IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S042659
v.
JOSEPH LLOYD COOK,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. MCR 763
Defendant Joseph Lloyd Cook appeals from a judgment of the San
Bernardino County Superior Court imposing the death penalty following his
conviction of two counts of first degree murder (Pen. Code, § 187),1 one count of
burglary (§ 459), and two counts of robbery (§ 211), accompanied by special
circumstance findings that he committed multiple murders (§ 190.2, subd. (a)(3)),
and murders while engaged in the commission of robbery (id., subd. (a)(17)(vii)).
The jury also found defendant personally used a deadly and dangerous weapon (§§
12022, subd. (b), 1192.7, subd. (c)(23)) during the murders and the robberies.
Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. FACTS
On July 9, 1992, Hubert and Pearl Hails, ages 82 and 81 respectively, were
murdered in their Joshua Tree home. Friend Ruth Eyer had visited the couple
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
around 4:00 p.m. on that day, and the Hailses introduced defendant to her while he
was working in their yard. Later that day, at dusk, the Hailses’ son Robert came to
visit. He noticed the lights were out and the Hailses’ white Toyota pickup truck
was gone. Robert assumed the couple had driven off to celebrate their wedding
anniversary.
Between 5:30 and 7:00 p.m. that same day, defendant arrived at the La
Quinta home of his brother, Jeff Cook. Defendant was driving the Hailses’ white
pickup truck. Inside the truck were the Hailses’ large stereo speakers, which
defendant sold to his brother for $150. A few days later, on July 11, Robert Hails
returned to his parents’ home and found their bodies. He noticed that two stereo
speakers were missing, as well as a jewelry box, his mother’s purse, the keys to
the Hailses’ truck, and a notebook in which his father recorded the name of each
person who worked at the Joshua Tree home, the number of hours worked, and the
amount of pay.
Investigating officers found on the Hailses’ living room floor a crumpled
ledger sheet from the missing notebook that contained defendant’s work record,
showing he started working at 3:30 p.m. on July 9, but lacking any notation as to
stop time, hours worked, amount of pay, or signature. The officers also found
latent palm prints on the Hailses’ truck that matched defendant’s palm, and similar
matching prints were found on the crumpled ledger sheet.
A parole search of defendant’s home disclosed a letter signed by defendant
and addressed to his landlord which stated that defendant was working for the
Hailses and that his recent financial problems had been resolved. The search also
disclosed a discarded pair of tennis shoes in a trash bag in defendant’s garage.
The shoes bore blood spatters consistent with Pearl Hails’s blood, but not with
Hubert Hails’s or defendant’s. (An expert testified that only about 1.7 percent of
the general population of San Bernardino County, including Pearl Hails, would
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have an enzyme pattern consistent with that found on the right shoe and that about
9.8 percent of the same population, including Pearl Hails, would have an enzyme
pattern consistent with that found on the left shoe.) Blood traces found on
defendant’s patio were consistent with Hubert’s blood, but not with Pearl’s or
defendant’s.
Witnesses Gina and Cruz Wilcox identified defendant as the man they saw
standing next to a white pickup truck in front of their house on July 10, 1992; the
truck was parked about a half mile from defendant’s residence.
After conducting autopsies, a pathologist concluded that Hubert had
suffered numerous internal and external injuries, including one likely fatal blow to
the forehead that a blunt object such as a hammer had caused. Pearl too had been
fatally struck on the head, extremities, and torso by a blunt object, leaving wounds
similar to those inflicted on Hubert.
The defense introduced expert testimony disputing the prosecution’s theory
that the Hailses died as early as July 9 and attempting to cast doubt on certain
witnesses’ identifications of defendant.
At the penalty phase, the prosecution introduced evidence of defendant’s
prior burglary conviction. The defense called several witnesses. Defendant’s
mother testified that her husband physically abused her while she was pregnant
with defendant. She said her husband later was physically abusive to defendant,
starting as early as when defendant was a few weeks old, and that her husband
shook defendant very hard and threw him into his bassinet. Defendant’s mother
added that, as a child, defendant had speech problems, wet his bed, was
hyperactive, and was “slow to learn.” Defendant’s sister Janet testified that their
mother beat defendant and her other six children on a daily basis and that she and
another sister were placed in foster care because their father had molested them.
An educational psychologist testified that her tests showed that defendant is mildly
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learning disabled. A doctor who recorded the electrical activity of defendant’s
brain testified that he discovered a dominant abnormality of the left side of
defendant’s brain that could have been caused by shaking. A clinical psychologist
testified that trauma defendant received as a baby could have caused defendant’s
brain damage. The psychologist said his tests revealed a pronounced split between
defendant’s verbal and nonverbal intelligence.
II. GUILT PHASE ISSUES
A. Error in Excusing Prospective Juror Maria R.
Defendant first argues the court erred in excusing for cause Prospective
Juror Maria R. because of her stated aversion to the death penalty. (See Wainright
v. Witt (1985) 469 U.S. 412.) He claims excluding Maria R. as a potential juror
deprived him of his right to be tried by a fair and impartial jury. (U.S. Const., 6th
& 14th Amends.; Cal. Const., art. I, § 16.) Defendant also claims the exclusion
violated his rights to due process and a reliable penalty determination. (U.S.
Const., 5th, 8th & 14th Amends.)
The record shows that, to evaluate prospective jurors’ ability to serve in the
case, the court required them to complete a questionnaire that asked their views
regarding the death penalty. Maria R. answered that she did “not believe” in the
death penalty and “could never vote for the death penalty even if someone were
convicted of murder with special circumstances.” She also answered “yes,”
however, to a question asking whether she could set aside her feelings against the
death penalty when the court instructed her to do so.
Both the prosecution and defense moved to exclude for cause various
prospective jurors solely on the basis of their questionnaire responses. Maria R.
was among those whom the prosecutor challenged for cause. The defense
observed that Maria R. indicated she could set aside her feelings about the death
4
penalty. The court, without conducting voir dire of Maria R., nonetheless excused
her, observing that, not only did she express strong views against the death
penalty, but she also admitted that victim photographs would strongly affect and
anger her, and that she would automatically accept the opinions of various
professional medical experts.
Defendant now argues that the court erred in failing to conduct voir dire to
clarify Maria R.’s views. The Attorney General responds that defendant waived
the point by agreeing with the prosecutor that the court could resolve challenges
for cause on the basis of the questionnaire responses alone. We first address the
claim of waiver or forfeiture.
The record shows that the court asked whether, in addition to prospective
jurors both parties agreed should be excused, “are there others that there’s going to
be a challenge for cause that you’re willing to submit on the questionnaires?”
Defense Counsel Goldstein acknowledged that he had agreed with the prosecutor
to “submit on the questionnaire” challenges for cause to certain prospective jurors,
and the court clarified that, although the parties could discuss these challenges
with the court in chambers, they would be “thereby waiving your right to any
further questioning . . . .” The court also noted that if it denied any such
challenges, counsel could later question the prospective jurors in voir dire if their
names were called. Both defense counsel and prosecutor expressly agreed to this
procedure.
After the defense’s challenges were discussed in chambers and were either
granted, denied, withdrawn, or submitted on the questionnaires, the prosecutor’s
challenges were similarly discussed, including the challenge to Maria R. (also
referred to as Juror No. 116). Defense counsel, after simply noting that Maria R.
had indicated in her questionnaire that she could set aside her beliefs against the
death penalty, agreed to “submit it” without requesting further voir dire. The court
5
then asked defense counsel, “[o]n this one specifically, you’re agreeing to submit
it at this point on the questionnaire without any additional clarifying questions?”
Defense counsel replied, “yes.” The court then discussed Maria R.’s questionnaire
responses and indicated that it would grant the challenge for cause for the reasons
started above. Defense counsel made no comment.
Therefore, we agree with the Attorney General that defendant has forfeited
his right to complain of the court’s failure to interrogate Maria R. further on voir
dire. Defense counsel repeatedly agreed to let the court decide the challenge
solely on the basis of the questionnaire responses. In that regard, the present case
is distinguishable from People v. Stewart (2004) 33 Cal.4th 425, on which
defendant relies. There, we reversed a penalty judgment because the trial court,
acting without the parties’ prior agreement, granted several prosecution
challenges for cause solely on the basis of the questionnaire responses, despite the
court’s earlier assurances that it would conduct further oral voir dire to address
any ambiguous responses, and despite the defendant’s repeated objections to the
procedure the court used. (Id. at p. 452.)
Here, perhaps in the interest of accelerating the normally slow jury
selection process, both parties, through their counsel, agreed to submit challenges
for cause on the basis of the questionnaire responses, following argument in
chambers. Although this procedure may sometimes result in the exclusion of
prospective jurors whose ambiguous responses might be clarified on voir dire, we
see no legal impediment to such procedure. Capital defendants are permitted to
waive “the most crucial of rights,” including the rights to counsel, to a jury trial, to
offer a guilt phase defense, and to be present at various stages of trial. (E.g.,
People v. Robertson (1989) 48 Cal.3d 18, 61, and cases cited.) And counsel, as
“captain of the ship,” maintains complete control of defense tactics and strategies,
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except that the defendant retains a few “fundamental” personal rights. (E.g., In re
Horton (1991) 54 Cal.3d 82, 95.)
In order to address the merits of defendant’s contention, we have reviewed
the record de novo to determine whether the trial court had sufficient information
regarding Maria R.’s state of mind to permit it to reliably determine whether her
views would prevent or substantially impair the performance of her duties in this
case. (People v. Stewart, supra, 33 Cal.4th at p. 445.) In People v. Avila (2006)
38 Cal.4th 491, 532, we upheld a trial court order excusing Prospective Juror O.
D., whose questionnaire answers showed he could never impose the death penalty
even though he also responded that he could set aside his personal feelings and
follow the law. The questionnaire before us presents a similar dichotomy.
In her questionnaire, Maria R. answered that she did “not believe” in the
death penalty, that she felt the death penalty was imposed “randomly,” that she
generally would “strongly recommend” a sentence of life imprisonment without
parole, and that she “could never vote for the death penalty even if someone were
convicted of murder with special circumstances.” Significantly, with regard to
question No. 48 of the jury questionnaire, Maria R. unequivocally answered “no”
to the following question: “It is alleged that two deaths occurred in a single
incident. Depending upon all of the circumstances of this case and the evidence to
be presented in the penalty phase, if any, could you consider as a realistic and
practical possibility . . .[i]imposing the death penalty in such a case.”
(Capitalization and emphasis omitted.) Maria R. answered “yes,” however, to a
question asking whether she could set aside her feelings against the death penalty
when the court instructed her to do so and follow the court’s instructions.
Although Maria R. stated that, in the abstract, she could put her feelings
about the death penalty aside and follow the court’s instructions, she repeatedly
expressed her unequivocal opposition to the death penalty and specifically stated
7
her unequivocal refusal to consider the possibility of imposing the death penalty in
a case in which two deaths occurred in a single incident. Her answer to question
No. 48 revealed that, regardless what the evidence would show at trial or at the
penalty phase and regardless what instructions she would receive, Maria R. could
not consider the possibility of imposing the death penalty in the instant case.
Having reviewed all relevant responses in Maria R.’s questionnaire, we find that,
when taken together, her views, as expressed in her answers to the jury
questionnaire, would have prevented or substantially impaired her from
performing her duties in this particular case. (People v. Stewart, supra, 33 Cal.4th
at p. 445.) Accordingly, the trial court did not err by excusing Maria R. for cause
based on her responses to the jury questionnaire.
B. Error in Admitting Results of Electrophoretic Testing
At the preliminary hearing, and again at trial, the defense moved to exclude
the testimony of crime laboratory (lab) criminalist John Johnson, who testified
regarding his extensive qualifications and expertise in the electrophoretic method
of blood testing. Here, defendant contends the trial court erred in admitting the
results of the electrophoretic testing of the stains on the tennis shoes found in his
garage. Specifically, he claims the prosecutor failed to satisfy the three prongs of
People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly), for the admissibility of scientific
evidence, namely, (1) the relevant scientific community’s general acceptance of
the technique or testing procedure, (2) an expert properly qualified to testify
regarding such reliability, and (3) use of correct scientific procedures in the case
before us. Defendant contends the erroneous admission of the results of the
electrophoretic testing violated state evidentiary provisions (Evid. Code, §§ 350,
352), as well as his state and federal constitutional rights to due process and to a
8
fair and reliable capital trial. (U.S. Const., 8th & 14th Amends.; Cal. Const. art I,
§§ 7, 15, & 17.)
In July 1992, Johnson analyzed the stains on the tennis shoes. The left shoe
bore a single bloodstain, while the right shoe had blood spattered on top and on its
lace. Johnson’s tests led him to conclude that all these stains could have been
Pearl’s blood, but not Hubert’s or defendant’s. At trial, Johnson testified that
about 1.7 percent of the general population of San Bernardino County (including
Pearl) would have an enzyme pattern consistent with that found on the right shoe,
and that 9.8 percent of the population (and Pearl) would have a pattern consistent
with the stain on the left shoe.
Johnson explained that, in order to test the stains on the right shoe, he
combined some of the scattered stains on it. He did so because each stain was an
extremely limited sample and because the stains were close together, which
indicated that they came from a single source. His testing disclosed that the
combined stains did come from a single source, and he noted that his testing
would have revealed the existence of separate sources had that been the case.
Johnson left enough stains on the right shoe to allow further analysis if needed.
Johnson also explained that, after testing the right shoe stains and combinations of
stains, he compiled the results into a single blood profile, treating them as coming
from the same single source.
We discuss the three prongs of Kelly below.
1. General acceptance — Kelly’s first prong requires proof that the
scientific technique is a generally accepted procedure in the relevant scientific
community. Although defendant acknowledges that electrophoretic testing of
dried bloodstains is generally accepted (see, e.g., People v. Fierro (1991) 1
Cal.4th 173, 215), he argues that the particular methodology used here with regard
to the right shoe, namely, treating the scattered right shoe stains as coming from a
9
single source, and combining the results of several different tests of those stains
into a single blood profile, was a novel procedure unsupported by proof of general
scientific acceptance.
Johnson’s assumption, that the blood spatters on the right shoe came from a
single source, seems little more than application of common sense. (See People v.
Clark (1993) 5 Cal.4th 950, 1017-1018 [blood spatter testimony not subject to
Kelly, supra, 17 Cal.3d 24, rule because analytical methods used produce no “aura
of scientific infallibility”].) But, in any event, as the trial court ruled,
electrophoresis “is generally accepted in the scientific community” and, once a
scientific procedure such as electrophoretic testing of bloodstains has become
generally accepted, mere variations in technique or procedure go to the weight of
the evidence, not its admissibility. (See People v. Cooper (1991) 53 Cal.3d 771,
812-813 (Cooper).
Although the foregoing rule would not have prevented defendant from
showing at trial that Johnson’s variations amounted to a “material scientific
distinction” or material failure to use correct, scientifically accepted procedures
(see People v. Venegas (1998) 18 Cal.4th 47, 54, 80), defendant made no such
showing, and Johnson testified at length, justifying his procedures. Indeed,
Johnson testified, and the trial court found, that if the stains on the right shoe had
come from two different sources, Johnson’s testing would have revealed that fact.
Moreover, as the Attorney General observes, in addition to Johnson’s availability
for defense cross-examination, the prosecution did “a split on the blood”
remaining on the right shoe after the compilation stain had been consumed and the
defense was given splits of that “blood evidence to perform independent testing.”
Yet the defense offered no tests of its own to rebut Johnson’s conclusions.
Similarly, defendant’s observations that Johnson did not document all his
work, took some inaccurate notes, did not conduct “blind” testing, deviated from
10
the lab protocol in some respects, and failed to respond to a coworker’s doubts
about the accuracy of a test of blood on a carpet are all matters going to weight,
not admissibility. (People v. Farmer (1989) 47 Cal.3d 888, 913 (Farmer);
Cooper, supra, 53 Cal.3d at pp. 812-813.) As Farmer explained, Kelly “tests the
fundamental validity of a new scientific methodology, not the degree of
professionalism with which it is applied.” (Farmer, supra, 47 Cal.3d at p. 913.)
Defendant has failed to convince us that the particular technique Johnson
employed constitutes a “material scientific distinction” from the general
electrophoretic methodology discussed in our prior published decisions. (People
v. Venegas, supra, 18 Cal.4th at p. 54.)
For all the reasons stated, we conclude that defendant’s reliance on Kelly’s
first prong (demonstrating general acceptance in the scientific community) to
contend the test results on the tennis shoes were inadmissible is misplaced.
2. Johnson’s qualifications — Kelly’s second prong requires that the
testifying expert be properly qualified to testify regarding the reliability of the
scientific technique used. Defendant first complains that Johnson was linked to
law enforcement, and that he lacked the scientific background and impartiality to
be qualified to establish the reliability of his “compilation technique,” whereby he
treated all the right shoe stains as coming from a single source. But, as we have
seen, the scientific community already had generally accepted the electrophoretic
testing of dried bloodstains, and Johnson’s variations in technique went to weight,
not admissibility. (Cooper, supra, 53 Cal.3d at pp. 812-813.)
Johnson was fully qualified to perform electrophoretic testing and to relate
the results. He had been a criminalist with the San Bernardino Sheriff’s crime lab
for 10 years by the time he testified, had taken several courses on serological
testing and blood spatters, had written his master’s thesis on the subject of
electrophoresis, and read journals and attended study groups to keep current on
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new developments. By the time of trial, he had qualified as an electrophoretic
testing expert in approximately seven cases. We find defendant’s attack on
Johnson’s qualifications meritless.
3. Johnson’s testing methods — Defendant next argues that, under Kelly’s
third prong, Johnson’s testing methods were not shown to be correct scientific
procedures. (See People v. Venegas, supra, 18 Cal.4th at pp. 81-83; People v.
Pizarro (2003) 110 Cal.App.4th 530, 622-633.) Much of this argument mirrors
defendant’s previously discussed criticisms regarding the supposed lack of general
acceptance of Johnson’s methodology. Defendant repeats his meritless assertion
that the prosecution failed to prove Johnson’s compilation technique was one that
other scientists would have accepted. Defendant also contends that the
prosecution failed to show that the scientific community drafted or approved the
protocol the crime lab recommended and the slightly modified one Johnson
actually used. In addition, defendant criticizes Johnson’s failures (1) to have
another lab criminalist provide a second, confirming “reading” of all his test
results, (2) to perform “blind” tests to eliminate possible tester bias, and (3) to
document more accurately his testing procedures. As indicated above, these
matters were appropriately presented to the trier of fact to consider in weighing the
accuracy of Johnson’s conclusions, but none of them affected the admissibility of
the test results themselves. (Cooper, supra, 53 Cal.3d at pp. 812-813; Farmer,
supra, 47 Cal.3d at p. 913.)
Defendant next focuses on Johnson’s procedures in calculating the test
results’ statistical significance. As noted, Johnson testified that about 1.7 percent
of San Bernardino County’s general population (including Pearl Hails) would
have an enzyme pattern consistent with that found on the right shoe; 9.8 percent of
the population (and Pearl) would have an enzyme pattern consistent with the stain
on the left shoe. Without exploring the matter further, defendant questions
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whether the prosecution carried its burden of proving that Johnson’s choice of
databases and method of calculating population frequency were scientifically
correct. Defendant acknowledges that the trial court directed Johnson to calculate
the statistical frequency using Riverside County and San Bernardino County
statistics. Ultimately only San Bernardino County statistics were presented,
presumably because the crime was committed in that county. Defendant, who
objected to the statistical evidence only under Evidence Code section 352
(evidence more prejudicial than probative), now complains that the record fails to
show why San Bernardino County was the proper database, and also whether
Johnson’s calculations were statistically correct. Significantly, at trial defendant
did not, and does not now, point to evidence contradicting Johnson’s conclusions.
Defendant simply questions the sufficiency of Johnson’s explanation regarding his
methodology, which he more appropriately should have done at trial.
The Attorney General observes that our cases allow this kind of statistical
blood-group evidence. (See People v. Pride (1992) 3 Cal.4th 195, 241; People v.
Fierro, supra, 1 Cal.4th at p. 215.) Here, the trial court ruled that questions
regarding the proper database went to weight, not admissibility. After a hearing in
which Johnson explained how he calculated the general population frequency
results, the court found his procedures were correct. Defendant gives us no reason
to disagree. Accordingly, we remain convinced that the “procedures utilized in
the case at hand” complied with the electrophoretic methodology that already has
“passed muster under the central first prong of the Kelly test.” (People v. Venegas,
supra, 18 Cal.4th at p. 81.)
We conclude that the court did not err in admitting the evidence of
electrophoretic testing of the bloodstains on either of the tennis shoes found in
defendant’s garage. Accordingly, we need not reach the question whether any
error in admitting this evidence prejudiced the defense. We note that defendant
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claims “[t]he purported bloodstains and Johnson’s interpretation thereof was the
only physical evidence linking appellant to the killings” of the Hailses. We
simply observe that, assuming arguendo the test results from the compilation of
stains from the right tennis shoe were erroneously admitted into evidence under
Kelly, other evidence convincingly demonstrated defendant’s guilt, including
blood consistent with Pearl’s found on the left tennis shoe, the blood on
defendant’s patio that was consistent with Hubert’s blood but not that of the
defendant, defendant’s being seen with the Hailses a few days before their bodies
were discovered, the missing employee notebook coupled with defendant’s
fingerprint on the crumpled and seemingly discarded ledger sheet containing
defendant’s work record and starting time for July 9, 1992, defendant’s
unexplained act of driving Hubert’s truck, which contained a jewelry box similar
to that missing from the Hailses’ home, and defendant’s sale of the Hailses’
missing stereo speakers.
C. Destruction of Evidence
Defendant next contends the prosecution destroyed “critical” pieces of
evidence prior to trial, namely, the trash bag in which the bloodstained tennis
shoes were found in defendant’s garage, the electrophoretic gel plates on which
Johnson tested the stains found on those shoes, and the book of parolee photos that
the officers showed to Gina and Cruz Wilcox to assist them in obtaining an
identification. Defendant contends destruction of these items violated his due
process right to view all evidence of an apparent material and exculpatory nature.
(See Arizona v. Youngblood (1988) 488 U.S. 51, 58; California v. Trombetta
(1984) 467 U.S. 479, 488-489.) To the contrary, we conclude that destruction of
these items did not amount to a violation of defendant’s due process rights.
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1. Trash bag — Defendant first complains that the investigating officers
failed to preserve the trash bag found in defendant’s garage that contained the
tennis shoes and a letter from “Joe.” At the preliminary hearing, Officer Paredes
testified he found the bloodstained shoes in a shopping bag containing other
common household trash. Detective Duffy testified the bag contained ordinary
trash (“miscellaneous milk cartons, liquid trash,” and no writings other than the
note from “Joe”), which he neither inventoried nor photographed. On learning
that the officers preserved neither the bag nor its other contents, defendant moved
for sanctions, arguing that the defense was thereby prevented from trying to show
that other persons might have had access to the bag. (Evidently, some other
persons, including defendant’s brother, may have stored items in the garage.)
Following a hearing, the court denied sanctions, ruling that the officers had no
duty to gather physical evidence merely because it might prove useful to the
defense.
Defendant speculates that he might have discovered items linking other
persons to the bloodstained shoes. As the Attorney General observes, defendant
failed to show the trash bag actually contained possibly exculpatory evidence, or
that the officers exercised bad faith in destroying it. (See, e.g., Arizona v.
Youngblood, supra, 488 U.S. at pp. 57-58; People v. Roybal (1998) 19 Cal.4th
481, 509-510.)
2. Gel plates — Next, defendant contends the prosecution improperly
failed to preserve the four gel plates used in the electrophoretic testing of the stains
on the tennis shoes. At an evidentiary hearing, Johnson, the crime lab criminalist
who performed the tests, and Lightfoot, his supervisor, testified regarding the lab’s
procedures. Testing involved placing gel on a glass plate, placing blood samples
in or on the gel, running electrical current through the gel, causing various
enzymes to migrate, staining the enzymes to make them visible, and examining the
15
results to determine whether sufficient banding occurred to reveal the nature of the
enzymes present. After a plate has been tested, the results are read, photographed,
and entered in a logbook. The gel is then discarded and the plate is reused.
Johnson testified that the gels were destroyed because the lab could not
afford to buy new plates for every test, and that he knew of no lab that preserved
individual gel plates. Additionally, he explained that the plates would be useless
because the various separated proteins and enzymes would diffuse into the gel and
become a blur. The trial court denied sanctions, finding that preservation of the
plates would have preserved no potentially useful evidence because of the
likelihood of flaking, fading, or other degradation. The court also found no
evidence of bad faith on the prosecution’s part, as defendant had the opportunity
to examine the photographs and test the stains himself.
Defendant notes that, although defense counsel received samples of the
bloodstains found on the shoes, counsel never received samples either of Pearl’s
blood or of the stains that Johnson actually tested from the right tennis shoe, as the
testing entirely consumed those stains. The record fails to show, however, that
defense counsel ever requested and was refused samples of Pearl’s blood, which
presumably was available. And, as noted above, Johnson properly could assume
that all of the stains on the right shoe came from the same source. Thus, defendant
had ample means of independently testing the remaining stains on the right shoe as
well as the remaining portion of the single stain on the left shoe. Defendant also
points to supposed discrepancies in the log reports and photographs and to an
inconsistent result that another crime lab technician, Patricia Lough, a “second
reader” of the test results, reached. But the defense did not challenge Johnson’s
testimony explaining or minimizing the significance of these inconsistencies.
Moreover, defendant was free to raise all these inconsistencies at trial in an
attempt to cast doubt on Johnson’s testimony. There is no indication that
16
preservation of the gel plates themselves would have added any additional helpful
defense evidence.
We conclude that the court did not err in refusing to sanction the
prosecution for failing to preserve the gel plates used in the electrophoretic testing.
3. The parolee book — Defendant next contends the prosecution failed to
preserve the book of parolee photos in the precise format shown to Cruz and Gina
Wilcox in an attempt to secure their identification of the man who stood next to
the Hailses’ white Toyota truck in front of their house on the morning of July 10,
1992. Gina picked defendant’s photo from this book containing about 95 Polaroid
photos, including many of persons who did not resemble defendant.
Sergeant Brown photocopied the book shown to the Wilcoxes on the same
day they viewed it. But Officer Paredes testified that, to keep the book current, he
earlier had replaced defendant’s photo with a more recent one. Sergeant Brown’s
photocopy thus apparently included the newer version, not the one the Wilcoxes
viewed. Officer Paredes also later updated several other parolees’ photos. When,
on defense motion, the court ordered the prosecution to produce the photo book,
Paredes removed these newer photos in an effort to restore the book to the
condition he assumed the Wilcoxes had seen. Evidently, Paredes’s field files
contained three similar photos of defendant, so it was unclear which one the
Wilcoxes actually viewed. The defense elected not to show these photos to Gina
Wilcox so she could identify the photo she viewed earlier. The photo book
Paredes reconstructed lacked about 10 photos shown in Sergeant Brown’s
photocopy, and it contained photos of four parolees not included in that
photocopy.
The trial court nonetheless denied defendant’s motion for sanctions for
failure to preserve the photo book in the precise format Gina Wilcox saw, finding
(1) the photo book would have contained no apparent exculpatory evidence, and
17
(2) Officer Paredes acted in good faith, though perhaps incompetently, in changing
the book’s photos. The court found that the best evidence of what the parolee
book looked like when Gina Wilcox saw it was the photocopy Sergeant Brown
made, noting that the only alteration to the book at that point was the substitution
of a more recent photo of defendant.
At trial, Gina Wilcox testified that she selected defendant’s photo from a
book of approximately 100 photos. Cruz Wilcox testified she picked defendant
from a subsequent live lineup. Both women identified defendant at trial as the
man standing near the Hailses’ truck.
Defendant claims the original parolee book was “material and favorable”
evidence essential to permit the defense to show the book was impermissibly
suggestive. But this argument is entirely speculative—defendant offers no actual
evidence of undue suggestiveness, and the trial court found none. The defense
had access to Sergeant Brown’s photocopy of the book, plus the three photos of
defendant that Gina Wilcox might have viewed, but defendant mounted no
suggestiveness claim. Although the defense might have used the original book,
the court found no bad faith involved in its alteration. Under the case law, the
destruction of evidence claim fails. (See, e.g., Arizona v. Youngblood, supra, 488
U.S. at pp. 57-58; People v. Roybal, supra, 19 Cal.4th at pp. 509-510.)
4. Failure to give instruction on destruction of evidence — Defendant
requested an instruction that would have allowed the jury to draw inferences more
favorable to the defense, based on the prosecution’s failure to preserve the
foregoing evidence. (See People v. Zapien (1993) 4 Cal.4th 929, 964.) As we
have held, however, that instruction need not be given where, as here, no bad faith
failure to preserve the evidence was shown. (People v. Farnam (2002) 28 Cal.4th
107, 167.)
18
We conclude that destruction of the trash bag, gel plates, and photo book
did not amount to a violation of defendant’s due process rights.
D. Denial of Motion to Exclude Pretrial and In-court Identifications
Defendant contends the court erred in denying his motions to exclude Gina
Wilcox’s, Cruz Wilcox’s, and Ruth Eyer’s pretrial and in-court identifications of
him. He claims that, by admitting such evidence, the trial court violated his
“rights to due process, to counsel, to the effective assistance of counsel, to
confrontation, and to a reliable determination of both guilt and penalty, in
violation of article I, sections 1, 7, 15, 16 and 17 of the California Constitution and
the Fourth, Sixth, Eight, and Fourteenth Amendments to the United States
Constitution.”
1. Identifications by Gina and Cruz Wilcox — As noted, after Gina Wilcox
selected defendant’s photo from a photo book, Cruz Wilcox picked defendant
from a live lineup, and both women identified him at trial as the man standing near
the Hailses’ truck.
a. Right to counsel — Defendant first argues that he was impermissibly
denied his right to counsel at the live lineup held on July 22, 1992. By that time,
Gina Wilcox had tentatively identified defendant. When Detective Madril
interviewed defendant on July 13, he admonished defendant pursuant to Miranda
v. Arizona (1966) 384 U.S. 436. Although defendant asked for counsel after
hearing his rights, none was appointed before the live lineup; evidently, the San
Bernardino County Public Defender’s office was taking no more special
circumstance cases.
By the time of the lineup, no criminal complaint had yet been filed against
defendant, and the evidence was in conflict as to whether a decision to file had
already been made when the lineup was held. Pyle, the local deputy district
19
attorney, indicated that the main office of the district attorney in San Bernardino
would decide whether to charge defendant with special circumstances. Pyle
testified that he wished to conduct the live lineup, interview more witnesses, and
perhaps view the blood test analysis before filing a complaint. Pyle noted that
because defendant faced a parole hold, he need not rush to file such a complaint.
Public Defender Bynum, however, recalled Pyle’s telling him a decision had been
made to charge defendant with murder, and the only uncertainty was whether
special circumstances would be alleged.
The homicide unit held the lineup on July 22, 1992, at the West Valley
Detention Center. The district attorney’s office was not involved in setting up the
lineup or in discussing whether defendant should have counsel present. Witness
Cruz Wilcox selected defendant as the man standing beside the Hailses’ truck. A
criminal complaint was filed later the same day.
The trial court denied defendant’s motion to suppress the lineup
identification for failure to appoint counsel for him. The court found that at the
time of the lineup, law enforcement officers were still investigating the case and
gathering evidence. The court relied on case law indicating that the right to
counsel does not attach until formal adversarial criminal proceedings are initiated.
Defendant acknowledges the general rule that the right to counsel attaches
only when judicial proceedings have commenced. (E.g., Brewer v. Williams
(1977) 430 U.S. 387, 398; People v. Johnson (1992) 3 Cal.4th 1183, 1223.) He
argues, however, that once suspicion had focused on him as the Hailses’ killer,
and he had asked for counsel, it was improper to hold a lineup without first
appointing counsel for him. In United States v. Wade (1967) 388 U.S. 218, 227,
the high court held that defendants are entitled to counsel at a postindictment
lineup to preserve their basic right to a fair trial. The Wade court recognized the
20
“grave potential for prejudice” inherent in any confrontation between the accused
and the victim or witnesses held for identification purposes. (Id. at pp. 236-237.)
Thereafter, in Kirby v. Illinois (1972) 406 U.S. 682, 689, 691 (Kirby), a
plurality of the United States Supreme Court reaffirmed that the right to counsel
does not attach until a judicial criminal proceeding such as an indictment is
initiated or a complaint is filed. In Kirby, the officers suspected the defendant and
an accomplice of robbery and, weeks before any charges were filed, brought them
to the police station for a “showup” with the robbery victim, who identified them
as the robbers. The dissenters in Kirby felt that the initiation of formal
proceedings was irrelevant to the question whether counsel is necessary at a
pretrial confrontation for identification purposes. (406 U.S. at p. 696 (dis. opn. of
Brennan, J.).)
Subsequent high court cases have confirmed the rule of the Kirby plurality.
(E.g., United States v. Gouveia (1984) 467 U.S. 180, 188, and cases cited [“The
view that the right to counsel does not attach until the initiation of adversary
judicial proceedings has been confirmed by this Court in cases subsequent to
Kirby”].)
Defendant observes that Kirby is factually distinguishable from the present
case, in that here defendant had been in custody on a parole hold for more than a
week before the lineup was held, and the investigation had already begun, whereas
in Kirby the showup at the police station was held the same day the defendant was
arrested, and he was not charged until many weeks later. (See Kirby, supra, 406
U.S. at pp. 684-685.) But nothing in Kirby or subsequent federal case law
indicates that these distinguishing facts would have made a difference in the
ultimate conclusion that, until formal charges were filed, counsel was not required
to be present at the lineup under the federal Constitution.
21
Accordingly, there was no violation of defendant’s right to counsel under
the federal Constitution.
The California Constitution does afford a suspect a right to counsel at a
preindictment lineup. (People v. Bustamante (1981) 30 Cal.3d 88, 102.)
However, the exclusionary rule set forth in Bustamante was “abrogated by the
passage of Proposition 8, an initiative adopted by the voters of this state on June 8,
1982. Among other provisions, Proposition 8 added section 28 to article I of the
state Constitution. That section abrogated judicial decisions requiring exclusion of
relevant evidence from criminal proceedings, except as compelled by the federal
Constitution or other statutes not implicated here. [Citation.] As defendant’s
crime occurred after the adoption of Proposition 8, the exclusionary rule[] of
Bustamante . . . ha[s] no application to this case.” (People v. Johnson, supra, 3
Cal.4th at pp. 1222-1223, fn. omitted.)
b. Identification procedures not unduly suggestive or unreliable —
Defendant maintains that the procedures used in obtaining the pretrial
identifications by Cruz and Gina Wilcox were unduly suggestive in several
respects, and that the resulting identifications were unreliable and therefore
inadmissible. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 989, and
cases cited.) The cases hold that despite an unduly suggestive identification
procedure, we may deem the identification reliable under the totality of the
circumstances, after we consider such factors as the witness’s opportunity to view
the suspect at the time of the offense, the witness’s degree of attention at that time,
the accuracy of the witness’s prior description, the level of certainty the witness
expressed when making the identification, and the lapse of time between the
offense and the identification. (Ibid.)
Defendant first maintains the identification procedures were unduly
suggestive. He observes that the Wilcoxes were permitted to observe and confer
22
with each other during the various identification procedures, including their
interview with the officers relating the suspect’s description, the assembly and
viewing of composite drawings of him, the review of the parolee book, and the
physical lineup itself. (See Gilbert v. California (1967) 388 U.S. 263.) Defendant
“assumes” that Gina and Cruz Wilcox conferred with each other before, during,
and after these procedures, but he cites no evidence of any actual conferring or
other influence these witnesses exerted on each other. The Attorney General notes
that, although Gina and Cruz Wilcox were together during the identification
procedures, Gina, but not Cruz, picked defendant’s picture from the parolee book,
and Cruz, but not Gina, positively selected defendant at the live lineup. (During
the lineup, Gina picked defendant and another man as possible matches.)
When first interviewed on July 12, Cruz Wilcox was unable to provide a
description of the man she had seen by the truck, yet at the live lineup on July 22,
she picked defendant. Defendant assumes Cruz’s identification resulted from her
hearing her daughter Gina’s description and viewing the composite drawings as
well as the photograph Gina selected from the parolee book on July 13. Defendant
also notes that most of the photos in the parolee book were of persons looking
nothing like him, and at the live lineup, he was much shorter than the other men.
Defendant cites cases holding that it would be impermissibly suggestive to hold a
lineup in which only the defendant fit the witnesses’ description. (Foster v.
California (1969) 394 U.S. 440, 442-443; People v. Caruso (1968) 68 Cal.2d 183,
187-188.)
The Attorney General, on the other hand, observes that, under the cases,
defendant has the burden of showing that the identification procedure was unduly
suggestive and unfair “as a demonstrable reality, not just speculation.” (E.g.,
People v. DeSantis (1992) 2 Cal.4th 1198, 1222 (DeSantis).) A due process
violation occurs only if the identification procedure is “so impermissibly
23
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384.)
We have held that an identification procedure is considered suggestive if it
“caused defendant to ‘stand out’ from the others in a way that would suggest the
witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367.) As
for defendant’s being the shortest man in the live lineup, the Attorney General
observes that the case law does not require that a lineup contain persons
resembling the defendant in appearance. (DeSantis, supra, 2 Cal.4th at p. 1224;
People v. Gordon (1990) 50 Cal.3d 1223, 1241, 1243; People v. Blair (1979) 25
Cal.3d 640, 661.) The trial court examined photos of the lineup participants and
other information regarding them. It found that defendant was “not significantly
shorter” than the other men in the lineup, that all were “white, male adults,
relatively similar in body build,” that no one “obviously stands out” in terms of
height and weight. The court concluded that these circumstances did not “even
come close to the kind of gross disparity that would require a suppression.”
Moreover, the fact that the defendant alone appeared in both a photo lineup and a
subsequent live lineup does not per se violate due process. (DeSantis, supra, 2
Cal.4th at p. 1224.)
We agree with the trial court that defendant has failed to show that the
various identification procedures were unduly suggestive. Accordingly, we need
not address the Attorney General’s alternative arguments that, assuming these
procedures were overly suggestive, the Wilcox’s identifications were reliable
under the totality of the circumstances (see People v. Cunningham, supra, 25
Cal.4th at p. 989), and any error in admitting the identifications was harmless.
2. Identification by Ruth Eyer — When first contacted by the officers, Ruth
Eyer described the man she met at the Hailses’ home as clean-cut or clean-shaven
and in his 20’s, but she doubted she could identify him because she had only seen
24
him briefly. At a live lineup on February 8, 1993, Eyer was unable to make a
positive identification. But immediately after the lineup, she told District Attorney
Bruins that she was not positive but could eliminate some of the men and wanted
to speak further with him about the lineup. Rather than discuss the matter with
others present, Bruins told her they would talk later. The next day, Eyer told
Bruins that she felt two of the men in the lineup (Nos. 4 and 6) were possibilities,
and that if forced to chose, she would select No. 6, who was defendant. At the
preliminary hearing, Eyer tentatively identified defendant as the man she had met
earlier.
Defendant now “infers” that some suggestive influence intervened between
the lineup and her remarks to Bruins on the next day. But Eyer testified at the
preliminary hearing that she discussed her identification with no other witnesses,
and the trial court, following a hearing, found no grounds for suppressing her
identification. As the trial court observed, Eyer’s hesitation and tentativeness in
identifying defendant might well have served as ammunition “to impeach” her
credibility, but no grounds exist for suppressing her identification of him. For all
the foregoing reasons, we agree.
E. Admission of Defendant’s Letter to his Landlord
Defendant contends the court erred in admitting the contents of a July 7,
1992, letter he wrote to his landlord apologizing for not yet finishing some work
he had promised. In the letter, defendant explained that he had been unemployed
and lacked the funds to finish the work, but that he was now employed and
working for the Hailses, whose phone number he relayed. The letter indicated that
defendant would be able to finish the work by the end of July. Defendant objected
to the letter and offered to, and eventually did, stipulate that he had a working
relationship with the Hailses on July 8 and several days before then. Nevertheless,
25
the court admitted the letter, finding it relevant to show that a relationship existed
between defendant and the victims, that he was going to be at their house, and that
he had a possible monetary motive to steal from them.
Defendant cites cases holding that evidence presented solely to show a
defendant’s poverty carries an risk of undue prejudice and accordingly is
inadmissible to prove a motive to commit robbery or theft. (E.g., People v. Koontz
(2002) 27 Cal.4th 1041, 1076; People v. Wilson (1992) 3 Cal.4th 926, 939.) But,
as the court noted, the letter here was relevant on several grounds. It showed
defendant worked for the Hailses and intended to do so in the future, thus
circumstantially placing him at the scene of the crime. It even supplied the
victims’ telephone number, suggesting, as the court found, that the recipient could
call him at their residence. Defendant’s offer to stipulate to part of what the letter
stated did not negate its relevance. The prosecution was entitled to prove these
relevant facts out of defendant’s own hand. (See People v. Scheid (1997) 16
Cal.4th 1, 16-17.) Moreover, the letter was not particularly prejudicial. It was not
evidence of poverty, but rather simply a statement that defendant had been
unemployed but was now gainfully employed. We see no abuse of discretion in
admitting the letter.
Moreover, any error was harmless. As noted, the letter was not particularly
prejudicial. Indeed, although it stated that defendant had been unemployed, it also
stated that he was no longer. The latter statement supported an argument that he
lacked a motive to rob the Hailses. Additionally, ample evidence other than the
letter implicated defendant in the Hailses’ murder, including his taking their truck
and driving in it on or about the date of the murders, his taking and selling their
stereo speakers, the missing employee notebook, defendant’s work record sheet
showing that he started working for them at 3:30 p.m. on July 9, found crumpled
on their living room floor, his latent palm prints on their truck, similar matching
26
prints found on the crumpled ledger sheet, and the bloodstained tennis shoes found
in his garage.
F. Joe Bryant’s Statement to Sergeant Allen
At the guilt phase of trial, the prosecution called Joe Bryant, the Hailses’
neighbor. He testified he last saw them on Thursday or Friday (July 9 or 10), but
he was not sure which day. The prosecutor asked Bryant whether he had told an
officer he had seen them on Friday, July 10, and Bryant replied he did not think
so, and if he did say that, he was mistaken. To impeach Bryant, defense counsel
then called Sergeant Brown, who related that Bryant told him he had last seen
Hubert Hails on Friday afternoon.
On rebuttal, the prosecution sought to call Sergeant Allen. Over defense
objection, as discussed below, the court admitted Allen’s testimony that he
interviewed Bryant on July 11, before Sergeant Brown had arrived, and that
Bryant told him he saw the Hailses either Thursday or Friday afternoon. The trial
court upheld Allen’s testimony on several grounds, including its being a prior
consistent statement (Evid. Code, § 791) that was used to rehabilitate Bryant.
Under Evidence Code section 791, subdivision (a), a witness’s prior consistent
statements are generally inadmissible to support his or her trial testimony unless
evidence of a prior inconsistent statement has already been introduced to impeach
that witness, and the consistent statement was made before the inconsistent one.
The exception applies here, as Bryant’s statement to Sergeant Brown was indeed
inconsistent with Bryant’s trial testimony, while Bryant’s earlier statement to
Sergeant Allen was entirely consistent with it.
Defendant first argues that Bryant was not impeached with a prior
inconsistent statement because his original testimony (last seeing the Hailses either
Thursday or Friday) was more in the nature of a failure of memory than an
27
assertion of fact subject to impeachment. (See People v. Green (1971) 3 Cal.3d
981, 988.) To the contrary, Bryant’s trial testimony was factual in nature, reciting
the words that he told an unidentified officer. Those words were sufficiently
factual to justify impeachment with proof of a prior inconsistent statement to
Sergeant Brown. And in turn, the supposed statement to Sergeant Brown was
sufficiently inconsistent with Bryant’s trial testimony to warrant introduction of
the prior consistent statement to Sergeant Allen.
Defendant also complains of the prosecution’s failure to disclose Sergeant
Allen’s testimony in a timely manner. During pretrial discovery, defendant was
provided with a report by Detective Madril relating Sergeant Allen’s information
that Bryant told the officers he had seen the victims either Thursday or Friday
afternoon. Sergeant Allen himself gave defendant no written report, because
evidently no such report existed. Defendant nonetheless asked the trial court to
impose discovery sanctions for failing to identify precisely the officer (Allen) to
whom Bryant gave this information. The court denied sanctions, finding that
Madril’s report adequately identified Allen as at least knowledgeable about
Bryant’s statement. Indeed, defense counsel interviewed Allen before trial,
evidently without discussing Bryant’s statement with him.
Defendant repeats his claim the prosecution withheld information regarding
the officer who spoke with Bryant, but the claim fails in light of the information
that was contained in Madril’s report. In any event, the defense suffered no
prejudice from the nondisclosure given Bryant’s trial testimony and the
impeachment of it by Sergeant Brown.
G. Prosecutor Misconduct — Closing Argument
Defendant contends the prosecutor, during closing argument, improperly
referred to facts not in evidence. We find no prejudicial misconduct.
28
1. Temperature chart — One of the issues at trial concerned the date on
which the Hailses were murdered, and, accordingly, the ambient temperature in
their house was relevant to show the possible rate of decomposition of their
bodies. Expert Batal testified regarding those temperatures, leading Pathologist
Root to conclude the Hailses were not killed as early as July 9. To challenge
Batal’s testimony, the prosecutor briefly showed the jury a chart that had not been
placed in evidence, which indicated that Batal had requested temperatures for the
year after the murders occurred.
On defendant’s objection, the court immediately admonished the jury to
disregard the chart, but it denied defendant’s mistrial motion. Defendant now
contends the chart was “highly prejudicial,” going to “the very heart” of the
defense, but the jury had already properly heard Batal explain the discrepancy in
dates, so it is unlikely the chart added anything to prejudice the defense. The trial
court admonished the jury to disregard the chart, and the record shows no
indication that the chart contained any prejudicial material, or even that the jurors
had time to review it. We find the prosecutor committed no prejudicial
misconduct, and the court did not err or abuse its discretion in denying a mistrial
on this ground.
2. Acceptance in scientific community of expert Johnson’s testing
methods— Defendant next contends the prosecutor improperly told the jury that
the scientific community accepted prosecution expert Johnson’s electrophoretic
testing methods, a matter defendant claims was not supported by the evidence.
The record shows that the prosecutor in closing arguments asked the jury
rhetorically why the defense had failed to call its own experts to challenge
Johnson’s testimony, and “tell you that the method he used in testing is not
accepted and was improper. The reason is because it is accepted in the scientific
community.”
29
Defendant argues that the court erred in overruling his objection based on
the prosecutor’s reference to facts not in evidence. The Attorney General
responds that the prosecutor was entitled to comment on the state of the evidence
and the absence of conflicting evidence (e.g., People v. Kaurish (1990) 52 Cal.3d
648, 680) and to draw permissible inferences from the record (People v. Raley
(1992) 2 Cal.4th 870, 917). From the evidence that Johnson, whose scientific
credentials were unchallenged, presented, and from defendant’s failure to present
opposing expert testimony, the prosecutor reasonably could argue that Johnson’s
method was accepted in the scientific community. Moreover, we find no
prejudice. The prosecutor’s remark was brief and not repeated during his
argument. The jurors were told to base their verdict on the evidence at trial and
that the statements of counsel are not evidence.
3. Deteriorating bloodstains — Defendant next claims the prosecutor
improperly argued that the blood on the tennis shoes found in defendant’s garage
must have come recently from the Hailses’ house because, otherwise, the blood
would have deteriorated over time and become untestable. In his closing
arguments, the prosecutor reviewed expert Johnson’s testimony that he was
uncertain when the blood got on the tennis shoes, and then asked rhetorically why
anyone would throw away a good pair of shoes, answering, “[b]ecause they had
blood [on] them from the Hails’s [sic] house.” The prosecutor then reminded the
jurors that Johnson had testified that blood deteriorates from heat and moisture,
and he argued that if the blood had been on the shoes for a long time, it would
have deteriorated. The trial court overruled defendant’s objection that the
argument relied on facts not in evidence.
Johnson testified as an expert that moisture and heat cause blood to
deteriorate. The prosecutor’s argument was a permissible inference from that
evidence.
30
H. Jury Misconduct
Defendant cites various instances of supposed jury misconduct. We find no
such misconduct.
1. News article about prosecutor’s judicial campaign — During the guilt
phase of trial, Juror H. brought to the courtroom a local news article that revealed
that Prosecutor Kenneth Barr was running for judicial election, had been a deputy
district attorney since 1985, was a senior member of the career prosecution unit of
his office, and had criticized his judicial opponent for his informal style. Nothing
in the article mentioned defendant’s trial or other murder or capital cases.
After questioning Juror H. briefly, the court excused him but denied
defendant’s motion for mistrial. The court questioned the other jurors, found that
only one other juror had read the entire article, and noted that all jurors indicated
they could remain fair and impartial toward defendant. The court individually
admonished each remaining juror not to discuss the article or anything Juror H.
may have said or done. Defendant now argues that the jurors’ exposure to the
article constituted misconduct requiring reversal. (See e.g., People v. Pinholster
(1992) 1 Cal.4th 865, 923-928.) We find no prejudicial misconduct. The article
contained no inherently biased material, and reading it would not have made any
actual bias substantially likely. (See In re Carpenter (1995) 9 Cal.4th 634, 653-
654.) Learning that the prosecutor was seeking a judicial position or was involved
with the career prosecution unit of his office was not likely to prejudice the jurors
against defendant.
2. News article reporting jury’s guilty verdict — Following the jury’s
guilty verdict in this case, a news article reported that defendant had been on
parole when the offenses were committed, that he was arrested after making
inconsistent statements to police, and that the prosecutor was urging the death
penalty because defendant bludgeoned two elderly people to death with a hammer
31
in order to take their property. Defendant moved for a separate penalty phase jury
as result of this media coverage. The trial court denied the motion without
prejudice as premature, observing that the main item of concern was the report that
defendant was on parole (see People v. Holloway (1990) 50 Cal.3d 1098, 1111),
but stating that the jurors soon would learn of defendant’s prior burglary
conviction.
Nonetheless, the court agreed to ask the jurors through questionnaires about
their exposure to the article. Only three jurors had noticed it, and none had read
past the report that defendant had been found guilty. None of the three jurors
stated they had read about defendant’s parole, and all agreed they would base their
penalty verdict on the evidence and not on anything they read in the article.
Accordingly, the court denied defendant’s motion for mistrial or to excuse these
jurors.
Defendant argues that the news article exposed the jurors to defendant’s
parole status, to the fact (evidently not divulged during the guilt phase) that
defendant used a hammer to kill his victims, and to the prosecutor’s personal
opinion regarding the suitability of a death verdict for defendant. To the contrary,
we cannot assume on this record that any juror learned any of that information
from the article, which the court had carefully admonished the jurors to avoid.
(See, e.g., People v. Pinholster, supra, 1 Cal.4th at p. 927; People v. Holloway,
supra, 50 Cal.3d at p. 1112.) We find no prejudicial misconduct.
I. Instructions Diluting Prosecution’s Reasonable Doubt Proof Burden
The court instructed the jury using the standard instructions on
circumstantial evidence (CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1). Defendant
claims these instructions had the effect of diluting or undermining the
prosecution’s burden of proving defendant’s guilt beyond a reasonable doubt. We
32
have rejected the identical argument (see People v. Crittenden (1994) 9 Cal.4th 83,
142-144), and defendant gives us no good reason to reconsider that decision now.
The court also gave various other standard instructions on such matters as
the respective duties of judge and jury (CALJIC No. 1.00), discrepancies in
testimony (CALJIC No. 2.21.1), weighing conflicting testimony (CALJIC No.
2.22), sufficiency of evidence of one witness (CALJIC No. 2.27), and motive
(CALJIC No. 2.51). Defendant claims these instructions also diluted the
reasonable doubt standard, but, again, we have rejected similar claims on the basis
that the court’s instructions on evaluating evidence and testimony must be read in
context with its other instructions on the prosecution’s burden of proving its case
beyond a reasonable doubt. (E.g., People v. Maury (2003) 30 Cal.4th 342, 429;
People v. Snow (2003) 30 Cal.4th 43, 97; People v. Frye (1998) 18 Cal.4th 894,
958; People v. Crittenden, supra, 9 Cal.4th at p. 144.)
J. Instruction on Motive
The court instructed the jury (CALJIC No. 2.51) that although a
defendant’s motive is not an element of the crime charged and thus need not be
proved, the jury could consider motive or lack of it as a circumstance in the case,
“[p]resence of motive may tend to establish guilt,” and lack of motive may show
innocence. Defendant claims this instruction allowed the jury to find him guilty if
he had a motive to commit the crimes charged, and thus shifted the proof burden
away from the prosecution. We have rejected this argument in prior cases, as the
motive instruction clearly states that motive alone is insufficient to establish guilt.
(See, e.g., People v. Snow, supra, 30 Cal.4th at pp. 97-98; People v. Frye, supra,
18 Cal.4th at p. 958.)
33
III. PENALTY PHASE ISSUES
A. Prosecution’s Pretrial Offer
The court refused to admit, as potentially mitigating evidence, that fact that
the prosecutor, prior to trial, had offered defendant a sentence of life imprisonment
without possibility of parole in exchange for a guilty plea. Our prior cases have
rejected similar claims on the basis that rejected plea bargains such as this do not
bear on the defendant’s character, his prior record, or the circumstances of the
crime, and therefore would not constitute proper mitigating evidence. (See People
v. Zapien, supra, 4 Cal.4th at pp. 988-990; People v. Fauber (1992) 2 Cal.4th 792,
857.) The trial court in this case also observed that pretrial offers of plea bargains
in capital cases can be motivated by many factors (e.g., expenditures of time,
effort, and resources) unrelated to the appropriateness of the death penalty in a
particular case. We find no error.
B. Defendant’s Proposed Penalty Instructions
Defendant proposed several special instructions to cover various aspects of
his defense. Defendant cites case law requiring the court to instruct on the defense
theories of the case, either where the defendant clearly relies on such defenses, or
where substantial evidence exists to support them. (See People v. Hall (1980) 28
Cal.3d 143, 159; People v. Stewart (1976) 16 Cal.3d 133, 140.) The Attorney
General observes, however, that the court has no duty to give argumentative,
duplicative, incomplete, or erroneous instructions. (E.g., People v. Benson (1990)
52 Cal.3d 754, 805, fn. 12; People v. Wright (1988) 45 Cal.3d 1126, 1135-1137;
People v. Lucero (1988) 44 Cal.3d 1006, 1021.) As will appear, each of the
proposed instructions at issue falls into one or more of these categories.
1. Death as a less severe punishment than life imprisonment without
parole— Defendant proposed to instruct the jury that they would violate their
34
duties if they viewed the death penalty as a less severe penalty than life
imprisonment without parole. Defendant contends this instruction would have
clarified to the jurors that they could not properly consider death a more merciful
option. But other sentencing instructions (see, e.g., CALJIC No. 8.88), coupled
with the jurors’ own common sense, clearly indicated that death was always the
ultimate punishment. The proposed instruction was argumentative, duplicative,
and unnecessary.
2. Considering the first degree murder and special circumstance findings
— Defendant proposed to instruct the jurors that they could not consider the guilty
verdict and special circumstance findings as aggravating factors. The court
properly refused the proposed instructions as unnecessary in light of the other
instructions, and as inconsistent with CALJIC No. 8.85, which allows the jurors to
consider all the evidence in the case, including the circumstances of the crime and
the existence of any special circumstances found true. (See People v. Siripongs
(1988) 45 Cal.3d 548, 581, fn. 11.) We observed in Siripongs that, although the
jury could not properly impose the death penalty merely because the defendant
had committed a murder, the jury was not instructed it could consider the crime
itself, but only the circumstances surrounding the crime, as an aggravating
circumstance. (Ibid.)
Defendant also proposed an instruction barring the jurors from considering
as an aggravating factor any fact used in finding defendant guilty of first degree
murder, unless that fact establishes something in addition to an element of the
crime. The court properly refused this instruction as unnecessary in light of an
instruction actually given, which told the jurors not to consider the same facts
more than once in determining the presence of aggravating factors. We find no
error.
35
3. Defining mitigating circumstances— Defendant proposed several
instructions on the subject of mitigating evidence. His proposed instruction No.
12 explained that mitigating evidence could include the circumstances surrounding
the defendant’s crime, the defendant’s background and character, and any other
circumstance that extenuated the gravity of the crime, even though not a legal
excuse. The proposed instruction then gave as examples of mitigating evidence
the defendant’s lack of sophistication or professionalism, that the defendant did
not threaten witnesses, try to escape, or use force to avoid arrest, and that
defendant committed several crimes within the same time period, indicating “a
single period of aberrant behavior.”
Defendant’s proposed instruction No. 14 included within the category of
mitigating factors any sympathetic or compassionate aspect of the defendant’s
background, character, or social, psychological, or medical history, whether or not
related to the crimes. The proposed instruction then gave as examples such factors
as whether the defendant’s psychological growth and development affected his
adult personality, whether he suffered from a low sense of self esteem, learning
disabilities, low intellect, or brain dysfunction, whether he was subjected to
cruelty as a child, and whether his family upbringing contributed to his criminal
conduct.
Defendant’s proposed instruction No. 16 simply recited evidence showing
defendant was physically abused as a child and was not treated for his
hyperactivity or dental problems and that these may be considered mitigating
factors.
As the trial court ruled, all these instructions were flawed. These were not
legitimate pinpoint instructions focusing on the defense’s legal theories; they were
instead improper attempts to highlight particular items of evidence. (See, e.g.,
People v. Catlin (2001) 26 Cal.4th 81, 172-174; People v. Earp (1999) 20 Cal.4th
36
826, 886; People v. Noguera (1992) 4 Cal.4th 599, 648.) The court had no
obligation to give an instruction containing only a partial list of mitigating factors.
(People v. Cox (1991) 53 Cal.3d 618, 678, fn. 21.) The standard instructions the
court gave here, including modified CALJIC No. 8.85, factor (i), adequately
conveyed the full range of mitigating evidence to be considered by the jury.
(People v. Catlin, supra, 26 Cal.4th at pp. 173-174.)
4. One mitigating factor sufficient — Defendant proposed to instruct the
jury that one mitigating factor alone could justify a verdict of life imprisonment
without parole. As we held in prior cases, the court correctly refused the
instruction. (People v. Breaux (1991) 1 Cal.4th 281, 316-317; People v. Williams
(1988) 45 Cal.3d 1268, 1322.) The other standard instructions (e.g., modified
CALJIC No. 8.85, factor (i); modified CALJIC No. 8.88) amply covered the point.
(See, e.g., People v. Brown (2003) 31 Cal.4th 518, 569-570.) Moreover, the
instruction was misleading, because it wrongly implied that at least one mitigating
factor was needed to justify a sentence of life imprisonment without parole. (See
People v. Johnson (1993) 6 Cal.4th 1, 52.)
5. No unanimity required for mitigating factor — Defendant requested an
instruction telling the jurors they could decide for themselves individually whether
mitigating factors existed, and that unanimity was not required. We have
previously considered and rejected this argument, reasoning that the standard
instructions (CALJIC No. 8.88, which was also given here) adequately covered
the point. (People v. Smith (2003) 30 Cal.4th 581, 639; People v. Breaux, supra, 1
Cal.4th at pp. 314-315.) The Attorney General observes that defendant declined
the court’s offer to instruct that no requirement exists for unanimity “on any
particular aggravating circumstance or mitigating circumstance.” (Italics added.)
37
C. Constitutionality of Statutes and Instructions on Burden of Proof at
Penalty Phase
Defendant claims the state’s statutes and jury instructions regarding the
prosecution’s burden of proof are constitutionally inadequate. He complains the
court failed to instruct that the prosecution has the burden of proving beyond a
reasonable doubt that (1) particular aggravating factors exist, (2) these aggravating
factors outweigh the mitigating ones, and (3) death is the appropriate penalty. Our
case law has rejected this argument on the basis that the jury’s penalty selection
process is a moral and normative one for which assignment of a proof burden
would be inappropriate. (E.g., People v. Welch (1999) 20 Cal.4th 701, 767;
People v. Holt (1997) 15 Cal.4th 619, 683-684.) Similarly, our case law has
rejected the argument, which defendant also raises, that the prosecution should
shoulder a burden of persuasion regarding the penalty determination. (People v.
Combs (2004) 34 Cal.4th 821, 868; People v. Lenart (2004) 32 Cal.4th 1107,
1135-1136.)
We do not agree that the high court decisions in Ring v. Arizona (2002) 536
U.S. 584 and Apprendi v. New Jersey (2002) 530 U.S. 466 have altered the
foregoing analysis. (People v. Monterroso (2004) 34 Cal.4th 743, 796; People v.
Prieto (2003) 30 Cal.4th 226, 262-264.)
Defendant likewise claims the sentencing instructions were constitutionally
flawed because they failed to require that the jurors agree unanimously on the
aggravating factors on which they relied to reach a death verdict. Again, we have
repeatedly rejected the argument. (People v. Panah (2005) 35 Cal.4th 395, 499;
People v. Combs, supra, 34 Cal.4th at p. 868.)
D. Overbreadth and Vagueness of Section 190.3, Subdivision (a)
Defendant next argues that section 190.3, subdivision (a), which allows the
jury to consider the circumstances of the crime as a possible aggravating factor, is
38
so broad and ill-defined that it encourages the jurors to impose the death penalty
arbitrarily and capriciously. Defendant gives examples from other California
cases showing prosecutors have relied on a wide range of facts in arguing that the
circumstances of the crime warrant being treated as an aggravating factor. But the
case law rejects the vagueness and overbreadth arguments. (See Tuilaepa v.
California (1994) 512 U.S. 967, 975-976; People v. Panah, supra, 35 Cal.4th at p.
499; People v. Carpenter, supra, 21 Cal.4th at p. 1064.) As stated in Tuilaepa,
“The circumstance of the crime are a traditional subject for consideration by the
sentencer, and an instruction to consider the circumstances is neither vague nor
otherwise improper under our Eighth Amendment jurisprudence.” (512 U.S. at p.
976.)
E. Failure to Delete Inapplicable Sentencing Factors
Defendant complains the court’s failed to delete from the jury instruction
based on CALJIC No. 8.85 all listed aggravating factors that did not apply in the
case. We have repeatedly rejected this argument. (E.g., People v. Panah, supra,
35 Cal.4th at p. 499; People v. Carpenter, supra, 21 Cal.4th at p. 1064.)
F. Inclusion of Restrictive Adjectives in List of Potential Mitigating
Factors
Defendant argues the court erred in giving the standard instructions that use
such adjectives as “extreme” and “substantial” in listing the various statutory
mitigating sentencing factors. We have repeatedly rejected this argument. (E.g.,
People v. Panah, supra, 35 Cal.4th at p. 500; People v. Anderson (2001) 25
Cal.4th 543, 601.)
G. Lack of Written Findings Regarding Aggravating Circumstances
Defendant claims the state’s death penalty law and instructions are invalid
because they fail to require the jurors to make written findings about the
39
aggravating factors that justified their imposing the death penalty in this case. We
have repeatedly rejected this argument. (E.g., People v. Panah, supra, 35 Cal.4th
at p. 499; People v. Fauber, supra, 2 Cal.4th at p. 859.)
H. Equal Protection Violation Stemming from Denial of Procedural
Protections to Capital Defendants
Defendant next contends that, even if the absence of the foregoing
procedural protections does not render the state’s death penalty procedures
unconstitutional, providing some of those protections (e.g., disparate sentence
review, written findings, unanimous jury agreement on aggravating factors or
commission of violent crimes) to noncapital defendants denies equal protection to
those facing the death penalty. We have rejected similar arguments in prior cases.
(E.g., People v. Brown (2004) 33 Cal.4th 382, 402 [disparate sentence review];
People v. Jenkins (2000) 22 Cal.4th 900, 1053 [same].)
I. Constitutionality of Instructions Defining Jury’s Sentencing
Discretion and the Deliberative Process
Defendant contends that the standard jury instruction (based on CALJIC
No. 8.88) defining the scope of the jury’s sentencing discretion and the nature of
its deliberative process are unconstitutional for various reasons. As will appear,
we have repeatedly rejected these arguments in prior cases.
1. Reference to “substantial” aggravating circumstances — Defendant
argues that the instruction (CALJIC No. 8.88) impermissibly asked the jury to
decide whether the aggravating circumstances were so substantial in comparison
with mitigating ones as to justify the death penalty. Defendant believes the term
substantial is too vague to give adequate guidance to the jurors, but our case law
disagrees. (E.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 124; People
v. Breaux, supra, 1 Cal.4th at pp. 315-316.)
40
2. Failure to instruct jury to determine whether death is the appropriate
penalty — Defendant argues that the court’s sentencing instruction based on
CALJIC No. 8.88 failed to tell the jurors that they must determine whether death
is an appropriate penalty; rather, it simply called on them to weigh the various
factors and decide whether death was “warranted.” We rejected a similar
argument on the ground that the language at issue here “clearly admonishes the
jury to determine whether the balance of aggravation and mitigation makes death
the appropriate penalty.” (People v. Arias (1996) 13 Cal.4th 92, 170-171.)
3. Failure to instruct the jury to return a verdict of life imprisonment if
mitigating factors outweigh aggravating ones — Defendant next contends that the
instruction based on CALJIC No. 8.88 failed to tell the jurors they were required
to impose a verdict of life imprisonment without parole if mitigating factors
outweighed aggravating ones. We have repeatedly rejected this argument. (E.g.,
People v. Coffman and Marlow, supra, 34 Cal.4th at p. 124; People v. Kipp (1998)
18 Cal.4th 349, 381.)
4. Failure to inform jury that defendant had no burden to persuade the
jurors that death was not an appropriate penalty — Defendant claims that the
instruction based on CALJIC No. 8.88 was constitutionally inadequate because it
failed to instruct the jury that he had no burden to persuade them that the death
penalty was inappropriate in this case. Again, we have rejected the contention.
(E.g., People v. Coffman and Marlow, supra, 34 Cal.4th at p. 124.) Implicit in the
sentencing instructions is that the determination of penalty is “essentially moral
and normative [citation], and therefore . . . there is no burden of proof or burden of
persuasion. [Citation.]” (People v. Hayes (1990) 52 Cal.3d 577, 643.)
41
J. Failure to Provide Intercase Proportionality Review
Defendant next argues that the failure of the state’s death penalty statutes to
provide intercase proportionality review violates his constitutional rights to due
process and equal protection. We have repeatedly rejected the claim. (E.g.,
People v. Morrison (2004) 34 Cal.4th 698, 730; People v. Panah, supra, 35
Cal.4th at p. 499; People v. Cox, supra, 53 Cal.3d at p. 691; see also Pulley v.
Harris (1984) 465 U.S. 37, 50-51.)
K. Asserted Violation of International Law
Defendant next claims the state’s death penalty scheme violates principles
of international law, given the various “improprieties” in the capital sentencing
process. As we have seen, the asserted improprieties do not exist. In any event,
we have repeatedly rejected the claim that principles of international law would
prohibit carrying out the death penalty in this state. (E.g., People v. Brown, supra,
33 Cal.4th at pp. 403-404; People v. Hillhouse (2002) 27 Cal.4th 469, 511; People
v. Jenkins, supra, 22 Cal.4th at p. 1055.)
L. Cumulative Effect of Errors
Defendant contends that the cumulative effect of the various asserted errors
in this case warrants reversal, yet, as we have seen, no errors occurred here.
IV. CONCLUSION
The judgment is affirmed.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
42
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.
S042659Date Filed: May 17, 2007
__________________________________________________________________________________
Court:
SuperiorCounty: San Bernardino
Judge: Michael A. Smith
__________________________________________________________________________________
Attorneys for Appellant:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Robin Kallman,Deputy State Public Defender, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant AttorneyGeneral, Gary W. Schons, Assistant Attorney General, William M. Wood and Arlene Aquintey Sevidal,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Robin KallmanDeputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Arlene Aquintey Sevidal
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2276
Opinion Information
| Date: | Docket Number: |
| Thu, 05/17/2007 | S042659 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Arlene Aquintey Sevidal, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Cook, Joseph Lloyd (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sf Robin Kallman, Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| 3 | Cook, Joseph Lloyd (Appellant) San Quentin State Prison Represented by Christina Arlene Spaulding Office of the State Public Defender 221 Main St., 10th Floor San Francisco, CA |
| 4 | Cook, Joseph Lloyd (Appellant) San Quentin State Prison Represented by Sara Theiss Office of the State Public Defender 221 Main St., 10th Floor San Francisco, CA |
| Disposition | |
| May 17 2007 | Opinion: Affirmed |
| Dockets | |
| Sep 16 1994 | Judgment of death |
| Oct 12 1994 | Filed certified copy of Judgment of Death Rendered 9-16-94. |
| Feb 1 1999 | Filed: Applic. of Applt for appointment of Counsel. |
| Feb 2 1999 | Order appointing State Public Defender filed To represent Applt for the direct Appeal. |
| Feb 22 1999 | Received: Notice from Superior Court, dated 2-16-99, that Record Was mailed to Applt's Counsel that Date. |
| May 18 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 20 1999 | Extension of Time application Granted To 7-16-99 To request Record correction |
| Jul 15 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 20 1999 | Extension of Time application Granted To 9-14-99 To request Record correction |
| Sep 13 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Sep 14 1999 | Extension of Time application Granted To 11/15/99 To Applt To request Corr. of the Record. |
| Sep 16 1999 | Counsel appointment order filed Upon request of Applt for appointment of Counsel, B. Kay Shafer Is Hereby appointed to represent Applt Joseph Lloyd Cook for Habeas Corpus/ Executive Clemency Proceedings Related to the Above Automatic Appeal now Pending in this Court. |
| Nov 10 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 17 1999 | Compensation awarded counsel |
| Nov 18 1999 | Extension of Time application Granted To 1/14/2000 To Applt To request Corr. of the Record. |
| Jan 5 2000 | Compensation awarded counsel Atty Shafer |
| Jan 12 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Jan 18 2000 | Extension of Time application Granted To 3/14/2000 To Applt To request Corr. of the Record. no further Extensions of time Are Contemplated. |
| Feb 16 2000 | Compensation awarded counsel Atty Shafer |
| Mar 9 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Mar 17 2000 | Extension of Time application Granted To 5/15/2000 To Applt To request Corr. of the Record. no further Eot will be Granted. |
| Apr 2 2000 | Compensation awarded counsel Atty Shafer |
| Apr 10 2000 | Compensation awarded counsel Atty Shafer |
| May 11 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| May 18 2000 | Extension of Time application Granted To 6/29/2000 To Applt To request Corr. of the Record. Eot granted in light of the representation Made by Counsel. no further Eot will be Granted. |
| Jul 12 2000 | Compensation awarded counsel Atty Shafer |
| Aug 1 2000 | Received copy of appellant's record correction motion applt's motion/order augmenting correcting, settling record on appeal. (90 pp.) |
| Aug 1 2000 | Received: copy of applt's motion to correct, augment and settle the record (91 pp.) |
| Aug 9 2000 | Compensation awarded counsel Atty Shafer |
| Aug 31 2000 | Counsel's status report received (confidential) from State P.D. |
| Oct 20 2000 | Counsel's status report received (confidential) from atty Shafer. |
| Nov 1 2000 | Compensation awarded counsel Atty Shafer |
| Nov 3 2000 | Counsel's status report received (confidential) from State P.D. |
| Dec 18 2000 | Counsel's status report received (confidential) atty Shafer. |
| Jan 10 2001 | Compensation awarded counsel Atty Shafer |
| Jan 10 2001 | Compensation awarded counsel Atty Shafer |
| Jan 16 2001 | Counsel's status report received (confidential) from State P.D. |
| Mar 14 2001 | Counsel's status report received (confidential) from State P.D. |
| Mar 28 2001 | Compensation awarded counsel Atty Shafer |
| Apr 2 2001 | Counsel's status report received (confidential) from atty Shafer. |
| May 3 2001 | Compensation awarded counsel Atty Shafer |
| May 15 2001 | Counsel's status report received (confidential) from State P.D. |
| Jun 13 2001 | Compensation awarded counsel Atty Shafer |
| Jul 16 2001 | Counsel's status report received (confidential) from State P.D. |
| Jul 24 2001 | Counsel's status report received (confidential) from atty Shafer. |
| Sep 14 2001 | Counsel's status report received (confidential) from State P.D. |
| Sep 26 2001 | Compensation awarded counsel Atty Shafer |
| Oct 26 2001 | Compensation awarded counsel Atty Shafer |
| Nov 20 2001 | Counsel's status report received (confidential) from State P.D. |
| Nov 28 2001 | Compensation awarded counsel Atty Shafer |
| Jan 18 2002 | Counsel's status report received (confidential) from State P.D. |
| Mar 6 2002 | Counsel's status report received (confidential) from atty Shafer, dated 12-10-2001. |
| Mar 6 2002 | Counsel's status report received (confidential) from atty Shafer, dated 3-3-2002. |
| Mar 19 2002 | Counsel's status report received (confidential) from State P.D. |
| May 20 2002 | Counsel's status report received (confidential) from atty Shafer. |
| May 20 2002 | Counsel's status report received (confidential) from State P.D. |
| Jun 6 2002 | Counsel's status report received (confidential) from atty Shafer. |
| Jul 19 2002 | Counsel's status report received (confidential) from State P.D. |
| Aug 15 2002 | Counsel's status report received (confidential) from atty Shafer. |
| Sep 5 2002 | Motion filed (in non-AA proceeding) Appellant's request for reversal of certain rulings of the trial court pertaining to record correction. |
| Sep 17 2002 | Counsel's status report received (confidential) from State P.D. |
| Sep 17 2002 | Note: Reporter's transcript index and chronological index to clerk's transcript supplemental A returned to trial court for the preparation of an alphabetical index. |
| Oct 18 2002 | Record on appeal filed Clerk's transcript 37 volumes (9106 pp.) and reporter's transcript 42 volumes (6112 pp.), including material under seal. Clerk's transcript includes 3607 pp. of juror questionnaires. |
| Oct 18 2002 | Appellant's opening brief letter sent, due: November 27, 2002. |
| Oct 25 2002 | Counsel's status report received (confidential) from attorney Shafer. |
| Oct 30 2002 | Record ordered unsealed Appellant's "Request for Reversal of Certain Rulings of the Trial Court Pertaining to Record Correction," filed on September 5, 2002, is granted in part and denied in part, as follows: With respect to the request to unseal the reporter's transcript of certain oral proceedings at an in camera hearing conducted on March 23, 1994, the request is granted. The clerk is directed to unseal the original of the reporter's transcript of the oral proceedings at the March 23, 1994, in camera hearing, and to provide appellant and respondent each with a copy. In all other respects, the request is denied. |
| Nov 18 2002 | Counsel's status report received (confidential) from State P.D. |
| Nov 27 2002 | Request for extension of time filed To file appellant's opening brief. (1st request) |
| Dec 6 2002 | Extension of time granted To 1/27/2003 to file appellant's opening brief. |
| Jan 17 2003 | Counsel's status report received (confidential) from State P.D. |
| Jan 22 2003 | Request for extension of time filed to file appellan'ts opening brief. (2nd request) |
| Jan 23 2003 | Extension of time granted to 3/28/2003 to file appellant's opening brief. |
| Feb 13 2003 | Compensation awarded counsel Atty Shafer |
| Feb 21 2003 | Counsel's status report received (confidential) from atty Shafer. |
| Mar 18 2003 | Counsel's status report received (confidential) from State P.D. |
| Mar 26 2003 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Mar 28 2003 | Extension of time granted to 5/27/2003 to file appellant's opening brief. |
| May 13 2003 | Supplemental record/transcript filed Clerk's transcript 1 volume (45 pp.) and reporter's transcript 1 volume (6 pp. - hearing date 5/2/2003). |
| May 21 2003 | Counsel's status report received (confidential) from State P.D. |
| May 23 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| May 28 2003 | Extension of time granted to 7/28/2003 to file appellant's opening brief. |
| Jul 10 2003 | Counsel's status report received (confidential) from atty Shafer. |
| Jul 22 2003 | Counsel's status report received (confidential) from State P.D. |
| Jul 24 2003 | Request for extension of time filed to file AOB. (5th request) |
| Jul 29 2003 | Extension of time granted to 9-26-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Sep 11 2003 | Compensation awarded counsel Atty Shafer |
| Sep 17 2003 | Counsel's status report received (confidential) from State P.D. |
| Sep 17 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Sep 19 2003 | Extension of time granted to 11/25/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 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 17 2003 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Nov 17 2003 | Counsel's status report received (confidential) from State P.D. |
| Nov 21 2003 | Extension of time granted to 1/26/2004 to file appellant' s opening brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Robin Kallman's representation that she anticipates filing that brief by 3/30/2004. |
| Jan 16 2004 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Jan 16 2004 | Counsel's status report received (confidential) from State P.D. |
| Jan 26 2004 | Extension of time granted to 3/26/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy State Public Robin Kallman's representation that she anticipates filing that brief by 4/30/2004. |
| Mar 17 2004 | Counsel's status report received (confidential) from State P.D. |
| Mar 17 2004 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Mar 19 2004 | Extension of time granted to 6/1/2004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Robin Kallman's representation that she anticipates filing that brief by 5/30/2004. |
| Mar 23 2004 | Letter sent to: |
| Apr 7 2004 | Counsel's status report received (confidential) from atty Shafer. |
| May 18 2004 | Counsel's status report received (confidential) from State P.D. |
| May 25 2004 | Request for extension of time filed to file appellant's opening brief. (10th request) |
| Jun 4 2004 | Extension of time granted to 7/28/2004 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Robin Kallman's representation that she anticipates filing that brief by 7/28/2004. After that date, no further extension will be granted. |
| Jul 19 2004 | Counsel's status report received (confidential) from State P.D. |
| Jul 22 2004 | Request for extension of time filed to file AOB. (11th request) |
| Jul 30 2004 | Extension of time granted to 8-17-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon Deputy SPD Robin Kallman's representation that she anticipates filing the brief by 8-17-2004. |
| Aug 17 2004 | Appellant's opening brief filed (88,250 words - 316 pp.) |
| Aug 18 2004 | Filed: Amended table of authorities for appellant's opening brief. |
| Sep 13 2004 | Request for extension of time filed to file respondent's brief. (1st request) |
| Sep 15 2004 | Extension of time granted to 11/15/2004 to file respondent's brief. |
| Sep 20 2004 | Change of contact information filed for: appointed habeas corpus counsel B. Kay Shafer. |
| Sep 20 2004 | Counsel's status report received (confidential) from atty B. Kay Shafer. |
| Nov 9 2004 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Nov 16 2004 | Extension of time granted to 1/14/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Arlene Sevidal's representation that she anticipates filing that brief by 3/2005. |
| Jan 10 2005 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Jan 14 2005 | Extension of time granted to 3/15/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Arlene A. Sevidal's representation that she anticipates filing that brief by 5/14/2005. |
| Mar 10 2005 | Request for extension of time filed to fle respondent's brief. (4th request) |
| Mar 17 2005 | Extension of time granted to 5/16/2005 to file respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Arlene A. Sevidal's representation that she anticipates filing that brief by 5/14/2005. |
| Apr 25 2005 | Counsel's status report received (confidential) from atty Shafer. |
| May 3 2005 | Request for extension of time filed to file respondent's brief. (5th request) |
| May 10 2005 | Extension of time granted to 6/30/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Arlene A. Sevidal's representation that she anticipates filing that brief by 6/30/2005. After that date, no further extension will be granted. |
| Jun 29 2005 | Respondent's brief filed (48,750 words; 160 pp.) |
| Jul 14 2005 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Jul 19 2005 | Extension of time granted to 9/19/2005 to file appellant's reply brief. |
| Sep 14 2005 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Sep 20 2005 | Extension of time granted to 11/18/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted Deputy State Public Defender Robin Kallman's representation that she anticipates filing that brief by 2/19/2006. |
| Nov 7 2005 | Counsel's status report received (confidential) from atty Shafer. |
| Nov 10 2005 | Request for extension of time filed to file reply brief. (3rd request) |
| Nov 17 2005 | Extension of time granted to 1/17/2006 to file the reply brief . After that date, only one further extension totaling about 35 additional days will be granted. Extension is granted based upon Deputy State Publice Defender Robin Kallman's representatio that she anticipates filing that brief by February 21, 2006. |
| Jan 10 2006 | Request for extension of time filed to file reply brief. (4th request) |
| Jan 12 2006 | Extension of time granted to 3/20/2006 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Robin Kallman's representation that she anticipates filing that brief by 5/19/2006. |
| Mar 14 2006 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Mar 16 2006 | Extension of time granted to May 19, 2006 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Robin Kallman's representation that she anticipates filing that brief by May 19, 2006. After that date, no further extension will be granted. |
| Apr 13 2006 | Counsel's status report received (confidential) from atty Shafer. |
| May 5 2006 | Request for extension of time filed to file the appellant's reply brief. (6th request) |
| May 11 2006 | Extension of time granted to June 19, 2006 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Robin Kallman's representation that she anticipates filing that brief by June 19, 2006. |
| Jun 19 2006 | Appellant's reply brief filed (29,729 words; 111 pp.) |
| Jul 18 2006 | Counsel's status report received (confidential) from atty Shafer. |
| Aug 4 2006 | Motion to withdraw as counsel filed by attorney Brenda Kay Shafer, for appellant. |
| Sep 15 2006 | Filed: request by inmate for dual representation. |
| Sep 15 2006 | Filed: request by counsel (State Public Defender) for dual representation appointment. |
| Sep 20 2006 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed counsel for permission to withdraw as habeas corpus/executive clemency attorney of record for appellant Joseph Lloyd Cook, filed August 4, 2006, is granted. The order appointing B. Kay Shafer as habeas corpus/executive clemency counsel of record for appellant Joseph Lloyd Cook in the above automatic appeal now pending in this court, filed September 16, 1999, is hereby vacated. Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Joseph Lloyd Cook. Shafer is hereby directed to deliver to Executive Director Millman, within 30 days from the filing of this order, all case transcripts, case files, habeas corpus investigation work product, trial files, investigation reports, 60-day confidential status reports, and related materials that she has obtained from appellant or his trial counsel, paralegals, experts and investigators, or from any other source. |
| Sep 20 2006 | Order filed In conjunction with the order filed this day permitting B. Kay Shafer to withdraw as habeas corpus/executive clemency counsel of record for appellant Joseph Lloyd Cook, with regard to the above automatic appeal now pending in this court, Shafer is hereby ordered to reimburse the court the sum of $35,000, subject to her ability to demonstrate to the court that she should be credited, as appropriate, for habeas corpus "work performed that is determined by the court to be of value to the court." (See "Payment Guidelines for Appointed Counsel Representing Indigent Criminal Appellants in the California Supreme Court," guideline V ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"], subpt. B.) |
| Sep 22 2006 | Order filed The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Joseph Lloyd Cook, filed September 20, 2006, is hereby vacated. The State Public Defender, previously appointed to represent appellant Joseph Lloyd Cook for the direct appeal in the above automatic appeal now pending in this court, is hereby appointed to also represent appellant Joseph Lloyd Cook for habeas corpus/executive clemency proceedings related to the automatic appeal. Prior habeas corpus/executive clemency counsel B. Kay Shafer is hereby directed to deliver to the State Public Defender, within 30 days from the filing of this order, all case transcripts, case files, habeas corpus investigation work product, trial files, investigation reports, 60-day confidential status reports, and related materials that she has obtained from appellant Joseph Lloyd Cook or his trial counsel, paralegals, experts and investigators, or from any other source. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus/executive clemency counsel Shafer's declaration, in support of her motion to withdraw, to the effect that she was unable to discharge her duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Joseph Lloyd Cook. |
| Nov 27 2006 | Counsel's status report received (confidential) from State P.D. |
| Jan 16 2007 | Oral argument letter sent advising counsel that the court could schedule this case for oral argument as early as the March calendar, to be held the week of March 5, 2007, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Jan 22 2007 | Counsel's status report received (confidential) from State P.D. |
| Feb 8 2007 | Case ordered on calendar to be argued Wednesday, March 7, 2007, at 9:00 a.m., in San Francisco |
| Feb 16 2007 | Filed letter from: DSPD Robin Kallman, dated February 16, 2007, re focus issues for oral argument. |
| Feb 16 2007 | Filed letter from: DAG Arlene A. Sevdial, dated February 16, 2007, re focus issues for oral argument. |
| Mar 7 2007 | Cause argued and submitted |
| Mar 26 2007 | Counsel's status report received (confidential) from State P.D. |
| May 16 2007 | Notice of forthcoming opinion posted |
| May 17 2007 | Opinion filed: Judgment affirmed in full majority opinion by Chin, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan, JJ. |
| May 30 2007 | Counsel's status report received (confidential) from State P.D. |
| Jun 1 2007 | Rehearing petition filed by appellant. (4,660 words; 20 pp.) |
| Jun 11 2007 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including August 15, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jul 11 2007 | Rehearing denied The request for modification of the opinion is denied. The petition for rehearing is denied. |
| Jul 11 2007 | Remittitur issued (AA) |
| Jul 17 2007 | Received: receipt for remittitur. |
| Jul 27 2007 | Counsel's status report received (confidential) from State P.D. |
| Aug 1 2007 | Received: copy of appellant's Petition for Writ of Certiorari, 21pp excluding appendices. |
| Aug 10 2007 | Received: letter from U.S.S.C., dated August 3, 2007; advising cert petn. filed on July 31, 2007; No. 07-5690. |
| Sep 20 2007 | Received: copy of respondent's brief in opposition to Petition for Writ of Certiorari, 21pp., U.S.S.C. No. 07-5690. |
| Sep 20 2007 | Received: certificate of service by U.S. mail for brief in opposition to petition for writ of certiorari., U.S.S.C. No. 07-5690. |
| Sep 25 2007 | Counsel's status report received (confidential) from State P.D. |
| Oct 19 2007 | Received: letter from U.S.S.C.; dated October 15, 2007; cert petn was denied October 15, 2007. |
| Nov 27 2007 | Counsel's status report received (confidential) from State P.D. |
| Jan 29 2008 | Counsel's status report received (confidential) from State P.D. |
| Feb 15 2008 | Related habeas corpus petition filed (post-judgment) no. S160915. |
| Mar 28 2008 | Counsel's status report received (confidential) from State P.D. |
| Briefs | |
| Aug 17 2004 | Appellant's opening brief filed |
| Jun 29 2005 | Respondent's brief filed |
| Jun 19 2006 | Appellant's reply brief filed |
