Supreme Court of California Justia
Docket No. S032509
People v. Chatman

Filed 5/8/06



Plaintiff and Respondent,




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

2 Sections 190.2, subdivision (a)(17), 211.

3 Section 190.4.

4 Section 1239, subdivision (b).



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


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.


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


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


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


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


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


used money he took from the store to buy crack cocaine, which they smoked in a


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.


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


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,


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.


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.


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,


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.


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


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


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.


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.


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).


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


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).


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


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.


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


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



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


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


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


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


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


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


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


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.


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


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


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


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


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


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.)


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,


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


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


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,


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


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


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


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”


Defendant challenges the following portions of the prosecutor’s cross-


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.


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?”


“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.”


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


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.)


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.


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).)


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


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


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.)


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.


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

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


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


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


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.)


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


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


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


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


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


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


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.)


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.


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


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


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-


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


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


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,


‘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


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,


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.


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.)


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


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.)


(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


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.


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


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


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.)


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.


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


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


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


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


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,


“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


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.)


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


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


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


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


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


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


(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.)



The judgment is affirmed.




* Associate Justice, Court of Appeal, First Appellate District, Division 5,
assigned by the Chief Justice pursuant to article VI, section 6, of the California


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.
Date Filed: May 8, 2006

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, 05/08/2006S032509

1The People (Respondent)
Represented by Attorney General - San Francisco Office
Jeremy Friedlander, deputy
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Chatman, Erik Sanford (Appellant)
San Quentin State Prison
Represented by Mark Goldrosen
Attorney at Law
255 Kansas Street, Suite 340
San Francisco, CA

May 8 2006Opinion: Affirmed

Apr 9 1993Judgment of death
Apr 28 1993Filed certified copy of Judgment of Death Rendered
Apr 29 1993Application for Extension of Time filed
  By Court Reporter to Complete R.T.
Apr 29 1993Extension of Time application Granted
  To Court Reporter To 6-28-93 To Complete R.T.
Nov 18 1997Counsel 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 1998Application for Extension of Time filed
  By Applt to request Record correction
Jan 22 1998Extension of Time application Granted
  To March 30,1998 To request Record correction
Mar 11 1998Compensation awarded counsel
Mar 19 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 26 1998Extension of Time application Granted
  To 5-29-98 To request Record correction
Apr 1 1998Filed:
  Suppl Proof of Service of request for Eot.
May 21 1998Application for Extension of Time filed
  By Applt to request Record correction
Jun 2 1998Extension of Time application Granted
  To 6-12-98 To request Record correction
Jun 15 1998Received copy of appellant's record correction motion
  Request for correction, additional record, and settlement of record (33 pp.)
Jul 23 1999Change of Address filed for:
  Attorney General - S.F. Office.
Aug 6 1999Record 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 1999Appellant's opening brief letter sent, due:
Sep 8 1999Application for Extension of Time filed
  To file Aob.
Sep 8 1999Compensation awarded counsel
Sep 9 1999Compensation awarded counsel
Sep 9 1999Extension of Time application Granted
  To 11/15/99 To file Aob.
Nov 4 1999Application for Extension of Time filed
  To file Aob.
Nov 12 1999Extension of Time application Granted
  To 1/14/2000 To file Aob.
Jan 4 2000Application for Extension of Time filed
  To file Aob.
Jan 6 2000Extension of Time application Granted
  To 3/13/2000 To file Aob.
Feb 3 2000Compensation awarded counsel
  Atty Goldrosen
Mar 2 2000Application for Extension of Time filed
  To file Aob.
Mar 6 2000Extension of Time application Granted
  To 5/12/2000 To file Aob.
Apr 10 2000Filed:
  Applt's Notice of motion and motion for Unsealing of the Record.
Apr 11 2000Filed:
  Resp's Opposition to Applt's motion to Unseal the Record.
May 1 2000Application for Extension of Time filed
  To file Aob.
May 3 2000Extension of Time application Granted
  To 7/11/2000 To file Aob.
Jun 30 2000Application for Extension of Time filed
  To file Aob.
Jul 3 2000Extension of Time application Granted
  To 9/11/2000 to file AOB.
Aug 31 2000Application for Extension of Time filed
  to file AOB. (7th request)
Aug 31 2000Counsel's status report received (confidential)
Sep 1 2000Extension of Time application Granted
  to 11-13-2000 to file AOB.
Sep 13 2000Order 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 2000Motion filed
  second motion by applt for unsealing of the record.
Sep 28 2000Opposition filed
  Resp's partial opposition to applt's renewed mtn to unseal the record.
Oct 20 2000Counsel's status report received (confidential)
Nov 6 2000Application for Extension of Time filed
  To file AOB. (8th request)
Nov 15 2000Extension of Time application Granted
  To 1/12/2001 to file AOB.
Nov 15 2000Order 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 2000Counsel's status report received (confidential)
Jan 3 2001Application for Extension of Time filed
  To file AOB. (9th request)
Jan 10 2001Extension of Time application Granted
  To 3/13/2001 to file AOB.
Jan 25 2001Counsel's status report received (confidential)
Feb 23 2001Application to file over-length brief filed
  (356 page AOB submitted under separate cover)
Feb 28 2001Compensation awarded counsel
  Atty Goldrosen
Mar 2 2001Order filed:
  Applt's application to file AOB in excess of 280 pgs. is granted
Mar 2 2001Appellant's opening brief filed
  (356 pgs.)
Mar 21 2001Counsel's status report received (confidential)
Mar 30 2001Application for Extension of Time filed
  to file respondent's brief. (1st request)
Apr 6 2001Extension of Time application Granted
  To 5/31/2001 to file respondent's brief.
May 24 2001Counsel's status report received (confidential)
May 29 2001Application for Extension of Time filed
  To file respondent's brief. (2nd request)
May 31 2001Extension of Time application Granted
  To 7/30/2001 to file respondent's brief.
Jul 16 2001Counsel's status report received (confidential)
Jul 31 2001Application for Extension of Time filed
  To file resp.'s brief. (3rd request)
Aug 2 2001Extension of Time application Granted
  To 9/28/2001 to file resp.'s brief.
Sep 20 2001Counsel's status report received (confidential)
Sep 26 2001Application for Extension of Time filed
  To file resp.'s brief. (4th request)
Oct 10 2001Extension 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 2001Counsel's status report received (confidential)
Nov 27 2001Request for extension of time filed
  To file resp.'s brief. (5th request)
Nov 28 2001Extension 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 2001Counsel's status report received (confidential)
Jan 18 2002Application to file over-length brief filed
  To file respondent's brief. (391 pp. resp.'s brief submitted under separate cover)
Jan 24 2002Counsel's status report received (confidential)
Jan 24 2002Order filed
  Resp.'s motion to file resp.'s oversized brief is granted.
Jan 24 2002Respondent's brief filed
  (391 pp.)
Jan 24 2002Request for extension of time filed
  To file reply brief. (1st request)
Jan 28 2002Extension of time granted
  To 4/15/2002 to file reply brief.
Feb 22 2002Compensation awarded counsel
  Atty Goldrosen
Mar 21 2002Counsel's status report received (confidential)
  from atty Goldrosen.
Apr 8 2002Request for extension of time filed
  To file reply brief. (2nd request)
Apr 11 2002Filed:
  Suppl. proof of service by mail of applicaton for extension of time to file reply brief.
Apr 11 2002Extension 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 2002Counsel's status report received (confidential)
  from State P.D.
May 17 2002Filed:
  Declaration of atty. Mark Goldrosen re habeas investigation (confidential).
May 21 2002Compensation awarded counsel
  Atty Goldrosen
Jun 5 2002Request for extension of time filed
  To file reply brief. (3rd request)
Jun 10 2002Extension 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 2002Compensation awarded counsel
  Atty Goldrosen
Jul 19 2002Counsel's status report received (confidential)
  from atty Goldrosen.
Jul 26 2002Compensation awarded counsel
  Atty Goldrosen
Aug 2 2002Request for extension of time filed
  To file reply brief. (4th request)
Aug 12 2002Extension 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 2002Counsel's status report received (confidential)
  from atty Goldrosen.
Sep 20 2002Compensation awarded counsel
  Atty Goldrosen
Oct 8 2002Appellant's reply brief filed
  (139 pp.)
Oct 15 2002Received 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 2002Compensation awarded counsel
  Atty Goldrosen
Nov 26 2002Counsel's status report received (confidential)
Jan 22 2003Compensation awarded counsel
  Atty Goldrosen
Jan 23 2003Counsel's status report received (confidential)
Mar 12 2003Filed:
  Declaration of attorney Mark Goldrosen re completion of habeas investigation and drafting of habeas petition (confidential).
Mar 14 2003Compensation awarded counsel
  Atty Goldrosen
Mar 18 2003Counsel's status report received (confidential)
Mar 25 2003Compensation awarded counsel
  Atty Goldrosen
Apr 10 2003Related habeas corpus petition filed (concurrent)
  (No. S114982)
May 29 2003Compensation awarded counsel
  Atty Goldrosen
Sep 22 2004Compensation awarded counsel
  Atty Goldrosen
Nov 3 2005Oral 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 2005Exhibit(s) lodged
  People's 34-42.
Jan 19 2006Case ordered on calendar
  February 14, 2006, 1:00 p.m., in Sacramento
Jan 23 2006Letter 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 2006Filed 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 2006Exhibit(s) lodged
  People's 33
Jan 30 2006Request for Extended Media coverage Filed
  by John Hancock of the California Channel.
Jan 31 2006Filed 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 2006Filed:
  letter from appellant, dated 1-27-2006, specifying focus issues for oral argument, and requesting 45 minutes for argument.
Feb 3 2006Request for Extended Media coverage Granted
  subject to the conditions set forth in rule 980, California Rules of Court.
Feb 3 2006Received:
  apellant's "Notice of Intent to Cite Additional Authorities" for oral argument.
Feb 14 2006Cause argued and submitted
Feb 22 2006Compensation awarded counsel
  Atty Goldrosen
May 8 2006Opinion 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 2006Rehearing petition filed
  by appellant. (3079 words; 13 pp.)
May 22 2006Time 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 2006Change of contact information filed for:
  applt counsel Mark Goldrosen.
Jul 19 2006Rehearing denied
  Petition for rehearing DENIED.
Jul 19 2006Remittitur issued (AA)
Jul 21 2006Exhibit(s) returned
  People's 33, 34, 35, 36, 37, 38, 39, 40, 41, and 42
Jul 25 2006Received:
  acknowledgment of receipt of remittitur.
Jul 27 2006Received:
  acknowledgment of receipt of exhibits.
Aug 4 2006Order filed
  court's 150-day statement.
Oct 10 2006Received:
  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 2007Received:
  letter from U.S.S.C.; dated: January 8, 2007; cert petn was denied January 8, 2007.

Mar 2 2001Appellant's opening brief filed
Jan 24 2002Respondent's brief filed
Oct 8 2002Appellant's reply brief filed
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