body. Mrs. Lo Bue spoke up and said, “I do too.
I did too.” Later, outside the jury’s presence, defense counsel claimed that before
and during Mr. Lo Bue’s testimony, counsel had also heard “some audible sobbing
from that area where the Lo Bue family” was sitting. He moved for a penalty
mistrial. The prosecutor agreed that “the fact that she was tearful is apparent,” but
he argued that “even if she weren’t here, every juror would assume that she would
be acting precisely in that fashion.” The court denied the mistrial motion. It did
not “believe the jury is unduly prejudiced as a result of the conduct as it would be
something that would be assumed by the jury, and I believe the instructions are
sufficient to cure any prejudice occurring.” It readmonished the jury that it “must
decide this case solely upon the evidence presented here in the courtroom” and
“must also completely disregard any display of emotion, words spoken or feelings
21
received from the presence of spectators. And you’re reminded of this instruction
and admonished to follow it closely.”
The trial then proceeded without further interruptions.
b. Analysis
Defendant contends Mrs. Lo Bue’s behavior requires reversal. The Attorney
General initially responds that this claim is not cognizable on appeal. He is
partially correct. At the guilt phase, the court did everything defendant asked of it
regarding Mrs. Lo Bue’s behavior. It investigated the facts and admonished
Mrs. Lo Bue both upon request and sua sponte. It gave defendant’s requested jury
admonitions. Defendant did not move for a guilt phase mistrial. “A defendant’s
failure to object to and request a curative admonition for alleged spectator
misconduct waives the issue for appeal if the objection and admonition would
have cured the misconduct.” (People v. Hill (1992) 3 Cal.4th 959, 1000 (Hill).)
Similarly, a defendant who receives a curative admonition, but who makes no
other objection and seeks no other action, may not complain on appeal. Defendant
may not argue that the court should have granted a mistrial he did not request, and
the strictures of double jeopardy could, in any event, severely restrict such an
action. (See generally People v. Upshaw (1974) 13 Cal.3d 29, 33.)
At the penalty phase defendant unsuccessfully sought a mistrial, and his
challenge to the denial of that motion is therefore cognizable. (See Hill, supra, 3
Cal.4th at p. 1000, and cases cited therein.)
There are no grounds for reversal here. The trial court intervened correctly to
demand appropriate behavior and to cure any impropriety. Spectator misconduct
is a ground for mistrial if it is “of such a character as to prejudice the defendant or
influence the verdict.” (People v. Lucero (1988) 44 Cal.3d 1006, 1022 (Lucero).)
In Holbrook v. Flynn (1986) 475 U.S. 560, 572, the Supreme Court framed the
22
federal constitutional question as whether what the jury “saw was so inherently
prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial . . .”
The trial court is entrusted with broad discretion to determine whether spectator
conduct is prejudicial. (Lucero, at p. 1022.)
Here, several incidents cited as misconduct are easily disposed of. Having
investigated defendant’s complaints of loud speech or other sounds, the court
essentially found no conduct perceptible to the jury. The remaining challenges
involve two incidents: (1) Mrs. Lo Bue’s interruption of defendant’s testimony to
say, “Are you satisfied now?” and (2) her interjection that she too had viewed her
daughter’s body.
A trial is the recreation of a human event. When the event involves life and
death, the aftermath for all those affected is profound and emotions run high.
Courts must be vigilant to ensure that the proper legal resolution is untainted by
extraneous influence. Anticipatory rulings and directions are appropriate, as are
curative admonitions. Different people manage grief, anger, loving support, and
other human feelings in different ways. Surely, we would not say that the mother
of either the victim or of the accused should be excluded from the courtroom
simply because she might act beyond the strictures of accepted legal deportment.
Courts have a responsibility to manage this reality but they cannot ignore it.
“[B]ecause a spectator does not wear the same cloak of official authority as a
prosecutor, most instances of spectator misconduct will likely be more easily
curable than those of a prosecutor.” (Hill, supra, 3 Cal.4th at p. 1000.) Mrs. Lo
Bue’s outbursts “were unrelated to defendant’s guilt or innocence . . . .” (Id. at p.
999; cf. Lucero, supra, 44 Cal.3d at pp. 1022-1023 [no prejudice even though the
outburst at issue “may have informed the jury of facts outside the record”].) They
provided the jury with no significant information it did not already know or might
not readily surmise. Even without observing Mrs. Lo Bue in person, any
23
reasonable juror would know that the crime had caused the victim’s family
anguish. Under the circumstances, “ ‘prejudice is not presumed. Indeed, it is
generally assumed that such errors are cured by admonition, unless the record
demonstrates the misconduct resulted in a miscarriage of justice.’ ” (Hill, at p.
1002, quoting Lucero, at p. 1023, fn. 9.) This particular record establishes no
prejudice.
The trial court acted within its discretion in denying the mistrial motion.
(Lucero, supra, 44 Cal.3d at p. 1024.) Whether a particular incident is incurably
prejudicial requires a nuanced, fact-based analysis. The trial court is entrusted
with broad discretion in ruling on mistrial motions. (People v. Haskett (1982) 30
Cal.3d 841, 854.) Here, there was no abuse of discretion, and no unmet “special
‘ “need for reliability” ’ ” in the penalty decision. (Johnson v. Mississippi (1988)
486 U.S. 578, 584.) We are confident that these outbursts did not yield a verdict
based on caprice, or on impermissible or irrelevant factors. (Id. at pp. 584-584.)
2. Admission of Prosecution Evidence
Defendant contends the court erroneously admitted three items of evidence.
a. The Victim’s Purse
The victim’s purse was recovered at the crime scene. Defendant objected to
admission of its contents, which included personal items he considered irrelevant
and unduly prejudicial. The prosecutor argued the contents were relevant in light
of defendant’s theory. In opening statement, his counsel urged that defendant did
not take money from the purse, thus indicating that robbery was not a motive. The
prosecutor argued that the large number of other items in the purse might have
deterred defendant from taking the time to rifle through it for money. The court
initially overruled the objection. Defense counsel then argued that the record did
not indicate exactly where the money had been kept in the purse. At that point, the
24
court withheld a final ruling pending any further testimony on the question. There
was no additional evidence. The purse and contents were admitted.
Defendant particularly challenges admission of various items, including the
victim’s driver’s license and picture as well as other photographs with personal
messages written on the back. The Attorney General concedes that the court erred
in admitting the contents, and we accept that concession without further comment.
We conclude that the conceded error, if any, was harmless. There is no indication
that the jurors searched through the purse’s contents. Even had they done so, there
is no reasonable probability that the presence of some personal items in the purse
affected the guilt verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) The jury
acquitted defendant of robbery and rejected the related robbery-murder special-
circumstance allegation, demonstrating that it “considered the evidence
dispassionately in reaching its verdict.” (Smith, supra, 30 Cal.4th at p. 613.) The
jury quite properly received extensive evidence that a young woman was
repeatedly and fatally stabbed. It viewed her autopsy photographs. The admission
of her driver’s license and a few personally annotated pictures could not
conceivably have rendered the trial fundamentally unfair. (See People v. Partida
(2005) 37 Cal.4th 428, 439.)
b. Defendant’s Drug Use
Before trial, defendant moved to exclude evidence that he used crack
cocaine. The court ruled that the prosecution could not present generalized
evidence that defendant used drugs. It did allow testimony that defendant used
money stolen from the store to buy and use drugs in order to show that he had a
motive for robbery. Relying on People v. Holt (1984) 37 Cal.3d 436, 449-450,
and People v. Cardenas (1982) 31 Cal.3d 897, 906-907, defendant assigns error.
There was none. The rule from those cases “is that evidence of an accused’s
25
narcotics addiction is inadmissible where it ‘tends only remotely or to an
insignificant degree to prove a material fact in the case . . . .’ ” (Cardenas, at p.
906.) Whether defendant went to the store intending to steal or only decided to
take the money after the murder was an issue hotly contested. Evidence that,
shortly after the incident, defendant wanted to acquire and consume cocaine was
directly relevant on the question of whether he had a preexisting motive to steal.
The court properly admitted this limited evidence of drug use while excluding
more generalized evidence not directly connected with the crime. (See also
People v. Felix (1994) 23 Cal.App.4th 1385, 1392-1396 [holding evidence of
heroin use admissible to show burglary motive].)
c. Mario’s Nightmares
Over defense objection, the court permitted Yvonne Chatman to testify that
after the stabbing, Mario had nightmares and would wake up screaming.
Defendant contends the evidence was irrelevant. The contention fails. The trial
court has wide discretion in determining relevance. (People v. Green (1980) 27
Cal.3d 1, 19.) The very brief testimony was not the lynchpin of the case, but did
have a “tendency in reason to prove . . . any disputed fact . . . of consequence to
the determination of the action.” (Evid. Code, § 210.) Mario, who was two and a
half years old at the time of the crime, testified at trial. The jury might well have
considered whether he saw and understood the events in question when
determining what weight to give his testimony. The nightmare evidence was
germane to the evaluation of Mario’s testimony.
3. Exclusion of Impeachment Evidence
Defendant contends the trial court violated his right to confront witnesses by
excluding proffered impeachment of his wife and sister-in-law.
26
The applicable law is settled. “ ‘[A] criminal defendant states a violation of
the Confrontation Clause by showing that he was prohibited from engaging in
otherwise appropriate cross-examination designed to show a prototypical form of
bias on the part of the witness, and thereby, “to expose to the jury the facts from
which jurors . . . could appropriately draw inferences relating to the reliability of
the witness.” ’ (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 (Van Arsdall),
quoting Davis v. Alaska (1974) 415 U.S. 308, 318.) However, not every
restriction on a defendant’s desired method of cross-examination is a
constitutional violation. Within the confines of the confrontation clause, the trial
court retains wide latitude in restricting cross-examination that is repetitive,
prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra,
475 U.S. at pp. 678-679 . . . .) California law is in accord. (See People v.
Belmontes (1988) 45 Cal.3d 744, 780.) Thus, unless the defendant can show that
the prohibited cross-examination would have produced ‘a significantly different
impression of [the witnesses’] credibility’ (Van Arsdall, supra, 475 U.S. at p. 680),
the trial court’s exercise of its discretion in this regard does not violate the Sixth
Amendment.” (People v. Frye (1998) 18 Cal.4th 894, 946 (Frye).) We examine
defendant’s specific contentions in this legal context.
a. Yvonne’s Welfare History
Based on Yvonne’s welfare records, defendant asserted that she had
committed perjury. She received welfare while working and living with
defendant, but falsely represented under oath to the contrary. Although Yvonne
had never been charged with such an offense, he sought to confront her with this
evidence. The court excluded the inquiry to the extent defendant offered it as
general impeachment. It indicated, however, that the evidence might be
admissible if defendant could show that when talking to police Yvonne might have
27
been concerned about being prosecuted for welfare fraud. It offered to hold an in
limine hearing, but none was requested. Evidence Code section 352 “empowers
courts to prevent criminal trials from degenerating into nitpicking wars of attrition
over collateral credibility issues.” (People v. Wheeler (1992) 4 Cal.4th 284, 296
(Wheeler).)
Yvonne did not come before the court as a model of rectitude. The jury
learned, among other things, that she lied to her employer and to the police.
Coming home to find her husband and son washing off blood in the family tub,
she went to her place of employment to find a coworker’s body being removed by
the coroner. She returned to find cash and checks, apparently from the store, in
her apartment. She did not report these facts to authorities. Instead she
accompanied her mother, husband, and child on an excursion to purchase
narcotics. While additional evidence of any welfare malfeasance may have been
relevant, it is most unlikely to have cast Yvonne in a much more negative light.
“[I]mpeachment evidence other than felony convictions entails problems of
proof, unfair surprise, and moral turpitude evaluation which felony convictions do
not present. Hence, courts may and should consider with particular care whether
the admission of such evidence might involve undue time, confusion, or prejudice
which outweighs its probative value.” (Wheeler, supra, 4 Cal.4th at pp. 296-297,
fn. omitted.) The court acted within its discretion by refusing to permit defendant,
in effect, to prosecute Yvonne for welfare fraud, particularly in the absence of any
evidence directly connecting the alleged fraud with her testimony.
b. Taylor’s Misdemeanor Conviction
Defendant sought to impeach Denise Taylor with a misdemeanor conviction
for giving false information to a peace officer. The court excluded the evidence
“after weighing [its] probative versus [its] prejudicial value.” Misdemeanor
28
convictions themselves are not admissible for impeachment, although evidence of
the underlying conduct may be admissible subject to the court’s exercise of
discretion. (Wheeler, supra, 4 Cal.4th at pp. 297-300.) The court’s ruling was
proper.
Although defendant argues here that the court should have admitted evidence
of the underlying conduct, he made no such argument at trial, did not ask to
present any such evidence, and made no offer of proof. Accordingly, we do not
know what the underlying conduct was, whether or how it would have been
significant, how defendant would have attempted to prove it, or whether he could
have done so. Normally, this circumstance would make the claim noncognizable.
(Evid. Code, § 354, subd. (a); People v. Valdez (2004) 32 Cal.4th 73, 108
(Valdez).) Interestingly, the Attorney General concedes cognizability, and we
accept the concession. (See People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6
(Champion).)
Turning to the merits, it is difficult to judge the correctness of a ruling the
court was never asked to make. However, the Attorney General’s concession of
cognizability, which defendant joins, assumes that the court would have excluded
the evidence, so we will operate on that assumption. It is also difficult to judge
whether the court would have erred in excluding the evidence when the record
does not disclose what that evidence would have been—other than involving a
false statement to a peace officer under unknown circumstances for an unknown
purpose. However, the record presents no basis to conclude that excluding the
evidence would have been an abuse of the court’s broad discretion. (See Wheeler,
supra, 4 Cal.4th at pp. 296-297.)
29
c. Taylor’s Probation Status
During recross-examination, defendant sought to impeach Taylor with a
felony conviction for welfare fraud and evidence that “a couple of weeks ago,” she
had been placed on probation for drug possession in Santa Clara County. He
argued that her probation status was relevant because of differences between her
redirect testimony and her previous statements. The prosecutor responded that
there was no evidence Taylor was attempting to curry favor with the prosecution.
Until he questioned Taylor at trial, he had not spoken with her since the
preliminary hearing. The court admitted Taylor’s conviction but excluded her
probation status as more prejudicial than probative.
The ruling was within the court’s discretion. There was neither evidence nor
offer of proof that Taylor had spoken with anyone in law enforcement about the
case around the time of her placement on probation or thereafter. The court did
not bar defendant from seeking to show that Taylor had received benefits or
promises for her testimony; it only prohibited evidence of her probationary status
untethered to any specific showing that it could have affected her testimony. (See
People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051.) In short, defendant has
failed to demonstrate that “the prohibited cross-examination would have produced
‘a significantly different impression of [the witness’s] credibility . . . .’ [Citation.]
Accordingly, we find no abuse of discretion.” (Id. at p. 1051.)
4. Exclusion of Expert Testimony
Prosecution witness Rosalind Wathel, a resident of Houston, Texas, testified
on October 20, 1992. Five days earlier, she had submitted to psychological testing
at the Houston office of defense psychologist Dr. Kit Harrison. Wathel testified
that the day before the testing, two defense investigators “came and told me that
the following day I had to take a psychological test.” The investigators picked her
up the next day and took her to Dr. Harrison’s office, where, according to Wathel,
30
they “gave me all types of psychological tests.” These included “playing with
blocks, looking at these plat tests,” and two written tests, one with about 600
questions. The testing lasted all day. Dr. Harrison and three defense investigators
testified that Wathel voluntarily agreed to the testing.
Over the prosecutor’s objection, defendant sought admission of the test
results along with Dr. Harrison’s expert opinion to impeach Wathel’s credibility.
As an offer of proof, Dr. Harrison testified in limine. Under his supervision, his
staff administered a battery of psychological tests. Some evaluated “brain
function,” while others were “more psychological.” Dr. Harrison said the testing
showed that Wathel is “moderately impaired” in a variety of ways, including
“intellectual memory, language, learning, sensory perceptual and motor areas.”
“She has memory problems primarily with visual memory as opposed to auditory
or visual memory. Visual memory was markedly impaired.” “Her actual auditory
processing of information was okay,” but she “demonstrates confabulations in her
memory and she perseverates.” “Confabulation is filling in of details when you
have a memory disease.” “Perseveration means you keep applying . . . the same
solution to a different problem.” She is moderately impaired “in terms of
understanding speech.” “She basically demonstrated signs of a character disorder,
chemical dependency, marked inability to cope with life, some not lucid touch
with reality, particularly under stress, where it’s moderately out of touch with
reality.”
After hearing argument and consulting existing case law, the court excluded
the test results and Dr. Harrison’s opinion, but permitted him to testify that he
administered the tests. The court noted that the authorities have generally not
permitted witness impeachment by psychiatric testimony, at least in cases not
involving sex offenses. The court found that “most of what Dr. Harrison testifies
[to] is clearly within the province of proper cross-examination which could
31
demonstrate all of these characteristics for the jury so that they could be able to
determine the credibility of this witness.” It also found that any probative value
the evidence might have was outweighed by its prejudicial effect “in terms of what
would be involved if we were to in effect enter into expert testimony as to the
various components of this alleged impairment or her ability to recall the specific
probative parts of her testimony. And I believe it is . . . appropriate for the jury to
determine her credibility, not any expert witness.”
Defendant assigns error. Similar issues have been raised in the context of a
defense motion for an order of psychiatric examination. In that context, we have
explained that there is a “judicial policy disfavoring attempts to impeach witnesses
by means of psychiatric testimony. [Citations.] California courts have viewed
such examinations with disfavor because ‘ “[a] psychiatrist’s testimony on the
credibility of a witness may involve many dangers: the psychiatrist’s testimony
may not be relevant; the techniques used and theories advanced may not be
generally accepted; the psychiatrist may not be in any better position to evaluate
credibility than the juror; difficulties may arise in communication between the
psychiatrist and the jury; too much reliance may be placed upon the testimony of
the psychiatrist; partisan psychiatrists may cloud rather than clarify the issues; the
testimony may be distracting, time-consuming and costly.” ’ ” (People v. Alcala
(1992) 4 Cal.4th 742, 781; see also People v. Manson (1976) 61 Cal.App.3d 102,
137 [“The nature of the charges in this case is such that psychiatric testimony for
purposes of impeachment would be extraordinary.”].)
These concerns are magnified here, where a defense psychologist simply
undertook the examination without notice, involvement, or even awareness, on the
part of the court or opposing counsel. Here there were no “partisan psychiatrists”
who might cloud the issues, but a single psychologist hired for the sole purpose of
seeking impeaching evidence. Moreover, permitting evidence of this nature,
32
generated only because defense investigators induced the witness to submit to a
day’s worth of testing, raises substantial concerns about protecting witness
privacy. Wathel testified that the two investigators who spoke with her the day
before the testing told her she “had to” submit to the testing. Three investigators
were involved in getting her to the testing site. They and Dr. Harrison all said she
submitted voluntarily. We take this testimony at face value, and assume that they
did nothing improper in this case, and that Wathel voluntarily submitted to the
testing.
Nonetheless, encouraging litigants to engage in this kind of trial preparation
is fraught with the potential for abuse. We are most hesitant to suggest that
witnesses, without notice or any opportunity to seek advice, could properly be
subject to assertions that they “have to” submit to psychological testing. In this
case, Wathel was subjected to full cross-examination and impeachment by other,
more traditional, methods. The trial court’s ruling was fully consistent with the
general judicial policy disfavoring testimony of this nature.
Defendant argues that the 1982 adoption of California Constitution, article I,
section 28, subdivision (d), which generally provides that “relevant evidence shall
not be excluded in any criminal proceeding,” has changed previous law and
mandates admission of this evidence. However, that constitutional provision also
expressly “preserve[s] the trial court’s discretion to exclude evidence whose
probative value is substantially outweighed by its potential for prejudice,
confusion, or undue consumption of time. (Evid. Code, § 352.)” (Wheeler, supra,
4 Cal.4th at p. 295.) Accordingly, that provision does not affect the general policy
against admitting this kind of evidence, based on the principles of Evidence Code
section 352.
Defendant cites some cases in which he asserts the prosecution was allowed
to present similar evidence, and suggests that the rules be equally applied. The
33
argument fails on its presupposition. The cases he cites bear no similarity to this
one. Some involve general expert testimony regarding typical responses of sex
crime victims and their relatives. (E.g., People v. McAlpin (1991) 53 Cal.3d 1289,
1300-1302.) Others do involve expert evidence regarding the mental state of
prosecution witnesses, but in wholly different contexts and for different purposes.
In People v. Herring (1993) 20 Cal.App.4th 1066, the reviewing court upheld the
admission of evidence that a sexual assault victim was mentally retarded. The
evidence was relevant to the issue of the victim’s lack of consent. (Id. at pp. 1071-
1073.) The Court of Appeal noted the general policy against impeaching
witnesses by expert psychiatric testimony, but found no abuse of discretion in that
case, partly because the expert did not opine that the mental retardation affected
the witness’s credibility. (Id. at pp. 1072-1073.) In People v. Stark (1989) 213
Cal.App.3d 107, a school psychologist testified that one witness had a “learning
disability that affects his ability to sequence events and put events in chronological
order.” (Id. at p. 112.) There, the witness’s physical appearance could have
caused the jury to exaggerate his learning disability, and the psychologist’s
testimony was helpful to “ward off potential preconceived notions about
retardation based on physical appearance in the minds of lay jurors.” (Id. at p.
114, fn. 4.) Nothing in these cases compels the admission of the evidence
proffered here.
Defendant also argues that because the prosecution elicited testimony from
Wathel on direct examination that she had submitted to the examination under
coercion, he had to be allowed to present the results to prevent the jury from
speculating that the testing might have shown that she was credible. In response
to this argument at trial, the court permitted Dr. Harrison to testify about “how
long she was there, [and] what tests he administered.” Defendant could
34
additionally have asked the court to admonish the jury not to speculate what the
results might have been, but he did not do so. There was no abuse of discretion.
5. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during cross-
examination and argument.
a. Cross-examination of Defendant with “Were They Lying”
Questions
Defendant challenges the following portions of the prosecutor’s cross-
examination:
Over defense counsel’s objection the question was “argumentative,” the
prosecutor asked defendant why Tina Whaley and Rosalind Wathel, “who live in
two different states in the United States, 1500, 2,000 miles apart, both claim that
you said to them that you drove a brown Seville?” Defendant responded that he
did not know. The prosecutor asked whether he thought the women were lying.
He responded, “My opinion, yes.” Then the prosecutor asked, “Do you think that
these women bear a grudge against you?” Defendant said, “Yes.”
Without objection, the prosecutor asked if defendant “had any idea how
Rosalind is able to come into Court and tell us these things about a Photo Drive-up
when she’s been living for the last eight years in Harris County, Houston, Texas?”
Defendant responded, “Yeah, somebody obviously had to tell her.”
Over defense counsel’s objection that “speculation about somebody else is
irrelevant,” the prosecutor asked, “Do you think [Wathel] dislikes you now?”
Defendant answered, “Yes.” The prosecutor asked, “Do you think based upon that
she’s willing to come out to California several times to lie about you?” Defendant
answered, “Yes.” Defense counsel objected and moved to strike the answer on the
basis that “it’s irrelevant what he thinks.” The prosecutor responded, “I’m trying
to understand, because he knows her better than anyone else in this courtroom.
35
And he said what she says is not true, so I’m trying to understand why he thinks
she’s lying.”
Without objection, the prosecutor asked, “You don’t know how this woman
[Wathel] . . . knows that you went to a Photo Drive-Up booth with your son and
murdered a young girl?” Defendant answered, “Yes, because me and her never
had that conversation.” The prosecutor asked, “Just one of those awful
coincidence[s] that she knows those things?” Defendant answered, “Somebody
told her what had happened. Me and her never had that conversation whatsoever.”
Defendant denied that he was bragging about the killing despite Whaley and
Wathel’s testimony to the contrary. The prosecutor then asked whether Whaley
was “lying” in this regard. When he answered, “Yes,” the prosecutor asked why
she was lying. He answered, “That I can’t say. Maybe they took it as the way I
was telling them. Maybe to them I was bragging, I don’t know. To me I wasn’t
bragging because I had a serious look on my face, and I was basically crying about
it. So I don’t see how they could take it as bragging.” The prosecutor asked, “Did
something happen in your relationship with Tina Whaley that perhaps might cause
her to feel poorly about you?” Defendant answered, “It may have.” The
prosecutor asked, “Do you think that’s why she’s lying about you?” He answered,
“Could be.” The prosecutor asked, “Mr. Chatman, you seem to have a lot of
people who are lying about you. Why do you think that is?” He answered, “That
I can’t really say.” The prosecutor asked, “Do you think perhaps that you’re the
cause of these people, that that’s why they’re saying these things about you?”
Defense counsel objected “under 1101” (i.e., Evidence Code section 1101) and
also “speculation.” The court overruled the objection, and defendant answered, “I
would say no.”
Without objection, the prosecutor questioned defendant about William
Speed’s testimony: “There’s another person who’s come and lied about you?”
36
“Was there a reason why, that you know of, why he is coming in and lying about
you?” and “Well, why do you think?” Defendant said he could not “speculate, I
don’t know.” The prosecutor asked, “Why do these people keep coming in and
saying these things about you?” Defendant answered, “I cannot say why they
would say them things. They have their reasons for what they’re doing,” but he
did not know what they were.
Without objection, the prosecutor three times asked whether a particular item
of evidence was another example of someone lying.13 Each time, defendant
answered, “Yes.”
Without objection, the prosecutor asked how the safe was opened. Defendant
said he could not say; he never touched the safe. The prosecutor asked, “Well, is
the safe lying about you?” Again, defendant said he did not know, and that he
could “only say I never touched it.”
Defendant argues the “prosecutor committed misconduct by repeatedly
asking [him] to comment on the veracity of other witnesses.” He claims that the
13 First, the prosecutor asked, “[I]t’s alleged that Mary Irving told Denise
Speed that you had described to her again a certain gurgling noise that [the victim]
made . . . . [W]as that something that you did say?” Defendant said, “No.” The
prosecutor asked, “Again, it’s another example of someone saying these lies about
you?” Defendant replied, “Yes.”
Second, the prosecutor asked defendant about Tina Whaley’s testimony that
defendant had said he threatened to harm Yvonne if she revealed his participation
in the capital crime. The prosecutor asked, “[I]s it true that . . . you told Tina
that?” Defendant said, “No.” The prosecutor said, “So, again, it’s another lie,
somebody saying something false about you?” Defendant replied, “Yes.”
Finally, the prosecutor mentioned Rosalind Wathel’s testimony that
defendant told her he had threatened his wife if she revealed his participation
presumably in the capital crime. The prosecutor asked, “Is that true that you told
Rosalind Wathel about that?” Defendant answered, “No.” The prosecutor asked,
“And, again, it’s another example of someone saying something false about you?”
Defendant replied, “Yes.” The prosecutor said, “It seems like it’s sort of you
against everyone else, doesn’t it?” Defendant said, “Yes.”
37
questions “invaded the province of the jury,” elicited improper lay opinion about
the veracity of witnesses, and constituted misconduct by intentionally eliciting
inadmissible testimony.
At the outset, we question whether this issue is properly considered one of
misconduct. “Although it is misconduct for a prosecutor intentionally to elicit
inadmissible testimony (People v. Bonin (1988) 46 Cal.3d 659, 689), merely
eliciting evidence is not misconduct. Defendant’s real argument is that the
evidence was inadmissible.” (People v. Scott (1997) 15 Cal.4th 1188, 1218.)
Although the prosecutor in this case certainly asked the questions intentionally,
nothing in the record suggests he sought to present evidence he knew was
inadmissible, especially given that the court overruled defendant’s objections and,
as discussed below, the applicable law was unsettled at the time of trial. But
whether we label the issue misconduct or the erroneous admission of evidence
does not greatly matter, for defendant’s argument is essentially identical under
either characterization. Because the cases generally discuss the issue under the
rubric of misconduct, we will do so also.
The Attorney General argues first that the claim is not cognizable because
defendant did not properly object. “As a general rule a defendant may not
complain on appeal of prosecutorial misconduct unless in a timely fashion—and
on the same ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the impropriety.” (People v.
Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) Defense counsel did object to a
number of “were they lying” questions as argumentative, speculative, and
irrelevant. The court overruled these objections, indicating generally that it would
38
permit this line of questioning. Thus, with one exception,14 we conclude a request
for a jury admonition or the lodging of further objections would have been futile.
Additional objections were not necessary to preserve the claim. (People v. Hill
(1998) 17 Cal.4th 800, 820.) Defendant may argue on appeal that the questions
were improper for the reasons asserted at trial; that they were irrelevant,
speculative, or argumentative.
Before turning to those grounds, we address defendant’s argument that the
questions “invaded the province of the jury.” It is a truism that it is for the jury to
determine credibility. Questions that legitimately assist the jurors in discharging
that obligation are proper. The “legal cliché used by many courts, [that evidence]
would ‘invade the province’ or ‘usurp the function’ of the jury” is, as Dean
Wigmore has said, “ ‘so misleading, as well as so unsound, that it should be
entirely repudiated. It is a mere bit of empty rhetoric,’ and ‘remains simply one of
those impracticable and misconceived utterances which lack any justification in
principle.’ ” (People v. McDonald (1984) 37 Cal. 3d 351, 370, quoting 7
Wigmore on Evidence (Chadbourne rev. ed.) 1978, §§ 1920, 1921, pp. 18, 22.)
Defendant cites to such cases as People v. Melton (1988) 44 Cal. 3d 713,
744, for the proposition that “[l]ay opinion about the veracity of particular
statements by another is inadmissible on that issue.” Melton and similar cases
involved lay opinion from those who had no personal knowledge of the facts.
Such opinions are of little assistance in deciding the credibility of testimony by
percipient witnesses who do have personal knowledge. There is a difference
between asking a witness whether, in his opinion, another is lying and asking that
witness whether he knows of a reason why another would be motivated to lie.
14 As subsequently discussed, defendant’s failure to object to the
prosecutor’s question regarding the safe forfeits the issue on appeal. (See post, at
pp. 43-44.)
39
We now turn to defendant’s claim that the prosecutor’s questions were
argumentative, or called for irrelevant or speculative testimony. People v.
Zambrano (2004) 124 Cal.App.4th 228, 238 (Zambrano) was the first California
case to determine the propriety of such questions,15 and provides an example of
improper were they lying questions. Zambrano was arrested for selling cocaine to
two undercover officers. At trial, both officers testified to the circumstances of the
transaction. Zambrano testified that he had been working at the business where
the sale allegedly took place, but denied involvement in any drug transaction.
Instead, he testified that one of the officers approached, “put a gun to his neck,
threw him on the ground and handcuffed him.” (Id. at p. 233.) On cross-
examination, the prosecutor repeatedly asked defendant if the officers were lying
and whether “ ‘everybody is lying except for you?’ ” (Id. at p. 235.)
As the Zambrano court held, the district attorney’s questions called for
irrelevant and speculative testimony. It was clear that the defendant was testifying
to a diametrically different set of circumstances from that recounted by the
officers. The differences could not have been attributed to mistake or faulty recall.
Defendant, a stranger to the officers, had no basis for insight into their bias,
interest, or motive to be untruthful. Had the prosecutor asked why they might lie,
which she did not, it would have been apparent that any answer would have been
speculative. Under these circumstances, the questions did not develop facts
regarding defendant’s own testimony. They “merely forced defendant to opine
without foundation, that the officers were liars.” (Zambrano, supra, 124 Cal. App.
4th at p. 241.)
15 People v. Foster (2003) 111 Cal. App. 4th 379 had discussed but not
resolved the issue. Defendant’s reliance on federal cases is misplaced. Those
cases involve application of the Federal Rules of Evidence. They interpret a
similar statutory framework but they do not establish constitutional principles
binding on the states.
40
Courts from various jurisdictions have treated were they lying questions
differently. One line of cases concludes they are always improper, while another
concludes they are never so. (People v. Foster, supra, 111 Cal.App.4th at p. 384.)
Zambrano joins a third line of cases that counsels a trial court to consider these
questions in context. (Zambrano, supra, 124 Cal. App. 4th at p. 239.)
If a defendant has no relevant personal knowledge of the events, or of a
reason that a witness may be lying or mistaken, he might have no relevant
testimony to provide. No witness may give testimony based on conjecture or
speculation. (See Evid. Code, § 702.) Such evidence is irrelevant because it has
no tendency in reason to resolve questions in dispute. (Evid. Code, § 210.)
In challenging a witness’s testimony, a party implicitly or explicitly urges
that because a witness is lying, mistaken, or incompetent, the witness should not
be believed. A party who testifies to a set of facts contrary to the testimony of
others may be asked to clarify what his position is and give, if he is able, a reason
for the jury to accept his testimony as more reliable.
The permissible scope of cross-examination of a defendant is generally
broad. “When a defendant voluntarily testifies, the district attorney may fully
amplify his testimony by inquiring into the facts and circumstances surrounding
his assertions, or by introducing evidence through cross-examination which
explains or refutes his statements or the inferences which may necessarily be
drawn from them. [Citation.] A defendant cannot, by testifying to a state of
things contrary to and inconsistent with the evidence of the prosecution, thus
indirectly denying the testimony against him, but without testifying expressly with
relation to the same facts, limit the cross-examination to the precise facts
concerning which he testifies. [Citation.]” (People v. Cooper (1991) 53 Cal.3d
771, 822 (Cooper).)
41
A defendant who is a percipient witness to the events at issue has personal
knowledge whether other witnesses who describe those events are testifying
truthfully and accurately. As a result, he might also be able to provide insight on
whether witnesses whose testimony differs from his own are intentionally lying or
are merely mistaken. When, as here, the defendant knows the other witnesses
well, he might know of reasons those witnesses might lie. Any of this testimony
could be relevant to the credibility of both the defendant and the other witnesses.
There is no reason to categorically exclude all such questions. Were a defendant
to testify on direct examination that a witness against him lied, and go on to give
reasons for this deception, surely that testimony would not be excluded merely
because credibility determinations fall squarely within the jury’s province.
Similarly, cross-examination along this line should not be categorically prohibited.
Here defendant took the stand and put his own veracity in issue. He urged
that a number of witnesses should not be believed, but that he should be. The jury
had to determine whose testimony to credit. It is one thing for a witness to assert
that he had a better vantage point from which to observe an event, or that his
memory is superior to one who was inattentive or has given inconsistent accounts.
It is another thing entirely for a witness to claim that witness after opposing
witness has lied. Defendant was not asked to opine on whether other witnesses
should be believed. He was asked to clarify his own position and whether he had
any information about whether other witnesses had a bias, interest, or motive to be
untruthful.
It was permissible for the prosecutor to clarify defendant’s own position in
this regard. It was also permissible to ask whether he knew of facts that would
show a witness’s testimony might be inaccurate or mistaken, or whether he knew
of any bias, interest, or motive for a witness to be untruthful. The cross-
examination was legitimate inquiry to clarify defendant’s position. The questions
42
sought to elicit testimony that would properly assist the trier of fact in ascertaining
whom to believe.
Defendant had personal knowledge of the conversations he had with the other
witnesses, and they were all friends or relatives. He could provide relevant,
nonspeculative testimony as to the accuracy of their information and any motive
for dishonesty. If he provided a reason for one of them to have testified
inaccurately, the jury could consider that reason for whatever value it believed it
had. If he provided no reason, the jury might also consider the fact that not even
defendant, who, as the prosecutor pointed out knew the witnesses better than
anyone else in the courtroom, could think of any reason why their testimony
should not be credited.
The were they lying questions regarding other witnesses generally called for
and received an actual answer. For example, in answering a question regarding
the witnesses’ testimony that defendant was bragging, he provided an alternative
reason for the discrepancy. He said that he was not bragging, but because of his
demeanor, someone may have erroneously thought he was. Moreover, the were
they lying questions were brief and generally precursors to follow-up questions as
to whether defendant knew of any reason the witnesses had to lie. At least when,
as here, the defendant knows the witnesses well, we think questions regarding any
basis for bias on the part of a key witness are clearly proper.
The prosecutor’s question about whether the safe was “lying” requires a
different analysis. The question was argumentative.16 An argumentative question
is a speech to the jury masquerading as a question. The questioner is not seeking
16 Defendant did not object to this question. The trial court’s rulings
regarding questions as to whether a witness was lying did not make futile an
objection to the qualitatively different question whether an inanimate object was
lying. Accordingly, defendant’s failure to object to this question precludes him
from challenging it on appeal. (Samayoa, supra, 15 Cal.4th at p. 841.)
43
to elicit relevant testimony. Often it is apparent that the questioner does not even
expect an answer. The question may, indeed, be unanswerable. The prosecutor’s
question whether “the safe [was] lying” is an example. An inanimate object
cannot “lie.” Professor Wigmore has called cross-examination the “greatest legal
engine ever invented for the discovery of truth.” (5 Wigmore on Evidence
(Chadbourne rev. ed. 1974) § 1367, p. 32.) The engine should be allowed to run,
but it cannot be allowed to run amok. An argumentative question that essentially
talks past the witness, and makes an argument to the jury, is improper because it
does not seek to elicit relevant, competent testimony, or often any testimony at all.
Defendant had already explained he had no explanation for the safe being open.
Asking whether the safe was “lying” could add nothing to this testimony.
Defendant claims his attorney was incompetent for not objecting to this
question. “However, deciding whether to object is inherently tactical, and the
failure to object will rarely establish ineffective assistance.” (People v. Hillhouse
(2002) 27 Cal.4th 469, 502 (Hillhouse).) Deficient performance has not been
shown. Further, it is not reasonably probable that “a determination more favorable
to defendant would have resulted” had the question been objected to and
disallowed, particularly since the jury acquitted defendant of robbery. (People v.
Rodrigues (1994) 8 Cal. 4th 1060, 1126 (Rodrigues).)
In sum, courts should carefully scrutinize were they lying questions in
context. They should not be permitted when argumentative, or when designed to
elicit testimony that is irrelevant or speculative. However, in its discretion, a court
may permit such questions if the witness to whom they are addressed has personal
knowledge that allows him to provide competent testimony that may legitimately
assist the trier of fact in resolving credibility questions.
44
b. Argument to the Jury
While defendant now complains of several prosecution arguments, only once
did he object below. Because an admonition could easily have cured any harm,
his contentions, with the one exception, are not cognizable. (Hillhouse, supra, 27
Cal.4th at p. 501.) Defendant claims his attorney was incompetent for not
objecting, but this is not one of those rare cases in which the failure to object
establishes ineffective assistance of counsel. (Id. at p. 502.) In any event, as to
each claim, there was either no misconduct or no prejudice.
1) Discrepancy Between Opening Statement and Defendant’s
Testimony
The prosecutor argued that a discrepancy between defense counsel’s opening
statement and defendant’s testimony demonstrated that defense counsel “does not
fully accept and believe his client’s testimony.” The court sustained a defense
objection. When asked to give an admonition, the court told the jury that
“counsel’s statements are not to be construed as evidence in this matter. And I
think that you may proceed along that basis, [the prosecutor], without references to
what [defense counsel] may believe.” Without further objection, the prosecutor
continued to point out discrepancies between defense counsel’s statements and
defendant’s actual testimony. During the rebuttal argument, the prosecutor said,
“I ask you why was there no argument suggesting to you that his statement was in
fact believable? Why was there no attempt to explain to you meaningfully why
this person should be believed when we have him lying boldface already on the
tape recorder? And how can we say disregard that but believe this?”
Defendant contends the prosecutor improperly argued that defense counsel
did not believe his client. It is “improper for the prosecutor to argue to the jury
that defense counsel does not believe in his client’s [case].” (People v. Thompson
(1988) 45 Cal.3d 86, 112.) But the court sustained defendant’s objection and, at
45
defense counsel’s request, admonished the jury. Any prejudice was cured.
(People v. Jones (1997) 15 Cal.4th 119, 168 (Jones).) Defendant contends the
admonition was inadequate. However, he did not seek any additional admonition.
The admonition, including the court’s pointed comment that the prosecutor may
proceed without reference to what defense counsel may believe, adequately
informed the jury that such reference was improper and should be ignored.
Defendant also claims that the prosecutor repeated his misconduct in his later
argument in rebuttal. Because he did not object, this claim is not cognizable. In
any event, the prosecutor never again argued that defense counsel disbelieved his
client. He merely commented on discrepancies between defense counsel’s
opening statement and defendant’s actual testimony, and pointed out gaps in
defense counsel’s argument. “It is no misconduct to pointedly highlight, as the
prosecutor did here, the contradictions in a defendant’s case.” (People v. Welch
(1999) 20 Cal.4th 701, 753.)
2) Comment on Dr. Harrison’s Testimony
Defendant argues that the prosecutor committed misconduct in both his
opening and rebuttal argument in connection with Dr. Harrison’s testimony
regarding Rosalind Wathel. (See ante, pt. II.C.4.)
In opening argument, the prosecutor said, “Can anyone . . . tell us why the
defense chose to, and I’ll use the expression, shanghai Rosalind Wathel on
October 15th, 1992. . . . She testified on the 19th. Four days before her testimony
they drag her to a psychologist in Houston. Chatman was arrested two years and
four months ago. Were they that desperate that they would drag her to a
psychologist so she could play with blocks and look at ink blots? Do any of you
find this somewhat revolting that a witness, not a prosecution witness or a defense
witness, but just a witness, was taken without a Court order in another city to be
46
examined by a psychologist. Do any of you find this wrongfully intrusive? These
are very private things. And it also should be noted that the psychologist’s
testimony, which cost $4,500, did not alter by one iota the information available to
you to decide this case.” The prosecutor then discussed in detail the testimony by
Officer Christal and Regina Pickens-West that defendant offered to impeach
Wathel. He concluded this discussion by saying, “Instead of wild goose chases,
there should be real evidence presented on behalf of the defense which validly
attacked her. Such was not the case. This is what’s important.”
Defendant contends this argument was an improper comment on the absence
of evidence of Wathel’s alleged mental impairment. He argues that the prosecutor
may not argue that the defense has failed to prove something when the defense
was precluded from doing so because of the prosecutor’s objection. (See People
v. Ochoa (1998) 19 Cal.4th 353, 430-431.) It is not reasonably likely that the jury
interpreted the comments this way. (People v. Clair (1992) 2 Cal.4th 629, 663
(Clair).) The first portion of these comments focused on the alleged impropriety
of the defense investigators’ subjecting Wathel to psychological testing. It did not
imply what the results of that testing might have been. The second part, referring
to “wild goose chases,” came after lengthy discussion of matters unconnected to
the psychological evaluation. It is not reasonably likely the jury would associate
that comment with the earlier discussion of the testing.
Defendant’s challenges to rebuttal must be evaluated in light of the defense
argument to which it replied. Defense counsel discussed Wathel’s testimony in
detail, then argued, “Where she got all these ideas I don’t know. We didn’t get
into all of that as far as the brain function, but what does she say, what’s the core?
. . . She’s just adding, confabulating. She’s filling in all these details from a core
that she got somewhere . . . .” The prosecutor then argued on rebuttal, “The
discussion of Rosalind Wathel this morning was fascinating. . . . We had Rosalind
47
going to a shrink, a psychologist, and then all of a sudden within a sentence we
have Rosalind has mental problems. Well, I’m sorry, there is no evidence of that.
He was here. There was no evidence of that. You can reread his testimony, albeit
so very short, there was no evidence of that. You evaluate Rosalind’s testimony
based upon what you saw and what she said.” Later, the prosecutor said of
Wathel’s testimony, “If you can find a reason to discredit that testimony, then
work with it. But all their horses, all their men and all their sources and all their
shrinks have been incapable of discrediting this testimony.”
Had the prosecutor made these latter comments in his opening argument, the
trial court might well have sustained an objection, and admonished the jury that no
evidence was presented regarding the results of Dr. Harrison’s examination.
Instead, the comments responded to defense argument that could be interpreted as
suggesting that Dr. Harrison did find mental problems. As such, they were
intended to neutralize the defense argument. Taken in this light, they were
reasonable rebuttal. Under the circumstances, defense counsel may reasonably
have chosen not to object. In any event, there was no prejudice under any
standard. The jury knew Dr. Harrison had expressed no opinion regarding
Wathel’s mental state.
3) Alleged Denigration of Counsel
Defendant claims the prosecutor improperly denigrated defense counsel. We
have reviewed each of defendant’s claims and conclude they lack merit. The
district attorney sometimes denigrated the defense case, including the defense
evidence, but he did not denigrate defense counsel personally. “Because the focus
of [his] comment was on the evidence adduced at trial, rather than on the integrity
of defense counsel, it was proper.” (Frye, supra, 18 Cal.4th at p. 978.)
48
4) Comments About Defendant
The prosecutor said, at various times, that defendant lied at trial; that he was
unwilling to accept or admit responsibility for what he had done; that he lacked
remorse or emotion; that he was dangerous; that he bragged about the murder; that
defendant lacked humanity; that defendant was frightening; and that the jury had
“before you a man, and I use that term ‘man’ in this context very broadly. We
have a man who’s going down for the third time.” Defendant now claims these
comments improperly denigrated him. The unobjected-to comments were all
based on the evidence and came within the broad scope of permissible argument.
(People v. Wharton (1991) 53 Cal.3d 522, 567.)
Defendant relies on two cases, neither of which cause us to find misconduct
here. In Darden v. Wainwright (1986) 477 U.S. 168, 180, the United States
Supreme Court stated in general that various prosecutorial jury arguments
“undoubtedly were improper,” although it found no prejudice. Among the many
comments the high court cited was the prosecutor’s referring to the defendant as
an “animal.” (Id. at p. 179.) The court did not specifically single out use of the
word “animal” as improper. (Id. At p. 180.)
The prosecutor here commented on evidence that defendant tortured a
woman to death in the presence of his two-year-old son. The argument was
forceful but supported by the evidence. We see no similarity between the remarks
here and the overall argument condemned in Darden. In Dubria v. Smith (9th Cir.
1999) 197 F.3d 390, the court condemned the prosecutor’s argument that the
defendant, who he described as a “(piece of garbage,)” was fabricating his
defense. (Id. at p. 402.) The argument implied that the prosecutor had personal
knowledge that the jury did not. The court concluded that the prosecutor both
expressed an improper personal opinion in the defendant’s guilt and improperly
“denigrat[ed] the defense as a sham.” (Ibid.) It did not state that referring to the
49
defendant as a “(piece of garbage,)” (ibid.) by itself, would have been improper if
the reference had been based solely on the evidence. The argument made here
was qualitatively different and permissible.
5) Appeal for Sympathy
One disputed issue was whether the torture-murder special circumstance was
true. Regarding this issue, the prosecutor argued, “I want you to think for a
moment, go back in time if you can . . . to that night October 7th, 1987, and to
think about how that violence started. And clearly at the time that that knife was
pulled on Rosellina, how it was brought out, how desperate she must have been,
she was willing to grab on to the blade of an open knife in order to defend herself.
And I want you to also think about the pain that that must cause to have your flesh
sliced open to the bone, not one time, but multiple times. And I’m sorry that this
is the difficult things we have to discuss, but I held off. I think it is time we do so
now because the defense has raised the issue of torture . . . . And I want you to
think then what it’s like then to be down on the ground. Your hands have been
slashed open. How useless. How helpful are they now? And you are slashed
repeatedly. And what are you thinking? When is it going to end? Am I going to
die? Is this it? And if I’m going to die, why doesn’t he just cut my throat? Why
doesn’t he knock me out? That doesn’t happen.”
Defendant claims this argument was an improper appeal to the jury’s
sympathy for the victim. Although generally “an appeal for sympathy for the
victim is out of place during an objective determination of guilt” (People v.
Stansbury (1993) 4 Cal.4th 1017, 1057), the argument was specifically directed to
the torture issue. While the victim’s awareness of pain is not an element of the
torture-murder special circumstance (People v. Cole (2004) 33 Cal.4th 1158, 1228
(Cole)), it is not irrelevant. Asking the jury to consider the victim’s pain was
50
directly relevant to a disputed issue. We agree, however, that the rhetorical
questions at the end of this discussion might have moved from appropriate
argument regarding torture to an improper attempt to invoke sympathy. The trial
court might well have sustained an objection to this part of the argument had
defendant made one. But the main thrust of this argument, that defendant tortured
his victim, was permissible; any impropriety in the latter comments was harmless.
6. Sufficiency of the Evidence Regarding Torture
Defendant contends the evidence is insufficient to support his conviction of
first degree murder and the finding of the torture-murder special circumstance. In
determining evidentiary sufficiency, the court reviews the entire record, in the
light most favorable to the judgment, for the presence of substantial evidence.
Substantial evidence is evidence sufficiently reasonable, credible, and of such
solid value “that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The same
standard of review applies in considering circumstantial evidence and the support
for special-circumstance findings. (Valdez, supra, 32 Cal.4th at pp. 104-105.)
Sufficient evidence supports the jury’s verdict.
The court instructed on four theories of first degree murder: (1) deliberate
and premeditated murder, (2) robbery felony murder, (3) torture-murder, and
(4) murder by lying-in-wait. The jury apparently rejected the felony-murder
theory, acquitting defendant of robbery and finding not true the related robbery-
murder special circumstance allegation. The prosecutor’s deliberate and
premeditated murder and lying in wait theories rested in part on defendant’s
having gone to the store intending to rob. Accordingly, it is not clear that the jury
relied on either of these theories. Because the jury found true the torture-murder
51
special circumstance and because murder by torture constitutes murder in the first
degree (§ 189), we focus on that theory.
Murder by torture requires a killing committed with a willful, deliberate, and
premeditated intent to inflict extreme and prolonged pain for the purpose of
revenge, extortion, persuasion, or for any other sadistic purpose. It need not be
proven that the victim actually suffered pain. However, there must be a causal
relationship between the torturous act and death. (People v. Elliot (2005) 37
Cal.4th 453, 466-467 (Elliot).) The jury may infer the intent to inflict extreme
pain from the circumstances of the crime, the nature of the killing, and the
condition of the body. We have, however, cautioned against giving undue weight
to the severity of the wounds. Horrible wounds may be as consistent with a killing
in the heat of passion or an explosion of violence, as with the intent to inflict cruel
suffering. (Id. at p. 467.)
Here defendant stabbed Lo Bue over four dozen times. Six life-threatening
wounds to the neck, back, and chest, while quite serious, were not immediately
fatal. The location of most of the blood spatters supports a conclusion that the
young woman was on or near the floor when the majority of the wounds were
inflicted. Because her trachea was slashed, she would have experienced labored
breathing and made gurgling sounds as she struggled to bring air into a lung
ultimately pierced through several times. Blood flowing around the lung finally
prevented it from expanding with air. It would have taken a number of minutes
for Lo Bue to expire.
During the attack, defendant inflicted scores of wounds, many on an
unresisting victim. They were distributed over the victim’s face, head, neck, and
both the front and back of her torso. In contrast to life-threatening wounds that
injured major organs or penetrated into the chest cavity, the autopsy surgeon
described many of the wounds as “superficial.” He clarified, however, that they
52
were not mere scratches. They severed all layers of the skin and went into the
underlying tissue, to various depths, producing gaping injuries. They would have
caused significant bleeding. Some of the wounds were in clusters; others were
widely separated.
Defendant told Rosalind Wathel that his victim begged him to stop but he
persisted because it “felt good,” and that “he just kept doing it even after she got
quiet.” He told Tina Whaley that the victim “kept coming back” and that she “just
wouldn’t die.” Both Wathel and William Speed described defendant as bragging
about the killing.
Defendant testified that he committed the act in a frenzy but the evidence
supports a different conclusion. There were no knives at the shop and the victim
did not carry one. There was, however, a distinctive knife missing from the family
home. From this testimony the jury could have found that he took the knife with
him and lied at trial about taking the knife from the victim.
Hilt marks are left when an attacker plunges a knife so forcefully into a body
that the blade penetrates all the way to the hilt and the impact causes bruising. A
frenzied attack might involve such injuries. No hilt marks were found in
connection with any of the 51 wounds.
By his own account, as Lo Bue lay dead or dying, defendant put money and
checks from the store, along with the murder weapon and a telephone receiver
bearing his fingerprints, into a bag and left the scene with his child. Once home,
he washed blood from himself and his son. Later that night, he took his family
with him and bought cocaine, which he shared with his wife and mother-in-law at
a rented motel room.
Considering the totality of these facts, the jury had more than ample support
for its conclusion that defendant acted with the willful, deliberate, and
53
premeditated intent to inflict extreme and prolonged pain for a sadistic purpose.17
It was not required to accept, and was justified in rejecting, defendant’s testimony
to the contrary.
Defendant challenges Wathel’s credibility, as he did at trial, but her
credibility was for the jury, not a reviewing court, to determine. (People v. Barnes
(1986) 42 Cal.3d 284, 303-304.) Her testimony was consistent with the physical
evidence.
Defendant also argues that he did not bind the victim. Binding may take
place in some instances of torture, but is not required to prove it. (Elliot, supra, 37
Cal.4th at p. 468, fn. 4.) Based on the circumstances here it appears that defendant
did not need to resort to binding to overpower and control his victim.
The evidence also supports the true finding as to the torture-murder special
circumstance. “To find the torture-murder special circumstance true, the jury had
to find that ‘[t]he murder was intentional and involved the infliction of torture.’
(§ 190.2, subd. (a)(18).)” (Elliot, supra, 37 Cal.4th at p. 469.) At the time of the
crime, section 190.2, subdivision (a)(18), also provided that torture required
“proof of the infliction of extreme physical pain no matter how long its duration.”
(§ 190.2, subd. (a)(18) as approved by vote, Prop. 7, § 6, Gen. Elec. (Nov. 7,
1978); see People v. Wade (1988) 44 Cal.3d 975, 993; see also People v.
Crittenden (1994) 9 Cal.4th 83, 140, fn. 14 [noting statute has been amended in
this regard].) Here, as we have explained, the nature of the victim’s many wounds
and the circumstances surrounding the killing support the conclusion that
17 See, e.g., People v. Bemore (2000) 22 Cal.4th 809, 839-844 (Bemore)
(upholding torture-murder special circumstance where most of the 37 knife
wounds were superficial, and where eight shallow cuts were grouped on the
victim’s flank, away from vital organs.)
54
defendant intended to kill her, that the murder involved torture, and that defendant
inflicted extreme physical pain.
7. Instructional Issues
a. Instructions on Lesser Included Offenses
The court gave instructions on second degree murder and voluntary
manslaughter as lesser included offenses. Defendant claims the instructions could
have informed the jury that convictions for the lesser crimes of second degree
murder, voluntary manslaughter, and involuntary manslaughter required an intent
to kill. His theory as to all of these contentions is essentially the same—the jury
might have found he did not intend to kill his victim and, in that event, it would
have had no choice but either to convict him of first degree murder or to acquit
him entirely.
We need not decide whether the court should have instructed differently,
because the jury found that the torture-murder special circumstance was true.
“Error in failing to instruct the jury on a lesser included offense is harmless when
the jury necessarily decides the factual questions posed by the omitted instructions
adversely to defendant under other properly given instructions.” (People v. Lewis
(2001) 25 Cal.4th 610, 646.) The court instructed that a torture-murder special
circumstance requires the intent to kill. (See § 190.2, subd. (a)(18); Elliot, supra,
37 Cal.4th at p. 469.) When the jury found this special circumstance true, it found
defendant intended to kill under other properly given instructions. That being the
case, it could have found defendant guilty of either second degree murder or
voluntary manslaughter, even under defendant’s interpretation of the court’s
instructions, had it doubted that the remaining elements of first degree murder
were proven. The special circumstance finding also shows the jury rejected any
possible theory supporting involuntary manslaughter.
55
b. Causation
First degree torture murder requires a causal relationship between the
torturous act and the death. (Cole, supra, 33 Cal.4th at p. 1207.) The trial court
concluded the evidence raised no question of causation and did not directly
instruct the jury on this requirement. Instead, it gave instructions identical to those
given in Cole, at pages 1207-1208. As in Cole, defendant ascribes error. We
reject the contention as in Cole. The court told the jury that “murder which is
perpetrated by torture is murder of the first degree.” (Italics added.) The
italicized words signify a causal connection. Accordingly, “there is no reasonable
likelihood that [the jury] understood there need be no such causal
relationship . . . .” (Id. at p. 1208.)
Any error would also have been harmless. Here there was no question of
causation and defendant did not raise one. He did not dispute that Lo Bue died at
his hands or that he alone inflicted the fatal wounds. His defense involved state of
mind, not causation. “The finding of murder-by-torture encompasses the totality
of the brutal acts and the circumstances which led to the victim’s death.
[Citations.] The acts of torture may not be segregated into their constituent
elements in order to determine whether any single act by itself caused the death;
rather, it is the continuum of sadistic violence that constitutes the torture.”
(People v. Proctor (1992) 4 Cal.4th 499, 530-531.) The multiple stab wounds
both constituted the torture and were the cause of death. “Accordingly we find
that even if the trial court’s failure to instruct expressly on the causal relationship
had been erroneous, it would have been harmless under any standard.” (Cole,
supra, 33 Cal.4th at p. 1209.)
c. Provocation
Defendant contends the court “erred in failing to instruct that evidence of
provocation could be considered in determining whether any intent to inflict
56
extreme and prolonged pain was deliberate and premeditated.” The court did
instruct that the jury could consider any provocation “for such bearing as . . . it
may have on whether the defendant killed with or without deliberation and
premeditation.” Defendant argues that the jury would infer from this instruction
that it could not consider provocation in deciding whether he deliberately and
premeditatedly inflicted torture. However, defendant did not ask the court to
clarify or amplify this instruction and, accordingly, he may not complain on appeal
that it was incomplete. (Cole, supra, 33 Cal.4th at p. 1211.) Moreover, we find
no reasonable likelihood the jury would parse this instruction so finely as to find a
negative inference that it could not consider provocation regarding defendant’s
mental state in inflicting torture. Logically, whatever relevance any provocation
had on the mental state with which defendant killed would apply to his mental
state regarding infliction of torture. Accordingly, “[t]here is no reasonable
likelihood that the jury would have understood these instructions to foreclose them
from considering evidence of provocation, if any, in connection with murder by
torture.” (Id. at p. 1212.)
d. Unanimity
Defendant contends the court erred in not instructing the jury that it had to
agree unanimously on the theory by which he was guilty of first degree murder.
We have repeatedly rejected the claim and continue to do so. (Cole, supra, 33
Cal.4th at p. 1221; see also Schad v. Arizona (1991) 501 U.S. 624.) Further, the
jury’s finding that the torture-murder special circumstance was true shows that it
unanimously agreed on that theory. The only requirement for torture murder not
included in the special circumstance finding is that, for the special circumstance,
the acts of torture need not have caused the death. (People v. Bemore (2000) 22
57
Cal.4th 809, 842-843 (Bemore).) However, as noted above, in this case there was
no issue of causation.
e. Torture-murder Special Circumstance
Defendant also contends the court erred in instructing on the torture-murder
special circumstance. He argues the instruction was deficient because: (1) it did
not require a premeditated intent to inflict torture; (2) it did not say that the pain
inflicted must be in addition to the pain of death; and (3) it confused the jury by
saying that defendant must have inflicted pain but the victim’s awareness of pain
was not required. We rejected each contention in Cole, supra, 33 Cal.4th at pages
1226-1228, and continue to do so. (See also Elliot, supra, 37 Cal.4th at pp. 476-
479.)
8. Validity of Torture-murder Special Circumstance
Defendant contends the torture-murder special circumstance is vague and
overbroad in two ways. First, he claims it “fails to satisfy the nexus that must
exist between the alleged torture and the victim’s death.” We have rejected this
claim previously and do so now. (Bemore, supra, 22 Cal.4th at p. 843.)
Moreover, whatever might be the “outer limits” of the statute in this regard, the act
of torture, here the stabbing, was also the cause of death. (Id. at pp. 843-844.)
Second, defendant claims that the requirement of “extreme physical pain,” in
effect at the time of this crime, is too vague. He claims this phrase is no more
precise than language such as “especially heinous, atrocious, or cruel,” which the
United States Supreme Court has found void for vagueness. (Maynard v.
Cartwright (1988) 486 U.S. 356, 363-364.) We have already effectively rejected
this contention. “The narrowing construction absent in Maynard is present here.
In People v. Davenport [(1985) 41 Cal.3d 247, 271], this court construed the
torture special circumstance as requiring proof that the defendant intended to kill
58
and torture the victim, and inflicted extreme pain upon a living victim. Thus,
unlike the vaguely worded aggravating circumstances of ‘especially heinous,
atrocious, or cruel’ (Maynard, supra, 486 U.S. 356), the torture special
circumstance involved here has been construed narrowly by this court and its
constitutionality has been upheld. [Citations.]” (People v. Mincey (1992) 2
Cal.4th 408, 454.) Defendant asserts that his current contention is different,
because now he claims the word “extreme” is itself vague, a claim not specifically
considered in our previous cases. To the extent this is so, this new challenge is no
more convincing than the ones already rejected. The word “extreme” has a
“commonsense meaning[] which the jury may be expected to apply.” (People v.
Arias (1996) 13 Cal.4th 92, 189 [noting that, in the context of the torture-murder
special circumstance, “we used the word ‘extreme’ to narrow and clarify the
meaning of a special circumstance”].)
D. Penalty Phase Issues
1. Admission of Prosecution Evidence
a. Alleged Late Notice of Aggravating Evidence
The district attorney’s original notice of aggravating evidence pursuant to
section 190.3 listed defendant’s assault on his wife, his arson of Tina Whaley’s
apartment, and his assault on Rosalind Wathel, but included nothing about his
juvenile behavior. On November 19, 1992, the day the defense began presenting
its penalty phase evidence, the prosecutor served on defense counsel a petition for
disclosure of defendant’s juvenile court records in Santa Clara County. On the
next court date, November 23, 1992, the court granted the petition over
defendant’s objection. During cross-examination the same day, defendant
admitted he was sent to a boy’s ranch when he was about 15 years old for
59
assaulting two school janitors and an off-duty police officer. No details of these
incidents were mentioned.
On November 30, 1992, after defendant finished testifying, the prosecutor
moved to present evidence of defendant’s juvenile crimes as either rebuttal or
evidence in his case-in-chief. He said he had not given earlier notice because he
had only recently become aware of defendant’s juvenile record. Defense counsel
objected, and stated that he had informed the prosecutor of defendant’s juvenile
record much earlier. The prosecutor responded that he did not remember.
Counsel argued that defendant would be prejudiced by a late presentation of this
evidence because he had already testified. The court ruled that the juvenile crimes
were not admissible in rebuttal but, after reviewing then-recent authority, ruled
“that the evidence is admissible on the basis of newly discovered evidence by the
prosecution.” It permitted the prosecutor to reopen his case-in-chief to present the
evidence. Regarding defendant’s claim of prejudice, it stated, “The only prejudice
the Court perceives is the necessity or the opportunity of the defendant being
recalled in some form of surrebuttal or additional evidence taken by way of other
witnesses to rebut the evidence that the People are now offering.” Defense
counsel requested a three-week continuance to meet the new evidence. After
further discussion, the court granted a week’s continuance with the understanding
that defendant could ask for another week if needed.
At a status conference on December 3, 1992, defendant unsuccessfully
renewed his objection. On December 7, 1992, the prosecutor presented the
evidence. Defendant then produced three witnesses who testified in mitigation
about those incidents.
Defendant contends that he received untimely notice and that the court erred
in allowing the prosecution to present the evidence. We recently summarized the
applicable law. “Section 190.3 provides that, with exceptions not relevant here,
60
‘no evidence may be presented by the prosecution in aggravation unless notice of
the evidence to be introduced has been given to the defendant within a reasonable
period of time as determined by the court, prior to trial.’ The purpose of this
provision ‘is to advise an accused of the evidence against him so that he may have
a reasonable opportunity to prepare a defense at the penalty trial.’ (People v.
Miranda (1987) 44 Cal.3d 57, 96.) ‘[W]here the prosecution learns of evidence it
intends to use in aggravation at the penalty phase for the first time after trial has
commenced, exclusion of this evidence under section 190.3 is not necessarily
compelled. [Citation.] Under such circumstances, the defendant is entitled to
prompt notice of the newly discovered evidence, and, if necessary, to a reasonable
continuance to enable him or her to prepare to meet that evidence. If the
prosecutor’s delay in affording notice is unreasonable or unexcused, or if the delay
would prejudice the defense, the court must exclude the evidence.’ ” (Smith,
supra, 30 Cal.4th at p. 619.)
The prosecutor stated he gave notice of the newly discovered evidence as
soon as he knew of it, and the trial court did not find to the contrary. Defendant
argues the prosecutor could have, and should have, discovered his juvenile records
sooner than he did. “[I]n the absence of prejudice to defendant, the notice, given
promptly after the prosecution actually learned of the incident, was adequate.”
(Smith, supra, 30 Cal.4th at p. 620.)
Defendant argues he was prejudiced by the late notice, but fails to
substantiate that claim. “In the absence of any indication that the delay in notice
had in some fashion affected the manner in which defense counsel handled the
prior proceedings, the appropriate remedy for a violation would ordinarily be to
grant a continuance as needed to allow defendant to develop a response.” (People
v. Carrera (1989) 49 Cal.3d 291, 334; accord, Rodrigues, supra, 8 Cal.4th at
p. 1153.) Here, defendant was given a one-week continuance, with the possibility
61
of additional time if needed. He presented three witnesses who testified about the
incidents. Accordingly, he was fully allowed to develop a response. Defendant
claims prejudice because with earlier notice, he “could have told the jury about his
involvement in the assaults during direct examination.” He claims the “manner in
which the assault evidence was presented undoubtedly raised the question, in the
minds of the jurors, of why [he] did not mention these incidents when discussing
his life history in direct examination.”
Defendant could have testified about the incidents after the prosecution
presented the evidence, just as he called other witnesses to address the events.
These witnesses largely absolved defendant from wrongdoing. If the jury believed
this testimony, it would readily have understood why defendant felt no need to
mention the incidents on direct examination.
Because prejudice has not been shown, we need not consider the Attorney
General’s alternate argument that the evidence of the juvenile incidents would
have been admissible on rebuttal. (See People v. Mitcham (1992) 1 Cal.4th 1027,
1071.)
b. Other Items of Evidence
One witness testified that he observed defendant kick a high school custodian
four or five times. The prosecutor asked whether defendant “seemed to be
enjoying it.” The witness responded, “Yeah.” Defense counsel objected that the
answer was speculation, irrelevant, and inadmissible under Evidence Code section
352. The court overruled the objection.
Although defendant contends the court erred in overruling the objection, the
court acted within its discretion. (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
The witness testified that defendant seemed to enjoy kicking the custodian.
Because the witness was a percipient witness, he spoke from personal observation.
62
He was competent to testify that defendant’s behavior and demeanor were
consistent with enjoyment. A history of enjoyment in the infliction of pain is
relevant at the penalty phase. Defendant also argues the question called for
improper opinion evidence. He did not object on that basis at trial, and he may not
make that argument on appeal. (People v. Seijas (2005) 36 Cal.4th 291, 302.)
Such an objection would have failed. Generally, a lay witness may not give an
opinion about another’s state of mind. However, a witness may testify about
objective behavior and describe behavior as being consistent with a state of mind.
Defendant objected to the evidence that he set fire to Tina Whaley’s
apartment, arguing it was a crime against property, not a crime of violence under
section 190.3, factor (b). (See People v. Boyd (1985) 38 Cal.3d 762, 776.) The
court found that it involved “the use or attempted use of force or violence to
persons,” and properly overruled the objection. The arson of Whaley’s home
could reasonably be considered an attempt to intimidate her by an implied threat
of violence. (People v. Stanley (1995) 10 Cal.4th 764, 824 [admitting evidence of
car arson].) Moreover, the structure involved was an apartment building.
Defendant’s conduct put other residents and firefighters in physical danger.
(People v. Lewis (2001) 26 Cal.4th 334, 392.)
2. Denial of Motion to Disclose Personnel Records of a Police Officer
After the trial court ruled that the prosecution could present evidence of
defendant’s assault on an off-duty police officer, counsel sought discovery of the
officer’s personnel records. (See Pitchess v. Superior Court (1974) 11 Cal.3d
531.) The court conducted an in camera review of the records and denied the
motion. At defendant’s request we have independently reviewed the records and
conclude the trial court properly exercised its discretion in not ordering the records
disclosed. (Samayoa, supra, 15 Cal.4th at p. 827.)
63
3. Cross-examination of Defendant
Defendant contends the court erred in permitting the prosecutor to cross-
examine him in various ways.
On direct examination, defendant testified his parents separated when he was
13 or 14 years old. His mother got a job and a new boyfriend, which meant he had
more responsibility around the house, becoming “a mother and father to my
brother and sisters.” He also described an incident when he was 15 years old in
which his father “got mad at my mother and started to knock her down to the
ground. And I jumped him to stop him from beating on her.”
On cross-examination, defendant was asked whether he had also assaulted his
mother when he was 15 years old. Defendant denied doing so, but later admitted
he had been arrested and referred to the juvenile probation authorities that year
because his mother had said he had assaulted her. He again denied committing the
assault. Defense counsel did not object to this questioning. Later, over defense
counsel’s objection on relevance and hearsay grounds, the court permitted the
prosecutor to ask defendant whether his mother had reported to the police that he
had assaulted her. Defendant said yes, but he also said the charges were “dropped
after they did the investigation and found out that is not true.” Later still, over
defense counsel’s objection as irrelevant and beyond the scope of direct
examination, the court permitted the prosecutor to ask whether defendant was
returned to juvenile hall “because you were a failure and living with your aunt.”
Defendant said yes. Over a relevance objection, the court permitted the prosecutor
to ask defendant whether, when he was 15 years old, he had been reported for
assaulting two janitors and an off-duty police officer at school and sent to a boys
ranch. Defendant said he had been but could not remember his age at the time.
Defendant contends this cross-examination about his juvenile record was
irrelevant. He notes that neither he nor any other defense witness had mentioned
64
his juvenile record, so it was not proper rebuttal. The contention lacks merit.18
When defendant testified he had assumed increased responsibilities at home, had
become a mother and father to his siblings, and had protected his mother from his
father, evidence that he had a juvenile record for acts of violence during that time
period became relevant in rebuttal. (People v. Mickle (1991) 54 Cal.3d 140, 191-
192.) “[T]he purpose of rebuttal in this context is to present a more balanced
picture of the defendant’s personality.” (In re Ross (1995) 10 Cal.4th 184, 208
(Ross).) As did the petitioner in Ross, defendant argues that evidence of his
juvenile record, “as distinct from the criminal behavior itself, was not admissible.
The argument fails because this evidence was to be used as rebuttal. ‘. . . The
rebuttal evidence was not necessarily offered to establish past criminal activity on
defendant’s part but rather to rebut defendant’s claim of good character.
[Citation.] The prosecution’s evidence was highly probative of defendant’s
character as a juvenile . . . .’ ” (Id. at p. 209.)
Evidence that defendant’s own mother, whom he claimed to have protected
from his father, and to have helped so much when she got a job, reported him to
the police for assault was highly probative of his character regardless of the truth
of the report. Moreover, Bob Creamer, defendant’s juvenile probation officer,
testified that in 1980, defendant had a sustained juvenile petition. The jury could
reasonably infer that this sustained petition related to the assault. Evidence of the
sustained petition would both rebut defendant’s claim that the charges had been
dropped and his testimony about his good character. Under the circumstances, the
prosecution was not required to relitigate the allegations of the sustained petition
in order to use it in rebuttal. (See People v. Ray (1996) 13 Cal.4th 313, 367-369
18 Also, the claim regarding the first part of the cross-examination is not
cognizable because defendant did not object. (Cooper, supra, 53 Cal.3d at
p. 822.)
65
(conc. opn. of George, C. J.) [rejecting a hearsay objection to use of convictions to
show prior criminal activity for sentencing purposes]; People v. Frierson (1991)
53 Cal.3d 730, 747 [upholding admission of juvenile court adjudication as
evidence of criminal activity].)
On direct examination, defendant testified that he had unexpectedly been
released from jail at midnight on the night of the Whaley arson. On cross-
examination, the prosecutor established that defendant had “entered into a special
program,” and signed a “contract” that required him to return to jail. He was
supposed to have returned to jail at the time he set the fire. He did not return, but
instead went to Texas. In doing so he committed a crime to which he later pled
guilty.
Defendant claims the question regarding whether failing to return to jail was
a crime was irrelevant, and that the court erroneously overruled his objection
below. The testimony was relevant. It directly rebutted the clear implication in
defendant’s direct examination that he had been unconditionally released from jail
at that time. It was proper to “fully amplify his testimony by inquiring into the
facts and circumstances surrounding his assertions . . . .” (Cooper, supra, 53
Cal.3d at p. 822.) Moreover, some of his witnesses had testified that, around this
time, defendant was a good employee, thus implying that he was a responsible
person. This rebuttal evidence was admissible “to present a more balanced picture
of the defendant’s personality.” (Ross, supra, 10 Cal.4th at p. 208.)
Defendant also claims the question whether a crime had been committed was
improper opinion evidence. He did not object on this basis; the claim is not
cognizable. (Cooper, supra, 53 Cal.3d at p. 822.) Further, defendant
subsequently pleaded guilty to a crime in connection with his absconding. He
knew the facts; no opinion was required.
66
The prosecutor asked defendant whether it was true that he did not “know a
single person who could come into this courtroom and speak on your behalf.” The
court overruled defense counsel’s objection on relevance and vagueness grounds.
Defendant said that two childhood friends, “the only friends that I ever had,” could
speak for him. In response to further questioning, he said that no one who knew
him well could testify about his character. He agreed that the witnesses who did
testify on his behalf did not know him well, and that the persons who knew him
best are his parents, Yvonne Chatman, Tina Whaley, and Rosalind Wathel.
Defendant argues that his “knowledge of whether any persons could testify as a
character witness on his behalf was irrelevant.” On the contrary, these questions
established that defendant’s character witnesses did not know him well, and that
those who knew him best did not speak on his behalf. The point was relevant to
the jury’s evaluation of the case in mitigation.
4. Admission of Rebuttal Evidence
Defendant’s juvenile probation officer, Bob Creamer, testified in rebuttal.
Defendant challenges portions of that testimony.
Creamer testified that he had frequent contact with defendant’s father,
usually in “response to a complaint by his father about [defendant’s] behavior.”
The court overruled defendant’s objection and motion to strike this testimony.
Creamer also testified that during his supervision, defendant never reported that
his father was abusing him. On redirect examination, over defendant’s foundation
objection, Creamer testified that the father’s complaints were “very inconsistent
with someone who’s abusing their child,” because a person would not “want to
have contact with probation or police or any kind of an investigative organization
to complain about things that are irritating you if you’re dealing with them by
abusing your child.” Defense counsel then elicited Creamer’s testimony that a
67
child abuser might think he was acting appropriately and not consider his conduct
abusive. Creamer also could not say whether defendant’s father hit defendant with
a belt as defendant had testified.
Defendant’s contention that Creamer’s testimony about the father’s
complaints was irrelevant fails. Creamer did not go into detail regarding the
complaints, so the testimony was rather innocuous. The mere fact that the jury
heard that defendant’s father complained about him could hardly have prejudiced
defendant. The testimony was relevant to the jury’s evaluation of defendant’s own
claim that his father had abused him. Defendant also contends that “the
prosecution did not establish that the juvenile probation officer had sufficient
expertise to render an opinion that the conduct of [defendant’s] father was
inconsistent with his being a child abuser.” Assuming defendant’s foundation
objection was sufficient to preserve this issue (Champion, supra, 9 Cal.4th at p.
908, fn. 6), there was no error. The prosecution established that Creamer had
substantial expertise. He had been a probation officer for 22 years, part of which
he spent investigating child abuse cases. He held a college degree and a teaching
credential, as well as a year and a half of graduate study in psychology and
physiology.
Creamer also testified over objection that in his opinion, defendant “was not
particularly truthful when it wasn’t to his advantage,” and “impressed [him] as
being violent.” He was “volatile” and like a “ticking time bomb.” The testimony
was proper rebuttal. Defendant testified that he had become like a mother and
father to his siblings and had protected his mother. Creamer’s testimony was
relevant to defendant’s credibility and to present a more balanced picture of his
personality. “The admission of rebuttal evidence is a matter for the sound
discretion of the trial court,” which was properly exercised here. (People v. Raley
(1992) 2 Cal.4th 870, 912.)
68
5. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed various acts of misconduct.
Again, to complain of prosecutorial misconduct on appeal, defendant must have
objected and requested a jury admonition. (Samayoa, supra, 15 Cal.4th at p. 841.)
Defendant contends the prosecutor twice referred to evidence outside the
record while arguing objections in front of the jury. Defendant presented evidence
that his father was arrested for abusing his siblings. During the arresting officer’s
testimony, the prosecutor objected to a statement by one of defendant’s sisters on
hearsay grounds. Discussing whether the statement was a spontaneous
declaration, the prosecutor argued that the witness was “describing an event that
didn’t happen that day.” A bit later, he stated, “Your honor, . . . you’re putting me
in a very uncomfortable situation, but I’ve got a transcript of what took place
because the children were deposed at a preliminary examination and they said
clearly there was nothing of that type that happened that day. And you keep
making—I don’t know how you want me to—.” Defense counsel objected to the
prosecutor “testifying.” The prosecutor said, “I’ve been trying to do it out of the
presence of the jury, but you keep forcing me to enunciate it, so I will. Nothing
happened of that sort that day, and I have the testimony of the children to that
effect. And there’s a misunderstanding here.” He also said, “There’s two distinct
events going on here. And he, in answer to the question by counsel, was
immediately supplying information relating that something happened on a
different date. And that’s not a spontaneous statement.” At this point, the witness
said he had had contact with the family on two occasions, and he was able to
distinguish between the two. Later, the prosecutor objected again and a hearing
was held outside the presence of the jury. Eventually, the court overruled the
prosecutor’s hearsay objection, and the testimony continued.
69
Defendant contends the prosecutor’s reference to the preliminary hearing
transcript was improper. However, he did not request the jury be admonished to
disregard the comments. The issue is not cognizable. An admonition could have
cured any harm. The prosecutor never said that the alleged events did not happen,
but only that they occurred on different days. The prosecutor’s statement that
there were two different incidents was not prejudicial. Indeed, the fact that police
were called on two separate days would have added weight to defendant’s claim
that his father was a violent man.
On cross-examination, defendant was asked whether any of his father’s
siblings “live[d] locally while you were growing up.” In response to a relevance
objection, the prosecutor argued “any of these brothers and sisters who live locally
would have some knowledge of the extent of the treatment that this defendant
received and what it was like for him growing up, and I’m curious if any of these
people are going to come in and testify to it.” The court permitted the question for
that “limited purpose,” and defendant testified that some of them did live locally.
Defendant contends the prosecutor also referred to evidence outside the record in
his response to the relevance objection. Again, his failure to object or request an
admonition renders the issue not cognizable. In any event, the prosecutor did not
inform the jury of anything. Instead, to show that the question was relevant, he
merely argued an inference the jury could draw from an answer that some siblings
lived locally. There was no misconduct.
The prosecutor asked defendant whether his father, mother, aunts and uncles
were going to testify. Each time the court sustained a relevance objection. Once,
when defendant answered that he did not know, the answer was stricken and the
jury directed to disregard it. Defendant claims the prosecutor’s questions were
misconduct. Beyond sustained objections and a stricken answer, defense counsel
sought no further admonition. These questions sought legitimate testimony to
70
support the proper argument that defendant failed to call logical witnesses who
could have corroborated some of his testimony. (People v. Wash (1993) 6 Cal.4th
215, 262-263 (Wash).) The fact that these witnesses did not testify was relevant.
The questions may have been premature and unnecessary. Their nonappearance
would eventually be evident, but the questions caused no prejudice.
On cross-examination, defendant insisted he could not remember actually
stabbing his victim. He also denied telling William Speed, Tina Whaley, and
Rosalind Wathel anything to the contrary and, in response to questions, said they
were lying. In a contention similar to his guilt phase argument, defendant
contends the “were they lying” questions were improper. The contention lacks
merit for the reasons given in the guilt phase discussion. (Ante, pt. II.C.5.a.)
One of defendant’s high school teachers testified that defendant did not relate
much with other students but was “more of a loner.” He was “quiet,”
“cooperative,” “pleasant,” and “not a problem of any kind.” On cross
examination, the prosecutor asked whether she had heard about the defendant’s
assault on the two school janitors. Defendant objected on the basis that it was
improper cross-examination and unduly prejudicial. The court sustained the
objection, finding that the question did not impeach the witness’s testimony and
that its prejudicial effect outweighed its probative value.
Another defense witness who worked for a church in Houston, testified that
defendant was hard working and reliable, “a model employee.” On cross
examination, the witness testified that defendant never stole from him or the
church even though he had the opportunity to do so. At this point, the prosecutor
asked, “But had you heard at the time he was working for you he’s committing
burglaries on the outside?” Defendant objected. The court effectively sustained
the objection, stating it did not “think there’s any evidence that this witness has
testified to his character.” Over objection, the court permitted the prosecutor to
71
ask the witness whether defendant had told him “about a time that he worked . . .
on another job drunk and took a swing at his boss.” The witness answered, “No.”
Defendant unsuccessfully moved for a mistrial based on these questions. The
court clarified its view that if a witness limited his testimony to “merely
employment, employer, non-personal testimony, I think I will rule under
[Evidence Code section] 352 that any other have-you-heard questions as to
character is inappropriate and will be excluded.” The prosecutor assured the court
that he had a good-faith belief that the questions were factually based.
Defendant contends the prosecutor committed misconduct in asking the
“have you heard” questions regarding the school assault and the burglaries. The
claim is not cognizable because defense counsel did not request an admonition.
When he moved for a mistrial, counsel argued that an admonition would have
been unavailing. As discussed below, we discern neither misconduct nor
prejudice.
Within the sound exercise of its discretion the court could have allowed the
questions. Penalty phase rebuttal evidence is proper if it relates directly to a
particular character trait defendant offers in his own behalf. (Ross, supra, 10
Cal.4th at p. 207.) Here, the first of the witnesses testified that defendant was
“quiet,” “cooperative,” “pleasant,” and “not a problem of any kind.” The second
witness testified that defendant was a “model employee” and never stole from him
even though he had the opportunity to do so. This testimony made it reasonable
for the prosecutor to ask defendant’s teacher about defendant’s assault on the
janitors and his employer about the burglaries. The prosecutor could reasonably
have asked these questions in good faith. In general, “have you heard” questions
regarding acts or conduct inconsistent with the witness’s testimony are
appropriate, so long as the prosecutor has a good faith belief that the acts actually
occurred. (People v. Payton (1992) 3 Cal.4th 1050, 1066-1067.) Although bad
72
faith is not a prerequisite to misconduct (People v. Hill, supra, 17 Cal.4th at pp.
822-823), the record here establishes no reprehensible conduct of any kind. It is
not misconduct to ask a question in good faith even if the court exercises its
discretion by sustaining an objection.
We also see no prejudice. Later, the prosecutor did present evidence
regarding the assault on the custodians, so asking about it could not itself have
caused prejudice. He did not prove any burglary. But the court instructed the
jury, “Statements made by the attorneys during the trial are not evidence . . . . If
an objection was sustained to a question, do not guess what the answer might have
been. Do not speculate as to the reason for the objection. Do not assume to be
true any insinuation suggested by a question asked a witness. A question is not
evidence and may be considered only as it enables you to understand the answer.”
It also instructed, “Where on cross-examination a witness is asked if he or she has
heard of reports of certain conduct of a defendant inconsistent with the traits of
good character to which the witness has testified, such questions and the witness’s
answers thereto may be considered only for the purpose of determining the weight
to be given to the opinion of the witness or to his or her testimony as to the good
reputation of the defendant. Such questions and answers are not evidence that the
reports are true, and you must not assume from them that the defendant did in fact
himself or herself consistently conduct himself or herself inconsistently with such
traits of character.” We assume the jury followed these instructions, and that any
prejudice from the brief reference to burglaries was thus avoided. (Jones, supra,
15 Cal.4th at p. 168.)
One of defendant’s cousins testified about the assault on the off-duty police
officer. The prosecutor asked on cross-examination whether the witness had told
his mother about the incident. Defense counsel objected as irrelevant. The
prosecutor replied that the question went to credibility. Defense counsel asked,
73
“Why is that credibility?” The prosecutor responded, “Because none of this is the
truth.” Defense counsel objected “to that improper statement and move[d] for
assignment of misconduct that the prosecutor [is] stating his personal opinion.”
The court overruled the original objection, but also “instruct[ed] the jury to
disregard all statements of counsel as I’ve previously done. They’re not to be
construed in any manner, shape or form. I instruct counsel to refrain from future
banter.” Outside the jury’s presence counsel moved that the prosecutor be cited
for contempt and requested a further admonition. The prosecutor responded that
he had not expressed a personal opinion but merely argued the question was
relevant to show that the witness was lying. After having the record reread, the
court ruled its admonition was sufficient.
It is misconduct for a prosecutor to argue his personal opinion of the
evidence if the jury might infer that the opinion is based on information or
evidence outside the record. (Mayfield, supra, 14 Cal.4th at pp. 781-782.) Given
the context in which the comment was made and the court’s prompt admonition, it
is unlikely that the jury drew any improper conclusion from the prosecutor’s
comment, let alone the conclusion that the comment reflected information outside
the record. It is hardly a revelation to learn that an opposing lawyer considers a
witness’s testimony untrue. No factual information was provided and the court’s
prompt admonition cured any potential prejudice.
During penalty phase argument, the prosecutor noted defendant’s evidence
of abuse as a child but also the lack of expert testimony connecting any such abuse
with defendant’s adult crimes. He argued that without that testimony, the jury
should not rely on the evidence for any purpose but sympathy. He then argued,
“Before the defense explains the value of this evidence, as abuse must have, they
should first explain to you why they spent a preposterous amount of money—” At
this point, defense counsel objected to the argument as an “appeal to passion and
74
impact of whatever the case might cost and—per any side, as improper.” The
prosecutor responded, “What I’m trying to do is explain how shaky the defense is,
because it fails to present a competent expert to explain it and what I’m asking is if
they were willing to examine one witness, why didn’t they spend the same amount
of money to examine their own client.” The court overruled the objection and,
“[o]nce again, instruct[ed] the jury that statements of counsel are not to be
construed as evidence.” The prosecutor then continued to argue, “What I was
saying to you is that before the defense suggests any additional value to this
evidence they should first explain to you why they spent a preposterous amount of
money for a psychologist to examine the witness Rosalind Wathel, and yet, did not
present the testimony of any expert who examined Erik Chatman. Very simply,
why didn’t they call a psychologist? Why didn’t they call a psychiatrist who had
something meaningful to say about Chatman? I would suggest to you that there
was no one. There was no one who could corroborate this testimony.”
Defendant argues that the prosecutor improperly appealed to the passion of
the jurors, denigrated defense counsel, and referred to evidence outside the record.
The prosecutor’s overall point, which the jury could readily understand, was that
the defense had presented no expert evidence connecting the claimed abuse with
defendant’s crimes and that, had such evidence existed, the defense would have
presented it. Comment on the failure to call logical witnesses is legitimate.
(Wash, supra, 6 Cal.4th at pp. 262-263.) The fact that the defense went to great
lengths to examine the witness Wathel strengthened this argument. It is true that
neither the jury nor the prosecutor knew whether defense counsel had spent money
examining defendant, but the court again admonished the jury that statements of
counsel were not evidence, and the point was unimportant. There was no
reasonable likelihood the jury gave the comments any improper meaning, and no
prejudice occurred. (Clair, supra, 2 Cal.4th at p. 663.)
75
Occasionally and without objection, the prosecutor referred to defendant as a
“monster” in his argument. Defendant now contends the references were
improper, but because he did not object, the claim is not cognizable. An
admonition could have cured any harm. Moreover, if the crime was committed as
the prosecutor urged, it was not misconduct for him to label it as monstrous. The
comment was permissible. (People v. McDermott (2002) 28 Cal.4th 946, 1002-
1003, and cases cited.)
Defendant contends that the prosecutor misstated the law governing the
evidence in mitigation, by arguing that the jury could not consider certain
evidence as a matter of law. (See Skipper v. South Carolina (1986) 476 U.S. 1, 4-
8.) The issue is not cognizable. Defendant failed to object and an admonition
would have cured any harm. Moreover, we have reviewed the comments
defendant cites and find no impropriety. The prosecutor never argued that the jury
was not legally allowed to consider any mitigating evidence. He only argued that
factually some of the evidence did not mitigate the crimes. “Although a jury may
not be prevented from considering mitigating evidence, the prosecutor may argue
that the evidence does not, in fact, support a particular mitigating factor.” (People
v. Cleveland (2004) 32 Cal.4th 704, 764 (Cleveland).) The prosecutor here did no
more.
6. Instructional Issues
Defendant contends the jury was misinstructed.
The trial court correctly instructed that before a juror could consider any
criminal act in aggravation that “juror must first be satisfied beyond a reasonable
doubt that the defendant did in fact commit such criminal acts.” (See People v.
Robertson (1982) 33 Cal.3d 21, 53-54.) It did not define reasonable doubt as part
of its penalty instructions, although it had done so at the guilt phase. Defendant
76
contends the court erred in not defining reasonable doubt again. He notes that the
court also instructed the jury at the penalty phase to “[d]isregard all other
instructions given to you in other phases of this trial” and argues that these
instructions left the penalty jury uninformed as to the definition of reasonable
doubt.
The court should have redefined reasonable doubt at the penalty phase.
However, as in People v. Holt (1997) 15 Cal.4th 619, 685, “[a]ny possible error
arising from the court’s failure to [do so] was harmless.” Absent any suggestion
to the contrary, the jury would likely have assumed the reasonable doubt the court
referred to at the penalty phase had the same meaning as the term had during the
guilt phase. There is no reasonable likelihood (People v. Kelly (1992) 1 Cal.4th
495, 525) the jury would have believed the reasonable doubt analysis it was
required to engage in at the penalty phase was somehow different than the
reasonable doubt analysis it had already engaged in at the guilt phase. That the
court would not have changed the meaning of such an important term without
saying so is a “commonsense understanding of the instructions in the light of all
that has taken place at the trial [that is] likely to prevail over technical
hairsplitting.” (Boyde v. California (1990) 494 U.S. 370, 381.) Additionally, “the
jury did not request a further explanation of the reasonable doubt standard, as it
surely would have done had it been confused as to the meaning of reasonable
doubt.” (Holt, at p. 685.)
Defendant relies primarily on People v. Elguera (1992) 8 Cal.App.4th 1214,
which found prejudicial error for failure to instruct on the reasonable doubt
standard. The case is distinguishable. The Elguera trial court did not mention
reasonable doubt at all in its instructions, not even to say the defendant had to be
found guilty beyond a reasonable doubt. Although it had discussed reasonable
doubt during jury selection, “the instruction was not given to actual jurors, but to
77
prospective jurors who at the time did not know whether they would ultimately
serve in the case. As a result, the members of the panel could well have viewed
the court’s remarks as hypothetical and thus have failed to give the instruction the
same focused attention they would have had they been impaneled and sworn.”
(Id. at p. 1222.) Here, by contrast, the court instructed that the jurors had to find
beyond a reasonable doubt that defendant had committed another crime before
they could consider it in aggravation. Further, the jury had actually applied the
reasonable doubt standard at the guilt phase, and found in defendant’s favor
regarding some allegations.
The trial court refused defendant’s request to instruct the jury that it “must
not consider as an aggravating factor the existence of any special circumstance if
you have already considered the facts of the special circumstance as a
circumstance of the crime for which the defendant has been convicted. [¶] In
other words, do not consider the same facts more than once in determining the
presence of aggravating factors.” We rejected the identical claim of error in
People v. Ayala (2000) 24 Cal.4th 243, 288-290. In the absence of misleading
argument, not present here, there is no “reasonable likelihood that the jury applied
the instructions given it in a legally improper manner.” (Id. at p. 290.)
Defendant challenges the court’s refusal to instruct that the jury could
consider in mitigation any mental or emotional disturbance he has suffered. He
argues that because the court instructed the jury in terms of section 190.3, factor
(d), which requires the jury to consider whether the defendant “was under the
influence of extreme mental or emotional disturbance” when he committed the
offense, the jury was precluded from considering a disturbance that was less than
extreme. The argument fails. The court also told the jury to consider “any other
circumstance which extenuates the gravity of the crime even though it is not a
legal excuse for the crime, and any sympathetic or other aspect of the defendant’s
78
character or background that the defendant offers as a basis for a sentence less
than death whether or not related to the offense for which he is on trial.” This
“catchall” instruction allowed consideration of any nonextreme mental or
emotional disturbance. (Jones, supra, 15 Cal.4th at p. 190.)
Defendant contends that CALJIC No. 8.88, the standard penalty phase
concluding instruction, is constitutionally flawed in various respects. We have
repeatedly upheld this instruction and continue to do so. Use of the words “so
substantial” does not render the instruction impermissibly vague. (People v. Crew
(2003) 31 Cal.4th 822, 858.) Use of the term “warrants” does not render the
instruction overbroad and permissive. (Ibid.) The instruction need not state that
the prosecution has the burden of proof with respect to the appropriate
punishment. (Ibid.) The jury need not make written findings or achieve
unanimity as to specific aggravating circumstances. Except as to other crimes, it
need not find beyond a reasonable doubt that aggravating circumstances are true.
(People v. Young (2005) 34 Cal.4th 1149, 1233 (Young).) Nor need the jury find
beyond a reasonable doubt that aggravating circumstances outweigh mitigating
ones, or that the death penalty is appropriate. (Ibid.) The instruction need not
relate that a sentence of life imprisonment without the possibility of parole means
the defendant will never be paroled. (Smith, supra, 30 Cal.4th at pp. 635-636.)
The instruction does not improperly omit that the jury must return a verdict of life
imprisonment without the possibility of parole if it finds that the mitigating factors
outweigh the aggravating factors, or that it may return a sentence of life
imprisonment without the possibility of parole even in the complete absence of
any mitigating evidence. (People v. Anderson (2001) 25 Cal.4th 543, 600, fn. 20;
People v. Davenport (1995) 11 Cal.4th 1171, 1231.) The jury may
constitutionally consider unadjudicated criminal activity in aggravation. (Smith,
supra, 30 Cal.4th at p. 642.) Contrary to defendant’s contention, Ring v. Arizona
79
(2002) 536 U.S. 584, and Apprendi v. New Jersey (2000) 530 U.S. 466 do not
affect these conclusions. (Smith, supra, 30 Cal.4th at p. 642.)
E. Cumulative Error
Defendant’s contention that the cumulative effect of the asserted errors was
prejudicial, fails. There was no significant error to accumulate. Defendant
received a fair trial.
F. Constitutionality of California’s Death Penalty Law
Defendant challenges California’s death penalty law on grounds we have
repeatedly rejected. Given the catchall factor (k) of section 190.3, the wording of
some of the other factors listed in that section does not prevent full consideration
of mitigation. (People v. Maury (2003) 30 Cal.4th 342, 439.) The statute does not
unconstitutionally fail to narrow the class of persons eligible for the death penalty.
(Young, supra, 34 Cal.4th at p. 1233.) Prosecutorial discretion in charging special
circumstances or seeking the death penalty is not unconstitutional. (Ibid.)
Intercase proportionality review is not required. (Cleveland, supra, 32 Cal.4th at
p. 768.)
“We do undertake intracase proportionality review on request to determine
whether the penalty is disproportionate to the defendant’s personal culpability
. . . .” (Cleveland, supra, 32 Cal.4th at p. 768.) Defendant does not specifically
request intracase proportionality review, but the death penalty he faces is not
disproportionate to his conduct. Defendant acted alone when he stabbed his
victim to death. The jury found, on proper and substantial evidence, that the
killing involved torture. Defendant committed other crimes of violence, both
before and after he murdered Rosellina Lo Bue. The death sentence does not
shock the conscience. (Id. at p. 769, fn. 11.)
80
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
*GEMELLO, J.
* Associate Justice, Court of Appeal, First Appellate District, Division 5,
assigned by the Chief Justice pursuant to article VI, section 6, of the California
Constitution.
81
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Chatman
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S032509
Date Filed: May 8, 2006
__________________________________________________________________________________
Court: Superior
County: Santa Clara
Judge: John T. Ball
__________________________________________________________________________________
Attorneys for Appellant:
Mark Goldrosen, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass,
Assistant Attorney General, Ronald S. Matthias and Jeremy Friedlander, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Mark Goldrosen
139 Townsend St., Suite 201
San Francisco, CA 94107
(415) 495-0112
Jeremy Friedlander
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5974
Opinion Information
| Date: | Docket Number: |
| Mon, 05/08/2006 | S032509 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Francisco Office Jeremy Friedlander, deputy 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | Chatman, Erik Sanford (Appellant) San Quentin State Prison Represented by Mark Goldrosen Attorney at Law 255 Kansas Street, Suite 340 San Francisco, CA |
| Disposition | |
| May 8 2006 | Opinion: Affirmed |
| Dockets | |
| Apr 9 1993 | Judgment of death |
| Apr 28 1993 | Filed certified copy of Judgment of Death Rendered 4-9-93. |
| Apr 29 1993 | Application for Extension of Time filed By Court Reporter to Complete R.T. |
| Apr 29 1993 | Extension of Time application Granted To Court Reporter To 6-28-93 To Complete R.T. |
| Nov 18 1997 | Counsel appointment order filed Mark Goldrosen is appointed to represent applt on his automatic appeal now pending in this court, including any related habeas proceedings. |
| Jan 20 1998 | Application for Extension of Time filed By Applt to request Record correction |
| Jan 22 1998 | Extension of Time application Granted To March 30,1998 To request Record correction |
| Mar 11 1998 | Compensation awarded counsel |
| Mar 19 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 26 1998 | Extension of Time application Granted To 5-29-98 To request Record correction |
| Apr 1 1998 | Filed: Suppl Proof of Service of request for Eot. |
| May 21 1998 | Application for Extension of Time filed By Applt to request Record correction |
| Jun 2 1998 | Extension of Time application Granted To 6-12-98 To request Record correction |
| Jun 15 1998 | Received copy of appellant's record correction motion Request for correction, additional record, and settlement of record (33 pp.) |
| Jul 23 1999 | Change of Address filed for: Attorney General - S.F. Office. |
| Aug 6 1999 | Record on appeal filed C-21 (5,784 Pp.) and R-32 (4,919 Pp.) (Including Material Under Seal); Clerk's Transcript includes 3,444 pages of Juror Questionnaires. |
| Aug 6 1999 | Appellant's opening brief letter sent, due: 9/15/99 |
| Sep 8 1999 | Application for Extension of Time filed To file Aob. |
| Sep 8 1999 | Compensation awarded counsel |
| Sep 9 1999 | Compensation awarded counsel |
| Sep 9 1999 | Extension of Time application Granted To 11/15/99 To file Aob. |
| Nov 4 1999 | Application for Extension of Time filed To file Aob. |
| Nov 12 1999 | Extension of Time application Granted To 1/14/2000 To file Aob. |
| Jan 4 2000 | Application for Extension of Time filed To file Aob. |
| Jan 6 2000 | Extension of Time application Granted To 3/13/2000 To file Aob. |
| Feb 3 2000 | Compensation awarded counsel Atty Goldrosen |
| Mar 2 2000 | Application for Extension of Time filed To file Aob. |
| Mar 6 2000 | Extension of Time application Granted To 5/12/2000 To file Aob. |
| Apr 10 2000 | Filed: Applt's Notice of motion and motion for Unsealing of the Record. |
| Apr 11 2000 | Filed: Resp's Opposition to Applt's motion to Unseal the Record. |
| May 1 2000 | Application for Extension of Time filed To file Aob. |
| May 3 2000 | Extension of Time application Granted To 7/11/2000 To file Aob. |
| Jun 30 2000 | Application for Extension of Time filed To file Aob. |
| Jul 3 2000 | Extension of Time application Granted To 9/11/2000 to file AOB. |
| Aug 31 2000 | Application for Extension of Time filed to file AOB. (7th request) |
| Aug 31 2000 | Counsel's status report received (confidential) |
| Sep 1 2000 | Extension of Time application Granted to 11-13-2000 to file AOB. |
| Sep 13 2000 | Order filed: Appellant's "Motion for Unsealing of Record," filed on April 7, 2000, is denied without prejudice. Appellant may refile the motion with supporting points and authorities. (See Cal. Rules of Ct., rule 41(a).) Additionally, upon refiling, the parties are requested to brief the issue of whether appellant should be allowed to review seven San Jose Police Department reports contained in the sealed envelope marked, "Reports and Support of Probable Cause." These reports are marked as clerk's transcript pages 194A through 194Z and are identified as follows: (1) Four page report by Officer G. Padilla, transcribed on April 18, 1990, concerning November 21, 1989, interview with Tina Whaley; (2) Four page report by Officer G. Padilla, transcribed on April 18, 1990, concerning April 18, 1990, interview with Denise Speed; (3) Three page report by Officer G. Padilla, transcribed on April 18, 1990, concerning April 18, 1990, interview with William Speed; (4) Seven page report by Sergeant Steve Ronco, transcribed on April 19, 1990, concerning April 17, 1990, interview with Yvonne Chatman; (5) One page report by Sergeant Steve Ronco, transcribed on April 19, 1990, concerning April 18, 1990, interview with Mario Chatman; (6) One page report by Sergeant Steve Ronco, transcribed on April 19, 1990, concerning April 18, 1990, interview with Bobby Matthew Moore; (7) Six page report by Sergeant Steve Ronco, transcribed on April 21, 1990, concerning April 19, 1990, interview with Mary E. Erving. |
| Sep 20 2000 | Motion filed second motion by applt for unsealing of the record. |
| Sep 28 2000 | Opposition filed Resp's partial opposition to applt's renewed mtn to unseal the record. |
| Oct 20 2000 | Counsel's status report received (confidential) |
| Nov 6 2000 | Application for Extension of Time filed To file AOB. (8th request) |
| Nov 15 2000 | Extension of Time application Granted To 1/12/2001 to file AOB. |
| Nov 15 2000 | Order filed: The motion of the defendant in People v. Erik Sanford Chatman, S032509, filed September 20, 2000, requesting the unsealing of and access to confidential portions of the record filed in this court, is granted in part. 1. The clerk of this court is directed to send a copy of the reporter's transcript of the in camera hearing held on August 6, 1992, to both parties pursuant to rule 39.51(b) of the California Rules of Court. The request to unseal the record is denied without prejudice. 2. The request is denied as to the reporter's transcript of an in camera hearing held on December 4, 1992. 3. The request is denied as to augmented clerk's transcript pages 200B to 200D. 4. The request is granted as to augmented clerk's transcript pages 194-A to 194-Z, and the clerk is directed to unseal this portion of the record. 5. The request is granted as to augmented clerk's transcript pages 216 to 223, and the clerk is directed to unseal this portion of the record. 6. As to augmented clerk's transcript pages 224 to227, the clerk is directed to permit only defense counsel to examine and copy this portion of the record. The request to unseal this portion of the record is denied without prejudice. 7. As to augmented clerk's transcript pages 228 to 231, the clerk is directed to permit only defense counsel to examine and copy this portion of the record. The request to unseal this portion of the record is denied without prejudice. 8. As to augmented clerk's transcript pages 233 to 766, the clerk is directed to permit counsel for both parties to examine this portion of the record pursuant to rule 33.5(b) of the California Rules of Court. 9. The clerk is directed to provide only counsel for defendant with a copy of augmented clerk's transcript pages 819 to 821, pursuant to rule 39.51(b) of the California Rules of Court. The request to unseal the record is denied without prejudice. |
| Nov 28 2000 | Counsel's status report received (confidential) |
| Jan 3 2001 | Application for Extension of Time filed To file AOB. (9th request) |
| Jan 10 2001 | Extension of Time application Granted To 3/13/2001 to file AOB. |
| Jan 25 2001 | Counsel's status report received (confidential) |
| Feb 23 2001 | Application to file over-length brief filed (356 page AOB submitted under separate cover) |
| Feb 28 2001 | Compensation awarded counsel Atty Goldrosen |
| Mar 2 2001 | Order filed: Applt's application to file AOB in excess of 280 pgs. is granted |
| Mar 2 2001 | Appellant's opening brief filed (356 pgs.) |
| Mar 21 2001 | Counsel's status report received (confidential) |
| Mar 30 2001 | Application for Extension of Time filed to file respondent's brief. (1st request) |
| Apr 6 2001 | Extension of Time application Granted To 5/31/2001 to file respondent's brief. |
| May 24 2001 | Counsel's status report received (confidential) |
| May 29 2001 | Application for Extension of Time filed To file respondent's brief. (2nd request) |
| May 31 2001 | Extension of Time application Granted To 7/30/2001 to file respondent's brief. |
| Jul 16 2001 | Counsel's status report received (confidential) |
| Jul 31 2001 | Application for Extension of Time filed To file resp.'s brief. (3rd request) |
| Aug 2 2001 | Extension of Time application Granted To 9/28/2001 to file resp.'s brief. |
| Sep 20 2001 | Counsel's status report received (confidential) |
| Sep 26 2001 | Application for Extension of Time filed To file resp.'s brief. (4th request) |
| Oct 10 2001 | Extension of Time application Granted To 11/27/1001 to file resp. brief. Counsel anticipates filing brief by 1/28/2002, after that date only one further extension of time is contemplated. |
| Nov 20 2001 | Counsel's status report received (confidential) |
| Nov 27 2001 | Request for extension of time filed To file resp.'s brief. (5th request) |
| Nov 28 2001 | Extension of time granted To 1/28/2002 to file resp.'s brief. Counsel anticipates filing the brief by 1/28/2002. No further extension is contemplated. |
| Nov 30 2001 | Counsel's status report received (confidential) (supplemental) |
| Jan 18 2002 | Application to file over-length brief filed To file respondent's brief. (391 pp. resp.'s brief submitted under separate cover) |
| Jan 24 2002 | Counsel's status report received (confidential) |
| Jan 24 2002 | Order filed Resp.'s motion to file resp.'s oversized brief is granted. |
| Jan 24 2002 | Respondent's brief filed (391 pp.) |
| Jan 24 2002 | Request for extension of time filed To file reply brief. (1st request) |
| Jan 28 2002 | Extension of time granted To 4/15/2002 to file reply brief. |
| Feb 22 2002 | Compensation awarded counsel Atty Goldrosen |
| Mar 21 2002 | Counsel's status report received (confidential) from atty Goldrosen. |
| Apr 8 2002 | Request for extension of time filed To file reply brief. (2nd request) |
| Apr 11 2002 | Filed: Suppl. proof of service by mail of applicaton for extension of time to file reply brief. |
| Apr 11 2002 | Extension of time granted To 6/14/2002 to file reply brief. Counsel anticipates filing the brief by the second full week of 10/2002. Only two further extensions totaling 120 additional days are contemplated. |
| May 17 2002 | Counsel's status report received (confidential) from State P.D. |
| May 17 2002 | Filed: Declaration of atty. Mark Goldrosen re habeas investigation (confidential). |
| May 21 2002 | Compensation awarded counsel Atty Goldrosen |
| Jun 5 2002 | Request for extension of time filed To file reply brief. (3rd request) |
| Jun 10 2002 | Extension of time granted To 8/13/2002 to file reply brief. Counsel anticipates filing that brief by the second week of 10/2002. One further extension totaling 60 additional days is contemplated. |
| Jun 12 2002 | Compensation awarded counsel Atty Goldrosen |
| Jul 19 2002 | Counsel's status report received (confidential) from atty Goldrosen. |
| Jul 26 2002 | Compensation awarded counsel Atty Goldrosen |
| Aug 2 2002 | Request for extension of time filed To file reply brief. (4th request) |
| Aug 12 2002 | Extension of time granted To 10/14/2002 to file appellant's reply brief. The court anticiaptes that after that date, no further extension 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. |
| Sep 19 2002 | Counsel's status report received (confidential) from atty Goldrosen. |
| Sep 20 2002 | Compensation awarded counsel Atty Goldrosen |
| Oct 8 2002 | Appellant's reply brief filed (139 pp.) |
| Oct 15 2002 | Received letter from: Attorney Goldrosen, dated 10/11/2002, advising pp. 54, 55, and 56 missing in reply brief (missing pages submitted with letter). |
| Oct 29 2002 | Compensation awarded counsel Atty Goldrosen |
| Nov 26 2002 | Counsel's status report received (confidential) |
| Jan 22 2003 | Compensation awarded counsel Atty Goldrosen |
| Jan 23 2003 | Counsel's status report received (confidential) |
| Mar 12 2003 | Filed: Declaration of attorney Mark Goldrosen re completion of habeas investigation and drafting of habeas petition (confidential). |
| Mar 14 2003 | Compensation awarded counsel Atty Goldrosen |
| Mar 18 2003 | Counsel's status report received (confidential) |
| Mar 25 2003 | Compensation awarded counsel Atty Goldrosen |
| Apr 10 2003 | Related habeas corpus petition filed (concurrent) (No. S114982) |
| May 29 2003 | Compensation awarded counsel Atty Goldrosen |
| Sep 22 2004 | Compensation awarded counsel Atty Goldrosen |
| Nov 3 2005 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the January 2006 calendar, to be held the week of January 9, 2006 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. |
| Dec 29 2005 | Exhibit(s) lodged People's 34-42. |
| Jan 19 2006 | Case ordered on calendar February 14, 2006, 1:00 p.m., in Sacramento |
| Jan 23 2006 | Letter sent to: lead counsel, requesting written stipulation whether each party will or will not stipulate to Justice Chin's participation in the case even though he will not be present at oral argument. Stipulations due on or before February 1, 2006. |
| Jan 25 2006 | Filed letter from: DAG Friedlander, dated 1/24/2006, stipulating to Justice Chin's participation in the case even though Justice Chin will not be present at oral argument. Also, focus issues for oral argument. |
| Jan 26 2006 | Exhibit(s) lodged People's 33 |
| Jan 30 2006 | Request for Extended Media coverage Filed by John Hancock of the California Channel. |
| Jan 31 2006 | Filed letter from: attorney Mark Goldrosen, dated 1/31/2006, advising that appellant declines to stipulate to having oral argument without Justice Chin being present. |
| Jan 31 2006 | Filed: letter from appellant, dated 1-27-2006, specifying focus issues for oral argument, and requesting 45 minutes for argument. |
| Feb 3 2006 | Request for Extended Media coverage Granted subject to the conditions set forth in rule 980, California Rules of Court. |
| Feb 3 2006 | Received: apellant's "Notice of Intent to Cite Additional Authorities" for oral argument. |
| Feb 14 2006 | Cause argued and submitted |
| Feb 22 2006 | Compensation awarded counsel Atty Goldrosen |
| May 8 2006 | Opinion filed: Judgment affirmed in full Opinion by Corrigan, J. ----- joined by George, C.J., Kennard, Baxter, Werdegar, Moreno and Gemello (CA 1/5), assigned, JJ. (note: Chin, J., did not participate) |
| May 22 2006 | Rehearing petition filed by appellant. (3079 words; 13 pp.) |
| May 22 2006 | Time extended to consider modification or rehearing to August 4, 2006, or the date upon which rehearing is either granted or denied., whichever occurs first. |
| Jul 7 2006 | Change of contact information filed for: applt counsel Mark Goldrosen. |
| Jul 19 2006 | Rehearing denied Petition for rehearing DENIED. |
| Jul 19 2006 | Remittitur issued (AA) |
| Jul 21 2006 | Exhibit(s) returned People's 33, 34, 35, 36, 37, 38, 39, 40, 41, and 42 |
| Jul 25 2006 | Received: acknowledgment of receipt of remittitur. |
| Jul 27 2006 | Received: acknowledgment of receipt of exhibits. |
| Aug 4 2006 | Order filed court's 150-day statement. |
| Oct 10 2006 | Received: letter from U.S.S.C., dated 10-4-2006, advising that the petition from writ of certiorari was filed on September 29, 2006 and placed on the docket October 4, 2006 as No. 06-6953. |
| Jan 16 2007 | Received: letter from U.S.S.C.; dated: January 8, 2007; cert petn was denied January 8, 2007. |
| Briefs | |
| Mar 2 2001 | Appellant's opening brief filed |
| Jan 24 2002 | Respondent's brief filed |
| Oct 8 2002 | Appellant's reply brief filed |
