Supreme Court of California Justia
Docket No. S051342
People v. Cunningham

Filed 7/2/15



Plaintiff and Respondent,




San Bernardino County

Defendant and Appellant.

Super. Ct. No. RCR 22225

In a bench trial before the Superior Court of San Bernardino County, defendant

John Lee Cunningham was convicted of the first degree murders of Wayne Sonke, David

Smith, and Jose Silva. (Pen. Code, §§ 187, subd. (a), 189.1) The trial court found true

the special circumstance allegations that defendant committed multiple murders and that

the murders of Sonke and Smith took place during the commission of a burglary and a

robbery. (§ 190.2, subd. (a)(3), (17)(A) and 17(G).) The court also found defendant

guilty of one count of second degree burglary (§ 459), three counts of second degree

robbery (§ 211), one count of arson (§ 451, subd. (d)), and one count of possession of a

firearm by a felon (former § 12021, subd. (a)). The court further found true various

sentencing enhancement allegations—that defendant personally used a firearm in the

commission of the murders, robberies, and burglary (former § 12022.5, subd. (a)), had

previously been convicted of various felonies (§ 667), and had served prior prison terms

for felony convictions (§ 667.5).


All further statutory references are to the Penal Code, unless otherwise noted.

A jury was sworn for the penalty phase and returned a verdict of death. After

conducting an automatic review and declining defendant‘s request to modify the jury‘s

verdict (§ 190.4, subd. (e)), the trial court sentenced him to death for the three first degree

murders with special circumstances, as well as to a determinate term of 16 years for the

remaining counts and allegations.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its



A. The Guilt Phase

Defendant went to Surplus Office Sales (SOS) in Ontario, California, around

closing time on the afternoon of Saturday, June 27, 1992, and robbed the three remaining

employees at gunpoint. He then bound the victims, herded them into a bathroom, and

shot them each at least once in the head. Afterward, he set fire to the building before

fleeing the scene. He was arrested a month later while on the run from police. Defendant

subsequently confessed to the murders, burglary, and robberies, and participated in a

videotaped reenactment of the crimes.

Waiving his right to a jury, defendant‘s bench trial extended over 10 non-

contiguous court days. In addition to the prosecution‘s guilt phase evidence, the trial

court considered the evidence presented at the preliminary hearing and at pretrial

proceedings concerning defendant‘s motion to suppress his multiple confessions.

1. The prosecution’s case

a) The crimes

Around 4:00 p.m. on June 27, 1992, members of the Ontario Fire Department

responding to a call at SOS found an inactive fire in the office portion of the building and

three homicide victims in a hallway bathroom. An autopsy revealed that SOS employee

Jose Silva died from two gunshot wounds to the head, assistant manager David Smith


died from multiple gunshot wounds to the head and neck, and store manager Wayne

Sonke died from a single gunshot wound to the head. More than $1,000 in cash had been

taken from the store‘s cash register and petty cash box.

Michael Ray, the owner of SOS, had employed defendant in the early and mid-

1980s at two other businesses. About a month before the murders, Ray returned a phone

call from defendant asking about work. Ray had not heard from him for three or four

years. Defendant also made unannounced visits to SOS on June 20 and 24, a week and a

few days before the murders respectively.

About 8:30 p.m. on the evening of the murders, defendant called SOS employee

Evelyn Eriksen at home to ask how she was. Defendant told her he had been playing

poker with some friends since about noon that day. Later, defendant took Alana Costello,

his girlfriend at the time, to the movies and a motel room. Costello was surprised

because defendant was not steadily employed and had been under ―stress‖ trying to find

enough money for them to move into a bigger apartment. That evening, defendant was

―much more close-mouthed‖ than usual and acting ―very stressed, very tense, very

wrapped up in himself.‖ According to Costello, defendant generally was distant and

removed, had difficulty sleeping, and would wake up in the middle of the night from bad

dreams. He had borrowed her Ruger .22-caliber semi-automatic rifle and modified it by

sawing off part of the stock and barrel. A few days after the murders, Costello noticed

the rifle was missing.

b) Defendant’s subsequent flight and capture

On June 30, defendant called Diana Jamison, a former girlfriend. Jamison told

defendant that his parole officer had come to her house looking for him. In a later

telephone conversation, defendant told Jamison he was on the run because someone,

perhaps the Mexican Mafia, was after him. Around the same time, defendant called

Jamison upset and crying, saying ―something very terrible had happened‖ and he wanted


to come back and ―do the right thing.‖ Jamison told defendant to turn himself in.

According to Jamison, defendant had trouble sleeping; he would often wake up in the

middle of the night in a cold sweat, and mentioned dreams of being tortured by women

and children from his time in Vietnam. Defendant had tried to seek counseling at a

veteran‘s center.

On July 1, Costello received a telephone call from defendant asking her to join

him in Nevada. Meeting up at the Las Vegas airport, the two traveled by car to Atlantic

City, New Jersey, then drove southwest through Arkansas before heading north. Along

the way, defendant placed an Ohio license plate on the car and registered under false

names at motels. He never discussed why he had left California and when Costello

asked, he did not want to talk about it. After seeing how anxious defendant became when

police cars passed them, she concluded that he was running from the law.

On July 23, law enforcement officers stopped defendant‘s car in Deadwood, South

Dakota after being advised he was in the region and wanted as a murder suspect.

Defendant and Costello were both taken into custody and defendant was arrested for

violating his parole. Police seized a Ruger .22-caliber semi-automatic rifle, a box

containing 31 cartridges for a .22-caliber long rifle, and a magazine loaded with 10

rounds of .22-caliber ammunition.

c) Defendant’s statements to law enforcement officers and videotaped

reenactment of the crimes

Over the following two days, Ontario Police Department Detectives Gregory

Nottingham and Pat Ortiz interrogated defendant four times. Each interrogation was

audiotaped or videotaped. On each occasion, the recording equipment was in plain view.

At their first meeting the morning of July 24, after approximately six minutes of

preliminary introductions and questions, Detective Nottingham read defendant his rights

pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). After defendant

confirmed that he understood these rights, Nottingham proceeded to ask defendant about


his relationships with Costello and Jamison, as well as about his military and employment

background and his prior robbery arrest. In discussing these subjects, defendant

recounted working for Michael Ray at a facility in Long Beach in 1979 and going to SOS

in Ontario in early June 1992 to visit Eriksen and to look for a job.

Defendant then volunteered, ―I know what you guys are getting at. . . . I also want

you to know that the reason why I‘m so calm is because I‘m where I belong. . . . I know

why you‘re here in my dreams and that‘s all.‖ When asked to clarify, defendant replied,

―You know as well as I do that I committed an armed robbery in Ontario‖ at ―Mike‘s

company.‖ When asked for further clarification, defendant reiterated, ―I committed an

armed robbery,‖ and asked, ―Should I have somebody here talking for me, is this the way

it‘s supposed to be done?‖ Detective Nottingham reread defendant his Miranda rights

and asked if he understood them. Defendant stated, ―I do understand.‖

In response to the detectives‘ subsequent questions, defendant gave an

occasionally rambling account of his activities on June 27, describing how he chose to

rob SOS, how the robbery, murders, and arson occurred, and his subsequent actions. He

admitted entering SOS with the intention to steal money, binding the hands of the three

victims with duct tape, returning to the bathroom to shoot them, and then using gasoline

to set the building on fire. These confessions were interspersed with references to

defendant‘s dreams, things he claimed to have done during his military service in

Vietnam, and expressions of relief at being caught.

The detectives interrogated defendant two more times the afternoon of July 24,

and again the following morning. No additional Miranda advisements were given.

Defendant told the detectives he had altered two military personnel forms found in his car

because he was looking for work and wanted to ―look[] better‖ and ―cover‖ for time

when he had been incarcerated. He also indicated he had ―ripped off a shipment‖ as a

narcotics courier and asked at one point to be placed in protective custody. One of the


detectives also made references to the victims‘ families, stating that once lawyers got

involved in a case, it would get ―a lot more complicated.‖

Between July 27 and July 31, the detectives spoke with prosecutors working on

the case and played the interview tapes for them. Because the quality of the tapes was

poor, the prosecutors suggested a videotaped reenactment at the crime scene and told the

detectives that the reenactment should be done before an arrest warrant was filed. On

July 31, Wesley Lewis, a correctional sergeant at Folsom Prison where defendant was

being held on his parole violation, interviewed defendant to determine whether he would

be willing to participate in the reenactment. Defendant indicated that he would be

―happy‖ to cooperate ―if it would get me out of here any sooner or quicker.‖

On August 2, defendant conducted a reenactment of the crimes, which two

detectives observed and videotaped. Defendant was advised of his Miranda rights before

starting the reenactment, and affirmed that he understood these rights and wished to talk

to law enforcement officers.

In the video, defendant described how on the day of the murders he first went to

SOS shortly after noon and stayed for about a half-hour talking with the three victims.

He then left and returned after 3:00 p.m. ―to take all the money . . . so I could leave the

state.‖ He reentered SOS with the shortened .22-caliber rifle concealed in a paper bag.

At gunpoint, defendant ordered the three victims to follow him through the hallway to the

front lobby, where he forced Sonke to give him the money from the cash register.

When defendant asked Sonke where the rest of the money was, Sonke indicated it

was in an office down the hall. Defendant made all the victims go with him to that

location and Sonke opened a filing cabinet with some keys, but did not remove anything.

Defendant took the keys and made the victims enter the women‘s bathroom, where he

told them to lie down on the floor and be quiet. He left all three victims with their hands

bound behind them with heavy duty tape he had purchased weeks before, but also

claimed he had only planned the robbery earlier that day when he decided to return to


SOS. Defendant then took the money from the cash drawer in the filing cabinet, returned

to the bathroom, and shot the three men.

Retrieving a can of gasoline from his car, defendant went back inside to set fire to

the building. When he reentered the bathroom, Silva and Sonke were not moving but

Smith was attempting to break loose of his bonds. Defendant shot Smith again, poured

gasoline along the hallway, and ignited it with a match. He then removed a key from

inside the front door and exited, locking the door from the outside. He drove to a

freeway overpass to watch the building for a minute or so until a fire truck arrived.

2. The defense case

In his opening argument during the guilt phase, defense counsel described

defendant‘s experiences in Vietnam, stating that because of posttraumatic stress disorder,

there were periods in his life when defendant ―lost time.‖ With respect to the murders,

counsel claimed these were not crimes defendant wanted to commit, and that the only

way law enforcement officers were able to connect defendant to them was by virtue of

defendant‘s cooperation. Counsel cross-examined prosecution witnesses, but presented

no guilt phase witnesses or other evidence on defendant‘s behalf.

During closing argument, counsel contended defendant committed the charged

offenses because he was experiencing a buildup of pressure caused by a mix of

helplessness and fear. In conclusion, counsel argued, ―from everything we know John

Cunningham wished to take responsibility for this particular crime, and he did.‖

B. The Penalty Phase

Defendant‘s requests to absent himself from the penalty phase were denied. A

jury was selected and heard evidence for 34 court days over the course of five months.

The prosecution presented testimony relating to the circumstances surrounding the

crimes, the effect of the murders on those connected to the victims, and defendant‘s prior

felony convictions. Defendant presented extensive testimony to document his abusive


childhood, his traumatic combat experiences in Vietnam, and the effects of posttraumatic

stress disorder on Vietnam-era veterans. He also presented testimony that attempted to

discredit some of the prior crimes evidence.

1. The prosecution’s case in aggravation

a) The circumstances surrounding the murders

The prosecution presented the testimony of many of the same witnesses who

testified during the preliminary hearing and the bench trial to demonstrate the

circumstances surrounding the burglary, robberies, murders, and arson. Also presented

were the videotapes and transcripts of defendant‘s July 1992 interviews and August 1992

reenactment and stipulations regarding the collection of crime scene evidence.

b) Prior crimes

On April 24, 1976, Herta Gill was a cashier at the Vineland Drive-In in the City of

Industry, California, when at about 9:00 p.m., defendant robbed her at gunpoint of all the

money in her register. He was apprehended a short time later while in possession of a

firearm and the stolen cash. After pleading guilty to felony robbery and admitting to

personally using a handgun, defendant was sentenced to one year in county jail and then

placed on probation.

On April 5, 1982, Michelle I. was 14 years old and alone at her home in La

Mirada, California, when defendant sexually assaulted her. Defendant, then a family

friend, entered the home on the pretense his car had broken down, but after appearing to

use the phone asked Michelle to give him a ―blow job.‖ When she refused, defendant

forced her onto her knees. When she began screaming, defendant struck her in the face

with a closed fist, threatened further physical violence if she continued to scream, and

dragged her by the hair to the sofa, where he forced her to perform oral sex on him for

approximately 10 minutes. Before leaving, defendant said he had killed his ex-wife and

her lover and warned he would ―come back‖ to do the same to Michelle if she told


anyone what had happened. Michelle nonetheless reported the incident to her family and

the police and testified at the subsequent trial. Defendant was convicted of felony

forcible oral copulation with a minor and sentenced to state prison.

In April 1987, Samira S. was 15 years old and living with her mother and younger

sister in Paramount, California, when defendant, a family friend, moved in. Within two

or three weeks, he began fondling and kissing Samira when they were alone. She would

tell him to stop, but defendant would continue touching different parts of her body.

Subsequently, defendant forced Samira to perform oral sex on him, slapping her when

she did not perform to his satisfaction. Samira thereafter engaged in oral sex with

defendant once or twice a week between April and September of 1987. If she resisted,

defendant would get angry and slap her. Defendant repeatedly tried to convince Samira

to have sexual intercourse with him but she refused. Nevertheless, he would put Vaseline

or baby oil on his penis and partially penetrate her vagina. Defendant also asked to take

naked photographs of Samira, but she refused. Sometimes defendant would give Samira

money and buy her gifts. He also caused her to be truant from her summer school

courses. In September or October of 1987, Samira told a friend from church and a school

counselor about defendant‘s sexual assaults. He was convicted of two counts of oral

copulation with a minor and sentenced to state prison.

c) Victim impact evidence

The prosecution introduced the testimony of family members of the victims who

testified about qualities of their loved one and how each learned about the murders. Jose

Silva was the youngest of 10 children and was raised by his older sister Josefina after

their mother died. He regularly attended family functions and had a one-year-old son at

the time of his death. David Smith had been married to his wife Mimi for 10 years when

he died and had a daughter named Tiffany. His half brother described Smith as someone

who loved the outdoors and as ―a very gentle soul.‖ Wayne Sonke had five adult


children and five grandchildren at the time of his death. His daughter Lois Backe

described being at her mother‘s house waiting for Sonke to return home from work when

the fire department called asking for Sonke and saying that the alarms had gone off at

SOS. After her father still had not returned or called home, Backe drove to SOS. A

police officer on the scene told her there had been a triple homicide and asked Backe to

describe her father. She later had to give the news of his murder to her youngest brother

and mother.

2. The defense’s case in mitigation

a) Family and social history

Ronald Forbush, a defense investigator, researched defendant‘s personal and

social history and interviewed various relatives. Defendant‘s parents Vivian and Maurice

Cunningham divorced when defendant was approximately two years old. Vivian had a

prior marriage at age 14, two subsequent marriages, and apparently worked at some point

as a prostitute. Maurice subsequently remarried as well. As a result, defendant had two

older brothers, Sam and W.C., and several half siblings and stepbrothers and stepsisters.

At the time of the trial, defendant‘s parents were deceased, and his brother Sam was in

Huntsville State Prison in Texas.

Vivian‘s younger half sister Carolyn M. testified that Vivian was dishonest; at

various times she had lied about a brother having died, about being in a car accident, and

about her middle son (W.C.) having died. Carolyn also recounted one evening when she

was in seventh grade and Vivian and Maurice were living in the same house as the rest of

the family when Carolyn awoke to find Maurice sexually molesting her.

Defendant‘s brother W.C. testified their mother and father both had problems with

alcohol. One time, when W.C. was under 10 years old, Vivian, intoxicated, called him

into her bedroom and sexually fondled him. After he left, she called the other two

brothers into the room one by one. Vivian‘s sexual abuse may have been recurring.


Maurice and Gene Collins, a stepfather, physically abused the boys. One time, after a

violent confrontation with Collins in which Vivian stabbed him with a fork, she

abandoned her three sons (then ages five, seven, and nine) for several weeks and they

were forced to steal food to survive. Eventually, the boys were placed in an orphanage

for approximately a year. Later they were flown to California to live with Maurice, his

second wife Betty, and her children from a previous marriage. W.C. believed that his

father sexually abused his stepsister, although Maurice never molested W.C. or, to the

best of W.C.‘s knowledge, defendant or their brother Sam.

One of defendant‘s stepbrothers testified that Maurice was a heavy drinker who

often became violent with Betty and the children. Maurice also sexually molested the

stepbrother so often he ―couldn‘t count the times.‖ Once when he was in seventh grade,

the stepbrother told his mother Betty about the molestation. She cried but never did

anything to stop it.

Diana Jamison, one of defendant‘s former girlfriends, testified she got the

impression from defendant that his mother, Vivian, was very promiscuous when he was a

young boy and had many different men coming in and out of her life. Defendant also

alluded to having been sexually molested by his father, but would not discuss any details

with Jamison.

Some of the sexual abuse detailed by the above witnesses was confirmed or

alluded to by defendant in his interviews with Thomas Williams, one of the defense‘s

penalty phase psychologists.

b) Military background

After defendant graduated from high school, he enlisted in the United States

Army. According to relevant military files and records, defendant was court-martialed

various times for being absent without leave (AWOL) between May 1969 and March

1970. In May 1970, defendant was sent to Vietnam for approximately 11 months where


he was promoted three times, ultimately to sergeant. As a result of his service in the

Vietnam War, defendant received several commendations.

While in Vietnam, defendant engaged in reconnaissance missions with units that

would travel through the jungles for periods of five to 14 days scouting and securing

areas believed to be infiltrated by the Viet Cong or North Vietnamese Army. The units

set up claymore mines for mechanical ambushes and engaged in several firefights in

which enemy troops or sympathizers were killed or captured. Defendant at one time

operated in a ―free fire zone,‖ meaning that the soldiers had permission to kill any enemy

combatants in that area. Sometimes a unit would happen upon empty enemy bunkers or

mass enemy graves; other times it found ―blood trails‖ left by the enemy dragging their

wounded or dead soldiers away from combat scenes. If a unit encountered an enemy

village in an uncontrolled area not authorized for settlement, standard operating

procedure was to evacuate the people and set the buildings on fire. Once, defendant

required medical attention due to heat exhaustion. Another time, he was hospitalized for

a malaria infection.

Nineteen veterans who served in defendant‘s reconnaissance platoons testified

about their daily activities and various missions in Vietnam. Some of the veterans who

testified characterized defendant as a ―good soldier‖ but also as a ―loner‖ who generally

kept to himself. Others did not specifically remember defendant. Three veterans,

including one who allegedly knew defendant the best, for various reasons were unable to

attend the trial and testify.

Many of the veterans who testified suffered from posttraumatic stress disorder

(PTSD), flashbacks, depression, or other problems as a result of their service in Vietnam.

These veterans explained they often had problems adjusting to life after Vietnam, and

many of those adjustment problems remained with them throughout their lives. They had

trouble sleeping, were regularly afflicted by nightmares, and experienced problems with

anxiety, hypervigilance, and being easily startled by innocuous sounds (such as a car


backfire or a motorcycle) or simple sights (like a tree stump). One witness compared the

experience of suffering from PTSD to ―carrying a demon around at times.‖ However,

none had committed any felonies or crimes of violence after they returned home.

Cross-examination further revealed that other than the death of a medic from a

mortar accident on base, there were no casualties or fatalities in any of defendant‘s

platoons. Defendant was never captured or tortured by the enemy, and none of his units

ever destroyed a village in a manner that killed women and children. Defendant did not

participate in long-range reconnaissance patrols or Special Forces. Although the

reconnaissance platoons rarely took prisoners, on one occasion, defendant‘s unit took 30

to 50 prisoners, including women and children who were sympathetic to the enemy, but

none of the prisoners were bound or mistreated in any way.

After Vietnam, defendant was stationed for the remainder of his three-year tour at

Fort Hood, Texas, where he was court-martialed four different times for being AWOL.

Ultimately, he was demoted from his sergeant rank and honorably discharged as a


c) Psychological evidence concerning posttraumatic stress disorder

G. Robert Baker and Thomas Williams testified for the defense as experts on

PTSD, among other topics. Baker was a psychologist with the Department of Veterans

Affairs and clinical coordinator for the National Center for Post-Traumatic Stress

Disorder. Williams was a psychologist who specialized in working with trauma victims

and training individuals involved in treating veterans. Both served in Vietnam in the

Marines Corps.

Baker and Williams described PTSD as a reaction to unusual and frightful events

outside the normal range of human experiences, such as those experienced in war zones.

The symptoms of PTSD include nightmares, intrusive and unwanted thoughts and

images, flashbacks, avoidance and dissociative behaviors, depression, psychiatric


numbing, social isolation, disassociation from and distrust of others, anxiety, sleep

disorders, anger management problems, hypervigilance, adrenalin- or sensation-seeking

behaviors, memory impairment, and concentration difficulties. Although there is no cure

for PTSD, the symptoms can be treated and individuals can be taught how to manage


Williams explained symptoms such as flashbacks or nightmares could happen at

any time depending on the particular individual and his experiences. However, certain

stimuli would be expected to trigger them. Military training in particular sensitized

soldiers to various stimuli and caused them to react quickly to perceived danger. PTSD

may also be retriggered by secondary traumatic experiences, or compounded by

preceding ones. According to Baker, although soldiers suffering from PTSD might be

expected to avoid events such as fireworks displays, which can trigger combat memories,

they might still carry guns, which would likewise trigger combat memories, because guns

were a source of protection. Recurrence of malaria symptoms also can act as a PTSD

trigger, although malaria infections themselves, which were common in Vietnam, did not

cause PTSD. Baker also explained the concept of ―survivor guilt‖ and how soldiers who

suffered from PTSD often exaggerated their combat roles.

Both experts explained how the Vietnam conflict presented unique difficulties for

many reasons—most of the soldiers were very young, the war had no front lines, there

were no clearly defined objectives other than killing people, it was often unclear who was

the enemy, there were no safe areas in light of the guerrilla nature of the war, there was

no winning strategy, the primary goal was survival, there was little unit cohesion because

soldiers were constantly being replaced, the jungle environment made living conditions

difficult, and neither the Vietnamese civilian population nor the American public

appreciated the soldiers. These factors made it more difficult to treat Vietnam War

veterans suffering from PTSD. In particular, the social isolation Vietnam veterans felt

upon returning home prevented them from seeking treatment. In defendant‘s case, the


isolation was exacerbated because he did not have a loving and supportive family or

religion to turn to upon his return. Present-day treatments for PTSD, moreover, were not

available to veterans in the early 1970s, as the disorder was not well understood at that


Based on his review of defendant‘s records, Baker opined defendant was involved

in the type of combat that could produce PTSD. However, he never met or evaluated

defendant for PTSD. Baker explained how individuals are screened for PTSD and the

importance of confirming the truthfulness of reported personal histories in rendering a

diagnosis, as malingering—feigning the symptoms of a disorder—can apply to someone

claiming to suffer from PTSD.

Williams positively diagnosed defendant as having PTSD. This diagnosis was

based on his interviews of defendant for three days in May and June of 1995, and his

review of the videotapes of defendant‘s interviews with the detectives and the

reenactment, charts of the daily activities of defendant‘s Vietnam units, statements of

family members and the veterans who served with defendant, and the penalty phase

testimony of various witnesses. Williams did not, however, meet with any of the

witnesses from the case.

In his interviews with Williams, defendant said when his mother abandoned him

and his brothers, their electricity and water were turned off and they had to steal food to

eat and use neighbors‘ swimming pools to bathe. Defendant further claimed he broke

into other people‘s homes to observe what normal childhood and family life was like. He

told Williams that he was isolated in the orphanage. He alluded to being sexually

molested by his mother once, and told Williams that he was once sexually fondled by his

father, had personally observed his father having sex with his half sister at least once, and

―quite frequently‖ heard his stepbrother screaming as Maurice sodomized him. Although

defendant refused to give details of the alleged molestation by his mother, saying ―he was

going to take that to his grave,‖ Williams felt the brother‘s reported sexual abuse by


Vivian and the literature on sexual abuse—which stated generally all the children are

sexually abused within a family that has sexual abuse—corroborated defendant‘s claim of

abuse by his mother. Williams further noted that observing sexual abuse could cause


Williams opined defendant‘s PTSD was caused by childhood neglect and sexual

abuse, as well as combat experiences in Vietnam. Defendant most likely developed

PTSD when he was about nine years old, and then was retraumatized in Vietnam, which

contributed to his then-current PTSD. Although he believed defendant had PTSD when

he robbed Gill and committed the sexual offenses against Michelle I. and Samira S.,

Williams could not say whether defendant was going through a dissociative episode when

he committed those offenses. Williams conceded child molestation, robbery, and murder

were not part of the diagnostic criteria for PTSD. Although Williams found defendant to

have an ―[i]nability to delay sexual gratification and generally poor sexual adjustment,‖

he did not consider defendant a pedophile or sex addict.

Defendant told Williams he had always had an active ―fantasy life,‖ had difficulty

at times distinguishing fantasy from reality, and relied on dreams for memory. When

relating stories about Vietnam, defendant was not sure whether they really happened or

not. Williams believed this was dissociative behavior indicative of PTSD. It was clear to

Williams defendant‘s Vietnam service was very important to him, ―a cornerstone in his

life.‖ Williams acknowledged defendant made inaccurate or untrue claims about his

military background and Vietnam experiences during the police interviews. He also was

aware defendant had altered a form regarding his military experience, listing training and

awards he did not receive and operations in which he did not participate, and deleting

references to his AWOLs. Williams agreed falsification of military records might

indicate a ―factitious‖ PTSD disorder or malingering, and it was also possible defendant‘s

false Vietnam stories were unrelated to PTSD and only ―embellishments of war stories.‖


Based on his review of autopsy photographs and defendant‘s statements to law

enforcement officers, Williams opined defendant ―dissociated‖ at some point during the

SOS killings. As a result of this altered state of mind, although defendant knew robbery

was wrong at the time, he did not ―really internally believe[]‖ he had committed the

murders until he participated in the reenactment. In support of this conclusion, Williams

cited defendant‘s claim he felt like he was standing behind himself watching the crimes

happen, his shooting the victims even though they were bound with tape and he already

had the money, his viewing Smith as a threat when Smith broke his bonds, defendant‘s

reference to ―the LT‖ or lieutenant instructing soldiers ―to always burn the village, never

leave anyone behind, kill everyone,‖ and the physical distress defendant manifested in the

video reenactment of the crime. Although defendant did not refer to his dreams during

the reenactment as he had done in the first interview, Williams still felt defendant was

―drifting‖ during the reenactment. Williams also related some of defendant‘s behaviors

to experiences defendant had had in Vietnam, such as arming himself with a gun, using

duct tape, and shooting the victims in the head even if they might already have been dead.

He conceded, however, a person who intentionally makes a decision to injure another or

rob someone in order to take money would ―probably‖ not be acting due to PTSD.

Defendant also took a self-administered and unsupervised test called the

Dissociation Experiences Scale (DES). Based on the DES, Williams concluded

defendant had a high level of dissociative experiences. Another self-administered and

unsupervised test, the Minnesota Multiphasic Personality Inventory 2 (MMPI-2),

indicated defendant was distrustful and moody, had poor social skills, and was not

malingering. Two subscales within the MMPI-2 scored defendant positive for PTSD.

However, defendant declined to answer five questions out of 568, which prompted the

testing service to state ―the pattern of his item omission should be carefully noted.‖


d) Prior crimes

Daniel and Olivia Negron knew Samira S. and her mother through church. While

defendant was residing in Samira‘s home, the Negrons attended social functions during

which Samira sat on defendant‘s lap and appeared to be ―very flirtatious with‖ and

―coming on‖ to him in an inappropriate manner.

Damarie H., Samira‘s aunt, stayed at Samira‘s home for approximately six

months, during which time defendant was sleeping on the sofa. Damarie noticed Samira

did not shy away from the attention she received from defendant. Concerned about their

relationship, she asked Samira if ―anything was going on‖ with defendant. Samira

became defensive, saying her mother was ―starting to get on her case about the same

thing.‖ Samira told her aunt defendant was ―very nice‖ and she cared for him, and tried

to imply there was something going on between defendant and her mother. According to

Damarie, Samira was not always truthful. Although Samira bruised easily as a result of

having lupus, Damarie did not recall seeing any bruises on her during the time defendant

was staying with them.

Deputy Sheriff Pierre Nadeau interviewed Samira in October 1987. When asked

about bruising around her eyes and swelling on the back of her head, Samira told Nadeau

she had been injured fighting with her mother. When Deputy Sheriff Goran interviewed

Samira, she never mentioned defendant had slapped her, but said she was afraid to say no

to defendant because other men had previously slapped or beat her for refusing sex.

When Dr. Kerry English examined Samira, she also did not tell him that defendant had

slapped her. Although she indicated defendant had twice attempted to have sexual

intercourse with her, she stated defendant stopped because it was painful for her.

3. The prosecution’s rebuttal in aggravation

Detective Nottingham testified defendant told him during the Deadwood, South

Dakota, interview that he had spent two years in Vietnam and served in the Special


Forces. Nottingham further explained how he found the original and altered forms

relating to defendant‘s military record.


A. Guilt Phase Issues

1. Pretrial shackling

Defendant claims he was denied his state and federal constitutional rights to due

process and a fair trial when he was ―repeatedly and unnecessarily‖ restrained during

pretrial proceedings without an adequate showing of manifest need and without

employing less restrictive alternatives. He argues the shackling rendered his trial

structurally unsound and resulted in prejudice. This claim is meritless.

a) Background

During the initial hearing on defendant‘s motion to suppress his statements to law

enforcement officers, defense counsel objected to defendant‘s being shackled in the

courtroom. The trial court ordered defendant‘s waist chains removed and his hands

placed in regular handcuffs in front of his body. After counsel continued to object to the

handcuffs, the prosecutor placed on the record various reasons justifying the shackling,

including that defendant was being tried for three capital murders and had specialized

military training. The court ultimately ruled the ―limited restraints‖ would remain for

purposes of the current proceedings.

At the next hearing, defense counsel objected to any shackling of defendant,

indicating defendant would ―waive all appearances if he has to go through this shackling

business.‖ The court stated it was willing to order defendant not be restrained in the

courtroom and to be restrained only during transit in the public halls of the courthouse, a

routine security measure in the San Bernardino courthouse not limited to defendant. The

prosecutor concurred and the court ordered defendant ―not be shackled in the courtroom.‖


Defendant subsequently filed a motion objecting to the use of restraints in the

holding areas of the courthouse, where he might be kept for several hours before a court

appearance, and further requesting the case be transferred back to the Rancho

Cucamonga courthouse, where the preliminary hearing had been held and where in-

transit shackling apparently was not required. The trial court ultimately ordered that

defendant not be restrained in the holding facilities or the courtroom. However, it found

the standard procedure of shackling prisoners during public transit between the holding

cell and the courtroom to be a reasonable security precaution and denied without

prejudice the request to transfer the case to Rancho Cucamonga.

Later, defendant appeared in court to personally waive his presence at that and all

future pretrial hearings. Although his legs were shackled at the time, the court assured

defendant the shackles would be removed in the courtroom if he chose to participate in

the proceedings. After defendant waived his presence, counsel asked he not be

transported to court again until the penalty phase jury trial or transfer of the case to

Rancho Cucamonga.

The balance of pretrial proceedings as well as the guilt phase bench trial took

place in San Bernardino. Thereafter, defendant filed a written request to have the penalty

phase tried in Rancho Cucamonga with jurors from its West End Judicial District. The

trial court denied the request in part, ordering that jury selection occur in San Bernardino

but that the panel be drawn exclusively from the West End. Defendant was ordered to

personally appear to address jury selection issues but his counsel objected, claiming that

the court‘s promises concerning shackling had not been kept and again objecting to the

in-transit shackling. The court overruled the objection, finding it had accommodated

defendant throughout the proceedings. Subsequent pre-penalty-phase proceedings and

the initial portion of jury selection (primarily hardship excusals and challenges for cause

based on the juror questionnaires) took place in San Bernardino, but the remainder of jury


selection and the penalty phase trial took place in Rancho Cucamonga, after which there

were no further shackling objections.

b) Analysis

No defendant ―may be subjected, before conviction, to any more restraint than is

necessary for his [or her] detention to answer the charge.‖ (§ 688.) However, an

appellate court will not overturn a trial court‘s decision to restrain a defendant ―absent ‗a

showing of a manifest abuse of discretion.‘ ‖ (People v. Wallace (2008) 44 Cal.4th 1032,

1050 (Wallace).)

The jurisprudence on shackling primarily concerns situations that might prejudice

a jury. Such cases hold that under state law, in light of the potential harm to the

constitutional presumption of innocence and right to be present and participate in one‘s

defense, ― ‗[a] defendant cannot be subjected to physical restraints of any kind in the

courtroom while in the jury‘s presence, unless there is a showing of a manifest need for

such restraints.‘ ‖ (Wallace, supra, 44 Cal.4th at p. 1050, quoting People v. Duran

(1976) 16 Cal.3d 282, 290–291; see People v. Harrington (1871) 42 Cal. 165, 168–169;

see also Deck v. Missouri (2005) 544 U.S. 622, 624.)

Defendant incorrectly assumes the propriety of shackling a defendant while in

transit through the public hallways of a courthouse to attend a pretrial hearing, the factual

scenario presented here, should be assessed under the same standards used to determine

whether a defendant can be shackled while in the courtroom. Not so. The considerations

of public safety and the need for restraints are different during prisoner transport than

when a defendant is seated in a secured courtroom. We have long observed that a

defendant may be restrained while in transit between a jail and the courtroom without

reference to any particularized showing of need. (See, e.g., People v. Ross (1967) 67

Cal.2d 64, 72 [―It was a reasonable practice for the sheriff to keep prisoners handcuffed

while in transit, and the fact that the handcuffs were removed inside the courtroom rather


than outside added to the security.‖]; People v. Metzger (1904) 143 Cal. 447, 449 [―In

many cases it is proper, and it is often necessary as a precaution, to manacle a prisoner to

secure his safe conduct and guard against an escape while on the way from the jail to the

courtroom.‖]); see also People v. Hardy (1992) 2 Cal.4th 86, 180; accord, People v.

Jacobs (1989) 210 Cal.App.3d 1135, 1140–1141; People v. Du Bose (1970) 10

Cal.App.3d 544, 549–550; U. S. v. Leach (8th Cir. 1970) 429 F.2d 956, 962.].)

Accordingly, we see no abuse of discretion in the use of physical restraints during

defendant‘s transit through the public hallways of the San Bernardino courthouse without

any particularized showing of need. The shackling was a reasonable and limited

precaution taken to retain custody of an accused and was no more restraint than was

necessary for his detention. The in-transit physical restraints in no way affected the

conduct or outcome of the trial, whether before judge or jury, nor did they impinge upon

the presumption of innocence or defendant‘s right to present a defense.

In his reply, defendant argues that given the necessity of shackling him for

transport through the halls to his courtroom in San Bernardino, ―the unreasonable burden

placed on this defendant should have been ameliorated by moving the proceeding to a

different courtroom or to Rancho Cucamonga.‖ He cites no authority to support this

proposition, nor are we aware of any. As noted, defendant‘s shackling for security during

transport was a limited and reasonable imposition. The trial court was not required to

move the proceedings to a different courtroom or to the Rancho Cucamonga courthouse

simply to obviate this precaution.

2. Waiver of the right to be present at pretrial and guilt phase


Defendant claims the trial court violated his state and federal constitutional rights

to due process and a fair trial when it excused him from numerous pretrial proceedings

and the guilt phase of his trial based on a waiver of his personal presence that allegedly

was coerced by ―painful, excessive, and unnecessary shackling.‖ He additionally


contends the trial court violated sections 977 and 1043 by accepting involuntary waivers

of his right to be personally present at the guilt phase of his capital murder trial without

adequate justification.

a) Constitutional right to be present

―Under the Sixth Amendment, a defendant has the right to be personally present at

any proceeding in which his appearance is necessary to prevent ‗interference with [his]

opportunity for effective cross-examination.‘ [Citations.] Due process guarantees the

right to be present at any ‗stage . . . that is critical to [the] outcome‘ and where the

defendant‘s ‗presence would contribute to the fairness of the procedure.‘ ‖ (People v.

Butler (2009) 46 Cal.4th 847, 861.) The state constitutional right to be present at trial,

which is guaranteed by article I of the California Constitution, ― ‗is generally coextensive

with the federal due process right.‘ ‖ (Butler, at p. 861.) As a matter of both federal and

state constitutional law, however, a defendant may validly waive his or her right to be

present during a critical stage of the trial, provided the waiver is knowing, intelligent, and

voluntary. (People v. Moon (2005) 37 Cal.4th 1, 20–21 (Moon); People v. Jackson

(1996) 13 Cal.4th 1164, 1210 (Jackson).)

Defendant premises his challenge to the voluntariness of his right to be present

waivers entirely on the argument that the waivers were induced and coerced by improper

shackling. He contends he was forced to waive his presence ―simply because he could

not endure the effects of the wrist, waist and leg chains every day for more than eight

hours a day.‖ (Italics added.) The record demonstrates, however, that the trial court

relieved defendant of all physical restraints in the courtroom and holding cell prior to any

evidentiary hearings or critical phases of the postarraignment proceedings. Thereafter,

defendant remained subjected to physical restraints only for the time it took to transport

him to and from the holding cell and the courtroom. Having concluded that this limited

in-transit shackling was not an abuse of the trial court‘s discretion, we further conclude


the use of restraints in transit did not improperly coerce defendant to waive his presence

at the pretrial and guilt phase proceedings, particularly as the court permitted him to

remain completely unrestrained in the courtroom.

An analogous situation was presented in People v. Price (1991) 1 Cal.4th 324

(Price). After a hearing outside the presence of the jury during which the evidence

established the defendant had committed multiple acts and threats of violence against

officers at the jail or while being transported to court, the court ordered he be secured to

his chair in the courtroom by a single belly chain not visible to the jury. The defendant

then stated ―he would rather be absent from the trial than appear before the jury in chains.

The trial court allowed defendant to leave the courtroom and return to the jail, after

informing defendant that his leaving would be construed as a voluntary waiver of

presence. After giving the matter further thought, the court directed jail officers to bring

defendant back to the courtroom, but defendant refused to dress in civilian clothing for

the court appearance. The court then concluded that defendant had effectively waived his

presence. The remainder of the guilt phase proceeded in his absence.‖ (Id. at pp. 404–


On appeal, we found ―no constitutional infirmity in the trial court‘s decisions . . .

to accept defendant‘s actions as a voluntary waiver and to proceed with the guilt phase in

defendant‘s absence.‖ (Price, supra, 1 Cal.4th at p. 405.) Similarly here, we find no

constitutional infirmity in defendant‘s waivers of his right to be present at pretrial

proceedings and the guilt phase, even assuming such waivers were motivated in part by

concerns about the in-transit shackling that would have accompanied his appearing in


b) Statutory right to be present

The issue of statutory error is another matter. As we have previously

acknowledged, ―defendant‘s statutory ability to waive his presence in a capital case is


more circumscribed than the associated ability to waive his constitutional right.‖ (People

v. Rundle (2008) 43 Cal.4th 76, 135 (Rundle); see also Jackson, supra, 13 Cal.4th at p.

1211.) Specifically, section 977 requires any defendant charged with a felony to ―be

personally present at the arraignment, at the time of plea, during the preliminary hearing,

during those portions of the trial when evidence is taken before the trier of fact, and at the

time of the imposition of sentence. The accused shall be personally present at all other

proceedings unless he or she shall, with leave of court, execute in open court, a written

waiver of his or her right to be personally present, as provided by paragraph (2).‖ (§ 977,

subd. (b)(1), italics added.) Section 1043 provides that a felony defendant ―shall be

personally present at the trial‖ (id., subd. (a)), but that the trial may continue in a

defendant‘s absence if the defendant (1) persists in disruptive behavior after being

warned (id., subd. (b)(1)); (2) is voluntarily absent in ―[a]ny prosecution for an offense

which is not punishable by death‖ (id., subd. (b)(2), italics added); or (3) has waived his

rights ―in accordance with Section 977‖ (id., subd. (d)). Read together, the statutes

provide that a capital defendant cannot voluntarily waive his right to be present during

the proceedings listed in section 977, including those portions of the trial in which

evidence is taken, and he may not be removed from the courtroom pursuant to section

1043 unless he has been disruptive or threatens to be disruptive.

Defendant correctly contends his absence during the guilt phase violated sections

977 and 1043. However, assuming defendant has not forfeited his claim of statutory

error by failing to raise it below (see Rundle, supra, 43 Cal.4th at p. 135), the error does

not warrant reversal of the judgment because it is not reasonably probable the result of

the trial would have been more favorable to defendant absent the error. (See People v.

Weaver (2001) 26 Cal.4th 876, 968.) Defendant fails to explain how he could have

effectively assisted counsel in subjecting the prosecution‘s case to meaningful adversarial

testing. We therefore conclude the violations of sections 977 and 1043 were harmless.

(See, e.g., Moon, supra, 37 Cal.4th at p. 21.)


Relying upon Hicks v. Oklahoma (1980) 447 U.S. 343, 346, defendant also

contends the statutory violation deprived him of his federal constitutional procedural due

process rights because the ―arbitrary‖ violation of section 977 and section 1043 allegedly

deprived him of a state-created ―liberty interest‖ in the proper application of state law.

We have previously rejected this exact argument. (See Rundle, supra, 43 Cal.4th at p.


3. Waiver of the right to a guilt phase jury

Defendant claims the ―wanton infliction of pain‖ caused by the daily courthouse

shackling not only coerced a waiver of his right to be present at the guilt phase, but also

resulted in the involuntary waiver of his right to a jury trial at the guilt phase in order to

avoid the alleged ―embarrassment and prejudice‖ attendant to being tried by a jury while

he was not present. He argues the failure to obtain a knowing and intelligent waiver of

his right to a jury trial violated his state and federal constitutional right to due process and

requires the reversal of his conviction. As with his claim concerning the waiver of his

right to be present, this claim is without merit.

At a pretrial status conference, the prosecutor informed the court he had discussed

with defense counsel the possibility of having a bench trial for the guilt phase. Defense

counsel confirmed, stating ―I am inclined to agree to recommend to my client that if he‘s

agreeable, then we‘re agreeable to a court trial on the guilt phase[, although w]e would

still want a jury trial in the penalty phase.‖ At the next status conference, defense counsel

confirmed defendant had filed a written waiver of his right to a jury trial of the guilt

phase, stating, ―[W]e don‘t wish to have a jury decide [the issue of defendant‘s guilt or

innocence,] just the court.‖ The court indicated a personal appearance by defendant was

required for the waiver to be effective.

Defendant subsequently appeared in person via closed-circuit television to waive

his right to a guilt phase jury trial. In response to questioning by the court, defendant


indicated he understood (1) he had an absolute right to a jury trial in both the guilt and

penalty phases of his trial, (2) in a jury trial, if one of the 12 jurors was not convinced

beyond a reasonable doubt that defendant was guilty, the jury could not return a guilty

verdict, (3) if he waived his right to a jury trial, instead of 12 people deciding the issue of

his guilt or innocence, the judge alone would make that decision, and (4) it could be

easier for the prosecution to convince only one person, as opposed to 12, that defendant

was guilty beyond a reasonable doubt. Defendant nevertheless stated he wished to waive

his right to a jury trial for the guilt phase, confirming he had discussed the issue with his

counsel, who concurred in the waiver.

As relevant here, the Sixth Amendment to the United States Constitution provides:

―In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the state and district wherein the crime shall have been

committed . . . .‖ (See also Cal. Const., art. I, § 16 (―Trial by jury is an inviolate right and

shall be secured to all . . . .‖].) Although trial by jury is a fundamental constitutional

right, a criminal defendant may waive the right. (See Adams v. United States (1942) 317

U.S. 269, 275; see also Cal. Const., art. I, § 16.) However, ―[a]s with the waiver . . . of

several other constitutional rights . . . long . . . recognized as fundamental, [in order to be

valid] a defendant‘s waiver of the right to jury trial must be knowing and intelligent, that

is, ‗ ― ‗made with a full awareness both of the nature of the right being abandoned and the

consequences of the decision to abandon it,‘ ‖ ‘ as well as voluntary, ‗ ― ‗in the sense that

it was the product of a free and deliberate choice rather than intimidation, coercion, or

deception.‘ ‖ ‘ ‖ (People v. Collins (2001) 26 Cal.4th 297, 305.)

The conclusion defendant‘s waiver of a guilt phase jury was knowing, intelligent,

and voluntary is supported by his clear express waiver, made in open court, with

counsel‘s consent and agreement, and after a full explanation from the court of the right

and the consequences of the waiver. Conversely, the record does not support defendant‘s

contention that his waiver was induced by the ―inhumane courtroom restraints in the San


Bernardino County Courthouse.‖ Having been relieved of all physical restraints in the

courtroom and holding cell well before the guilt phase commenced, defendant would

have been restrained during the trial only for the time it took to transport him to and from

the holding cell and the courtroom. Having concluded this limited in-transit shackling

was not an abuse of the trial court‘s discretion and did not improperly coerce defendant to

waive his right to be present, we further conclude it did not improperly coerce

defendant‘s waiver of his right to a jury trial for the guilt phase, particularly as he was

permitted to remain completely unrestrained while in the courtroom.

4. The guilt phase bench trial as tantamount to a “slow plea of guilty”

Defendant claims defense counsel failed to mount a defense at the guilt phase—

presenting no affirmative witnesses, evidence, or defenses and conceding defendant‘s

guilt on all the charges—and contends this failure was the ―functional equivalent of a

slow plea of guilty‖ that denied defendant his state and federal constitutional rights to

enter a knowing and voluntary guilty plea following a full advisement of rights and

express waiver of those rights. Respondent argues that defendant forfeited this claim by

repeatedly rejecting the trial court‘s offers to set aside the guilt phase verdict and grant

him a new guilt phase trial with or without a jury, or, in the alternative, that defendant is

barred from raising it under the doctrine of invited error. We need not decide the

forfeiture and invited error issues, however, because even assuming the claim has not

been forfeited and is not barred, it lacks merit.

In In re Mosley (1970) 1 Cal.3d 913, we stated that if a defendant‘s stipulation to

submit a case for decision on the basis of the transcripts of the preliminary hearing is, in

the circumstances of the particular case, ―tantamount to a plea of guilty,‖ it must be

accompanied by Boykin-Tahl advice and waivers, that is, the advisement and express

personal waiver of three specific constitutional rights—the rights to a jury trial, to

confront and cross-examine witnesses, and against self-incrimination. (Mosley, at p. 924;


id. at p. 925 & p. 926, fn. 10; see Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl

(1969) 1 Cal.3d 122.) The phrase ― ‗tantamount to a plea of guilty‘ ‖ was used ―to

explain [the] extension of the Boykin-Tahl requirements to submissions in which the guilt

of the defendant was apparent on the basis of the evidence presented at the preliminary

hearing and in which conviction was a foregone conclusion if no defense was offered.‖

(Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602 (Bunnell).)2 We have further

suggested that ―a ‗slow plea‘ of guilty‖ may occur where a defendant submits the issue of

his or her guilt of the charged offense on the basis of the police report (In re Jennings

(2004) 34 Cal.4th 254, 265, fn. 5) or ―other documentation‖ (People v. Watson (2007) 42

Cal.4th 822, 826, fn. 3), or where a defendant in a capital case submits the issue of

penalty on the transcript of prior proceedings (People v. Robertson (1989) 48 Cal.3d 18,

39 (Robertson)).

In Robertson, we explained that ―submission‖ within the meaning of the slow plea

doctrine ―is defined by the rights a defendant surrenders.‖ (Robertson, supra, 48 Cal.3d

at p. 40.) ―Although the parties may reserve the right to present additional evidence, the

essential components of a submission are waiver of a jury trial and, with respect to the

witnesses who testified in the prior proceedings, waiver of the right to confrontation in

the present proceeding. [Citations.] When the submission is a ‗slow plea‘ or ‗tantamount

to a plea of guilty,‘ the defendant also gives up his privilege against self-incrimination.‖

(Ibid.; see Wright, supra, 43 Cal.3d at p. 495 [―If the submission does not amount to a

slow plea of guilty, there is no involuntary confession of guilt.‖].)

Defendant‘s stipulation to a bench trial for the guilt phase in this case was not

tantamount to a plea of guilty. (See Robertson, supra, 48 Cal.3d at p. 40; People v.


In Bunnell, as a matter of judicial policy we mandated Boykin-Tahl advisements

and waivers in all cases submitted for decision on the basis of the transcript of the
preliminary hearing. (Bunnell, supra, 13 Cal.3d at p. 605.) But unless the submission
was tantamount to a plea of guilty, a Bunnell error requires reversal only if the error was
prejudicial to the defendant. (People v. Wright (1987) 43 Cal.3d 487, 494–495 (Wright).)


Hendricks (1987) 43 Cal.3d 584, 592–594; Wright, supra, 43 Cal.3d at p. 497.) Although

in agreeing to the stipulation defendant gave up his right to a jury trial, he was advised of

and personally waived this right. In so stipulating he did not give up the right to

confrontation and cross-examination or to remain silent. To the contrary, defendant

enjoyed a full court trial during which he confronted, cross-examined, and attempted to

impeach the prosecution witnesses, and exercised his right against self-incrimination by

not taking the witness stand. Having fully exercised these rights, there was no need for

defendant to waive them. Additionally, defense counsel conceded neither guilt nor the

necessary elements of the various offenses, but rather required the prosecution to prove

every element of every crime through the testimony of 16 witnesses and attempted to

raise reasonable doubt in various areas. As counsel stated in closing argument, although

defendant may have wished to take responsibility for the crimes, ―failing a settlement that

I can live with, as a lawyer I must contest the charges.‖

5. The admission of defendant’s statements to law enforcement officers

and his videotaped reenactment

Defendant claims the trial court erred in admitting in both the guilt and penalty

phases of the trial the contents of his custodial interrogations and his videotaped

reenactment at the SOS store, in violation of his state and federal constitutional rights to

due process, to be free from self-incrimination, and to be subjected to custodial

interrogation only with the assistance of counsel. According to defendant, law

enforcement officers deliberately violated Miranda, supra, 384 U.S. 436, ignored an

unambiguous request for counsel, and used a variety of coercive tactics that, when

considered in their totality, demonstrate his statements were involuntary. He argues that

as a result, the incriminating statements were the product of repeated and intentional

violations of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and article I, section 15 of the California Constitution, and that the

allegedly erroneous admission of the confessions was prejudicial.


As discussed below, we conclude defendant understood the Miranda warnings he

was given, validly waived his Fifth Amendment rights to remain silent and to an attorney,

and made uncoerced statements to law enforcement officers. We therefore reject

defendant‘s arguments regarding his taped statements and the video reenactment.

a) Background

The prosecution first sought to introduce defendant‘s various interviews and the

video reenactment during the preliminary hearing. Defense counsel objected. At a

hearing on the issue, a magistrate judge found the detectives did not violate Miranda,

supra, 384 U.S. 436, did not make any false statements inducing the confessions, and did

not improperly fail to clarify a request for counsel. The judge further concluded

defendant was properly advised of and knew his rights, and the statements and the video

reenactment were made freely and voluntarily.

Before the guilt phase, defense counsel moved to suppress the custodial

statements, any resulting admissions, and the video reenactment. The trial court held an

evidentiary hearing at which evidence was presented concerning defendant‘s previous

interrogations by law enforcement officers in April 1982 and January 1988 in connection

with charges of oral copulation with Michelle I. and child molestation of Samira S.,

respectively. In each instance, defendant was advised of his Miranda rights and asked if

he understood them, whether he wanted to talk about the case, and whether he wanted a

lawyer; in each instance defendant agreed to talk to the officers without a lawyer and

either wrote down his responses to the waiver questions or signed a waiver statement.

Ontario Police Department detectives testified about an exchange that occurred

during the preliminary six minutes of their initial meeting with defendant in Deadwood,

South Dakota before they gave him the first Miranda warning. After introductions and

general questions about defendant‘s welfare, defendant asked detectives whether his

girlfriend, Costello, was in jail. Detective Ortiz responded, ―She‘s in our custody. She‘s


safeguarded.‖3 When defendant claimed that Costello was ―not involved in any of this‖

and ―shouldn‘t be in custody,‖ the detectives responded, ―[T]hat‘s what we need to find

out from you. . . . And this is your opportunity, okay . . . . We both have [the] suspicion

. . . that . . . she didn‘t have nothing [sic] to do with anything that happened before . . .

you started running. But basically we wanted to find out from you.‖ They also related

arriving at Folsom Prison to transport defendant to the video reenactment. The trial court

additionally considered the preliminary hearing testimony of three law enforcement

officers who were involved in the traffic stop and arrest of defendant.

Finally, several police officers testified concerning the department‘s practice at the

time of defendant‘s interrogations of deliberately omitting the ―express waiver‖ question

from Ontario Police Department form 4.17, from which Miranda advisements were read.

That question asked whether, having the Miranda rights in mind, the suspect wished to

talk to about the case. The practice of omitting this question was based on police

training, information gleaned from prosecutors, and confirmation from the courts

indicating such waiver was unnecessary. In October 1992, after defendant was

interrogated, the San Bernardino County District Attorney‘s Office issued a

memorandum advising the department to ask the express waiver question in their


With respect to the motion to suppress, the trial court found the detectives‘

comments during the first six minutes of the initial Deadwood interview, prior to giving a

Miranda admonition about Costello being ―in custody‖ and ―safeguarded,‖ to which

defendant responded by protesting Costello‘s innocence, constituted psychological

inducement or ―softening up‖ likely to evoke incriminating statements. Therefore,

defendant‘s responses during that time had been obtained in violation of Miranda. As to

his later statements after the first Miranda admonition, the court found by a


It appears that Costello in fact was staying at a hotel with a law enforcement



preponderance of the evidence under the totality of the circumstances that defendant

understood his constitutional rights, and his implied waiver of those rights ―was

voluntary and was a result of his own desire to make statements‖ and not the product of

the prior improper influences. The trial court also found that: (1) defendant‘s

incriminating statements were not induced by improper police conduct; (2) there was no

bad faith intent to violate his Miranda rights, as the detectives had a good faith belief that

the practice of not obtaining an express waiver was lawful; (3) defendant‘s ambiguous

comment about having ―someone here to talk for me‖ did not constitute an invocation of

the right to counsel; and (4) no further Miranda advisements were required for the

second, third and fourth Deadwood interviews because their purpose was merely to

briefly clarify matters covered in the first interrogation.

With respect to the video reenactment, the court found (1) Sergeant Lewis‘s

inquiry at Folsom Prison concerning whether defendant was willing to cooperate with

authorities in an ―ongoing investigation of a murder in a warehouse‖ was not a custodial

interrogation requiring a Miranda warning, and nothing Lewis said or did improperly

induced defendant‘s agreement to cooperate; (2) later, more specific questioning by the

detectives who went to the prison to retrieve defendant for the reenactment was improper

because an affirmative answer to the question whether defendant remained willing ―to

reenact the crimes,‖ in and of itself, would be incriminating, but this one question did not

influence defendant‘s previous agreement to cooperate; and (3) the reenactment was

validly conducted after a full Miranda advisement with an express waiver.

Consequently, the court ruled defendant‘s multiple statements and confessions

were admissible in the prosecution‘s case-in-chief during both the guilt and penalty

phases of the trial, with the exception of the first six minutes of the initial interview and

the in-prison questioning of defendant specifically about reenacting the crimes.


b) Analysis

Defendant advances various arguments in support of the proposition the trial court

erred in failing to suppress his statements to law enforcement officers and the video

reenactment as obtained in contravention of his constitutional right against compelled

self-incrimination. None of these arguments are persuasive.

(1) Alleged deliberate violation of Miranda

Defendant argues his custodial statements should have been suppressed because

they were obtained after a deliberate violation of Miranda, supra, 384 U.S. 436. This

deliberate violation allegedly occurred when, during the first interview, Detectives

Nottingham and Ortiz intentionally declined to seek an express waiver of defendant‘s

right to silence after giving the Miranda advisement.

In general, if a custodial suspect, having heard and understood a full explanation

of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk,

he or she has thereby knowingly, voluntarily, and intelligently waived them. (Colorado

v. Spring (1987) 479 U.S. 564, 574.) Law enforcement officers are not required to obtain

an express waiver of a suspect‘s Miranda rights prior to a custodial interview. (See

North Carolina v. Butler (1979) 441 U.S. 369, 373 (Butler) [―An express written or oral

statement of waiver of the right to remain silent or of the right to counsel is usually strong

proof of the validity of that waiver, but is not inevitably either necessary or sufficient to

establish waiver.‖].) Rather, a valid waiver of Miranda rights may, as here, be inferred

from the defendant‘s words and actions. (Butler, at p. 373.) As the detectives who

interrogated defendant were not required to obtain an express waiver of the right to

silence from him, the intentional failure to do so was not a deliberate Miranda violation

requiring the suppression of his subsequent statements.

(2) Alleged coercion of defendant’s custodial statements

Alternatively, defendant contends his incriminating custodial statements were

involuntary in light of a combination of other factors, including his compromised mental


state, the detectives‘ use of deception, and their implied promise to help his companion,


The test for the voluntariness of a custodial statement is whether the statement is

― ‗the product of an essentially free and unconstrained choice‘ ‖ or whether the

defendant‘s ― ‗will has been overborne and his capacity for self-determination critically

impaired‘ ‖ by coercion. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225.) No

single factor is dispositive; ―rather courts consider the totality of [the] circumstances.‖

(People v. Williams (1997) 16 Cal.4th 635, 661 (Williams); see People v. Neal (2003) 31

Cal.4th 63, 79 (Neal).) Relevant considerations include ― ‗the crucial element of police

coercion [citation]; the length of the interrogation [citation]; its location [citation]; its

continuity‘ as well as ‗the defendant‘s maturity [citation]; education [citation]; physical

condition [citation]; and mental health.‘ ‖ (Williams, at p. 660; see Neal, at p. 84

[appellate review entails ― ‗inquiry into all the circumstances,‘ including ‗evaluation of

[defendant‘s] age, experience, education, background, and intelligence‘ ‖].)

―In assessing allegedly coercive police tactics, ‗[t]he courts have prohibited only

those psychological ploys which, under all the circumstances, are so coercive that they

tend to produce a statement that is both involuntary and unreliable.‘ ‖ (People v. Smith

(2007) 40 Cal.4th 483, 501; see, e.g., People v. Kendrick (1961) 56 Cal.2d 71, 84

(Kendrick) [―a confession has been held involuntary and inadmissible where it was

obtained as a result of . . . such inducements as a promise to do for an accused all that

could be done [citation] or to protect the accused‘s family from retaliation [citation] or a

statement that if the accused confessed the punishment would be lighter [citation] or that

it would be better for him to confess [citation] or by threats to hold the accused‘s


Additionally, although coercive police conduct is a necessary predicate, such

conduct does not compel a finding that the resulting statement is involuntary. (People v.

Jablonski (2006) 37 Cal.4th 774, 814 (Jablonski).) A confession is involuntary only if


the coercive police conduct at issue and the defendant‘s statement are causally related.

(Colorado v. Connelly (1986) 479 U.S. 157, 164, fn. 2, & 167; Jablonski, at p. 814 [The

police misconduct ― ‗must be . . . the ―proximate cause‖ of the statement in question, and

not merely a cause in fact.‘ ‖]; see, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1095–

1096 [the defendant‘s statements were not coerced by false threats of arrest; the sole

cause appearing in the record for his cooperation during the interview was the desire to

exculpate himself]; Williams, supra, 16 Cal.4th at p. 661 [promises of leniency were ―not

the motivating cause of [the] defendant‘s admissions‖].)

Here, even assuming, as the trial court found, the detectives engaged in improper

―softening up‖ at the outset of the first interview by claiming defendant‘s companion,

Costello, was in custody and implying defendant could exonerate her by speaking to

them, the totality of the circumstances of the interrogation support the conclusion

defendant‘s statements given after he was later advised of his Miranda rights were

voluntary and not the product of psychological inducement. The detectives‘ comments

concerning Costello were relatively brief, lasting only three-to-four minutes of the

preliminary six minutes of the interview and fell ―far short of a threat to arrest‖ Costello

unless defendant confessed. (Kendrick, supra, 56 Cal.2d at p. 86.) Importantly, the

comments were immediately followed by the first of two Miranda advisements given to

defendant, following both of which defendant stated unequivocally he understood the

rights read to him and continued to talk to the detectives and to answer their questions.

(Cf. People v. Honeycutt (1977) 20 Cal.3d 150, 158, 160 [a half-hour of ―clever

softening-up, . . . disparagement of the victim and ingratiating conversation‖ induced the

defendant to agree to talk about the homicide well before being advised of his Miranda


During the interview, defendant indicated several times that, for various personal

reasons, he had decided beforehand to talk to the detectives about the case. Defendant‘s

pre-interview decision is the sole reason appearing in the record for his cooperation. It


thus does not appear the detectives‘ alleged attempts at softening up defendant overcame

his will to resist or his ability to freely determine whether he wanted to talk to the

detectives, such that it could be said the short discussion regarding Costello was the

proximate cause of defendant‘s later incriminating statements.

We further note neither the length nor physical circumstances of the interrogation

appear to have been coercive; the initial interview was spread over a four-hour period

with the detectives offering defendant both food and drink. Nor was the tone of the

questioning as evidenced in the transcript particularly harsh or accusatory.

Additionally, at the time of the interview, defendant was ―a man of mature years

with an extensive criminal history.‖ (Jablonski, supra, 37 Cal.4th at p. 815.) In his 42

years, he had had extensive prior contacts with law enforcement and the criminal justice

system, including having served two prior prison terms and one prior county jail term. In

connection with his felony convictions, defendant twice had been interviewed by law

enforcement officers, during which he was advised of and executed express written

waivers of his Miranda rights.

Finally, with respect to defendant‘s mental state, it does not appear the detectives

exploited any psychiatric problems in order to produce the incriminating statements.

Before interviewing him, the detectives inquired about defendant‘s general welfare and

mental state, and in response he expressed no concerns regarding his well-being or

treatment, stating he had slept 24 hours straight.

Defendant nevertheless argues his soft-spoken nature, various references to

dreams and experiences in the Vietnam War, and ―consistently vague‖ responses

demonstrate his fragile mental state during the interview. We disagree. A fair

assessment of the interview in its entirety shows defendant responded to the detectives‘

inquiries while exhibiting normal emotions to be expected of a murder suspect facing his

accusers and reliving the details of a horrible crime. That a murder suspect is soft-spoken

is less an indication of mental illness than an understandable and expected reaction of a


person confronted with committing such horrendous crimes. Nor does the circumstance

defendant may have dreamed about the homicides and their likely ramifications

necessarily show the existence of mental defect. Although he became emotional at times,

defendant also took considerable time to weigh his responses before answering the

detectives‘ questions. Some answers may have required clarification, but they were

generally responsive. We note the detectives believed the references to Vietnam were

defendant‘s attempt to build a defense.

Lastly, defendant‘s incriminating statements were not rendered involuntary by any

mental disease or defect. Even if some of defendant‘s behavior was irrational or bizarre,

there is no evidence his ―abilities to reason or comprehend or resist were in fact so

disabled that he was incapable of free or rational choice.‖ (In re Cameron (1968) 68

Cal.2d 487, 498; see, e.g., People v. Frye (1998) 18 Cal.4th 894, 988 (Frye) [defendant‘s

consumption of alcohol did not so impair his reasoning that ―he was incapable of freely

and rationally choosing to waive his rights and speak with the officers‖]; People v.

Mayfield (1993) 5 Cal.4th 142, 204 [defendant, who throughout the lengthy interview

sounded lucid, spoke clearly if somewhat slowly, and at times ―engaged in animated,

jocular, prideful, indignant or defiant conversation‖ with the detectives, was not mentally

impaired when he made his audiotaped statement].)

(3) Failure to terminate the interrogation after defendant allegedly

invoked his right to counsel

Defendant contends his incriminating statements should have been suppressed

because detectives ignored an unambiguous request for an attorney. He claims he

invoked his right to counsel during the first interview when he stated, ―I committed an

armed robbery yes. Should I have somebody here talking for me, is this the way it‘s

supposed to be?‖ We conclude defendant‘s vague question did not qualify as an

unequivocal invocation of the right to counsel requiring the cessation of questioning.


Once a defendant has waived his or her right to counsel, as defendant impliedly

did at the outset of the interview, if that defendant has a change of heart and subsequently

invokes the right to counsel during questioning, officers must cease interrogation unless

the defendant‘s counsel is present or the defendant initiates further exchanges,

communications, or conversations. (See Edwards v. Arizona (1981) 451 U.S. 477, 484

485.) For a statement to qualify as an invocation of the right to an attorney, however, the

defendant ―must unambiguously request counsel. . . . [H]e must articulate his desire to

have counsel present sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be a request for an attorney.‖ (Davis v.

United States (1994) 512 U.S. 452, 459 (Davis).) ―[A] reviewing court—like the trial

court in the first instance—must ask whether, in light of the circumstances, a reasonable

officer would have understood a defendant‘s reference to an attorney to be an

unequivocal and unambiguous request for counsel, without regard to the defendant‘s

subjective ability or capacity to articulate his or her desire for counsel, and with no

further requirement imposed upon the officers to ask clarifying questions of the

defendant.‖ (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125 (Gonzalez); see People v.

Williams (2010) 49 Cal.4th 405, 428 [―[T]he question of ambiguity in an asserted

invocation must include a consideration of the communicative aspect of the invocation—

what would a listener understand to be the defendant‘s meaning.‖].)

Here, before the disputed exchange, defendant volunteered, ―I know what you

guys are getting at. . . . I also want you to know that the reason why I‘m so calm is

because I‘m where I belong.‖ When asked to clarify what he meant, defendant replied,

―You know as well as I do that I committed an armed robbery in Ontario‖ at ―Mike‘s

company.‖ When Detective Ortiz indicated he wanted additional clarification, defendant

reiterated, ―I committed an armed robbery yes,‖ and then asked, ―Should I have

somebody here talking for me, is this the way it‘s supposed to be?‖ Far from

unambiguously requesting counsel, defendant appeared to be expressing frustration at the


detectives‘ attempts to clarify his initial statements regarding the armed robbery. At

most, a reasonable officer could have understood defendant‘s inquiry as an indication he

might want an attorney, in which case the detectives still would not have been required to

terminate the interrogation. (See Davis, supra, 512 U.S. at p. 459 [―[I]f a suspect makes

a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in

light of the circumstances would have understood only that the suspect might be invoking

the right to counsel, our precedents do not require the cessation of questioning.‖].)

Defendant complains the detectives should have asked questions to clarify whether

he was invoking his right to counsel. There is no requirement law enforcement officers

interrupt an interrogation to ask clarifying questions following a suspect‘s ambiguous or

equivocal responses that might or might not be construed as an invocation of the right to

an attorney. (Davis, supra, 512 U.S. at pp. 461–462; see People v. Farnam (2002) 28

Cal.4th 107, 181.) We again note defendant had extensive prior contacts with the police,

including two interviews in which he expressly waived his right to counsel. The

detectives in this case ―could reasonably have assumed that defendant was capable of

making an unequivocal request for counsel if he so desired.‖ (Gonzalez, supra, 34

Cal.4th at p. 1127.) Moreover, after defendant‘s question and before the resumption of

questioning, defendant was again advised of his Miranda rights, expressly stated he

understood them, and continued to talk to the detectives rather than invoke his right to

counsel or to silence. Later in the interview, defendant specifically confirmed the intent

to waive his right to counsel when he stated he did not want to fight the case, did not need

a lawyer, did not ―believe in the routine of lawyers, or courts and all that,‖ and did not

feel a lawyer could do anything for him.

Considering the totality of the circumstances, ―[s]hould I have somebody here

talking for me‖ was not an unambiguous request for counsel requiring detectives to cease

interrogating defendant. (See, e.g., Gonzalez, supra, 34 Cal.4th at p. 1126 [defendant‘s

conditional statement that he wanted a lawyer ―if he was going to be charged‖ was not an


invocation of right to counsel]; People v. Crittenden (1994) 9 Cal.4th 83, 124, 128–131

(Crittenden) [defendant‘s query—― ‗Did you say I could have a lawyer?‘ ‖—was a

clarification of rights rather than an unambiguous invocation]; People v. Johnson (1993)

6 Cal.4th 1, 27 [defendant‘s statements that ― ‗Maybe I ought to talk to my lawyer, you

might be bluffing, you might not have enough to charge murder‘ ‖ and that his mother

would secure ― ‗a high price[d]‘ lawyer‖ was not an invocation].)

(4) Failure to suppress the videotaped reenactment

Finally, defendant raises various additional challenges to the admission of the

videotaped reenactment of the crimes. First, relying on People v. Bonillas (1989) 48

Cal.3d 757, and People v. Thompson (1980) 27 Cal.3d 303, defendant claims the

reenactment should have been suppressed because the detectives took advantage of a

postarrest delay in his arraignment, suggesting had his arraignment not been delayed,

counsel would have been appointed and likely would have advised defendant not to

participate in the reenactment. Bonillas and Thompson, however, involved defendants

who had been arrested for the crimes that later formed the basis for their arraignments.

(See Bonillas, at p. 787; Thompson, at p. 328.) In this case, defendant was arrested in

South Dakota and returned to Folsom Prison for a parole violation unrelated to the SOS

crimes. No arrest warrant for the SOS homicides had issued before the reenactment.

Accordingly, Bonillas and Thompson are inapposite.

In the alternative, defendant argues his Sixth Amendment right to counsel attached

when he became the focus of the SOS investigation and the delay violated his right to

counsel regardless of the fact he was arrested and confined for a parole violation.

However, ―[a] criminal defendant‘s right to the assistance of counsel under the Sixth

Amendment does not exist until the state initiates adversary judicial criminal

proceedings, such as by formal charge or indictment.‖ (People v. DePriest (2007) 42

Cal.4th 1, 33 (DePriest); see Frye, supra, 18 Cal.4th at p. 987; see also People v.


Huggins (2006) 38 Cal.4th 175, 244–245.) Moreover, the ―right to counsel is ‗offense

specific‘ ‖ and ―may be asserted only as to those offenses for which criminal proceedings

have formally begun.‖ (DePriest, supra, at p. 33; People v. Webb (1993) 6 Cal.4th 494,

527.) Before the reenactment, there were no adversarial judicial proceedings, formal

charges, or indictment pending in connection with the SOS crimes. Thus, defendant‘s

right to the assistance of counsel for those offenses had not attached at the time of the


Defendant relies on Escobedo v. Illinois (1964) 378 U.S. 478, 490–491 to argue

the right to counsel attached when he became the focus of the detectives‘ investigation.

Defendant‘s reliance on Escobedo is misplaced. As we have previously explained, the

high court has made clear the right to counsel at issue there was related to the Fifth

Amendment privilege against self-incrimination and prophylactic measures available to

suspects undergoing custodial interrogation, and not the Sixth Amendment right to

counsel. (DePriest, supra, 42 Cal.4th at p. 34, fn. 9.) Moreover, the ―focus‖ rule

defendant urges that might once have applied in the context of the right against self-

incrimination, has since been repudiated. (See, e.g., Stansbury v. California (1994) 511

U.S. 318, 326.)

Finally, defendant claims the reenactment should have been suppressed because

his cooperation was improperly induced by Sergeant Lewis‘s ―promise‖ that he would be

transferred out of Folsom Prison. The record belies this claim. As the trial court found,

Lewis simply asked defendant whether he was willing to cooperate with an ongoing

investigation and if so, detectives would be picking him up that weekend. Despite

defendant‘s concerns about being placed in administrative segregation and a high security

unit, Lewis specifically testified that no promises concerning defendant‘s housing

situation at the prison were made to induce his cooperation. Additionally, any prior

softening up regarding Costello that might have occurred during the initial interview was


not a factor at the time of the reenactment, as Costello had long been cleared of any

suspected wrongdoing. The reenactment thus was properly admitted.

6. Cumulative prejudice

Defendant contends that even if the alleged errors at the guilt phase of the trial

were individually harmless, they were cumulatively prejudicial. We have found a single

error, a violation of defendant‘s statutory right to be present, and, assuming the issue was

not forfeited, concluded that error was harmless. There are no additional errors to

cumulate and therefore no cumulative prejudice.

B. Penalty Phase Issues

1. Jury selection issues

a) Exclusion of Hispanic jurors from the penalty phase jury.

Defendant alleges that the jury selection procedures utilized in the Rancho

Cucamonga District of the San Bernardino County Superior Court systematically

excluded Hispanics and that the trial court erred in denying his motion to quash the jury

venire. As a result, he contends, his penalty phase jury was not composed of a

representative cross-section of the community, depriving him of his right to due process

and a fair trial before an impartial jury in violation of the Sixth and Fourteenth

Amendments to the United States Constitution and article I, section 16 of the California

Constitution. The error, he argues, is structural, requiring automatic reversal.

We conclude the trial court did not err in denying defendant‘s motion to quash, as

defendant failed to make a prima facie showing of the systematic exclusion of Hispanic

jurors. This claim therefore is without merit.

(1) Background

During penalty phase jury selection, defendant filed a motion to quash the jury

panel on the ground Hispanics were systematically excluded from those summoned for


service in the Rancho Cucamonga District. The trial court conducted a hearing on the

motion, in which the following evidence was presented.

Shirley Stoudt, the Deputy Jury Commissioner of San Bernardino County Superior

Court, testified concerning how potential jurors were summoned from a master list

compiled from Department of Motor Vehicles and Registrar of Voters records, and then

processed according to statutory exemptions as well as the California Rules of Court.

The jury commissioner‘s office was not aware of the race, religion, or ethnic background

of the jurors when excusing or exempting them for service and, according to Stoudt, did

nothing to keep any minority group off the jury panels. A voluntary countywide survey

of potential jurors showed 4.3 percent were excused for language difficulties and 1.78

percent were excused for lack of citizenship. Although these figures included all

languages and noncitizens and the individuals were not asked to state their ethnic or

racial background, she estimated that Hispanics and Spanish-speaking individuals would

have constituted a larger percentage of these groups than other ethnicities.

Julia Arias, a politically active elementary school teacher and community leader

who grew up in Fontana and Rancho Cucamonga, testified concerning her childhood,

education, and religious upbringing and the racial discrimination her family faced.4 Arias

felt Hispanics were underrepresented on juries because they were forced to refuse jury

service in order to preserve their ―meager pay‖ and because they were unaware of the

importance of exercising their right to vote. She then read various statistics from the

Weeks study (discussed below) and suggested the court read the survey ―more carefully‖

to find out what was happening to her community. John Weeks, Ph.D.,5 was retained by


The trial court permitted Arias to give a narrative statement rather than respond to

questions from defense counsel.


A professor of geography and director of the International Population Center at

San Diego State University, Weeks had previously qualified as an expert witness in
demography and statistics in more than 50 cases.


the defense to conduct a demographic survey of jurors reporting for jury duty in San

Bernardino County. Of 574 potential jurors for the Rancho Cucamonga District surveyed

over the course of five weeks, 16.9 percent indicated they were Hispanic. Weeks

compared this to the 23.1 percent he estimated to be Hispanics in the ―juror eligible‖

population in the Rancho Cucamonga District in 1995. Weeks geometrically

extrapolated the 23.1 percent figure from 1980 and 1990 census data and from

projections of the ethnic makeup of every county in the state for 2000 and 2010 by the

California Department of Finance, Demographic Research Unit. Based on these figures,

Weeks found there was an ―absolute disparity‖6 of 6.2 percent between the number of

Hispanics reporting for jury duty and the number of eligible Hispanics residing in the

judicial district. Dividing the absolute disparity of 6.2 percent by the community percent

of 23.1, he concluded there was a ―relative disparity‖7 of 27 percent. Thus, according to

Weeks, there were 27 percent fewer Hispanics in the Rancho Cucamonga jury pool than

would be expected from the demographics of the community. Dividing the results by

gender, he further found an absolute disparity of 7.2 percent and relative disparity of 30

percent for male Hispanics.8


― ‗Absolute disparity‘ is the difference between the underrepresented group‘s

percentage in the jury-eligible population and the group‘s percentage in the actual jury
venire.‖ (People v. Anderson (2001) 25 Cal.4th 543, 564, fn. 6 (Anderson).)


Relative or ― ‗comparative disparity‘ measures the percentage by which the

number of group members in the actual venire falls short of the number of group
members one would expect from the overall ‗eligible population‘ ‖ of the group who are
eligible for jury service. (Anderson, supra, 25 Cal.4th at p. 564, fn. 6; People v. Ramirez
(2006) 39 Cal.4th 398, 441 (Ramirez); People v. Sanders (1990) 51 Cal.3d 471, 492, fn. 5
(Sanders).) In this case, 6.2 percent divided by 23.1 percent is 26.8 percent.


However, Weeks admitted on cross-examination that based solely on 1990 census

data, Hispanics comprised 18.7 percent of the jury-eligible population, which translated
to an absolute disparity of Hispanic jurors of only 1.8 percent and a relative disparity of
10 percent.


Relying on the above disparities, Weeks concluded there was ―a substantive and a

statistically significant underrepresentation of Hispanics showing up for jury duty in the

Rancho Cucamonga District courthouse.‖ The biggest alleged cause of the disparity was

lack of follow-up by the jury commissioner‘s office for unserved jury summonses.

Weeks also criticized the summons form for stating ―do not forward,‖ for prominently

inviting excusal requests, and for not explicitly asking for address corrections. He

believed this disadvantaged Hispanics who were more ―residentially mobile‖ than non-

Hispanics. Based on Weeks‘s opinions, defendant argued the court could end the

systematic discrimination and disenfranchisement of Hispanics in San Bernardino County

by prohibiting the removal of jurors except for the reasons authorized under Code of

Civil Procedure section 203,9 by preventing jury clerks from removing jurors without

judicial authorization, and by taking measures to ensure adequate follow-up of jurors who

initially fail to appear for jury service. Weeks claimed that San Diego County had made

―some remedies‖ in this regard, which increased the number of Hispanics on its master


The trial court denied defendant‘s motion to quash the jury venire, ruling there

was no underrepresentation of Hispanics by significant numbers due to systematic

exclusion in the jury selection process.


Code of Civil Procedure section 203, subdivision (a), provides in part: ―All

persons are eligible and qualified to be prospective trial jurors, except the following:

―(1) Persons who are not citizens of the United States.

―(2) Persons who are less than 18 years of age.

―(3) Persons who are not domiciliaries of the State of California . . . .

―(4) Persons who are not residents of the jurisdiction wherein they are summoned

to serve.

―(5) Persons who have been convicted of malfeasance in office or a felony, and

whose civil rights have not been restored.

―(6) Persons who are not possessed of sufficient knowledge of the English

language . . . .

―(7) Persons who are serving as grand or trial jurors in any court of this state.

―(8) Persons who are the subject of conservatorship.‖


(2) Analysis

―In order to establish a prima facie violation of the fair-cross-section requirement,

the defendant must show (1) that the group alleged to be excluded is a ‗distinctive‘ group

in the community; (2) that the representation of this group in venires from which juries

are selected is not fair and reasonable in relation to the number of such persons in the

community; and (3) that this underrepresentation is due to systematic exclusion of the

group in the jury-selection process.‖ (Duren v. Missouri (1979) 439 U.S. 357, 364.)

Defendant ―satisfied the first prong of this test, because Hispanics are a ‗distinctive‘ or

cognizable group.‖ (Ramirez, supra, 39 Cal.4th at p. 445; see Castaneda v. Partida

(1977) 430 U.S. 482, 495.) With respect to the second prong, however, he failed to show

the representation of Hispanic jurors was unfair and unreasonable compared to their

numbers in the community.

Respondent contends the most reliable figures provided by defense expert Weeks,

based solely on 1990 census data, demonstrated an absolute disparity of Hispanic jurors

of only 1.8 percent and a relative disparity of only 10 percent. But even assuming the

statistical disparities Weeks calculated based on extrapolations for 1995 were credible—

an absolute disparity of 6.2 percent and a relative disparity of 27 percent for all

Hispanics, and an absolute disparity of 7.2 percent and relative disparity of 30 percent for

male Hispanics—defendant still failed to satisfy the second prong because such

disparities are not constitutionally significant. (See, e.g., People v. Burgener (2003) 29

Cal.4th 833, 856 (Burgener) [expressing uncertainty as to whether an absolute disparity

of 10.7 percent, which produced a relative disparity of 65 percent, satisfied the second

prong of the Duren test]; People v. Ramos (1997) 15 Cal.4th 1133, 1156 [concluding an

absolute disparity between 2.7 and 4.3 percent and a comparative disparity between 23.5

and 37.4 percent was not constitutionally significant]; People v. Bell (1989) 49 Cal.3d

502, 528, fn.15 [finding it was ―far from clear‖ that a 5 percent absolute disparity was

sufficient]; see also Swain v. Alabama (1965) 380 U.S. 202, 208–209 [10 percent


absolute disparity inadequate]; U. S. v. Cannady (9th Cir. 1995) 54 F.3d 544, 548

[―absolute disparities below 7.7% are insubstantial and constitutionally permissible‖].)

Even had defendant demonstrated a constitutionally significant disparity, he still

would have failed to satisfy the third prong of the test. ―A defendant does not discharge

the burden of demonstrating that the underrepresentation was due to systematic exclusion

merely by offering statistical evidence of a disparity. A defendant must show, in

addition, that the disparity is the result of an improper feature of the jury selection

process.‖ (Burgener, supra, 29 Cal.4th at p. 857.)

The Rancho Cucamonga District master list used in this case was derived from

Department of Motor Vehicle‘s and voter registration lists. We have held that such a list

― ‗ ―shall be considered inclusive of a representative cross-section of the population‖ ‘

where it is properly nonduplicative.‖ (People v. Ochoa (2001) 26 Cal.4th 398, 427

(Ochoa); see, e.g., Code Civ. Proc. § 197, subd. (b) [a master jury list assembled from

lists of registered voters and driver‘s license holders, ―when substantially purged of

duplicate names, shall be considered inclusive of a representative cross section of the

population‖].) There is no suggestion that the master list was duplicative in any way.

As shown by the jury commissioner‘s testimony, moreover, juror excusals were

based on race-neutral reasons provided by statute and the California Rules of Court.

Indeed, the excusal forms did not even indicate the prospective juror‘s race. The excusal

categories of non-citizenship and lack of understanding of English encompassed all

ethnicities and national origins, not simply Hispanics or Spanish-speaking individuals.

―Where, as here, a county‘s jury selection criteria are neutral with respect to the

distinctive group, the defendant must identify some aspect of the manner in which those

criteria are applied that is not only the probable cause of the disparity but also

constitutionally impermissible.‖ (Burgener, supra, 29 Cal.4th at p. 858; see Sanders,

supra, 51 Cal.3d at pp. 492–493 [―Evidence that ‗race/class neutral jury selection

processes may nonetheless operate to permit the de facto exclusion of a higher percentage


of a particular class of jurors than would result from a random draw‘ is insufficient to

make out a prima facie case.‖].) Defendant failed to do so in this case.

Julia Arias, the community activist who testified for the defense, suggested

Hispanics were underrepresented because they were unaware of the importance of voting.

However, ―the failure of a particular group to register to vote in proportion to its share of

the population cannot constitute improper exclusion attributable to the state.‖ (Ochoa,

supra, 26 Cal.4th at p. 427.) Arias also speculated Hispanics were forced to refuse jury

service in order to avoid losing the ―meager pay‖ they received in their employment.

And defense expert John Weeks suggested, without citation to evidence, that Hispanics in

Rancho Cucamonga were ―residentially mobile‖ because they had low incomes, were

unlikely to own homes and were transient as renters, and consequently more difficult to

summon for jury duty. However, ―[s]peculation as to the source of the disparity is

insufficient to show systematic exclusion [citation], as is evidence the disparity is

unlikely to be a product of chance [citation] or has endured for some time [citation].‖

(Burgener, supra, 29 Cal.4th at p. 858.)

Finally, Weeks opined San Bernardino County could have remedied the alleged

disparity in Hispanic jurors by following up on unserved summonses, soliciting address

corrections, and making the excusal form less prominent. Even assuming he was correct,

merely pointing to a remedy is not enough. (Ochoa, supra, 26 Cal.4th at p. 428.) The

United States Constitution, while forbidding the exclusion of members of a cognizable

class of jurors, ― ‗ ―does not require that venires created by a neutral selection procedure

be supplemented to achieve the goal of selection from a representative cross-section of

the population.‖ ‘ [Citation.] So long as the state uses criteria that are neutral with

respect to the underrepresented group, the state‘s failure to adopt other measures to

increase the group‘s representation cannot satisfy Duren‘s third prong.‖ (Burgener,

supra, 29 Cal.4th at pp. 857–858.)


As defendant did not satisfy his burden under the second and third prongs of

Duren, a prima facie case of underrepresentation and systematic exclusion of Hispanic

jurors was not made. Accordingly, the trial court properly denied defendant‘s motion to

quash the venire.

b) Exclusion of life-inclined juror for cause

Defendant claims the trial court erroneously excluded Prospective Juror G.P. for

cause based solely on his written answers to a jury questionnaire and without any

opportunity for voir dire. He contends that if G.P. had been given the opportunity to

respond to questions in person, the court could have clarified whether he was qualified to

serve on a capital jury. As a result of the allegedly improper removal of this prospective

juror, defendant argues he was subjected to ―a tribunal organized to return a verdict of

death‖ in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution and article I, sections 15 and 16 of the California Constitution.

To the extent defendant asserts error in the court‘s ruling on challenges for cause

based solely on the jurors‘ responses to the questionnaires without voir dire, the claim is

forfeited because he stipulated to this procedure. On the merits, we conclude the court

did not err in excusing Prospective Juror G.P. for cause based on his juror questionnaire,

in which he stated an inability to impose the death penalty in a contested penalty phase.

(1) Background

Before jury selection for the penalty phase, defendant moved for sequestered voir

dire of prospective jurors.10 The trial court denied the request for individual voir dire of

all jurors but acknowledged that oral or questionnaire responses might warrant

sequestered voir dire of particular jurors on particular issues.


Code of Civil Procedure section 223 provides that ―[v]oir dire of any prospective

jurors shall, where practicable, occur in the presence of the other jurors in all criminal
cases, including death penalty cases.‖


Thereafter, the trial court proposed ruling on stipulated dismissals, followed by

challenges for cause based solely on questionnaire responses, noting that denial of any

challenge would be without prejudice, allowing counsel the opportunity to individually

question the juror. ―Regular‖ voir dire would then be conducted on the rest of the panel.

Defense counsel endorsed this procedure as ―the next best thing‖ to sequestered voir dire

of the entire jury panel and commented on ―[t]he beauty of the Court‘s procedure‖ in

protecting against potential jurors who may ―pollute the panel.‖ As the time for jury

selection neared, defendant personally appeared in court and expressly agreed to this

procedure, which the court, pursuant to the parties‘ stipulation, then utilized.

Both the prosecution and defense moved to exclude for cause various prospective

jurors solely on the basis of their questionnaire responses. Prospective Juror G.P. was

among those whom the prosecutor challenged. In his questionnaire, when asked whether

he had ―any philosophical, religious, or moral feelings that would make it difficult or

impossible for you to sit in judgment of another person,‖ G.P. wrote ―being educated and

raised in the strict Catholic teachings and standards, I find it hard to be a judge of another

person. I was taught that God is the only rightful judge.‖ Although he also wrote, ―I

have no problem in judging as to whether or not a person is guilty or has done wrong,‖ he

indicated that he did ―have a problem as to whether or not punishment or appropriate

punishment is right or wrong.‖ Despite his generally enjoying jury service ―because the

law has always been fascinating‖ to him, G.P. reiterated, ―[i]t just so happens that

sentencing someone is against my beliefs.‖

Prospective Juror G.P. further wrote he would be greatly influenced by the

Catholic Church‘s opposition to the death penalty, writing ―I have always been taught to

try to understand why people become the way they are and that one might always forgive

and that one might never lose hope. Somehow these teachings have become my own and

have influenced my decision in life.‖ G.P. reaffirmed he ―strongly‖ opposed the death

penalty, opining it served only an economic purpose and was part of a system that ―has


lost all hope. That should not be the case in any system.‖ When asked ―what types of

crime, if any, deserve the death penalty,‖ he answered, ―I couldn‘t think of one.‖ G.P.

also wrote life in prison without parole served no purpose other than draining the

economy and he would ―only agree to it if it is the only solution for a person not to

commit harm to society again.‖

Prospective Juror G.P. indicated he would ―have to hear the case first‖ to know

whether he could impose life without the possibility of parole or the death penalty. He

also stated it was ―very possible‖ to see himself rejecting the death penalty and choosing

life without possibility of parole ―because of my beliefs,‖ but rejecting life without the

possibility of parole and choosing the death penalty was ―a possibility‖ only if the

defendant ―himself requests it and if he is sound in mind and body.‖

The defense argued that although Prospective Juror G.P. expressed a preference

for life without the possibility of parole, his responses also indicated he would be willing

to listen to the case before selecting a punishment. The prosecution responded that G.P.‘s

answers demonstrated his religious beliefs, which taught him the death penalty was

improper, would override this willingness. Defense counsel did not ask to question G.P.

in order to clarify his qualification to serve on a capital jury. Without conducting voir

dire of G.P., the court granted the challenge for cause, finding his strong religious beliefs

combined with his strong opposition to the death penalty indicated he would be

―substantially impaired in seriously considering the death penalty as an option.‖

(2) Analysis

Defendant argues the trial court erred in failing to conduct voir dire to clarify

Prospective Juror G.P.‘s views on capital punishment and in granting the prosecutor‘s

challenge based on his juror questionnaire responses alone. However, defendant forfeited

this claim when he expressly agreed to that procedure. Defendant, moreover, did not

request individual voir dire of Prospective Juror G.P. before the court ruled on the


prosecutor‘s challenge for cause, instead opposing the challenge by arguing that G.P.‘s

questionnaire responses indicated he could be a fair juror. (People v. Cook (2007) 40

Cal.4th 1334, 1342 (Cook) [defendant who agreed to ― ‗submit on the questionnaire‘ ‖

challenges for cause to certain prospective jurors and waived any further questioning,

forfeited right to complain on appeal of the court‘s failure to interrogate that prospective

juror]; cf. People v. Stewart (2004) 33 Cal.4th 425, 452 (Stewart) [finding error where

trial court acted without the parties‘ prior agreement in granting several prosecution

challenges for cause solely on the basis of the questionnaire responses, despite 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].)

Alternatively, defendant contends the trial court erred in excluding Prospective

Juror G.P. for cause simply because he expressed strong opposition to the death penalty

in his questionnaire. A prospective juror‘s personal views concerning the death penalty

do not necessarily afford a basis for excusing the juror for bias in a capital case. (See

Uttecht v. Brown (2007) 551 U.S. 1, 6 [― ‗[A] man who opposes the death penalty, no less

than one who favors it, can make the discretionary judgment entrusted to him by the

State.‘ ‖].) Rather, ―[t]o achieve the constitutional imperative of impartiality, the law

permits a prospective juror to be challenged for cause only if his or her views in favor of

or against capital punishment ‗would ―prevent or substantially impair the performance of

his [or her] duties as a juror‖ ‘ in accordance with the court‘s instructions and the juror‘s

oath.‖ (People v. Blair (2005) 36 Cal.4th 686, 741, quoting Wainwright v. Witt (1985)
469 U.S. 412, 424; see Witherspoon v. Illinois (1968) 391 U.S. 510.) Under this

standard, a prospective juror is properly excluded in a capital case if he or she is unable to

follow the trial court‘s instruction and ―conscientiously consider all of the sentencing

alternatives, including the death penalty where appropriate.‖ (People v. McWhorter

(2009) 47 Cal.4th 318, 340; see People v. Jenkins (2000) 22 Cal.4th 900, 987 (Jenkins).)


A trial court‘s ruling on a challenge for cause based solely on a juror‘s responses

on a written questionnaire is subject to de novo review by this court. (People v. Avila

(2006) 38 Cal.4th 491, 529 (Avila).) We review the record to determine whether the trial

court had sufficient information regarding Prospective Juror G.P.‘s state of mind to

permit it to reliably determine whether his views on the death penalty would prevent or

substantially impair the performance of his duties in this case. (Stewart, supra, 33

Cal.4th at p. 445; see also Avila, at p. 531 [―a prospective juror in a capital case may be

discharged for cause based solely on his or her answers to the written questionnaire if it is

clear from the answers that he or she is unwilling to temporarily set aside his or her own

beliefs and follow the law‖].)

In Cook, supra, 40 Cal.4th at pages 1343–1344, and Avila, supra, 38 Cal.4th at

page 532, we upheld the trial court‘s orders excusing prospective jurors whose

questionnaire answers showed they could not impose the death penalty even though they

also responded they could set aside their personal feelings and follow the law. The

situation before us presents a similar dichotomy.

In his questionnaire, Prospective Juror G.P. stated he had strong religious beliefs

that made it difficult for him to judge someone else because he was taught God is the

only rightful judge, and although he had no problem judging another person on the issue

of guilt, he had a problem with deciding the appropriate punishment. Significantly, G.P.

stated unequivocally he was strongly opposed to the death penalty, which he saw as

economically motivated and as part of a system that had ―lost all hope,‖ and he could not

think of a single crime deserving the death penalty. Although G.P. stated it was a

―possibility‖ he could choose the death penalty in an appropriate case, the example he

gave was a case in which the defendant was competent and requested it. However, in

another response, G.P. implied he would not make up his mind on punishment until he

heard the case.


We conclude Prospective Juror G.P.‘s strong religious beliefs and opposition to

capital punishment amply support the conclusion he would have been prevented or

substantially impaired from performing his duties in this particular case. His express

reluctance to sit in judgment of someone on the issue of punishment made him

particularly unqualified to serve on defendant‘s jury, as G.P. was being considered for

service on a penalty phase jury that would only be deciding the appropriate punishment

for defendant. Although stating somewhat ambiguously he would have to hear the case

first to know whether he could realistically impose either death or life without the

possibility of parole, G.P. repeatedly expressed his opposition to the death penalty for all

crimes, with a possible exception for a case in which a competent defendant exercised his

right to a jury trial in order to request to be executed. The trial court therefore did not err

by excusing Prospective Juror G.P. for cause based on his responses to the jury


c) Prosecutor’s use of peremptory challenges to strike African-American


Defendant claims the prosecutor improperly exercised four of his six peremptory

challenges against African-Americans—Prospective Jurors D.W., A.L., S.A.-M., and

A.C.—during penalty phase jury selection. (See Batson v. Kentucky (1986) 476 U.S. 79;

People v. Wheeler (1978) 22 Cal.3d. 258 (Wheeler).) He argues the trial court erred in

failing to find a prima facie case of discrimination based on the four challenges and

abdicated its duty to conduct a sincere evaluation of the prosecutor‘s reasons for excusing

those potential jurors. Their improper removal, he contends, requires automatic reversal

of the judgment.

This claim fails for several reasons. First, defendant failed to make a sufficient

record demonstrating Prospective Juror A.L. was a member of a cognizable class.

Second, defendant forfeited any Batson/Wheeler claim regarding Prospective Jurors S.A.-

M. and A.C. by failing to object to their excusal prior to the swearing of the jury and


alternates. Finally, as to Prospective Juror D.W., the trial court correctly ruled defendant

failed to make a prima facie showing the prosecutor excused the juror for reasons of race.

(1) Background

After the prosecutor exercised his first peremptory challenge against a non-

African-American juror, defense counsel made a premature Batson/Wheeler motion. He

argued prospectively that if the prosecutor were to exercise a peremptory challenge

against any African-American jurors, a prima facie case of discrimination would be

established because (1) of the prosecutor‘s six for-cause challenges denied by the court,

―approximately [50] percent of those persons were [B]lack,‖ and (2) the prosecutor had

devoted an inordinate amount of time—approximately 75 to 80 percent of the voir dire

transcript pages—questioning African-American jurors.11 The prosecutor objected to

what he considered defense counsel‘s attempts to intimidate him in his exercise of

peremptory challenges. After additional discussion, the court found, considering the

explanations offered for the prosecutor‘s challenges for cause to minority and non-

minority jurors, there had been no attempt to systematically exclude minority jurors.

After voir dire continued, the prosecutor exercised his second peremptory

challenge against Prospective Juror D.W. Defense counsel objected: ―Batson challenge.

She‘s a correctional officer. She was one he picked on for no good reason just to ask a

lot of questions.‖ The trial court denied the challenge, concluding defendant had not

made a prima facie showing of a systematic pattern of exclusion of minority jurors. It

invited the prosecutor to place his reasons for exercising the challenge on the record,

noting, however, he was under no obligation to do so. The prosecutor declined the

invitation, stating he would provide an explanation for each minority juror for whom he


Defense counsel did not restrict his Batson/Wheeler objections to African-

Americans or other racial groups. He also filed a written Batson/Wheeler motion arguing
that Vietnam veterans were a cognizable class.


exercised a peremptory challenge at the end of jury selection. The court thereafter

excused D.W.

The prosecutor exercised his third peremptory challenge against Prospective Juror

A.L. Defense counsel objected: ―Batson again.‖ The court excused A.L. without

explicitly ruling on defendant‘s challenge.

The prosecutor exercised his fourth peremptory challenge against Prospective

Juror S.A.-M. Defense counsel stated: ―I‘ll wait till he does one more, then I‘ll do that.

I‘m going to make a motion. So we don‘t have to argue it each time.‖ The trial court

responded: ―All right. For the record, the court notes that there was a challenge for

cause as to [S.A.-M.] and she did indicate an attitude that was definitely leaning against

the death penalty, although probably not sufficient, the court found, to grant a challenge

for cause. But certainly it‘s a basis for an exercise of the peremptory challenge.‖

The prosecutor exercised his fifth challenge against Prospective Juror A.C.

Defense counsel made no objection, and the trial court excused A.C. Subsequently, the

parties accepted 12 jurors after the prosecutor exercised his sixth and final peremptory

challenge without any further Batson/Wheeler objections. During the selection of the

alternate jurors, the defendant made no Batson/Wheeler objections. Thereafter, six

alternate jurors were chosen.

After the jurors and alternate jurors were sworn, the prosecutor asked whether

there was a Batson/Wheeler motion still pending. The trial court and defense counsel

indicated it had been denied, referring to the colloquy that occurred in connection with

Prospective Juror D.W. The prosecutor, defense counsel, and the court all noted the

prosecution thereafter had exercised peremptory challenges against two other African-

American prospective jurors, S.A.-M. and A.C. Defense counsel then stated, ―I don‘t

believe I said anything when he did that. The court confirmed, ―Correct. You didn‘t

renew or make another motion.‖ Defense counsel affirmed, ―I had made the motion.


You had denied it. And I guess the reasons for my not doing it again will have to go with

me to the federal habeas or whatever.‖

The prosecutor then asked for the opportunity to ―go on the record‖ regarding the

three challenges. The trial court granted this request, but first stated: ―[E]ven after the

two additional challenges[,] the Court is still satisfied that there is not a . . . prima facie

demonstration to the Court of any systematic or attempted systematic exclusion of

[B]lack jurors by the prosecution, particularly with regard to the last two peremptories of

[B]lack jurors. [¶] The responses in the questionnaire, and the responses of the jurors

orally, in the Court‘s view, provided adequate non-racial basis for the peremptory

challenges. And if the motion had been renewed, it would have been denied again at that

point, again on the basis that there was not a prima facie showing. [¶] [The c]ourt will

also note that the jury that the prosecution passed on that was actually sworn does include

two [B]lack jurors. Which is, again, additional evidence to the Court that there was not

an attempt to systematically exclude [B]lacks.‖12

Thereafter, the prosecutor explained he excused Prospective Juror D.W. because

she was argumentative during voir dire and had used defensive body language. D.W.

also linked her job as a prison guard with the possibility of becoming a psychologist who

counseled inmates, which was problematic from the prosecutor‘s perspective because

defendant‘s penalty phase specifically involved psychological and psychiatric testimony.

D.W. further described herself as being ―on the opposite end of the spectrum‖ of

Prospective Juror D.P.,13 which indicated to the prosecutor D.W. would tend to always


In allowing the prosecutor to make a record of his race-neutral reasons for

excusing the jurors in question, even though finding no prima facie case of
discrimination, the trial court followed the ―better practice.‖ (People v. Bonilla (2007) 41
Cal.4th 313, 343, fn.13 (Bonilla) [noting that such information assists the reviewing court
in assessing the ruling on appeal].)


During voir dire, Prospective Juror D.P. had expressed negative views about

―counselors, therapists, whatever you want to call them, psychologists, psychiatrists,‖ as


believe such testimony. And when the prosecutor asked D.W. about rolling her eyes

while D.P. was speaking during voir dire, D.W. at first admitted to doing so, but then

later approached the prosecutor during a break, in violation of a court order not to discuss

the case, and told him she was just batting her eyes rather than rolling them. This

behavior, coupled with animosity in D.W.‘s voice, concerned the prosecutor.

With respect to Prospective Juror A.C., the prosecutor first noted she failed to

write responses to many of the questions regarding her views on the death penalty. She

further expressed ―severe‖ reservations about the death penalty during voir dire and was

―dishonest‖ in recounting she had heard on the news about a recent execution in

California, which never occurred.

Finally, concerning Prospective Juror S.A.-M., the prosecutor explained he

excused her due to her ―serious reservations about the use of the death penalty.‖

Responses in the juror questionnaire indicated her religious beliefs taught her not to judge

others and she would not consider imposing the death penalty on a combat veteran. She

also had a relative who was killed by a deputy sheriff in Los Angeles and her family

wanted criminal charges brought against the sheriff‘s department. This potential bias

against law enforcement concerned the prosecutor as well. And despite S.A.-M.‘s

recognition there were ―probably circumstances where the death penalty could be

imposed,‖ she wrote she hoped never to be part of such a decision. Such reservations

about the death penalty, which were further developed during voir dire, led the prosecutor

to believe S.A.-M. would not be an appropriate juror for defendant‘s case.

Defense counsel did not respond to or comment on the explanations volunteered

by the prosecutor. Having denied defendant‘s Batson/Wheeler motion regarding

well as skepticism about two psychological experts evaluating someone over a short time
and suddenly claiming to know ―what was wrong with this person.‖ D.P. also stated an
expert‘s credentials ―doesn‘t mean squat‖ if they have only spent a few hours, days, or
weeks talking with the person they are evaluating. D.P. further admitted she was


Prospective Juror D.W. for failure to make a prima facie showing of discrimination, the

trial court did not evaluate or otherwise render any further ruling on the prosecutor‘s

explanations, merely stating ―all right‖ and then calling a recess.

(2) Analysis

(a) Prospective Juror A.L.

Respondent argues defendant forfeited any claim of error with respect to

Prospective Juror A.L. by failing to articulate a clear Batson/Wheeler objection. (See

People v. Lewis (2008) 43 Cal.4th 415, 481.) In objecting to the prosecutor‘s peremptory

challenge of A.L., defense counsel simply stated ―Batson again.‖ Although defendant

assumes on appeal that A.L. was one of four African-American prospective jurors against

whom the prosecutor exercised peremptory challenges, the record fails to disclose what

cognizable class defendant was asserting as the basis for his Batson/Wheeler objection to

the peremptory challenge of A.L.

It is true, as defendant notes in his reply, his first Batson/Wheeler objection

concerned an African-American prospective juror, D.W. But defendant did not provide

any factual basis for the objection regarding A.L. or make any record as to what

cognizable class A.L. allegedly belonged to. A.L. was never identified as African-

American during voir dire, and in fact self-identified as ―Caucasian,‖ ―Danish,‖ and

―Dane‖ in his jury questionnaire. Nor was A.L. identified as African-American in any of

the Batson/Wheeler discussions contained in the record. To the contrary, in their

discussion following the swearing of the jury, the court, defense counsel, and the

prosecutor all stated that there had been three African-American prospective jurors

excused by the prosecution and identified those three jurors as D.W., S.A-M., and A.C.

Defense counsel, moreover, did not restrict his Batson/Wheeler motions to racial groups;

he also attempted to argue that Vietnam veterans were a cognizable class. The failure to


clearly articulate the Batson/Wheeler objection to the peremptory challenge against A.L.

forfeited the issue for appeal.

(b) Prospective Jurors S.A.-M. and A.C.

Respondent contends defendant also forfeited a claim of Batson/Wheeler error

with respect to Prospective Jurors S.A.-M. and A.C. by failing to make a Batson/Wheeler

objection. In order to preserve a Batson/Wheeler claim based on the prosecutor‘s

peremptory challenges, the defendant must make a timely objection. (People v.

McDermott (2002) 28 Cal.4th 946, 969.) To be timely, a Batson/Wheeler objection must

be made before the jury is sworn. (See People v. Howard (1992) 1 Cal.4th 1132, 1154;

People v. Thompson (1990) 50 Cal.3d 134, 179.)

When the prosecutor exercised his fourth peremptory challenge against S.A.-M.,

an African-American prospective juror, defense counsel indicated he was ―going to make

a motion,‖ but would wait until the prosecutor ―does one more.‖ However, he did not

object when the prosecutor exercised his next peremptory challenge against A.C., another

African-American prospective juror, nor did he make a motion before the jurors and

alternates were sworn in and the venire excused. After the jurors and alternate jurors

were sworn and the prosecutor asked whether there was a Batson/Wheeler motion still

pending, defense counsel agreed with the trial court he had not renewed or made new

Batson/Wheeler motions with respect to S.A.-M. and A.C., stating: ―I guess the reasons

for my not doing it again will have to go with me to the federal habeas or whatever.‖

(Italics added.) Defense counsel also did not discuss or contest the prosecutor‘s

volunteered explanations for the two challenges. In light of the lack of a timely, or even

untimely, objection, any claim of Batson/Wheeler error regarding Prospective Jurors

S.A.-M. and A.C. was forfeited.


(c) Prospective Juror D.W.

Defendant did make a timely, clearly articulated Batson/Wheeler objection with

respect to the prosecutor‘s peremptory challenge against Prospective Juror D.W. The

applicable law is well settled. While a prosecutor ordinarily is entitled to exercise

peremptory challenges for almost any reason at all, ―[b]oth the state and federal

Constitutions prohibit the use of peremptory challenges to exclude prospective jurors

based on race . . . .‖ (Bonilla, supra, 41 Cal.4th at p. 341.)

A three-stage procedure applies to the evaluation of Batson/Wheeler motions.

―First, the defendant must make out a prima facie case ‗by showing that the totality of the

relevant facts gives rise to an inference of discriminatory purpose.‘ [Citations.] Second,

once the defendant has made out a prima facie case, the ‗burden shifts to the State to

explain adequately the racial exclusion‘ by offering permissible race-neutral justifications

for the strikes. [Citations.] Third, ‗[i]f a race-neutral explanation is tendered, the trial

court must then decide . . . whether the opponent of the strike has proved purposeful

racial discrimination.‘ ‖ (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)

This subclaim involves only the first of these three stages—whether defendant

made out a prima facie case of racial discrimination. Although the prosecutor

subsequently volunteered his reasons for challenging D.W., ―the trial court did not

evaluate the prosecutor‘s stated reasons, either explicitly or implicitly.‖ (People v.

Sattiewhite (2014) 59 Cal.4th 446, 469.) Rather, the court expressly ruled defendant had

not made a prima facie case before the prosecution‘s recitation of reasons and denied the

Batson/Wheeler motion on this basis. The trial court merely allowed the prosecution ―to

preserve for the record its reason for those excusals.‖

Nevertheless, in finding defendant failed to make a prima facie case of racial

discrimination, the trial court appears to have used an incorrect standard, finding ―no

systematic pattern of exclusion,‖ rather than no inference of discriminatory purpose.

(See, e.g., Avila, supra, 38 Cal.4th at pp. 554–555 [trial court was under the mistaken


impression that only pattern of discrimination through multiple excusals could make

prima facie showing].) We therefore independently review the record to ― ‗resolve the

legal question whether the record supports an inference that the prosecutor excused a

juror on the basis of race.‘ ‖ (Id. at p. 554.)

Certain types of evidence are relevant in determining whether a defendant has

carried his burden of showing an inference of discriminatory excusal, such as whether the

prosecutor ―struck most or all of the members of the identified group from the venire or

used a disproportionate number of his peremptories against the group,‖ whether the

excused jurors had little in common other than their membership in the group, and

whether the prosecutor engaged in ―desultory voir dire‖ or no questioning at all.

(Wheeler, supra, 22 Cal.3d at pp. 280–281.) Although a ―defendant need not be a

member of the excluded group,‖ it is significant if he is and if, in addition, his victims are

members of the group to which the majority of the remaining jurors belong. (Id. at p.

281; see People v. Kelly (2007) 42 Cal.4th 763, 779–780.)

Defendant argues the prosecutor used a disproportionate number—four of six—of

his peremptory challenges to excuse African-Americans from the jury pool. The record

does not support defendant‘s claim. In selecting a jury for the penalty phase, the

prosecutor exercised a total of eight peremptory challenges to potential jurors—six

during the selection of the 12 jurors and two during the selection of the six alternate

jurors—only three of which were used to remove African-Americans D.W., S.A.-M., and

A.C. As noted, the record does not support defendant‘s contention that Prospective Juror

A.L. was African-American.

The prosecutor, moreover, passed two African-American prospective jurors who

ultimately were seated on the jury. (People v. Clark (2011) 52 Cal.4th 856, 906

[―Although the circumstance that the jury included a member of the identified group is

not dispositive [citation], ‗it is an indication of good faith in exercising peremptories . . .‘

and an appropriate factor to consider in assessing a [Batson/Wheeler] motion.‖].) The


prosecutor‘s use of three of eight (or 38 percent) of his peremptory challenges to excuse

African-American prospective jurors, particularly where the other two African-American

prospective jurors were passed and seated on the jury, ―does not support an inference of

bias.‖ (People v. Cornwell (2005) 37 Cal.4th 50, 70.)

Moreover, the prosecutor engaged in more than a desultory voir dire of

Prospective Juror D.W. Indeed, defendant complains that no juror was publicly

questioned by the prosecution ―more relentlessly‖ than D.W. However, the thoroughness

of the prosecutor‘s probing of D.W. was not outside the norm and does not support an

inference of racial bias.

We discern at least one race-neutral reason for excusing Prospective Juror D.W.

that is ―apparent from and ‗clearly established‘ in the record.‖ (People v. Scott (June 8,

2015, S064858) __ Cal.4th __ [at p. 20].) The defense case for the penalty phase would

rely heavily on psychological testimony concerning PTSD resulting from defendant‘s

abusive childhood and experiences in Vietnam. Not only did D.W. express a strong

receptivity toward such testimony, stating such experts ―would be necessary,‖ she also

indicated she wanted to ―lateral over into prison counseling.‖ This was a legitimate race-

neutral reason for excusing D.W. (See, e.g., Avila, supra, 38 Cal.4th at p. 556 [a juror

who indicated she worked closely with psychologists and psychiatrists as a nurse in a

psychiatric ward and valued their opinions provided a reason other than racial bias for the

prosecutor‘s challenge]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1124 [prosecutor‘s

belief that the prospective juror would place too much weight on the opinion testimony of

mental health experts could justify the peremptory challenge].)

Based on our independent review of the record of voir dire, we conclude the

totality of the relevant facts does not support inferring the prosecutor challenged

Prospective Juror D.W. because of her race. The trial court therefore did not err in

denying defendant‘s Batson/Wheeler motion for failure to establish a prima facie case.


d) Denial of a continuance prior to jury selection

Defendant claims the trial court abused its discretion by denying his request for a

continuance of the penalty phase based on publicity surrounding the April 1995 bombing

of the Murrah Federal Building in Oklahoma City. He contends the denial of this request

caused voir dire to be conducted shortly after the bombing in ―an unduly prejudicial

atmosphere‖ and thus violated his constitutional rights to due process and a fair trial.

Before the beginning of jury selection in the penalty phase, defendant moved for a

continuance from May until September 1995, arguing there was good cause in light of

―the difficulty of selecting a fair and impartial jury in this case, due to the interconnection

of some of the major issues in [defendant‘s] life, and of those persons accused of the

bombing of the federal building in Oklahoma City.‖ He pointed to the circumstance that

Timothy McVeigh, one of the Oklahoma City bombing suspects, was an army veteran

who might also raise a PTSD defense. Defendant also argued future delays might occur

because one of the defense experts was working with trauma victims in Oklahoma City.

The trial court, noting among other circumstances that McVeigh had fought in the Gulf

War while defendant was a Vietnam War veteran, found no similarities between

defendant‘s case and the Oklahoma City bombing. Concluding the events in Oklahoma

would have no significant impact on jury selection in this case, the trial court denied

defendant‘s request for a continuance.

A continuance may be granted only on the moving party‘s showing of good cause.

(§ 1050, subd. (e).) ―The granting or denial of a motion for continuance rests within the

sound discretion of the trial court.‖ (People v. Mickey (1991) 54 Cal.3d 612, 660.) In

light of the lack of any relationship or similarity between the Oklahoma City bombing

and defendant‘s case, the trial court did not abuse its discretion in finding there was no

showing of good cause for a continuance.

The publicity from the Oklahoma City bombing, which differed drastically from

the SOS murders in both kind and degree, had no bearing on defendant‘s case. Timothy


McVeigh detonated a 3,000- to 6,000-pound bomb, killing 168 people, including 19

children and eight law enforcement officials. (U. S. v. McVeigh (10th Cir. 1998) 153

F.3d 1166, 1177.) By comparison, defendant shot and killed three adult victims with

whom he was acquainted during the commission of a burglary and robbery of a company

for which he once worked. The Oklahoma City bombing was politically motivated with

the goal of inciting a general uprising against the government (ibid.), whereas defendant‘s

murders were financially motivated. The only concrete common feature argued by

defense counsel, that defendant and McVeigh were both Army veterans, does not

withstand scrutiny. McVeigh was not a veteran of the Vietnam War, and defendant‘s

jury would hear defense testimony that the Vietnam conflict had many significant

characteristics not present in other conflicts and that generated unique problems for

Vietnam War veterans.

Not only were the supposed connections between the cases tenuous at best, the

possibility of an unavailable witness and the notion that a separate tragedy would have a

prejudicial effect on a jury trying this case were pure speculation. Moreover, voir dire

exists exactly to explore issues of prejudice such as these. In sum, the court‘s ruling

clearly was not manifestly erroneous or arbitrary.

2. Failure to sua sponte appoint a second attorney

Defendant contends the trial court violated his rights under the Sixth and Eighth

Amendments to the United States Constitution and article I, section 15 of the California

Constitution by failing to appoint, sua sponte, a second qualified attorney to assist

defense counsel in his case. As defendant acknowledges, ― ‗[t]he appointment of a

second counsel in a capital case is not an absolute right protected by either the state or the

federal Constitution.‘ ‖ (People v. Williams (2006) 40 Cal.4th 287, 300.) It is true that

by statute, California trial courts have the authority to appoint a second attorney to

represent a capital defendant. (§ 987, subd. (d).) However, no sua sponte duty to appoint


additional counsel can be derived from a statutory provision granting only discretionary

authority to the trial court to do so upon a written request and supporting affidavit by

primary counsel. ―Indeed, under the statute, the trial court lacks any specific authority to

appoint a second attorney in the absence of a request from the first attorney and the

making of a factual record sufficient to support such an appointment. To the extent that

defendant‘s argument is that the trial courts have inherent power to appoint a second

attorney, no authority supporting that proposition is cited.‖ (People v. Padilla (1995) 11

Cal.4th 891, 928.) Accordingly, defendant‘s claim that the court erred in not appointing a

second attorney in the absence of such a request fails.

3. Admission of photographic and videotape crime scene evidence

Defendant claims five photographs of the victims previously admitted in the guilt

phase, as well as a silent videotape of the crime scene, should have been excluded in the

penalty phase as irrelevant (see Evid. Code, § 350) and more prejudicial than probative

(see id., § 352). The photographs depicted the victims‘ bodies as they were found on the

floor in the restroom, with close-ups of their bound hands. The video depicted the

freeway next to SOS and the SOS parking lot, and a forensic expert walking around the

building, hallways, and warehouse filming the register on the office desk, the lobby, and

a ceiling-to-floor view of the interior of the women‘s bathroom, including the victims‘

bodies and at least one bullet casing. Defendant argues the failure to exclude these

exhibits denied him due process of law under the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution and article I, sections 7, 15, 17 and 24 of

the California Constitution.

As a preliminary matter, defendant has forfeited any claim that three of the five

crime scene photographs were erroneously admitted. Although defendant moved to

exclude five photographs and argued his objection at the hearing, at the time the trial

court formally admitted the challenged evidence defense counsel withdrew his objection


to one of the photographs and affirmatively stipulated to the admission of two others.

(See, e.g., People v. Cook (2006) 39 Cal.4th 566, 609.)

With respect to the remaining two photographs and the 30-second portion of the

crime scene videotape depicting the victims in the bathroom, the trial court did not abuse

its discretion by admitting this evidence. ― ‗A trial court‘s decision to admit photographs

under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of

such photographs clearly outweighs their probative value.‘ [Citations.] Notably,

however, the discretion to exclude photographs under Evidence Code section 352 is

much narrower at the penalty phase than at the guilt phase. This is so because the

prosecution has the right to establish the circumstances of the crime, including its

gruesome consequences [citation], and because the risk of an improper guilt finding

based on visceral reactions is no longer present.‖ (Bonilla, supra, 41 Cal.4th at pp. 353–


The two crime scene photographs and videotape were relevant to the penalty phase

of the trial. They show the circumstances of the crime, which included premeditation and

deliberation on defendant‘s part as evidenced by his binding the victims‘ hands behind

their backs with duct tape he had bought a week or two before committing the crimes.

They further corroborated defendant‘s custodial statements to law enforcement officers,

including that he had shot Smith several more times upon discovering he had broken free

from his bindings (one of the photographs and the videotape depicts broken strands of

duct tape on Smith‘s wrists). Finally, as in the guilt phase, the forensic pathologist used

the photographs to assist the trier of fact in understanding her testimony. The admitted

photographs and videotape also were not cumulative; only five photographs and 30

seconds of videotape were admitted.

Nor were the photographs or videotape substantially more prejudicial than

probative. ―As we have previously noted, ‗ ―murder is seldom pretty, and pictures,

testimony and physical evidence in such a case are always unpleasant.‖ ‘ ‖ (People v.


Roldan (2005) 35 Cal.4th 646, 713.) Likewise in this case. But as unpleasant as these

photographs and videotape may be, they demonstrate the real-life consequences of

defendant‘s actions. The prosecution was entitled to have the penalty phase jury consider

those consequences. The trial court‘s exercise of discretion to admit them was neither

statutory nor constitutional error.

4. Denial of automatic application for modification of death verdict

Defendant claims the trial court erred in denying his automatic application for

modification of the death verdict pursuant to section 190.4, subdivision (e). This claim,

amounting to no more than a disagreement with the trial court‘s assessment of the

evidence, lacks merit.

Section 190.4, subdivision (e), provides for an automatic application for

modification of a finding or verdict imposing death in every case in which the jury has

returned such a finding or verdict. ―Pursuant to section 190.4, in ruling upon an

application for modification of a verdict imposing the death penalty, the trial court must

reweigh independently the evidence of aggravating and mitigating circumstances and

then determine whether, in its independent judgment, the weight of the evidence supports

the jury‘s verdict.‖ (Crittenden, supra, 9 Cal.4th at p. 150.) The statute thus requires the

court to make an independent determination concerning the propriety of the death

penalty. The court must state the reasons for its ruling on the record, but need not

describe every detail supporting its ruling so long as the statement of reasons is sufficient

to allow meaningful appellate review. (People v. Lewis and Oliver (2006) 39 Cal.4th

970, 1064.)

―On appeal, we independently review the trial court‘s ruling after reviewing the

record, but we do not determine the penalty de novo.‖ (People v. Steele (2002) 27

Cal.4th 1230, 1267 (Steele).) Where the record shows the trial court properly performed

its duty under section 190.4, subdivision (e), to conduct an independent reweighing of the


aggravating and mitigating evidence, the court‘s ruling will be upheld. (People v. Abilez

(2007) 41 Cal.4th 472, 530 (Abilez).)

Here, the trial court expressly recognized its duty to independently review and

reweigh the evidence of aggravating and mitigating circumstances to determine whether

the sentence imposed was proportionate to defendant‘s culpability. It reviewed in detail

the aggravating and mitigating factors listed in section 190.3. For example, it considered

in aggravation the circumstances of the crime, including the ―high-degree of cold-

blooded callousness‖ exhibited by the killings, defendant‘s prior felony convictions,

including the extent to which they involved attempted use of force or violence and

implied threats thereof, and defendant‘s maturity and life experiences at the time of the

crimes, including his prior prison and parole terms. In mitigation, it considered the lack

of more numerous acts of violence by defendant in light of his mature age, defendant‘s

traumatic childhood, including the physical, emotional, and sexual abuse and

abandonment he experienced, his decorated service to the country and traumatic war

experiences in Vietnam, and the testimony of defendant‘s experts concerning PTSD both

generally and as related to defendant. It ultimately found the weight of the mitigating

circumstances had been ―greatly attenuated‖ by the intervening 20 years between

defendant‘s service in Vietnam and the SOS crimes, as well as defendant‘s criminal

convictions and acts of violence that culminated in the present offenses. The court then

stated its independent judgment that the circumstances in aggravation outweighed the

circumstances in mitigation and the substantial weight of the evidence supported the

jury‘s verdict of death.

Defendant essentially argues the trial court erred because it failed to find his

childhood problems, Vietnam experiences, and mental health issues to be as significant or

weighty as it should have. As is apparent, however, ―the trial court applied the correct

standard and properly conducted an independent reweighing of the aggravating and

mitigating evidence. That it did not find defendant‘s proffered mitigating evidence as


persuasive as he would have liked does not undermine this conclusion.‖ (Abilez, supra,

41 Cal.4th at p. 530; see Steele, supra, 27 Cal.4th at pp. 1267–1268.) The court‘s refusal

to modify the verdict is consistent with both the law and the evidence. We therefore

conclude the trial court properly performed its duty under section 190.4, subdivision (e).

5. Penalty of death as disproportionate to defendant’s individual


Defendant claims his death sentence constitutes cruel and unusual punishment in

violation of the state and federal Constitutions because the penalty is grossly

disproportionate to his individual culpability in committing the crimes. ― ‗To determine

whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing

court must examine the circumstances of the offense, including its motive, the extent of

the defendant‘s involvement in the crime, the manner in which the crime was committed,

and the consequences of the defendant‘s acts. The court must also consider the personal

characteristics of the defendant, including age, prior criminality, and mental capabilities.

[Citation.] If the court concludes that the penalty imposed is ―grossly disproportionate to

the defendant‘s individual culpability‖ [citation], or, stated another way, that the

punishment ― ‗ ―shocks the conscience and offends fundamental notions of human

dignity‖ ‘ ‖ [citation], the court must invalidate the sentence as unconstitutional.‘ ‖

(Steele, supra, 27 Cal.4th at p. 1269.)

Defendant received a death sentence for three burglary and robbery murders

committed by him alone, purely for financial gain. Although the three victims

cooperated fully with defendant‘s demands and offered no resistance, he nevertheless

shot and killed them one by one. He also had an extensive prior criminal record

including prior prison and jail terms. Defendant attempts to mitigate his personal

culpability by citing his traumatic childhood and Vietnam War experiences and resulting

PTSD. We agree with the trial court that these circumstances ultimately did not affect

defendant‘s capacity to appreciate the criminality of his conduct or to conform his


conduct to the requirements of the law. Defendant‘s actions at the time of the murders

showed a rational, logical, intelligent, and calculated thought process, and his efforts to

destroy evidence and to avoid capture by fleeing across the country amply demonstrate

his awareness of the wrongfulness of his actions.

In light of the evidence and relevant considerations, we conclude defendant‘s

sentence is not disproportionate to his personal culpability, nor does it shock the


C. Challenges to California’s Death Penalty Scheme

Defendant raises a number of challenges to the constitutionality of California‘s

death penalty scheme, based upon the Fifth, Sixth, Eighth, and Fourteenth Amendments

of the United States Constitution. As he acknowledges, we have previously considered

and consistently rejected these contentions in prior cases. Presented with no reasons that

compel reconsideration, we adhere to those decisions as follows.

Section 190.2 is not impermissibly overbroad. Specifically, the various special

circumstances are not so numerous as to fail to perform the constitutionally required

narrowing function, and the special circumstances are not unduly broad or expansive,

either on their face or as interpreted by this court. (E.g., Jenkins, supra, 22 Cal.4th at p.

1050; see also Brown v. Sanders (2006) 546 U.S. 212, 221 [recognizing that the special

circumstances listed in section 190.2 are designed to satisfy the narrowing requirement].)

Section 190.3, factor (a), does not, on its face or as interpreted and applied, permit

the ― ‗arbitrary and capricious‘ ‖ or ― ‗wanton and freakish‘ ‖ imposition of a sentence of

death. (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1066; see Tuilaepa v. California

(1994) 512 U.S. 967, 976 [―The circumstances 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.‖].)


Neither the federal nor the state Constitution requires the penalty phase jury to

make unanimous findings concerning the particular aggravating circumstances, find the

truth of every fact supporting all aggravating factors beyond a reasonable doubt, or find

beyond a reasonable doubt the aggravating factors outweigh the mitigating factors and

death is the appropriate sentence. (E.g., People v. Howard (2008) 42 Cal.4th 1000, 1031;

People v. Fairbank (1997) 16 Cal.4th 1223, 1255.) The United States Supreme Court‘s

decisions interpreting the Sixth Amendment‘s jury trial guarantee (see Cunningham v.

California (2007) 549 U.S. 270; United States v. Booker (2005) 543 U.S. 220; Blakely v.

Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New

Jersey (2000) 530 U.S. 466) do not alter these conclusions. (E.g., People v. Bramit

(2009) 46 Cal.4th 1221, 1250 & fn. 22.)

Written or other specific findings by the jury regarding the aggravating factors are

not constitutionally required. (E.g., People v. Friend (2009) 47 Cal.4th 1, 90.)

Intercase proportionality review is not constitutionally required. (Moon, supra, 37

Cal.4th at p. 48; see Pulley v. Harris (1984) 465 U.S. 37, 50–51.)

The use of adjectives such as ―extreme‖ in section 190.3, factors (d) and (g), or

―substantial‖ in section 190.3, factor (g), do not serve as improper barriers to the

consideration of mitigating evidence. (E.g., People v. Cruz (2008) 44 Cal.4th 636, 681.)

The trial court was ―not required to instruct the jury as to which of the listed

sentencing factors are aggravating, which are mitigating, and which could be either‖

mitigating or aggravating, depending upon the jury‘s appraisal of the evidence. (People

v. Manriquez (2005) 37 Cal.4th 547, 590, italics added; see People v. Hillhouse (2002) 27

Cal.4th 469, 509 [―The aggravating or mitigating nature of the factors is self-evident

within the context of each case.‖].)

Because capital defendants are not similarly situated to noncapital defendants,

California‘s death penalty law does not deny capital defendants equal protection by not


providing certain procedural protections afforded to noncapital defendants. (E.g., People

v. Cruz, supra, 44 Cal.4th at p. 681.)

We reject the argument that the use of capital punishment ―as regular punishment‖

violates international norms of humanity and decency and hence violates the Eighth

Amendment of the United States Constitution. ―California does not employ capital

punishment in such a manner. The death penalty is available only for the crime of first

degree murder, and only when a special circumstance is found true; furthermore,

administration of the penalty is governed by constitutional and statutory provisions

different from those applying to ‗regular punishment‘ for felonies.‖ (People v.

Demetrulias (2006) 39 Cal.4th 1, 43–44.)

Lastly, we find no state or federal constitutional violation when the asserted

defects in California‘s death penalty scheme are considered collectively. (People v.

Lucero (2000) 23 Cal.4th 692, 741.)



For the foregoing reasons, the judgment is affirmed in its entirety.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cunningham

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: July 2, 2015

County: San Bernardino
Judge: Michael A. Smith



Brian A. Pori and Mordecai Garelick, under appointments by the Supreme Court, for Defendant and

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and Ronald A.
Jakob, Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Mordecai Garelick
101 Second Street, Suite 600
San Francisco, CA 94105
(415) 495-0500

Ronald A. Jakob
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2332


Opinion Information
Date:Docket Number:
Thu, 07/02/2015S051342