Supreme Court of California Justia
Docket No. S042223
People v. Cook

Filed 8/14/06



Plaintiff and Respondent,







Defendant and Appellant.

Super. Ct. No. SC31145

A jury convicted Walter Joseph Cook III of three counts of first degree

murder for killing Ernest Sadler, Michael Bettancourt, and Ronald Morris (Pen.

Code, § 187),1 and it found true a multiple-murder special circumstance (§ 190.2,

subd. (a)(3)). It further found that the murder of Sadler was committed with a

deadly weapon (§ 12022, subd. (b)), that defendant personally inflicted great

bodily injury on Sadler (§ 1203.075), and that defendant personally used a firearm

in murdering both Bettancourt and Morris (§§ 1203.06, subd. (a)(1), 12022.5,

subd. (a).) At the penalty phase of trial, the jury returned a verdict of death.

Defendant’s appeal to this court is automatic. (§ 1239, subd. (b).)

We affirm the judgment.


Further statutory references are to the Penal Code, unless otherwise




A. Prosecution’s Guilt Phase Case-in-Chief

The murders of Ernest Sadler, Michael Bettencourt and Ronald Morris

occurred on separate occasions and were unrelated to one another, except for each

victim’s link to defendant, a seller of crack cocaine.

1. Sadler


Around 4:00 o’clock on the morning of February 9, 1992, police officers

found the body of Ernest Sadler lying on the pavement in the 2200 block of

Menalto Avenue, East Palo Alto. Sadler’s head was severely battered and three

bloodstained, broken pieces of board were found near his body by officers

responding to a 911 call. Because Sadler’s distinctive shoe prints were visible on

the damp soil in the front yard of the house at 2250 Menalto, San Mateo County

Sheriff’s Detective William Osborn interviewed the 11 occupants of the residence,

none of whom admitted to having seen Sadler killed.

Only months later did several occupants of the house admit that they had

known about Sadler’s killing. In June, Shawnte Early gave police a recorded

statement in which she reported seeing defendant fighting with Sadler and

continuing to attack Sadler with a stick after Sadler was on the ground. She

described coaxing defendant into her car and driving him around the corner only

to have him jump out and run back to resume beating Sadler. At trial, Early

repudiated her taped interview, testifying that she did not remember having made

the detailed statement, and that it was untrue. A tape recording of her June 1992

interview was played for the jury.

Ernest Woodard, who lived at 2250 Menalto, testified that he was

awakened that night by “someone” who told him there was a fight outside. He

saw defendant, whom he knew by sight, engaged in a fist fight, and told the


combatants to move on down the street. Woodard, a convicted felon, feared a

police investigation of the fight would bring them to his house. At the time of

trial, Woodard was serving a prison term for selling cocaine.

Some time after the fight, Velisha Sorooshian, a relative by marriage of

Woodard’s, came to 2250 Menalto with Leonard Holt to buy crack cocaine.

While the pair sat in their car smoking a pipe of crack cocaine, a car containing

defendant pulled alongside, and he laughingly asked Velisha to go see if the man

lying in the street was all right. She assumed defendant was joking until she

returned to 2250 Menalto to buy more cocaine and Woodard told her the man was

probably dead; Woodard asked her to call 911, which she did. Holt testified that

earlier in the evening, about 8:00 or 9:00 o’clock, he had run into Sadler. When

Sadler said he wanted to buy a $5 dollar rock of cocaine, Holt told him to try the

Woodard house.

The day after Sadler’s death, Shannon Senegal, defendant’s cousin, ran into

defendant, who reported that he had “beat someone down last night” on Menalto,

identifying his victim as Sadler. Defendant explained that Sadler had taken some

of defendant’s crack and tried to run off with it. When Senegal asked if Sadler

had died, defendant said he did not know and expressed no concern over that

possibility. (At the time of trial, Senegal was in custody, charged with being an

accessory after the fact to the murder of Ronald Morris.)

According to the pathology report, Sadler’s death was the result of having

aspirated blood into his lungs from extensive injuries to his face and head,

including ruptured eyeballs and broken facial bones. These injuries were

consistent with a severe beating. Sadler had a blood-alcohol level of .09 percent

and tested positive for both cocaine and cocaine metabolite. Sadler was 44 at the

time of his death.


2. Bettencourt murder

Between midnight and 1:00 a.m. on February 14, 1992, a group of people

was gathered in East Palo Alto on Alberni Street, a site of illegal drug sales. A

group of young women, including Shawnte Early, Teresa Beasley, and Tomika

Asburry, was in the street drinking to celebrate the birthday of their friend Valerie

Gardley. When a gold Thunderbird car stopped in the middle of the street, its

driver, Michael Bettancourt, who was apparently trying to buy drugs, was

immediately surrounded by potential sellers, including defendant. Steven Sims,

one of the sellers, stuck his arm in through the open driver’s window but was

jostled, causing him to drop his rock of cocaine inside Bettancourt’s car. Sims

opened the driver’s door to look for the fallen rock. Sims then heard defendant,

who was holding a 9-millimeter automatic pistol, threaten Bettancourt to return the

rock or pay for it. When defendant yelled, “Get back, get back,” Sims stepped

away and saw defendant shoot Bettancourt once in the leg, then pause and unload

the “clip in the nine,” shooting Bettancourt repeatedly. Although Asburry

identified defendant as the shooter in her statement to the police, at trial she

recanted, insisting that she had not seen the shooter, and that her earlier statement

was false.

After the shooting, Nathan Gardner testified that defendant jumped into

Gardner’s car, rode a few blocks, and got out. During the ride, when Gardner

asked why he had shot Bettancourt, defendant explained that Bettancourt had tried

to “gaffle,” meaning to steal from, him. Steven Sims testified that a day or so after

the shooting he encountered defendant on the street and referring to the shooting

said, “Dude you tripped out.” Defendant replied, “He should have give[n] me my

money or my rock back.”

Bettancourt was found dead in his car, with the driver’s door standing open.

No one in the neighborhood contacted by the responding officer had any


information to impart about the shooting. That officer saw numerous shell casings

in the street next to the open car door; investigators recovered 13 cartridge cases

and two bullets from that area. Later forensic examination determined that 11 of

the shell casings had come from a single gun.

3. Morris murder

On the afternoon of May 21, 1992, three women accompanied Sharoon

Reed to University Liquors. As the women left the liquor store in their car, they

encountered Shannon Senegal, who was driving a tan-topped, burgundy-colored

Nova car; Lavert Branner and defendant were passengers. The men in the Nova

were in a hurry to pull out of the parking lot, and one of them shouted at the

women to “hurry up and move.” Defendant displayed a gun to the women, who

slowed their car, but followed the Nova at a distance. The women were headed

for a birthday party in honor of Ronald Morris. Morris, who knew and was

friendly with Senegal, had just parked his car on East O’Keefe Street where the

party was to be held when he hailed the Nova, which made a U-turn and pulled

next to him.

Senegal testified that while he was talking with Morris, defendant, who was

in the front passenger seat, suddenly leaned across Senegal and started shooting

Morris, announcing, “I told you I will get your punk ass back.” According to

Senegal, defendant harbored a grudge against Morris for an incident about a week

earlier when an armed Morris had encountered defendant, who was unarmed, and

had mocked defendant’s vulnerability. Defendant told Senegal he would “get

back” at Morris.

Reed testified that, from the women’s car, she overheard Morris as he

looked into the Nova from the driver’s side say, “Damn, you all strapped,”

indicating that the Nova’s occupants were armed. By Reed’s account of the


shooting, Morris suddenly turned away from the Nova just before she heard

multiple shots fired.

Dr. Parviz Pakdaman, a pathologist, testified that Morris had five bullet

wounds in his heart and lungs, any one of which was “potentially fatal.” The

victim’s blood tested negative for drugs but showed a .04 percent level of alcohol.

4. Murder weapon

Various 9-millimeter cartridge casings recovered from the pavement where

Morris fell were compared to 9-millimeter casings recovered from the Bettancourt

murder, but San Mateo County Sheriff’s criminalist Nick Stumbaugh could not

determine with certainty whether both sets of casings had come from the same

weapon, possibly because those from the earlier killing were aluminum while

those from the later killing were brass.

Defendant was arrested on a California warrant in Oklahoma on June 26,

1992; he waived extradition, and he was returned to California to stand trial.

While still in Oklahoma he gave a lengthy interview to East Palo Alto Police

Sergeant Gregory Eatmon and Inspector Bruce Sabin of the San Mateo District

Attorney’s Office. In that interview, defendant said he “blanked out” and could

not remember killing Morris,2 but he admitted that after an evening of drinking he

had used his 9-millimeter handgun to shoot Bettancourt and that on the day after

the Morris shooting he had thrown the gun off the Dumbarton Bridge. No gun

was ever recovered.


At trial, videotapes of defendant’s interview were admitted into evidence

and played for the jury, which was also provided with a transcript prepared by the
prosecution. The trial court cautioned the jury to rely on the words they heard in
the tape recording rather than on the text of the transcript.


B. Defense Case at the Guilt Phase

Conceding that defendant had shot Bettancourt, the defense focused on the

similarity of the witnesses’ statements as evidence they had been coached by the

police. Teresa Beasley, who had given a statement in June 1992 identifying

defendant as the shooter of Bettancourt, testified that her statement had been

coerced and reflected what the police wanted her to say.

The defense further sought to establish that Bettancourt’s killing was at

most second degree murder. Accordingly, it presented expert testimony by

Kenneth Mark, a private criminalist; in Mark’s opinion, a 170-pound person who

consumed two 40-ounce beers and a pint and a half to two pints of alcohol over 10

hours without eating would be at best unsteady on his feet and at worst

unconscious. Dr. James Missett, a psychiatrist with expertise in the effects of

alcohol and drugs, testified that a person angry when drinking would “interpret

things in an angry way.”

With respect to the killings of Morris and Sadler, the defense portrayed the

police investigation as an effort to frame defendant with those unsolved murders

by persuading or pressuring witnesses to inculpate defendant, instead of Shannon

Senegal, Lavert Branner, or some unknown party. Seeking to cast doubt on

defendant’s culpability for Morris’s death, the defense presented evidence that

linked Shannon Senegal and Lavert Branner to the killing. It relied on a May 1992

statement by Tasha Bradford identifying Shannon Senegal, the driver of the Nova,

as the man who shot Morris, and identifying his passenger as Walter Wright or

Walter White, not defendant Walter Cook. It also presented the testimony of

Shannon Senegal’s sisters that their brother and defendant were together on the

day of Morris’s shooting, that Shannon flew to San Diego shortly after the

shooting, and that one sister had attempted to mislead both a defense investigator

and the police about Shannon’s whereabouts.


Monique Barrett and Lakishain Smith testified that on May 9, 1993, Lavert

Branner told them he had shot Morris. Barrett had become friendly with

defendant, who was her husband’s cellmate. Smith first met defendant when he

was in jail, and she then began visiting and corresponding with him.

The defense sought to show that Branner also knew murder victim Morris

well, having roomed with him at the California Youth Authority. It emphasized

that Branner had repeatedly been assured by police that he was not a suspect in the

Morris murder. On the eve of trial, Branner conformed his version of events to

Senegal’s account that it was Senegal, not defendant, in the driver’s seat when

Morris was shot.

As for the Sadler killing, the defense emphasized that the police long

lacked a suspect in that killing, in part because many of the probable witnesses at

2250 Menalto on the night of the killing were Woodard family members, relatives,

or associates, who were apparently reluctant to talk lest they implicate other

family members in the case.

C. Prosecution’s Penalty Phase Case

At the penalty phase the prosecution presented evidence of four occasions

when defendant engaged in unadjudicated criminal acts in which he used force or


On February 2, 1990, East Palo Alto Police Officer Terry Brown responded

to a man-with-a-gun call at the home of defendant’s father, Walter Cook, Jr., and

his stepmother, Geraldine Cook. Geraldine reported that defendant, after arguing

with her, went into his bedroom and emerged with a MAC-11 assault pistol, which

he loaded and pointed at her, threatening “to blow” her “head off.” When the

police arrived, defendant refused to come out of the house, so Brown and other


officers entered and searched, eventually finding defendant hiding in a crawl space

under the floor of his bedroom. The pistol was later recovered from the garage.

The second and third incidents took place on January 21, 1991, at a

basketball game in Frankfurt, Germany where defendant, while living with his

mother and stepfather, attended Frankfurt High School, a school for military

dependents. Markus Hallgrimson testified at the penalty phase that he attended

Frankfurt High, and played on the school basketball team. He was at a drinking

fountain in the gymnasium hallway after a game when several Black youths

directed racial insults at him. One of the youths, who was wearing a purple

sweatshirt and an earring, kneed Markus in the stomach and slammed his head into

a locker, giving him a concussion. Markus’s mother testified at the penalty phase

that about half an hour later, a young man in a purple sweatshirt made his way into

the stands and began heckling the Frankfurt High basketball coach, whom he

eventually assaulted. Robert Prinz, assistant principal at Frankfurt High School,

confronted the youth in the purple sweatshirt who was being verbally abusive to

another teacher and who seemed to have been drinking. At the penalty phase of

defendant’s capital trial, Prinz identified defendant as the youth in the purple


The fourth incident occurred on January 14, 1992, when defendant was

living in East Palo Alto. Officer Phillip Johnson of the East Palo Alto Police

Department testified at the penalty phase that after securing a crime scene with

yellow caution tape on a block where three persons had been shot, he saw

defendant starting to walk through the area. When Johnson confronted him,

defendant refused to leave, telling the officer to get out of his way “[b]efore I fuck

you up.” Defendant, who did not appear to be intoxicated, was arrested for

resisting an officer.


D. Defense Penalty Phase Case

Both defendant’s mother, Valerie Phillips, and his father, Walter Cook, Jr.,

testified, and their testimony was corroborated by that of other family members.

By their account, they married young, and defendant was born in Louisiana on

September 25, 1973. They moved to Texas and from there to California in 1976.

Both of them used drugs and alcohol daily, including during Valerie’s pregnancy.

By the time they came to California, their marriage was shaky, in part because

Walter, Jr. conceded he beat Valerie “pretty regular.” When Valerie sought a

divorce, Walter, Jr., who did not have custody of defendant, came to a family

birthday party and took the boy without permission. Fearing for her son’s safety

after that episode, Valerie took defendant, who was then about seven or eight

years old, to Texas to live with his maternal grandmother. The latter testified that

during his stay with her in Texas defendant was fearful for his safety, causing her

to install a latch on the bedroom door so that he would feel safe at night.

Defendant also expressed concerns about his mother’s safety, telling his

grandmother about an episode when his father threatened to drive himself, the boy,

and his mother off the Dumbarton Bridge.

In 1981, defendant’s mother married a second time, to Morales Cutts. That

marriage lasted until defendant was 12 or 13 years old. After their divorce she

married her third husband, Kenneth Phillips, who was in the Army. The couple

lived in Seaside, California, and was eventually joined by defendant. In 1989,

when Phillips was stationed in Germany, defendant chose to stay in California and

live with his father and stepmother in East Palo Alto. After the incident when

defendant threatened Geraldine with an assault pistol, he joined his mother and

stepfather in Germany, where he stayed for about a year. Defendant lived briefly

with his maternal grandmother in Sacramento but he soon returned to his father’s


residence in East Palo Alto. His father was aware that defendant was selling and

using drugs and drinking heavily.

Dr. George Wilkinson, a psychiatrist, spent some 23 and a half hours in

interviews with defendant and he reviewed tests of defendant conducted by other

mental health professionals. That testing measured defendant’s I.Q. at 90, and

revealed that he had severe deficits in mathematics and a learning disability

impairing his processing of auditory information. In Wilkinson’s view, defendant

suffers from dissociative disorder, but otherwise has no diagnosed mental disease.

Defendant’s dissociative disorder manifests itself in traumatic situations, causing

him to experience a slowing of time and to feel that he is losing his mind, which

causes him significant physical discomfort. Defendant’s dissociative disorder

developed as a defense mechanism to traumatic events, including the verbal and

physical violence he experienced in childhood, and results in his denying or

forgetting moments of great stress. Accordingly, when his life is sufficiently

structured, defendant functions adequately, but stress renders him almost


Dr. Wilkinson found confirmation of that diagnosis in symptoms defendant

exhibited as early as the age of six and a half, when he was examined after

complaining of persistent headaches and of stomach pain of a type associated with

ulcers. Several witnesses confirmed that defendant had complained of headaches

throughout his childhood.

In each of the murders, Wilkinson concluded that defendant was subjected

to a situation of considerable violent conflict, verbal and sometimes physical. For

instance, the night before Sadler’s killing, defendant was at a nightclub at which a

fight broke out and defendant was hit with a chair, and so he was especially prone

to over-respond when his argument with Sadler escalated. Defendant told

Dr. Wilkinson that after killing Sadler he was the victim of a robbery and beating;


that event, according to the psychiatrist, heightened defendant’s paranoia. Thus,

according to Dr. Wilkinson, the melee and shouting that broke out around murder

victim Bettancourt’s car, coupled with defendant’s perception that Bettancourt was

reaching for a gun, caused defendant to go into a dissociative state and begin

shooting. After the first two murders, the psychiatrist testified, defendant became

“increasingly paranoid and depressed,” so that when he encountered Morris, a

person who he perceived to have threatened him, defendant shot Morris in



A. Motion to Sever

1. Ruling on Motion

Before trial, defendant unsuccessfully moved to sever the three murder

charges and try them separately. Defendant contends that the trial court abused its

discretion when it denied his severance motion, rendering his trial fundamentally

unfair, in violation of his right to due process and a fair trial under both the state

and federal Constitutions. We disagree.

Penal Code section 954 permits “[a]n accusatory pleading” to charge “two

or more different offenses of the same class of crimes or offenses, under separate

counts . . . .” Here, the three murder counts are crimes of the same class and thus

come within the provisions of the statute. (People v. Sapp (2003) 31 Cal.4th 240,

257; People v. Maury (2003) 30 Cal.4th 342, 392.) Section 954 further provides

that the trial court, acting “in the interests of justice and for good cause shown,

may in its discretion order that the different offenses . . . be tried separately.” We

review a trial court’s decision not to sever for abuse of discretion based on the

record when the motion is heard. (People v. Stitely (2005) 35 Cal.4th 514, 531;

People v. Sapp, supra, 31 Cal.4th at p. 258.) A pretrial ruling denying severance


that is not an abuse of discretion can be reversed on appeal only if joinder is so

grossly unfair as to deny the defendant due process. (People v. Valdez (2004) 32

Cal.4th 73, 120.)

Factors to be considered in assessing the propriety of joinder include:

“(1) the cross-admissibility of the evidence in separate trials; (2) whether some of

the charges are likely to unusually inflame the jury against the defendant;

(3) whether a weak case has been joined with a strong case or another weak case

so that the total evidence may alter the outcome of some or all of the charges; and

(4) whether one of the charges is a capital offense, or the joinder of the charges

converts the matter into a capital case.” (People v. Mendoza (2000) 24 Cal.4th

130, 161.) When, as here, crimes of the same class are charged together,

“evidence concerning one offense or offenses need not be admissible as to the

other offense or offenses before the jointly charged offenses may be tried

together . . . .” (§ 954.1.)

In ruling on the motion, the trial court here considered first whether the

Bettancourt and Morris murders could properly be tried together; it concluded that

they could, noting that those victims were killed by multiple shots fired from the

same gun, which defendant admitted was his. Thus, the trial court found

“substantial cross-admissibility” of evidence as to those counts. It further found

that neither case was “particularly inflammatory in comparison to the other,” and

that in each there was substantial evidence of defendant’s guilt.

As for the murder of Sadler, the trial court considered the question “much

closer.” Because Sadler was beaten rather than shot, the court concluded there

was no evidentiary cross-admissibility between that killing and the other two, but

it noted that there was a common eyewitness, Shawnte Early. On June 11, 1992,

Early had given the police a taped statement, identifying defendant as the man

who repeatedly shot Bettancourt. She also identified defendant as the man who


argued with and then had a fistfight with Sadler, and who continued to beat Sadler

with a stick after the latter fell to the ground. Although at trial Early repudiated

her earlier statement, she had not done so when the trial court denied defendant’s

severance motion, and we review the trial court’s rulings in light of the facts

known to the court when it heard the motion. (People v. Ochoa (1998) 19 Cal.4th

353, 409.)

Although the trial court found severance was a close question, in that

Sadler’s killing was a “somewhat weaker” case, it ruled that joinder did not pose a

risk that the jury would return a guilty verdict on that count rather than find

reasonable doubt as to defendant’s guilt. Notwithstanding the brutality of Sadler’s

beating, the court concluded joinder was unlikely to prejudice defendant in light of

the other two multiple gunshot killings. Lastly, referring specifically to section

954.1, the court concluded defendant would not be unduly prejudiced by joinder,

and it denied defendant’s severance motion.

The trial court did not abuse its discretion in so ruling. Apart from the

cross-admissibility of evidence between the Bettancourt, Morris, and Sadler

killings, joinder of the three murder counts was proper because they were all

murders, and therefore were “offenses of the same class of crimes.” (§ 954.1.)

Nor was any one murder especially likely to inflame the jury’s passions. The

three killings were each committed for seemingly trivial reasons and all involved

excessive force, as shown by the ferocity of the beating of Sadler and the number

of shots fired at Bettancourt and Morris. None of the cases was especially weak.

Defendant admitted that he had shot Bettancourt and that, while he could not

remember actually shooting Morris, he possessed the gun immediately before and

after the shooting until he discarded it the next day. There was strong evidence of

defendant’s responsibility for Sadler’s death. Two eyewitnesses, Early and

Woodard, had given pretrial statements to the police identifying defendant as the


man fighting with Sadler. And Velisha Sorooshian’s pretrial statement to police

recounted defendant driving up after the fistfight and laughingly asking her to go

see if the victim was dead. Also, defendant’s cousin, Shannon Senegal, had

reported to investigators that he heard defendant admit responsibility for the

Sadler killing shortly after it occurred. Finally, joinder of only the Bettancourt and

Morris murders would have sufficed to support the multiple-murder special

circumstance; therefore, the joinder of the Sadler murder did not expand

defendant’s death penalty liability. Even under a heightened scrutiny for joinder

of charges, when the joinder itself gives rise to the only special circumstance

allegation—that of multiple murder (Williams v. Superior Court (1984) 36 Cal.3d

441, 454)—we here conclude that defendant has not shown suffered prejudice

from a single trial on all three murder charges.

We also reject defendant’s contention that the single trial of the three

murders resulted in actual unfairness so great as to deny him due process (People

v. Valdez, supra, 32 Cal.4th at p. 120; People v. Mendoza, supra, 24 Cal.4th at

p. 162) and to deprive him of his right to a fair trial under the Fifth Amendment to

the federal Constitution. (See United States v. Lane (1986) 474 U.S. 438, 446, fn.

8 [88 L.Ed. 814, 106 S.Ct. 725].) Here, before trial defendant admitted to

investigators that during a dispute over a street sale of crack cocaine he repeatedly

shot and killed Bettancourt on February 14, 1995. As to his motive, two witnesses

(Steven Sims and Nathan Gardner) testified at trial that defendant said he shot

Bettancourt because the victim was trying to steal defendant’s cocaine. The first

victim, Sadler, had been murdered only some five days earlier when, according to

defendant, Sadler tried to run away after taking some of defendant’s cocaine.

Defendant told police that, shortly before Morris was shot, Morris threatened him,

and that, while he could not recall the actual shooting, the “last thing” he

remembered was seeing Morris looking inside the car at him as his loaded gun lay


on the car seat next to his right leg. A witness (Shannon Senegal) to the shooting

testified that defendant suddenly shot Morris point blank, and then said, “I told

you I will get your punk ass back.” In light of defendant’s admissions, the

testimony of eyewitnesses identifying defendant as the perpetrator of the killings,

and the use of defendant’s gun in two of the three shootings, a joint trial of all

three murders was not fundamentally unfair.

2. Prosecutor’s presence at hearing on severance motion

Defendant contends the trial court erred by not hearing his severance

motion in chambers without the prosecution present. He argues that the court’s

failure to do so prejudiced his ability to advance inconsistent defenses—on the one

hand, his defense that his killing of Bettancourt was at most second degree

murder, and on the other hand that there was reasonable doubt as to whether he

was the actual killer of either Sadler or Morris—without revealing to the

prosecution the work product and possible strategy of the defense. The trial

court’s failure to hear the motion in chambers, defendant argues, deprived him of

his rights to remain silent and to counsel under the Fifth and Sixth Amendments,

respectively, to the United States Constitution.

Because defendant mentions no defense request for such a hearing,

presumably his point is that the trial court was obliged on its own initiative to hear

defendant’s severance motion without the prosecution present. He offers no

authority for that proposition, instead citing cases where in-chambers review was

sought of discovery documents containing private or privileged information.

(State of California ex rel. Dept. of Transportation v. Superior Court (1985) 37

Cal.3d 847, 855-856 [accident reports for collision site]; Kelvin L. v. Superior

Court (1976) 62 Cal.App.3d 823, 829 [juvenile’s Pitchess request for police

officer records].) Absent some evidence the defense requested an in-chambers


hearing and articulated the harm defendant might suffer from a hearing at which

the prosecution was present, we cannot say that the trial court erred when it did not

exclude the prosecution from the hearing on defendant’s severance motion.

B. Three Strikes

Defendant argues that the multiple-murder special circumstance should

have been dismissed because the three 1992 homicides with which he was charged

were subject to the provisions of the three strikes law (§§ 667, 1170.12), adopted

in 1994. That law, he contends, provides the exclusive means of punishing a

person who is convicted of a felony and who has previously been convicted of

certain specified felonies. We have in the past rejected this claim (People v.

Hughes (2002) 27 Cal.4th 287, 405-406; People v. Alvarez (1996) 14 Cal.4th 155,

246-247), and defendant offers no basis to reconsider that rejection.

C. Speedy Trial

Defendant contends that he was denied his right to a speedy preliminary

hearing in violation of the federal and state Constitutions. The claim is based on

these facts: On July 1, 1992, defendant appeared in court without counsel. The

next day, appearing again without counsel, he said, “I don’t know” when asked if

he was willing to waive time, and he sought a continuance to obtain an attorney.

On July 9, defendant appeared with counsel and obtained a continuance until July

16. On July 16, defendant again appeared with counsel, was advised by the court

of his right to a speedy preliminary hearing, and personally waived it. On

September 29, at the entry of defendant’s plea of not guilty, defense counsel

acknowledged the earlier waiver, and defendant once again personally waived

time for the preliminary hearing.

Defendant’s “express personal on-the-record agreement” to the

continuances waived his claim as to his rights under the federal and state


Constitutions. (People v. Anderson (2001) 25 Cal.4th 543, 604, fn. 21, 605, fn.

22.) His contention that the record is incomplete is not dispositive because the

record before us is sufficient to resolve his claim, and therefore he has suffered no

prejudice. (People v. Frye (1998) 18 Cal.4th 894, 941.)

D. Defense Motion to Disqualify Trial Judge

Before trial, defendant moved unsuccessfully to disqualify the trial judge

initially assigned to this case, and the motion was heard by a jurist from another

county. Defendant made the motion on the basis that the judge had had “a serious

dating relationship” with an employee of the district attorney’s office. The motion

was brought under Code of Civil Procedure section 170.1, subdivision (a)(6)(iii),

which authorizes recusal if “a person aware of the facts” might doubt the judge’s

impartiality. Defendant argues that his motion was erroneously denied, requiring

him to exercise his single peremptory challenge (Code Civ. Proc., § 170.6) against

the assigned judge, which effectively deprived him of his statutory right to one

peremptory challenge, and violated his due process right to an impartial trial

judge, a right that defendant argues is protected by a peremptory challenge.

We agree with the Attorney General that defendant has forfeited any

complaint about the statutory propriety of the disqualification ruling, because such

an order must be challenged within 10 days by a petition for mandate. (Code Civ.

Proc., § 170.3, subd.(d); People v. Mayfield (1997) 14 Cal.4th 668, 811.)

Defendant may, however, raise on appeal his constitutionally based claim of

judicial bias. (People v. Chatman (2006) 38 Cal.4th 344, 363; People v. Williams

(1997) 16 Cal.4th 635, 652 & fn. 5.) In any event, we reject defendant’s due

process claim that he was denied an impartial judge. The challenged judge did not

preside over defendant’s trial. Nor has defendant raised any claim, here or below,

that Judge Browning, who did preside, was biased.


E. Inadequate Record

Defendant complains that because transcripts from several hearings were

lost or unavailable he has been denied due process. He notes that the record lacks

reporter’s transcripts for a pretrial discovery motion made on July 28, 1992, in

what was then the municipal court (before the unification of the municipal and

superior courts), for a hearing on October 20, 1992 at which his preliminary

hearing was continued,3 and for the issuance of a bench warrant for witness

Shawnte Early on May 12, 1993.4

All proceedings in a capital case must, under section 190.9, be conducted

on the record with a reporter present and transcriptions prepared. (People v. Frye,

supra, 18 Cal.4th at p. 941.) “ ‘[N]o presumption of prejudice arises from the

absence of materials from the appellate record [citation], and defendant bears the

burden of demonstrating that the record is inadequate to permit meaningful

appellate review [citations].’ ” (People v. Wilson (2005) 36 Cal.4th 309, 325;

People v. Hinton (2006) 37 Cal.4th 839, 919.)

Even if we assume that there were reporter’s transcripts for each of the

three dates in question, defendant has failed to indicate what the missing record

might contain, including what the discovery motion sought. Given the existence

in the record before us of other documents and discussions relating to the

continuance of the preliminary hearing and to the bench warrant for Early, we


On October 20, 1992, defense counsel filed a written motion to continue the

preliminary hearing. That motion was scheduled to be heard on October 22, 1992.
It is not clear whether there was any proceeding to be transcribed on October 20,

Defendant also asserts that the reporter’s transcript for July 16, 1992, when

he waived a preliminary hearing, is missing. He is wrong. It is included in the
clerk’s transcript.


reject defendant’s claim that the record before us does not permit meaningful



A. Discovery Violations

On appeal, defendant argues that the trial court erred in denying his

motions for sanctions based on the prosecution’s belated disclosure of interviews

with, and information about, four witnesses that were not given to the defense

until after trial had begun. He contends that the failure to timely provide this

evidence violated his rights under the federal and state Constitutions.

In early June 1994, during the prosecution’s case-in-chief, the defense filed

a motion seeking sanctions against the prosecution for discovery violations, stating

that the prosecutor had only then turned over to it tapes and notes of interviews

with four witnesses. The trial court heard the motion, and it denied sanctions at

that time. A month later, at the conclusion of defendant’s case-in-chief, the

defense renewed its mistrial motion, incorporating the discovery violation claims

it had made in June, and further contending that on July 8 it first learned that

witness Thomas Young had been arrested in connection with the murder of Ernest

Sadler. The court held an evidentiary hearing outside the jury’s presence. It found

that the defense had been informed of Young’s arrest immediately before he

testified. It determined that defendant suffered no prejudice when defense counsel

did not question Young about his arrest. It concluded beyond a reasonable doubt

that, even if the defense had elicited from Young that he had been arrested in

connection with Sadler’s murder, defendant would not have achieved a more

favorable outcome in light of the substantial evidence that defendant was Sadler’s



Under the due process clause of the United States Constitution the

prosecution must disclose to the defense any evidence that is “favorable to the

accused” and is “material” on either guilt or punishment. (Brady v. Maryland

(1963) 373 U.S. 83, 87.) Failure to do so violates the accused’s constitutional

right to due process. (Id. at pp. 86-87.) “Evidence is material under the Brady

standard ‘if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different.’ (United

States v. Bagley (1985) 473 U.S. 667, 682).” (City of Los Angeles v. Superior

Court (2002) 29 Cal.4th 1, 7-8.) Evidence that is material to defendant’s guilt,

innocence or punishment and impeaches a prosecution witness must be disclosed.

(Kyles v. Whitley (1995) 514 U.S. 419, 432-433; United States v. Bagley, supra,

473 U.S. at p. 676; People v. Seaton (2001) 26 Cal.4th 598, 648.)

1. Thomas Young’s arrest and interview by police

Defense witness Thomas Young was one of the occupants of 2250 Menalto

on the night of Sadler’s killing. He was arrested on May 11, 1994, on suspicion of

being an accessory to the murder of Sadler, was given a polygraph test that cleared

him of participating in the Sadler murder, and was released. He then gave an

interview to Inspector Bruce Sabin of the San Mateo County District Attorney’s

Office. Young’s arrest, interview, and polygraph test were first disclosed to the

defense on June 13, 1994, during the guilt phase of trial.

Defendant complains of the prosecution’s belated disclosure of Young’s

postarrest interview and maintains that the defense did not learn until after the

guilt phase verdict was returned that Young had been arrested in connection with

Sadler’s killing. Defendant’s claim that the defense was unaware of Young’s

arrest is not borne out by the record. The trial court held an evidentiary hearing, at

which Deputy District Attorney Robert Foiles testified that on June 13, 1994,


immediately before the defense called Thomas Young as a witness, Foiles

personally told Defense Attorney Edward Pomeroy about Young’s arrest. The

trial court found that the defense had learned on June 13 of Young’s previously

undisclosed arrest. Because the interview and the fact of the arrest were disclosed

before Young testified, the only prejudice to which defendant can point is defense

counsel’s inability to suggest in his opening statement that Young, not defendant,

was the one who killed Sadler. Defendant was not denied due process under our

federal Constitution because there is no reasonable probability (Pennsylvania v.

Ritchie (1987) 480 U.S. 39, 57) that a defense opening argument citing the arrest

of Young, who then passed a polygraph test and was immediately released from

custody, would have changed the outcome of the guilt phase, given the evidence

of defendant’s guilt presented at trial.

In his reply brief, defendant asserts that defense counsel’s alleged

knowledge of Young’s arrest before Young testified cannot be reconciled with

defense counsel’s failure to question Young about his arrest. Defendant bases this

claim on a second ruling by the trial court. Once the trial court made the factual

finding that Defense Attorney Pomeroy had been told of Young’s arrest, both

defense attorneys moved to withdraw before the penalty phase of trial began,

arguing that if they had had such knowledge they necessarily had provided

ineffective assistance by failing to cross-examine Young about his arrest. The trial

court also denied that motion, relying on its earlier finding that defendant suffered

no prejudice.

In essence, defendant challenges the factual determination of the trial court

that the defense was informed before Young testified that he had been arrested as

an accessory. We are not persuaded that the only possible explanation for defense

counsel’s failure to question Young about his arrest was counsel’s ignorance of the

arrest. Based on the record before us we cannot say that the trial court’s factual


finding that the defense had been told of Young’s arrest before Young testified is

unsupported by the evidence. Nor can we say that counsel’s decision not to pose

questions about the arrest was ineffective assistance, rather than a strategic choice.

2. Velisha Sorooshian

Prosecution witness Velisha Sorooshian gave four tape-recorded interviews

to the police. Tape recordings of three interviews (those of May 8, 1992, June 3,

1992, and March 25, 1994) were turned over to the defense, but the tape of another

interview from April 20, 1993, when Sorooshian was in custody, was belatedly

discovered during trial by Detective William Osborn of the San Mateo County

Sheriff’s Office. Before Sorooshian testified, the prosecution provided the defense

with a tape recording of her April 20, 1993 interview, which the prosecutor

described as “the exact same statement” Sorooshian had given on the March 25,

1994 tape, which the defense already had in its possession.

Defendant argues that his opening statement to the jury would have

corresponded more closely to the factual matters to which Sorooshian testified if

the prosecutor had provided Sorooshian’s April 20, 1993 taped interview before

trial. Nonetheless, he had the recording of that interview before Sorooshian

testified, and he suggests no specific prejudice apart from a slight variance

between certain facts in his opening statement and the evidence adduced at trial,

and accordingly he has failed to show prejudice from the belated disclosure.

3. Leroy Lane

Potential prosecution witness Leroy Lane gave two statements to the police.

The prosecution provided the defense with a tape recording of Lane’s May 10,

1994 interview. Shortly before Lane was scheduled to testify, the prosecutor

discovered and disclosed a tape recording of an earlier phone conversation

between a police detective and Lane on April 8, 1994. The prosecutor sought to


introduce Lane’s testimony about a debt defendant believed he was owed by

victim Sadler, contending that the debt gave defendant a motive to kill Sadler.

The defense moved to exclude Lane’s testimony at trial, arguing that Lane

would testify that he had satisfied Sadler’s debt by repaying defendant what Sadler

owed defendant several months before Sadler was killed. Out of the jury’s

presence Lane took the stand, testified for the prosecution, and was cross-

examined by the defense; the trial court then excluded Lane’s testimony, finding

the debt evidence temporally “too remote” to provide a motive for Sadler’s


Because Lane did not testify at trial, the belated disclosure of the April 8,

1994 taped conversation that might have impeached his testimony cannot have

prejudiced defendant in any way.

4. Tony Harrison

On June 3, 1994, the prosecution turned over to the defense notes of an

police interview with Tony Harrison. Harrison had quarreled with defendant over

a bet in a dice game played on the afternoon of May 21, 1992, the day Morris was

murdered. Harrison told the police that he harbored no ill feeling toward

defendant after the argument and that his friend Ronald Morris was not present at

the game. Defendant argues the prosecution’s belated disclosure of Harrison’s

interview prevented defendant from establishing that when he encountered Morris

on the evening of May 21, defendant was not harboring a grudge against Morris

over the dice game. Defendant maintains that such evidence would have shown

that he did not premeditate shooting Morris.

We note that Harrison was not a prosecution witness. The only trial

testimony relating to the dice game was provided by two of its other participants,

Shannon Senegal and Lavert Branner.


The trial court ordered the prosecutor to help the defense locate Harrison if

it chose to call him as a witness, but the defense did not do so. Defendant fails to

show how the belated disclosure of the police interview with Harrison, who did

not testify at trial, was material to the defense.

B. Concession of Guilt Without Advisements and Waivers

On appeal, defendant argues that when defense counsel in opening

argument conceded that defendant had confessed to killing Bettancourt, counsel

effectively pleaded defendant guilty to Bettancourt’s murder, even though

defendant received no formal admonitions and gave no express personal waivers

of his constitutional rights to trial, to confront witnesses, and to stand silent.

(Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.) This

court long ago held that a defense attorney’s decision not to contest one or more

charges of murder at the guilt phase of a capital trial does not amount to a guilty

plea requiring admonitions and waivers of the accused’s constitutional rights.

(People v. Griffin (1988) 46 Cal.3d 1011, 1029.) In light of the other charges

being tried to the jury, such a defendant is both aware of and exercising those very

constitutional protections. (Ibid.; see also People v. Cox (1991) 53 Cal.3d 618,

670-671.) Defendant was present at jury selection, present during argument on

pretrial motions, and present when the prosecution stipulated that it would not

seek to admit into evidence his unwarned confession to killing Sadler. Therefore,

defendant knew before defense counsel’s opening statement that he was about to

have a jury trial at which he would be represented by counsel and would not have

to testify. Defendant then exercised each of the three constitutional rights at his

trial, where he argued that his killing of Bettancourt was at most second degree

murder, or possibly not murder but involuntary manslaughter. Accordingly, even


had there been error it would be harmless beyond a reasonable doubt. (Chapman

v. California (1967) 386 U.S. 18, 24.)

C. Preservation of Footprint Evidence

When police, responding to the 911 emergency telephone call about Sadler,

arrived at 2250 Menalto in East Palo Alto, there were footprints visible in the

damp soil of the front yard. Although Detective Osborn asked the evidence

technicians to photograph the prints, no photographs or casts were taken. Osborn

compared one distinctive set of footprints leading up to the house to the shoes

worn by Sadler, and concluded they were the same. That night, photographs were

taken of the 11 occupants of the house, but those photographs were misplaced

before trial.

Defendant contends that the police failure to make casts or take

photographs of the footprints and to retain photographs of the Menalto house

occupants deprived him of exculpatory evidence, violated his right to due process

under our state and federal Constitutions, and violated the Sixth and Eighth

Amendments to the federal Constitution. Because defendant failed to raise this

claim at trial, he is barred from doing so now. (People v. Seaton, supra, 26

Cal.4th at p. 656.)

Moreover, the claim is without merit. The footprints themselves neither

implicated nor exonerated defendant; the one set that was tentatively identified

belonged to murder victim Sadler and indicated that he had walked up to the house

at 2250 Menalto. The physical evidence supported the eyewitness testimony that

Sadler was beaten to death in the street. Absent a showing that the police acted in

bad faith in not preserving evidence potentially useful to defendant, there has been

no denial of due process. (Arizona v. Youngblood (1988) 488 U.S. 51, 58; People

v. Frye, supra, 18 Cal.4th at p. 943.) The testimony of Detective Osborn


demonstrates that he tried to document evidence of the footprints with

photographs but that, through no fault of his own, they were not taken.

As for the photographs that were taken of the house’s 11 occupants but

were found to be missing before trial, defendant has offered no suggestion that

photographs of the persons found in the Menalto house some hours after Sadler’s

murder would exonerate him. In any event, the investigating officers took those

photographs at the same time they compiled a list identifying the 11 occupants.

That list was supplied to the defense and introduced at trial. Accordingly,

defendant cannot show that the loss of the photographs precluded him from

learning who was at the Menalto house after Sadler’s murder. (California v.

Trombetta (1984) 467 U.S. 479, 489.)

D. Juror Questions

Defendant complains that the jury had many questions it sought to ask of

witnesses. He points to some 13 questions—most of which were asked and

answered—as indicating that the jury improperly sought to investigate factual

matters as if it were a party to the litigation.

Although the practice of allowing jurors to directly interrogate witnesses is

justly criticized (People v. McAlister (1985) 167 Cal.App.3d 633), no such thing

occurred here. The trial court required the jurors to submit in writing any

questions they had of the court. Each question was then shown to counsel for both

sides, and only after counsel acquiesced did the court itself ask the question of the

witness. During the process outlined above, both sides were given the opportunity


to object to juror questions.5 Defendant, having raised no objections at trial, has

forfeited any claim of error.

In any event, defendant’s claim lacks merit. Most of the juror questions

pertained to testimony by expert witnesses called by the prosecution.6 Other

questions posed by jurors asked for the meaning of slang used by witness that was

unfamiliar to a member of the jury, a request to repeat the names of all 11 persons

at 2250 Menalto on the night of Sadler’s murder, questions that the court declined

to answer without repeating the question in open court, a request to see

photographs that were not yet admitted into evidence, and two questions directed

to the trial court regarding procedural matters. When the court received a note

during the guilt phase from Juror R. stating, “I want to know if Mr. Cook has been

receiving mental help,” the court, at the request of the defense, responded by

telling Juror R. it had sustained an objection to his question—without specifying


For example, when a juror requested that Inspector Sabin repeat the list of

names of the 11 persons he had found at the Menalto house on the night of
Sadler’s murder both counsel responded, “That’s fine.” The prosecutor then asked
defense counsel, “You would put that in?” Defense counsel responded, “Sure.”

After conferring with counsel, the trial court read juror questions to several

prosecution expert witnesses. It asked San Mateo County criminalist Bruce
Moran, who testified about the casings recovered from the scene of the Morris
murder, “Generally, how many casings would a 9-millimeter Luger hold?” The
court asked forensics expert Kelly Gallagher if a raincoat recovered close to
Sadler’s body had been “checked for fingerprints or blood spatters.” The court
asked firearms expert Nicholas Stumbaugh several questions about whether
aluminum or brass casings would be more likely to display firing marks. The
court asked criminalist William Lewellen about his comparison of tire tracks with
two vehicles that were at the scene of Sadler’s murder. The court asked Dr. Peter
Benson, an expert witness in pathology and autopsy, who testified about the
autopsies of Sadler and Bettancourt, to explain the origins of certain marks visible
in autopsy photos of Bettancourt’s body, and whether he had used autopsy
photographs or notes and diagrams made during the autopsy to establish bullet
trajectories. Each of these witnesses answered the juror questions posed to them.


what the question was in the presence of the jury—because it was irrelevant at

“this phase of the proceedings.” In sum, these questions do not indicate that the

jurors took an adversarial role in the proceedings; instead, the jurors were seeking

to understand the testimony of numerous witnesses, some of it on technical

subjects, in a complicated trial involving three murders committed on separate


E. Prosecutorial Vouching

Defendant contends the prosecution elicited testimony from law

enforcement officers, especially from Inspector Bruce Sabin, who worked for the

San Mateo District Attorney’s Office but was assigned as the investigating officer

to this case, vouching for or to bolstering the credibility of prosecution witnesses,

thus depriving defendant of his right to a fair trial under both the state and federal


It is improper for a prosecutor to offer assurances that a witness is credible

or to suggest that evidence available to the government, but not before the jury,

corroborates the testimony of a witness. (People v. Frye, supra, 18 Cal.4th at

p. 971; United States v. Necoechea (9th Cir. 1993) 986 F.2d 1273, 1276.) In either

case, prosecutorial comments may be understood by jurors to permit them to avoid

independently assessing witness credibility and to rely on the government’s view

of the evidence. (United States v. Young (1985) 470 U.S. 1, 18-19.)

Defendant cites three instances of testimony by Inspector Sabin about his

interviews with Shawnte Early, Keith Johnson, and Steven Sims, in which Sabin

stated that he believed that certain portions of statements made by those witnesses

were incomplete or untruthful.

Shawnte Early, who in a June 11, 1992 interview implicated defendant not

only in the beating of Sadler but also in the shooting of Bettancourt, was at trial


an extremely reluctant witness who claimed her pretrial statement was false. After

she had been extensively impeached at trial with her pretrial statement, the

prosecutor called Inspector Sabin and questioned him about the circumstances of

the June 11 interview. Inspector Sabin had already been cross-examined by the

defense about whether he believed Early had been truthful in all the statements she

made on June 11, and Sabin had testified that he did not think Early initially

revealed all that she knew. On redirect examination, the prosecutor revisited the

subject, asking if Early’s demeanor led Inspector Sabin to believe she was telling

the truth. After the trial court overruled a defense objection made without a

specified ground, Inspector Sabin testified that by the end of the interview he

believed Early was being truthful, because she was cooperative and giving detailed

information. Defendant does not argue that the trial court’s evidentiary ruling was

incorrect, and he has forfeited any statutory error by failing to state the specific

ground for his objection. (Evid. Code, § 353, subd. (a); People v. Partida (2005)

37 Cal.4th 428, 435.)

Nor did defendant complain at trial, as he now does, that the prosecution

offered Inspector Sabin’s testimony for an improper purpose that undermined his

due process right to a fair and reliable trial.7 Even if defendant has preserved a

due process claim, we reject it on the merits. The trial court did not err in

admitting Inspector Sabin’s explanation of why he believed Early was truthful in

her June 11 statement, which was a proper area of inquiry by the prosecution once

the defense had explored Sabin’s opinion of Early’s veracity. (Evid. Code, § 800.)

We are not persuaded that admission of Inspector Sabin’s opinion of Early’s


Defendant here did not cite Evidence Code section 352 as the basis for his

objection; indeed, he cited no specific ground. (See People v. Partida, supra, 37
Cal.4th 428, 435.)


truthfulness denied defendant a fair trial. Because the defense conceded at the

outset of trial that defendant killed Bettancourt, the effect of any impropriety in

Inspector Sabin’s testimony was necessarily harmless as to defendant’s conviction

for the murder of Bettancourt. And Early’s identification of defendant as Sadler’s

murderer was substantiated by the trial testimony of prosecution witnesses Ernest

Woodard, Velisha Sorooshian, and Shannon Senegal.

Defendant also complains about testimony elicited by the prosecutor from

Inspector Sabin about the credibility of witness Keith Johnson, who told the police

on June 19, 1992, that defendant was Bettancourt’s killer. On May 19, 1994, a

few days before Inspector Sabin’s testimony in question, the defense in cross-

examination fully explored issues related to Johnson’s credibility. On redirect

examination by the prosecution, Johnson conceded that only as the June 19, 1992

interview proceeded did he offer a full account of Bettancourt’s shooting.

On May 24, 1994, the prosecutor recalled Inspector Sabin, who testified

that at the outset of his June 1992 interview with Johnson the latter disclaimed

being at the crime scene but later gave a fuller account of the Bettancourt

shooting. When the prosecutor asked, “Did he tell you what he saw?,” Sabin

responded, “Yes.” Defendant construes Inspector Sabin’s answer to mean that

Johnson truthfully related what he had seen. Although defendant now complains

that the prosecutor’s question invited Sabin to vouch for Johnson’s veracity, he did

not object at trial, and accordingly he has forfeited the claim. (Evid. Code, § 353,

subd. (a).) Assuming the trial court would have sustained an objection, we reject

defendant’s due process claim. Even if Inspector Sabin had vouched for

Johnson’s testimony, a conclusion we do not reach, any error was unquestionably

harmless because defendant had admitted killing Bettancourt.

For the first time, defendant raises in his reply brief a similar claim as to

Tomika Asburry, who was also a witness to the Bettancourt murder, and whose


pretrial statement implicated defendant. At trial, she testified that she saw

defendant approach Bettancourt’s car. Eventually, she acknowledged hearing

defendant yell, “You took my dope,” and seeing Bettancourt shot. Asburry then

qualified most of her testimony and said that she had lied on June 16, 1992, in her

detailed statement to Inspector Sabin about defendant’s shooting of Bettancourt.

Defendant complains that the prosecutor asked questions of Inspector Sabin

designed to elicit answers from Sabin that vouched for Asburry’s June 16, 1992,

tape-recorded statement, which was played for the jury, when Sabin testified that

on that day Asburry was “a little apprehensive” though “not scared” when she

arrived for her interview. Defendant also points to Inspector Sabin’s testimony

that Asburry was a “cooperative” witness as additional evidence that Sabin

characterized her as “a willing witness who told the truth, and not what [Sabin]

told her to say.”

Defendant did not object to the prosecutor’s questions, and therefore has

forfeited any claim of evidentiary error (Evid. Code, § 353, subd. (a)), and he cites

no authority that it was improper for Inspector Sabin to testify to Asburry’s

demeanor. Lastly, it was the defense, not the prosecutor, who asked Sabin if he

“viewed” Asburry as cooperative.

Finally, defendant complains of the testimony the prosecutor elicited from

Inspector Sabin about witness Steven Sims, who while in custody in April 1992

contacted Sabin, offering information about what proved to be the Bettancourt

murder. Defendant argues that the prosecutor’s questioning at trial validated

Sims’s story as being corroborated. Defendant points to the prosecutor’s question

to Inspector Sabin about whether other witnesses present at the Bettancourt

shooting “corroborated the fact that [Sims] was, in fact, at the [murder] scene.”

The trial court sustained defendant’s objection, stating: “That’s for the jury to

decide. The jury will disregard the question and the answer.” The trial court


properly disallowed the question, which called for hearsay, and reminded the jury

of its duty to determine witness credibility. Because defendant did not object to

the prosecutor’s question on the basis of due process, and his objection was

sustained (People v. Partida, supra, 37 Cal.4th at p. 435), we conclude defendant

was not denied due process by the prosecutor’s having posed the question.

F. Instruction on Involuntary Manslaughter

The trial court instructed the jury on involuntary manslaughter as a lesser

included offense of the killings of Bettancourt and Morris; the court did not,

however, give that instruction as to the killing of Sadler. Defendant did not

request the latter instruction with respect to Sadler’s killing, but he now argues

that the court was obliged to so instruct on its own initiative.

We independently review a trial court’s failure to instruct on a lesser

included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) The court must,

on its own initiative, instruct the jury on lesser included offenses when there is

substantial evidence raising a question as to whether all the elements of a charged

offense are present (ibid.; People v. Cunningham (2001) 25 Cal.4th 926, 1008),

and when there is substantial evidence that defendant committed the lesser

included offense, which, if accepted by the trier of fact, would exculpate the

defendant from guilt of the greater offense. (People v. Cole, supra, 33 Cal.4th at

p. 1218.)

The elements of murder are an unlawful killing committed with malice

aforethought. (§ 187.) The lesser included offense of manslaughter does not

include the element of malice, which distinguishes it from the greater offense of

murder. (People v. Rios (2000) 23 Cal.4th 450, 460.) One commits involuntary

manslaughter either by committing “an unlawful act, not amounting to a felony”

or by committing “a lawful act which might produce death, in an unlawful


manner, or without due caution and circumspection.” (§ 192, subd. (b).) If the

evidence presents a material issue of whether a killing was committed without

malice, and if there is substantial evidence defendant committed involuntary

manslaughter, failing to instruct on involuntary manslaughter would violate the

defendant’s constitutional right to have the jury determine every material issue.

(People v. Lewis (2001) 25 Cal.4th 610, 645.) Malice is implied, however, when a

killing results from an intentional act, the natural consequences of which are

dangerous to human life, and the act is deliberately performed with knowledge of

the danger to, and with conscious disregard for, human life. (People v. Dellinger

(1989) 49 Cal.3d 1212, 1221-1222.)

Here, because the evidence conclusively showed that defendant brutally

beat Sadler with a board, the jury could not have found that defendant committed a

mere misdemeanor battery by administering that beating. Nor was there any

evidence that defendant lawfully attacked Sadler and continued to beat his head

with a board, unaware that Sadler could die from the beating. Defendant did not

simply start a fist fight in which an unlucky blow resulted in the victim’s death.

He savagely beat Sadler to death. Because the evidence presented at trial did not

raise a material issue as to whether defendant acted without malice, the trial court

was not obliged, on its own initiative, to instruct the jury on involuntary

manslaughter as to victim Sadler.

Moreover, by convicting defendant of first degree murder instead of the

lesser included offenses of second degree murder and voluntary manslaughter, the

jury necessarily found that defendant acted with express malice, necessarily

rejecting the view that the killing was manslaughter. Because the jury resolved the

factual finding requisite to involuntary manslaughter against defendant he cannot

have been prejudiced by the lack of an instruction on involuntary manslaughter

instruction. (People v. Lewis, supra, 25 Cal.4th at p. 646.)


G. Trial Court’s Questioning of Witnesses

Defendant contends the trial court abandoned its role as a neutral arbiter by

asking clarifying questions of witnesses. He cites several instances in which the

court asked its own questions of a witness. Defendant argues that this questioning

cast the court into the role of an advocate for the prosecution, thereby infringing

his constitutional rights to due process, an impartial jury, and reliable guilt and

penalty determinations.

A trial court has both the discretion and the duty to ask questions of

witnesses, provided this is done in an effort to elicit material facts or to clarify

confusing or unclear testimony. (People v. Hawkins (1995) 10 Cal.4th 920, 948;

Evid. Code, § 775.) The court may not, however, assume the role of either the

prosecution or of the defense. (People v. Carlucci (1979) 23 Cal.3d 249, 258.)

The court’s questioning must be “ ‘temperate, nonargumentative, and scrupulously

fair’ ” (People v. Hawkins, supra, 10 Cal.4th at p. 948), and it must not convey to

the jury the court’s opinion of the witness’s credibility. (People v. Rigney (1961)

55 Cal.2d 236, 241.)

Defendant complains of a question the trial court asked Steven Sims after

Sims testified that he saw the Bettancourt killing and was one of the drug sellers

who had rushed up to Bettancourt’s car hoping to make a sale. Sims testified that

in the jostling crowd of potential sellers surrounding the car he accidentally

dropped the rock of cocaine he was offering into Bettancourt’s car. Sims testified

that he told defendant, who was arguing with Bettancourt, to “quit tripping,”

meaning cool down, and to “let me get my rock.” After both sides had completed

their questioning of Sims, the trial court asked Sims if defendant said to

Bettancourt, “Give me my money or my rock,” or instead, “Give him [meaning

Sims] his money or his rock.” Sims replied that defendant said, “Give me my

money or my rock.” Defendant complains that Sims’s answer to the court’s


question was evidence that defendant’s admitted shooting of Bettancourt was a

deliberate and premeditated act, and not merely second degree murder as the

defense maintained.

Defendant further complains about a question the trial court asked

criminalist Bruce Moran, inquiring about the size difference between a .45-caliber

revolver and a 9-millimeter pistol. Moran explained that caliber could be

described either in inches or in millimeters, but in either instance the measurement

described the diameter of the gun barrel’s bore.

Lastly, defendant complains of a question the trial court asked at the

penalty phase of defendant’s capital trial. After defendant’s mother testified to

problems defendant had as a teenager living in Germany, the court asked her

whether school authorities there had contacted her after defendant fought with the

high school coach. Because she responded that they had not, defendant contends

the jury was given the impression that his mother had not been truthful in

describing defendant’s bad behavior.

Because defendant failed to object below to any of the trial court’s

questions, he has not preserved the issue for our review. (People v. Harris (2005)

37 Cal.4th 310, 350.) Moreover, even if properly before us, the claim fails. The

trial court’s questions to the three witnesses were very few and neutrally phrased.

The trial court, therefore, did not step outside its proper role of attempting to

clarify witness testimony and trying to help the jury understand the evidence.

Moreover, at the conclusion of both the guilt and penalty phases, the trial court

instructed the jurors that they should not conclude from “any questions I may have

asked” what “you should find to be the facts, or that I believe or disbelieve any

witness,” and reminded them to “form your own conclusion.” (CALJIC No.

17.30.) That instruction reminded the jury of the trial judge’s role as an impartial

presiding officer whose occasional questions to witnesses were designed to clarify


the evidence without favoring either side. (People v. Monterroso (2004) 34

Cal.4th 743, 782.)

Although answers by two witnesses (Sims and defendant’s mother) to the

trial court’s questions may not have been favorable to the defense, the questions

themselves did not create the impression that the court was allied with the

prosecution. Defendant had conceded that he shot Bettancourt, and whether he did

so because he believed Bettancourt was attempting to steal from him or from Sims

did not make defendant less culpable of the murder. Asking defendant’s mother

whether the school authorities in Frankfurt, Germany contacted her after

defendant’s fight with the high school coach, was a question that could elucidate

how seriously the authorities viewed the incident. She had already testified that

when defendant arrived in Germany his attitude and demeanor had changed for the

worse, and while there he got “into some trouble,” resulting in his movements on

the military base being limited to attending school and medical appointments.

Thus, her answer did not suggest that she was unaware of defendant’s

misbehavior, or even that she sought to minimize it. The court’s question did not

undermine the mitigating evidence offered by defendant’s mother. Accordingly,

even were we to assume the court’s questions were improper, any error was

harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at

p. 24.)

H. Jury Instructions

Defendant argues that the trial court on its own initiative should have

instructed the jury under CALJIC Nos. 2.91 and 2.92, which describe the

prosecution’s burden of proving identity based solely on eyewitness identification

and set forth factors to consider in proving identity by eyewitness testimony. A

trial court has no duty to give either instruction on its own initiative. (People v.


Alcala (1992) 4 Cal.4th 742, 802-803; accord, People v. Ward (2005) 36 Cal.4th

186, 213-214.) Defendant argues that the court was, nevertheless, required to give

the instructions at issue because many of the eyewitnesses present at the scenes of

the murders gave vague descriptions but identified defendant as the perpetrator,

despite not knowing him. Not so. Witnesses to the killings of Sadler and Morris

were by no means all strangers to defendant. He was initially identified as

Sadler’s attacker by Shawnte Early, a young woman with whom defendant was

going out, and he was identified at trial as the man fighting with Sadler by Ernest

Woodard, who knew defendant by sight and by name before the killing.

Defendant was identified as the shooter of Morris both by his cousin Shannon

Senegal and by his close friend Lavert Branner. And defendant admitted that he

shot Bettancourt, thus resolving the question of the shooter’s identity. Here there

was no conceivable reason the trial court was required on its own initiative to give

CALJIC Nos. 2.91 and 2.92, instructing the jury to give defendant the benefit of

reasonable doubt based on an eyewitness identification and to consider the various

circumstances bearing on the accuracy of eyewitness identifications.

To impeach prosecution witness Valerie Gardley with a recorded pretrial

statement to the police that was at odds with her trial testimony, the prosecution

sought to play a tape recording of that statement to the jury. Before playing the

tape recording, however, the prosecution provided copies of its own transcription

of the tape to the jury. A portion at the end of the transcript provided to the jury

inadvertently mentioned a polygraph examination administered to Gardley. When

that error was discovered, the transcripts were immediately retrieved and

appropriately edited before the tape, minus its final portion, was played for the

jury. Defendant complains that the court on its own initiative should have

instructed the jury not to consider the polygraph exam. Absent any evidence, and

there is none, that the jurors had already turned to the end of the transcript and


learned of the polygraph test, the court had no obligation to give such an


The trial court instructed the jury with what was then the standard

instruction on reasonable doubt (former CALJIC No. 2.90 (5th ed. 1988)), which

included a definition of reasonable doubt as that which “is not a mere possible

doubt; because everything relating to human affairs and depending upon moral

evidence is open to some possible or imaginary doubt.” (Italics added.) Although

the United States Supreme Court expressed reservations about the italicized

portion of that instruction, it upheld the instruction against constitutional challenge

(Victor v. Nebraska (1994) 511 U.S. 1, 6), and this court has repeatedly upheld the

propriety of the instruction as well. (People v. Heard (2003) 31 Cal.4th 946, 979;

People v. Lewis, supra, 25 Cal.4th at pp. 651-652.)

The trial court orally instructed the jury that if it found that “defendant,

while unconscious as a result of voluntary intoxication, killed another human

being without intent to kill and without malice aforethought, the crime is

involuntary manslaughter.” (CALJIC No. 8.47.) Defendant complains that the

trial court on its own initiative should have instructed the jury on the meaning of

“unconscious” because, in his view, one may lack sufficient mental awareness to

be unconscious as a legal matter, yet be capable of movement. Defendant having

proffered no instruction defining the term “unconscious,” we are unpersuaded that

the trial court had a duty to provide its own. (People v. Hughes, supra, 27 Cal.4th

at p. 343.) The trial court instructed the jury to consider defendant’s intoxication

in determining his mental state. The very language of CALJIC No. 8.47 (5th ed.

1988)—one who, “while unconscious as a result of voluntary intoxication, killed

another human being” and who becomes voluntarily intoxicated “to the point of

unconsciousness . . . assumes the risk that while unconscious [he] will commit acts

inherently dangerous to human life or safety”—precludes the possibility that the


jury would have believed legal unconsciousness required an incapacity to move

and to act. (People v. Boyer (2006) 38 Cal.4th 412, 472.) In light of the

instruction given, the trial court had no duty on its own initiative to further define

unconsciousness resulting from voluntary intoxication.

Defendant contends the trial court erred by not instructing on its own

initiative that each count was a separate charge. (CALJIC No. 17.02.) He did not

request that instruction, and a trial court has no duty to give it on its own motion.

(People v. Beagle (1972) 6 Cal.3d 441, 456.)

Defendant cites what he describes as “incomprehensible” language in the

reasonable doubt instruction given here (former CALJIC No. 2.90 (5th ed. 1988)),

which defined reasonable doubt as the absence of “an abiding conviction to a

moral certainty.” In defendant’s view, when that instruction is given, in

conjunction with instructions on the sufficiency of circumstantial evidence

(CALJIC No. 2.01) and the sufficiency of circumstantial evidence to prove

specific intent (CALJIC No. 2.02), the reasonable doubt standard of proof is

eroded to permit conviction on a lesser standard of proof. We have in the past

rejected such a claim (People v. Heard, supra, 31 Cal.4th at p. 980; People v.

Navarette (2003) 30 Cal.4th 458, 502), and defendant offers no compelling reason

for us to revisit the issue.

Defendant faults the trial court for not giving accomplice instructions as to

prosecution witness Steven Sims, who testified he was trying to sell rock cocaine

to murder victim Bettancourt just before the latter was killed. Defendant did not

request accomplice instructions. Nor did defendant establish, as he must, by a

preponderance of the evidence, that Sims was liable for Bettancourt’s murder

(People v. Frye, supra, 18 Cal.4th at p. 967), because he shared defendant’s

criminal intent. (People v. Tewksbury (1976) 15 Cal.3d 953, 960.) At best, the


evidence established that Sims was one of several drug sellers who approached

Bettancourt’s car intending to sell cocaine to its driver.

Even if the trial court should have given such instructions, the error was

harmless. The rationale for instructing a jury to view with caution an accomplice’s

testimony that incriminates the defendant is the accomplice’s self-interest in

shifting blame to the defendant. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)

Not giving such instructions, however, is harmless, even if erroneous, when there is

“ample evidence corroborating the witness’s testimony.” (People v. Arias (1996)

13 Cal.4th 92, 143.) Here, there was ample corroboration by prosecution witnesses

Nathan Gardner, Darnell Earby, Valerie Gardley, Keith Johnson, and Shawnte

Early that it was defendant who, believing Bettancourt had attempted to steal rock

cocaine from him, demanded return of his cocaine or payment, ordered Sims out of

the way, and then shot Bettancourt.

I. Torture Murder

In addition to advancing a theory of first degree murder of Sadler based on

a deliberate and premeditated intent to kill, the prosecution proceeded on an

alternative theory of torture murder, and the trial court so instructed the jury.

(CALJIC No. 8.24 (1992 rev.) (5th ed. 1988).) Defendant raises various claims of

error. He argues first that murder by torture (§ 189) and CALJIC No. 8.24

describe a crime that is unconstitutionally vague, thus permitting jurors “unlimited

discretion” to supply their own definition of the prohibited conduct. CALJIC No.

8.24 provides that one who commits murder by torture acts “with a willful,

deliberate, and premeditated intent to inflict extreme and prolonged pain upon a

living human being for the purpose of revenge, extortion, persuasion, or for any

sadistic purpose.” Here “persuasion” was deleted from the standard instruction.

Defendant complains that the phrases “extreme and prolonged pain” and “any


other sadistic purpose” are unconstitutionally vague. We have in the past rejected

claims of unconstitutional vagueness as to both phrases (People v. Raley (1992) 2

Cal.4th 870, 898-900), and defendant advances no persuasive reason to revisit the


The elements of torture murder are: (1) acts causing death that involve a

high degree of probability of the victim’s death; and (2) a willful, deliberate, and

premeditated intent to cause extreme pain or suffering for the purpose of revenge,

extortion, persuasion, or another sadistic purpose. (§ 189; People v. Mincey

(1992) 2 Cal.4th 408, 432; People v. Cole, supra, 33 Cal.4th at p. 1194.) The

defendant need not have an intent to kill the victim (People v. Mincey, supra, 2

Cal.4th at p. 432), and the victim need not be aware of the pain. (People v. Cole,

supra, 33 Cal.4th at p. 1207; People v. Pensinger (1991) 52 Cal.3d 1210, 1239.)

An intent to torture “ ‘may be inferred from the circumstances of the crime, the

nature of the killing, and the condition of the victim’s body.’ ” (People v. Cole,

supra, 33 Cal.4th at pp. 1213-1214.)

Defendant argues there was insufficient evidence that he harbored an intent

to inflict extreme and prolonged pain beyond the pain associated with dying

(People v. Bemore (2000) 22 Cal.4th 809, 839; People v. Davenport (1985) 41

Cal.3d 247, 271); instead, he argues, the beating of Sadler, however brutal, was

merely the result of a short explosion of violence, committed in the heat of

passion. (People v. Elliot (2005) 37 Cal.4th 453, 467.) We disagree.

A close look at the events surrounding Sadler’s death belies defendant’s

claim. About 8:00 or 9:00 p.m. on February 8, 1992, Leonard Holt encountered

Sadler, who had only $5 but wanted to buy cocaine. Holt suggested Sadler visit

2250 Menalto, a known drug house. Sometime after 2:00 o’clock the next

morning, Ernest Woodard and Shawnte Early, who were inside the Menalto house,

awakened and went outside, where defendant and Sadler were engaged in a


fistfight. Sadler eventually fell under the bed of a parked pickup truck, where

defendant kicked and hit him. Early tried to persuade defendant to stop, but he

continued to hit Sadler’s face with a stick, although the latter had ceased to resist

and was no longer moving. She pulled defendant away from the attack, but he

resumed hitting Sadler. Eventually Early got defendant into her car, and they

drove around the corner and parked. Defendant then announced, “I should have

killed that mother.” He got out of the car and ran back to Menalto. By the time

Early drove back to Menalto, defendant was once more hitting Sadler with a stick.

Early heard him say, “Man I should kill this motherfucker[;] man I’m set to kill

this motherfucker.” Early went into the house briefly, and when she came outside

again she saw defendant leave the scene in a car driven by another man.

Holt and Velisha Sorooshian arrived at 2250 Menalto sometime after the

fight. They were sitting in her car smoking crack when defendant and another

man drove up. From the passenger seat defendant laughingly asked Sorooshian if

she would go see whether the man down the street was all right.

Defendant’s conduct and his statements to Early are consistent with his

undertaking the attack on Sadler without an intent to kill, but with the intent to

inflict extreme pain by kicking and beating Sadler’s face even after the latter lay

unresisting in the street. An intent to cause extreme pain is consistent with

Sadler’s injuries. X-rays revealed that Sadler suffered no broken bones, except for

fractures of virtually all of his facial bones, injuries which caused so much

bleeding that he was asphyxiated by his own blood.

Because we conclude that substantial evidence supports the jury’s finding

that Sadler’s killing was a torture murder, we necessarily reject defendant’s claim

that the prosecutor’s closing arguments, made to the jury at both the guilt and

penalty phases, characterizing Sadler’s murder as torture murder, violated


defendant’s rights to due process and a fair trial or subjected him to cruel and

unusual punishment.

Defendant additionally argues that the prosecutor failed to prove that

defendant premeditated Sadler’s killing and that it was deliberate. Not so.

Premeditation and deliberation do not require an extended period of time, merely

an opportunity for reflection. (People v. Manriquez (2005) 37 Cal.4th 547, 577;

People v. Lenart (2004) 32 Cal.4th 1107, 1127.) Defendant’s ride around the

corner after his initial attack on Sadler gave him such an opportunity. Defendant’s

statement, “I should have killed the mother,” made before he got out of Early’s

car, is consistent with his forming an intent to kill Sadler during the hiatus in the

beating. When he then resumed beating Sadler and announced, “Man, I’m set to

kill this mother fucker,” defendant unmistakably expressed an intent to cause

Sadler’s death. Thus, substantial evidence supports the prosecution’s theory that

Sadler was the victim of a deliberate and premeditated killing by defendant.

In light of the ample evidence supporting defendant’s conviction of

Sadler’s first degree murder, under a theory either of torture murder or of

deliberate and premeditated murder, we reject defendant’s contention that

insufficient evidence supports his conviction of that crime or that he was denied

his constitutional rights to a fair and impartial trial.

J. Sadler Verdict Form

Defendant complains that the verdict form for the charge of first degree

murder of Sadler did not require the jurors to unanimously agree on which of the

two theories advanced—deliberate and premeditated murder or torture murder—

they relied. We have in the past rejected the claim that the jurors must

unanimously agree on the theory (People v. Jenkins (2000) 22 Cal.4th 900, 1025;


People v. McPeters (1992) 2 Cal.4th 1148, 1185) as has the United States

Supreme Court (Schad v. Arizona (1991) 501 U.S. 624, 631-632).

K. Instruction on Involuntary Manslaughter

The trial court gave the jury standard instructions with respect to the

shootings of Bettancourt and Morris on involuntary manslaughter and on killings

committed when voluntarily intoxicated. (Former CALJIC Nos. 8.45 & 8.47 (5th

ed. 1988).) It orally instructed the jury using CALJIC No. 8.47: “If you find that

a defendant, while unconscious as a result of voluntary intoxication, killed another

human being without intent to kill and without malice aforethought, the crime is

involuntary manslaughter. [¶] When a person voluntarily induces his own

intoxication to the point of unconsciousness, he assumes the risk that while

unconscious he will commit acts inherently dangerous to human life or safety.

Under such circumstances, the law implies criminal negligence.” (Italics added.)

After that instruction was read to the jury, defense counsel asked for deletion of

the language italicized above from the written instructions. The court so modified

the written instructions given to the jury. Defendant contends that the instruction

required defendant be literally incapable of movement as a result of intoxication in

order to negate his intent to kill. Not so. Both the oral and the written instruction

described a killing committed “while unconscious” and instructed that one who is

voluntarily intoxicated assumes the risk that “while unconscious he will commit

acts inherently dangerous to human life or safety.” In sum, the jury was instructed

that one may be in a state of unconsciousness resulting from voluntary intoxication

but retain the capacity to perform physical acts. Thus, under both the instruction

as orally given to the jurors and that given to them in writing, the jury was

adequately informed that unconsciousness caused by voluntary intoxication did

not require defendant to be incapable of movement. (People v. Boyer, supra, 38


Cal.4th at p. 472 [unedited version of CALJIC No. 8.47]; People v. Hughes, supra,

27 Cal.4th at pp. 343-344 [unedited version of CALJIC No. 8.47].)

Defendant also argues that the written version of CALJIC No. 8.47 given to

the jury was vague and confusing, because it retained “while unconscious” in the

second sentence. We disagree. Here the jury had heard defendant’s statement that

he had no memory of shooting Morris; evidence that defendant had consumed

large quantities of alcohol both before Morris was shot and on the day he shot

Bettancourt; and argument by the prosecutor that, in light of defendant’s conduct

immediately before and after each shooting, defendant’s drunkenness had not

negated his intent to kill or his awareness of the risk to human life. Moreover,

after reading the elements of involuntary manslaughter, the court specifically

alerted the jury that “this ties in with voluntary intoxication,” mentioning

defendant’s “alcohol unconsciousness defense” and noting the relevance of that

defense to whether the actor formed an intent to kill. In light of the instructions as

a whole, the evidence, and the prosecutor’s argument, we cannot say that the jury

was misled.

L. Prosecutor’s Leading Questions

Defendant accuses the prosecutor of asking many leading questions and

introducing into evidence tape recordings of witness interviews conducted by the

police that likewise contained leading questions. In defendant’s view, the

cumulative impact of those questions denied him a fair trial.

Defendant does not specify which questions were problematic, but instead

cites to 18 pages in the trial transcript. The instances of prosecutorial leading

questions cited by defendant fall into two categories: (1) questions directed to law

enforcement witnesses who were generally being asked to summarize their earlier

testimony or to identify certain locations on a diagram, and (2) questions directed


to eyewitnesses who were either reluctant to testify or whose earlier testimony

seemed unclear. In only two instances did the defense object at all, and only once

did it object to a question as leading; the trial court overruled defendant’s single

leading question objection. Except as to the two questions to which defendant

objected, he has forfeited any claim of evidentiary error. We are not persuaded

that these relatively few leading questions, asked during a two and a half month

trial involving three murders and many witnesses, either individually or

collectively denied defendant a fair trial, even assuming defendant had preserved

the issue for review by having made timely objection to the form of all of the

questions of which he now complains. (People v. Dennis (1998) 17 Cal.4th 468,


Defendant further complains about leading questions that were posed, not

by the prosecutor, but by law enforcement officers to witnesses in the course of

pretrial police questioning that was recorded and played at trial. Defendant cites

no authority prohibiting the police from asking leading questions of witnesses to a


M. Prosecutorial Misconduct

Defendant claims for the first time on appeal that the prosecutor in his

opening statement committed misconduct by seeking to inflame the passions of

the jury through graphic descriptions of rampant drug dealing, drug use, and

witness intimidation in East Palo Alto at the time these murders were committed

there, and in doing so relied on facts that never came into evidence.

A prosecutor who uses deceptive or reprehensible methods to persuade the

jury commits misconduct, and such actions require reversal under the federal

Constitution when they infect the trial with such “ ‘unfairness as to make the

resulting conviction a denial of due process.’ ” (Darden v. Wainwright (1986) 477


U.S. 168, 181; People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a

prosecutor who uses deceptive or reprehensible methods commits misconduct

even when those actions do not result in a fundamentally unfair trial. (People v.

Frye, supra, 18 Cal.4th at p. 969.) To preserve a misconduct claim a defendant

must make a timely objection and request an admonition; only if an admonition

would not have cured the harm is the misconduct claim preserved for review.

(People v. Earp (1999) 20 Cal.4th 826, 858.)

Here defendant made no such misconduct objection at trial. Accordingly,

he has forfeited the claim. (People v. Crew (2003) 31 Cal.4th 822, 839; People v.

Cunningham, supra, 25 Cal.4th at p. 1001.) Even assuming defendant has

preserved the claim, it lacks merit. The evidence at trial amply confirmed that at

the time and place of the killings there was an open and active drug trade in which

many of the witnesses, at least two of the victims, and defendant himself

participated. Thus, the prosecutor’s opening argument did no more than outline

what the evidence would, and did, show.

Defendant further asserts that the prosecutor engaged in “rampant

speculation” when he said in his opening statement that defendant had demanded

that Sadler repay him the $20 that defendant believed Sadler owed from an earlier

transaction between them involving a videocassette recorder. Defense objections

to that evidence were later sustained, and the potential witness with knowledge of

the $20 debt, Leroy Lane, did not testify. As the jury was instructed that the

prosecutor’s opening statement was not evidence, and no evidence was offered

that an outstanding debt had provided defendant with a motive to kill Sadler,

defendant suffered no prejudice from the prosecutor’s statement at issue.

Defendant argues that throughout the guilt phase the prosecutor

impermissibly sought to shift the burden of proof. He points first to a short series

of questions the prosecutor asked of criminalist Nicholas Stumbaugh, who had


compared the autopsy bullets removed from murder victims Bettancourt and

Morris. Stumbaugh concluded the bullets were fired from the same weapon. The

prosecutor then asked Stumbaugh if the defense could have subjected the autopsy

bullets to its own testing by an independent laboratory. A defense objection to the

question as argumentative was overruled. Only on appeal does defendant contend

that the question improperly shifted the burden of proof to the defense. Because

defendant failed to object to the question on that ground at trial, he has forfeited

that claim. (People v. Davenport, supra, 11 Cal.4th at p. 1214.) Moreover, the

prosecutor did not ask whether the defense had a duty to do independent testing,

merely whether the defense had an opportunity to do so. (People v. Bradford

(1997) 15 Cal.4th 1229, 1340.) Pointing out that contested physical evidence

could be retested did not shift the burden of proof.

Defendant also complains about comments the prosecutor made during

closing argument at the guilt phase. Defendant asserts dual claims as to many of

them, arguing first that they constituted prosecutorial misconduct, and second that

they impermissibly shifted the burden of proof.

Defendant contends that in closing argument at the guilt phase the

prosecutor shifted the burden of proof by asserting the defense had offered only

“innuendo and conjecture,” rather than evidence, in support of its theory that

someone other that defendant had killed Morris.

In response to the defense theory that two different guns were used in the

Bettancourt and Morris killings, the prosecution said: “So where is the second

gun? The defense can call criminalists . . . . They can; they don’t. [¶] It’s a lot

easier to sit up here and try to sort of slant the truth for you all hoping to somehow

hoodwink one of you perhaps, hang this case.” After the defense objected,

asserting that the prosecutor was “burden shifting,” the trial court reminded the

jury that the prosecution had the burden of proof. The prosecutor acknowledged


that he had the burden of proof, but he again argued to the jury that defendant had

the right to produce a criminalist who could have testified whether the bullets were

consistent with two different guns having been used to kill Bettancourt and

Morris. He then said: “Instead, it is a lot easier [for the defense] to get up here

and just create smoke. That’s what you just got, an hour and 20 minutes worth.”

Defendant’s renewed objection was overruled.

A prosecutor may make fair comment on the state of the evidence. (People

v. Hughes, supra, 27 Cal.4th at p. 372; People v. Hovey (1988) 44 Cal.3d 543,

572.) Here the trial court properly admonished the jury that “the burden of proof

is always on the People to prove the allegations of the information,” and that “the

defense does not have to prove anything.” The argument constituted fair comment

on the absence of evidence of a second gun. Moreover, by characterizing defense

counsel’s argument as “smoke,” the prosecutor used a metaphor that, while clearly

dismissive of the defense’s theory, did not improperly impugn the integrity of

defense counsel. (See People v. Frye, supra, 18 Cal.4th at p. 978.)

Because there was neither burden-shifting nor misconduct by the

prosecutor, defendant has not established prejudice justifying reversal under the

state law test requiring a reasonable likelihood of a more favorable verdict in the

absence of the challenged conduct. (People v. Lenart, supra, 32 Cal.4th at

p. 1130; People v. Ochoa, supra, 19 Cal.4th at p. 464.) Even if we were to

conclude that these instances constituted error, which we do not, applying the test

pertaining to error of federal constitutional dimension, we conclude that the

prosecutor’s comments and questioning were harmless beyond a reasonable doubt.

(Chapman v. California, supra, 386 U.S. at p. 24.)


N. Cumulative Error

Defendant maintains that the cumulative effect of the various errors he

claimed occurred at the guilt phase requires reversal. Having rejected on the

merits each of defendant’s claims of error, we reject his claim that he was

prejudiced by their cumulative impact.


A. Photographs of Victims and Their Children

Defendant contends that he was prejudiced by the admission during the

prosecutor’s penalty phase case of photographs of murder victims Sadler and

Morris, a photograph of one of murder victim Bettancourt’s two teenage

daughters, and a photograph of murder victim Morris’s two-year-old daughter.

Defendant argues that these photographs were improper victim impact evidence

lacking relevance and designed to inflame the jurors’ passions.

Evidence of the impact a victim’s death has on their family members is

evidence of “the specific harm caused by the crime” (Payne v. Tennessee (1991)
501 U.S. 808, 825), and accordingly is properly admitted as a circumstance of the

crime under section 190.3, factor (a). (People v. Boyette (2002) 29 Cal.4th 381,


Photographs of Sadler and Bettancourt taken before their deaths were

introduced at the guilt phase and used by the prosecutor to elicit identifications

from witnesses. Defendant did not object then, nor did he do so when the same

photographs were used again at the penalty phase; therefore, defendant has not

preserved any claim of error as to those photographs.

At trial, defendant objected to the admission of seven photographs of one of

murder victim Bettancourt’s daughters, and the court limited the prosecutor to

showing a single picture of each of the victim’s children. In light of that ruling,

defendant maintains it would have been futile for him to object to the photograph


of victim Morris’s young child. Without deciding whether a second objection was

necessary here, we reject defendant’s claim on the merits.

Murder victim Bettancourt’s mother testified that her son’s two teenage

daughters were “very close” to him; thereafter, a snapshot of one of them from his

wallet was admitted into evidence. A photograph taken of Morris’s two-year-old

daughter was identified by his mother, who testified that her son’s death meant

that the little girl would “never, ever know the love he had for her.”

Neither of Bettancourt’s teenage daughters testified, although both were old

enough to have done so. Testimony from the victims’ children as to how their

father’s death affected them would have been proper victim impact evidence.

(People v. Boyette, supra, 29 Cal.4th at pp. 444-445.) Instead two photographs,

one of a Bettancourt daughter and one of Morris’s toddler, were introduced to

show the jury two children whose lives were affected when defendant murdered

their fathers. The photographs were proper victim impact evidence. (People v.

Stitely (2005) 35 Cal.4th 514, 564-565.) Such minimal photographic evidence,

coupled with the brief testimony by each grandmother, falls far short of a quantity

of evidence that might deny defendant’s right to due process. (See People v.

Robinson (2005) 37 Cal.4th 592, 644-652.)

B. Aggravating and Mitigating Circumstances

Defendant contends the trial court erred in not deleting one of the

aggravating factors and several mitigating factors described in section 190.3

because they were inapplicable to the evidence. Specifically, he argues that

factors (c) [prior felony conviction], (e) [victim participant in or consented to

homicidal act], (g) [act under extreme duress or substantial domination of

another], and (j) [accomplice or participation relatively minor] should have been

deleted from jury instruction CALJIC No. 8.85. A trial court has no obligation to


omit inapplicable factors from a jury instruction. (People v. Kipp (2001) 26

Cal.4th 1100, 1138.)

Citing various passages in the prosecutor’s argument describing the juror’s

task of weighing aggravating and mitigating factors, defendant claims that the

prosecutor improperly told the jury to consider each factor, including those

without relevance here. Defendant failed to preserve the claim, because he did not

object to the argument or request an admonition to the jury. (People v. Hinton,

supra, 37 Cal.4th at p. 907.) The claim is also without merit. In argument, the

prosecutor itemized factors (c), (e), (g), and (j), expressly telling the jury that they

were not applicable in this case. The prosecutor specifically told the jury that

defendant’s prior juvenile adjudication for possessing cocaine was not a felony

conviction (§ 190.3, factor (c)), asserting, “This is a non-factor,” and stating,

“There is nothing to consider in factor (c).” The jury received a standard

instruction, which permitted it “to assign whatever moral or sympathetic value you

deem appropriate to each and all the various factors you are permitted to

consider. (CALJIC No. 8.88, italics added.) We assume the jury followed that


Defendant also contends that by discounting the merit of defense evidence

offered in mitigation, the prosecutor invited the jury to use the absence of

mitigating evidence as an aggravating circumstance. Under section 190.3, factor

(e), the jury at penalty phase considers “whether or not the victim was a

participant in the defendant’s homicidal conduct or consented to the homicidal

act.” The prosecutor argued that there was no evidence to support factor (e) as a

mitigating factor in this case, because none of the victims was a participant in his

own murder, and all of them were “unsuspecting vulnerable victims preyed on by

Walter Cook.” Again, defendant did not object and has forfeited his claim of

error. Moreover, the prosecution’s argument here was not that the absence of


factor (e)—the victim’s participation in or consent to the homicidal act that

resulted in their death—made the murders more aggravated than other murders

(People v. Davenport, supra, 41 Cal.3d at pp. 288-289), but that mitigating factor

(e) was not presented by the evidence at trial.

Defendant argues that the prosecutor erred in telling the jury that although

it could not use defendant’s lack of remorse as an aggravating factor, it could use

his lack of remorse “to nullify some of the factors of mitigation that the defense

will be asking you to find in factor (k),” which permits consideration of “any other

circumstance which extenuates the gravity of the crime even though it is not a

legal excuse” for it. (§ 190.3, factor (k).) Defendant failed to preserve the issue

by not objecting to the comments or requesting admonition to the jury. (People v.

Hinton, supra, 37 Cal.4th at p. 907.)

Although “a prosecutor in a capital case may not argue that a defendant’s

postcrime lack of remorse is an aggravating factor, a prosecutor may . . . argue that

lack of remorse is relevant to the evaluation of mitigating factors.” (People v.

Jurado (2006) 38 Cal.4th 72, 141; People v. Mendoza, supra, 24 Cal.4th at

p. 187.) Here, the prosecutor correctly told the jury that it could not use

defendant’s lack of remorse as an aggravating factor. Arguing that defendant

exhibited no remorse after the three murders, the prosecutor urged the jury to

reject the defense claim that defendant’s violent childhood and fragile personality

were mitigating circumstances. Because remorse is relevant to the jury’s death

penalty determination, it is not misconduct for a prosecutor to refer to a

defendant’s lack of remorse. (People v. Hinton, supra, 37 Cal.4th at p. 907.)

C. Instruction on Other Criminal Acts

The trial court instructed the jury in the language of CALJIC No. 8.87 that

it could consider as evidence in aggravation (§ 190.3, factor (b)) four instances of


defendant’s unadjudicated crimes involving force or violence. (People v. Kraft

(2000) 23 Cal.4th 978, 1070.) Although the court specifically described each

instance (exhibiting a deadly weapon, a gun, to Geraldine Cook in a threatening

manner; battering the coach and Markus Hallgrimson at a basketball game in

Germany; and threatening and obstructing Officer Phillip Johnson at a crime scene

in East Palo Alto), defendant argues the court erred by not setting out the elements

of each of those crimes. Defendant, however, did not request an instruction on the

elements of the offenses, and a trial court has no duty on its own initiative to

instruct on the elements of unadjudicated offenses. (People v. Carter (2003) 30

Cal.4th 1166, 1227.) In the past, we have held that an instruction on the elements

of crimes adduced as evidence in aggravation is not required “by logic or by the

constitutional guarantees of due process, fundamental fairness, right to a fair trial,

equal protection, or reliability of penalty.” (People v. Lewis, supra, 25 Cal.4th at

p. 668.) Accordingly, the trial court did not err in not instructing the jury on the

elements of unadjudicated crimes offered as circumstances in aggravation.

D. Instruction on Limited Use of Defendant’s Statements

At the penalty phase, Dr. George Wilkinson, a psychiatrist, testified as a

defense expert and gave a mental health assessment of defendant, based partially

on reports and testing done by other physicians. On appeal, defendant contends

that the trial court had a duty to instruct the jury on its own initiative that a

defendant’s statements made in an examination to diagnose or treat the defendant

are admissible for “the limited purpose of showing the information upon which the

medical expert based” his or her opinion. (CALJIC No. 2.10) As a subsequently

written use note indicates, this instruction “generally is applicable when the expert

is court appointed and testifies at the guilt phase after the defendant has placed his

mental condition in issue.” (Use Note to CALJIC No. 2.10 (7th ed. 2003); see


People v. Nicolaus (1967) 65 Cal.2d 866, 879-880.) Here, Dr. Wilkinson testified

for the defense at the penalty phase. The trial court thus had no duty to give the


E. Prosecutorial Misconduct

Defendant makes several claims of prosecutorial misconduct. Earlier we

summarized the law governing claims of prosecutorial misconduct. (See pp. 47-

50, ante.)

1. Plea on behalf of the victim

The prosecutor opened his penalty phase argument by reading part of the

prologue to a book written about a murder victim unrelated to this case. The text

describes how, after a murder, “the dead person ceases to be a part of everyday

reality, ceases to exist,” as the survivors “inevitably turn away from the past,

toward the ongoing reality,” which includes the victim’s killer who is “trapped,

anxious, now helpless, isolated often badgered and bewildered.” Thus, the culprit

“usurps the compassion that is justly his victim’s due.”8 Defendant objected to the

passage on the ground that it was a plea for juror sympathy and unduly prejudicial,

but the trial court overruled the objection, concluding that had the prosecutor

written it himself he could have made the same argument in his own words.

Defendant argues that reading this passage was improper because it focused

on the victims’ families, although the book was not written about the families of

the victims in this case, thus making an improper appeal to the sympathies of the

jurors. We find nothing objectionable on either ground asserted. As we have

observed in the past, the text read to the jury is a reminder that the victims of


The passage is apparently taken from Gaylin, The Killing of Bonnie

Garland (1982). (See People v. Rowland (1992) 4 Cal.4th 238, 278, fn. 17.)


murder are absent from the courtroom, but the living defendant is present. (People

v. Rowland, supra, 4 Cal.4th at pp. 277-278, fn. 17.)

2. Impugning integrity of defense counsel

In closing argument to the jury, the prosecutor analogized defense counsel

to political “spin doctors”—that is, partisan political operatives who seek to cast

the performance of their candidate in the most positive light—thereby suggesting

the defense put “an unfair spin on the evidence.” Defendant did not object at trial,

and thus he has forfeited any claim of error.

The prosecutor was discussing defendant’s mother’s testimony when he

made the comment about which defendant now complains. Defendant’s mother

testified to an episode during defendant’s childhood when, after the couple’s

divorce, defendant’s father took defendant from a birthday party without her

permission. The prosecutor described it as “the kidnapping that the defense has

put that heavy spin on.” The defense objected to “the characterization,” describing

it as “derogatory and demeaning,” but the trial court overruled the objection

stating, “[I]t’s hyperbole.” The prosecutor proceeded to develop the theme that

defendant’s mother was overstating the domestic violence and dislocation that

defendant suffered as a child.

Defendant objected to the prosecutor’s “heavy spin” comment, although not

on the basis that he now advances on appeal, which is that it denigrated the

integrity of defense counsel. As mentioned earlier, a prosecutor commits

misconduct by impugning the integrity of defense counsel. (People v. Cash,

supra, 28 Cal.4th at p. 732; People v. Bemore, supra, 22 Cal.4th at p. 846.)

Nonetheless, we allow prosecutors wide latitude in penalty phase argument, so

long as the beliefs they express are based on the evidence presented. (People v.

Ochoa, supra, 19 Cal.4th at p. 463.) Here, there was evidence that, although


defendant’s mother was distressed when his father took defendant, then a young

boy, from a family birthday party without her permission, she resolved the matter

by retrieving the boy, and sending him to Texas to live with her mother. The

disparity between that evidence and its characterization at trial as a kidnapping

was a legitimate subject of prosecutorial comment.

In closing argument to the jury, the prosecutor commented on the fees paid

to the defense mental health expert witness, stating, “for 124 hours at $225 per

hour, Dr. Wilkinson comes up with something that excuses this man’s

responsibility.” That comment, defendant claims, implied that Dr. Wilkinson

“gave false testimony for a fee,” thereby impugning defense counsel’s integrity for

having, in effect, bought the expert’s testimony. Because of his failure to object at

trial, defendant has forfeited the claim. (People v. Earp, supra, 20 Cal.4th at

p. 858.) In any event, although counsel may not denigrate the integrity of

opposing counsel, an attorney is free to argue that the opinions of paid expert

witnesses may be biased. (People v. Arias, supra, 13 Cal.4th at p. 162.)

3. Biblical references

During questioning of defendant’s mother and his grandmother, the

prosecutor asked whether defendant knew the Ten Commandments, including

“Thou shalt not kill.” Defendant accuses the prosecutor of misconduct for

inserting biblical references into the trial. It is misconduct for a prosecutor to

argue that biblical authority supports imposing the death penalty, because it

suggests to the jurors that they may follow an authority other than the legal

instructions given by the court. (People v. Lenart, supra, 32 Cal.4th at p. 1129.)

To preserve such a claim the defendant must make a timely objection and seek a

curative admonition or any error is forfeited. (Ibid.; People v. Ervin (2000) 22


Cal.4th 48, 100.) Defendant did not object to the questions, and so he has

forfeited any claim of error.

4. Inviting jurors to ignore defendant’s youth

In closing argument at the penalty phase, the prosecutor told the jury that

defendant deserved the death penalty by committing the three murders. “One does

not receive the dubious honor of the death penalty in a vacuum,” rather “you earn

it” whether “it takes you 68 years or 18 years.” Defendant contends that this line

of argument invited the jury to ignore defendant’s youth (he was 18 at the time he

committed the three murders), which is a statutory circumstance in mitigation

(§ 190.3, factor (i)), and he accuses the prosecution of thereby violating his right

to due process. Because defendant failed to object at trial, he has not preserved

the issue. (People v. Earp, supra, 20 Cal.4th at p. 858.) Even if he had, the claim

would fail on the merits. The age of a defendant is a legitimate subject for

argument by both the prosecution and the defense. (People v. Box (2000) 23

Cal.4th 1153, 1215.)

5. Alleged comment on defendant’s rights

Defendant complains that in closing argument at the penalty phase the

prosecutor urged the jury to impose the death penalty because a verdict of life

without possibility of parole “would be leniency.” The prosecutor continued,

“[H]e gets rights,” including “two attorneys to defend him,” and “four doctors,”

and “a worldwide investigation.” The prosecutor concluded, “You decide if he is

guilty or he is not guilty,” adding “that’s a heck of a lot better system of justice

than the justice that he imposes on his victims.”

Defendant complains that the argument amounts to an impermissible

comment upon the exercise of his constitutional rights and in effect urged the jury

to impose death in retaliation for defendant’s exercise of those rights. Because at


trial defendant made no objection to this argument, he has forfeited the claim he

now raises. (People v. Earp, supra, 20 Cal.4th at p. 858.) Moreover, the

prosecutor never suggested to the jury that it should penalize defendant for having

exercised his rights. Accordingly, we see no reasonable likelihood that the jury

misconstrued or misapplied the prosecutor’s comments, and we find no error.

(People v. Roybal (1998) 19 Cal.4th 481, 514.)

F. Denial of Mistrial

After the jury deliberated for a day and a half, it reported that it was

deadlocked. Polling revealed that after five ballots there was a single holdout

juror. Defendant moved for a mistrial, but the trial court denied the motion,

instructing the jury to continue deliberating at least for the afternoon, telling the

jurors to “try your best,” and adding, “if you can’t [reach a verdict], you can’t.”

During those deliberations the jurors sent a note asking what a mistrial would

mean. The court responded that in the event it declared a mistrial, the guilt phase

verdicts would “stand.” The court continued: “However, the penalty phase

following a mistrial may be retried to a new jury, unless the district attorney and

court agree to life without possibility of parole, which is the lesser of the two

penalties.” At the end of the afternoon, the court learned that the jury wanted to

return the next day for deliberations. After the court confirmed with all the jurors

that this was their desire, it sent them home.

Defendant complains that by not immediately declaring a mistrial when the

jury announced it was deadlocked, the trial court conveyed the message that the

jury was to continue deliberating until the holdout juror’s vote changed.

Defendant claims that the court’s inaction resulted in denial of his constitutional

right to due process.


Section 1140 provides that a jury may be discharged without reaching a

verdict if “at the expiration of such time as the court may deem proper, it

satisfactorily appears that there is no reasonable probability that the jury can

agree.” Determining whether there is a reasonable probability of jury agreement is

left to the sound discretion of the trial court. (People v. Proctor (1992) 4 Cal.4th

499, 539.) Nothing in the record suggests judicial coercion of the holdout juror,

and the jury’s decision to continue deliberating the next day suggests that it had

overcome whatever impasse it had reached in deliberations. The court did not

abuse its discretion in declining to declare a mistrial.

G. Pitchess Motion

Officer Phillip Johnson testified at the penalty phase to an incident on

January 14, 1992, when, after defendant refused to leave a cordoned crime scene,

the officer arrested him for resisting a police officer’s order. Before Officer

Johnson testified, defendant brought a motion to discover the existence of citizen

complaints made against the officer for misconduct, including dishonesty, false

arrest, or fabrication of charges or of evidence. At a hearing in chambers, the trial

court examined the officer’s personnel records, found only one relevant incident

out of a total of four, and released to the defense the name, address, and telephone

number of the complainant. Defendant contends that he should have been given

more information, both about the three complaints that the court declined to

disclose and about the circumstances involving the fourth complainant.

Additionally, he complains that a fifth complaint was not disclosed. He maintains

the court’s failure to disclose more information from the officer’s personnel file

denied him due process.

Named after Pitchess v. Superior Court (1974) 11 Cal.3d 531, and now

codified in Evidence Code sections 1043-1045, a motion to discover information


from a police officer’s personnel file permits disclosure of confidential

information only under specified conditions. (See City of Los Angeles v. Superior

Court, supra, 29 Cal.4th at pp. 19-20.) Defendant here makes no showing that he

was entitled to additional information from Officer Johnson’s personnel file.

Regardless of whether the trial court abused its discretion, any Pitchess error

relating to Officer Johnson was harmless either under the test for state law error of

whether there is reasonable possibility that the error affected the penalty verdict

(People v. Ashmus (1991) 54 Cal.3d 932, 990) or under the beyond-a-reasonable-

doubt test (Chapman v. California, supra, 386 U.S. at p. 24) applicable to denial

of discovery that implicates the federal constitutional guarantee of due process

(Wardius v. Oregon (1973) 412 U.S. 470, 474-476). Officer Johnson testified to

one of four unadjudicated crimes offered by the prosecution. Here defendant

made a profane comment, implicitly threatening physical violence to Officer

Johnson. Even had the officer been impeached as an unbelievable witness, his

testimony was redundant to the three other violent incidents offered by the

prosecution as aggravating factors under section 190.3, factor (b).

H. Challenges to California’s Death Penalty Law

Defendant contends that many features of California’s capital sentencing

scheme, either singly or together, offend the federal Constitution’s Fifth, Sixth,

Eighth, and Fourteenth Amendments. We have in the past rejected identical

claims, and, despite his urging that we reconsider those holdings, he has presented

no compelling reason for us to do so here. Defendant’s claims and the cases

rejecting them are listed below.

1. Death eligibility

Our death penalty is neither vague nor arbitrary, because it accords wide

discretion to prosecutors to seek the death penalty. (People v. Harris, supra, 37


Cal.4th at p. 366; People v. Lenart, supra, 32 Cal.4th at p. 1136.) California’s

statutory special circumstances (§ 190.2) adequately narrow the class of death-

eligible offenders. (People v. Hinton, supra, 37 Cal.4th at p. 913; People v.

Michaels (2002) 28 Cal.4th 486, 541; People v. Kipp, supra, 26 Cal.4th at

p. 1136.) The law is not overbroad either because of the number and scope of

special circumstances defining capital murder, or because it permits a capital

charge based on felony murder. (People v. Marks (2003) 31 Cal.4th 197, 237;

People v. Anderson, supra, 25 Cal.4th at p. 601.) Our death penalty law is not

infirm because murders arising from crimes that are commonly committed are

likely to qualify as capital crimes under a special circumstance. (People v. Catlin

(2001) 26 Cal.4th 81, 158; People v. Wader (1993) 5 Cal.4th 610, 669.)

2. Penalty determination

Section 190.3’s aggravating and mitigating factors and the corresponding

CALJIC jury instruction (CALJIC No. 8.85 (5th ed. 1988)), which lists each of the

statutory aggravating and mitigating factors,9 are not impermissibly vague (People


Defendant’s briefing on this claim repeatedly cites CALJIC No. 8.84.1

(1986 rev.) The version of 8.84.1 to which defendant refers was not given at this
trial; instead a more recent version (CALJIC No. 8.84.1 (1989 new) (5th ed.
1988)) was given. It provides: “You will now be instructed as to all of the law
that applies the penalty phase of this trial. [¶] You must determine what the facts
are from the evidence received during the entire trial unless you are instructed
otherwise. You must accept and follow the law that I shall state to you. Disregard
all other instructions given to you in other phases of this trial. [¶] You must
neither be influenced by bias nor prejudice against the defendant, nor swayed by
public opinion or public feelings. Both the People and the defendant have a right
to expect that you will consider all of the evidence, follow the law, exercise your
discretion conscientiously, and reach a just verdict.” The 1989 instruction given
here was drafted in response to this court’s decision in People v. Babbitt (1988) 45
Cal.3d 660. (Use Note to CALJIC No. 8.84.1 (1989 new) (5th ed. 1988).)


v. Kipp, supra, 26 Cal.4th at p. 1137 [factors (a) & (b)]; People v. Griffin (2004)

33 Cal.4th 536, 598 [factors (d) & (h)]; People v. Tuilaepa (1992) 4 Cal.4th 569,

595 [factor (i)]). Therefore, they do not give rise to arbitrary or capricious death

sentences. (People v. Bacigalupo (1993) 6 Cal.4th 457, 474-479.)

A penalty phase jury may consider prior unadjudicated criminal conduct

under section 190.3, factor (b). (People v. Pollock (2004) 32 Cal.4th 1153, 1196.)

The description of mental or emotional disturbance as “extreme” in section 190.3,

factor (d), does not preclude the jury from properly considering a defendant’s

evidence in mitigation, because factor (k) permits the jury to consider “[a]ny other

circumstance which extenuates the gravity of the crime.” (People v. Carter (2005)

36 Cal.4th 1215, 1278-1279; People v. Yeoman (2003) 31 Cal.4th 93, 165; People

v. Jones (2003) 30 Cal.4th 1084, 1124.) As we have previously said, CALJIC No.

8.85’s use of the phrase “whether or not,” is not an invitation to jurors who find “a

factor not proven” to then “use that factor as a factor favoring imposition of the

death penalty.” (People v. Sapp, supra, 31 Cal.4th 240, 315.)

The trial court has no obligation to delete from CALJIC No. 8.85

inapplicable mitigating factors, nor must it identify which factors are aggravating

and which are mitigating. (People v. Jones, supra, 30 Cal.4th at p. 1129; People v.

Sapp, supra, 31 Cal.4th at p. 315.) The jury’s consideration of prior unadjudicated

criminal conduct does not render the penalty judgment unreliable, invalid, or

unconstitutional. (People v. Koontz (2002) 27 Cal.4th 1041, 1095.) Nor did the

court err by not instructing the jury to consider defendant’s age—18 at the time of

the murders—solely as a mitigating factor, because a defendant’s youth may be

either mitigating or aggravating. (Id. at pp. 1124-1125.)

The trial court need not instruct the jury that imprisonment without

possibility of parole means no release or parole ever, or that a sentence of death


would result in a defendant’s execution. (People v. Jones, supra, 30 Cal.4th at

p. 1129.)

The federal Constitution does not require that the prosecution prove

beyond a reasonable doubt that particular aggravating factors exist (People v.

Kipp, supra, 26 Cal.4th at p. 1137), that aggravating factors outweigh mitigating

factors, or that death is the appropriate penalty (People v. Crew, supra, 31 Cal.4th

at p. 860). The high court’s recent decisions in Ring v. Arizona (2002) 536 U.S.

466, and Apprendi v. New Jersey (2000) 530 U.S. 466, do not compel a different

outcome. (People v. Monterroso, supra, 34 Cal.4th at p. 796.) The jury need not

agree unanimously on the aggravating circumstances. (People v. Jenkins, supra,

22 Cal.4th at p. 1053.) The jury need not, in light of Ring and Apprendi,

determine the existence or nonexistence of every aggravating factor set out in

section 190.3 before it returns a death verdict (People v. Prieto (2003) 30 Cal.4th

226, 262-263), nor need it prepare written findings identifying the aggravating

factors on which it relied (People v. Jurado, supra, 38 Cal.4th at p. 144; People v.

Yeoman, supra, 31 Cal.4th at p. 165).

3. Appellate review process

Intercase proportionality review of other murder cases to determine in this

case defendant’s relative culpability is not required (People v. Pollock, supra, 32

Cal.4th at p. 1196); equal protection does not require this court to subject capital

convictions to the same sentence review given defendants convicted under the

indeterminate sentencing law. (§ 1170, subd. (f); People v. Cox (2003) 30 Cal.4th

916, 970; People v. Lewis (2001) 26 Cal.4th 334, 395.)

4. International law

Relying on the practices of other nations, defendant argues that California’s

imposition of death “as a regular form of punishment for a substantial number of


crimes” falls below international norms of humanity and decency. As we recently

said in People v. Perry (2006) 38 Cal.4th 302, 322, this claim is a mere variant of

“the familiar argument that California’s death penalty law does not sufficiently

narrow the class of death-eligible defendants to limit that class to the most serious

offenders, a contention we have rejected in numerous decisions.” (See People v.

Jones, supra, 30 Cal.4th at pp. 1127-1128 and People v. Wader, supra, 5 Cal.4th

at p. 669.)

Citing the right to a fair trial before an impartial tribunal granted by the

International Covenant on Civil and Political Rights, defendant complains he was

denied that right both by a juror selection process that favored death-biased jurors

and by juror concerns over crime in East Palo Alto arising from drug dealing and

its associated violence. His contention overlooks the fact that “when the United

States ratified the treaty, it specially reserved the right to impose the death penalty

on any person, except a pregnant woman, duly convicted under laws permitting

the imposition of capital punishment.” (People v. Perry, supra, 38 Cal. 4th at

p. 322; People v. Brown (2004) 33 Cal.4th 382, 403-404.)

Defendant, who is not a foreign national, asserts that his trial and sentence

are infirm under international law and treaties. Moreover he urges this court to

stay his execution to permit him to litigate in an international tribunal. We

assume, but do not decide, that defendant has standing to invoke provisions of the

international charters and agreements upon which he relies. (See Sanchez-Llamas

v. Oregon (June 28, 2006, No. 04-10566) 548 U.S. ___ [2006 WL 1749688];

Breard v. Greene (1998) 523 U.S. 371, 377.) Defendant’s claim, however, lacks

merit because international law does not bar imposing a death sentence that was

rendered in accord with state and federal constitutional and statutory requirements.

(People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Cornwell (2005) 37

Cal.4th 50, 106; People v. Hillhouse (2002) 27 Cal.4th 469, 511.)


Here, defendant has failed to show that his sentence does not meet state and

federal constitutional and statutory requirements. There was no infringement of

defendant’s state or federal constitutional rights because his jury was death-

qualified. (People v. Lenart, supra, 32 Cal.4th 1107, 1120.) Defendant has not

established that he was denied due process, a fair and impartial trial, or was

subjected to racial discrimination. The absence of such errors, either individually

or collectively, precludes us from reaching his international law claims based on

those allegations. (People v. Cornwell, supra, 37 Cal.4th at p. 106; People v.

Jones (2003) 29 Cal.4th 1229, 1269.)

In light of our determination that he has not been deprived of any rights

justifying reversal of his conviction, we deny defendant’s request for a stay of

execution to permit him to seek relief from the Inter-American Commission of

Human Rights.

I. Cumulative Error

Defendant argues unpersuasively that his trial was so closely balanced that

the cumulative effect of the various errors that he asserts occurred at the penalty

and guilt phases of his capital trial require reversal of the judgment. Individually

or cumulatively, we find no prejudicial error at either phase of the proceedings.


Section 190.4 provides for an automatic motion to modify the jury’s death

verdict. The trial court rules on the motion after independently reweighing the

evidence supporting the aggravating and mitigating factors (§ 190.3) and

determining whether in its independent judgment that evidence supports the death

verdict. (People v. Steele (2002) 27 Cal.4th 1230, 1267.) This court then

independently reviews the trial court’s ruling in light of the record, “but we do not

determine the penalty de novo.” (Ibid.)


Defendant contends that the trial court did not independently reweigh the

evidence in mitigation and aggravation or determine in its own judgment that the

evidence presented at trial supported death. He infers that the court could not have

done so, because in ruling on the motion the judge, who is required by section

190.4, subdivision (e) to “state on the record the reasons for his findings,” did so

by reading into the record a typescript some 14 pages in length, which had been

prepared by the prosecutor. The judge’s use of the prosecutor’s language does not

support the inference that defendant draws. Before stating his assessment of the

evidence, the judge outlined his legal duty to review the evidence and to make an

independent determination that it was appropriate to impose the death penalty.

Accordingly, we reject defendant’s contention that the judge was either unaware

of, or did not fulfill, his obligation to conduct a review of the evidence presented

at trial and to make an independent determination of the propriety of the jury’s

verdict of death.

Defendant complains that the trial court erred by relying on an irrelevant

fact when it stated that defendant lacked “any good reason” to kill victims

Bettancourt, a drug customer, and Morris, who was “friendly and non-

threatening.” Because the circumstances of the crime (§ 190.3, subd. (a)) are an

appropriate statutory factor, defendant’s claim fails.

In ruling on a motion to modify, “ ‘[t]he trial judge’s function is not to

make an independent and de novo penalty determination, but rather to

independently reweigh the evidence of aggravating and mitigating circumstances

and then to determine whether in the judge’s independent judgment, the weight of

the evidence supports the jury verdict. [Citations.]’ ” (People v. Guerra (2006)

37 Cal.4th 1067, 1161.)

Defendant also argues that by attributing defendant’s lack of a prior felony

conviction to his young age—18 at the time of the murders—the trial court


effectively denied defendant the benefit of both those mitigating factors. (§ 190.3,

factors (c) & (i).) Although the court noted that defendant had no prior felony

convictions as an adult, it also pointed out that defendant had only been an adult

for six months, but in that period defendant had committed three murders.

Accordingly, the court found defendant’s youth a factor that was “only minimally

mitigating.” Thus, the court independently reweighed factors (c) and (i), but

found they added little to the mitigation side of the scale.


The judgment is affirmed. Defendant’s request for a stay of execution is







See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cook

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: August 14, 2006

County: San Mateo
Judge: James L. Browning, Jr.


Attorneys for Appellant:

Peter Giannini, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Ronald S. Matthias and Aileen Bunney, Deputy Attorneys General, for
Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Peter Giannini
Giannini & Campbell
12304 Santa Monica Blvd., Suite 105
Los Angeles, CA 90025-2586
(310) 207-5772

Aileen Bunney
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5869

Opinion Information
Date:Docket Number:
Mon, 08/14/2006S042223

1The People (Respondent)
Represented by Attorney General - San Francisco Office
Aileen Bunney, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Cook, Walter Joseph (Appellant)
San Quentin State Prison
Represented by Peter Giannini
Attorney at Law
11755 Wilshire Boulevard, 15th Floor
Los Angeles, CA

3Cook, Walter Joseph (Appellant)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Attn: Samira Sadeghi
303 Second Street, Suite 400 South
San Francisco, CA

Aug 14 2006Opinion: Affirmed

Sep 2 1994Judgment of death
Sep 19 1994Filed certified copy of Judgment of Death Rendered
Dec 9 1998Counsel appointment order filed
  Peter Giannini Is appointed to represent Applt for the direct Appeal.
Mar 18 1999Order filed appointing H.C. Resource Center
  The Habeas Corpus Resource Center is appointed to represent applt for habeas corpus/executive clemency proceedings related to the automatic appeal.
Mar 23 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 26 1999Extension of Time application Granted
  To 5-17-99 To request Record correction
Mar 29 1999Filed:
  Suppl Decl of Service of request for Eot.
May 19 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
May 24 1999Extension of Time application Granted
  To 7-16-99 To request Record correction
Jul 1 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 14 1999Filed:
  Suppl Decl in support of request for Eot.
Jul 20 1999Extension of Time application Granted
  To 9-14-99 To request Record correction
Sep 13 1999Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Sep 17 1999Filed:
  Suppl Decl of Atty Giannini in support of request for Eot.
Sep 22 1999Extension of Time application Granted
  To 11/15/99 To Applt To request Corr. of the Record.
Nov 12 1999Received copy of appellant's record correction motion
  Applt's request for sequential designation of record, correction of transcripts, to examine sealed transcripts and to settle record. (22 pp.)
Dec 15 1999Compensation awarded counsel
  Atty Giannini
Jan 13 2000Compensation awarded counsel
  Atty Giannini
Jul 10 2000Counsel's status report received (confidential)
  from Habeas Corpus Resource Center.
Aug 17 2000Counsel's status report received (confidential)
  from atty Giannini.
Sep 13 2000Counsel's status report received (confidential)
  from HCRC.
Nov 6 2000Counsel's status report received (confidential)
  from HCRC.
Nov 6 2000Counsel's status report received (confidential)
  from atty Giannini.
Jan 8 2001Counsel's status report received (confidential)
  from HCRC.
Feb 15 2001Counsel's status report received (confidential)
  from atty Giannini.
Mar 7 2001Counsel's status report received (confidential)
  from atty Giannini.
Mar 15 2001Counsel's status report received (confidential)
  from HCRC.
Apr 30 2001Counsel's status report received (confidential)
  from atty Giannini.
May 17 2001Counsel's status report received (confidential)
  from HCRC.
Jul 10 2001Counsel's status report received (confidential)
  from HCRC.
Aug 7 2001Counsel's status report received (confidential)
  from atty Giannini.
Aug 13 2001Counsel's status report received (confidential)
  from HCRC.
Sep 27 2001Counsel's status report received (confidential)
  from atty Giannini.
Nov 13 2001Counsel's status report received (confidential)
  from HCRC.
Nov 13 2001Counsel's status report received (confidential)
  from HCRC.
Nov 30 2001Counsel's status report received (confidential)
  from atty Giannini.
Dec 12 2001Counsel's status report received (confidential)
  from atty Giannini.
Dec 17 2001Counsel's status report received (confidential)
  from HCRC.
Jan 7 2002Counsel's status report received (confidential)
  from HCRC.
Feb 11 2002Change of Address filed for:
  applt. counsel Peter Giannini.
Feb 14 2002Counsel's status report received (confidential)
  from atty Giannini.
Mar 7 2002Counsel's status report received (confidential)
  from HCRC.
Mar 29 2002Counsel's status report received (confidential)
  from atty Giannini.
May 6 2002Counsel's status report received (confidential)
  from HCRC.
May 30 2002Counsel's status report received (confidential)
  from atty Giannini.
Jun 26 2002Compensation awarded counsel
  Atty Giannini
Jun 26 2002Compensation awarded counsel
  Atty Giannini
Jun 28 2002Counsel's status report received (confidential)
  from atty Giannini.
Jul 2 2002Counsel's status report received (confidential)
  from HCRC.
Aug 5 2002Counsel's status report received (confidential)
  from atty Giannini.
Oct 1 2002Counsel's status report received (confidential)
  from atty Giannini.
Oct 2 2002Record on appeal filed
  18 vols. clerk's transcript (5,167 pp.) and 149 vols. reporter's transcript (7,540 pp.) (includes 309 pp. of juror hardship requests; 3,463 pp. juror questionnaires; and sealed transcripts).
Oct 2 2002Appellant's opening brief letter sent, due:
  Nov. 12, 2002.
Oct 17 2002Request for extension of time filed
  To file appellant's opening brief. (1st request)
Nov 4 2002Filed:
  Amended request for extension of time to file appellant's opening brief.
Nov 7 2002Motion filed
  Appellant's motion for decertification of the record or in the alternative, petition for writ of mandate.
Nov 7 2002Extension of time granted
  To 1/13/2003 to file appellant's opening brief. The court anticiaptes that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 15 2002Opposition filed
  to motion to decertification of the record and petition for writ of mandate.
Nov 26 2002Filed:
  Appellant's reply to respondent's opposition to motion for decertification of the record, or in the alternative, writ of mandate.
Nov 26 2002Compensation awarded counsel
  Atty Giannini
Dec 17 2002Counsel's status report received (confidential)
  from atty Giannini.
Dec 18 2002Order filed
  Appellant's "Motion for Decertification of the Record or in the Alternative, Petition for Writ of Mandate," filed November 7, 2002, is treated as including a motion to augment and correct the record on appeal pursuant to rule 12 of the California Rules of Court. To the extent that it seeks corrections and/or additional materials, including settled statements, in the superior court, the motion is granted: The clerk of this court is directed to transmit the original of the record on appeal to the clerk of the superior court. The superior court is directed to conduct a hearing or hearings on the corrections and/or additional materials, including settled statements, requested in the motion; to order such corrections and/or additional materials, including settled statements, as may be necessary; to order the preparation of clerk's and reporter's transcripts relating to the hearing or hearing conducted; to provide each of the parties an opportunity to review any such corrections and/or additional materials and any such clerk's and reporter's transcripts; and to make the certification required by rule 35(c)(4) -- all to be completed on or before January 31, 2003. The clerk of the superior court is directed to transmit to this court the original of the clerk's and reporter's transcripts relating to any hearing or hearings conducted and any corrections and/or additional materials ordered, and to retransmit to this court the original of the record on appeal, within 10 days of the certification required by rule 35(c)(4). In all other respects the motion is denied.
Jan 6 2003Counsel's status report received (confidential)
  from HCRC.
Jan 9 2003Order filed
  Inasmuch as on 12-18-2002, the superior court was directed to conduct further proceedings regarding the preparation of the record on appeal, the 1-13-2003, due date for AOB is vacated.
Jan 21 2003Filed:
  letter from Hon. John W. Runde, San Mateo Co. Superior Court, requesting extension of time in which to comply with this court's order of 12-18-2002, and requesting that retired judge (James. L. Browning) be appointed to sit on assignment to conduct the record correction proceedings.
Jan 29 2003Order filed
  The time to comply with this court's order filed Dec. 18, 2002, is hereby extended to March 3, 2002.
Feb 6 2003Change of Address filed for:
  appellant's counsel Peter Giannini.
Feb 7 2003Filed:
  Amended notice of change of address filed by appellant's counsel Peter Giannini.
Feb 10 2003Counsel's status report received (confidential)
  from atty Giannini.
Mar 6 2003Counsel's status report received (confidential)
  from HCRC.
Apr 2 2003Counsel's status report received (confidential)
  from atty Giannini.
Apr 21 2003Request for extension of time filed
  by San Mateo Co. Superior Court for extension of time to file certified record on appeal and applic. for relief from default.
Apr 21 2003Order filed
  The San Mateo County Superior Court's "Application for Relief From Default and for an Extension of Time to File the Certified Record on Appeal" is granted. The superior court must comply with this court's order of December 18, 2003, on or before April 30, 2003.
Apr 25 2003Filed:
  additional record from superior court: 3 vols. of R.T. (111 pp.) and judge's certification dated 4-12-2003.
Apr 25 2003Appellant's opening brief letter sent, due:
May 5 2003Counsel's status report received (confidential)
  from HCRC.
May 6 2003Compensation awarded counsel
  Atty Giannini
May 30 2003Request for extension of time filed
  to file appellant's opening brief. (1st request)
Jun 2 2003Extension of time granted
  to 8/4/2003 to file appellant's opening brief.
Jun 6 2003Counsel's status report received (confidential)
  from atty Giannini.
Jul 11 2003Counsel's status report received (confidential)
  from HCRC.
Aug 4 2003Counsel's status report received (confidential)
  from atty Giannini.
Aug 4 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Aug 8 2003Extension of time granted
  to 10/3/2003 to file appellant's opening brief.
Sep 25 2003Counsel's status report received (confidential)
  from atty Giannini.
Oct 3 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Oct 8 2003Extension of time granted
  to 12/2/2003 to file appellant's opening brief.
Dec 3 2003Counsel's status report received (confidential)
  from atty Giannini.
Dec 3 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Dec 9 2003Extension of time granted
  to 2-3-2004 to file AOB.
Jan 30 2004Counsel's status report received (confidential)
  from HCRC.
Feb 2 2004Application to file over-length brief filed
  by appellant to file opening brief. (116,890 word brief submitted under separate cover)
Feb 6 2004Order filed
  Appellant's "Motion to File Overlength Brief" is granted.
Feb 6 2004Appellant's opening brief filed
  (116,890 words - 486 pp.)
Mar 4 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Mar 8 2004Compensation awarded counsel
  Atty Giannini
Mar 9 2004Extension of time granted
  to 5/7/2004 to file respondent's brief.
Mar 19 2004Filed:
  Additional record from superior court: Clerk's Transcripts (Exhibits). (3 volumes - 762 pp.)
Mar 26 2004Counsel's status report received (confidential)
  from HCRC.
May 3 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
May 7 2004Extension of time granted
  to 7-6-2004 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension granted based upon Deputy AG Aileen Bunney's representation that she anticipates filing the brief by 10-5-2004.
Jun 24 2004Request for extension of time filed
  to file respondent's brief. (3rd request)
Jun 28 2004Extension of time granted
  to 9-7-2004 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension granted based upon Deputy AG Aileen Bunney's representation that she anticipates filing the brief by 10-5-2004.
Jul 22 2004Counsel's status report received (confidential)
  from HCRC.
Aug 26 2004Request for extension of time filed
  to file respondent's brief. (4th request)
Aug 30 2004Extension of time granted
  to 10/5/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Aileen Bunney's representation that she anticipates filing that brief by 10/5/2004. After that date, no firthr extension will be granted.
Oct 4 2004Counsel's status report received (confidential)
  from HCRC.
Oct 4 2004Respondent's brief filed
  (49,356 words; 164 pp.)
Oct 27 2004Request for extension of time filed
  to file appellant's reply brief. (1st request)
Oct 27 2004Extension of time granted
  to 12/27/2004 to file appellant's reply brief.
Dec 9 2004Counsel's status report received (confidential)
  from HCRC.
Dec 20 2004Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Dec 21 2004Extension of time granted
  to 2/25/2005 to file appellant's reply brief. Extension is granted based upon counsel Peter Giannini's representation that he anticipates filing that brief by 2/25/2005. After that date, no further extension will be granted.
Feb 7 2005Counsel's status report received (confidential)
  from HCRC.
Feb 24 2005Appellant's reply brief filed
  (31,223 words; 152 pp.)
Mar 9 2005Compensation awarded counsel
  Atty Giannini
Apr 7 2005Counsel's status report received (confidential)
  from HCRC.
Aug 2 2005Counsel's status report received (confidential)
  from HCRC.
Aug 24 2005Related habeas corpus petition filed (concurrent)
  No. S136687
Jan 26 2006Change of contact information filed for:
  counsel Peter Giannini.
Apr 13 2006Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the late May calender, to be held the week of May 30, 2006 in San Francisco. The advisement of "focus issues letters," 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.
May 2 2006Case ordered on calendar
  June 1, 2006, at 1:30 p.m., in San Francisco
May 8 2006Argument rescheduled
  Case is now to be argued on June 7, 2006, at 1:30 p.m., in Los Angeles
May 9 2006Received:
  appearance sheet from Dep. Attorney General Aileen Bunney requesting 45 minutes for argument.
May 15 2006Received:
  appearance sheet from attorney Peter Giannini requesting 45 minutes for argument.
May 22 2006Filed letter from:
  Attorney Peter Giannini dated May 16, 2006 regarding focus issues for oral argument.
May 25 2006Filed letter from:
  Deputy Attorney General Aileen Bunney dated May 25, 2006 regarding focus issues for oral argument.
May 30 2006Filed:
  appellant's proof of service regarding focus letter.
Jun 7 2006Cause argued and submitted
Jun 14 2006Compensation awarded counsel
  Atty Giannini
Aug 14 2006Opinion filed: Judgment affirmed in full
  Defendant's request for a stay of execution is denied. Opinion by Kennard, J. ----- joined by George C.J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Aug 29 2006Filed:
  appellant's certificate of word count in support of petition for rehearing.
Aug 29 2006Rehearing petition filed
  by appellant. (Note: appellant's petition for rehearing is lacking certificate of word count.)
Aug 31 2006Time extended to consider modification or rehearing
  to and including November 9, 2006
Oct 25 2006Rehearing denied
  Petition for rehearing DENIED.
Oct 25 2006Remittitur issued (AA)
Oct 30 2006Received:
  acknowledged receipt of remittitur.
Nov 3 2006Order filed (150 day statement)
Jan 22 2007Received:
  letter from U.S.S.C.; dated January 17, 2007; ext. of time to file cert petn is extended to and including March 23, 2007.
Apr 2 2007Received:
  letter form U.S.S.C., dated March 28, 2007, advising that the petition for writ of certiorari was filed on March 23, 2007, and placed on the docket March 28, 2007 as No. 06-10302.
May 24 2007Received:
  letter from U.S.S.C. dated May 21, 2007; cert petn was denied May 21, 2007.
Aug 24 2007Change of contact information filed for:
  applt counsel HCRC.

Feb 6 2004Appellant's opening brief filed
Oct 4 2004Respondent's brief filed
Feb 24 2005Appellant's reply brief filed
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