Filed 2/2/04
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S032146
v.
JOSEPH MARTIN DANKS,
Kern
County
Defendant and Appellant.
Super. Ct. No. SC 44842
A jury found defendant Joseph Martin Danks guilty of the first degree
murder of Walter Holt (Pen. Code, §§ 187, subd. (a), 189),1 and, based on the
same attack, of assault by a person serving a life sentence, with force likely to
produce great bodily injury which resulted in death (§ 4500). In a separate
proceeding, the jury found true the special circumstance allegations that defendant
had been previously convicted of six first degree murders. (§§ 190.1, subd. (b),
190.2, subd. (a)(2).) The jury set the punishment on both counts at death.
The case is before us on defendant’s automatic appeal. (Cal. Const., art.
VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) For the reasons that follow, we
affirm the judgment.
1
All statutory references are to the Penal Code unless otherwise indicated.
1
I. FACTS
A. Guilt Phase2
1. Prosecution Evidence
On August 23, 1990, defendant entered the California Correctional
Institution in Tehachapi serving a sentence of 156 years to life. On September 21,
1990, at approximately 1 a.m., defendant attracted the attention of Correctional
Officer Daniel Escobar, and told Escobar, “I murdered my cellie.” Defendant’s
cellmate was Walter Holt. Defendant also said that the murder had occurred
approximately three hours earlier, and that “he had told the floor officer five
minutes ago, but she didn’t believe him.” Officer Escobar notified Correctional
Officer Kathleen Brown and Sergeant Courtois in the prison’s central control.
Officer Brown did not attempt to stop him from calling Sergeant Courtois. Officer
Escobar wrote a report on the incident after twice being asked not to by Sergeant
Avery because Officer Brown had discovered the incident first. Officer Escobar
felt he should write a report because he was the one who actually “phoned it in.”
Defendant subsequently made two statements early that same morning
describing the killing. In his first statement, which one of the interrogating
officers wrote down as defendant spoke, defendant said, “They put me in with this
guy and I was just sitting there. [H]e went up to bed. I waited 3 [hours]. I ripped
off the thick part of the sheet [and] put it around his head and neck. [T]hen I
pulled on the sheet with both hands. Then he went out for a second. [T]hen he
said what the fuck. [H]is hands flew up in my face and neck. Then I kept
squeezing. I felt his heart pulsating. I kept squeezing till it stopped then put a
2
The guilt phase was preceded by a September 1992 competency trial in
which defendant was found competent to stand trial. No issues are raised
regarding this proceeeding.
2
knot in the sheet. [T]hen I got down and got another piece of sheet. [W]ent back
up to his bed put [it] around his neck and put it around my foot for a pulley and
pulled it real tight and held for awhile. [T]hen I waited from 10:00 until the
officer came by at I think at 12:30. [T]hen I told the officer I think I killed my
cellie.” After this statement was written down, defendant continued to talk with
the officers for eight to 10 minutes. He told them that “he was on a mission from
God to take and to kill these transients.” He also made “a statement to the effect
that he was supposed to kill old people.” Defendant felt he was God’s own voice
on earth. Defendant was excited, very eager to talk, and perspiring profusely.
In his second statement, which was tape-recorded, defendant stated that he
had decided to kill his cellmate (he did not know Mr. Holt’s name) as soon as he
was put in Mr. Holt’s cell between 5:00 and 6:00 p.m. that evening. “The reason I
did it, is because they charged me with six murders in the L.A. County Jail. They
were all . . . trumped up charges, they were fake charges. I didn’t kill anybody. I
confessed to what I did. They insisted that they charge me with murder, so I sit in
the cell. So finally, they screwed me around and gave me a stupid deal, instead
of . . . giving me the death penalty. They gave me a dumb deal for six life
sentences, consecutive. And I figured well, if I ever get a chance to kill somebody,
I’ll just kill them . . . . Just so they know that I really finally did kill somebody.
Even if it was just an old man.” Defendant felt “nothing” after the murder. When
the topic of sharing a cell in the future came up, defendant said, “I’d like to be in a
cell with somebody, it would give me somebody to talk to.”
Dr. John Holloway, who in 1990 worked for the Kern County Coroner’s
Office, performed an autopsy on Mr. Holt. The cause of death was “hypoxia
leading to asphyxia due to ligature strangulation.” Mr. Holt probably lost
consciousness in less than a minute, and died soon thereafter.
3
Documentary evidence was introduced that at the time of the capital crime
defendant was serving a sentence of six consecutive terms of 25 years to life, plus
one year, for a total term of 156 years to life.
2. Defense Evidence
On September 21, 1990, Correctional Officer Kathleen Brown was
employed at the Tehachapi correctional facility. At approximately 1 a.m.,
defendant told her, “I killed my cellie.” She told Correctional Officer Escobar to
radio and get medical personnel, “the lieutenant and the sergeant to our building.”
She did not mention Officer Escobar in her report. She did mention the people he
contacted, with a reference that she had notified them. Officer Brown did
personally notify the control sergeant, but could not recall to whom she spoke, and
did not mention the call in her report.
B. Special Circumstance Phase
The prosecution introduced documentary evidence defendant had six 1990
prior first degree murder convictions. The defense rested without presenting any
evidence.
C. Penalty Phase
1. Prosecution Evidence
The prosecution introduced evidence regarding some of the circumstances
underlying defendant’s six prior murder convictions, and one stabbing in which
the victim survived. On January 20, 1987, defendant was arrested. At the time of
his arrest, he dropped a newspaper containing a knife that appeared to have wet
blood on it. He was interviewed that day by Detective Addison Arce regarding a
series of stabbings that had occurred “in approximately Koreatown of Los
Angeles.” Defendant described stabbing victims while they slept, dug through
garbage, fought with others, or simply walked along. He did not know any of the
4
people he stabbed. He indicated the incidents were not serious because the victims
were “bums” or “transients.” “It ain’t nothing, man, three or four bums. I don’t
see what the big fucking deal is, what the big fucking deal is, man.” Defendant
did not believe anyone had died from his actions.
On November 19, 1989, defendant was a patient at Atascadero State
Hospital. On that date, registered nurse Toni Christensen was approached by
hospital patient Donald McCully. Mr. McCully had sustained numerous puncture
wounds, and was “covered in blood from his eyebrow down to his belt.” In a
statement to Sergeant Sue Murphy, security personnel for the hospital, defendant
said he first tried to suffocate Mr. McCully. Mr. McCully was able to break free,
at which point defendant stabbed him with a pencil. “He said he was trying to stab
him in the heart, but the pencil broke, and at that point he began to stab him in the
face area[.]” He was trying to kill Mr. McCully, but when the pencil broke, he
attempted to poke out his eyes. He “seemed irritated because he did not kill Mr.
McCully.”
On November 12, 1991, Correctional Officer Granville Warren searched
defendant’s Tehachapi cell. He discovered an approximately five-inch-long sharp
plastic stabbing weapon hidden in defendant’s mattress.
On January 23, 1992, Correctional Officer Albert Carter was conducting
unclothed body searches on certain Tehachapi inmates, including defendant,
before they were released to the exercise yard. He removed the handcuffs from
defendant, who began to get undressed. Officer Carter then removed the
handcuffs from inmate Renaldo Navarez, and he also began to get undressed.
Defendant then stabbed Mr. Navarez with a piece of metal so that it protruded
from his head about “an inch back just over . . . the eye.”
On January 26, 1992, Correctional Officer James Lundy observed a large
quantity of smoke billowing out of defendant’s Tehachapi cell. Defendant was
5
removed from the cell. He had set fire primarily to personal papers and
newspapers.
On April 17, 1992, Correctional Officer Monte Gould searched defendant’s
Tehachapi cell. He found an approximately five-inch-long “inmate-manufactured
stabbing instrument that was produced from a wall outlet . . . and was cut in half
and sharpened to a point.” Defendant told Officer Gould he had concealed other
weapons in the mattress. A subsequent search of the mattress revealed two more
shanks.
On May 12, 1992, Correctional Officer Daniel Price performed a random
search of defendant’s Tehachapi cell. He discovered in the mattress a single-edge
razor blade, an approximately three-inch-long copper wire, and an approximately
six-inch-long sharp metal weapon.
On July 12, 1992, Correctional Officer David Goodman took coffee to
defendant’s Tehachapi cell. When the cup was half-full, defendant forcefully
struck the cup with the back of his right hand; the spilled coffee slightly burned
Officer Goodman’s leg. Defendant also yelled and struck Officer Goodman with
his left hand. Defendant was subsequently moved to a cell where he would not
have the opportunity to direct food items back at an officer.
Documentary evidence was introduced that defendant had suffered two
felony drug convictions in 1984 and 1985. (Health & Saf. Code, § 11360.)
2. Defense Evidence
Michael and Peter Whyte, two of defendant’s older half brothers, testified.
When defendant was born in 1962, the Whyte family lived in a wealthy
neighborhood in Bay City, Michigan. Defendant’s mother, whose name at the
time of trial was Karen Walls, was originally the family babysitter. She and
6
defendant’s biological father, Edward Whyte, were approximately 25 years apart
in age.
Edward Whyte was a very intelligent man and the only son of a wealthy
family. He had a significant drinking problem. He would have blackouts and not
remember what happened for weeks at a time. Peter testified, “sometimes we
were terrified.”
Defendant’s mother also drank. Defendant was primarily cared for by an
older half sister and the housekeeper, Dora Howard, and was well taken care of.
Karen and defendant lived with the Whytes approximately one and a half years.
When he was approximately 13, defendant came back to live with the
Whytes for a couple of months. The Whytes now lived in a trailer on the Saginaw
Bay. According to Peter, defendant “was pretty much a blank slate, clean slate,
just a wide-eyed kid with a big grin on his face.” Defendant became exposed to
and participated in his half brothers’ frequent drug use, which included marijuana,
LSD, and PCP. Michael testified he had defendant “dealing stuff for me at the
school.” Michael also taught defendant how to play the guitar. Defendant was on
friendly terms with his father. Defendant moved out because Peter was concerned
about defendant’s welfare and that defendant would get in trouble with drugs at
school and lead the police back to the Whyte family.
In 1985 or 1986, defendant caused his half brother Michael to be evicted
from his apartment because defendant was sleeping in the hall. Michael was
subsequently evicted from a different apartment because defendant was illegally
living next door in a vacant apartment.
Defendant briefly visited Peter and Peter’s wife and child in 1986.
Defendant had on dirty clothes, was unbathed, and was carrying a steak knife.
Both Peter and Michael had been, at some point, incarcerated for drug
dealing. Another of defendant’s older half brothers, Earl, suffered from drug-
7
induced schizophrenia and had not worked since the 1960’s. Peter stopped all
illegal drug activity in 1984 when he became a Jehovah’s Witness. He had been
employed at the same location for eight years and was married and had three
children at the time of trial.
Dora Howard testified she went to work as the Whytes’ housekeeper when
defendant was about two weeks old. She left in 1968, but remained acquainted
with Edward Whyte until he died. According to Dora, Edward and Karen drank
frequently. Karen, at least twice, put defendant in a dresser drawer and shut it
when she grew weary of his crying. Defendant’s natural parents also gave him
“paragoric,” which made him sleep for long periods of time. After Karen moved
out of the Whyte home, Dora was called two or three times a month by Karen’s
neighbors because defendant had been left alone for a long time and was crying.
Dora would go over to Karen’s home and find defendant “wet and dirty,” and also
find “bottles with sour milk in them.”
Dora further testified that when defendant was about 14 and associating with
the Whytes, Edward Whyte became concerned for defendant’s welfare and
apparently did not want him to be in that environment. Edward told defendant “he
didn’t want him around anymore, and he wasn’t a son of his, and to get out and
never call him or come back.”
Leroy Danks, defendant’s adoptive father, testified. Leroy met defendant’s
mother Karen and defendant in 1965. Karen was 21, and defendant was
approximately two and a half. At times Karen came home with other men and
Leroy would leave. Leroy married Karen in 1966, and adopted defendant. “I
didn’t adopt him just for his name. I adopted him because I felt I wanted to.”
Defendant “always told [Leroy] he was real lucky, . . . luckier than most kids that
he had two fathers.” Karen left Leroy two or three times, taking defendant with
her, to move back with the Whytes.
8
At some point the family moved from Michigan to South Dakota. They had
“a nice house” with three bedrooms, a playroom, and a fenced yard. After six or
seven months, they moved to Wyoming.
Leroy testified that defendant “was a good kid,” and Leroy had no problem
disciplining him; “I usually didn’t have to speak over the second time.” Leroy’s
only problem with defendant was his propensity to stay up late. Defendant loved
to go fishing, and was always asking Leroy, whom he called “Dad,” to take him.
During the marriage, Karen and Leroy had two more boys. Leroy left Karen
in December 1970 when defendant was about eight because of Karen’s
relationship with Gene Walls. Karen later married Walls. Leroy did not see
defendant after 1971 until defendant was about 14 because Karen and defendant
moved back to Michigan.
Leroy further testified that when defendant was 14, Karen told Leroy she
could not handle defendant any more and asked if he could live with Leroy.
Defendant lived with Leroy for about a year. He told Leroy that Walls beat him
for minor infractions and verbally abused him.
In 1981, when defendant was about 19 years old, he visited Leroy. During
the visit he inexplicably took all the covers off the electrical sockets and stacked
them in a neat pile.
In 1985, defendant joined Leroy on his trucking route. After the first day or
so, defendant refused to go into cafes. Defendant told Leroy old people were
chasing him, and he wanted Leroy to bring his food to the truck. Defendant also
carried a steak knife for protection. Leroy purchased new clothes for defendant,
and defendant was also given clothes by Leroy’s friends. After approximately a
couple of weeks together, defendant became angry in the truck for reasons unclear
to Leroy, told Leroy he was not his “real dad,” got out of the truck, took off the
9
new clothes in the rain, put on his old clothes, and left. Leroy did not see
defendant again “until I walked into this courtroom.”
Karen Walls, defendant’s mother, testified. Karen’s mother died when she
was three, her father when she was 14. She became romantically involved with
Edward Whyte when she was 17. Edward had previously been a heroin addict. In
addition to defendant, Karen had four other sons, one of whom had been put up for
adoption.
Karen drank mildly during her pregnancy with defendant. Defendant was
born two months premature, and weighed three pounds, 15 ounces. He was in an
incubator for four to six weeks.
Karen moved out of the Whyte home a few months after defendant was born.
She left for a variety of reasons, including the fact that she and Edward got into an
argument and he broke her nose. Karen continued to see Edward, and would put
defendant in a dresser drawer as a makeshift crib when she visited. She did not
shut him inside the dresser.
Karen further testified that she married Leroy Danks in 1965, but he was
unfaithful. She began her relationship with Gene Walls while she was still
married to Leroy Danks, and married Walls in 1972. Defendant did not get along
with Gene Walls. When defendant was 12, Karen told defendant that Edward
Whyte was his natural father.
In her testimony, Karen delineated aspects of her family’s mental health
history. Karen’s grandmother suffered from schizophrenia, as did her
grandmother’s son. One of Karen’s other sons suffered from a chemical
imbalance.
Karen also described certain incidents, apparently to demonstrate defendant’s
mental health. Defendant fell off the bed when he was a month old, and was
involved in two car accidents in 1977. In 1977, Karen was advised by a
10
Dr. Franks that defendant was suffering from “some sort of psychiatric
disturbance.” Beginning in 1979, when defendant was 16 years old, until 1982,
defendant hitchhiked for extended periods of time. When he was 16, he was
arrested in Mexico, and his release was negotiated by Edward Whyte. During the
years 1979-1982, defendant also began to wash dishes he took out of the cupboard
before he would use them, and once moved all of Karen’s wall hangings from eye
level to the ceiling.
In May 1982, defendant made unusual statements, such as “Ronald Reagan
smokes 10,000 weeds a day,” and accused his mother and aunt of printing
counterfeit money. He also said that his grandparents, all of whom were deceased,
had spoken to him.
In October 1982, defendant walked into a New Jersey elementary school in
shredded clothes. Upon his return to Michigan, defendant would go out in the
backyard and start screaming at someone not visible to Karen to “shut up.” At
some point, defendant asked Karen to take him to the road so he could leave. She
did so, and then persuaded him to get back into the car. Defendant said, “It won’t
stop. I’ve got to set myself on fire. I got to kill somebody so I can go to prison for
the rest of my life.” In October 1982 Karen had defendant involuntarily
committed to a psychiatric hospital. After approximately two weeks he was given
grounds access and left the facility. He was found in Florida and placed in a
psychiatric institution there. As in Michigan, however, defendant walked away
from the facility.
In late 1983, defendant lived with Karen for a couple of months. According
to Karen, he “was still bizarre” and carried a knife for protection.
After defendant’s 1987 arrest for murder but before his transfer to
Atascadero, Karen spoke with him. Defendant told Karen his attorney, Larry
Rivetz, was a vice cop, and there was a conspiracy against him that went all the
11
way from Daryl Gates to the mayor to President Reagan. “Ronald Reagan gave
the order and this is why all of this happened to him.” Following his arrival at
Atascadero and his placement on medication, he did not make statements about
Ronald Reagan.
Dr. Robert Jackson, a professor of microbiology and Executive Associate
Dean of the Southern Illinois School of Medicine, testified. In approximately July
1982, Dr. Jackson was taking a motorcycle trip from Illinois to the western United
States. He picked up defendant, who was dressed lightly in inclement weather.
The two traveled together for the next two days. Defendant had no money or
identification. When Dr. Jackson asked defendant if he wanted to join him for
coffee, defendant expressed fear they were being watched through the restaurant
security camera, “glued himself . . . against the wall and the window,” and
“slink[ed] along.” Later, at dinner, defendant ordered a box of cereal and milk,
after ascertaining the milk would come in a box. He said he had been incarcerated
in Mexico, and “knew that people put shit in the food, and because of that he was
afraid to eat prepared food.” Defendant remained reluctant to eat prepared food
during the time the two traveled together.
At the motel that night, defendant expressed concern Dr. Jackson and
defendant were being watched through the television set. During their stay at a
motel the following night, defendant became upset by a courtroom scene and
kicked the television set. Dr. Jackson turned the television off, and commented to
defendant that something was troubling him. The two then had a discussion
regarding defendant’s life. Defendant felt discomfort because he was “born a
bastard,” he had had at least two stepfathers, his mother had married several times,
and he hated his current stepfather. He was angry with his mother for creating an
“injurious” environment, and because she did not come to defendant’s aid.
Defendant had self-inflicted round burn scars on his forearms. More than once
12
during the trip he said “he particularly liked clean people and clean things and
being with clean people. This was a theme.” Dr. Jackson did not believe
defendant was play acting or trying to act crazy. “I took this to be a young boy
who needed help.”
Peggy Walkowiak, who in June 1986 was a probation officer for the State of
Michigan, testified. Ms. Walkowiak was assigned defendant’s case after he pled
guilty to attempted possession of a short-barrel rifle. She interviewed defendant
and noticed unusual behavior. Defendant did not drink coffee, milk, or juice at the
jail “because he believed that they might be trying to poison him.” He washed his
jail jumpsuit and refused to wear any others because he was afraid they were not
clean. “He also talked about a motel room that he had shot up because it was too
dirty, it wasn’t clean enough. He was very concerned with his cleanliness and
with other people out to get him.” In her opinion defendant was paranoid.
Ms. Walkowiak initiated a mental health evaluation of defendant. She was
dissatisfied with the psychiatric work-up. Ms. Walkowiak also interviewed
defendant’s mother who relayed her belief defendant needed mental health
assistance. Defendant also had a long history of marijuana abuse. Ms. Walkowiak
recommended the court incarcerate defendant in prison with substance abuse
therapy and a psychiatric evaluation. In September 1986, the court placed
defendant on probation, and he absconded within two weeks. Ms. Walkowiak had
“never seen anyone with more mental health problems than [defendant] in the time
that [she had] been doing this work.” She did not feel he was “putting [her] on.”
In 1987, Los Angeles County Deputy Sheriff Nick D’Angelo worked at the
men’s central jail. He testified he had daily contact with defendant for a period of
over 10 months. “He was always extremely paranoid. He would say the system is
railroading him. He would say his attorneys are against him. . . . [T]he whole
system was out to get him . . . . Then an hour later, he would admit to” stabbing
13
people, but say “I didn’t kill those guys.” Defendant said his food was poisoned,
“that somebody is in the kitchen excreting in his food. He would state Burt
Reynolds, Johnny Carson is down there, I know they’re excreting in my food, and
I want to pick my own tray.” “It was practically a daily thing.” Defendant would
clean his cell on his hands and knees with a toothbrush an average of six to 10
times a day. “It was the cleanest cell I’ve ever seen.” He believed he was being
brainwashed by the music broadcast in the jail. Defendant’s demeanor did not
change when different people were around him. In particular, when Deputy
Sheriff D’Angelo watched defendant through a one-way glass, he acted the same.
Daniel Grajeda, an inmate at Tehachapi, testified that prison deputies would
tell defendant “they had put human sperm in his food. I seen the deputies come
like antagonize him and mess with his mind.” This was apparently why defendant
threw his trays at the deputies. The deputies would also locate another “weird
strange character” in a cell next to defendant, and the two would throw cups of
urine, water, or human waste mixed with water at each other. The two would then
be separated. When defendant thought he was hearing things or was possessed,
Grajeda and others would “mess with him a little bit and accuse the KGB of
messing with him.” Because of the threats about human sperm, defendant
preferred to pick his own food tray, and would become upset if he was not
permitted to do so.
Defendant also introduced testimony apparently intended to demonstrate that
Tehachapi officials should have been on notice regarding his violent character
prior to September 21, 1990. In addition, defendant introduced expert witness
testimony that if he were serving a sentence of life imprisonment without the
possibility of parole, at least initially he would be isolated from other prisoners
given the nature of his “behavior.” However, defendant would still have
opportunity to come into contact with others, such as prison personnel
14
administering any involuntary medication. Moreover, there was no guarantee he
would not ultimately be returned to the general prison population.
Dr. Eugene Kunzman, a psychiatrist at the Los Angeles County jail,
evaluated defendant and reviewed certain records at an unspecified time. He
formed the opinion defendant had paranoid schizophrenia, an antisocial
personality disorder, and a history of polysubstance abuse. Dr. Kunzman testified,
“He was a very sick, disabled psychiatric patient, inmate at that time.” According
to Dr. Kunzman, breaking the law and rules, and lying or a lack of truthfulness,
are fairly characteristic in someone with an antisocial personality disorder.
Dr. Robert Hill, a staff psychiatrist at Atascadero State Hospital, treated
defendant when he was found incompetent to stand trial for the prior murder
allegations in Los Angeles County. Defendant was at Atascadero from June 1989
to March 1990. Upon admission, defendant was diagnosed as having paranoid
schizophrenia and an antisocial personality disorder. He also had a significant
history of marijuana abuse. Defendant had a relatively low global assessment
functioning score, which was even lower when he was discharged because of the
staff’s increased “knowledge[] of the extraordinary destructiveness of the
homicidal potential of the patient.”
Dr. Hill testified that “[h]allucinations and/or delusions are ordinarily present
in most schizophrenic people,” and that defendant was delusional. He explained
that it is easier for schizophrenic delusions to control a person who also has an
antisocial personality disorder because a person with such a disorder has fewer
internal controls. Dr. Hill recalled one instance in which defendant “was
becoming more delusional, and he loves that. He gets excited by it. It’s a very
happy state of being for him. . . . [W]hen he gets into his sickness, he’s a happy
camper because he’s full of exotic violent themes and the wishes to kill. And this
stems from a delusional self-concept that occupies his mind which is that he is
15
righteously performing murders or harming people[,] something that he also
enjoys greatly.” Defendant described himself as a “bum buster.” It “was his
dedication to seek out and find bums and bust them, in his terms,” and fellow
Atascadero hospital patient McCully “fit that mold.” Defendant “had a great
desire in his delusional system to be able to follow disadvantaged people, . . . to
track them, to kill them, homeless type people.”
Dr. Hill further testified that when defendant was on Haldol, he became “less
attentive” to the “very sick violent concepts that he had.” There was “a modest
remission of the more distracting psychotic features.” When defendant was taken
off Haldol for a trial period, he attacked McCully. The medication was resumed.
Defendant was referred to a neurologist because he was suspected of having
a brain cyst. The “conclusion was [that] no such organic problem with his brain
existed.”
Ultimately defendant was found to be competent to stand trial; to remain so,
he needed to be on medication. He nonetheless was “a serious and continuing
homicidal threat.” Dr. Hill “tried to express in [his] discharge document that this
was an extraordinarily dangerous individual regardless of whatever level of
psychiatric improvement he may have.”
Dr. John Riley, a clinical psychologist at Atascadero State Hospital, ran tests
on defendant approximately two months after he arrived at the hospital to
determine his intellectual functioning, personality functioning, and his mental
status. The Wechsler Adult Intelligence Scale indicated defendant had an I.Q. of
106, which placed him in the average range of intelligence. This test took an hour
and a half on two separate occasions. Defendant “responded appropriately, was
cooperative, [and] participated meaningfully in the process.” While defendant told
Dr. Riley there was nothing wrong with him, he scored high on two portions of the
Minnesota Multiphasic Personality Inventory. One high score suggested
16
defendant did not follow the instructions, did not understand what was going on,
responded randomly, or suffered from a severe thought disorder. The other high
score was on the schizophrenic illness scale. The “first impression of the
computer printout” of his Rorschach inkblot test results also indicated “a distinct
possibility he suffered from schizophrenia.”
Dr. Riley further testified that defendant “swore he would never take[]
medications at [the] Los Angeles County [jail], so we wanted to see if we could
maintain the competent state off the medications.” As noted earlier, defendant
subsequently assaulted fellow patient McCully. Some of the psychological tests
were administered when defendant was off medication, although Dr. Riley did not
specify which ones.
By January 1990, Dr. Riley was of the opinion defendant was competent, and
his schizophrenic illness was in remission while defendant was on medication.
Defendant needed to be on medication to maintain a state of trial competency.
Dr. Riley also believed defendant had “sociopathic tendencies, would be prone to
lie and manipulate and [was] given to criminal acts.” While defendant stated he
did not believe the people he was alleged to have killed had actually died, the
consensus of Dr. Riley and the rest of the treatment team was this was not a
“psychotic denial, but rather a convenient denial, a sort of isolated phenomenon
that he has fabricated to deal with the enormity of the situation.” It was not a
delusion related to his schizophrenia.
Dr. William Wirshing, a physician who was board certified in psychiatry and
neurology, with a subspecialty in the study and treatment of schizophrenia, and an
associate professor at the University of California, Los Angeles, testified generally
about schizophrenia. In Dr. Wirshing’s opinion, available treatments do not cure
but do decrease the manifestations of the illness. While it is possible a paranoid
schizophrenic with a history of homicidal violence could be managed in a prison
17
setting, “[t]here are schizophrenics who are beyond the reach of current medical
technology.” For 70 percent of paranoid schizophrenics, however, conventional
“medications are helpful.” Violence tends to decrease as a schizophrenic patient
gets older.
Dr. Wirshing also reviewed some of defendant’s medical records, but did not
interview defendant. The records clearly indicated defendant’s unwillingness in
1990 to take medication in the Los Angeles County jail. His Atascadero records
indicated he was “at least partially treatment-responsive” to conventional
medication. Dr. Wirshing was aware, however, that at the time defendant was
discharged from Atascadero, he was still characterized as an extremely dangerous
individual.
Dr. Robert White, a forensic psychologist, was appointed by the Los Angeles
County Superior Court in March 1989 to evaluate defendant’s competence to
stand trial. He met with defendant and conducted a variety of tests. He also
reviewed certain records and transcripts, and consulted with defendant’s attorney,
Larry Rivetz, and Deputy Sheriff Nick D’Angelo. Several test results were
consistent with a diagnosis of paranoid schizophrenia and indicated that at the time
of the testing defendant was suffering from a psychotic episode. Defendant
maintained that he had wounded, not killed, a number of people, and “that if he
could get a private attorney, then he would be able to get an investigator hired that
could go to the hospital and determine that the victims had been released and, in
fact, were not dead.” Defendant felt Mr. Rivetz was part of a conspiracy to
prosecute him for nonexistent homicides. Dr. White concluded defendant
appeared to be suffering from paranoid schizophrenia and an antisocial personality
disorder, and was incompetent to stand trial.
Four or five doctors evaluated whether defendant was competent to stand
trial. One of them, Dr. John Stahlberg, found him competent. Dr. White was
18
aware of an incident in which defendant attacked Mr. Rivetz in the courtroom.
Defendant told Dr. Stahlberg the only way to get a new attorney is to hurt your
attorney by cutting him, and defendant did not think his attorney was doing a good
enough job.
In 1990, following defendant’s stay at Atascadero, Dr. White again evaluated
defendant in the Los Angeles County jail, conducting two interviews. He learned
defendant had very recently been taken off medication because of his adverse
reaction. Dr. White testified that the types of medication plaintiff had been on can
remain effective for some period of time after they are administered. During both
interviews, defendant appeared to be under the effects of the medication.
Defendant was very lethargic and did not manifest any delusional or psychotic
thinking. Dr. White diagnosed defendant as suffering from paranoid
schizophrenia, which was in remission due to medication. While defendant was
competent at that time, there was a chance he could become incompetent again if
he was not administered appropriate medication.
Dr. Robert Bittle, a physician with a subspecialty in neuropsychiatry,
evaluated defendant in January and March of 1992, and reviewed certain medical
and social study reports. Dr. Bittle diagnosed defendant as suffering from
paranoid schizophrenia and a personality disorder. Defendant “was flouridly [sic]
psychotic, out of control and dangerous.” He was convinced his food was being
poisoned, and that his attorneys were in “cahoots” with the district attorney and
trial judge and were plotting against him. Defendant stated there had been no
deaths in the cases in which he had previously been convicted of six murders, and
that he was worth $6 million because he was going to secure judgments in that
amount for the false accusations. During one interview, defendant was convinced
he and Dr. Bittle were being watched. Defendant could not interpret any of the
19
proverbs given him, such as “you can lead a horse to water, but you can’t make
him drink,” “indicating that he has a serious thinking disorder.”
According to Dr. Bittle, defendant “is a sadist . . . . [W]hen I asked
[defendant] to describe his feelings about the murders in Los Angeles, [he]
became sexually excited. That is one of the motivations for Mr. Danks’ behavior.”
In Dr. Bittle’s opinion, even in a treated and improved condition, defendant “is an
extremely dangerous individual.”
A CAT scan administered to defendant in 1989 showed that defendant had a
cyst on his brain. Dr. Bittle ordered a magnetic resonance imaging study (MRI),
which was performed two months before his testimony. The cyst was half as large
as it had been in the CAT scan. The two sides of defendant’s brain were not
symmetrical. Dr. Bittle also ordered a brain electrical activity mapping (BEAM)
test. While it was “not very dramatic,” this test indicated “there may, I emphasize
may be some abnormalities, as far as the electrical activity in [defendant’s] frontal
region,” and perhaps in defendant’s left and right temporal regions. This test, “in
itself, is not going to give you a definitive diagnosis or answer.”
Dr. Bittle concluded defendant was “functioning abnormally, that he has
organic brain dysfunction, as well as some mild damage to his brain.” By
“organic brain dysfunction,” Dr. Bittle was referring to the possible electrical
discharge abnormalities. By mild brain damage, he meant there was a documented
cyst, “some pressure or space occupying pressure on the brain,” and some
indication of abnormal electrical activity. By “mild,” he meant “we can’t find, we
can’t identify a specific infarct or a specific tumor in certain parts of the brain,
which we could then clearly translate into this is the brain damage, this is the
problem.”
Dr. Bittle further stated that, “individuals who have temporal lobe
abnormalities can be seen as being impulsive, showing poor judgment. It’s noted
20
that they could be aggressive, and that they can be destructive, that they can have
problems with memory concentration, and that they can have problems from the
standpoint of . . . actual organic lesions that can cause schizophreniaform or
clinical symptoms that mimic a classic schizophrenic disease.” Factors such as
genetics, low birth weight, head trauma, and drug abuse are important clinical data
that one needs to have “in terms of understanding a particular person’s brain
functioning and general behaviors.” Persons who abuse drugs in significant
amounts over significant periods of time can show brain damage.
Dr. Bittle conceded that people with schizophrenic relatives do not
necessarily develop schizophrenia. Moreover, “[i]t does not translate that all
people with cysts are going to have problems.” In addition, one can suffer brain
dysfunction without brain damage. Simply because a person has brain damage or
organic brain dysfunction, this does not necessarily mean they will be violent. In
particular, the majority of people with frontal lobe dysfunction or temporal lobe
damage are not violent. Likewise, the majority of people who have childhood
head trauma, are born prematurely, or have low birth weight, do not become
violent.
Defendant testified on his own behalf. Defense counsel made objections, but
did not question defendant during his testimony.
Defendant said, “I would have pled guilty to this crime the very first day. I
would have pled guilty.” “There would have been no need for you and there
would be no need for the money that was spent on this, because, obviously, it was
an open and shut case. It is like I was caught red-handed.”
Defendant implied he would continue to be violent in a controlled setting.
“[W]hat I’m trying to say is, is that if you leave matches for a little kid to play
with, he is going to play with them and burn himself, and I keep finding myself in
these types of situations all of the time, and in jail . . . .” “I’m trying to make it
21
clear that if everything was just so hunky-dory and peachy-keen in prison, why am
I being charged with Walter Holt and why did Mr. Dellostritto (defendant’s
counsel) get stabbed in his face . . . .”3 “But what I’m saying is, this court seems
to have picked up where God has abandoned us and saying, ‘hey, man, we cannot
allow someone to run wild out here,’ and I did stab them bums in their back, in the
back of their neck, in their side while they were laying down, while they were
asleep, and I would do it to you too --.”4 “Let me rephrase it. Just as I done it to
Mr. Dellostritto, I would do it to Mr. Eyherabide (defendant’s other counsel) if I
had a chance.” “[T]hey sent me to the mental hospital after I practically slit
Rodney’s throat in the jail.” “[I]f you are man enough to get into it, be man
enough to get out of it, and I guarantee if I spend every last day of my life in
prison, it is of no consequence to me, man, either way, and that should be made
clear. Because just like in L.A., it was of no consequence. I knew from the day
that I got arrested, and it ain’t stopped me yet, and I ain’t never going to stop, so
even if I was to be let out here right now, I ain’t going to stop.”
Defendant also stated, “Mr. Holt was an old man, and I wasn’t in the habit of
trying to kill, as you heard before, about killing old people, like all of these bums
were old. I had no idea that these bums were old, because they were so filthy and
dirty, you could not tell what was what, but somehow somebody has the
impression that I was out to get an old man or somebody . . . that’s not correct.”
3
During the penalty phase defendant twice stabbed Mr. Dellostritto in the
face, and was headed toward the jury box when he was subdued by sheriffs. The
jury was instructed that defendant’s conduct at the counsel table was not
admissible evidence, and could not be considered for any purpose.
4
Following this statement, defendant was admonished by the trial court not
to address his comments to the jury.
22
“You know, and I’m not saying that you should feel sorry for me, because
maybe this stuff warped my head when I was a kid . . . and because I was born a
bastard.” “I’m not saying that you should feel sorry for me, because I was 11
years old and here I am turning into a dope fiend.” “But I would not change a
thing that I did in my life. That is not to say I’m proud. As far as going to school
and graduating and getting a job and doing . . . what seems to be the normal thing
in this world, I’m the first one to admit that, in them respects, that I’m a coward,
I’m the low[est] of the – I’m a slime ball, a grease ball, a scum bag.” “I’m here to
tell you today, that their not guilty by reason of insanity plea that saying you done
it, you went out you stabbed this dude, and he supposedly died, and when you did
it, you didn’t know what you was doing, and it is like I’m standing there but I’m
on Mars or something. I don’t know how they can justify this and say you did it,
but you don’t know you did it. It is not like I was blowed out on my mind with
dope and PCP, but I was smoking dope and cigarettes, but it is not like I was so
drunk that I don’t know how I got home. It wasn’t like that at all and they are
trying to tell you that I’m absolutely crazy and I can’t think and all of this. . . . I’m
trying to tell you that I have no problem thinking, functioning . . . I have no
trouble with my faculties. I can read. I can write. I can add, subtract, multiply. I
can read my [prison rule handbook]. I can eat my food. I don’t shit and piss in
my pants, and I don’t drool on myself, and it seems to me that they were trying to
bring in the psychiatrist and tell you that I’m just a fucking moron that can’t do
anything, and that is absolutely incorrect . . . .”
3. Rebuttal
Dr. Theodore Badgley, a psychiatrist and neurologist, was appointed in
June 1992 to determine whether defendant was competent to stand trial. He met
with defendant and reviewed voluminous medical records. After reading many of
23
defendant’s records, and before interviewing him, Dr. Badgley was
“preconditioned to think” defendant was “mentally ill and off and on psychotic
and not competent.” However, while he diagnosed defendant as having an
antisocial personality disorder, Dr. Badgley found no evidence of schizophrenia.
Defendant did not “appear psychotic in any way during [the] examination.”
In Dr. Badgley’s opinion, there were two explanations other than
schizophrenia for defendant’s apparent psychotic behavior in the past. First, when
defendant was accused of being mentally ill or psychotic, “he got to the point
where he was saying you are accusing me of it, I’ll just be that way.” Along these
lines, Dr. Badgley saw defendant as “rather dramatic and attention-seeking, and in
a bizarre way, you might say, playful, and I think he was getting the best of his
captors, in a sense, and was able to con them into thinking that he was psychotic.”
“[I]t gave him control of a situation and it gave him attention . . . .” Second, while
Dr. Badgley was doubtful this was the explanation for the psychotic elements
perceived in the past by others, he noted defendant had a “considerable history of
drug usage, and a lot of the abusive substances are mind-altering and are
associated with brief psychosis.”
While there was evidence from defendant’s MRI that he had an “arachnoid”
cyst, such a cyst never affects a person’s mental processes or thinking. It can in
extremely rare cases cause a block in the cerebral spinal fluid system, so that
pressure would build up and lead to paralysis and coma. “But the cyst, itself, does
not disturb mental processes.” The report on defendant’s MRI stated there was
“no evidence of change in pressure or increased pressure” on the cerebral spinal
fluid system from the cyst. In the absence of pressure, “there is no way” the cyst
can affect the way a person is thinking or the operation of the brain.
The report on defendant’s BEAM test did not state the test revealed any
abnormal electrical activity. In Dr. Badgley’s opinion, after examining defendant
24
and reviewing his medical records, MRI result, and BEAM test result, there was
no evidence defendant suffered from any form of organic brain damage. It was
conceivable very detailed microscopic neuropsychological testing might reveal
some abnormality given defendant’s history of drug abuse, but it “wouldn’t reflect
very much in his functioning,” that is, it would not mean he could not “reason or
think or read and write.”
II. DISCUSSION
A. Pretrial
Alleged Faretta Error
Defendant contends his conviction and death sentence must be reversed
because he was denied his right to represent himself in violation of Faretta v.
California (1975) 422 U.S. 806. We conclude defendant never invoked his right
to self-representation because his references to such status were equivocal.
1. Factual Background
Three hearings are pertinent to this issue, although at the first hearing,
defendant did not mention in propria persona status.
On March 26, 1991, a hearing was held before Judge Wallace on a defense
motion to continue the trial date. At the hearing, the trial court informed
defendant he had a right to trial within 60 days of the time the indictment was
filed, or on the currently scheduled trial date of April 8, 1991. The court stated,
“Your attorney has indicated a need for a significant amount of additional time to
fully prepare your case for trial, and I’m prepared to grant that continuance. It will
require a time waiver on your part. Are you willing to waive your right to be tried
within 60 days of the filing of the indictment against you, and agree to the
continuance to October 15?” Defendant replied, “No, I’m not.” The court said,
“All right. Do you understand that you do have a right to an attorney to represent
25
you, and that, of course, means an attorney that is properly prepared to submit to
the trier of fact all of the defenses that might be available to you, and you cannot
waive that right in this particular case, and the right to an attorney means the right
to a prepared attorney, and an attorney that can adequately represent you. And so
it’s important that you consider that in making your determination of whether or
not you’re willing to waive time. The Court would be inclined, even in [the]
absence of a time waiver on your part, to consider a continuance, because of the
Court’s obligation to provide an attorney, which means prepared counsel, and
based on . . . the declaration that’s been filed in connection with this motion, . . .
certainly I think the continuance for an additional six months thereafter is well
within the realm of reason.”
Defendant made a number of statements in response, including expressing
the view that the Los Angeles proceedings that led to his six prior murder
convictions had been “a fabric of lies.” He also expressed the view that it was not
“right to be making me wait another six months . . . . Like I got my rights, but the
way I look at my rights, they amount to about a pimple on the ass of life right now.
I just don’t think it’s fair that you allow this . . . .”
The trial court stated the validity of the six prior murder convictions was a
“key element to this particular lawsuit,” and hence counsel needed time to
properly prepare. Defendant responded, “Well the speedy trial act, the way I read
about it, was a public rights bill, not a defendants’ rights bill, has been amended to
a defendants’ rights bill, hasn’t it, since the --.” The court reiterated that defendant
had a right to be tried within 60 days of the filing of the indictment. “You also
have another right. You have a constitutional right to be represented by counsel in
this matter, and in this particular case, it’s not a right that you can waive. Right
to counsel doesn’t mean the right to have some warm body standing next to you
during the course of your trial, it’s the right to have a qualified lawyer that is
26
adequately prepared to present all available legal defenses on your behalf, and if it
is not possible for the attorney to be prepared within the 60 days, then it becomes
necessary for the Court to balance your right to a speedy trial with your right to
have prepared counsel represent you in the course of the trial. And that’s why I’ve
suggested to you, in [the] absence of the time waiver, the Court is going to –
undoubtedly at this point finds good cause to grant the continuance in any
event. . . . [I]f you would prefer to go to trial on the 8th, with a warm body that
doesn’t have the ability to present all the defenses on your behalf and to get
witnesses here to do that, that’s another story.”
Defendant replied, “Well, that’s what I prefer, because it doesn’t seem like
you can do anything more to me. Unless you go back to the old days of swift
justice and a PT bullet in the back of the head or some cyclone or whatever. But I
just prefer to have this over and done with,” describing some discomforts of
prison. After further discussion between the court and defendant and the court and
counsel, the continuance request was granted.
On September 23, 1991, another hearing was held before Judge Wallace on
a defense request to continue the trial date from October 15, 1991, to February 18,
1992. The court inquired of defendant, “Are you prepared to waive time so I can
grant your attorneys’ request for a continuance?” After confirming Judge Wallace
was the same judge who presided at the earlier hearing, defendant said, “You told
me last time, over my objection, that my trial was starting . . . October 15.” The
court said, “I understand what you’re saying. I’m just asking a very simple
question, whether you’re prepared to waive time.” Defendant said, “I wasn’t
prepared back then; what makes you think I’m prepared right now?” The court
replied, “I have no reason to know anything about what you’re thinking, sir. And
I’ll take that to be a no answer, as far as a time waiver is concerned.” Defendant
said, “It’s a no.” The court said, “I’ll nevertheless find good cause, based on the
27
materials in the motion, that have been submitted. I’ll note that while Mr. Danks
has a speedy trial right, and we’ll do our best to protect that, he also has the right
to counsel, which is a constitutional right, which is in this court’s view, is . . .
paramount . . . to the speedy trial right, and preparation for trial is necessary to
have counsel that is prepared. So I’ll --.” Defendant asked, “What about going
pro. per.?” The court said, “Well, then, we really have problems having counsel
prepared.” He then continued the trial, briefly discussed the timing of motion
filing with counsel, and the proceeding adjourned.
On February 11, 1992, a hearing was held on a defense discovery motion.
At the start of the hearing, defense counsel informed the court defendant wanted to
make a Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) The court
elected to proceed first with defendant’s discovery request. Once this was
resolved, defense counsel moved defendant be examined pursuant to section 1368
to determine if he was competent to stand trial. Before addressing that issue, the
court heard the Marsden motion.
At the 40-45 minute hearing on the Marsden motion, defendant complained
about the number of continuances his attorneys had sought. He noted in particular
the continuance of the preliminary examination had led to an indictment and loss
of the opportunity for a preliminary hearing. He also expressed irritation that a
trial date continuance had been granted over his objection. The court stated it
takes some time for counsel to prepare a case like defendant’s, and explained in
particular how problems with discovery can cause delay. It then inquired, “So
anything else that you are concerned about?”
Defendant said the procedure seemed like a “repeat of Los Angeles. . . . [I]t
just seems like I am not going to get a trial here. You know, I come into this
courtroom today and the first thing [defense counsel’s] talking about is filing a
13[68] on me and having me sent to the looney bin. I don’t appreciate that, I don’t
28
like that, and I will not stand for that.” After further exchange, defendant said, “I
want to ask you, Judge, what happens if I just flat out refuse to talk to any doctors,
to take any psychological tests, period? What are you going to do? Are you going
to resort to some kind of third degree gas at that point or torture tactics to force me
to talk to a psychiatrist when I do not choose to talk to a psychiatrist? I would like
to defend myself in the first place. Proposition 115, I understand provision of that
allows that a jury, you don’t have to bring in a jury panel of four, five hundred
people and question ‘em all through the lawyers and the day questioning. I
understand you can drop their names in the hat and the Judge can pick their names
of 12 jurors and six alternates out of the, out of a hat. I understand that. Well,
that’s what I want. I don’t feel like going through questioning all them people.
And if I was defending myself, see, I’m the only one that knows what’s going on
inside my head and I am going to tell them doctors nothing. I might not even talk
to the doctors, period. And what these people are doing, I don’t understand what
these people are doing, you know, they’re going back, going to Michigan and
visiting my family, you know. That’s all fine and dandy, but you know, they ain’t
even beginning to scratch the surface of what’s, of what’s really happening.”
The court explained defendant’s attorney had a duty to investigate and
gather information to prepare for trial. After further exchange, defendant said that
if he refused to see the doctors, his attorneys would claim he was refusing to
cooperate. He then said he had been “railroaded” into a mental hospital during the
earlier Los Angeles murder proceedings, and that even his current counsel felt he
had been so “railroaded.” Defendant insisted, “I understand what it means to be
competent . . . . [I]f I was to . . . hire my own attorney, well, I would be expecting
him to be working for me. I wouldn’t be expecting him the first thing I do when I
come into the courtroom is him telling the Judge that . . . I belong in a looney bin
and that I’m nuts. I don’t appreciate that. I don’t like that. If, if a man was
29
working for me, he would be off the case, . . . he’d be on his way.” The trial judge
assured defendant he would not grant counsel’s section 1368 motion unless he
thought it was appropriate, and stated that counsel seemed to be trying to get to
know defendant’s case as much as possible.
Defendant then asked the court to explain “something” about the charge
against him. Before elaborating, he said, “I didn’t like that either, he’s telling the
Court that I’m killing elderly men. I had no idea them bums were old men. I had
no idea whatsoever. I mean I didn’t just go out and look for an old man. That
kinda upset me there, too . . . . But anyway, . . . what exactly is the charge
now . . . .” Defendant stated in the absence of the prior murder convictions, there
would be no special circumstances. The court said that was why defendant’s
attorneys were investigating his guilty plea, to see “if there’s some way to attack
the legality.” Defendant responded, “I understand all that. I've been working with
them on that. You know, they think that I’m not working with them on that, but I
am working with them on that. They don’t realize how much I’ve been working
with ‘em on that.” The court said, “I’m sure they do,” and then explained prisons
can place limitations on attorneys spending time with their clients. Defendant
commented on the difficulty the prison placed on the attorneys’ visits, and said he
could not see “that the Department of Corrections has a right to do that.
Especially when they’ve been spending thousands . . . upon thousands upon
thousands . . . of dollars to fly out to Michigan . . . and all the other things that
I’ve been working with ‘em with. See if—I don’t know what they’ve been
explaining to this Court, but I have been working with them, and I have been . . .
approaching them on certain things that is very important, and it’s going to cost
money. We’re talking about subpoenas to bring down material witnesses and
things like that. I guess they just don’t realize how much I’ve been cooperating
with ‘em. But --.” In response to the court’s inquiry, defense counsel then
30
apparently indicated they wished to continue to represent defendant. The court
agreed with defendant that the prison had logistical problems. Defendant then
said, “I will work with them. I will try to cooperate with ‘em. I just wanted to
make clear for the record that if this were, if the law under that CAT test, if it were
the truth, and I understand there’s a case back when the San Quentin [S]ix trial
was going on when one of the men there went pro. per. in that case and back then
they had made a new law where a man has a right to choose, pick and choose his
attorney. . . . I don’t know if that’s true, but according to [a book] in that trial . . .
one of ‘em was allowed to go pro. per. and one of ‘em was allowed to pick and
choose his own attorney. Now I don’t know if he was forced to pay for that
attorney or if it was a state appointed attorney, but according to that, he was
allowed to do that. Now the way I figure it is if that, if the CAT, if that CAT law
was true, then . . . these people would have an obligation to be fighting for my
rights for a speedy trial. . . . I’m still getting time continuances against my wishes.
I want to make that clear for the record so that 20 or 30 years from now because
. . . the death penalty law is nothing but a joke in the first place, so 20, 30 years
from now when I get enough law books and come back and get these records I can
come back and say hey, here’s an attorney that . . . is supposed to be, according to
the law, a real attorney, just like you would go out on the streets and just hire[] any
attorney and he is supposed to be fighting for your rights, but look what happened.
I didn’t get a trial for two or three or four years. Anyway, I will work with these
attorneys . . . .”
Defendant and the court then engaged in an extended colloquy regarding
whether the section 4500 charge would independently support a death verdict even
if the prior murder convictions were found invalid. After further colloquy on other
matters, defendant said he did not want his defense attorneys “meddling in what
happened in Los Angeles because I’m just going to tell you right now bluntly
31
they’re incompetent to handle anything that happened in Los Angeles. . . . And I
just don’t feel it [is] right for them to meddle in my affairs in Los Angeles when
the issue right here is Mr. Holt, and . . . I’m not going to take a deal, but . . . I
would like to have a jury selected out of a hat and . . . that way I could sit up,
wherever I’m going to sit, I don’t know where you sit, and I could tell the jury
personally exactly what happened. See I think, Judge, that you fail to realize just
exactly what kind of terror Mr. Holt went through in that cell . . . I don’t think
anybody personally gives a shit what goes on in them prisons or them jails. . . .
Nobody understands, I mean, what this victim has went through. The only thing
they’re concerned about is putting me in a looney bin, and I don’t appreciate it one
bit. I want a trial. I want to defend myself and go pro. per. If I’m not allowed to
go pro. per., I would at least like to be cocounsel to where I could sit there, maybe
I could just take the stand and tell ’em, the jury exactly what happened on this
incident.” Defendant said defense counsel were not going to “lift a finger” to help
him seek a monetary remedy for what happened to him in Los Angeles. “So that’s
why I am objecting to everything they’re trying to do about Los Angeles.”
Defendant then complained about correctional officer misconduct in prison. The
court denied the Marsden motion, and stated it had no doubt regarding defendant’s
competence to stand trial.5
2. Discussion
When “a motion to proceed pro se is timely interposed, a trial court must
permit a defendant to represent himself upon ascertaining that he has voluntarily
and intelligently elected to do so, irrespective of how unwise such a choice might
5
Despite this ruling, the matter was subsequently revisited, and as noted
earlier, a competency hearing was held in September 1992. Defendant was found
competent to stand trial after this hearing.
32
appear to be.” (People v. Windham (1977) 19 Cal.3d 121, 128.) Unlike the right
to representation by counsel, the “ ‘right of self-representation is waived unless
defendants articulately and unmistakably demand to proceed pro se.’ ” (People
v. Marshall (1997) 15 Cal.4th 1, 20-21 (Marshall); id. at p. 23 [“[T]he court
should draw every reasonable inference against waiver of the right to counsel”];
see Brewer v. Williams (1977) 430 U.S. 387, 391, 404 [“courts indulge in every
reasonable presumption against waiver” of the postarraignment right to counsel].)
“In determining on appeal whether the defendant invoked the right to self-
representation, we examine the entire record de novo.” (People v. Dent (2003) 30
Cal.4th 213, 218.)
Faretta’s emphasis “on the defendant’s knowing, voluntary, unequivocal,
and competent invocation of the right suggests that an insincere request or one
made under the cloud of emotion may be denied.” (Marshall, supra, 15 Cal.4th at
p. 21.) “[A] motion made out of a temporary whim, or out of annoyance or
frustration, is not unequivocal—even if the defendant has said he or she seeks self-
representation.” (Marshall, at p. 21; id. at p. 23 [“A motion for self-representation
made in passing anger or frustration . . . may be denied”]; Reese v. Nix (8th Cir.
1991) 942 F.2d 1276, 1281 [the defendant’s statement, “Well, I don’t want no
counsel then” was not a clear and unequivocal invocation of his right to self-
representation]; Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888-889 [the
defendant’s statement “ ‘I want to fight in pro per then. Relieve him and I do this
myself,’ ” was an “impulsive response to the trial court’s denial of his request for
substitute counsel,” and “did not demonstrate unequivocally that he desired to
represent himself”]; id. at p. 888 [“trial court properly may deny a request for self-
representation that is ‘a momentary caprice or the result of thinking out loud’ ”].)
Here, we conclude that defendant’s references to self-representation were
equivocal, born primarily of frustration regarding the granting of counsel’s
33
requests for continuances and his desire to avoid further psychiatric examination.
At the September 23, 1991, hearing, the entire proceeding focused on whether the
trial court should grant a continuance, which the court did over defendant’s
objection. At the end of the hearing defendant said, “What about going pro. per.?”
The court, which could observe defendant’s demeanor, said, “Well, then, we really
have problems having counsel prepared.” It then continued the trial and briefly
discussed the timing of motion filing with counsel, and the proceeding adjourned.
The court’s response indicates it did not interpret defendant’s remark as a serious
request, and defendant made no effort to demonstrate it was such a request.
Defendant concedes it “might be said” that his question, “What about going
pro. per.?” “was not an unequivocal invocation of his right to represent himself.”
He argues, however, “the only reason why [defendant’s] request might be
considered equivocal is because of the failure of ” the court to respond to this
question, “particularly considering the fact that Judge Wallace had twice falsely
told” defendant at the March 26, 1991, hearing “that he was not permitted to waive
counsel.” Defendant asserts, “A defendant’s constitutional right to represent
himself should not be sabotaged by misleading him and failing to take corrective
action when he directly asks a question that goes to the misinformation he was
given.”
Of course, at the March 26, 1991, hearing, defendant never mentioned self-
representation. In addition, the court’s remarks regarding waiver at that hearing
were ambiguous and not elaborated on. Even assuming the trial court was saying
defendant could not represent himself in this case, given defendant made reference
to going in propria persona at two subsequent hearings, one of which was before
the same trial judge who had presided at the March 26, 1991, hearing, defendant
apparently did not understand the court’s March 26, 1991, remarks as precluding
such a possibility.
34
Nor, contrary to defendant’s assertion, were defendant’s references to in
propria persona status at the February 11, 1992, hearing “clear and unequivocal.”
The focus of the 40-45 minute hearing was on whether counsel should be replaced
because of defendant’s dissatisfaction with their efforts to continue the trial and to
have him declared incompetent. Defendant made his dissatisfaction with counsel
clear, but also repeatedly stated he had and would continue to cooperate with
counsel. His fleeting statements about defending himself, embedded in diatribes
regarding his opposition to further psychiatric examination and prison conditions,
were insufficient to constitute an articulate and unmistakable invocation of the
right to self-representation. (See Marshall, supra, 15 Cal.4th at p. 21.)
B. Penalty Phase6
1. Alleged Juror Misconduct
Defendant alleges prejudicial juror misconduct in violation of numerous
rights under the federal and state Constitutions. (U.S. Const., 1st, 6th, 8th & 14th
Amends.; Cal. Const., art. I, §§ 4, 15, 16 & 17.) Specifically, he contends the
misconduct tended to diminish the jurors’ sense of responsibility for their penalty
decision; substituted a source of law, other than California law as instructed on by
the trial judge, for their decision; and violated his right to a reliable penalty
determination, the right to a trial by an impartial jury, his confrontation right, and
his right to be free of an establishment of religion.
a. Factual Background
On February 9, 1993, at 3:20 p.m., the jury returned its penalty verdict.7 On
March 15, 1993, defendant filed a motion for new trial alleging juror
6
Defendant raises no guilt phase issues.
7
The jury was instructed at the penalty phase, “You must decide all
questions of fact in this case from the evidence received in this trial and not have
(footnote continued on next page)
35
misconduct.8 Defendant contended that during the penalty phase deliberations,
two jurors, K.A. and B.P., had consulted outside persons for spiritual guidance,
and that certain biblical passages were brought into the jury room. He attached the
March 10, 1993, declaration of Juror K.A., which as relevant provided:9
“At some point during the trial I felt stress from being in court all day and
attempting to go home at night and do all the home responsibilities in four hours
that I normally did in eight hours. My husband noticed that I was on edge and he
told me at that time that it would be permissible to speak with our pastor, and that
this was permissible because a pastor is of a higher authority.
“Penalty phase deliberations began on a Friday and the court recessed on
Friday afternoon. I was leaning toward the death penalty but I felt discomfort
about imposing the death penalty. If I was going to vote for the death penalty I
wanted to feel good about it. I needed to talk to someone out of a need for
(footnote continued from previous page)
any other source. You must not make any independent investigation of the facts
or the law or consider or discuss facts of which there is no evidence. This means,
for example, you must not on your own visit the scene, conduct experiments or
consult reference works or persons for additional information. You must not
discuss this case with any other person . . . except a fellow juror, and you must not
discuss the case with a fellow juror until the case is submitted to you for your
decision and only when all of you are present in the courtroom.”
8
On March 11, 1993, the original sentencing date, defendant opposed a
continuance of his sentencing in order for defense counsel to file the motion for
new trial, stating, “I don’t care if that broad read the Bible and gave it to every
other broad in the jury room, I don’t care. . . . I want my sentencing. I want it
done today.”
9
We have italicized those portions of the declarations that relate solely to the
mental processes and subjective reasoning of the declarant juror and hence cannot
be considered (People v. Hutchinson (1969) 71 Cal.2d 342, 349-350
(Hutchinson)), or which are irrelevant to any pending issue.
36
comfort. Judge Oberholzer had told us we could not speak with persons about the
case. But because of the feelings I had, I felt the necessity of talking to my
husband. My husband advised that reading scripture from the Bible might be of
benefit to me. He showed me the Book of Numbers, [c]hapter 35, [v]erses 16
through 25 and 30 through 31, which is at pages 306 and 307 from my ‘The NIV
Study Bible.’[10]
“On Sunday evening, when we were at the [c]hurch [f]acility for Bible
study, we met the pastor. That is where my husband made a copy of pages 306
and 307 from our Bible containing the Book of Numbers verses. In a brief
meeting with the pastor, who knew that I was a juror on the Danks case, my
husband said to me that this might be a good time for me to discuss my feelings
10
As provided in the attachments to the juror’s and defense counsel’s
declarations, these verses provide: “If a man strikes someone with an iron object
so that he dies, he is a murderer; the murderer shall be put to death. Or if anyone
has a stone in his hand that could kill, and he strikes someone so that he dies, he is
a murderer; the murderer shall be put to death. Or if anyone has a wooden object
in his hand that could kill, and he hits someone so that he dies, he is a murderer;
the murderer shall be put to death. The avenger of blood shall put the murderer to
death; when he meets him, he shall put him to death. If anyone with malice
aforethought shoves another or throws something at him intentionally so that he
dies or if in hostility he hits him with his fist so that he dies, that person shall be
put to death; he is a murderer. The avenger of blood shall put the murderer to
death when he meets him. [¶] But if without hostility someone suddenly shoves
another or throws something at him unintentionally or, without seeing him, drops a
stone on him that could kill him, and he dies, then since he was not his enemy and
he did not intend to harm him, the assembly must judge between him and the
avenger of blood according to these regulations. The assembly must protect the
one accused of murder from the avenger of blood and send him back to the city of
refuge to which he fled. He must stay there until the death of the high priest, who
was anointed with the holy oil. . . . [¶]. . .[¶] . . . Anyone who kills a person is to be
put to death as a murderer only on the testimony of witnesses. But no one is to be
put to death on the testimony of only one witness. [¶] Do not accept a ransom for
the life of a murderer, who deserves to die. He must surely be put to death.”
37
ab[o]ut the trial verdict. I told the pastor that I had read the scripture and it gave
me comfort. The pastor said those were good scriptures and then jokingly said
that he would impose the death penalty on Mr. Danks.
“On Monday, I returned to court for deliberations. I took the copy of the
pages from the Book of Numbers with me. I had highlighted certain portions of
that.
“During deliberations, other jurors expressed feelings about the difficulty
and responsibility of making a life or death decision. I told the other jurors about
my copy of the pages from the Book of Numbers. I then shared it with the other
jurors by passing it around to the other jurors. I recall one juror being offended
that I had the scripture, because later in the day that juror said words to the effect
that [G]od does not play a part in this decision, which I assumed was referring to
our Christian beliefs being discussed during deliberations.
“I no longer have that copy.
“Juror [B.P.] told me that she had talked to her pastor and he had referred
her to the same chapter and verses in the Book of Numbers.
“On March 9, 1993, I was contacted by [defense investigator] Mrs. Pat
McGregor and I told her how I had consulted the Bible. The next day, I met with
Mrs. McGregor and [defense counsel] Mr. Eyherabide on the same subject. I took
my Bible with me and Mr. Eyherabide copied pages . . . 306 and 307 and asked
me to highlight those portions which I had highlighted on the copy passed in the
jury room. I did highlight those portions in red and pink ink and Mr. Eyherabide
indicated he would attach that copy to this statement.”
Defendant also attached the declaration of Mr. Eyherabide, which discussed
defense efforts to obtain a declaration from Juror B.P., and attached unhighlighted
copies of the Book of Numbers pages for purposes of legibility.
38
The People opposed the motion for new trial. Defendant then filed two
supplemental declarations. The first, a March 15, 1993, declaration by Juror E.M.,
stated in relevant part, “During the penalty phase deliberat[i]ons in the [Danks]
case, [J]uror [B.P.] told me that she had talked to her pastor for guidance on the
case.” The second was a March 16, 1993, declaration by Juror B.P. As relevant it
provided:
“During the penalty phase deliberations I spoke to my pastor. By that time,
I had already made my decision. However I wanted to know what the Bible said
about the death penalty. My pastor stated “[B], I think I know what case you are
on. There is no place in the Bible that takes the law out of the Bible. If you are
sitting on the case I’m thinking you are sitting on, if I was in your shoes, I would
not hesitate to give him the death penalty.”
“My reasons for voting for the death penalty were these: based on the
evidence of Mr. Danks’ past life and what his future life in prison [would be], he
didn’t have much to live for; Mr. Danks wanted the death penalty; and because
other persons could not be safe around Mr. Danks.”
Mr. Eyherabide also filed a second declaration describing the circumstances
under which the defense obtained Juror B.P.’s declaration.
The People then filed a supplemental points and authorities in opposition to
the motion for new trial. Attached to the opposition were second declarations by
Jurors K.A. and B.P., both executed on March 30, 1993. Juror K.A.’s second
declaration, as relevant, provided:
“After the first day of penalty phase deliberations, which was a Friday, I
felt a great deal of stress and was upset, both due to the stress of making a
decision in the case, and due to the difficulty of completing my normal home
responsibilities in the evening after a full day in court. My husband noticed that I
was upset, and showed me a passage in the Bible which gave me comfort. I did
39
not discuss the case or our deliberations with him, but simply the stress I felt in
making the decision.
“On Sunday evening, I picked my husband up at church for Bible Study,
and encountered our pastor. My husband at that time stated to me that at this time
I might be able to talk with our pastor about the Bible verses that I had read.
“I said that I did not need to discuss anything. My pastor said he
understood that I had read several scripture vers[e]s. I told him that I had read the
scriptures and they gave me comfort. The pastor then stated in a joking manner
that if he were a juror he would impose the death penalty on Mr. Danks.
“On Monday, I returned to court for deliberations. I took the copy of the
pages from the Book of Numbers with me. During the deliberations, other jurors
expressed the feeling that it was difficult having the responsibility for making a
life and death decision. I told the jurors about my copy of the pages from the
Book of Numbers, and how that passage had given me comfort. I then passed it
around to the other jurors. At no time did I or anyone else argue or state that Mr.
Danks should be put to death because of what that passage of the Bible said. I do
recall one juror later stating that God does not play a part in our deliberations.”
Juror B.P.’s second declaration, as relevant, was as follows:
“On the first day of penalty phase deliberations, which was a Friday, three
votes were taken on the penalty. I voted the same way on all three occasions.
“At the end of the day, I had made up my mind as to what I personally
thought was the appropriate penalty. However, I felt a great deal of emotional
turmoil due to the seriousness of making a life or death decision. After the first
day of deliberations, I spoke with my pastor about the difficulty of making the
decision. I told him, ‘Pastor, I’m doing jury duty on a murder case. Is there
anything in the Bible which speaks against the death penalty?’ I also told him that
I had made up my mind about the verdict.
40
“In response, my pastor told me, ‘[B], I think I know what case you are on.
There is no place in the Bible that takes the law out of the Bible. If you are sitting
on the case I’m thinking you are sitting on, if I was in your shoes, I would not
hesitate to give him the death penalty.’
“On Monday and Tuesday, when deliberations resumed, several additional
votes were taken. On all occasions I voted for the same verdict as I had
previously. At no time during the deliberations did I relate to the other jurors what
my pastor had said to me, nor did I argue or state that the death penalty should be
imposed because of anything said in the Bible.”
The trial court denied the motion for new trial. Defendant never sought a
Hedgecock hearing. (People v. Hedgecock (1990) 51 Cal.3d 395, 415
(Hedgecock).)
b. Discussion
1) What portions of the declarations are admissible?
In order to determine whether there was juror misconduct and if so,
prejudice, we first consider what portions of the declarations are admissible.
Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to
statements made, or conduct, conditions, or events occurring, either within or
without the jury room, of such a character as is likely to have influenced the
verdict improperly. No evidence is admissible to show the effect of such
statement, conduct, condition, or event upon a juror either in influencing him to
assent to or dissent from the verdict or concerning the mental processes by which
it was determined.”
“This statute distinguishes ‘between proof of overt acts, objectively
ascertainable, and proof of the subjective reasoning processes of the individual
41
juror, which can be neither corroborated nor disproved . . . .’ ” (People v. Steele
(2002) 27 Cal.4th 1230, 1261.) “ ‘This limitation prevents one juror from
upsetting a verdict of the whole jury by impugning his own or his fellow jurors’
mental processes or reasons for assent or dissent. The only improper influences
that may be proved under [Evidence Code] section 1150 to impeach a verdict,
therefore, are those open to sight, hearing, and the other senses and thus subject to
corroboration.’ ” (Steele, at p. 1261.)
Here, certain portions of the declarations, which have been italicized, relate
solely to the mental processes and subjective reasoning of the declarant juror
regarding the penalty deliberations, and hence cannot be considered. Other
portions, which have also been italicized, involve mental processes or subjective
reasoning that while not directly related to the penalty deliberations, are irrelevant
to any issue we are considering. Thus, we may not consider why Juror K.A. was
experiencing stress, or what verdict she was leaning toward. Nor may we consider
the reasons Juror B.P. voted for the death penalty. (See Hedgecock, supra, 51
Cal.3d at p. 419 [“when a juror in the course of deliberations gives the reasons for
his or her vote, the words are simply a verbal reflection of the juror’s mental
processes. Consideration of such a statement as evidence of those processes is
barred by Evidence Code section 1150”].)
2) Applicable law for determining any misconduct and
prejudice
We first determine whether there was any misconduct. “The introduction of
much of what might strictly be labeled ‘extraneous law’ cannot be deemed
misconduct. The jury system is an institution that is legally fundamental but also
fundamentally human. Jurors bring to their deliberations knowledge and beliefs
about general matters of law and fact that find their source in everyday life and
experience. That they do so is one of the strengths of the jury system. It is also
42
one of its weaknesses; it has the potential to undermine determinations that should
be made exclusively on the evidence introduced by the parties and the instructions
given by the court. Such a weakness, however, must be tolerated. ‘[I]t is an
impossible standard to require . . . [the jury] to be a laboratory, completely
sterilized and freed from any external factors.’ (Rideau v. Louisiana (1963) 373
U.S. 723, 733 (dis. opn. of Clark, J.).) Moreover, under that ‘standard’ few
verdicts would be proof against challenge.” (People v. Marshall (1990) 50 Cal.3d
907, 950.) “The safeguards of juror impartiality . . . are not infallible; it is
virtually impossible to shield jurors from every contact or influence that might
theoretically affect their vote.” (Smith v. Phillips (1982) 455 U.S. 209, 217.)
If we conclude there was misconduct, we then consider whether the
misconduct was prejudicial. This standard is well established. “[W]hen
misconduct involves the receipt of information from extraneous sources, the effect
of such receipt is judged by a review of the entire record, and may be found to be
nonprejudicial. The verdict will be set aside only if there appears a substantial
likelihood of juror bias. Such bias can appear in two different ways.” (Carpenter,
supra, 9 Cal.4th at p. 653.)
“First, we will find bias if the extraneous material, judged objectively, is
inherently and substantially likely to have influenced the juror.” (Carpenter,
supra, 9 Cal.4th at p. 653.) “Under this standard, a finding of ‘inherently’ likely
bias is required when, but only when, the extraneous information was so
prejudicial in context that its erroneous introduction in the trial itself would have
warranted reversal of the judgment. Application of this ‘inherent prejudice’ test
obviously depends upon a review of the trial record to determine the prejudicial
effect of the extraneous information.” (Ibid.)
Second, “even if the extraneous information was not so prejudicial, in and of
itself, as to cause ‘inherent’ bias under the first test,” the nature of the misconduct
43
and the “totality of the circumstances surrounding the misconduct must still be
examined to determine objectively whether a substantial likelihood of actual bias
nonetheless arose.” (Carpenter, supra, 9 Cal.4th at pp. 653-654.) “Under this
second, or ‘circumstantial,’ test, the trial record is not a dispositive consideration,
but neither is it irrelevant. All pertinent portions of the entire record, including the
trial record, must be considered. ‘The presumption of prejudice may be rebutted,
inter alia, by a reviewing court’s determination, upon examining the entire record,
that there is no substantial likelihood that the complaining party suffered actual’ ”
bias. (Id. at p. 654.)
“The judgment must be set aside if the court finds prejudice under either
test.” (Carpenter, supra, 9 Cal.4th at p. 653.) “Whether prejudice arose from
juror misconduct . . . is a mixed question of law and fact subject to an appellate
court’s independent determination.” (People v. Nesler (1997) 16 Cal.4th 561, 582
(Nesler) (lead opn. of George, C.J.).) However, “[w]e accept the trial court’s
credibility determinations and findings on questions of historical fact if supported
by substantial evidence.” (Ibid.)
“We emphasize that before a unanimous verdict is set aside, the likelihood of
bias under either test must be substantial . . . . [T]he criminal justice system must
not be rendered impotent in quest of an ever-elusive perfection. The jury system
is fundamentally human, which is both a strength and a weakness. (People
v. Marshall, supra, 50 Cal.3d at p. 950.) Jurors are not automatons. They are
imbued with human frailties as well as virtues. If the system is to function at all,
we must tolerate a certain amount of imperfection short of actual bias. To demand
theoretical perfection from every juror during the course of a trial is unrealistic.”
(Carpenter, supra, 9 Cal.4th at pp. 654-655.)
44
3) Application of the law to these facts
Disregarding the italicized portions of the juror declarations, we now
consider whether any misconduct occurred, and if so, whether that misconduct
was prejudicial. We conclude that the unsolicited comments from Juror K.A.’s
pastor, Juror B.P.’s conversation with her pastor, and the introduction of the Bible
passages to the jury room were misconduct, but that this misconduct was not
prejudicial.
We begin with Juror K.A.’s conversations with her husband and her reading
the Bible. Juror K.A.’s husband noticed she was on edge and told her it would be
permissible for her to speak to her pastor because a pastor is a person of higher
authority. Juror K.A. did not discuss the case or the deliberations with her
husband, but only the stress she felt in making the decision. Her husband advised
that reading scripture from the Bible might be of benefit to her, and showed her
the Book of Numbers, chapter 35, verses 16 through 25 and 30 through 31.
It is misconduct for a juror during the course of trial to discuss the case with
a nonjuror. (People v. Pierce (1979) 24 Cal.3d 199, 207.) Here, however, Juror
K.A. did not discuss the case or deliberations with her husband, but only the stress
she was feeling in making the decision. That is not misconduct.
As for Juror K.A.’s reading the Bible during deliberations, defendant
concedes a juror may read Bible passages in the privacy of her home without
committing misconduct. He notes, “An inquiry into whether a juror privately
studied his/her Bible at home during the time when their jury was deliberating
would involve a degree of intrusion that our society would deem beyond the
permissible . . . .” Even if Juror K.A.’s reading of the Bible passages given to her
by her husband was misconduct, we conclude it was not prejudicial.
“[A] finding of ‘inherently’ likely bias is required when, but only when, the
extraneous information was so prejudicial in context that its erroneous
45
introduction in the trial itself would have warranted reversal of the judgment.”
(Carpenter, supra, 9 Cal.4th at p. 653.) Moreover, we do not reverse unanimous
verdicts because there is some possibility the juror was improperly influenced.
Rather, the likelihood of bias under the inherent prejudice test “must be
substantial.” (Id. at p. 654.) “Application of this ‘inherent prejudice’ test
obviously depends upon a review of the trial record to determine the prejudicial
effect of the extraneous information.” (Id. at p. 653.)
Objectively considering the Book of Numbers passage in light of the
compelling penalty phase evidence in this case, we conclude the passage was not
inherently and substantially likely to influence, i.e., bias Juror K.A.
Defendant was convicted of the premeditated murder of his sleeping
cellmate. In his statement to police, defendant implied that he had killed Mr. Holt
in order to receive the death penalty. Defendant had suffered six prior first degree
murder convictions. All of the victims were strangers to defendant, and he
indicated to police the stabbings were unimportant because the victims were
“bums.” While defendant was incarcerated, he committed two other stabbings,
and expressed frustration he had failed to kill one of these victims. He also
fashioned and concealed several sharp weapons. During his penalty phase
testimony, defendant expressed no remorse for his crimes, stating, “I would not
change a thing that I did in my life.” He also strongly implied he would continue
to be violent in a controlled setting, and apparently threatened the jury.
While defendant introduced evidence he was schizophrenic, that evidence
was not only disputed, but according to defendant’s own medical experts, a
significant aspect of this mental illness was that defendant derived great sadistic
pleasure in attacking other people. Dr. Bittle testified that defendant “is a
sadist . . . . [W]hen I asked [defendant] to describe his feelings about the murders
in Los Angeles, [he] became sexually excited. That is one of the motivations for
46
Mr. Danks’ behavior.” Dr. Hill testified that defendant had “a delusional self-
concept that . . . he is righteously performing murders or harming people[,]
something that he also enjoys greatly.” Moreover, even if defendant cooperated
with his medication regimen, which he had on occasion refused to do in the past,
he remained, as Dr. Hill testified, “an extraordinarily dangerous individual
regardless of whatever level of psychiatric improvement he may have.” Similarly,
Dr. Bittle testified that even in a treated and improved condition, defendant “is an
extremely dangerous individual.”
In addition, there was no guarantee that defendant would not ultimately be
returned to the general prison population if the jury imposed a sentence of life
imprisonment without the possibility of parole. Such a possibility posed a
continuing threat to the safety of prison personnel and other inmates. Indeed, even
if defendant spent the rest of his life in solitary confinement, he was still a threat to
prison personnel who for any reason needed to come into contact with him, for
example, medical personnel who might be required to involuntarily medicate him.
Weighing this penalty phase evidence against the exposure of Juror K.A. to the
Book of Numbers passage, it does not appear “the extraneous material, judged
objectively, [was] inherently and substantially likely to have influenced” or biased
Juror K.A. (Carpenter, supra, 9 Cal.4th at p. 653.)
Having concluded the Book of Numbers passage was not inherently
prejudicial, we now consider “the nature of the misconduct and the surrounding
circumstances” to determine whether it is substantially likely Juror K.A. was
nevertheless actually biased as a result of reading this passage. (Nesler, supra, 16
Cal.4th at p. 579.)
As noted above, defendant concedes a juror may read the Bible in the privacy
of her home without committing misconduct. Thus, he implicitly also concedes he
suffered no actual bias as a result of Juror K.A. reading the relevant passage.
47
Moreover, while Juror K.A. later shared this Bible passage with her fellow jurors,
“[a]t no time did [she] or anyone else argue or state that Mr. Danks should be put
to death because of what that passage of the Bible said.” Finally, consideration of
the significant penalty phase evidence further diminishes the possibility defendant
suffered actual bias as a result of Juror K.A.’s reading the Bible.
We next consider Juror K.A.’s conversation with her pastor.11 At church on
Sunday evening, she encountered her pastor. Her pastor knew she was a juror in
defendant’s case. Juror K.A.’s husband said this might be a good time to talk to
the pastor either about the Bible verses she had read or her feelings about the
verdict. She said she did not need to discuss anything. The pastor said that he
understood she had read several scripture verses. Juror K.A. said that she had read
the scriptures and they gave her comfort. The pastor said those were good
scriptures and jokingly said that if he were a juror, he would impose the death
penalty on defendant.
It is misconduct for a juror during the course of trial to discuss a case with a
nonjuror. Here, Juror K.A. told her pastor she did not need to discuss anything
with him, and mentioned that the scriptures passages had given her comfort.
While these statements may or may not be misconduct, more critically, her pastor
11
It is troubling that during deliberations not one but two jurors had
conversations with their pastors that ultimately addressed the issue being resolved
at the penalty phase in this case. Because jurors instructed not to speak to anyone
about the case except a fellow juror during deliberations (CALJIC Nos. 0.50, 1.03)
may assume such an instruction does not apply to confidential relationships, we
recommend the jury be expressly instructed that they may not speak to anyone
about the case, except a fellow juror during deliberations, and that this includes,
but is not limited to, spouses, spiritual leaders or advisers, or therapists.
Moreover, the jury should also be instructed that if anyone, other than a fellow
juror during deliberations, tells a juror his or her view of the evidence in the case,
the juror should report that conversation immediately to the court.
48
responded that those were good scriptures and jokingly said that if he were a juror,
he would impose the death penalty on defendant.
We have previously held that “a juror’s inadvertent receipt of information
that [has] not been presented in court falls within the general category of ‘juror
misconduct.’ ” (Nesler, supra, 16 Cal.4th at p. 579.) “Although inadvertent
exposure to out-of-court information is not blameworthy conduct, as might be
suggested by the term ‘misconduct,’ it nevertheless gives rise to a presumption of
prejudice, because it poses the risk that one or more jurors may be influenced by
material that the defendant has had no opportunity to confront, cross-examine, or
rebut.” (Ibid.)
Assuming Juror K.A.’s conversation with her pastor, and in particular her
pastor’s response, was misconduct, we conclude it was not prejudicial. In light of
the extraordinary penalty phase evidence, the conversation as a whole, and the
pastor’s gratuitous personal view of the appropriate penalty in particular, judged
objectively, were not inherently and substantially likely to have influenced, i.e.,
biased, Juror K.A.
Nor is it substantially likely Juror K.A. was actually biased against
defendant as a result of this conversation. We consider the nature of the
misconduct, the surrounding circumstances, and the penalty phase record.
(Carpenter, supra, 9 Cal.4th at pp. 653-654.) Juror K.A. told her pastor she had
nothing to talk to him about, and he nevertheless insisted on imparting his
personal, unsolicited view regarding the appropriate penalty verdict. The
conversation then apparently ended, at least on this subject. Thus, unlike Nesler,
where the juror upon inadvertently hearing a diatribe about the defendant did not
leave the area, but continued to listen for a half hour, here the pastor stopped
talking immediately and Juror K.A. did nothing to continue the conversation.
(Nesler, supra, 16 Cal.4th at p. 572.) Moreover, again unlike Nesler, there is no
49
evidence Juror K.A. repeated the pastor’s comment in the jury room. (Id. at pp.
573-574, 579.) Thus, the juror’s conduct and the surrounding circumstances fail
to demonstrate actual bias. Moreover, the significant penalty record in this case
further diminishes the possibility Juror K.A. became actually biased against
defendant because of her pastor’s comment.
Defendant argues that Juror K.A. and her husband “understood that her
talking with her minister was in violation of the trial court’s order not to discuss
the case, and that they justified what [Juror K.A.] was about to do by
subordinating the law given by the trial court to what they perceived to be divine
law.” Of course, it was Juror K.A.’s husband who said it “would be permissible to
speak with [their] pastor, and that this was permissible because a pastor is of a
higher authority.” As noted above, Juror K.A. told her pastor she did not need to
discuss anything.
We next consider Juror K.A.’s conduct in bringing a copy of the Book of
Numbers passage into the jury room, and passing it around to the other jurors.
This was misconduct. (Mincey, supra, 2 Cal.4th at pp. 465-467.) However, just
as in Juror K.A.’s private reading of the Book of Numbers, nothing in these verses,
viewed objectively and in the context of the compelling penalty phase evidence,
was inherently and substantially likely to influence, i.e., bias the jurors. Indeed
here, one juror specifically commented that God played no role in the penalty
decision.12
12
Defendant argues the following statements from Juror K.A.’s second
declaration violate Evidence Code section 1150 and cannot be considered because
they are not evidence of misconduct, citing People v. Cleveland (2001) 25 Cal.4th
466, 484 (“statements made by jurors during deliberations are admissible under
Evidence Code section 1150 when ‘the very making of the statement sought to be
admitted would itself constitute misconduct’ ”): “At no time did I or anyone else
argue or state that Mr. Danks should be put to death because of what that passage
(footnote continued on next page)
50
Nor do we conclude Juror K.A.’s misconduct in sharing the Bible passages
with her fellow jurors demonstrated either the substantial likelihood of her actual
bias, or that it is substantially likely it resulted in the actual bias of other jurors.
We emphasize that unlike the juror in Nesler, Juror K.A. did not repeatedly refer
to this extrajudicial information “despite admonitions from other jurors not to do
so.” (Nesler, supra, 16 Cal.4th at p. 588; id. at p. 589.) Juror K.A. “merely shared
[her] personal view and did not purport to validate it as truth or impose [her] view
on others.” (People v. Lewis (2001) 26 Cal.4th 334, 391 (Lewis).) Indeed, there is
no evidence that after the copy circulated the passages were even discussed, other
than perhaps one juror’s comment that God did not have a role in the jury’s
decision. While “Christian beliefs” were at some point discussed, we have no
information as to what that conversation entailed. Moreover, we have previously
observed that it is to be expected and is not misconduct that “jurors . . . consider
their religious beliefs during penalty deliberations.” (Lewis, at p. 389.)
Consideration of the significant penalty phase evidence further diminishes the
possibility defendant suffered actual bias resulting from juror exposure to these
passages.
(footnote continued from previous page)
of the Bible said. I do recall one juror later stating that God does not play a part in
our deliberations.”
Defendant is correct that these statements do not demonstrate misconduct.
However, Juror K.A.’s conduct in bringing Bible passages into the jury room was
misconduct. (People v. Mincey, supra, 2 Cal.4th at pp. 465-467.) In that situation,
we have evaluated the comments of the juror in question and other jurors to
determine whether there is evidence of actual bias. (Nesler, supra, 16 Cal.4th at
p. 588 [The juror “during deliberations made reference to extrajudicial evidence
despite admonitions from other jurors not to do so”].) We see no reason why we
cannot also consider such comments to determine whether the material was
inherently prejudicial.
51
We next consider Juror B.P.’s conversation with her pastor during the penalty
deliberations. Juror B.P. told her pastor she was a juror on a murder case, and
asked, “Is there anything in the Bible which speaks against the death penalty?”
She also told him she had made up her mind about the verdict. Her pastor stated,
“[B], I think I know what case you are on. There is no place in the Bible that takes
the law out of the Bible. If you are sitting on the case I’m thinking you are sitting
on, if I was in your shoes, I would not hesitate to give him the death penalty.”
When Juror B.P. returned to deliberations, on all occasions she voted for the same
verdict as she had three times on Friday. At no time during the deliberations did
she relate to the other jurors what her pastor had said, or argue or state that the
death penalty should be imposed because of anything said in the Bible.13
As noted above, it is misconduct for a juror to discuss a case with a nonjuror.
Here, Juror B.P. asked her pastor about the Bible’s stand on the very issue she was
deliberating. Thus, her misconduct was more egregious than that of Juror K.A.
We nevertheless conclude this misconduct was not prejudicial.
Viewed objectively in light of the compelling penalty phase evidence in this
case, Juror B.P.’s conversation with her pastor, and in particular, unsolicited
13
While in her first, but not her second, declaration Juror K.A. stated Juror
B.P. told her “that she had talked to her pastor and he had referred her to the same
chapter and verses in the Book of Numbers,” this information does not appear in
either of Juror B.P.’s declarations. Nor did the trial court allude to this statement
in its ruling. (See Nesler, supra, 16 Cal.4th at p. 582.) Moreover, we have no idea
when this conversation occurred. The reference in Juror K.A.’s first declaration
appears after she has already finished talking about the introduction of the Bible
passages into the jury room, and before she mentions that on March 9, 1993, a
month after the penalty verdict was returned, she was contacted by a defense
investigator. Indeed, Juror B.P. specifically stated, “At no time during the
deliberations did I relate to the other jurors what my pastor had said to me.” There
is no indication in the jurors’ declarations that they were anything but
forthcoming.
52
information that Juror B.P.’s pastor would vote for the death penalty in a case he
thought Juror B.P. was sitting on, was not inherently and substantially likely to
influence her.
Nor does the record demonstrate a substantial likelihood Juror B.P. was
actually biased against defendant as a result of this conversation. Juror B.P. had
already voted three times for the death penalty on Friday, and made up her mind,
presumably after an impartial consideration of the evidence and application of the
law before her, as to the appropriate penalty in this case.14 Her general inquiry to
her pastor was to determine not whether her vote was correct, but whether it
violated a religious proscription. Moreover, her pastor’s personal view of the
appropriate penalty in the case he thought Juror B.P. was sitting on was
unsolicited. As in the case of Juror K.A., and unlike the situation in Nesler, Juror
B.P.’s conversation with her pastor apparently ended at this point at least on this
subject. Also, like Juror K.A., and again unlike Nesler, Juror B.P. did not discuss
the content of her conversation in the jury room. Thus, the juror’s conduct and the
14
Defendant contends we may not consider Juror B.P.’s statements that she
consistently had the same penalty vote, and that she told her pastor she had made
up her mind about the verdict. The import of these statements, he contends, “was
to show that Juror [B.P.] had voted for death both before and after she committed
her act of misconduct, thereby purportedly showing that her misconduct had no”
effect on her. Juror B.P.’s vote and statement to her pastor were objective acts
subject to corroboration. (See Hutchinson, supra, 71 Cal.2d at p. 350.) While
defendant is correct that we cannot consider the fact that Juror B.P. voted for the
death penalty after her conversation with her pastor as evidence the misconduct
had no effect on her, we may, as we did in Nesler, consider the objective acts and
statements of the subject juror, such as her three votes before the conversation
with her pastor, the statement to her pastor she had already made up her mind, and
the other circumstances delineated above regarding this conversation and Juror
B.P.’s subsequent conduct, to determine whether there is a substantial likelihood
she was actually biased as a result of the conversation. (Nesler, supra, 16 Cal.4th
at p. 588.)
53
surrounding circumstances fail to demonstrate a substantial likelihood of actual
bias. Finally, the penalty record in this case further diminishes the possibility
defendant suffered actual bias as a result of Juror B.P.’s conversation with her
pastor.
Thus, with respect to each individual matter, and viewing these matters
collectively, we conclude the presumption of prejudice arising from the
misconduct was rebutted, and there was no prejudicial misconduct. Having done
so, we further reject defendant’s other arguments on this issue, and in particular
his argument that the jurors’ sense of responsibility for their penalty decision was
diminished, and that they substituted a source of law, other than California law as
instructed by the trial judge, for the determination of the penalty. After exhaustive
appellate review, we have concluded there is no substantial likelihood either that
the Bible passages or the conversations with the pastors were inherently
prejudicial or that they resulted in any juror’s actual bias. In particular, no
objective evidence in the record demonstrates a substantial likelihood any juror
felt he or she had less of a weighty responsibility of making a penalty
determination after these events occurred. While this case involves religious
beliefs, an intensely private area, we are unwilling to ascribe to any perceived
stereotype that jurors who receive advice from Christian spiritual leaders, or are
exposed to Biblical passages, per se suffer a diminished sense of responsibility for
their penalty verdict, and are automatically rendered incapable of fairly evaluating
the evidence and law before them.
Moreover, although we have found misconduct, albeit nonprejudicial, in
certain instances above, we reiterate that nothing in our opinion is intended to
convey that a juror’s consideration of personal religious, philosophical, or secular
normative values is improper during penalty deliberations. (See Lewis, supra, 26
Cal.4th at pp. 389-390.) As we have repeatedly stated, the task of jurors at the
54
penalty phase is qualitatively different from that at the guilt phase. At the penalty
phase, jurors are asked to make a normative determination—one which necessarily
includes moral and ethical considerations—designed to reflect community values.
(See, e.g., People v. Prieto (2003) 30 Cal.4th 226, 263, 275; People v. Hawthorne
(1992) 4 Cal.4th 43, 79.) “ ‘The court in no way means to suggest that jurors
cannot rely on their personal faith and deeply-held beliefs when facing the
awesome decision of whether to impose the sentence of death on a fellow
citizen.’ ” (Lewis, at pp. 389-390; cf. People v. Sandoval (1992) 4 Cal.4th 155,
194 [“We do not mean to rule out all reference to religion or religious figures so
long as the reference does not purport to be a religious law or commandment”].)
As one author has noted, “the discretion given to a jury to extend or withhold
mercy . . . will never produce ‘a wholly rational, calculated, and logical
process’ . . . . [D]eterminations of the appropriate punishment involve factors
which are not only ‘too intangible to write into a statute’ but are also too abstract
for a jury to rely on independent of their personal values.’ ” (Note, Thou Shalt Not
Quote the Bible: Determining the Propriety of Attorney Use of Religious
Philosophy and Themes in Oral Arguments (1998-1999) 33 Ga. L.Rev. 1113,
1176.)
In concluding Jurors K.A. and B.P were actually biased, Justice Moreno’s
concurring and dissenting opinion is unable to marshal objective evidence
demonstrating a substantial likelihood of such bias, but instead relies on
misstatements of the record and speculation to reach its conclusion. In particular,
there is no evidence Jurors K.A. and B.P “took the extraordinary step of discussing
their possible death verdict with their pastors.” (Conc. & dis. opn. of Moreno, J.,
post, at p. 1.) Rather, Juror K.A. states she told her pastor she “did not need to
discuss anything.” Juror B.P. told her pastor she “had made up [her] mind about
55
the verdict,” and simply wanted to know if there was “anything in the Bible which
speaks against the death penalty.”
Nor does Juror K.A.’s declaration include any evidence, even inadmissible
evidence, she “discussed the case first with her husband.” (Conc. & dis. opn. of
Moreno, J., post, at p. 8; id. at p. 9 [Juror K.A. “ ‘felt the necessity’ of talking to
her husband about the case”].) Rather, Juror K.A. states, “I did not discuss the
case or our deliberations with [my husband], but simply the stress I felt in making
the decision.”
The concurring and dissenting opinion asserts that “B.P. candidly
acknowledged that she spoke with her pastor about ‘the difficulty of making the
decision.’ Her pastor then told her that he ‘would not hesitate’ to give defendant
the death penalty. The damage was done. Juror E.M. stated that, after this
meeting, and ‘[d]uring the penalty phase deliberat[i]ons in the [Danks] case, [B.P.]
told me that she had talked to her pastor for guidance on the case.’ Simply stated,
if B.P. had been certain of her verdict, she would not have asked her pastor for
guidance in making this difficult decision.” (Conc. & dis. opn. of Moreno, J.,
post, at p. 10.)
Juror E.M.’s single sentence statement fails to place the reported
conversation into any meaningful context. Nevertheless, we know from Juror
B.P.’s declaration what she meant by “guidance.” When that declaration is read as
a whole, it is apparent that while Juror B.P. acknowledged the difficulty of making
the penalty decision, she told her pastor she had already done so. What she sought
“guidance” regarding was whether anything in the Bible spoke against the death
penalty. The concurring and dissenting opinion conveniently omits this portion of
Juror B.P.’s declaration, and conflates the sentences to make it improperly appear
that the pastor’s comment was not unsolicited, which it was, but was in response
to an inquiry by Juror B.P about which penalty decision she should make.
56
Moreover, contrary to the manner in which the conversation is portrayed by both
concurring and dissenting opinions, the pastor further stated he was not certain
what case B.P. was serving as a juror on. (Conc. & dis. opn. of Kennard, J. at p.
4.)
Justice Moreno’s concurring and dissenting opinion notes in concluding Juror
B.P. was actually biased that while Juror B.P. did not discuss the content of her
conversation with her pastor with fellow jurors, she did, as noted above, reportedly
tell Juror E.M. that “she had asked her pastor for guidance.” (Conc. & dis. opn. of
Moreno, J., post, at p. 11, fn. 5.) From this, the dissent concludes, “Thus, even if
B.P. did not relate to other jurors the specifics of that conversation, she apparently
did not hesitate to make the jury aware that such a conversation took place.”
(Ibid.) The dissent later states, “B.P. also informed other jurors during
deliberations that her pastor offered her guidance on this difficult decision.” (Id.
at p. 15.)
Contrary to the concurring and dissenting opinion’s assertion, there is no
evidence “B.P. . . informed other jurors during deliberations that her pastor
offered her guidance on [the penalty] decision.” (Conc. & dis. opn. of Moreno, J.,
post, at p. 15.) Rather, as noted above, we know from Juror B.P.’s declaration
what “guidance” she is referring to, i.e., whether the death penalty violated a
religious proscription. That inquiry does not demonstrate actual bias. Nor could
her mention of the fact of this conversation in the jury room, without more,
demonstrate her actual bias.
The concurring and dissenting opinion relies on the fact that Christian
beliefs “were discussed during . . . deliberations.” (Conc. & dis. opn. of Moreno,
J., post, at p. 16; id. at p. 19.) We are not given any information as to what this
discussion entailed, and there appears to be no basis to conclude the discussion
was improper. (Carpenter, supra, 9 Cal.4th at p. 657 [“We will not presume
57
greater misconduct than the evidence shows”].) Indeed, Juror K.A. specifically
stated that “[a]t no time did I or anyone else argue or state that Mr. Danks should
be put to death because of what that passage of the Bible said,” and Juror B.P.
stated, “At no time during the deliberations . . . did I argue or state that the death
penalty should be imposed because of anything said in the Bible.” Most
important, as set forth at length above, and contrary to the strong implication of
the concurring and dissenting opinion, there is nothing improper with a penalty
jury discussing normative beliefs in reaching a penalty decision.
2. Alleged Miranda Violation
Defendant contends his judgment of death must be reversed because the
trial court erroneously admitted his 1987 statement to police concerning the earlier
murders. He contends the police violated his Miranda rights in obtaining this
statement by ignoring his invocation of the right to counsel. Defendant does not
attack the validity of his six prior murder convictions. Rather, he contends that
without this statement, “none of the evidence concerning the stabbing of derelicts
in Los Angeles would have been admissible, since none of it would have
connected [defendant] with the stabbings.” However, defendant apparently
concedes some such evidence would have been admissible, since he also contends
that absent his statement, the jury in this case would have only received a minute
order “stat[ing] the bare fact of the” six prior murder convictions, “with no
description of the underlying facts and not even anything to connect the
conviction[s] with the stabbings of derelicts described by witnesses. The jury may
not even have realized that the evidence of the stabbings referred to by witnesses
pertained to the same murders as the 1990 conviction.” Defendant also contends
that absent his statement, the jury would not have heard his “callous” remark, “It
ain’t nothing, man, three or four bums. I don’t see what the big fucking deal is,
what the big fucking deal is, man.”
58
Assuming defendant can at this point attack his 1987 statement in an
unrelated crime that is being used in this case solely for penalty phase evidence
purposes, any error was harmless beyond a reasonable doubt. (People v. Bradford
(1997) 14 Cal.4th 1005, 1037 (Bradford).) Significantly, defendant does not
challenge the validity of his six prior murder convictions, and at the penalty phase
the prosecution was entitled to delineate the circumstances underlying those
convictions. (People v. Stanley (1995) 10 Cal.4th 764, 818 [this court has
repeatedly rejected the contention that only the fact of the prior conviction is
admissible, not the details of the offense]; People v. Karis (1988) 46 Cal.3d 612,
640.) Moreover, during his penalty phase testimony, defendant stated, “I did stab
them bums in their back, in the back of their neck, in their side while they were
laying down, while they were asleep . . . .” In addition, the witnesses describing
the stabbings, and documentary evidence such as death certificates, indicated all
but one of the victims were dead, and defendant’s own witnesses noted defendant
called himself a “bum buster” and repeatedly maintained the people he had
stabbed and allegedly killed were not dead. Thus, even without defendant’s 1987
statement, the jury could not have failed to link defendant’s prior murder
convictions to the stabbings described by witnesses. Furthermore, while defendant
was callous in his remark that stabbing “bums” was not serious, defendant’s
planning and execution of Mr. Holt’s murder also evidenced extreme callousness,
as did his expression of apparent irritation in failing to kill fellow patient Mr.
McCully during that attack.
3. Alleged Error Regarding Number of Special Circumstances
Defendant contends the trial court erroneously submitted six, rather than
one, prior murder conviction special-circumstance allegations to the jury.
59
The indictment filed against defendant included two counts. Count 1
alleged assault by a person serving a life sentence with force likely to produce
great bodily injury which resulted in death (§ 4500), and count 2 alleged
premeditated murder (§ 187, subd. (a)). Count 2, but not count 1, also included six
allegations of prior first degree murder convictions. (§ 190.2, subd. (a)(2);
hereafter section 190.2(a)(2).)
Section 190.2(a)(2), added by initiative in 1978, provides in relevant part:
“The penalty for a defendant who is found guilty of murder in the first degree is
death or imprisonment in the state prison for life without the possibility of parole
if one or more of the following special circumstances has been found under
Section 190.4 to be true: [¶] . . . [¶] . . . The defendant was convicted previously
of murder in the first or second degree.” Thus, to find the allegation true, a jury
simply must find a defendant has suffered a prior first or second degree murder
conviction.
When a defendant has more than one prior first or second degree murder
conviction, the most reasonable reading of the language of section 190.2(a)(2) is
that a defendant is subject to a prior murder special circumstance for each of these
convictions. Section 190.2(a)(2) does not say that only one such prior conviction
may be used, or that all such convictions must be combined into a single special
circumstance. The electorate could reasonably conclude a defendant who
previously murdered six people, and suffered six prior murder convictions as a
result, is more culpable than a defendant who previously murdered only one
person, and sustained only one prior murder conviction. It seems unlikely that
section 190.2(a)(2) was intended to impose only one special circumstance for both
individuals despite their disparate records.
By contrast to section 190.2(a)(2), section 190.2, subdivision (a)(3)
provides as a special circumstance that “[t]he defendant, in this proceeding, has
60
been convicted of more than one offense of murder in the first or second degree.”
Section 190.2, subdivision (a)(3) does not permit a separate multiple-murder
special circumstance to be attached to each murder conviction sustained in the
capital case because such duplicative use of multiple-murder special
circumstances “artificially inflates the seriousness of the defendant’s conduct.”
(People v. Jones (1991) 53 Cal.3d 1115, 1148.) However, no such duplication or
artificial inflation arises when a special circumstance is charged for each earlier
murder of which the defendant was previously convicted. Moreover here, the
special circumstance allegations attached only to count 2, not to both counts.
Indeed, while we do not appear to have previously decided the question,
our cases have assumed a defendant is subject to a prior murder special
circumstance for each prior first or second degree murder conviction. (People
v. Ray (1996) 13 Cal.4th 313, 325 [noting jury found true two special
circumstance allegations under section 190.2(a)(2) for the defendant’s two prior
murder convictions]; People v. Nicolaus (1991) 54 Cal.3d 551, 561 [the
“defendant admitted the truth of the three alleged prior-murder special
circumstances, having been previously convicted of the murders of his three
children”]; id. at p. 567; People v. Hendricks (1987) 43 Cal.3d 584, 588-589,
595-596 [upholding under section 190.2(a)(2) two prior murder conviction special
circumstances imposed for two prior murder convictions; rejecting challenge that
special circumstances were invalid because murders in prior convictions occurred
after the capital crimes].) The cases defendant cites are inapposite, since in both
cases the defendant had suffered only one prior murder conviction. (People
v. Andrews (1989) 49 Cal.3d 200, 206, 221, 224 [striking two of three prior
murder special circumstances when the defendant had one prior murder
conviction, and three current murder convictions]; People v. Allen (1986) 42
Cal.3d 1222, 1244, 1246, 1274 [same].)
61
4. Alleged Instructional Error
Defendant makes numerous claims of instructional error. We find none
meritorious. In particular, the trial court did not err in failing to require the jury to
make unanimous separate findings of the truth of specific aggravating evidence, or
to render a statement of reasons for its verdict in the event it imposed death.
(Prieto, supra, 30 Cal.4th at pp. 263, 275; People v. Medina (1995) 11 Cal.4th
694, 782.) Nothing in Ring v. Arizona (2002) 536 U.S. 584, or Apprendi v. New
Jersey (2000) 530 U.S. 466, affects our conclusions in this regard. (Prieto, at pp.
263, 275.) Nor did the trial court violate defendant’s Eighth Amendment rights
when it failed to instruct the jury it did not have to unanimously agree on
mitigation. The penalty phase instructions “conveyed unmistakably that jurors
were to undergo an individualized process of weighing aggravating and mitigating
factors. . . . [T]here was little likelihood of the jury’s reading into the instructions a
requirement that they agree unanimously on any circumstance or evidence as
mitigating.” (People v. Welch (1999) 20 Cal.4th 701, 769.) Nor should the jury
have been instructed that the reasonable doubt standard governed its penalty
determination, i.e., that to impose a sentence of death they had to be persuaded
beyond a reasonable doubt that the aggravating circumstances were so substantial
in comparison with the mitigating circumstances that they warranted death, and
that death was the justified and appropriate sentence in view of all the evidence.
(Medina, at p. 782; Bradford, supra, 14 Cal.4th at p. 1059.) Nothing in Ring v.
Arizona, supra, 536 U.S. 584, or Apprendi v. New Jersey, supra, 530 U.S. 466,
mandates a different conclusion. (Prieto, at pp. 263, 275.)
62
DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
63
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
I join the majority in upholding defendant’s convictions for murder (Pen.
Code, § 187)1 and for assault by a prisoner serving a life sentence resulting in
great bodily injury or death (§ 4500), as well as the prior-murder special-
circumstance allegations (§ 190.2, subd. (a)(2)). Unlike the majority, however, I
would reverse the judgment of death because of jury misconduct during the
penalty phase deliberations.
I
After the jury’s verdict of a death sentence, defendant moved for a new
trial, alleging that two jurors, B.P. and K.A., had engaged in misconduct during
the penalty phase deliberations. Because neither party had asked for an
evidentiary hearing, the trial court based its ruling entirely on declarations
submitted by the parties, most important of which were declarations from B.P. and
K.A.
Juror B.P. mentioned that she had voted for death in three straw votes on
the first day of deliberations (a Friday). She then described a conversation with
her pastor that weekend: “I spoke with my pastor about the difficulty of making
the decision. I told him, ‘Pastor, I’m doing jury duty on a murder case. Is there
1
All further statutory citations are to the Penal Code.
1
anything in the Bible which speaks against the death penalty?’ I also told him that
I had made up my mind about the verdict. [¶] In response, my pastor told me,
‘[B.], I think I know what case you are on. There is no place in the Bible that
takes the law out of the Bible. If you are sitting on the case I’m thinking you are
sitting on, if I was in your shoes, I would not hesitate to give him the death
penalty.’ ” (Italics added.)
With respect to Juror K.A., she said that after the first day of deliberations
she told her husband of “the stress [she] felt in making the decision.” He urged
her to discuss the matter with her pastor and showed her this passage from the
Bible: “If a man strikes someone with an iron object so that he dies, he is a
murderer; the murderer shall be put to death. Or if anyone has a wooden object in
his hand that could kill, and he hits someone so that he dies, he is a murderer; the
murderer shall be put to death. If anyone with malice aforethought shoves another
or throws something at him intentionally so that he dies or if in hostility he hits
him with his fist so that he dies, that person shall be put to death; he is a murderer.
The avenger of blood shall put the murderer to death . . . . [¶] But if without
hostility someone suddenly shoves another or throws something at him
unintentionally or, without seeing him, drops a stone on him . . . and he dies, then
since . . . he did not intend to harm him, the assembly must . . . protect the one
accused of murder from the avenger of blood . . . . Anyone who kills a person is
to be put to death as a murderer only on the testimony of witnesses. But no one is
to be put to death on the testimony of only one witness. Do not accept a ransom
for the life of a murderer, who deserves to die. He must surely be put to death.”
(Numbers 35:16-35:25, 35:30-35:31.)
On Sunday, juror K.A. and her husband attended Bible study at their
church. There her husband made copies of the Bible verses quoted above. The
pastor, who knew K.A. was a juror in defendant’s capital murder case, told K.A.
2
he understood (apparently from talking to K.A.’s husband) that K.A. had read
several Bible verses. K.A. replied that the verses had given her comfort. The
pastor described the verses as “good scriptures” and said “in a joking manner that
if he were a juror he would impose the death penalty . . . .” (Italics added.)
The next Monday, juror K.A. highlighted certain passages on the copies of
the Bible verses and brought them to court. When, during deliberations, some
jurors mentioned the difficulty in “making a life and death decision,” K.A. showed
them the highlighted Bible passages. Juror B.P. told K.A. that she too had spoken
to her pastor, who had given her the same Bible verses that K.A. had brought to
court.2
The trial court denied defendant’s motion for new trial.
II
No matter how inadvertent, a juror’s receipt of information not presented in
court is juror misconduct. “Although inadvertent exposure to out-of-court
information is not blameworthy conduct, as might be suggested by the term
‘misconduct,’ it nevertheless gives rise to a presumption of prejudice . . . .”
(People v. Nesler (1997) 16 Cal.4th 561, 579 (lead opn. of George, C.J.) (Nesler).)
In the words of the United States Supreme Court: “In a criminal case, any private
communication, contact, or tampering, directly or indirectly, with a juror during a
trial about the matter pending before the jury is, for obvious reasons, deemed
2
The majority appears to conclude that this remark by juror B.P. did not
occur until after deliberations, pointing out that juror K.A.’s declaration is
ambiguous as to when B.P. made the comment, and that B.P. declared that she did
not tell the other jurors what her pastor had said. (Maj. opn., ante, at p. 52, fn. 13.)
But another juror, E.M., declared that during deliberations B.P. mentioned that
she had spoken to her pastor. It is reasonable to infer that the declarations of K.A.
and E.M. both refer to the same statement by B.P., in which case E.M.’s
declaration demonstrates that it was said during deliberations.
3
presumptively prejudicial . . . . The presumption is not conclusive, but the burden
rests heavily upon the Government to establish . . . that such contact with the juror
was harmless to the defendant.” (Remmer v. United States (1954) 347 U.S. 227,
229.)3
Here, the pastors of jurors B.P. and K.A. told them that they (the pastors)
would have no problem voting for the death penalty in defendant’s case. K.A.’s
husband implied a similar view when, before K.A.’s talk with her pastor, he
showed her Bible verses expressing the view that all intentional killers should be
put to death. The two jurors’ receipt of those communications amounted to jury
misconduct. (Nesler, supra, 16 Cal.4th at p. 579; see also Stockton v.
Commonwealth of Virginia, supra, 852 F.2d 740 [jury bias occurred when, at a
meal during penalty deliberations, restaurant owner told jurors they should impose
the death sentence].)
3
In the wake of two more recent decisions by the United States Supreme
Court (United States v. Olano (1993) 507 U.S. 725; Smith v. Phillips (1982) 455
U.S. 209), there is doubt as to the continuing validity of the presumption of
prejudice articulated in Remmer v. United States, supra, 347 U.S. 227. (See, e.g.,
U.S. v. Dutkel (9th Cir. 1999) 192 F.3d 893, 894-896 [presumption applies to
cases of jury tampering]; U.S. v. Sylvester (5th Cir. 1998) 143 F.3d 923, 934 [“the
Remmer presumption of prejudice cannot survive Phillips and Olano,” and
remains applicable “only when the court determines that prejudice is likely”]; U.S.
v. Williams-Davis (D.C. Cir. 1996) 90 F.3d 490, 496 [presumption exists but is
“not . . . particularly forceful”]; U.S. v. Zelinka (6th Cir. 1988) 862 F.2d 92, 95
[“Smith v. Phillips reinterpreted Remmer to shift the burden of showing bias to the
defendant rather than placing a heavy burden on the government to show that an
unauthorized contact was harmless.”]; Stockton v. Com. of Va. (4th Cir. 1988) 852
F.2d 740, 744 [presumption still applies to third party communications with
jurors].) I see no need to address this question here, because I find the jury
misconduct here to be prejudicial by applying the standards enunciated by
California decisions applying state law.
4
Was the misconduct prejudicial to defendant? “When juror misconduct
involves the receipt of information about a party or the case from extraneous
sources, the verdict will be set aside only if there appears a substantial likelihood
of juror bias. [Citation.] Such bias may appear in either of two ways: (1) if the
extraneous material, judged objectively, is so prejudicial in and of itself that it is
inherently and substantially likely to have influenced a juror; or (2) even if the
information is not ‘inherently’ prejudicial, if, from the nature of the misconduct
and the surrounding circumstances, the court determines that it is substantially
likely a juror was ‘actually biased’ against the defendant.” (Nesler, supra, 16
Cal.4th at pp. 578-579, italics added.)4
Here, the material juror K.A. received from sources outside of the court –
the views of her husband and her pastor on the propriety of a death sentence in
defendant’s case – was “inherently and substantially likely” to have influenced her
vote. Normally a spouse and a spiritual advisor would have a great influence on a
juror having to decide a matter of life and death. Here, not just one, but both of
these highly influential people in essence told K.A. they thought defendant should
be sentenced to death. These views were reinforced when juror B.P. later told
K.A. that B.P.’s pastor too had given her the same Bible verses K.A. had shared
with the jurors.
Even if the receipt of this outside information was not “inherently and
substantially likely” (Nesler, supra, 16 Cal.4th at p. 579) to have influenced juror
4
Although the Chief Justice’s opinion in Nesler, supra, 16 Cal.4th 561
reflected the view of only three Justices, Justice Baxter’s dissenting opinion
(signed by Justices Chin and Brown) did not disagree with this standard; rather, it
disagreed with the Chief Justice’s conclusion that application of the standard
required reversal of the defendant’s conviction. (Id. at pp. 593-599 (conc. opn. of
Baxter, J.).) Nor did Justice Mosk’s concurring opinion express any disagreement
with the standard. (Id. at pp. 591-593 (conc. opn. of Mosk, J.).)
5
K.A., it is “substantially likely” that she “was ‘actually biased’ ” (ibid.) against
defendant. Her bias is demonstrated by her decision to show the other jurors her
highlighted passages from the Bible verses on the appropriateness of killing a
killer. As this court has recognized, “[a] juror’s disclosure of extraneous
information to other jurors tends to demonstrate that the juror intended the
forbidden information to influence the verdict and strengthens the likelihood of
bias” (Nesler, supra, 16 Cal.4th at p. 587), whereas an unbiased juror will realize
that the jury may not consider the information and therefore is unlikely to mention
it (In re Carpenter (1995) 9 Cal.4th 634, 657). In handing out to the other jurors
the Bible verses that her husband had showed her and her pastor had commended
as “good scriptures,” juror K.A. demonstrated that she had been affected by their
comments and therefore that she was biased.
With regard to juror B.P., the question of prejudice is closer, for she had
talked only to her pastor, whereas juror K.A. had talked to both her spiritual
advisor and her husband, both of whom indicated their approval of executing
defendant. Nevertheless, in my view B.P. was substantially likely to harbor a bias
against defendant. As in this case, Stockton v. Com. of Va., supra, 852 F.2d 740,
involved an unsolicited communication to jurors. There, a restaurant owner
approached a group of four jurors while they were taking a lunch break in the
middle of their deliberations in a capital case. He spoke to them for about five
minutes, asking whether they had reached a verdict yet and telling them “ ‘they
ought to fry the son of a bitch.’ ” (Id. at p. 742.) After lunch the jury returned a
verdict of death. The federal circuit court reversed, explaining that the comment,
which came in the middle of deliberations, “posed a potential for prejudice that
was too serious to ignore.” (Id. at p. 745.) Here, the likelihood of prejudice was
far greater than in Stockton, because B.P. conversed not with a restaurateur but
6
with her pastor. For advice and comfort in difficult matters of life and death, many
people turn to their pastor, whose views are likely to carry far more weight than
those of a stranger encountered in a restaurant.
III
The majority acknowledges there was misconduct by jurors K.A. and B.P.
but concludes it was harmless. As I shall explain, the majority’s reasons are not
persuasive.
Juror K.A. was exposed to three separate acts of misconduct: (1) Receiving
from her husband Bible verses approving of putting to death anyone who had
intentionally killed; (2) hearing her pastor’s approval of the Bible verses, which he
described as “good scripture,” accompanied by his comment that he would vote to
execute defendant; and (3) learning from juror B.P. that her own pastor had
referred her to the very same Bible verses. Reversal is required if there is a
“substantial likelihood” that K.A. was influenced by the combined effect of these
three acts. Instead, the majority looks at the acts separate from each other. After
stating that K.A. was not affected by her husband’s conduct (maj. opn., ante, at
p. 46), it likewise concludes that she was not influenced by her pastor’s conduct
(id. at p. 50). Only in a footnote does it mention B.P.’s comment that her pastor
had expressed views similar to those of K.A.’s husband and pastor (id. at p. 52, fn.
13), and it dismisses the possibility that these three acts were collectively
prejudicial in a sentence, without analysis (id. at p. 54). But the views of these
three persons reinforced each other, with a combined effect that was likely to be
far greater than the impact that any one of them would have had in isolation.
In finding the misconduct of juror B.P. harmless, the majority stresses that
before consulting her pastor she had voted for the death penalty on three ballots
7
taken by the jurors during their deliberations. But jurors frequently change their
minds during deliberations; indeed, that is the whole point of deliberating.
Moreover, B.P.’s decision to bring up the matter with her pastor after those votes
suggests that she remained uncertain. B.P.’s conversation with her pastor may
well have strengthened her resolve to vote in favor of the death penalty, leaving
her far less susceptible to the arguments of those jurors who were urging a
sentence of life without possibility of parole.
The majority also relies on the strength of the aggravating evidence at the
penalty phase: defendant’s six prior convictions for murdering homeless men, his
own testimony that “I would not change a thing I did in my life,” and the
concession by psychiatrists who testified for the defense that defendant was an
“extremely dangerous” sadist who derived sexual excitement from killing. Given
this evidence, the majority concludes, the extrajudicial communications of jurors
K.A. and B.P. were unlikely to have affected their votes to sentence defendant to
death. (Maj. opn., ante, at pp. 46, 53.)
Granted, the aggravating evidence was strong. But the majority ignores the
strong mitigating evidence presented to the jury. Five defense experts (three
psychiatrists and two psychologists) described defendant, who was 30 years old at
the time of trial, as severely ill mentally, suffering from paranoid schizophrenia.
He complained that certain well-known entertainers were “in the kitchen excreting
in his food.” He was convinced that the Mayor of Los Angeles, the Governor of
California, and the President of the United States all conspired against him. He
8
thought people watched him through the television set. He talked of conversations
with his dead grandparents, and said his mother printed counterfeit money in her
basement. He insisted that the homeless men he had killed were not really dead,
and he felt compelled to clean his jail cell with a toothbrush six to 10 times a day.
In short, the defense presented compelling evidence that defendant, although not
legally insane at the time of the offenses (see § 25, subd. (b) [a defendant is insane
only if “he or she was incapable of knowing or understanding the nature and
quality of his or her act and of distinguishing right from wrong at the time of the
commission of the offense”]), suffered from a mental illness that destroyed his
capacity for rational thought.
If defendant’s doctors are right, defendant’s mental deficiencies are
comparable in severity to mental retardation. In Atkins v. Virginia (2002) 536
U.S. 304, the United States Supreme Court held that to execute the mentally
retarded is cruel and unusual punishment, reasoning that retarded persons “have
diminished capacities to understand and process information, to communicate, to
abstract from mistakes and learn from experience, to engage in logical reasoning,
to control impulses, and to understand the reactions of others.” (Id. at p. 318.)
The same mental capacities are impaired in a person suffering from paranoid
schizophrenia, and the impairment may be equally grave. Although mental illness
does “not warrant an exemption from criminal sanctions” (ibid.), California law
recognizes it as a mitigating factor that weighs against capital punishment.
(§ 190.3, factor (d).) Surely a reasonable juror could have concluded that
defendant’s mental illness diminished his personal culpability to such an extent as
to render death an inappropriate penalty.
9
For the reasons given above, I would affirm defendant’s convictions for
murder and for assault by a prisoner serving a life sentence resulting in great
bodily injury or death, as well as the special circumstance findings, but I would
reverse the judgment of death.
KENNARD,
J.
I CONCUR:
GEORGE, C.J.
10
CONCURRING AND DISSENTING OPINION BY MORENO, J.
The majority is correct that the crimes committed by defendant Joseph Martin
Danks were horrific and his lack of remorse shocking. Already serving a term of 156
years to life for the murders of six transients in Los Angeles County, defendant
choked his 67-year-old cellmate to death because he believed that killing old people
was “the Lord’s work.” He choked and stabbed another inmate in 1989, and stabbed
his lawyer in the face during the penalty phase of this trial. He stated to law
enforcement officers, after his latest murder, that he wanted the death penalty. He
told jurors during his penalty phase testimony that he stabbed the transients while they
slept and, directly addressing the jurors, stated, “I would do it to you too.”
But the jury also heard that defendant was paranoid, delusional, and mentally
ill. Doctors confirmed this diagnosis. Defendant believed that entertainers Burt
Reynolds and Johnny Carson excreted into his food. He cleaned his cell with a
toothbrush six to 10 times a day. He thought people watched him through the
television. He thought he was being brainwashed by music piped into his jail cell.
Witnesses recounted incident after incident, dating back to his teen years, of
defendant’s bizarre and disturbed behavior.
Against this backdrop, and in direct violation of the court’s order not to discuss
trial matters with nonjurors, two jurors took the extraordinary step of discussing their
possible death verdict with their pastors. Astoundingly, in separate incidents, both
pastors assured the two jurors that the death penalty was the appropriate punishment
1
for defendant. Yet the majority finds this egregious juror misconduct nonprejudicial.
While I concur in the majority’s affirmance of defendant’s murder conviction and the
special circumstance findings, I dissent from the affirmance of the death judgment.
Penalty
phase
deliberations began Friday afternoon, February 5, 1993. Juror
K.A. stated in her declaration that the judge “had told us we could not speak with
persons about the case. But because of the feelings I had, I felt the necessity of
talking to my husband.” K.A.’s husband noticed she was “on edge” and advised her
that reading scripture from the Bible might be of benefit. He showed her verses from
the Book of Numbers that stated, in no uncertain terms, that murderers shall be put to
death,1 and told her that it was permissible to discuss the case with their pastor
“because a pastor is of a higher authority.” Sunday evening, February 7, 1993, during
Bible study at their church facility, K.A. and her husband met with their pastor. K.A.
stated, “[t]hat is where my husband made a copy . . . from our Bible containing the
Book of Numbers verses,” which was shown to the pastor. The pastor, knowing K.A.
to be a juror on defendant’s case, said “those were good scriptures,” and then
“jokingly” said that he “would impose the death penalty on Mr. Danks.”2 K.A.
returned to court for deliberations the following day. She stated, “I took the copy of
the pages from the Book of Numbers with me. I had highlighted certain portions of
1
The first two verses read: “If a man strikes someone with an iron object so
that he dies, he is a murderer; the murderer shall be put to death. Or if anyone has
a stone in his hand that could kill, and he strikes someone so that he dies, he is a
murderer; the murderer shall be put to death.” (The complete version of this
scripture appears in the majority opinion, ante, at p. 37, fn. 10.)
2
Given the pastor’s “higher authority” and the seriousness of the subject
matter, K.A.’s remark that her pastor was “joking” when he said he “would
impose the death penalty on Mr. Danks” does not diminish the impact of the
pastor’s statement. The pastor’s comments were evidently designed to further put
K.A. at ease and make her more comfortable with a decision to impose a capital
sentence on defendant.
2
that.” (Italics added.) She added, “During deliberations, other jurors expressed
feelings about the difficulty and responsibility of making a life or death decision. I
told the other jurors about my copy of the pages from the Book of Numbers. I then
shared [my highlighted copy] with the other jurors by passing it around to the other
jurors.” K.A. admitted that “our Christian beliefs [were] being discussed during
deliberations,” causing one juror to take offense “later in the day” and stating words
to the effect that “God does not play a part in this decision.” The jury returned a
death verdict the following day.
A second juror, B.P., also sought guidance from her pastor during the penalty
phase deliberations. A third juror, E.M., declared that “During the penalty phase
deliberat[i]ons in the [Danks] case, [B.P.] told me that she had talked to her pastor for
guidance on the case.” B.P. acknowledged in her declaration that “During the penalty
phase deliberations I spoke to my pastor.” She stated, “After the first day of
deliberations, I spoke with my pastor about the difficulty of making the decision.”
B.P. added, “I wanted to know what the Bible said about the death penalty.” Her
pastor told her, “[B.], I think I know what case you are on,” and stated, “if I was in
your shoes, I would not hesitate to give him the death penalty.” K.A. added that “B.P.
told me that she had talked to her pastor and he had referred her to the same chapter
and verses in the Book of Numbers.”
Based on these declarations, the majority remarkably finds no prejudicial juror
misconduct. It reaches this erroneous conclusion by misapplying the test for
determining prejudicial juror misconduct based on the receipt of extraneous
information, set forth in a trilogy of cases—People v. Nesler (1997) 16 Cal.4th 561,
580 (lead opn. of George, C.J.) (Nesler), In re Carpenter (1995) 9 Cal.4th 634
(Carpenter), and People v. Marshall (1990) 50 Cal.3d 907 (Marshall).
Specifically, in its examination of “actual bias,” the majority fails to
acknowledge that, in juror misconduct cases based on the receipt of extraneous
3
information, there arises a presumption of prejudice that must be rebutted by the
prosecution (Marshall, supra, 50 Cal.3d at p. 949), and that determining “[w]hat
constitutes ‘actual bias’ of a juror varies according to the circumstances of the case”
and involves an inquiry into whether a juror was “actually being influenced by
extraneous information about a party.” (Nesler, supra, 16 Cal.4th at pp. 580, 581; and
see Marshall, supra, 50 Cal.3d at pp. 950-951.)
Equally troubling is the fact that the majority analyzes the multiple incidents of
juror misconduct here in piecemeal fashion, thereby sidestepping the requirement set
forth in Carpenter that juror misconduct based on the receipt of extraneous
information be analyzed in toto. As we stated in Carpenter: “the totality of
circumstances surrounding the misconduct must still be examined to determine
objectively whether a substantial likelihood of actual bias nonetheless arose.”
(Carpenter, supra, 9 Cal.4th at p. 654.)
In addition, the majority ignores the line of cases that have found prejudicial
misconduct where a jury receives information that diminishes its sense of
responsibility for its verdict (e.g., Caldwell v. Mississippi (1985) 472 U.S. 320
(Caldwell)), and makes short shrift of those cases that have found misconduct where
the Bible is interjected into the proceedings. (See, e.g., People v. Hughes (2002) 27
Cal.4th 287 (Hughes) and People v. Mincey (1992) 2 Cal.4th 408 (Mincey).) Finally,
the majority fails to appreciate that this deplorable juror misconduct undermines the
integrity of California’s death penalty process.
I.
In
Nesler, supra, 16 Cal.4th 561, we reversed a jury verdict because a juror
received extraneous information about the defendant and shared it with other jurors.
The lead opinion, which was written by Chief Justice George and joined by Justices
Kennard and Werdegar, summarized the law in this area as follows: “A defendant
accused of a crime has a constitutional right to a trial by unbiased, impartial jurors.
4
[Citations.] A defendant ‘is entitled to be tried by 12, not 11, impartial and
unprejudiced jurors. “Because a defendant charged with a crime has a right to a
unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction
cannot stand if even a single juror has been improperly influenced.” [Citations.]’
[Citations.] [¶] Juror misconduct, such as the receipt of information about a party or
the case that was not part of the evidence received at trial, leads to a presumption that
the defendant was prejudiced thereby and may establish juror bias. [Citations.] ‘The
requirement that a jury’s verdict “must be based upon the evidence developed at the
trial” goes to the fundamental integrity of all that is embraced in the constitutional
concept of trial by jury. . . . [¶] In the constitutional sense, trial by jury in a criminal
case necessarily implies at the very least that the “evidence developed” against a
defendant shall come from the witness stand in a public courtroom where there is full
judicial protection of the defendant’s right of confrontation, of cross-examination, and
of counsel.’ [Citation.] As the United States Supreme Court has explained: ‘Due
process means a jury capable and willing to decide the case solely on the evidence
before it . . . .’ [Citations.]” (Id. at p. 578.)
As such, “A judgment adverse to a defendant in a criminal case must be
reversed or vacated ‘whenever . . . the court finds a substantial likelihood that the vote
of one or more jurors was influenced by exposure to prejudicial matter relating to the
defendant or to the case itself that was not part of the trial record on which the case
was submitted to the jury.’ [Citations.] This rule ‘has significant support in the case
law’ [citation], both within California [citation] and without [citation]. [Citations].
[¶] ‘The ultimate issue of influence on the juror is resolved by reference to the
substantial likelihood test, an objective standard.’ . . . [¶] Such ‘prejudice analysis’ is
different from, and indeed less tolerant than, ‘harmless-error analysis’ for ordinary
error at trial. The reason is as follows. Any deficiency that undermines the integrity
of a trial—which requires a proceeding at which the defendant, represented by
5
counsel, may present evidence and argument before an impartial judge and jury—
introduces the taint of fundamental unfairness and calls for reversal without
consideration of actual prejudice. [Citation.] Such a deficiency is threatened by jury
misconduct. When the misconduct in question supports a finding that there is a
substantial likelihood that at least one juror was impermissibly influenced to the
defendant’s detriment, we are compelled to conclude that the integrity of the trial was
undermined: under such circumstances, we cannot conclude that the jury was
impartial. By contrast, when the misconduct does not support such a finding, we must
hold it nonprejudicial.” (Marshall, supra, 50 Cal.3d at pp. 950-951.)
In
Nesler, a juror received unflattering information about the defendant from a
woman in a bar during the sanity phase of the defendant’s manslaughter trial. The
woman claimed she had been a babysitter for the defendant. During deliberations,
however, the juror stated she “knew” the defendant’s babysitter, and remarked that the
defendant would leave her children for long periods of time, was not a good mother,
and used illicit drugs. (Nesler, supra, 16 Cal.4th at p. 574.) She argued to jurors that
“if [they] knew what she knew” they would find the defendant sane. (Id. at p. 571.)
The jury ultimately found that the defendant was sane.
The lead opinion in Nesler found that the People had not rebutted the
presumption of prejudice arising from this juror’s misconduct because there was a
substantial likelihood that the extraneous information impermissibly influenced her
decision: “Although [the juror] knew she should not discuss matters that were not part
of the evidence presented at trial, she intentionally interjected this outside information
into the deliberations . . . . In our view, [the juror’s] repeated references to and use of
the outside information during deliberations establish a substantial likelihood that her
extraneous knowledge concerning defendant caused her to prejudge issues that arose
during deliberations and to render a verdict that was not based solely upon the
evidence presented in court. As defendant points out, if [the juror] had not been
6
influenced by what she had learned, she would not have used the information to
attempt to convince other jurors that defendant truly was a bad mother and more
involved with drugs than the evidence showed.” (Nesler, supra, 16 Cal.4th at p. 583.)
Justice Mosk, who concurred in the judgment in Nesler, agreed that the “facts
compel[led]” the conclusion that the juror committed misconduct, and the “law
compel[led]” the conclusion that these facts gave rise to a presumption of prejudice.
(Nesler, supra, 16 Cal.4th at p. 592 (conc. opn. of Mosk J.).) Unlike the lead opinion,
however, Justice Mosk stated he could not determine whether there was, in fact, a
substantial likelihood of the juror’s actual bias: “One can reasonably conclude either
that [the juror] was ‘actually’ biased by what she heard or that she was not, depending
on whether one infers either that she was herself influenced or that she was simply
attempting to influence others. With matters thus in equipoise, the presumption of
prejudice stands unrebutted.” (Id. at pp. 592-593.)
A majority of the court in Nesler thus concluded that the presumption of
prejudice that arises in juror misconduct cases involving the receipt of extraneous
information had not been rebutted. Fairly read, the lead opinion concluded that the
presumption of prejudice is not rebutted where there is a substantial likelihood that
the juror herself was improperly influenced by the extraneous material. Justice Mosk
concluded that the presumption of prejudice is not rebutted where there is proof either
that the juror herself was improperly influenced or that she was simply attempting to
improperly influence others. As such, a majority of this court has held that the
presumption of prejudice arising in juror misconduct cases involving the receipt of
extraneous information is not rebutted where the juror herself was improperly
influenced.
The majority here acknowledges that K.A. and B.P. committed juror
misconduct in this case by speaking to their pastors (maj. opn., ante, at pp. 49, 52),
and finds it “troubling that during deliberations not one but two jurors had
7
conversations with their pastors that ultimately addressed the issue being resolved at
the penalty phase in this case.” (Maj. opn., ante, at p. 48, fn. 11.) More troubling is
the fact that the majority finds K.A.’s and B.P.’s juror misconduct nonprejudicial.
Based on K.A.’s juror declaration, there is, at a minimum, a substantial
likelihood that K.A. was improperly influenced by her pastor’s assurance that the
death penalty was the appropriate punishment for defendant. K.A.’s declaration
contains the following information, which Carpenter teaches we must view in its
totality: (1) K.A. knew she could not speak to nonjurors about the case; (2)
nonetheless, because of her uncertainty in imposing a death verdict, she discussed the
case first with her husband;3 (3) then, on Sunday night, while at their church facility,
and hours before deliberations were to be resumed the following morning, she and her
husband met with their pastor, who knew she was a juror on defendant’s case; (4) at
this time, K.A.’s husband made a copy of the Book of Numbers verses to show to the
pastor; (5) the pastor, a person assertedly “of a higher authority,” said those were
“good scriptures,” and (6) added that he would impose the death penalty on
defendant; (7) thereafter, K.A. herself, not her husband, highlighted certain portions
of the “good scriptures” supporting the death penalty, and (8) took them to court the
following morning; (9) during deliberations, she told the other jurors about her
3
The majority states that K.A.’s statement in her declaration, “But because
of the feelings I had, I felt the necessity of talking to my husband,” is excludable
under Evidence Code section 1150. (Maj. opn., ante, at pp. 41-42.) I disagree.
The statement explains K.A.’s conduct in talking to a nonjuror and does not delve
into the subjective reasoning process of her verdict. Thus, this statement is
“admissible evidence . . . as to statements made, or conduct, conditions, or events
occurring . . . of such a character as is likely to have influenced the verdict
improperly.” (Evid. Code, § 1150, subd. (a).) As noted by the majority, ante, at
pages 41-42, “This statute distinguishes ‘between proof of overt acts, objectively
ascertainable, and proof of the subjective reasoning processes of the individual
juror . . . .’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1261.)
8
highlighted copy of Book of Numbers verses and (10) shared this highlighted copy
with the other jurors who had expressed feelings about the difficulty and
responsibility of imposing a death verdict; and (11) she admitted that the jury
discussed their “Christian beliefs” during deliberations to the extent that, later in the
day, a juror became offended because “God does not play a part in this decision.”
Based on the above facts, it is clear that K.A. had not yet made her death
penalty decision after deliberations had concluded on Friday. This is evident from the
facts that she was “on edge,” “felt the necessity” of talking to her husband about the
case, and met with her pastor to talk about the case.4 But after receiving her pastor’s
assurance that the Book of Numbers verses were “good scriptures” and that he would
impose the death penalty on defendant—extraneous information outside the
deliberative process that the majority concedes was improperly received—K.A.
arrived at her decision to impose the death penalty on defendant. That this
information was critical to her decision is evident from the facts that she highlighted
her copy of the Book of Numbers scripture after the meeting and brought it to
deliberations the following morning, that she told other jurors about these particular
Bible verses, and that she shared this scripture with undecided jurors.
The language in Nesler applies with particular force here: “Although [K.A.]
knew she should not discuss matters that were not part of the evidence presented at
trial, she intentionally interjected this outside information into the deliberations . . . .
In our view, [K.A.’s] repeated references to and use of the outside information during
4
As noted by the majority (maj. opn., ante, at p. 36), K.A. stated in her
declaration, “I was leaning toward the death penalty but I felt discomfort about
imposing the death penalty. If I was going to vote for the death penalty I wanted
to feel good about it.” This statement was excludable under Evidence Code
section 1150, subdivision (a) (maj. opn., ante, at pp. 41-42), and does not enter
into the conclusion that K.A. had not yet made her death penalty decision after
deliberations concluded on Friday.
9
deliberations establish a substantial likelihood that her extraneous knowledge
concerning defendant caused her to prejudge issues that arose during deliberations
and to render a verdict that was not based solely upon the evidence presented in court.
As defendant points out, if [K.A.] had not been influenced by what she had learned,
she would not have used the information to attempt to convince other jurors”
struggling with their death penalty verdict. (Nesler, supra, 16 Cal.4th at p. 583.)
There is also a substantial likelihood that B.P. was impermissibly influenced
by her own misconduct. Despite her claim that she voted the “same way” before and
after talking to her pastor during deliberations, an objective view of the evidence
suggests that her earlier votes were tentative. B.P. candidly acknowledged that she
spoke with her pastor about “the difficulty of making the decision.” Her pastor then
told her that he “would not hesitate” to give defendant the death penalty. The damage
was done. Juror E.M. stated that, after this meeting, and “[d]uring the penalty phase
deliberat[i]ons in the [Danks] case, [B.P.] told me that she had talked to her pastor for
guidance on the case.” Simply stated, if B.P. had been certain of her verdict, she
would not have asked her pastor for guidance in making this difficult decision.
In addition, K.A. added that “B.P. told me that she had talked to her pastor and
he had referred her to the same chapter and verses in the Book of Numbers.” Thus,
during the deliberation period, K.A. and B.P. each received confirmation that the
other’s pastor approved imposing the death penalty.5 Given the high regard the two
5
While the majority trumpets the fact that B.P. declared that “[a]t no time
during the deliberations did I relate to the other jurors what my pastor had said to
me” as evidence of the nonprejudicial nature of B.P.’s misconduct (maj. opn.,
ante, at p. 52, fn. 13), it completely misses the mark. Specifically, Juror E.M.
stated in her declaration that during deliberations B.P. stated she had asked her
pastor for guidance. Thus, even if B.P. did not relate to other jurors the specifics
of that conversation, she apparently did not hesitate to make the jury aware that
such a conversation took place.
(footnote continued on next page)
10
jurors had for their pastors, this mutual reinforcement of a reliance on biblical and
pastoral authority further heightened the resulting prejudice.
In light of the majority’s emphasis on the “strength” of the evidence against
defendant in finding these multiple acts of juror misconduct nonprejudicial (maj. opn.,
ante, at pp. 47-48), the test articulated in Marshall bears repeating: “ ‘The ultimate
issue of influence on the juror is resolved by reference to the substantial likelihood
test, an objective standard. . . . ’ [Citation.] [¶] Such ‘prejudice analysis’ is different
from, and indeed less tolerant than, ‘harmless-error analysis’ for ordinary error at
trial. The reason is as follows. Any deficiency that undermines the integrity of a trial
. . . introduces the taint of fundamental unfairness and calls for reversal without
consideration of actual prejudice.” (Marshall, supra, 50 Cal.3d at p. 951.)
An examination of K.A.’s behavior before and after the Sunday night meeting
with her pastor leads to the inescapable conclusion that she was actually and
improperly influenced by her pastor’s assurance that the death penalty was the proper
punishment for defendant (see Nesler, supra, 16 Cal.4th at p. 583), and it is
substantially likely that B.P., despite her remarks to the contrary, was also improperly
influenced by her pastor’s assurance on this very topic. “When the [juror] misconduct
in question supports a finding that there is a substantial likelihood that at least one
(footnote continued from previous page)
The majority also makes the implausible suggestion that “we have no idea”
when B.P. told K.A. “ ‘she had talked to her pastor and he had referred her to . . .
the Book of Numbers.’ ” (Maj. opn., ante, at p. 52, fn. 13.) Given Juror E.M.’s
declaration that during deliberations B.P. told the jurors she had asked her pastor
for guidance, and given the fact that the purpose of the jurors’ declarations was to
determine whether prejudicial juror misconduct occurred during deliberations, the
only reasonable conclusion is that B.P. mentioned her pastor’s conversation to
K.A. during deliberations.
11
juror was impermissibly influenced to the defendant’s detriment, we are compelled to
conclude that the integrity of the trial was undermined: under such circumstances, we
cannot conclude that the jury was impartial.” (Marshall, supra, 50 Cal.3d at p. 951,
italics added.) Moreover, “under the Eighth Amendment ‘the qualitative difference of
death from all other punishments requires a correspondingly greater degree of
scrutiny of the capital sentencing determination.’ [Citation.]” (Caldwell, supra, 472
U.S. at p. 329.)
Reversal under these facts is mandated. The flagrant juror misconduct here
violates the test set we forth in both Marshall and Nesler. Not one, but two jurors
were impermissibly influenced by extraneous information they solicited outside the
deliberative process. The integrity of this trial was undermined, these two jurors were
not impartial, and this verdict should not stand.
II.
Grounds for reversal similarly exist when a juror receives information that
improperly influences her verdict in the sense that it diminishes her sense of
responsibility for her verdict. (Caldwell, supra, 472 U.S. 320.) In Caldwell, the high
court set aside a judgment of death because the prosecutor told the jurors in closing
argument that the state supreme court would automatically review their decision that
death was the appropriate penalty. The high court stated: “[I]t is constitutionally
impermissible to rest a death sentence on a determination made by a sentencer who
has been led to believe that the responsibility for determining the appropriateness of
the defendant’s death rests elsewhere. This Court has repeatedly said that under the
Eighth Amendment ‘the qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the capital sentencing
determination.’ [Citation.]” (Id. at pp. 328-329.) The high court therefore reasoned
that such information “presents an intolerable danger that the jury will in fact choose
to minimize the importance of its role.” (Id. at p. 333.) It concluded, “This Court has
12
always premised its capital punishment decisions on the assumption that a capital
sentencing jury recognizes the gravity of its task and proceeds with the appropriate
awareness of its ‘truly awesome responsibility.’ In this case, the State sought to
minimize the jury’s sense of responsibility for determining the appropriateness of
death. Because we cannot say that this effort had no effect on the sentencing
decision, that decision does not meet the standard of reliability that the Eighth
Amendment requires. The sentence of death must therefore be vacated.” (Id. at p.
341.)
We applied the Caldwell rule in People v. Farmer (1989) 47 Cal.3d 888, a case
in which the prosecutor told the jury: “Whether or not [the defendant] should live or
die was decided by the voters of this state when they passed [the death penalty law],
when they set the criteria. They decided who lives and who dies. You decide, does
aggravating outweigh mitigating. That is your job. That is all you decide. The law
does the rest. It is not you.” (Id. at p. 929, italics omitted.) In essence, “the
prosecutor informed the jury that ‘the law’ decided whether this defendant would live
or die, and that it was not the jury’s responsibility and obligation to decide the
propriety of death as a penalty in this case.” (Id. at p. 930.) As such, “the jury was
misled as to its discretion and responsibility in fixing the appropriate penalty, and
hence . . . the judgment of death must be set aside under Caldwell . . . .” (Id. at p.
931.)
Despite the fact that the misconduct in Caldwell was perpetrated by a state
actor, the general reasoning of Caldwell is instructive here. As stated by the high
court, “the uncorrected suggestion that the responsibility for any ultimate decision of
death will rest with others presents an intolerable danger that the jury will, in fact,
minimize the importance of its role.” (Caldwell, supra, 472 U.S. at p. 333.)
Here,
after
seeking
guidance in violation of a court order not to discuss the
case with nonjurors, two jurors were told by their personal spiritual leaders that death
13
was the appropriate penalty for this defendant. Such advice would likely have a
greater impact upon a juror than receiving similar unsolicited information from the
prosecutor, and the fact that this advice was received out of court gave defendant no
opportunity to object or to rebut the evidence.
As we said in Hughes, supra, 27 Cal.4th at page 389, in reference to a claim of
prosecutorial misconduct in invoking the Bible: “ ‘[T]he primary vice in referring to
the Bible and other religious authority is that such argument may “diminish the jury’s
sense of responsibility for its verdict and . . . imply that another, higher law should be
applied in capital cases, displacing the law in the court’s instructions.” ’ [Citation.]”
But the misconduct here is far more egregious than the misconduct that occurs when
the prosecutor exhorts the jury to impose the death penalty by referencing the Bible.
When the prosecutor invokes the Bible, the effect on the jury is speculative, and we
have found such misconduct harmless by pointing to the prosecutor’s legitimate
reasons in support of a death penalty verdict. (See, e.g., People v. Slaughter (2002)
27 Cal.4th 1187, 1208-1209; People v. Welch (1999) 20 Cal.4th 701, 793-794; People
v. Roybal (1998) 19 Cal.4th 481, 519-521.)
Here, however, not one, but two jurors sought guidance from their personal
spiritual leaders. Not only were they referred to verses in the Bible that supported the
death penalty, they were assured that it was proper to impose the death penalty on
defendant. The effect of the pastors’ assurances was palpable. K.A. highlighted a
copy of the Bible verses in support of the death penalty and shared that copy with
undecided jurors. B.P. also informed other jurors during deliberations that her pastor
offered her guidance on this difficult decision, and had referred her to the same
biblical passages.
K.A.’s and B.P.’s misconduct is prejudicial because it not only diminished
their personal responsibility in imposing a death verdict, but the jury’s sense of
responsibility as a whole. Given that the “ ‘qualitative difference of death from all
14
other punishments requires a correspondingly greater degree of scrutiny of the capital
sentencing determination’ ” (Caldwell, supra, 472 U.S. at p. 329), and given the
“intolerable danger” that this jury chose to minimize the importance of its role (id. at
p. 333), defendant’s death sentence should be reversed.
III.
The juror misconduct here is far more prejudicial than the juror misconduct
that occurred in Mincey, supra, 2 Cal.4th at pages 465-466, a case in which a juror
brought the Bible into deliberations and several jurors read the same passages at issue
here. We stated the test for juror misconduct in this situation as follows: “It is
misconduct for a juror to consider material [citation] extraneous to the record.
[Citations.] Such conduct creates a presumption of prejudice that may be rebutted by
a showing that no prejudice actually occurred. [Citation.] In criminal cases, the
presumption of prejudice is rebutted when there is no substantial likelihood that the
vote of one or more of the jurors was influenced by exposure to the improper
material.” (Mincey, supra, 2 Cal.4th at p. 467.) We held the juror misconduct in
Mincey was nonprejudicial because (1) the Bible verses were read after deliberations
concluded for the day, (2) the jurors did not discuss the verses, (3) the jurors were
questioned by the trial court the very next day and stated that reading the Bible verses
had not influenced their deliberations, and (4) the trial court admonished the jurors to
decide the case solely on the evidence. (Ibid.)
But none of the above factors, which militate against a finding of prejudice, are
present here. K.A.’s and B.P.’s juror misconduct was discovered after trial, so the
trial court had no opportunity to undo the harm. Moreover, not only were the Bible
verses read during deliberations, K.A. stated in her declaration they were read to
jurors who had “expressed feelings about the difficulty and responsibility of making a
life or death decision.” In addition, unlike in Mincey, where the Bible verses were not
discussed during deliberations, K.A. admitted not only that she told the other jurors
15
about the scripture, but that the jurors’ “Christian beliefs” were discussed during that
Monday’s deliberations,6 prompting another juror to take offense later in the day.
Juror E.M. corroborated the fact that such misconduct took place because she stated
that during deliberations B.P. admitted that she sought her pastor’s guidance. This
was “egregious misconduct” because the pastors’ assurances, K.A.’s and B.P.’s
knowledge of the same, and the jury’s improper discussion of biblical passages during
deliberations “suggested that under divine law the proper penalty for defendant’s
crimes is death, always and automatically, regardless of the balance of aggravating
and mitigating circumstances.” (People v. Slaughter, supra, 27 Cal.4th at p. 1226
(conc. & dis. opn. of Kennard, J.); see also Jones v. Kemp (N.D.Ga. 1989) 706
F.Supp. 1534, 1558-1560 [constitutional error for trial court to grant jurors’ request in
death penalty case to bring Bible into deliberation room as “the confidence in the
reliability of the jury’s decision . . . may be undermined”].) The fact that the jury
returned a verdict the following day is further evidence of the impact of the jurors’
misconduct. The presumption of prejudice recognized in juror misconduct cases has
not been rebutted here.
IV.
Finally, the juror misconduct here undermines the integrity of the death penalty
process. In NeCamp v. Commonwealth (1949) 311 Ky. 676 [225 S.W.2d 109], a case
6
The majority claims, based on this record, that “[w]e are not given any
information as to what this discussion entailed.” (Maj. opn., ante, at p. 57.) Not
so. K.A. declared that she discussed and shared her highlighted copy of biblical
passages from the Book of Numbers with undecided jurors; B.P. told jurors during
deliberations that she asked her pastor for guidance as to the ultimate decision in
this case; and this improper religious discussion was of such magnitude that a
fellow juror finally took offense later in the day, stating that, “God does not play a
part in this decision.” Simply stated, there is sufficient evidence in the record to
determine the content of a portion of the jury’s improper religious discussion.
Like the proverbial ostrich, the majority ignores too much.
16
directly on point, the jury returned a death verdict. In the defendant’s motion for a
new trial, an affidavit was introduced by the Commonwealth of Kentucky in support
of the verdict that provided that, during the course of deliberations, a juror told other
jurors that “she had confided in her priest and he had advised her it was all right” to
impose the death penalty because “it would not be any sin.” (NeCamp, supra, 225
S.W.2d at p. 111.) In reversing the death judgment, the court stated: “In the present
case, . . . we have an affidavit filed by the Commonwealth [that] . . . does in fact
reveal misconduct as measured by the law. It is a disclosure made by the
Commonwealth itself that the juror during the trial had conferred with another and
carried the advice into the jury room. Perhaps this interpretation of the affidavit as
being in support of and not to impeach the verdict is not the perfection of logic. But
with the life of a man at stake, and that life to be taken by processes of the law, the
reality and the actuality of the situation ought, under such circumstances, to be
recognized. . . . The appellant, NeCamp, is shown to be a confirmed criminal, an
enemy of society. But society cannot ignore its legitimate concept of justice even for
such an insubordinate member. As stated by [Justice Frankfurter of] the Supreme
Court of the United States not long ago in regard to a heinous crime: ‘A shocking
crime puts law to its severest test. Law triumphs over natural impulses aroused by
such a crime only if guilt be ascertained by due regard for those indispensable
safeguards which our civilization has evolved for the ascertainment of guilt. It is not
enough that a trial goes through the forms of law. . . . Of course society must protect
itself. But surely it is not self-protection for society to take life without the most
careful observance of its own safeguards against the misuse of capital punishment.’ ”
(NeCamp, supra, 225 S.W.2d at p. 112, quoting Fisher v. United States (1946) 328
U.S. 463, 477 (dis. opn. of Frankfurter, J.); accord, Ex parte Troha (Ala. 1984) 462
So.2d 953, 954 [reversing rape conviction based on juror misconduct where juror
stated in his declaration that he “felt compelled” during trial to ask his brother, a
17
minister, “for guidance and scripture references so as to enable [him] to make a
proper and just decision”].)
As
in
NeCamp, there is no denying the enormity of defendant’s crimes.
However, there is substantial evidence in the record that defendant’s killings were not
the acts of a cold, calculating, rational killer, but the acts of a highly disturbed,
delusional, and mentally ill human being. It is therefore not surprising that the jurors
struggled over their decision to impose the death penalty on this defendant. Indeed,
the fact that two jurors actively sought advice on this very topic from their pastors is
tangible evidence that defendant’s fate was no foregone conclusion.
But K.A.’s and B.P.’s misconduct went far beyond the simple request for
spiritual guidance found prejudicial in NeCamp and Troha. The two jurors received
their pastors’ assurances that the death penalty was the proper punishment for
defendant. They carried these assurances into the jury room, further infecting the
deliberative process. K.A. highlighted and shared with undecided jurors improper
biblical material that advocated death for murderers without consideration of any
mitigating circumstances that might have inured to defendant’s benefit. B.P.
discussed the fact that her pastor offered her guidance on this case. The jury’s
deliberative process was so permeated with improper religious discussion, one juror
was finally prompted to remind the group that such considerations were not supposed
to be part of their decision. But the bell could not be unrung. The jury returned a
death verdict the next day.
The degree of the juror misconduct here, in its totality, leads to the conclusion
that K.A. and B.P. were improperly influenced by the events of the preceding
weekend, tainting the jurors, the jury’s deliberations, and the verdict itself. The fact
that two jurors received approval from their spiritual leaders to impose a death
sentence on defendant only serves to highlight the nature and degree of misconduct.
While the majority seemingly contents itself by emphasizing the “strength” of the
18
evidence against defendant, it is error to minimize the totality of the arrant juror
misconduct here. “From the point of view of society, the action of the sovereign in
taking the life of one of its citizens . . . differs dramatically from any other legitimate
state action. It is of vital importance . . . to the community that any decision to
impose the death sentence be, and appear to be, based on reason rather than caprice or
emotion.” (Gardner v. Florida (1977) 430 U.S. 349, 357-358.) The tainted penalty
phase verdict falls far short of this standard.
I concur in the majority’s affirmance of defendant’s murder conviction and the
special circumstance findings, but I would reverse the judgment of death.
MORENO, J.
I CONCUR:
GEORGE, C. J.
19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Danks
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S032146
Date Filed: February 2, 2004
__________________________________________________________________________________
Court: Superior
County: Kern
Judge: Richard J. Oberholzer
__________________________________________________________________________________
Attorneys for Appellant:
Musawwir Spiegel; Lynne S. Coffin, State Public Defender, under appointments by the Supreme Court, for
Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, Eric L. Christoffersen and Lloyd G. Carter, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Musawwir Spiegel
P.O. Box 1756
Davis, CA 95617-1756
(530) 758-8218
Lloyd G. Carter
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 445-6595
2
Opinion Information
| Date: | Docket Number: |
| Mon, 02/02/2004 | S032146 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Fresno Office Lloyd G. Carter, deputy 2550 Mariposa Mall, Room 5090 Fresno, CA |
| 2 | Danks, Joseph (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Attn: Gary Sowards 303 Second Street, Suite 400 South San Francisco, CA |
| 3 | Danks, Joseph (Appellant) San Quentin State Prison Represented by Musawwir Spiegel Attorney at Law P.O. Box 1756 Davis, CA |
| Disposition | |
| Feb 2 2004 | Opinion: Affirmed |
| Dockets | |
| Apr 2 1993 | Judgment of death |
| Apr 9 1993 | Filed certified copy of Judgment of Death Rendered 4-2-93. |
| Jun 9 1998 | Order appointing State Public Defender filed To represent Applt on His Automatic Appeal. |
| Jul 1 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 6 1998 | Extension of Time application Granted To Applt To 9-8-98 To request Corr. of Record. |
| Sep 3 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 4 1998 | Extension of Time application Granted To 11-9-98 To request Record correction |
| Nov 4 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 6 1998 | Filed: Suppl Decl of Musawwir Spiegel in support of request for Eot. |
| Nov 10 1998 | Extension of Time application Granted To Applt To 1-8-99 To request Corr. of Record. |
| Jan 5 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jan 8 1999 | Extension of Time application Granted To 3-9-99 To request Record correction |
| Mar 3 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 8 1999 | Extension of Time application Granted To 5-10-99 To request Record correction |
| May 7 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 17 1999 | Extension of Time application Granted To 7-9-99 To request Record correction no further Extensions of time Are Contemplated |
| Jul 9 1999 | Received: Applt's request for correction and Completion of the Record (34 Pp.) |
| May 31 2000 | Record on appeal filed C-15 (3,433 Pp.) and R-50 (3,770 Pp.) Including Material Under Seal; Clerk's Transcript includes 873 pages of Juror Questionnaires. |
| May 31 2000 | Appellant's opening brief letter sent, due: 7/10/2000 |
| Jul 7 2000 | Application for Extension of Time filed To file AOB. |
| Jul 7 2000 | Counsel's status report received (confidential) from State P.D. |
| Jul 11 2000 | Extension of Time application Granted To 9/8/2000 to file AOB. |
| Aug 31 2000 | Application for Extension of Time filed To file AOB. (2nd request) |
| Sep 6 2000 | Extension of Time application Granted To 11/7/2000 to file AOB. |
| Sep 7 2000 | Counsel's status report received (confidential) from State P.D. |
| Nov 1 2000 | Application for Extension of Time filed To file AOB. (3rd request) |
| Nov 3 2000 | Extension of Time application Granted To 1/8/2001 to file AOB. |
| Nov 13 2000 | Counsel's status report received (confidential) by State P.D. |
| Dec 29 2000 | Application for Extension of Time filed To file AOB. (4th request) |
| Jan 4 2001 | Extension of Time application Granted To 3/9/2001 to file AOB. |
| Jan 11 2001 | Counsel's status report received (confidential) from State P.D. |
| Mar 6 2001 | Application for Extension of Time filed To file AOB. (5th request) |
| Mar 7 2001 | Extension of Time application Granted To 5/8/2001 to file AOB. |
| Mar 15 2001 | Counsel's status report received (confidential) from State P.D. |
| May 4 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| May 8 2001 | Extension of Time application Granted To 7/9/2001 to file AOB. No further extensions of time are contemplated. |
| May 18 2001 | Counsel's status report received (confidential) from State P.D. |
| Jun 18 2001 | Filed: Additional record - 4 sealed envelopes. |
| Jul 3 2001 | Application for Extension of Time filed to file AOB. (7th request) |
| Jul 11 2001 | Extension of Time application Granted To 9/7/2001 to file AOB. No further extensions of time will be granted. |
| Jul 12 2001 | Filed: Applt.'s motion to augment the record on appeal. |
| Jul 12 2001 | Filed: Corrected application for extension of time to file AOB. |
| Jul 25 2001 | Counsel's status report received (confidential) from State P.D. |
| Sep 7 2001 | Appellant's Opening Brief filed. (124 pp.) |
| Sep 12 2001 | Filed: attachment to Motion to Augment Record on Appeal. (note: copies mailed to counsel) |
| Sep 12 2001 | Record augmentation granted Good cause appearing therefor, appellant's unopposed "Motion to Augment Record on Appeal" is granted. The clerk is hereby directed to file the attachment to the motion herein, and to transmit copies thereof to appellant and respondent. |
| Oct 15 2001 | Application for Extension of Time filed To file resp.'s brief. (1st request) |
| Oct 19 2001 | Filed: Supplemental declaration for extension of time to file resp.'s brief. |
| Nov 1 2001 | Extension of Time application Granted To 12/10/2001 to file resp.'s brief. |
| Dec 6 2001 | Request for extension of time filed To file resp.'s brief. (2nd request) |
| Dec 7 2001 | Order appointing Habeas Corpus Resource Center filed to represent applt for habeas corpus/executive clemency proceedings related to the automatic appeal. |
| Dec 12 2001 | Extension of time granted To 2/8/2002 to file resp.'s brief. Dep. AG Carter anticipates filing the brief by 4/1/2002. Only 1 further extension totaling 60 additional days is contemplated. |
| Jan 31 2002 | Request for extension of time filed To file resp.'s brief. (3rd request) |
| Feb 7 2002 | Counsel's status report received (confidential) from HCRC. |
| Feb 13 2002 | Extension of time granted To 4/9/2002 to file resp.'s brief. Dep. AG Carter anticipates filing the brief by 4/9/2002. No further extension is contemplated. |
| Mar 20 2002 | Motion for access to sealed record filed Resp.'s request for sealed transcript of in camera hearing held on 2/11/1992. |
| Mar 20 2002 | Request for extension of time filed To file resp.'s brief. (4th reqeust) |
| Mar 25 2002 | Filed: Supplemental request for extension of time to file reply brief. |
| Apr 4 2002 | Extension of time granted To 6/10/2002 to file resp.'s brief. Dep. Atty. General Carter anticipates filing the breif by 6/8/2002. No further extension will be granted. |
| Apr 8 2002 | Counsel's status report received (confidential) from HCRC. |
| Apr 17 2002 | Motion for access to sealed record granted The Attorney General's request for the disclosure of the sealed transcript of an in camera hearing held in the Kern County Superior Court on February 11, 1992, before the Honorable Clarence Westra, Jr., (Superior Court No. 44842) is granted. The clerk is directed to unseal this portion of the reporter's transcript, and to provide a copy to the Attorney General. |
| May 6 2002 | Filed letter from: Resp., dated 5/1/2002, requesting sealed transcript of hearing in superior court on 3/26/1991. |
| May 6 2002 | Filed letter from: Resp., dated 5/2/2002, requesting transcript of hearing in superior court on 9/23/1991. |
| Jun 6 2002 | Counsel's status report received (confidential) from HCRC. |
| Jun 10 2002 | Request for extension of time filed To file resp.'s brief. (5th request) |
| Jun 12 2002 | Respondent's brief filed (123 pp.) |
| Jun 12 2002 | Extension of time granted To 6/17/2002 to file resp.'s brief. Dep. Atty. General Carter anticipates filing that brief by 6/17/2002. No further extension will be granted. |
| Jul 5 2002 | Request for extension of time filed To file appellant's reply brief. (1st request) |
| Jul 9 2002 | Filed: Applt.'s revised application for extension of time to file reply brief. |
| Jul 12 2002 | Extension of time granted To 9/3/2002 to file applt.'s reply brief. |
| Jul 31 2002 | Counsel's status report received (confidential) from HCRC. |
| Aug 28 2002 | Request for extension of time filed to file reply brief. (2nd request) |
| Aug 29 2002 | Extension of time granted to 11-4-2002 to file reply brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension granted based upon Deputy State Public Defender Spiegel's representation that he anticipates filing the brief by 1-3-2003. |
| Oct 3 2002 | Counsel's status report received (confidential) from HCRC. |
| Oct 28 2002 | Request for extension of time filed To file appellant's reply brief. (3rd request) |
| Nov 4 2002 | Extension of time granted To 1/3/2003 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Musawwir Spiegel's representation that he anticipates filing that brief by 1/3/2003. After that date, no further extension is contemplated. |
| Dec 4 2002 | Counsel's status report received (confidential) from HCRC. |
| Dec 6 2002 | Appellant's reply brief filed (56 pp.) |
| Dec 9 2002 | Motion to withdraw as counsel filed by the Office of the State Public Defender. |
| Dec 10 2002 | Motion for appointment of counsel filed by Musawwir Spiegel. |
| Dec 18 2002 | Counsel appointment order filed Good cause appearing, the application of appointed appellate counsel for permission to withdraw as attorney of record for appellant Joseph Danks, filed December 9, 2002, is granted. The order appointing the State Public Defender as appellate counsel of record for appellant Joseph Danks, filed June 9, 1998, is hereby vacated. Musawwir Spiegel is hereby appointed as attorney of record to represent appellant Joseph Danks for the direct appeal in the above automatic appeal now pending in this court. The State Public Defender is directed to deliver to Musawwir Spiegel, within 30 days from the filing of this order, the entire case file relating to appellant's automatic appeal currently in the State Public Defender's possession, including, but not limited to, the reporter's and clerk's transcripts, all case files and documents obtained from appellant's trial counsel, and all other case-related documents, including copies of all documents filed in this court. |
| Jan 31 2003 | Counsel's status report received (confidential) from HCRC. |
| Feb 5 2003 | Filed: letter from respondent, dated 2-3-2003, withdrawing 5-2-2002, request for transcript, filed on 5-6-2002. |
| Feb 21 2003 | Filed: letter from respondent, dated 2-18-2003, withdrawing 5-1-2002, request for transcript, filed on 5-6-2002. |
| Mar 28 2003 | Counsel's status report received (confidential) from HCRC. |
| Jul 11 2003 | Counsel's status report received (confidential) from HCRC. |
| Jul 28 2003 | Exhibits lodged People's: 8, 13, 13A and 13B. |
| Jul 29 2003 | Counsel's status report received (confidential) from HCRC. |
| Aug 12 2003 | Exhibits lodged People's, 14, 15, 22 and 23. |
| Sep 2 2003 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the November calendar, to be held the week of 11-3-2003, in Sacramento. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument. |
| Sep 25 2003 | Filed letter from: Appellant's counsel, dated 9/23/2003, regarding focus issues for oral argument and requesting 45 minutes. |
| Sep 30 2003 | Counsel's status report received (confidential) from HCRC. |
| Oct 1 2003 | Case ordered on calendar Wednesday, November 5, 2003 @ 1:30PM (Sacramento) |
| Oct 3 2003 | Order filed The request of appellant for 45 minutes for oral argument is granted. |
| Oct 23 2003 | Filed letter from: Appellant's counsel, dated 10/22/2003, regarding additional authorities for oral argument. |
| Nov 5 2003 | Cause argued and submitted |
| Dec 8 2003 | Related habeas corpus petition filed (concurrent) by the Habeas Corpus Resource Center, case no. S121004. |
| Feb 2 2004 | Opinion filed: Judgment affirmed in full Majority Opinion by Brown, J. -- joined by Baxter, Werdegar & Chin, JJ. Concurring & Dissenting Opinion by Kennard, J. -- joined by George, C.J. Concurring & Dissenting Opinion by Moreno, J. -- joined by George, C.J. |
| Feb 17 2004 | Rehearing petition filed by appellant. (5,286 words - 22 pp.) |
| Feb 19 2004 | Time extended to consider modification or rehearing to 4-30-2004, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Apr 14 2004 | Rehearing denied Opinion Modified. Petition for rehearing DENIED. George, C.J., Kennard, J., and Moreno, J., are of the opinion the petition should be granted. |
| Apr 14 2004 | Opinion modified - no change in judgment |
| Apr 14 2004 | Remittitur issued (AA) |
| Apr 23 2004 | Received: Acknowledgment of receipt of remittitur. |
| May 6 2004 | Order filed (150 day statement) |
| May 12 2004 | Received: Acknowledgment of receipt of exhibits. |
| Jun 29 2004 | Received: Letter from U.S.S.C. dated, 6/24/2004, advising time to file cert petition extended to and including 8/12/2004. |
| Aug 23 2004 | Received: Letter from U.S.S.C., dated 8/18/2004, advising cert petiton filed on 8/12/2004 as no. 04-5852. |
| Nov 1 2004 | Certiorari denied by U.S. Supreme Court |
| Aug 24 2007 | Change of contact information filed for: HCRC. |
| Briefs | |
| Sep 7 2001 | Appellant's Opening Brief filed. (124 pp.) |
| Jun 12 2002 | Respondent's brief filed |
| Dec 6 2002 | Appellant's reply brief filed |
