IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent, )
Los Angeles County
DAVID EARL WILLIAMS,
Super. Ct. No. A 579310-01
Defendant and Appellant. )
Defendant David Earl Williams appeals from a judgment of the Los
Angeles County Superior Court imposing a sentence of death following his
conviction by jury of (1) the first degree murder of Joanne Lacey (Pen. Code,
§ 187, subd. (a));1 (2) robbery (§ 211); (3) arson causing great bodily injury
(§ 451, subd. (a)); (4) kidnapping for robbery (§ 209, subd. (b)); and
(5) kidnapping (§ 209, subd. (a).) In connection with the murder charge, the jury
found true the special circumstance allegations that the murder was committed
while defendant was engaged in committing the offenses of robbery and
kidnapping (§ 190.2, subd. (a)(17)), and also found true a special circumstance
allegation that the murder involved the infliction of torture. (§ 190.2, subd.
(a)(18).) The jury also found true an allegation that defendant personally used a
firearm in the course of the murder. (§§ 1203.06, subd. (a)(1), 12022.5.)
Statutory references are to the Penal Code unless otherwise indicated.
Defendant admitted enhancement allegations, as to each count, that he had
suffered one prior felony conviction for burglary (§ 459) and one prior prison term
for rape (§ 261, subd. (a)(2)). (§§ 667, subd. (a), 667.5, subd. (a).) At the
conclusion of the penalty phase of the trial, the jury returned a verdict of death.
The trial court imposed a sentence of death on count 1, murder with special
circumstances. The court imposed and stayed consecutive sentences of one year
on the robbery count, nine years on the arson count, “imprisonment in the state
prison for life with the possibility of parole” on the aggravated kidnapping count
(§ 209, subd. (b)), one year eight months on the kidnapping count, five years for
the firearm enhancement, five years for the prior felony conviction, and one year
for the prior prison term. Defendant‟s appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
A. Guilt Phase Evidence
The murder victim was Joanne Lacey, an African-American woman who
resided in Altadena, and who was 42 years of age at the time of her death. Her
husband, Napoleon Lacey, testified that his wife‟s habit was to return home from
her work as a supervisor at the downtown Los Angeles branch of the United States
Postal Service at approximately 7:30 or 8:00 p.m., but that on March 20, 1989, she
failed to return home as usual. Eventually, he went out in search of her,
accompanied by her mother. He noted that after work she sometimes stopped for
groceries at a Boys Market in Pasadena. He added that his wife ordinarily wore
several rings, a gold-and-diamond bracelet, and one or more necklaces.
Luis Martinez, a mailroom clerk at Mrs. Lacey‟s place of employment,
testified that at approximately 7:00 or 7:15 p.m. on March 20, 1989, he
accompanied Mrs. Lacey to the employee parking lot to see her new, dark-blue
Volvo automobile. He observed her drive away from the parking lot. Another
coworker, Faye Swain, testified that she encountered and spoke with Mrs. Lacey
at the Pasadena mall, near the J.C. Penney store, between approximately 7:40 and
8:00 p.m. the same evening.
Another witness, Shirley Bobbe, testified that at approximately 8:00 p.m.
on March 20, 1989, she was parked in front of the Boys Market in Altadena,
loading groceries into her vehicle, when she observed a dark-blue Volvo driven by
a middle-aged African-American woman begin to back out of a parking space.
When Bobbe was ready to depart and began backing out of her parking space, she
noticed that the dark-blue Volvo had not backed farther out of its spot.
At 9:45 p.m. on March 20, 1989, a $200 cash withdrawal from
Mrs. Lacey‟s bank account was made at the automated teller machine at the
Orangewood Shopping Center on California Boulevard in Pasadena.
Mrs. Lacey‟s friend Carrie Runnels testified that at approximately
10:30 p.m. on March 20, 1989, she received a telephone call from Mrs. Lacey.
Mrs. Lacey seemed excited or rushed, and requested a loan of $500, stating that
she had had an accident. She directed Mrs. Runnels to come alone to “Palm and
Loma Alta” Streets in Altadena. When Mrs. Runnels stated that she would bring
her husband along, Mrs. Lacey objected, instructing her to come alone. Mrs.
Runnels drove a block and a half from her residence in Altadena when she
observed a parked vehicle displaying blinking lights. The vehicle then followed
Mrs. Runnels, who pulled over. The vehicle, which was Mrs. Lacey‟s new dark-
blue Volvo, pulled up next to Mrs. Runnels and stopped. Mrs. Lacey was in the
passenger seat. She silently extended her hand towards Mrs. Runnels, who gave
her $500. Mrs. Lacey passed the cash toward the driver and appeared to be sad.
Mrs. Runnells asked whether Mrs. Lacey was all right and received an affirmative
response. The Volvo departed, driven by a person with shoulder-length black hair.
Prosecution witness Troy Cory, a resident of Pasadena, testified that at
approximately 11:00 p.m. on March 20, 1989, he heard some yelling outside his
residence. He heard two or three gunshots or firecracker explosions, then heard
someone call “let‟s get out of here” or “get in there.” After hearing loud noises
from a vehicle being driven away, he heard a loud explosion and observed a
fireball rise toward the sky. He ran outside and saw that a vehicle was burning
and that a firearm and some money were lying in the street.
Firefighters responded to the scene described by Cory, at approximately
11:30 p.m. on March 20, 1989. They observed a vehicle burning, with flames
reaching four feet high. A fire spread down the street from a source located under
the vehicle, probably gasoline. After approximately 15 or 20 minutes the
firefighters were able to extinguish the blaze. When Pasadena Fire Department
firefighter Robert Taylor opened the ruined vehicle‟s trunk by means of a
sledgehammer, he observed a human body inside.
At the scene, Pasadena Police Officer Jayce Ward observed a .22-caliber
revolver in the street near the vehicle, with two expended rounds and one
unexpended round. The victim‟s body could be observed from the vantage point
of the rear passenger compartment, because the backseat of the vehicle had been
consumed by flames. Pasadena Police Department police assistant Susan Rogers
testified that located in the front of the vehicle were a handbag, a bag of groceries
from Boys Market, and a bag of children‟s clothing in a J.C. Penney bag. Also on
the grass near the vehicle was a spout from a gasoline container. Nearby were a
gas cap, a $20 bill, and a gold-chain necklace.
The victim‟s charred body was lying facedown in the trunk of the Volvo,
with her hands under her body. There were no rings on the victim‟s hands. It
appeared that the fire had burned away the victim‟s clothing except for some
buttons that had melted to the skin. A briefcase located under the body contained
papers belonging to Joanne Lacey. It appeared that a burn on the victim‟s
forehead had consumed the flesh and reached the skull. One arm was burned to
the bone. There were burns on much of the body, and there was a .22-caliber
bullet located in the victim‟s left hand.
Dr. Susan Selser, a pathologist employed by the Los Angeles County
Department of Coroner, testified that an autopsy disclosed that Mrs. Lacey had
been alive when the fire started, and died from smoke inhalation and burns.
Dr. Selser believed that the victim had been alive for up to 10 minutes during the
fire, adding that the gunshot wound to the left hand occurred prior to death. There
was also bruising to the neck, indicating compression prior to death.
Dr. William Davies, a surgeon specializing in burns, testified concerning
the “all-consuming” and “excruciating” pain that the victim suffered as a result of
burns, smoke inhalation, and suffocation. He believed she had endured the pain
for at least four or five minutes, and perhaps for as long as 15 minutes. He
observed soot in her lungs, esophagus, and gullet. He believed that more than 90
per cent of the victim‟s body suffered third-degree burns.
Pasadena Fire Department investigator Robert Eisele inspected the burned
Volvo and found burn patterns along the left side of the vehicle, also finding
indications that the driver‟s side door had been open at the time of the fire. The
roof of the vehicle had begun to cave in from the heat of the fire, and the sunroof
had been consumed. The vehicle smelled of gasoline, and later tests confirmed
there was gasoline on the mats. The passenger compartment showed severe burn
patterns. The fire had burned through the passenger compartment into the trunk.
The right side of the trunk, where the victim‟s head was positioned, suffered
severe fire damage. The victim‟s forehead had adhered to the fender well. One tail
light had been destroyed by fire. In the passenger compartment, the seats had
burned away and the windshield had melted. The engine compartment, however,
was intact, including various rubber hoses and insulated electrical wires. There
were no electrical shorts, and the gasoline tank had not caught fire.
Eisele was of the opinion that someone had set the fire intentionally by
pouring gasoline into the passenger compartment or possibly into the trunk, and
lighting the fuel with a match or cigarette lighter. He believed that the person who
set the fire may have suffered a burn to the hand, because it appeared to Eisele that
the gasoline vapors had exploded when the fire was ignited.
On March 24, 1989, Detective John Knebel, a homicide investigator in the
Pasadena Police Department was informed by a caller, John Wright, that Wright‟s
daughter had information concerning the case. Wright‟s daughter informed
Knebel that Margaret Williams (who had a child by defendant‟s brother) had
spoken to Wright‟s daughter about Williams‟s having been paid to purchase
gasoline and to serve as a lookout while someone burned up an automobile.
Knebel found that Margaret Williams had an outstanding warrant for her arrest on
assault charges. He arrested her the following day and interrogated her. He
arrested defendant soon thereafter.
By contrast, at trial, Margaret Williams (hereafter referred to as Williams)
offered a different account of her activities. She testified under a grant of
immunity, and the defense chose not to cross-examine her. She explained that an
acquaintance, Loretta Kelley, arrived at Williams‟s residence in the early morning
hours of March 21, 1989. Kelley informed Williams that defendant had something
to tell her. When defendant entered Williams‟s residence, he smelled of gasoline
and had a shirt wrapped around one hand. He went to the kitchen and wiped his
hand, neck, and ankle with grease. Williams observed burns on his hand.
Defendant removed approximately $600 or $700 in denominations of $20 and
$100 from his pocket, along with some jewelry — two rings, a bracelet, and a
necklace. When Williams asked him what had happened, he responded that he
had “robbed a bitch,” adding, “I burnt the bitch up.” He informed her that he had
been involved in an automobile collision with the victim, who had wanted to
summon the police. Defendant said he told the victim that he would retrieve his
driver‟s license from his vehicle, but instead returned with his firearm. He forced
her into the passenger seat of her automobile, and drove aimlessly for awhile. He
subsequently directed the victim to withdraw cash from an automated teller
machine, then picked up Loretta Kelley. The victim begged for her life. At his
demand, she telephoned a friend to request that she bring $500 to a location in
Altadena. Defendant reported to Williams that he gave Kelley $50 to “watch out,”
and paid another person $100 to procure $2 of gasoline. He and Kelley set the
victim‟s vehicle on fire, and during the process defendant suffered burns.
Williams testified that she observed defendant give Kelley a gold necklace.
It appeared to Williams that Kelley was frightened. Kelley informed Williams
that she had driven around with defendant and the victim. Williams asked the two
to leave, and gave them a ride in her automobile to separate destinations. Two
days later, while Williams and a friend were standing in a public place near other
persons, Williams discussed what she had heard.
Defendant was arrested in front of his residence at approximately 1:30 p.m.
on March 25, 1989. When he was arrested, he was driving his red Chevy Vega
and wore black shoulder-length hair. Detective Knebel observed evidence of
collision damage to the rear of defendant‟s automobile. A .22-caliber live round
of ammunition was recovered from defendant‟s residence.
Los Angeles County Sheriff‟s Department criminalist James Bailey
examined a fragment of the victim‟s blue Volvo and was of the opinion that the
red marks on the fragment could have come from defendant‟s red Vega.
California Highway Patrol Sergeant Jon West, who was an expert in accident
reconstruction, was of the opinion that damage to and markings on the rear of
defendant‟s Vega and the front, passenger-side bumper of the victim‟s Volvo were
consistent with a very low-speed collision occurring at a slight angle. On the
Volvo, the front, passenger-side bumper was scuffed, and the lens for the turn
signal was missing. Red paint marks on the outer, right edge of the headlamp lens
corresponded to damage to the rear of the Vega near the license plate. The rear
end of the Vega also had unrelated damage.
After his arrest, defendant made four statements to the police. With minor
omissions, all four were admitted in evidence. The first statement was made in the
course of a tape-recorded interview conducted on the day of his arrest, Saturday,
March 25, 1989, by Detectives Knebel and Lionel Salgado, also a homicide
investigator in the Pasadena Police Department. Defendant denied all knowledge
of the crime during this interview. In the second statement, also tape-recorded,
and taken on Monday, March 27, 1989, by Knebel, defendant explained that he
had recently purchased his vehicle in a damaged condition, and he offered an alibi
covering the time of the murder, involving a person named “Macho Man.” During
the third interview, conducted on Tuesday, March 28, 1989, after Knebel had
inspected marks on defendant‟s left hand and ankle that suggested he had suffered
burns, and the officer had shown the marks to a physician and photographed them,
defendant asked to speak to Knebel. In a statement that was not tape-recorded but
that occurred in the presence of two additional officers, defendant informed
Knebel that Loretta Kelley had picked him up in a blue Volvo, but when she
admitted that the vehicle was stolen he panicked, because he was on parole. He
and Kelley agreed that the only way to remove defendant‟s fingerprints was to
burn the vehicle. They poured gasoline on the automobile, and he was burned
when they started the fire. The two of them proceeded to Margaret Williams‟s
residence to treat the burns. Kelley had a large amount of cash and some jewelry
in her possession. Defendant took a bracelet from Kelley but later disposed of it in
a storm drain. Knebel testified that a bracelet identified by Napoleon Lacey as
belonging to the victim was recovered by the police at the location described by
In a fourth interview, conducted by Knebel and Salgado in the afternoon of
March 28, 1989, and tape-recorded for the most part, defendant repeated much of
his earlier statement and claimed he first learned from a news article that there was
a body in the trunk of the vehicle. Salgado asked why a firearm was found at the
scene. Defendant acknowledged that the weapon belonged to him and began to
weep. He admitted robbing the victim, taking her car, and forcing her to withdraw
cash from an automated teller machine. He blamed Kelley for forcing the victim
into the trunk of the vehicle and for shooting her. He acknowledged that he had
assisted in sprinkling gasoline on the automobile. He claimed that Kelley ignited
the fire before he was ready, causing him to suffer burns.
The defense did not present evidence at the guilt phase of the trial.
B. Penalty Phase Evidence
The prosecution introduced evidence of defendant‟s 1983 conviction for
residential burglary and rape, and his 1981 conviction for attempted burglary. In
addition, the court admitted portions of the tape-recorded statement of March 25,
1989, that had been deleted for the purpose of the guilt phase of trial. In this
portion of his statement, defendant discussed his prior prison term for burglary and
rape, explaining that he and his crime partner broke into the victim‟s home and
that they were apprehended when his crime partner confessed.
The victim of the rape, R.T., testified concerning the circumstances of the
crime. She had retired to bed for the night when defendant dragged her from her
bed, beat her with a “huge stick,” and sodomized and raped her, repeatedly calling
her “bitch” during the sexual assaults. She testified that defendant then directed
his crime partner to rape her. The man declined, but when defendant insisted,
tried to comply but was unable to achieve an erection. Defendant‟s accomplice
whispered to her that he had not stolen the money hidden in her Bible and
apologized for what he was doing, stating, “I really don‟t want to do this. He‟s
crazy. Do whatever he says ‟cause he‟ll kill you.”
R.T. testified that defendant bound her with a telephone cord and appeared
to enjoy brutalizing her. When she complained she could not breathe, he stuffed a
sock down her throat. He poured orange juice over her to “get rid of fingerprints.”
The men departed in her Mercedes automobile. In addition to injuries caused by
the rape, she suffered a broken nose, black eyes, and bruises all over her body as a
result of the attack. After the crime, she sold her residence, left her employment
as a record producer, and moved away from the area.
Defendant‟s crime partner in the rape, Shelby Fulcher, testified against
defendant at the penalty phase of the trial. He related substantially the same
circumstances described by the rape victim. He was arrested three days after the
crime, confessed, pleaded guilty, and was sentenced to a 10-year term in prison.
He expressed remorse at the time of his confession.
Terry Robinson, a sergeant in the Los Angeles County Sheriff‟s
Department, testified that when she responded to the rape scene, it appeared that
R.T. had been beaten with a portion of a tree branch. Susan Lawton, also a
sergeant in the Los Angeles County Sheriff‟s Department, testified that when she
interrogated defendant concerning the crime, he waived his constitutional rights,
signed an admonition form, and denied any involvement in the crime. He claimed
that Fulcher came to his residence to request assistance in disposing of a Mercedes
automobile and other items of property. Defendant denied knowing anything
about the property. When Lawton informed defendant that Fulcher had implicated
him, defendant terminated the interview, stating he wanted to “think about it.” An
hour later, defendant asked to speak with the officer, who reminded him of his
constitutional rights. Defendant claimed the crime was Fulcher‟s idea, asserting
Fulcher had committed the rape and violent assault on the victim. Defendant
admitted hitting the victim with a stick and tying her up. He admitted pouring
orange juice on her and placing a sock in her mouth.
In addition, the prosecution presented evidence concerning the impact of
Mrs. Lacey‟s murder on her mother, sister, and daughter. Mrs. Lacey‟s daughter
had been 13 years of age at the time of her mother‟s death; she described how the
trauma of the loss led her to experience anger and to misbehave at school. Her
father, who initially informed her that her mother had died in an automobile
accident, placed her with a relative. Some time prior to the trial he disclosed to
her the exact circumstances of her mother‟s death, leading to a psychological
breakdown for the young woman.
Mrs. Lacey‟s mother had resided with the victim and was close to her; her
daughter‟s death caused her anxiety, confusion, and sleepless nights. The victim‟s
sister described her sister‟s kindness and her terror of violence and firearms.
The defense presented the testimony of defendant‟s wife, Evangeline
Williams. She testified that defendant‟s parents were drug abusers and that his
mother had died of a drug overdose that may have been intentional. Defendant
had four brothers and two sisters, and there was a period when all of defendant‟s
siblings were incarcerated at the same time. When defendant‟s mother died, the
children were sent to reside with an abusive aunt whom defendant attacked with a
hammer. Defendant‟s grandmother eventually took in her grandchildren, but was
hateful and did so solely for the welfare money she would receive for their care.
Evangeline Williams characterized defendant as a childlike person who had low
self-esteem. In her view, defendant was a talented artist, and she identified several
paintings as defendant‟s work. She asked the jury to spare his life.
A consultant who had worked in the correctional system for many years
also testified for the defense, describing the intense security surrounding prisoners
who are sentenced to life in prison without the possibility of parole, and adding a
description of the living and working conditions experienced by such inmates. He
also described some of the amenities available to such prisoners, including access
to television, library books, family visits, and exercise.
Psychiatrist Claudewell Thomas testified that he diagnosed defendant as
having a borderline personality disorder. He noted scars on defendant‟s shoulders,
and concluded they may have been caused by abuse suffered by defendant as a
child. He characterized defendant as being filled with rage, but the witness
believed defendant would not be a danger to others in a structured setting. Dr.
Thomas had not reviewed defendant‟s prison records but was not surprised to
learn he had been diagnosed with antisocial personality disorder. In Dr. Thomas‟s
view, both disorders arose from childhood abuse.
A. Asserted Errors Affecting the Guilt Phase of the Trial
1. Admissibility of Defendant’s Statements
Defendant claims that the four statements he made to the police following
his arrest were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda) and were involuntary. His argument on appeal relies in principal part
upon the circumstances of his first interrogation, but he also refers to the
subsequent interrogations. He asserts that the admission of his statements into
evidence constituted a violation of rights secured by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution, and that the error
requires reversal of his conviction and sentence of death.
a. Procedural background
As noted, defendant was interviewed by the police on four occasions. At
the first interview, conducted on Saturday, March 25, 1989, the day of defendant‟s
arrest, Detectives Knebel and Salgado advised defendant of his rights pursuant to
Miranda and at two points during the interview asked clarifying questions with
respect to possible invocation of defendant‟s rights. The officers engaged in
vigorous questioning, including references to the death penalty and to
incriminating evidence that the officers did not possess, and repeated exhortations
to defendant to tell the truth. Defendant steadfastly denied participation in the
The second interview occurred on Monday, March 27, 1989, when Knebel
posed some questions concerning the damage to defendant‟s vehicle and other
matters, without readvising defendant of his rights under Miranda.
The third interview occurred on Tuesday, March 28, 1989, after Knebel
noticed possible burn marks on defendant‟s left hand and ankle, had the marks
examined by a physician, and photographed the marks. Defendant subsequently
requested to speak to Knebel, and, after being reminded of his rights to counsel
and to remain silent, gave a statement admitting he was present in the victim‟s
vehicle with Kelley and participated in burning it, but denying any contact with
the victim. He agreed to give a tape-recorded statement to Knebel and Salgado
In the ensuing fourth interview, after an advisement of and waiver of
Miranda rights, he repeated the assertions he had made during the third interview,
but ultimately admitted robbing and kidnapping the victim. He asserted that
Kelley shot the victim and placed her in the trunk of the vehicle.
On August 7, 1992, the People filed a motion in the trial court pursuant to
Evidence Code section 402, seeking a ruling on the admissibility of defendant‟s
statements to the police. The People sought to anticipate and counter potential
arguments that at the outset of the first interrogation, the officers erred in posing
clarifying questions during their Miranda advisement, that they failed to honor a
subsequent invocation of rights, and that they did not renew the Miranda
advisement prior to the second interrogation. With respect to potential claims
regarding voluntariness, the People sought to counter anticipated assertions that
the officers‟ references to the death penalty during the first interrogation, or
exhortations to tell the truth during the third interrogation, were coercive.
The court conducted a hearing at which Knebel and Salgado testified.
Knebel testified that defendant seemed cocky during the first interview, but was
more subdued during the remaining interrogations. Knebel testified that at the
outset of the first interview, defendant seemed to understand his rights, but was
confused concerning the availability of counsel. Defendant appeared to
understand the officers‟ explanation and displayed eagerness to speak with them.
The officers testified they had not at any time offered defendant a reduced
sentence in return for his cooperation, and they denied supplying defendant with
any of the information he mentioned in the course of his statements, or making
off-the-record threats or promises to defendant.
Defendant testified at the hearing that he had been subjected to multiple
interrogations other than those recorded by the police, that he repeatedly had
invoked his rights to remain silent and to counsel, and that prior to the second
interrogation the officers promised he would receive a prison sentence of no more
than 18 years if he admitted participation in the crimes and implicated other
persons. Defendant testified he merely repeated the statements the officers had
directed him to make. He claimed to have had no involvement whatsoever in the
crime. He explained he made the statements in order to secure the promised 18-
year sentence and to obtain revenge upon Kelley, but also because he wished to
learn a new trade in prison.
At the conclusion of the testimony, defense counsel argued that defendant‟s
incriminating statements had been coerced in the manner outlined in defendant‟s
In response, the prosecutor pointed out that she had filed a trial brief
seeking to rebut anticipated defense claims based upon the officers‟ Miranda
advisement and their statements concerning the death penalty, but that defense
counsel had not addressed such claims in his argument. The prosecutor contended
that defendant was not subjected to coercion.
The trial court commented that neither the taped and transcribed interviews
nor the testimony of the witnesses provided any indication that defendant had been
subjected to psychological or physical coercion. “He freely banters back and forth
with the investigating officers. He carefully exonerates himself when it is
appropriate. And on the stand, when he talked about the second statement, that
doesn‟t coincide with what he said [in the taped second interview].” The court
pointed out that in the second statement, far from implicating other persons, as
defendant claimed he was directed to do by the officers, he merely offered an alibi.
The court concluded that, “with those findings, and the court reading the moving
papers of the People,” the officers‟ mention of the death penalty during the first
interview was not coercive. In addition, the court declared, “the fact that
defendant was not advised on the second statement I don‟t find fatal to the
statement. The first statement, the second and third statement is a continuing
investigation. And on the third statement again he was advised, freely and
voluntarily gives up his rights. And in those phases of the interrogation where he
talked about asking for his attorney [i.e., the first interrogation], he goes right on
and says he will talk to him. [¶] Again, I find no evidence of physical or
psychological coercion. I find the defendant‟s statements . . . were freely and
voluntarily made with no coercion on behalf of the officers, that his rights under
Miranda are not violated in any way.”
b. Miranda claims
Defendant arguably forfeited his claims based upon Miranda, supra, 384
U.S. 436, because he did not raise them in the trial court. (See People v. Rundle
(2008) 43 Cal.4th 76, 116, 121, disapproved on other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) The hearing conducted to determine the
admissibility of the statements was held on the People‟s motion. At the hearing,
defense counsel did not argue that the officers had violated rights secured by
On the other hand, the prosecutor‟s motion and argument to the court
brought certain elements of the Miranda claim before the court, including the
possibility that defendant had invoked his right to counsel at the outset of the first
interrogation, and that his waiver of rights on that occasion was involuntary
because of the officers‟ mention of the death penalty. Defendant testified at the
hearing that he “continually” invoked his right to counsel during several days of
interrogation, but that his invocation was disregarded. And the prosecutor elicited
testimony from her own witnesses concerning the Miranda advisements and the
circumstances of defendant‟s waiver of those rights, including defendant‟s
demeanor as observed by the interrogating officers. The trial court ruled that no
Miranda violation had occurred.
Assuming, without deciding, that defendant‟s claims were preserved, we
conclude they lack merit, as we shall explain.
The basic rules applicable to defendant‟s claims are well settled. The high
court has stated in summary that to counteract the coercive pressure inherent in
custodial surroundings, “Miranda announced that police officers must warn a
suspect prior to questioning that he has a right to remain silent, and a right to the
presence of an attorney. [Citation.] After the warnings are given, if the suspect
indicates that he wishes to remain silent, the interrogation must cease. [Citation.]
Similarly, if the suspect states that he wants an attorney, the interrogation must
cease until an attorney is present. [Citation.] Critically, however, a suspect can
waive these rights. [Citation.] To establish a valid waiver, the State must show
that the waiver was knowing, intelligent, and voluntary under the „high standar[d]
of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst, 304
U.S. 458 . . . .‟ ” (Maryland v. Shatzer (2010) __ U.S. __ [130 S.Ct. 1213, 1219].)
“The prosecution bears the burden of demonstrating the validity of the
defendant‟s waiver by a preponderance of the evidence.” (People v. Dykes (2009)
46 Cal.4th 731, 751; see Berghuis v. Thompkins (2010) 560 U.S. ___ [2010
WL 2160784, p.*10].) In addition, “[a]lthough there is a threshold presumption
against finding a waiver of Miranda rights [citation], ultimately the question
becomes whether the Miranda waiver was [voluntary,] knowing [,] and intelligent
under the totality of the circumstances surrounding the interrogation.” (People v.
Cruz (2008) 44 Cal.4th 636, 668.) On appeal, we conduct an independent review
of the trial court‟s legal determination and rely upon the trial court‟s findings on
disputed facts if supported by substantial evidence. (People v. Dykes, supra, 46
Cal.4th at p. 751.)
i. Initial waiver of Miranda rights
As noted, defendant was arrested on March 25, 1989, a Saturday, at
approximately 1:30 p.m. At approximately 4:00 p.m. on the same date, Knebel
and Salgado began to interview him in an office area of their detective bureau.
The interview lasted approximately half an hour.
At the outset, Knebel informed defendant that the officers wished to
question him concerning a homicide, and added that defendant had “certain
rights.” Knebel inquired: “Do you know your rights?” When defendant answered
in the negative, Knebel responded, “you don‟t know your rights?” Defendant
answered, “I don‟t need to know.” Knebel then delivered the full Miranda
Knebel inquired whether defendant understood the rights that had been
explained to him, and received an affirmative response. Knebel asked: “Do you
wish to give up your right to remain silent?” Defendant answered: “Yeah.”
Knebel asked: “Do you wish to give up the right to speak to an attorney and have
him present during questioning?” Defendant answered with a question: “You
talking about now?” Knebel responded: “Do you want an attorney here while you
talk to us?” Defendant answered: “Yeah.” Knebel responded: “Yes you do.”
Defendant returned: “Uh huh.” Knebel asked, “Are you sure?” Defendant
answered: “Yes.” Salgado stated: “You don‟t want to talk to us right now.”
Defendant answered: “Yeah, I‟ll talk to you right now.” Knebel stated: “Without
an attorney.” Defendant responded: “Yeah.”
Knebel then explained: “OK, let‟s be real clear. If you . . . if you want an
attorney here while we‟re talking to you we‟ll wait till Monday and they‟ll send a
public defender over, unless you can afford a private attorney, so he can act as
your . . . your attorney.” Defendant responded: “No I don‟t want to wait till
Monday.” Knebel repeated: “You don‟t want to wait till Monday.” Defendant
replied: “No.” Knebel clarified: You want to talk now.” Defendant replied:
“Yes.” Knebel inquired: “OK, do you want to talk now because you‟re free to
give up your right to have an attorney here now?” Defendant responded: “Yes,
In our view, the foregoing recitation of facts demonstrates defendant‟s
knowing and voluntary waiver of his right to counsel. At the outset of the
interrogation, defendant properly was admonished, answered in the affirmative
when asked whether he understood his rights, and evinced willingness to waive his
right to remain silent. When the interrogating officers asked whether defendant
would waive his right to have an attorney present, defendant responded with a
question — “you talking about now?” He already had agreed to waive his right to
remain silent, and his question suggests to us that his willingness to waive the
assistance of counsel turned on whether he could secure the presence of counsel
immediately. This suggestion is reinforced by his answers to the officers‟ requests
for clarification. Also supporting this conclusion as to defendant‟s state of mind is
Knebel‟s testimony that at the outset of the interrogation, defendant appeared
confused concerning when counsel could be provided but, upon learning that
counsel would not be available immediately, seemed eager to speak with the
officers, acknowledging an understanding that his decision to speak constituted a
waiver of his right to have an attorney present. Defendant‟s final and impatient
“yes, yes, yes” confirms our conclusion that, once the question whether counsel
could be provided immediately had been resolved, defendant had not the slightest
doubt that he wished to waive his right to counsel and commence the
interrogation. Under the totality of the circumstances, defendant — who had prior
experience with police interrogation — knowingly and voluntarily waived his
right to counsel.
Defendant claims that a contrary conclusion is required. He points out that
in Miranda, supra, 384 U.S. 436, the high court specified that “[i]f [the suspect]
indicates in any manner and at any stage of the process that he wishes to consult
with an attorney before speaking there can be no questioning. Likewise, if the
individual is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him.” (Miranda, supra, 384 U.S. at
pp. 444-445, italics added.) According to defendant, in response to the Miranda
admonition he plainly “indicated” his desire to consult with an attorney, and
questioning should have ceased instantly. He claims that Knebel violated rights
secured to him by the Miranda decision when the officer continued the
interchange with defendant and sought to clarify defendant‟s intent.
The question whether a suspect has waived the right to counsel with
sufficient clarity prior to the commencement of interrogation is a separate inquiry
from the question whether, subsequent to a valid waiver, he or she effectively has
invoked the right to counsel. (Smith v. Illinois (1984) 469 U.S. 91, 98 [analyzing a
defendant‟s responses to an initial Miranda advisement]; People v. Martinez
(2010) 47 Cal.4th 911, 951.) It is settled that in the latter circumstance, after a
knowing and voluntary waiver, interrogation may proceed “until and unless the
suspect clearly requests an attorney.” (Davis v. United States (1994) 512 U.S.
452, 461, italics added.) Indeed, officers may, but are not required to, seek
clarification of ambiguous responses before continuing substantive interrogation.
(Id. at p. 459.)
With respect to an initial waiver, however, “[a] valid waiver need not be of
predetermined form, but instead must reflect that the suspect in fact knowingly and
voluntarily waived the rights delineated in the Miranda decision. (People v. Cruz,
supra, 44 Cal.4th at p. 667, italics added; see Berghuis v. Thompkins, supra,
560 U.S. at p.___ [2010 WL 2160784, at p.*11].) [Miranda “does not impose a
formalistic waiver procedure that a suspect must follow to relinquish these
This court has recognized that “when a suspect under interrogation makes
an ambiguous statement that could be construed as an invocation of his or her
Miranda rights, „the interrogators may clarify the suspect‟s comprehension of, and
desire to invoke or waive, the Miranda rights.‟ ” (People v. Farnam (2002) 28
Cal.4th 107, 181, italics added [analyzing the defendant‟s pre-admonition
statements in which he announced he would not answer questions]; People v.
Johnson (1993) 6 Cal.4th 1, 27 [analyzing the defendant‟s statement “no tape-
recorders. I don‟t want to incriminate myself,” made at the outset of an interview,
prior to a Miranda advisement]; People v. Clark (1993) 5 Cal.4th 950, 991
[officers properly responded to assertedly ambiguous statements during
admonition, with comments calling for clarification], disapproved on another
ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; United States v.
Rodriguez (9th Cir. 2008) 518 F.3d 1072, 1080 [distinguishing pre- and
postwaiver assertion of rights and, in the instance of initial waivers at the
commencement of interrogation, concluding that officers should clarify
ambiguous statements made by the defendant]; 2 LaFave et al., Criminal
Procedure (3d ed. 2007) § 6.9(g), p. 865.)
Whereas the question whether a waiver is knowing and voluntary is
directed at an evaluation of the defendant‟s state of mind, the question of
ambiguity in an asserted invocation must include a consideration of the
communicative aspect of the invocation — what would a listener understand to be
the defendant‟s meaning. The high court has explained — in the context of a
postwaiver invocation — that this is an objective inquiry, identifying as
ambiguous or equivocal those responses that “a reasonable officer in light of the
circumstances would have understood [to signify] only that the suspect might be
invoking the right to counsel.” (Davis v. United States, supra, 512 U.S. at p. 459,
relying upon Connecticut v. Barrett (1987) 479 U.S. 523, 529 [a decision
analyzing a response to an initial admonition]; see also People v. Gonzalez (2005)
34 Cal.4th 1111, 1124.) This objective inquiry is consistent with our prior
decisions rendered in the context of analyzing whether an assertion of rights at the
initial admonition stage was ambiguous. (See People v. Farnam, supra, 28
Cal.4th at p. 181.) We note that a similar objective approach has been applied by
the United States Court of Appeals for the Ninth Circuit to identify ambiguity in a
defendant‟s response to a Miranda admonition; a response that is reasonably open
to more than one interpretation is ambiguous, and officers may seek clarification.
(United States v. Rodriguez, supra, 518 F.3d at p. 1080.)
In certain situations, words that would be plain if taken literally actually
may be equivocal under an objective standard, in the sense that in context it would
not be clear to the reasonable listener what the defendant intends. In those
instances, the protective purpose of the Miranda rule is not impaired if the
authorities are permitted to pose a limited number of followup questions to render
more apparent the true intent of the defendant.
In the present case, defendant had indicated to the officers that he
understood his rights and would relinquish his right to remain silent. When asked
whether he also would relinquish the right to an attorney and to have an attorney
present during questioning, defendant responded with a question concerning
timing. In light of defendant‟s evident intent to answer questions, and the
confusion observed by Knebel concerning when an attorney would be available, a
reasonable listener might be uncertain whether defendant‟s affirmative remarks
concerning counsel were intended to invoke his right to counsel. Furthermore,
under the circumstances, it does not appear that the officers were “badgering”
defendant into waiving his rights; his response reasonably warranted clarification.
(See Michigan v. Harvey (1990) 494 U.S. 344, 350; see also Montejo v. Louisiana
(2009) ___ U.S. ___ [129 S.Ct. 2079, 2090].)
In addition, the officers‟ response to defendant‟s question concerning the
timing of the appointment of counsel was appropriate, because the authorities are
not required to have an attorney on call for the purpose of custodial interrogation.
(People v. Smith (2007) 40 Cal.4th 483, 503; see also People v. Bradford (1997)
14 Cal.4th 1005, 1045-1046.) Significantly, the interchange occurred on a
Saturday afternoon, and the officers permissibly informed defendant that the
interview would be postponed until the following Monday if he chose to have
appointed counsel present. After the police officers appropriately clarified when
counsel would be available and that questioning would be postponed until that
time if defendant requested counsel, defendant made it very plain that he
understood his rights and wished to proceed with the interrogation in the absence
of counsel. In sum, the two or three questions posed by the officers at the outset
of the interrogation merely clarified defendant‟s position regarding the
circumstances under which he would invoke his right to counsel.
Defendant relies upon Desire v. Attorney General of California (9th Cir.
1992) 969 F.2d 802, 804-805, for the proposition that when a defendant has
invoked his or her Miranda rights, law enforcement officers may not inquire
whether the suspect will answer questions without the presence of a lawyer. This
argument depends upon the assumption that defendant effectively invoked his
right to counsel in response to the Miranda admonition, an assumption we have
rejected. In any event, that case, which concerned a postwaiver invocation of
rights, is distinguishable. In Desire, it was undisputed that the accused responded
to the Miranda advisement with a clear invocation of his rights to counsel and to
remain silent. (969 F.2d at p. 804.) Thereafter, the attorney assigned to the
defendant telephoned the police station and requested to speak with him. The
interrogating officers acknowledged to the attorney that the defendant had invoked
his rights under Miranda, but they did not permit counsel to speak with the
defendant, claiming that no further interrogation would occur in counsel‟s
absence. The defendant was not permitted to telephone the attorney. Despite the
plain invocation of rights and contrary to the indication given to the attorney by
the officers that they would not question the suspect in the attorney‟s absence, they
initiated a custodial interrogation at which the defendant waived his right to
counsel and to remain silent. The reviewing court held the resulting statements to
be inadmissible, because they were obtained in clear violation of Edwards v.
Arizona (1981) 451 U.S. 477, a decision establishing that when a suspect declines
to waive his or her rights and instead invokes the right to counsel, interrogation
may not resume without counsel present, absent contact initiated by the accused.
(Desire v. Attorney General of California, supra, 969 F.2d at pp. 804-805.) As we
have demonstrated above, however, in the present case defendant did not
unambiguously invoke his right to counsel during the initial Miranda advisement,
and the officers simply clarified his intent.
Defendant also relies upon Alvarez v. Gomez (9th Cir. 1999) 185 F.3d 995
for the proposition that an accused‟s thrice-repeated question during Miranda
advisement, concerning whether an attorney could be provided immediately,
constituted an unequivocal invocation of the right to counsel. That case is
distinguishable. In Alvarez, the suspect began requesting an attorney as soon as he
was asked whether he wished to waive his right to remain silent and submit to
questioning, inquiring: “ „Can I get an attorney right now, man?‟ ” When the
officer responded: “ „Pardon me?‟ ” the suspect repeated: “ „You can have [an]
attorney right now?‟ ” The officer responded that the suspect could have an
attorney appointed, and the suspect repeated: “ „Well, like right now you got
one?‟ ” The interrogating officer informed the suspect that counsel would not be
available until the time of the arraignment. (Id. at pp. 996-997, italics omitted.) In
addition to denominating the questions, in context, as a clear invocation of the
right to counsel, the court explained that it was evident the police were not merely
seeking clarification but sought to undermine the defendant‟s intent to assert his
rights. The court apparently reached this conclusion because, in fact, there were
attorneys available 24 hours a day to a suspect who invoked the right to counsel
prior to interrogation. (Id. at p. 998 & fn. 3.) In the present case, by contrast, in
context defendant‟s statements suggested some ambiguity — sufficient ambiguity
that a reasonable officer would be uncertain of defendant‟s actual intent.
In his supplemental reply brief, defendant relies upon this court‟s decision
in People v. Neal (2003) 31 Cal.4th 63. In that case, the defendant plainly invoked
his right to counsel on nine occasions, but the interrogating officers purposefully
ignored the invocations and continued their intensive interrogation concerning the
crime. When the defendant resisted incriminating himself, they placed him in a
cell overnight without food, drink, or toilet facilities, leading to his making a
statement on the following day that we concluded should not have been admitted
in evidence. That case is distinguishable, because it was undisputed that the
defendant clearly invoked his rights to remain silent and to counsel on numerous
occasions at the outset of the first interview, but the officers nonetheless
conducted a vigorous substantive interrogation in a coercive setting. There was no
claim in the Neal case that the officers responded by seeking clarification; it was
undisputed that they intentionally disregarded the requirements of Miranda and
continued the substantive interrogation of the youthful, inexperienced defendant
pursuant to a departmental policy designed to disregard invocations of Miranda
rights. (Neal, at p. 653.)
ii. Asserted subsequent invocation — right to counsel
Defendant asserts that he invoked his right to counsel at a subsequent point
during the first interrogation, when he stated: “I want to see my attorney cause
you‟re all bullshitting now.”
This statement was made under the following circumstances. Knebel and
Salgado questioned defendant concerning his whereabouts and activities on the
night of the murder. They insisted, over defendant‟s denials, that Loretta Kelley
and Margaret Williams would testify he was involved in robbing and murdering
Knebel then stated: “[Kelley] was with you when you torched the car.
Was Margaret [Williams] with you too?” Defendant answered: “[Kelley] wasn‟t
with me when I torched no car.” Knebel asked: “Was Margaret [Williams]
driving you over there to torch the car?” Defendant answered: “No. Who told
you that?” Knebel returned: “Why did you have to kill the woman, she gave you
the money. She gave you the money from the little traffic collision w[h]ere she
ran into . . . the back of you.”
Defendant responded: “Wait, wait, wait, wait. You sayin‟ that I killed
somebody. I‟m tellin‟ you that I haven‟t, ok.” Knebel responded: “Yeah, but
you‟re lying.” Salgado added: “I‟m going to tell you something, ok. Right now
you are in a whole heap of trouble.” Defendant replied: “I see this. This is
hearsay . . . but see I done told . . . .” Salgado interrupted: “No, no they, nah, nah,
nah, nah, wait, wait a minute David. This isn‟t hearsay. This is not the courtroom
right here. There‟s no one . . . hearsay, there‟s no . . . no rumor. There‟s nothing.
We have evidence.” Defendant responded “You got to show . . . you got to do
more than this.” Salgado responded: “You‟re right . . . .” Defendant interrupted:
“I want to see my attorney cause you’re all bullshitting now.” (Italics added.)
Salgado continued: “I know. You know we have to show more than this. You‟re
right.” Knebel interrupted: “You want your attorney now?”
Salgado continued: “But what we wanted . . . an opportunity now to see if
you wanted to tell the truth or not and obviously you‟re not ready to tell the truth.”
Defendant responded: “Tell the truth about what?” Salgado began: “Well . . .
your . . .” and defendant repeated: “I haven‟t killed nobody.” Salgado replied:
“I‟m not saying you killed anybody. You put her in the trunk.” Defendant
responded: “I didn‟t put nobody in the trunk.” Knebel interrupted: “Wait a
minute. Do you want your attorney now or do you want to talk to us?” Defendant
replied: “I’ll talk to him. But you sittin‟ up here telling me that I done killed
somebody.” Knebel responded: “You did.” Defendant replied: “No I didn‟t.”
Knebel asked: “Do you want to talk to him without the attorney?” Defendant
responded: “Oh yeah I talk to him.” (Italics added.) Knebel stated: “Alright I‟ll
Once the defendant has waived his or her right to counsel, as we have
determined defendant did at the outset of the first interview, if the defendant has a
change of heart, he or she must invoke the right to counsel unambiguously before
the authorities are required to cease the questioning. (People v. Rundle, supra, 43
Cal.4th at p. 114.) The suspect must articulate sufficiently clearly his or her desire
to have counsel present so that a reasonable officer in the circumstances would
understand the statement to be a request for an attorney. (Davis v. United States,
supra, 512 U.S. at p. 459.) “[I]f a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation of questioning.” (Ibid., italics
Considering the totality of the circumstances, we find that defendant‟s
statement in the present case constituted an expression of frustration and, as the
trial court suggested, game playing, and was not an unambiguous invocation of the
right to counsel precluding even the asking of clarifying questions. We reached
the same conclusion under comparable circumstances in People v. Davis (2009) 46
Cal.4th 539. In that case, the defendant initially agreed to speak with investigating
officers and answered questions for approximately one hour. When the officers
began directly accusing him of having abducted the victim, however, he stood up
and stated: “ „Well then book me and let‟s get a lawyer and let‟s go for it, man,
you know.‟ ” We concluded that substantial evidence supported the trial court‟s
view that the comment was not an unequivocal invocation but merely a
“ „challenge,‟ ” and that “defendant was using „as much technique as the people
who were questioning him.‟ ” (Id. at p. 587; see also People v. Musselwhite
(1998) 17 Cal.4th 1216, 1238, 1240 [comparable comments may evidence “ „only
momentary frustration and animosity‟ ”].) Moreover, prior to the resumption of
questioning, Knebel clarified defendant‟s actual intent — clarification that the
high court has denominated good practice (although not required) in similar
circumstances. (Davis v. United States, supra, 512 U.S. at pp. 461-462.)
iii. Asserted subsequent invocation — right to remain silent
Defendant also contends that toward the conclusion of the first interview,
the officers failed to honor his invocation of the right to remain silent. Salgado
displayed a photograph of the victim to defendant, saying “this is the woman I‟m
talking about. How did you meet her?” Defendant answered: “I don‟t know that
woman.” Salgado countered, “I‟m not saying that you know her. I know you
don‟t know her.” Defendant confirmed: “I don‟t know her.” Salgado replied: “I
know you don‟t know her. She was just someone you met that day.” Defendant
repeated: “I don‟t know her.” Salgado responded: “I know you don‟t know her.
I know that. You didn‟t know her. You didn‟t know her. I know that. How did
you meet her that day?” Defendant responded: “I don‟t know.” Salgado
persisted: “What did you do . . . that day with her? Why did . . . it turn [out] the
way it did?” Defendant responded: “I don’t want to talk about it.” (Italics
added.) Salgado said: “Tell me. David . . . .” and defendant interjected: “I did
not know her.” Salgado said again, “David why did it turn [out] that way?”
Defendant again said: “I did not know her.” Salgado replied: “You don‟t know
her, but why did it get that way? Why did she have . . . . ” and defendant
interjected: “I don‟t [sic] what you talk about. I didn‟t put nobody in no trunk.”
He explained that he had nothing to do with the crimes. He continued to respond
to questions and to deny all knowledge of or involvement in the crimes.
“A defendant has not invoked his or her right to silence when the
defendant‟s statements were merely expressions of passing frustration or
animosity toward the officers, or amounted only to a refusal to discuss a particular
subject covered by the questioning.” (People v. Rundle, supra, 43 Cal.4th at
p. 115; see also People v. Martinez, supra, 47 Cal.4th at pp. 947-948; People v.
Stitely (2005) 35 Cal.4th 514, 533-536.) In our view, the statement italicized
above — “I don‟t want to talk about it” — was an expression of defendant‟s
frustration with Salgado‟s failure to accept defendant‟s repeated insistence that he
was not acquainted with the victim as proof that he had not encountered her on the
night of the crime, rather than an unambiguous invocation of the right to remain
silent. (See Berghuis v. Thompkins, supra, 560 U.S. ___ [2010 WL 2160784, at
p. *8] [the requirement that a midinterrogation invocation be clear and
unambiguous extends to the assertion of the right to remain silent]; People v.
Martinez, supra, 47 Cal.4th at pp. 947-948.) A reasonable officer could interpret
defendant‟s statement as comprising part of his denial of any knowledge
concerning the crime or the victim, rather than an effort to terminate the
interrogation. (See People v. Silva (1988) 45 Cal.3d 604, 629-630.)
iv. Absence of readvisement
Next, defendant contends his statements during the second interrogation
were obtained in violation of Miranda because Knebel questioned him without
preceding the interview with a second Miranda advisement.
The interview occurred on March 27, 1989, at 9:00 a.m. Knebel questioned
defendant in the same area of the detective bureau where the first interrogation
occurred. Knebel did not repeat the Miranda advisement, but informed defendant
that he wished to ask questions concerning a collision defendant may have had
with Mrs. Lacey‟s vehicle. Defendant responded that he was willing to answer
questions. He offered an alibi and claimed he had purchased his automobile in a
damaged condition. He denied having had an accident in the prior week, and
claimed he had replaced the taillight lens about one month earlier. He claimed the
vehicle was parked at his home on the night of the crime, adding that at that time
the vehicle had no brakes and was not in a drivable condition.
We are not persuaded by defendant‟s claim. After a valid Miranda waiver,
readvisement prior to continued custodial interrogation is unnecessary “so long as
a proper warning has been given, and „the subsequent interrogation is “reasonably
contemporaneous” with the prior knowing and intelligent waiver.‟ [Citations.]”
(People v. Smith, supra, 40 Cal.4th at p. 504.) The necessity for readvisement
depends upon various circumstances, including the amount of time that has
elapsed since the first waiver, changes in the identity of the interrogating officer
and the location of the interrogation, any reminder of the prior advisement, the
defendant‟s experience with the criminal justice system, and “[other] indicia that
the defendant subjectively underst[ood] and waive[d] his rights.” (Ibid.; see
People v. Mickle (1991) 54 Cal.3d 140, 171 [an interrogation conducted 36 hours
after the first interview was reasonably contemporaneous].) In the present case,
the officers were not required to readvise defendant, because the second
interrogation was reasonably contemporaneous with the first, having occurred
approximately 40 hours later in the same location as the first, and was conducted
by one of the previous interrogators. In addition, as the trial court was aware at
the hearing, defendant had experience with the criminal justice system and evinced
no reluctance to be interviewed. It is readily apparent the trial court did not credit
defendant‟s testimony claiming that, prior to the second interview or, indeed, at
any time, Salgado had promised him a prison term of 18 years in return for a
statement implicating another person. Under these circumstances, the court
properly ruled the officers were not required to remind defendant of his rights.
c. Voluntariness claim
Defendant contends the trial court erred in admitting all of his statements to
the authorities, because these statements resulted from what he characterizes as a
“four-day effort by the police to break his will.” He claims the admission of the
assertedly involuntary statements constituted a violation of his rights under the
Fifth and Fourteenth Amendments to the United States Constitution.
Some elements of defendant‟s claim were not raised below and may be
forfeited. At the hearing on the admissibility of the statements, the defense did not
allege that defendant was subject to coercion during the first interrogation, nor was
it claimed that subsequent statements were rendered involuntary by virtue of
coercion at the first interrogation or by virtue of lengthy incarceration prior to
arraignment. A defendant ordinarily forfeits elements of a voluntariness claim that
were not raised below. (People v. Rundle, supra, 43 Cal.4th at p. 121 [defendant
forfeited the claim that the length of interrogation and of an interview with state-
appointed psychiatrist rendered statements involuntary, because he failed to raise
these claims in the trial court]; People v. Ray (1996) 13 Cal.4th 313, 339 [claim of
delay in delivering Miranda admonition did not preserve a claim that an offer of
benefit rendered a statement involuntary].)
On the other hand, in his testimony at the hearing, defendant did claim his
invocation of the rights to counsel and to remain silent had been ignored
throughout his contacts with the officers. And the prosecutor elicited testimony
from Detective Knebel concerning defendant‟s demeanor during the first
interrogation and his reaction to mention of the death penalty.
As described in connection with defendant‟s Miranda claim, the trial court
concluded the People had sustained their burden of demonstrating the
voluntariness of all four statements. The trial court‟s conclusions went beyond the
defense argument, responding to the prosecution‟s effort to carry its burden of
establishing the voluntariness of the confessions by (among other means) refuting
the possibility that purported threats concerning the death penalty, or admonitions
that defendant would be “better off if he told the truth,” served to coerce the
confession given by defendant. Having listened to the taped statements and seen
and heard the witnesses, the trial court concluded that defendant had not been
subjected to physical or psychological coercion. The court rejected defendant‟s
claim that he made his incriminating statements in response to a promise that his
maximum sentence would be 18 years in prison. Assuming, without deciding, that
all of defendant‟s claims have been preserved, for the reasons discussed below we
conclude that the trial court did not err in concluding that all four statements were
The basic law is settled. A criminal conviction may not be founded upon
an involuntary confession. (Lego v. Twomey (1972) 404 U.S. 477, 483.) “The
prosecution has the burden of establishing by a preponderance of the evidence that
a defendant‟s confession was voluntarily made. [Citations.] In determining
whether a confession was voluntary, „ “[t]he question is whether defendant‟s
choice to confess was not „essentially free‟ because his [or her] will was
overborne.” ‟ [Citation.] Whether the confession was voluntary depends upon the
totality of the circumstances. [Citations.] „ “On appeal, the trial court‟s findings
as to the circumstances surrounding the confession are upheld if supported by
substantial evidence, but the trial court‟s finding as to the voluntariness of the
confession is subject to independent review.” ‟ [Citation.]” (People v. Carrington
(2009) 47 Cal.4th 145, 169.)
In evaluating the voluntariness of a statement, no single factor is
dispositive. (People v. Williams (1997) 16 Cal.4th 635, 661 [rejecting the view
that an offer of leniency necessarily renders a statement involuntary].) The
question is whether the statement is the product of an “ „essentially free and
unconstrained choice‟ ” or whether the defendant‟s “ „will has been overborne and
his capacity for self-determination critically impaired‟ ” by coercion.
(Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225.) Relevant considerations
are “ „the crucial element of police coercion [citation]; the length of the
interrogation [citation]; its location [citation]; its continuity‟ as well as „the
defendant‟s maturity [citation]; education [citation]; physical condition [citation];
and mental health.‟ ” (People v. Williams, supra, 16 Cal.4th at p. 660.)
“In assessing allegedly coercive police tactics, „[t]he courts have prohibited
only those psychological ploys which, under all the circumstances, are so coercive
that they tend to produce a statement that is both involuntary and unreliable.‟
[Citation.]” (People v. Smith, supra, 40 Cal.4th at p. 501.)
A confession is not involuntary unless the coercive police conduct and the
defendant‟s statement are causally related. (Colorado v. Connelly (1986) 479 U.S.
157, 164, fn. 2, 167; People v. Guerra (2006) 37 Cal.4th 1067, 1093; People v.
Maury (2003) 30 Cal.4th 342, 404-405; People v. Benson (1990) 52 Cal.3d 754,
778; see also People v. Carrington, supra, 47 Cal.4th at pp. 170-171; U.S. v.
Dehghani (8th Cir. 2008) 550 F.3d 716, 719-720; U.S. v. Charles (7th Cir. 2007)
476 F.3d 492, 497; Hill v. Anderson (6th Cir. 2002) 300 F.3d 679, 682; Pollard v.
Galaza (9th Cir. 2002) 290 F.3d 1030, 1034; O‟Neill, Cal. Confessions Law
(2009) § 1.6, p. 8.)
i. Factual background
a. First interview
Defendant points to a number of elements of the first interrogation in
support of his claim of coercion, as set forth below in italics. In the course of the
first interview, Detective Knebel informed defendant that Margaret Williams had
told two other persons that defendant gave a person some money to act as a
lookout and obtain gasoline, and that defendant set fire to a vehicle “where there
was a lady inside that you robbed and murdered.” Knebel commented, “you‟re
going to go to prison” or “fry in the gas chamber.” After defendant agreed to
speak with Detective Salgado despite defendant‟s statement that “I want to see my
attorney cause you‟re all bullshitting now,” and after defendant offered various
exculpatory remarks about his activities, Salgado explained that the officers had
additional evidence but wished to hear defendant‟s account. Salgado expressed
confidence that defendant had been involved in the murder but suggested he
lacked the intent to kill: “[Y]ou see this woman died from choking from the
smoke. So when you say I didn‟t kill the woman I believe you didn’t mean to kill
her. The smoke killed her, but I know that you‟re involved.” Salgado added that
the only reason defendant did not wish to “tell us . . . what‟s inside you” is that
defendant did not wish to return to prison. Salgado, claiming it would be helpful
to defendant if he were to tell the truth, stated that “the only thing that’s going to
help you, ok is to tell the truth.” He added that Knebel, as the lead investigator,
and Salgado himself, would take their evidence to court and defendant would be
found guilty. After a guilty verdict, he added: The only thing “that’s going to
save you . . . from, you know, spending the rest of your life in prison . . . or the gas
chamber is for you, right now, to tell us the truth about this and why you did it
cause we don‟t have to prove that you did it . . . we can prove it already. Why you
. . . didn’t mean for her to go through this. It would, it would . . . you didn’t mean
for her to die and when the jury and the judge looks at this, that you admitted you
were wrong and you told the truth they’re not gonna be so hard on you. And
that‟s my experience[,] David[,] and I‟ve been in this job a long time.” (Italics
added.) When Salgado mentioned life in prison, Knebel interjected another
reference to the alternative, the death penalty.
When defendant denied killing anyone, Salgado repeated that he knew
defendant did not intend to kill the victim. Salgado persistently asked whether and
how defendant knew the victim. Salgado asked: “[W]hy did it get that way?
Why did . . . she have (inaudible).” Defendant claimed he did not know what
Salgado was talking about. Defendant explained that he had nothing to do with
the crime, that Kelley‟s and Margaret Williams‟s statements were insignificant,
adding sarcastically: “I done told [Kelley] I done killed many people. I done told
. . . that girl right there she scared to death of me when I got out.”
Salgado responded with another reference to “certain evidence that you
don’t even know about that puts you there.” Defendant replied that the police had
no evidence against him, repeating: “You don‟t. Cause I wasn‟t there.” Salgado
asked: “You don’t know what gasoline does to you?” (Italics added.) When
defendant replied that he did not know what gasoline “does to you,” Salgado
responded: “I know you don‟t or else you wouldn‟t be sitting here lying like you
are.” Knebel then suggested there might be fingerprint evidence, a suggestion that
respondent concedes was not based in fact.
Salgado stated: “This is your chance now, right here before it gets any . . .
farther outside of this room . . . in front of any district attorney[.] In front of any
judge or jury. Cause you know how the system works.” Defendant
acknowledged: “I know how the system works,” adding: “If I got found guilty on
the murder I‟m goin‟ anyway.” Knebel interjected: “You‟re gone.” Salgado said,
“That’s not true.” He added: “I’ll tell you why . . . . It’s because when the jury
and judge looks at these things they look for the truth.” Knebel added: “They
look for remorsefulness on the part of the guy that did the crime.” Knebel added:
“[I]f from jump street you deny it and we go through and prove it the jury‟s gonna
say, you ain’t worth saving . . . .” Defendant stated: “Kill me.” Knebel added:
“give him the gas chamber.” Salgado asked: “Is that what you want?” Defendant
replied: “[They‟re] gonna have to kill me.” Knebel responded: “They will.”
(Italics added.) Salgado asked whether defendant wanted to die, and when
defendant responded he did not, Salgado said: “Then tell me the truth.”
Defendant denied killing the victim.
Knebel then informed defendant that when he took the victim to the ATM,
“three people came up right after you guys finished . . . and they saw you face to
face.” (Respondent concedes this claim was not based in fact.) Salgado
commented: “Well David that‟s what‟s going to send you to the gas chamber.”
(Italics added.) Defendant replied: I don‟t know what you‟re talking about.”
Knebel asserted: “They are going to identify you.” Defendant repeated: “I don‟t
know what you‟re talking about.” Knebel responded: “Well I‟m tired of wasting
my time.” Defendant commented: “If they can identify me now they gonna have
to.” Salgado announced defendant would be returned to his cell, commenting:
“But I want you to think about what I‟m telling you . . . about remorsefulness and
the truth.” He added: “[I]f you change your mind and you want to talk about her
with me all you have to do is tell the jailer.” Defendant responded: “I just talked
to you. I don‟t . . . I didn‟t kill her.”
As noted, Knebel testified at the hearing held to determine the admissibility
of the statements that, during the first interview, defendant was cocky and
appeared to want to speak to the officers. Knebel added that defendant did not
react emotionally to the officers‟ references to the death penalty.
b. Second interview
The second interview also occurred at the detective bureau offices, on
March 27, 1989, beginning at 9:00 a.m. Knebel informed defendant he wished to
question him concerning his automobile, and defendant agreed to speak. The tape-
recorded interview lasted approximately five minutes. Knebel and defendant were
the only persons present. Without readvising defendant of his rights, Knebel
asked him how long he had owned his Vega, how collision damage to the front of
the vehicle had occurred, and when defendant had replaced a taillight lens.
Knebel testified at the hearing conducted on the admissibility of defendant‟s
statements that he had not threatened defendant to persuade him to be interviewed,
nor had he offered any promises. Knebel testified that defendant‟s demeanor was
“[v]ery calm and matter of fact.”
By contrast, at the hearing held on the admissibility of the statements,
defendant testified that approximately 15 minutes prior to the second interview,
Salgado promised him an 18-year prison term in return for a statement implicating
other persons. According to defendant‟s testimony, Salgado “was telling me that
he knew I wasn‟t the only one there, that they had a witness that said it was a man
and a woman arguing or something and that I didn‟t do this by myself, it had to be
somebody there, give him somebody and he would promise me 18 years.”
Defendant added that at the time of the interview, he was “pretty stressed out
because they had dragged me around the city, no shoes on my feet, just an orange
jumpsuit. They had stripped me buck naked, took all my clothes, my jewelry and
everything, threw me [in] a room and didn‟t tell me nothing.” He claimed to have
repeatedly invoked his right to counsel and to be silent.
c. Third interview
On March 28, 1989, at approximately 8:30 a.m., Detective Knebel
examined defendant, noticing pink marks on defendant‟s hand and ankle that
Knebel believed were burn marks. Knebel transported defendant to Huntington
Memorial Hospital for examination by a physician. Knebel returned with
defendant to the detective bureau and photographed the marks. As Knebel
prepared to return defendant to the jail, defendant asked him whether the two
could speak. At approximately 10:00 a.m., after Knebel reminded him of his
rights, defendant waived his rights to remain silent and to counsel. Two other
officers were present. There was no tape recording, and the officers did not take
notes. Defendant claimed that on the night of the crime, he had been picked up by
Kelley and had driven around with her. When he learned her vehicle was stolen,
he feared they would be apprehended and he would incur a revocation of his
parole. He concluded they should burn the vehicle to destroy his fingerprints.
Defendant was burned in the process of igniting the fire.
At the conclusion of the interview, defendant agreed to provide a tape-
recorded statement, and Knebel returned him to the jail to await Salgado‟s
d. Fourth interview
The fourth interview began at 1:15 p.m. the same day. After Detective
Knebel readvised defendant of his rights, he waived them. Defendant asked that
the tape recorder be turned off. Knebel‟s contemporary written report indicated
that defendant said to Salgado, “ „You said you could help me, how can you help
me?‟ ” (Italics added.) According to the report, Salgado responded that “the only
way he could help him is if he told the truth and that it would look better in court
if he told the whole truth rather than tell some of the truth and some lies.” Under
questioning, defendant repeated the story that Loretta Kelley had picked him up in
the blue Volvo and that the two burned the car when defendant learned it was
stolen, that they sprinkled the vehicle with gasoline, that he lit the fluid, that
Kelley gave him some money and jewelry, and that the two proceeded to Margaret
Williams‟s residence. The account was elicited without any reluctance or
resistance on the part of defendant. Knebel turned off the tape recorder at
While the tape recorder was off, defendant informed the officers that he
wanted to add something to his statement, namely, that he first realized there was a
woman in the trunk of the vehicle when he read about it in the newspaper. The
tape recorder was turned back on at 1:30 p.m. Defendant then explained the
circumstances under which Margaret Williams showed him the relevant
newspaper article. There was further questioning concerning the items of property
left in the victim‟s vehicle. Salgado asked where defendant and Kelley obtained
the container for the gasoline, and defendant replied they had used an antifreeze
container from the backseat of the car. Defendant then paid “somebody” to
procure the gasoline. The tape recorder was turned off again at 1:33 p.m.
At the hearing held on the admissibility of the statements, Knebel testified
that, as the officers prepared to return defendant to his cell, Salgado posed a
further question. According to Knebel‟s notes, Salgado asked defendant “if he
was there when the fire started, what about the gun that was there. [Defendant]
then said that the gun was his and that he had had it since he got out of prison.
[Defendant] then said that he had robbed her and asked to go back on the tape for
the remainder of [the] interview.”
The tape-recorded interview continued at 1:39 p.m. Defendant explained
how he set the car on fire. He said the .22-caliber firearm was his, and stated he
had the gun with him “cause me and Loretta [Kelley] robbed her” at a location
near his residence. He claimed Kelley unexpectedly accosted the victim and
robbed her. According to him “it was too late then.” Accordingly, he and Kelley
entered her vehicle and drove the victim to the ATM to withdraw cash, after which
the victim telephoned a friend to obtain more money. Defendant claimed Kelley
placed the victim in the trunk over vocal protests. Then Kelley shot the victim
through the back seat “talking about you can kill her like this.” Then they
acquired the gasoline. Both he and Kelley sprinkled the vehicle with gasoline. He
claimed Kelley lit the fluid and he caught on fire when he reached into the front
seat to retrieve his firearm. They ran to Margaret Williams‟s residence because it
was close. He did not hear any screaming. Salgado inquired, “Are you telling me
the truth now,” and defendant answered: “Swear to God I‟m telling you the whole
truth.” Salgado asked whether anyone had made threats or promises to defendant,
who answered in the negative. Salgado continued: “Are we . . . forcing you to tell
this to us?,” and defendant answered in the negative. Knebel asked why defendant
was giving them his account, and defendant answered, “cause it‟s bothering my
brain.” When Knebel commented, “It‟s good to get it off your chest isn‟t it?”
defendant answered, “it hurts.” Salgado asked: “Do you feel better now? A little
bit?” And defendant answered, “yeah.”
ii. Claimed coercion at the first interrogation
Defendant renews his claim that the interrogating officers failed to honor
his invocation of the rights to counsel and to remain silent at the first interrogation,
adding that they discouraged his exercise of these rights. We have determined,
however, that defendant voluntarily waived his rights. We add that far from
discouraging defendant‟s exercise of the right to counsel, the officers asked
clarifying questions designed to afford defendant the opportunity to assert that
right. We also perceive no indication that the officers discouraged defendant from
exercising his right to remain silent toward the end of the first interview.
Reviewing the totality of the circumstances of the first interview, we
conclude that defendant‟s will was not overborne. He had experience in the
criminal justice system. Defendant understood his right to counsel and to remain
silent, but waived those rights. He effectively parried the officers‟ accusations and
questions, as noted by the trial court. He did not appear upset by the officers‟
reference to the death penalty. The overall import of the interrogation was
appropriate in that the officers presented defendant with incriminating evidence,
emphasized the seriousness of the charges, and urged him not to lie, because lies
would antagonize the court and the jury. The interview was relatively brief.
Significantly, defendant did not incriminate himself in response to the
interrogation, indicating the effective functioning of his will remained intact.
Defendant insists, however, that Salgado and Knebel coerced his statements
during the first interview by engaging in practices assertedly disapproved by the
United States Supreme Court in Miranda, supra, 384 U.S. 436. He refers to the
high court‟s discussion of potentially coercive conduct such as threatening a
defendant, using deception, displaying confidence in the suspect‟s guilt and
directing questions solely at “confirming . . . details” (id. at p. 450) minimizing the
accused‟s responsibility for the crime, and employing a “good cop, bad cop”
interrogation tactic. (See id. at pp. 449-453.) The Miranda decision, however,
suggested that the advisements required by the opinion in that case would serve as
a counterweight to the coercive pressure that may be exerted by the noted
interrogation tactics. (See id. at pp. 464-472; see also Rhode Island v. Innis (1980)
446 U.S. 291, 299-300.) As we have explained, defendant was advised of and
waived the rights set out in Miranda.
Defendant nonetheless urges that the officers coerced his statements when,
during the first interview, they threatened he would suffer the death penalty unless
he cooperated with them. “Of course, „[a] [c]onfession induced by the threats of
prosecution for a capital crime [has] been held inadmissible.‟ ” (People v. Avena
(1996) 13 Cal.4th 394, 420.) As defendant claims, and as demonstrated by the
italicized language, ante, at pages 34-36, there were several references to the death
penalty during the first interrogation.
Defendant also faults his interrogators for employing deceptive
interrogation practices, pointing to their comments during the first interrogation
that witnesses had observed defendant at the ATM where the victim withdrew
money and that fingerprint evidence tied him to the crime, and to their questions
assertedly suggesting they had special evidence connected with certain properties
of gasoline. Defendant cites a dissenting justice of the high court: “The
compulsion proscribed by Miranda includes deception by the police. [Citation to
Miranda] (indicting police tactics . . . such as using fictitious witnesses or false
accusations).” (Illinois v. Perkins (1990) 496 U.S. 292, 306 (dis. opn. of
Marshall, J.); People v. Thompson (1990) 50 Cal.3d 134, 167 [deception “is a
factor which weighs against a finding of voluntariness”].)
Reference to the death penalty does not necessarily render a statement
involuntary. “[A] confession will not be invalidated simply because the possibility
of a death sentence was discussed beforehand. [Citations.] We have found a
constitutional violation in this context only where officers threaten a vulnerable or
frightened suspect with the death penalty, promise leniency in exchange for the
suspect‟s cooperation, and extract incriminating information as a direct result of
such express or implied threats and promises.” (People v. Ray, supra, 13 Cal.4th
at p. 340; see also People v. Holloway (2004) 33 Cal.4th 96, 116.)
Similarly, the use of deceptive comments does not necessarily render a
statement involuntary. Deception does not undermine the voluntariness of a
defendant‟s statements to the authorities unless the deception is “ „ “of a type
reasonably likely to procure an untrue statement.” ‟ ” (People v. Jones (1998) 17
Cal.4th 279, 299; see also People v. Smith, supra, 40 Cal.4th at pp. 505-506.)
“ „The courts have prohibited only those psychological ploys which, under all the
circumstances, are so coercive that they tend to produce a statement that is both
involuntary and unreliable.‟ ” (People v. Jones, supra, 17 Cal.4th at pp. 297-298.)
In the present case, it is evident that neither the mention of the death
penalty nor the deception overcame defendant‟s will. He exhibited no sign of
distress in response to references to the death penalty, and remained able to parry
the officers‟ questions. (See People v. Jones, supra, 17 Cal.4th at p. 298 [finding
“no indication that defendant was frightened into making a statement that was both
involuntary and unreliable” by the detective‟s “persistent references to the dire
consequences he was facing”].) Defendant had experience with the criminal
justice system, having been convicted of rape and burglary and having served a
prison term in consequence. The deception practiced by the officers was not of a
sort likely to produce unreliable self-incrimination.
Significantly, moreover, defendant did not incriminate himself as a result of
the officers‟ remarks. (See People v. Johns (1983) 145 Cal.App.3d 281, 293
[although the defendant lied in response to a threat made at his first interrogation,
“[t]his is not the behavior of one whose free will has been overborne”].) Rather,
defendant continued to deny responsibility in the face of the officers‟ assertions.
(See People v. Carrington, supra, 47 Cal.4th at p. 172; People v. Smith, supra, 40
Cal.4th at p. 506; People v. Guerra, supra, 37 Cal.4th at p. 1096 [“The sole cause
appearing in the record for defendant‟s cooperation during the interview was his
desire to exculpate himself”]; People v. Coffman and Marlow (2004) 34 Cal.4th 1,
58 [“His resistance, far from reflecting a will overborne by official coercion,
suggests instead a still operative ability to calculate his self-interest in choosing
whether to disclose or withhold information”]; see also People v. Jablonski (2006)
37 Cal.4th 774, 815-816.)
We also observe that the suggestions made by the interrogating officers that
defendant may not have been the actual killer, or may not have intended that the
victim die, were not coercive. “[T]hey merely suggested possible explanations of
the events and offered defendant an opportunity to provide the details of the crime.
This tactic is permissible.” (People v. Carrington, supra, 47 Cal.4th at p. 171.)
And there is nothing improper in pointing out that a jury probably will be more
favorably impressed by a confession and a show of remorse than by demonstrably
false denials. “No constitutional principle forbids the suggestion by authorities
that it is worse for a defendant to lie in light of overwhelming incriminating
evidence.” (Id. at p. 174.) Absent improper threats or promises, law enforcement
officers are permitted to urge that it would be better to tell the truth. (Ibid.; People
v. Hill (1967) 66 Cal.2d 536, 549 [“When the benefit pointed out by the police to a
suspect is merely that which flows naturally from a truthful and honest course of
conduct, we can perceive nothing improper . . .”]; O‟Neill, Cal. Confessions Law,
supra, § 1.24, p. 3; see also Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486,
494 [finding no coercion in statements that “ „the . . . [c]ourt system will not
forgive your lies‟,” and an exhortation to the suspect to tell the truth if he wants to
receive “ „forgiveness‟ ”].)
We are not persuaded that the officers‟ vigorous interrogation, display of
confidence in defendant‟s guilt, or use of more sympathetic and less sympathetic
interrogators rendered involuntary any statement made by defendant. “ „Once a
suspect has been properly advised of his rights, he may be questioned freely so
long as the questioner does not threaten harm or falsely promise benefits.
Questioning may include exchanges of information, summaries of evidence,
outline of theories of events, confrontation with contradictory facts, even debate
between police and suspect. . . .‟ [Citation.]” (People v. Holloway, supra, 33
Cal.4th at p. 115.) Finally, as stated, it is evident that defendant‟s will was not
overborne by any of the circumstances discussed above in connection with the first
interrogation, because he continued to deny any involvement in the crime.
Moreover, contrary to defendant‟s claim, we do not perceive any delayed
effect from the tactics challenged by defendant. Rather, he continued to deny
responsibility in the second interview, which occurred two days after he made his
first statement. It was not until it became apparent that incriminating evidence
existed with respect to his vehicle and, significantly, that Detective Knebel seemed
to believe there were burn marks on defendant‟s hand and ankle, that defendant
initiated contact with the officers and began to make incriminating statements.
iii. Other claims
Defendant points to additional circumstances arising subsequent to his first
interrogation to support his challenge to the voluntariness of his incriminating
third and fourth statements. He claims that he was kept incommunicado until after
he admitted his participation in the murder, and that he endured the coercive
effects of prolonged custody, repeated interrogation, and delay in arraignment. He
claims his incriminating third and fourth statements were the product of these
We agree with respondent that the record is devoid of evidence suggesting
that defendant was kept incommunicado between March 25 and March 28, 1989.
Moreover, although prolonged interrogation may be coercive in some
circumstances (see Mincey v. Arizona (1978) 437 U.S. 385, 398-399), defendant
was not subjected to prolonged interrogation.2 The first interrogation lasted
Defendant relies upon portions of Detective Knebel‟s trial testimony in
support of the claim that he was kept incommunicado between his arrest on
March 25 and his statements on March 28, 1989. The cited testimony, however,
constitutes trial testimony that merely recounts the officer‟s contacts with
defendant and does not touch upon the question whether defendant was permitted
any other contacts during that time. At the evidentiary hearing that was conducted
to determine the admissibility of the statements, there was no suggestion that
(footnote continued on next page)
approximately half an hour. The second lasted approximately five minutes. The
third — initiated by defendant — lasted approximately 10 minutes. The fourth
lasted approximately half an hour.
We reached a similar conclusion in People v. Rundle, supra, 43 Cal.4th 76,
in explaining that the defendant had not been subjected to a single lengthy
interview, but instead underwent a series of interviews interrupted by significant
breaks. (Id. at p. 123; see also Jackson v. McKee (6th Cir. 2008) 525 F.3d 430,
434.) In addition, as in Rundle, there was no evidence suggesting that “authorities
exploited any „slowly mounting fatigue‟ resulting from prolonged questioning or
that such fatigue occurred or played any role in defendant‟s decision to confess.”
(People v. Rundle, supra, 43 Cal.4th at p. 123.)
Defendant also refers to the coercive effect of prolonged custody, pointing
to the period between his arrest on Saturday, March 25 and Tuesday, March 28,
1989. As defendant observes, he had not been arraigned at the time he gave his
third and fourth statements, when he began incriminating himself.
Persons in custody must be arraigned without unnecessary delay. (Cal.
Const., art. I, § 14; County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56-57
[probable cause determination ordinarily should occur within 48 hours of a
warrantless arrest]; see §§ 825 [arraignment ordinarily should occur within 48
hours, excluding Sundays and holidays], 859 [appearance before a magistrate
should occur without unreasonable delay after charge by written complaint];
People v. Hughes (2002) 27 Cal.4th 287, 325.)
(footnote continued from previous page)
defendant had been denied visits or other contacts with persons other than the
In the present case, however, the defense did not assert in the trial court that
defendant‟s statements were involuntary because of any delay in arraignment, and
this assertion is forfeited on appeal, because the omission deprived the prosecution
of the opportunity to justify any delay. (People v. Lewis (2008) 43 Cal.4th 415,
445.) In any event, on appeal defendant fails to demonstrate an “ „essential
connection between the illegal delay and the confession.‟ ” (People v. Thompson
(1980) 27 Cal.3d 303, 330.) Defendant himself initiated the incriminating
statement he made to Knebel on the second court day after his arrest. There is no
evidence indicating that his eventual willingness to make admissions was caused
by prolonged custody. Rather, as noted, it is quite apparent that his ultimate
decision to inculpate himself followed his realization that his vehicle bore
incriminating evidence of a collision and, even more significantly, that his hand
appeared to have suffered a burn. As the trial court commented, defendant crafted
accounts intended to address the incriminating evidence. (See People v.
Carrington, supra, 47 Cal.4th at pp. 170-171 [confession was prompted by
confrontation with incriminating evidence, not by an asserted reference to leniency
made an hour prior to the confession].) 3
Defendant suggests that although he did not react to law enforcement
tactics during the first interrogation, those tactics produced results in his
subsequent statements. Defendant claims the asserted tactic of minimizing his
responsibility became effective at a later time, because that tactic led him to state
Defendant cites Arizona v. Roberson (1988) 486 U.S. 675, 686, for the
proposition that the lapse of three days between an “unsatisfied request for counsel
and the [subsequent] interrogation” creates a presumption of coercion despite
subsequently renewed Miranda advisements. We have concluded, however, that
defendant did not communicate an unsatisfied request for counsel.
during the final interview that, although he had driven the victim‟s automobile and
helped set it on fire, he did not know that the victim was in the trunk. We have not
found the questioning to have been coercive. In any event, the officers‟
suggestion was that defendant participated in the homicide but did not intend to
kill the victim, whereas the response upon which defendant relies consisted of
continued denial of any knowledge of or responsibility for her death.
Defendant suggests that when Salgado asked him during the final interview
why he and Kelley used a firearm, “[t]his [apparent minimizing of responsibility]
led to [defendant‟s] final admission that the firearm was his, and that he and
Loretta [Kelley] had robbed the woman and put her in the trunk of her car.
[Citation.] By pushing defendant to first admit to the less serious crimes, they
were able to later pressure [defendant] into the full confession of robbery and
murder.” He also attempts to demonstrate that use of the “good cop bad cop”
routine produced his last two statements, asserting that because Salgado had acted
the role of the “good cop,” defendant began his final interview with the question
directed to Salgado: “You said you could help me; how can you help?” Defendant
continues: “Kept isolated, with only the police officers available to him,
[defendant] sought out „help‟ from the only person left, the „friendly‟ cop.”
This claim is flawed, because there was nothing improper in Salgado‟s
query concerning the firearm. Salgado merely responded to defendant‟s claim —
that defendant innocently accepted a ride with Kelley and left fingerprints on her
vehicle, then found it necessary to destroy the vehicle by fire because he believed
it was stolen — with the natural question of why, if this account was true,
defendant was armed. Nor is it inherently coercive for an interrogator to attempt
to form a rapport with the suspect. There is no evidence apart from defendant‟s
own testimony, which the trial court discredited, indicating that the officers
promised leniency or assistance in return for an incriminating statement by
In a supplemental reply brief, defendant contends that this court‟s decision
in People v. Neal, supra, 31 Cal.4th 63, supports his claim that his “decision to
initiate further dialogue with the police, and his resulting confession, were both
involuntary.” As we noted in connection with our analysis of defendant‟s
Miranda claim, the Neal decision is distinguishable. The defendant in that case
clearly invoked his right to counsel, but the police disregarded the invocation
pursuant to departmental policy, and the young, inexperienced defendant was
subjected to food deprivation and lengthy interrogation. (Neal, at p. 84.) We have
found no invocation of rights by defendant and no suggestion that the coercive
features attributed by defendant to the first interrogation caused him to incriminate
himself at a later point.
Defendant also asserts the third and fourth statements were the tainted
product of Miranda violations he claims occurred at the first and second
interrogations. We have rejected defendant‟s Miranda claim, but even if it had
merit, we would observe that defendant initiated the third interview (see Edwards
v. Arizona, supra, 451 U.S. at p. 484) and was informed of and waived his rights
prior to the third and fourth interviews. Even when a first statement is taken in the
absence of proper advisements and is incriminating, so long as the first statement
was voluntary a subsequent voluntary confession ordinarily is not tainted simply
because it was procured after a Miranda violation. Absent “any actual coercion or
other circumstances calculated to undermine the suspect‟s ability to exercise his
free will,” a Miranda violation — even one resulting in the defendant‟s letting
“the cat out of the bag” — does not “so taint the investigatory process that a
subsequent voluntary and informed waiver is ineffective for some indeterminate
time period.” (Oregon v. Elstad (1985) 470 U.S. 298, 309, 311; see also People v.
Storm (2002) 28 Cal.4th 1007, 1033.) Rather “there is no warrant for presuming
coercive effect where the suspect‟s initial inculpatory statement, though
technically in violation of Miranda, was voluntary. The relevant inquiry is
whether, in fact, the second statement was also voluntarily made.” (Oregon v.
Elstad, supra, 470 U.S. at p. 318, fn. omitted; see also People v. San Nicolas
(2004) 34 Cal.4th 614, 639 [“ „A subsequent administration of Miranda warnings
to a suspect who has given a voluntary but unwarned statement ordinarily should
suffice to remove the conditions that precluded admission of the earlier
statement‟ ”].) This is not a case in which it is alleged that the officers were
following a policy of disregarding the teaching of Miranda. (See People v. Neal,
supra, 31 Cal.4th at pp. 81-82; see also Missouri v. Seibert (2004) 542 U.S. 600,
609, 615 (plur. opn. of Souter, J.); id., at pp. 617-618 (conc. opn. by Breyer, J.);
id., at pp. 618-622 (conc. in judgment of Kennedy, J.).) As we have concluded,
the first statement was voluntary, and defendant‟s challenges to the voluntariness
of the third and fourth statements cannot be sustained.
Finally, defendant contends the trial court erred in failing to make factual
findings and to consider the totality of the circumstances with respect to its
determination of voluntariness. We are not persuaded. The trial court placed
upon the record the circumstance that its ruling was based upon its consideration
of tape-recorded interrogations and the testimony of the witnesses, and referred to
a number of salient facts. The court was not required to make any particular
factual findings, and certainly cannot be faulted for failing to make findings
addressing the claims raised by defendant for the first time on appeal. As noted, at
trial defense counsel did not rely upon any evidence other than defendant‟s claim
he had been promised a maximum 18-year prison sentence in return for parroting
incriminating evidence supplied to him by the police.
Considering the totality of the circumstances, we conclude that defendant‟s
ultimate decision to admit his culpability was voluntary.
2. Admissibility of Testimony of Margaret Williams
Defendant contends that the trial court erred in permitting Margaret
Williams to testify for the prosecution at trial. According to defendant, the
asserted coercion by the officers at her interrogation on March 25, 1989, rendered
her statement involuntary. Defendant claims the coercive interview in turn
infected her trial testimony more than three years later, in violation of defendant‟s
right to a fair trial as guaranteed by the due process clause of the United States
a. Factual background
Prior to the preliminary hearing, the magistrate concluded that Margaret
Williams, who was arrested on March 25, 1989, was subjected to a coercive
interrogation by Detectives Salgado and Knebel, but that she nonetheless would be
permitted to testify at the hearing. The trial court reached the same conclusion
with respect to her trial testimony.
The claimed coercion occurred under the following circumstances. At her
March 25, 1989 interview, Williams waived her rights to counsel and to remain
silent. She denied any knowledge relevant to the crimes. The police interrogators
repeatedly accused her of lying. They asked whether she was afraid, and when she
denied any fear, they asked: “So you‟re not afraid to go to jail?” When she
responded in the negative, Salgado asked: “Well what about the kids?” After
further interrogation, Knebel commented: “OK, let me tell you the bottom line,
you are in a lot of trouble.” Salgado confirmed this was so. When Williams
asked: “For what?” Knebel stated twice that she would be booked for first degree
murder. He refused her request to telephone her mother, telling her she would be
permitted to make the call after she spoke to the interrogating officers. Williams
began to weep, referred to her children, and asserted she knew nothing concerning
the murder. Salgado informed her he did not believe she had killed anyone, but
that the law would treat her the same way as the actual perpetrator if “you know
something that you‟re not telling us.” The officers repeated that she was “in a lot
of trouble” and that “Jesus said the truth will set you free.” Knebel added that he
did not believe she committed the crime but that he believed she knew who did
and was “a witness to what happened.” They cautioned her not to go to jail in
place of the actual perpetrators. After further interrogation in which Williams
denied relevant knowledge, Knebel stated: “Alright. You are going to be in jail.
There is no bail.” After additional denials on the part of Williams, Knebel stated
that Williams was “going to be up in jail for the . . . next whatever . . . cause I‟ve
got to go file murder one on you . . . Monday.” Knebel commented that she would
be in jail until she did “what Jesus said was right.” Williams exclaimed that she
did not want to be in jail for murder. Salgado directed her to relax and urged her
to tell the truth, adding, “We don‟t want you, we want the person that did this.
You know that. So just tell us the truth.”
Williams asked what the officers wanted her to tell them, “[c]ause I want to
go home.” When she supplied a partial statement concerning defendant‟s
movements and statements on the night of the crimes, Salgado stated: “It‟s OK,
this is what we want . . . the truth, ok. Sweetheart now listen to me. Listen to me
carefully. You‟re not in any trouble, OK. OK, you‟re not in any trouble — all we
want is the truth.” Williams responded with a more complete account of
defendant‟s movements and statements.
A second custodial interview was conducted on March 28, 1989, but was
not tape-recorded. According to the report on this interview prepared by Knebel,
after the officers reminded Williams of her rights, she acknowledged she wished
to speak with them. Knebel reported that in the second interview, “she said
basically the same thing,” but with more detail. She gave a full statement that was
consistent with her preliminary hearing and trial testimony.
Prior to the preliminary hearing, the defense argued that Margaret
Williams‟s testimony should be excluded because it was tainted by coercive police
interrogation. The defense relied upon the circumstances that the officers had
threatened Williams repeatedly with prosecution for murder even though they
were aware she had not been involved in the crimes, that they warned her she
would remain in custody and would be unable to see her children until she “told
the truth,” and that they played upon her religious beliefs.
The magistrate appointed counsel for Williams, and required the People to
commit to writing their informal grant to her of transactional immunity. Her
independent counsel represented to the magistrate that she intended to testify,
understood the immunity agreement, and was testifying “voluntarily and without
The magistrate also admitted the transcript of an interview that the
prosecutor conducted with Williams on December 4, 1989, in preparation for the
preliminary hearing. The transcript contained the prosecutor‟s assertion that “no
one is threatening Margaret to be here and no one has made any promises to her.
She is here because she is subpoenaed and I have asked her to come to cooperate
because of the seriousness of the charges.” Williams confirmed that the
prosecutor‟s statement was correct, and in the presence of her mother and Knebel
she recounted the substance of her knowledge regarding the crimes.
Williams testified at the hearing conducted prior to defendant‟s preliminary
hearing that, although she did not wish to become involved in the case, she was
not threatened at all, and specifically was not threatened with arrest for murder
during the interview with the prosecutor and Knebel, did not believe she was
going to be arrested or otherwise prevented from returning home after giving her
statement, and voluntarily answered the prosecutor‟s questions. She added that no
one told her what to say during the interview. She explained that she understood
she would be jailed if she failed to honor the subpoena, that her attorney had
explained her rights regarding testifying and that, after conferring with her
attorney, she informed the prosecutor she was willing to testify in the case.
Under examination by defense counsel, Williams added that on March 25,
1989, she had been frightened by the threat made by Salgado and Knebel that she
would be kept in custody and prosecuted for murder and that, if she had a choice,
she would prefer not to testify. She believed that law enforcement officers “have
power on the streets,” and added that she lived on the streets. She testified that she
was still “in some way” afraid of the officers and did not believe she would be
“left alone” by them if she cooperated, but felt that if she did not cooperate, the
officers would “bother” her.
The magistrate agreed with the defense that Williams had been subjected to
improper coercion on March 25, 1989, but concluded the effect of this coercion
had become attenuated. In explanation, the magistrate referred to Williams‟s
status as a third-party witness who was subject to cross-examination by the
defense. The court also relied upon the time that had elapsed between the
interrogation and the preliminary examination, and the magistrate‟s observation of
her testimony concerning her willingness to testify. The court added that,
although the witness would not have appeared in court voluntarily, this was true of
the great majority of witnesses, and that Williams had obeyed the subpoena
despite her reluctance.
When the defense objected that the immunity agreement did not exempt the
witness from arrest for perjury, leaving the witness with the impression that she
would be required to testify consistently with her statements to the officers in
order to avoid prosecution for perjury, the court found that the witness “is in no
way subject to prosecution for these charges; that from reading everything . . . the
police never had any case against her whatsoever; and after hearing her statements
and knowing the facts of this prelim., there is no case against her; and that she is
subject to the same conditions as anyone who testifies . . . .” Williams testified at
the preliminary hearing consistently with her statements to the law enforcement
At trial, the People, anticipating a defense challenge to the admissibility of
Williams‟s testimony, sought a ruling on this issue pursuant to Evidence Code
section 402. The defense subsequently made an oral motion to exclude her
testimony, contending that the effect of the police coercion was not attenuated.
The trial court commented that the interrogation “looked more like a game of wits
between someone who knew what they were doing [and] a couple of detectives
that knew what she was doing, and didn‟t use the best of tactics.” The court,
critical of the detectives‟ use of Williams‟s concern for her children and her
religious beliefs, agreed with the magistrate that Williams had been subjected to
coercive interrogation, but also agreed that any taint already had been dispelled by
the time of the preliminary examination — long before the trial. The court relied
upon the lapse of time, as well as the circumstances that the witness had been
released from custody days after the police interrogation and that the magistrate
had appointed counsel for her. The trial court also referred to the magistrate‟s
evident belief, based upon observations of the witness while testifying, that she
was testifying freely and voluntarily and that she did not “feel under the coercion
of the police or anybody else.”
As noted, on appeal defendant claims that the taint of the initial police
coercion infected Williams‟s trial testimony, in violation of defendant‟s right to a
fair trial as guaranteed by the due process clause of the United States Constitution.
We are not persuaded.
Defendants have limited standing to challenge the trial testimony of a
witness on the ground that an earlier out-of-court statement made by the witness
was the product of police coercion. Indeed, defendants generally lack standing to
complain that a police interrogation violated a third-party witness‟s Fifth
Amendment privilege against self-incrimination or Sixth Amendment right to
counsel, nor may a defendant complain that law enforcement officers violated a
third-party witness‟s Fourth Amendment rights. (People v. Badgett (1995) 10
Cal.4th 330, 343.) A defendant may assert a violation of his or her own right to
due process of the law and a fair trial based upon third-party witness coercion,
however, if the defendant can establish that trial evidence was coerced or rendered
unreliable by prior coercion and that the admission of this evidence would deprive
the defendant of a fair trial. (People v. Jenkins (2000) 22 Cal.4th 900, 966, 969;
People v. Badgett, supra, 10 Cal.4th at pp. 347, 348.) Although the out-of-court
statement itself may be subject to exclusion because coercion rendered it
unreliable, it is more difficult for a defendant to establish that the court should
exclude the witness‟s trial testimony. As we have explained, “[t]estimony of third
parties that is offered at trial should not be subject to exclusion unless the
defendant demonstrates that improper coercion has impaired the reliability of the
testimony.” (People v. Badgett, supra, 10 Cal.4th at p. 348.) The burden rests
upon the defendant to demonstrate how the earlier coercion “directly impaired the
free and voluntary nature of the anticipated testimony in the trial itself” (People v.
Boyer (2006) 38 Cal.4th 412, 444) and impaired the reliability of the trial
testimony. (People v. Badgett, supra, 10 Cal.4th at p. 348.)4
Our decision in People v. Douglas (1990) 50 Cal.3d 468 (disapproved on
other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4) is
instructive. In that case we considered the testimony of a third-party witness who
had been beaten by Mexican police officers during interrogation. The
interrogating officers informed him he would face “worse treatment” that evening.
When armed officers reappeared in the evening and announced they were taking
him to the beach, he feared for his life and confessed. The resulting confession
was not admitted in evidence at trial, but the witness testified for the prosecution.
We concluded that the defendant failed to establish that the witness‟s trial
testimony was coerced. Various circumstances were relevant to our decision. The
witness no longer was in the custody of the Mexican police and was not mistreated
by California police officers; he testified under a grant of immunity after
consultation with independent counsel; the immunity agreement required only that
the witness testify truthfully concerning the charged murders — there was no
requirement that he testify consistently with his prior statement; and the witness
claimed he was testifying voluntarily and not under compulsion of the statements
he made in Mexico. In support of the view that the coercion did not deprive the
We need not examine the outer limits of the rule limiting standing to assert
coercion of a third-party witness when the coercion “test[s] the integrity of the
judicial system,” because such extreme circumstances as “ „ “torture or . . . other
conduct belonging only in a police state” ‟ ” are not present in this case. (People
v. Jenkins, supra, 22 Cal.4th at p. 968; see People v. Badgett, supra, 10 Cal.4th at
defendant of a fundamentally fair trial, we also pointed to the ability of the defense
to cross-examine and impeach the witness. (People v. Douglas, at p. 502.)
Defendant, like the defendant in People v. Douglas, supra, 50 Cal.3d 468,
fails to demonstrate that Margaret Williams‟s trial testimony was improperly
coerced or that any coercion arising from the earlier police interrogation of the
witness impaired the reliability of her trial testimony. The statement found to be
the product of coercion was not admitted at trial. Moreover, at trial the defense
did not make an offer of proof or present any evidence on the issue of ongoing
coercion of Margaret Williams between the time of the preliminary hearing, which
was conducted in December 1989, and the trial, which was conducted two and a
half years later, in August 1992. Rather, defense counsel merely relied upon the
record established at the time of the preliminary hearing.
We agree with the court below that the coercive effect of the interrogation
was dissipated in part by the length of time that elapsed between the interrogation
and the witness‟s testimony — nine months in the instance of the preliminary
hearing and more than three years in the instance of the trial. We also agree that
because the witness had been released from custody soon after the interrogation
(long before she testified at the preliminary hearing and the trial), remained free
from custody during trial, and no longer was separated from her children, no
significant coercive impact would remain from the officers‟ threat a few days
subsequent to the crime that she would be kept in custody and separated from her
children until she made a truthful statement. In addition, it is not reasonable to
conclude that the officers‟ threats during interrogation that she would be
prosecuted for murder would have affected her trial testimony, because she
testified at trial under a grant of immunity conditioned simply upon an agreement
she would testify truthfully, having been counseled on the meaning of the
immunity agreement by independent counsel. (See People v. Douglas, supra, 50
Cal.3d at p. 502.) Contrary to defendant‟s claim, the circumstance that immunity
was conditioned on Williams‟s truthful testimony did not serve to coerce her into
offering trial testimony identical to the statement she gave to the officers. (Id. at
p. 502, fn. 7.) If consistency in a witness‟s account were to establish continuing
coercion, prior coercion would render trial testimony inadmissible in almost all
cases, without regard to the reliability of the testimony. Such is not the law, as we
have explained above.
Defendant asserts that the mere passage of time does not cause a coerced
witness‟s testimony to become reliable. Rather, he argues, at the time of trial
Williams remained motivated by her fear of the law enforcement officers, fear that
she would be separated from her children, and fear that she would be charged with
murder. Accordingly, defendant maintains, she felt bound to repeat the same
account she gave to the officers during interrogation. In support of his claim of
continuing coercion, defendant relies upon Williams‟s testimony, at the time of the
preliminary hearing and the trial, that she would have preferred to ignore the
subpoena and avoid involvement in the capital trial, and that she mistrusted the
authorities and harbored a general uneasiness that she would suffer police
harassment in the event she failed to testify in accordance with her earlier
As we have pointed out, however, Williams had received immunity from
prosecution, and this immunity was not conditioned upon the consistency of her
trial testimony with her first statement. Moreover, she had independent counsel
who could alleviate unreasonable fears and who, in fact, testified that Williams‟s
preliminary hearing testimony was voluntarily given. Finally, we observe that the
defense elected not to cross-examine Williams at trial, thereby voluntarily
relinquishing the most powerful means in its arsenal for challenging the reliability
of the witness‟s statements.
We also reject defendant‟s reliance upon the passing comment made by the
magistrate at the preliminary hearing that Williams‟s testimony at that hearing
“could very well have been the product of the „original coercion‟ by the police.”
The magistrate ultimately concluded that her testimony was not tainted by the
earlier coercion, a conclusion supported by substantial evidence. Moreover, the
doctrines governing the exclusion of the “fruit” or product of a defendant’s
involuntary confession do not apply when the claim is that a third-party witness‟s
statement was coerced. (People v. Jenkins, supra, 22 Cal.4th at p. 966; People v.
Badgett, supra, 10 Cal.4th at p. 346.) Rather, as we have explained, “the
defendant may prevail only by demonstrating fundamental unfairness at trial,
normally by establishing that evidence to be produced at trial was made unreliable
by coercion.” (People v. Jenkins, supra, 22 Cal.4th at p. 966.) Defendant has not
made such a demonstration.
3. Accomplice Instructions
Defendant contends there was evidence from which the jury could have
concluded that Margaret Williams was an accomplice, requiring the trial court to
deliver instructions cautioning the jury with respect to their reliance upon
accomplice testimony. (See CALJIC Nos. 3.10, 3.11, 3.12, 3.18.)
An accomplice is “one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.” (§ 1111.)
“The general rule is that the testimony of all witnesses is to be judged by
the same legal standard. In the case of testimony by one who might be an
accomplice, however, the law provides two safeguards. The jury is instructed to
view with caution testimony of an accomplice that tends to incriminate the
defendant. It is also told that it cannot convict a defendant on the testimony of an
accomplice alone.” (People v. Howard (2008) 42 Cal.4th 1000, 1021-1022, italics
omitted; see § 1111 [accomplice testimony must be corroborated by “other
evidence as shall tend to connect the defendant with the commission of the
Error in failing to instruct the jury on consideration of accomplice
testimony at the guilt phase of a trial constitutes state-law error, and a reviewing
court must evaluate whether it is reasonably probable that such error affected the
verdict. (People v. Wisenhurst (2008) 44 Cal.4th 174, 214.)
Any error in failing to instruct the jury that it could not convict defendant
on the testimony of an accomplice alone is harmless if there is evidence
corroborating the accomplice‟s testimony. “ „Corroborating evidence may be
slight, may be entirely circumstantial, and need not be sufficient to establish every
element of the charged offense.‟ ” (People v. Williams (2008) 43 Cal.4th 584,
As defendant points out, there was evidence before the jury that a
confidential informant informed the police that Margaret Williams had stated she
had been paid to purchase gasoline for the purpose of burning a vehicle and to
serve as a lookout while the vehicle was being burned. He contends the evidence
suggested she was liable for prosecution for murder as an aider and abettor.
Whether or not the evidence implicated Margaret Williams as an aider and
abettor to the extent that the court should have delivered accomplice instructions,
it is not reasonably probable the result at defendant‟s trial would have been
different absent such error. The jury would have been inclined to view her
testimony with caution even in the absence of an instruction that it do so, because
the jury was aware from Detective Knebel‟s testimony that Williams had been
arrested in connection with the murder investigation after the authorities learned
from an informant that Williams had an outstanding arrest warrant for assault; that
Williams had been contacted by defendant and Loretta Kelley immediately after
the crimes and had driven them to their destinations after their criminal activity;
and that Williams had testified — reluctantly — under a grant of immunity.
Moreover, Williams‟s testimony was corroborated by defendant‟s own statements,
along with inferences that could be drawn from evidence suggesting he had
suffered a burn on his hand about the time the crime was committed, that he, like
the driver described by Carrie Runnels, sported shoulder-length black hair at the
time of the crime, that the bullet found near the scene was consistent with a bullet
found at his residence, and that a bracelet consistent with his description of the
robbery proceeds was discovered in a storm drain in which he claimed to have
disposed of it. Accordingly, any error was harmless.
4. Instruction Pursuant to Former CALJIC No. 2.11.5.
Defendant contends that the trial court erred in delivering former CALJIC
No. 2.11.5 without amendment. The pattern instruction as given at trial read as
follows: “There has been evidence in this case indicating that a person other than
defendant was or may have been involved in the crime for which the defendant is
on trial. [¶] There may be many reasons why such person is not here on trial.
Therefore, do not discuss or give any consideration as to why the other person is
not being prosecuted in this trial or whether he or she has been or will be
prosecuted. Your sole duty is to decide whether the People have proved the guilt
of the defendant on trial.”
Defendant observes that this instruction should not be used if the “other
person” is a witness who testified at trial, because the jury is “ „entitled to consider
the lack of prosecution in assessing the witness‟s credibility.‟ ” (People v.
Williams, supra, 16 Cal.4th at p. 226.) Defendant complains that in delivering this
instruction, the trial court failed to distinguish between two persons to whom the
jury could have believed the instruction pertained — Margaret Williams and
Loretta Kelley. He argues that the jury may have concluded — incorrectly — that
the instruction referred to Margaret Williams, and thereby avoided considering a
factor relevant to her credibility as a witness.
At trial, defense counsel did not seek modification of the instruction. (See
People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [“ „Generally, a party may
not complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language‟ ”]; but see People v. Prieto (2003) 30 Cal.4th
226, 247 [instructional error that affects the defendant‟s substantial rights may be
reviewed on appeal despite the absence of an objection].) Indeed, defense counsel
stipulated that the court and counsel had reviewed the instructions proposed by the
court and that the instructions had been agreed to by all counsel. (See People v.
Davis (2005) 36 Cal.4th 510, 567 [discussing invited instructional error].)
In any event, in People v. Crew (2003) 31 Cal.4th 822, also a case in which
accomplice instructions were not given, we rejected an identical claim. In that
case a witness may have been a participant in the charged crime and was granted
immunity from prosecution. The court nonetheless instructed in the terms of
CALJIC No. 2.11.5. We concluded that “the giving of CALJIC No. 2.11.5 is not
error when it is given together with other instructions that assist the jury in
assessing the credibility of witnesses. [Citation.] That occurred here, where the
trial court instructed the jury it could consider any evidence of witness credibility,
including the existence or nonexistence of a bias, interest, or other motive
(CALJIC No. 2.20), and to consider the instructions as a whole (CALJIC No.
1.01). [Citation.] In addition, in closing argument to the jury, defense counsel
expressly mentioned [the witness‟s] grant of immunity as a ground for impugning
[the witness‟s] testimony.” (People v. Crew, supra, 31 Cal.4th at p. 845.) The
court in the present case delivered the same general instructions on evaluating
witness credibility that were delivered in People v. Crew, supra, 31 Cal.4th 822,
and in his closing statement defense counsel argued that Margaret Williams‟s
credibility should be evaluated in light of the immunity from prosecution that had
been afforded to her.
B. Penalty Phase
1. Prior Felony Conviction Instruction
Defendant contends that the trial court erred in failing to instruct the jury
that it could consider his prior felony convictions as a circumstance in aggravation
under section 190.3, factor (c), only if it was satisfied beyond a reasonable doubt
that he had suffered those convictions. In the present case, the court instructed the
jury on a lesser standard of proof with respect to prior felony convictions, namely
the preponderance-of-the-evidence standard. Defendant contends that this
omission violated his right to a fair and reliable penalty phase determination under
applicable state law, assertedly in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.5
The opinions of this court include inconsistent statements concerning the
standard of proof applicable to evidence of prior convictions admitted under
section 190.3, factor (c). Some refer to the beyond-a-reasonable-doubt standard
(see People v. Harris, supra, 37 Cal.4th 310, 360; see also People v. Martinez
(2009) 47 Cal.4th 339, 455; People v. Cruz, supra, 44 Cal.4th at p. 681; People v.
Millwee (1998) 18 Cal.4th 96, 161, fn. 30; People v. Robertson (1982) 33 Cal.3d
Although respondent takes inconsistent positions on the issue of forfeiture
of this claim, when the instruction is applicable it should be delivered on the
court‟s own motion. (People v. Harris, supra, 37 Cal.4th at p. 360.)
21, 53-56, fn. 19; and see Use Note to CALJIC No. 8.86 (Spring 2010 ed.) p. 505
& Bench Notes to CALCRIM No. 765 (2009-2010) p. 567, citing People v.
Davenport (1985) 41 Cal.3d 247, 280-281), whereas some decisions indicate that
the beyond-a-reasonable-doubt instruction is not required when proof of the fact of
conviction, rather than evidence of underlying criminal activity admissible
pursuant to section 190.3, factor (b), is involved. (See People v. Kennedy (2005)
36 Cal.4th 595, 637; People v. Pinholster, supra, 1 Cal.4th 865, 965; People v.
Wright, supra, 52 Cal.3d 367, 437; People v. Morales, supra, 48 Cal.3d 527, 566;
People v. Gates, supra, 43 Cal.3d 1168, 1202.)
Upon reflection, we have concluded that as a matter of state law, juries
should be instructed upon the beyond-a-reasonable-doubt standard as to section
190.3, factor (c) evidence. The applicability of this standard is well settled with
respect to evidence of prior violent criminal activity admitted pursuant to section
190.3, factor (b), and in our view juries may find it difficult to understand the
technical distinction between the two types of evidence of prior criminality and to
apply differing standards to them. To the extent a contrary conclusion is
suggested by language in prior decisions, those decisions are disapproved. (See,
e.g., People v. Kennedy, supra, 36 Cal.4th 595, 637; People v. Pinholster, supra, 1
Cal.4th 865, 965; People v. Wright, supra, 52 Cal.3d 367, 437; People v. Morales,
supra, 48 Cal.3d 527, 566; People v. Gates, supra, 43 Cal.3d 1168, 1202.)
Although we agree with defendant that the jury should have been instructed
to apply the higher standard, we agree with respondent that the error was
harmless. The error claimed by defendant constitutes a violation of state law, not
federal constitutional law. (People v. Avena, supra, 13 Cal.4th 394, 429; see
People v. Robertson, supra, 33 Cal.3d at p. 53.) In reviewing this type of error
occurring at the penalty phase of a trial, we consider whether it is reasonably
possible that the omission affected the verdict. (People v. Kennedy, supra, 36
Cal.4th at p. 636.)
Defendant contends he was prejudiced because the jury may have relied
upon the 1983 and 1981 convictions in reaching the verdict of death even though it
was not persuaded beyond a reasonable doubt that he suffered those convictions.
It is inconceivable, however, that the jury would have had the remotest
doubt that defendant suffered the 1983 rape and burglary convictions. The
evidence demonstrating the fact of the convictions was uncontradicted. Defendant
did not challenge the validity of the prior convictions at trial. Indeed, outside the
presence of the jury he stipulated that he had suffered the 1983 convictions, for the
purpose of the prior-prison-term and prior-serious-felony enhancement allegations.
(See §§ 667, subd. (a), 667.5.) A certified copy of the record of the 1983
convictions was admitted into evidence (with defense counsel‟s concurrence),
thereby establishing the truth of the prior conviction allegation. (See People v.
Prieto, supra, 30 Cal.4th at pp. 258-259.) Defendant‟s recorded statements to
Officers Knebel and Salgado discussing the prior prison term for rape and burglary
were admitted into evidence at the penalty phase. Defendant‟s wife testified for
the defense that defendant had produced prize-winning art during his incarceration
in the 1980‟s, and under cross-examination she acknowledged her awareness that
he had been in prison for rape and burglary at that time.
With this level of proof, and the complete absence of any controversy in the
trial court related to this matter, the asserted instructional error concerning the
1983 convictions could not have affected the penalty phase verdict. (See People v.
Harris, supra, 37 Cal.4th at p. 360 [relying upon the defendant‟s statement
concerning the conviction, and the stipulated admission of documentary
evidence].) In addition, the substance of the criminal conduct and the evidence
concerning defendant‟s plea of guilty came before the jury by means of live
testimony, creating a far more formidable aggravating impact under section 190.3,
factor (b) (evidence of prior violent criminal activity), than the mere record of
conviction. Defendant does not contend that the factor (b) evidence was admitted
erroneously, and the court correctly instructed the jury that such evidence could
not be considered unless the jury found beyond a reasonable doubt that the activity
With respect to the evidence of a prior conviction in 1981 for attempted
burglary, it is similarly inconceivable that the jury could have entertained any
doubt concerning whether defendant suffered the conviction. In the presence of
the jury, the prosecutor offered documentary evidence establishing that in 1981
defendant had been convicted of a felony, namely the crime of attempted
residential burglary, and had been sentenced to the former California Youth
Authority (CYA). When the court inquired whether defense counsel had any
objection to this evidence, he responded in the negative. During cross-
examination, defendant‟s wife acknowledged that defendant had been committed
to CYA. No defense evidence disputing the prior conviction was offered.
The documentary evidence consisted of three items. The first was a
certified copy of a Los Angeles County Superior Court docket sheet captioned
“The People of the State of California vs. David Earl Williams,” noting the date
the complaint was filed and that the charge was one count of violating section 459
(burglary) committed on November 30, 1980; that the accused “PG” —
undoubtedly, pleaded guilty — to an attempted burglary; that the matter was set
for “P & S” — presumably, probation report and sentencing; that at the “P & S”
hearing, he was denied probation and was committed to CYA for a three-year
term, with credit for time served.
The second item of proof was a copy of an information bearing the same
caption (evidencing prosecution as an adult) and docket number, charging a
felony, namely nighttime entry into an occupied residence with the intent to
commit larceny — the offense having been committed on the same date as the
crime charged in the docket sheet.
The third item of evidence was a letter from a CYA file supervisor, bearing
the same docket number and stating that on a date three days after the sentencing
date noted in the docket sheet, David Earl Williams “was committed to the Youth
Authority by the Superior Court of Los Angeles County for attempted burglary*
and was discharged from the Youth Authority on July 14, 1983,” but that the
“regular material” was not available because the “subject” had been discharged
and office policy was that case files for “discharged wards” were discarded after
seven years. Below the text an asterisk appears with the notation “2nd.”6
Defendant claims the docket sheet and other items of proof may not have
referred to him, but to another person bearing the same name, but this speculative
claim does not alter our conclusion. The prosecutor offered the documents into
evidence for the purpose of establishing defendant’s 1981 felony conviction, and
the application of the documents to defendant was undisputed. Defendant‟s full
name was listed on each document, his residence was listed as Pasadena, and
defendant‟s wife acknowledged he had been committed to CYA before he reached
21 years of age.
If the notation refers to second degree burglary, the crime is a “wobbler” —
a crime that may be punished as a misdemeanor or a felony. The conviction
constitutes a felony unless and until the crime is reduced by the court to a
misdemeanor. (People v. Banks (1959) 53 Cal.2d 370, 381-382; see People v.
Feyrer (2010) 48 Cal.4th 426, 438-439, and cases cited.) There is no indication
the matter was reduced to a misdemeanor; defendant certainly did not claim as
much at trial.
We note, in addition, that the evidence of the 1981 conviction was of minor
importance compared with the properly admitted evidence in aggravation,
including the facts of the charged crime and the testimony concerning defendant‟s
brutal 1983 offenses. Even when evidence improperly has been admitted under
section 190.3, factor (c) — an error that did not occur in the present case — the
error may be harmless when the evidence is trivial in comparison with the other
properly admitted evidence in aggravation. (See People v. Burton (1989) 48
Cal.3d 843, 863-864.)
Defendant suggests that because the letter from the CYA file supervisor
referred to the discharge of “wards,” the evidence “raised the possibility that, if
there had been such a conviction, it may have involved a juvenile matter.” As he
asserts, juvenile adjudications generally are not admissible under section 190.3,
factor (c). (People v. Lewis, supra, 43 Cal.4th at p. 530.) Although the People
correctly have argued that the issue was forfeited because it was not raised below
(see People v. Hawthorne (2009) 46 Cal.4th 67, 92), they nonetheless
inappropriately have conceded that it “appears admission of [defendant‟s] 1981
conviction or adjudication for attempted residential burglary was error.” In his
reply brief, defendant seizes upon this concession and argues that as a federal
constitutional matter, the admission of such nonstatutory evidence in aggravation
requires automatic reversal of the penalty verdict. On the contrary, we have
reviewed such claims for harmless error (People v. Lewis, supra, 43 Cal.4th at
p. 531), and in any event, the caption and other information on the docket sheet
and the copy of the information overwhelmingly demonstrate that defendant was
charged and convicted of attempted burglary as an adult. It is evident he was
committed to CYA under the authority of former section 1731.5 of the Welfare
and Institutions Code (Stats. 1981, ch. 476, § 1, p. 1816), which permitted the
court to commit persons who were tried and convicted as adults, but were less than
21 years of age at the time of apprehension, to CYA as youthful offenders. (See
People v. King (1993) 5 Cal.4th 59, 64-65.) Even if he was a minor when he
committed the offense, but was tried and convicted as an adult and sentenced to
CYA as a youthful offender, the conviction would be admissible at the penalty
phase under section 190.3, factor (c). (See People v. Pride (1992) 3 Cal.4th 195,
256-257.) The evidence did not constitute nonstatutory evidence in aggravation.
Defendant insists that the asserted instructional omission reflects federal
constitutional error requiring automatic reversal. We consistently have held,
however, that the court‟s limited obligation to instruct the jury at the penalty phase
on the beyond-a-reasonable-doubt standard is a matter of state law, and is not
imposed by the federal Constitution. (People v. Avena, supra, 13 Cal.4th at
pp. 429-432; People v. Pinholster, supra, 1 Cal.4th at p. 965, fn. 1; People v.
Benson, supra, 52 Cal.3d at pp. 810-811.) Arguments substantially identical to
defendant‟s have been rejected (People v. Avena, supra, 13 Cal.4th at pp. 429-
432), and defendant offers no persuasive basis for reconsideration. Circumstances
that render a defendant eligible for the death penalty are decided by a jury
applying the proof-beyond-a-reasonable-doubt standard, but the penalty
determination fundamentally is normative, rendering the standard required by the
federal Constitution inapplicable. (People v. Griffin (2004) 33 Cal.4th 536, 595;
People v. Rodriguez (1986) 42 Cal.3d 730, 777-779; see also People v. Prieto,
supra, 30 Cal.4th at p. 263, and cases cited.)
Defendant claims that the effect of the asserted instructional error was that
there never was a valid jury determination that he suffered any of the three
convictions, claiming that the reasoning of the high court‟s decision in Sullivan v.
Louisiana (1993) 508 U.S. 275 leads to the conclusion that the error is reversible
per se. That decision, however, applied an automatic-reversal rule to a
constitutionally deficient reasonable-doubt instruction on the issue of guilt. The
decision does not purport to govern sentencing decisions such as those that occur
at the penalty phase of a capital trial under California law. As discussed above, at
the penalty phase of such a trial in California the defendant does not possess a
federal constitutional right to have the jury base its findings on the sentencing
factors upon the beyond-a-reasonable-doubt standard. 7
Defendant asserts that the authority of this court to apply a harmless-error
standard was eroded by Apprendi v. New Jersey (2000) 530 U.S. 466. We note
that this decision excluded prior convictions from its requirement that facts
increasing the penalty beyond the statutory maximum must be proven to the jury
under a beyond-a-reasonable-doubt standard. (Id. at p. 490.) In any event, the
Apprendi decision does not apply to factors considered by the jury under section
190.3. (People v. Griffin, supra, 33 Cal.4th at p. 595; People v. Prieto, supra, 30
Cal.4th at pp. 262-263.) The high court‟s decision in Ring v. Arizona (2002) 536
U.S. 584 also is distinguishable, because that decision concerned factors that
rendered the defendant eligible for the death penalty. “The argument rests on a
misconception concerning the nature of California‟s capital sentencing scheme.
„[T]he ultimate determination of the appropriateness of the penalty and the
To the extent defendant claims the admission of evidence of his prior
convictions was improper — because it consisted of bad-character evidence that
was inadmissible in the prosecution‟s case-in-chief under section 190.3, factor (k),
as interpreted in People v. Boyd (1985) 38 Cal.3d 762,774-776 — his argument
lacks merit. We have observed: “ „The fact that evidence of defendant‟s previous
violent crimes was also indicative of his character or mental condition does not
render the evidence inadmissible.‟ ” (People v. Smith (2005) 35 Cal.4th 334, 355.)
And contrary to defendant‟s suggestion that the prosecutor improperly relied upon
the convictions as evidence of future dangerousness, a prosecutor may argue that a
defendant will remain dangerous in the future, as long as such a claim is supported
by evidence other than expert opinion testimony. (People v. Bramit (2009) 46
Cal.4th 1221, 1244.)
subordinate determination of the balance of evidence of aggravation and
mitigation do not entail the finding of facts that can increase the punishment for
murder of the first degree beyond the maximum otherwise prescribed.‟ ” (People
v. Bonilla (2007) 41 Cal.4th 313, 359.)
2. Asserted Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct at the close of
her penalty phase argument by invoking a biblical justification for imposing
capital punishment. Defendant claims that the asserted misconduct violated
defendant‟s Eighth Amendment right to a reliable sentencing determination,
deprived him of a fair penalty trial, and amounted to an unconstitutional
establishment of religion.
“[A]t the penalty phase a prosecutor commits misconduct under the federal
standard by engaging in conduct that renders the trial so unfair as to constitute a
denial of due process.” (People v. Dykes, supra, 46 Cal.4th at p. 786; see
People v. Wallace (2008) 44 Cal.4th 1032, 1091.) Under state law, it constitutes
reversible misconduct for the prosecutor to employ deceptive or reprehensible
methods to persuade the court or the jury (People v. Wallace, supra, 44 Cal.4th at
p. 1091), when “there is a reasonable possibility that without such misconduct, an
outcome more favorable to the defendant would have resulted.” (People v. Riggs
(2008) 44 Cal.4th 248, 315; see People v. Martinez, supra, 47 Cal.4th at p. 955;
People v. Wallace, supra, 44 Cal.4th at p. 1091.) When the defense fails to object
to asserted misconduct at trial and request that the jury be admonished, the claim
ordinarily is forfeited on appeal. (People v. Zambrano (2007) 41 Cal.4th 1082,
1169, disapproved on another point in People v. Doolin, supra, 45 Cal.4th 390,
420; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1060; People v. Slaughter
(2002) 27 Cal.4th 1187, 1209.)
Because there was no objection to the asserted misconduct in the present
case, we conclude that the claim of misconduct was forfeited. A defense objection
and an admonition by the court would not have been futile.8 (See People v. Hill
(1998) 17 Cal.4th 800, 820-821.) In any event, as we shall explain, although the
prosecutor‟s invocation of religious authority crossed into impermissible
argument, defendant fails to demonstrate that the remarks warrant reversal of the
As part of a lengthy closing argument that explained the People‟s position
on each of the factors in aggravation and mitigation and concluded that
aggravating factors overwhelmingly outweighed the mitigating circumstances, the
prosecutor invoked “shared common moral values” that she argued justified the
law providing for capital punishment. She asked the jury to consider the unique
value of the life defendant had extinguished, explaining that “we‟re not talking
Defendant contends that appellate courts in “almost all jurisdictions”
reserve the power to reach a claim of error, otherwise forfeited below, when an
error is plain and affects substantial rights of the accused. (See Johnson v. United
States (1997) 520 U.S. 461, 466-467; Fed. Rules Crim. Proc., rule 52(b), 18
U.S.C.) An “effect on substantial rights” ordinarily requires some demonstration
of prejudice, however. (People v. Dykes, supra, 46 Cal.4th at p. 775, fn. 8, citing
United States v. Olano (1993) 507 U.S. 725, 734.) As will be discussed, post, the
biblical references of which defendant now complains were not prejudicial under
any standard. We thus disagree with defendant‟s contention that our failure to
address the merits of his claim would seriously affect the fairness, integrity, or
public reputation of the legal proceedings. (See People v. Wash (1993) 6 Cal.4th
215, 277 (conc. & dis. opn. of Mosk, J.); see also People v. Arias (1996) 13
Cal.4th 92, 159-160 [rejecting “plain error” argument where capital defendant
neglected to preserve a claim of prosecutorial misconduct at trial].)
We note that defendant has withdrawn his claim that defense counsel‟s
failure to object to asserted misconduct constituted ineffective assistance of
counsel. He asserts that this claim properly should be considered in conjunction
with his petition for writ of habeas corpus.
about an eye for an eye” or a “life for a life.” She continued: “And don‟t think
that you should have any religious scruples to not impose the death penalty. The
Bible unambiguously commands that murderers be put to death. In Genesis it
says: „whoever sheds the blood of man shall his blood be shed, for in his image
did God make man.‟ And also in Genesis it clearly states: man, not God is who is
going to impose this penalty. When it says by man, it means, the murder[er]‟s
blood be shed. And in Exodus it says: „He who fatally strikes the man shall be put
to death.‟ And I‟m sure that refers to women as well. It goes on to say: „and you
shall not take reparations for the soul of the murderer who deserves to die but he
shall be put to death.‟ [¶] So ladies and gentlemen, even the Bible for those of
you who may have some religious scruples does not say that you should not use
your own moral beliefs in making [the] determination here.”
Defense counsel, in his subsequent closing argument to the jury, made even
more extensive use of religious imagery, including uncredited quotations from the
Bible. For example, defense counsel (1) stated that the Judeo-Christian God, or at
least a singular divine entity, imposes a definitive moral framework that the jurors
must consider when judging a defendant; (2) paraphrased biblical passages from
Deuteronomy 32:35, Romans 12:19, and Hebrews 10:30, among others,
commonly cited for the principle that the Judeo-Christian God opposes capital
punishment; and (3) concluded with the biblical story of the prodigal son from
Luke 15:11-32, implying that, if the prodigal‟s father could welcome him back
with open arms, the jury at least should grant the defendant a sentence of life
imprisonment without the possibility of parole.
This court consistently has found that a prosecutor‟s reliance on religious
authority as justification for imposing capital punishment is improper. (People v.
Roldan (2005) 35 Cal.4th 646, 743, disapproved on another point in People v.
Doolin, supra, 45 Cal.4th at p. 420; People v. Vieira (2005) 35 Cal.4th 264, 298;
People v. Slaughter, supra, 27 Cal.4th at p. 1210; People v. Ervin (2000) 22
Cal.4th 48, 100; People v. Welch (1999) 20 Cal.4th 701, 761-762; People v.
Roybal (1998) 19 Cal.4th 481, 521; People v. Hill, supra, 17 Cal.4th at p. 836;
People v. Sandoval (1993) 4 Cal.4th 155, 193; People v. Wrest (1992) 3
Cal.4th1088, 1107.) The problem with such argument is that it tends to undermine
the jurors‟ sense of responsibility for imposing a death sentence in a particular
case, and “impl[ies] that another, higher law should be applied . . . displacing the
law in the court‟s instructions.” (People v. Wrest at p. 1107.) It is permissible,
however, for a prosecutor to invoke religious imagery when arguing that jurors
should not reach a penalty verdict in reliance on divine teachings, because such
argument reinforces the notion that the penalty decision must be an individual
determination under the instructions given by the court. (People v. Hughes, supra,
27 Cal.4th at p. 392; People v. Bradford, supra, 14 Cal.4th at p. 1063; People v.
Jackson (1996) 13 Cal.4th 1164, 1242; People v. Arias, supra, 13 Cal.4th at p.
180.) Prosecutors also may point to the Bible as demonstrating “historical
acceptance of capital punishment.” (People v. Zambrano, supra, 41 Cal.4th at p.
1169, citing People v. Williams (1988) 45 Cal.3d 1268, 1325.)
In the present case, the prosecutor‟s biblical references strayed beyond the
bounds of permissible argument based upon religion. Her argument was framed to
dispel any concern that religious precepts forbade the penalty of death, but she
plainly invoked a religious justification for the death penalty by stating “[t]he
Bible unambiguously commands that murderers be put to death.” This comment
was followed quickly by quotations from scripture that, taken together, suggested
that the Bible, far from forbidding capital punishment, actually endorsed capital
punishment for murder. These statements could have suggested “that another,
higher law should be applied” during the jury‟s penalty deliberation (People v.
Wrest, supra, 3 Cal.4th at p. 1107), threatening to displace the court‟s instructions
in the minds of jurors. As such, they amount to prosecutorial misconduct.
The Attorney General contends that no misconduct occurred, because “[t]he
Biblical reference was made simply to ensure that any religious jurors would not
apply a higher law in a mistaken belief that the higher law forbade imposition of
the death penalty.” We are unpersuaded. Although we agree that the prosecutor
framed her religious comments as an ostensible exhortation for jurors to refrain
from deciding against the death penalty based upon religious views, the content of
her remarks emphatically communicated that the Bible supports imposition of the
death penalty. She “urged that the Bible not only permits such action, but
demands it.” (People v. Zambrano, supra, 41 Cal.4th at p. 1170.) Similarly
framed arguments have been held improper. (People v. Vieira, supra, 35 Cal.4th
at pp. 297-298; People v. Slaughter, supra, 27 Cal.4th at p. 1210.)
Although we find that the prosecutor erred, the error in this instance was
not prejudicial. Under California law, and in the context of capital sentencing,
reversal for prosecutorial misconduct requires prejudice manifested by a
reasonable possibility of an effect on the outcome. (People v. Riggs (2008) 44
Cal.4th 248, 315; People v. Dykes, supra, 46 Cal.4th at p. 793; People v. Wallace,
supra, 44 Cal.4th at p. 1092.) Even assuming, without deciding, that defendant‟s
claim with respect to establishment of religion includes an assertion of federal
constitutional error, reversal under the federal Constitution also requires prejudice,
although prejudice “is presumed unless the government shows that the defect was
harmless beyond a reasonable doubt.” (People v. Roybal, supra, 19 Cal.4th at p.
520, citing Rose v. Clark (1986) 478 U.S. 570, 576-579.)
It is not reasonably possible that a result more favorable to defendant would
have been reached in the absence of the prosecutor‟s religious references, in light
of the clear guidance afforded to the jury by the court‟s instructions, the brevity of
the challenged remarks in comparison to the prosecutor‟s careful and extended
discussion of the statutory factors, and the overwhelming nature of the factors in
aggravation, including the heinous facts underlying both the charged crime and the
prior conviction for rape. (See, e.g., People v. Abilez (2007) 41 Cal.4th 472, 527;
People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1060; People v. Roybal, supra,
19 Cal.4th at p. 521; People v. Zambrano, supra, 41 Cal.4th 1082, 1170; People v.
Samuels (2005) 36 Cal.4th 96, 134; People v. Vieira, supra, 35 Cal.4th at p. 298;
People v. Slaughter, supra, 27 Cal.4th at pp. 1210-1211; People v. Hughes, supra,
27 Cal.4th at p. 392; People v. Wash, supra, 6 Cal.4th at p. 261; People v. Wrest,
supra, 3 Cal.4th at p. 1107.)
3. Instruction on the Governor’s Commutation Power
During deliberations at the penalty phase of the trial, the jury posed a two-
part question to the trial court: “Part One: When the defendant is given the death
sentence, can the Governor or anyone else overturn and/or overrule the decision
thus giving the defendant opportunity for parole[?] ¶ Part Two: When the
defendant is given a life without the chance of parole . . . can the Governor or
anyone else overturn and/or overrule the decision thus giving the defendant an
opportunity for parole?”
The court noted for the record that counsel and the court had conferred and
agreed that the court would inform the jury that the Governor‟s commutation
power applies to both sentences, but that it would be a violation of a juror‟s
responsibilities for the jury to consider commutation. The court denied defense
counsel‟s request that the trial court further instruct the jury that “life without
possibility of parole means exactly that.” The court instructed the jury: “The
Governor‟s commutation power applies to both sentences, to wit, one death or
two life without the possibility of parole. [It would] [b]e a violation of your duty
as a juror to consider the possibility of such commutation in determining the
Defendant contends the court‟s instruction was prejudicially incomplete
and inaccurate, because it failed to inform the jury that the Governor may not
commute a sentence of a twice-convicted felon without the recommendation of
four concurring justices of this court (Cal. Const., art. V, § 8, subd. (a)), even
though defendant‟s 1981 and 1983 convictions rendered him subject to this
limitation of the Governor‟s power, and because the instruction suggested that the
method for commutation was simpler and “more likely to happen” than experience
would suggest. We consistently have rejected similar claims.9 “A trial court in a
capital case does not err when it answers a jury question generally related to the
commutation power by instructing that the Governor may commute either a death
sentence or a life without possibility of parole sentence, but that the jury must not
consider the possibility of commutation in determining the appropriate sentence.”
(People v. Bramit, supra, 46 Cal.4th at p. 1246.) The absence of an instruction
explaining the limitations upon the Governor‟s power to commute sentences of
twice-convicted felons ordinarily is insignificant, “because the specific details of
the commutation process [bear] no relevance to the jury‟s task . . . .” (People v.
Beames (2007) 40 Cal.4th 907, 933; see also People v. Bramit, supra, 46 Cal.4th
at p. 1247 [ “there is no reason to mention the restrictions on the Governor‟s
power of commutation because they are irrelevant to the jury‟s determination, and
there is good reason not to stress a defendant‟s record”]; People v. Hart (1999) 20
We need not reach the question whether this claim of error was forfeited or
error was invited, because it is clear no error occurred. (See People v. Bramit,
supra, 46 Cal.4th at pp. 1246-1247.)
Cal.4th 546, 656-657 [rejecting the view that any incompleteness in the instruction
is “constitutionally deficient under the federal constitutional standard established
in California v. Ramos (1983) 463 U.S. 992, 1010-1012, or that the omission, even
if error, was prejudicial under the Chapman [v. California] standard”].)
We remain unpersuaded by defendant‟s claim that an instruction to
disregard the possibility of commutation cannot be followed by a jury that has
expressed concern regarding the possibility of the defendant‟s release. (See
People v. Bramit, supra, 46 Cal.4th at p. 1246; People v. Beames, supra, 40
Cal.4th at p. 933.) As in prior decisions, we decline to reconsider our rejection of
this claim in light of contrary suggestions contained in Coleman v. Calderon I (9th
Cir. 1998) 150 F.3d 1105 and Coleman v. Calderon II (9th Cir. 2000) 210 F.3d
1047, 1050-1051. (People v. Bramit, supra, 46 Cal.4th at p. 1247; People v.
Martinez (2003) 31 Cal.4th 673, 698.) We have explained: “To the contrary, the
jury was admonished that considering the possibility of commutation would be a
violation of its oath. Absent any contrary indication, we presume the jury
followed the instruction.” (People v. Bramit, supra, 46 Cal.4th at p. 1247.)
We also have rejected defendant‟s suggestions that when the prosecutor
raises the prospect of the defendant‟s future dangerousness, further instruction on
parole and the Governor‟s commutation power is constitutionally required (People
v. Marlow (2004) 34 Cal.4th 131, 153-154), and that language such as was given
in the present case leaves the jury with a false impression regarding the
defendant‟s prospects for parole, in violation of the teaching of Simmons v. South
Carolina (1994) 512 U.S. 154. (People v. Harris (2008) 43 Cal.4th 1269, 1316-
1317 [the pattern instructions adequately explain the meaning of life in prison
without possibility of parole]; see also People v. Martinez, supra, 31 Cal.4th at
Defendant contends that the assertedly incomplete and inaccurate
instruction caused the jury to believe that the ultimate decision over sentence
rested with the Governor and not with the jury, but, as we have explained, the jury
properly was instructed to disregard the question of commutation. (See People v.
Martinez, supra, 31 Cal.4th at p. 699.) We decline to reconsider our previous
4. Challenges to California’s Death Penalty Scheme
Defendant raises a number of claims that we have rejected in prior
decisions, but does not provide a convincing basis for reconsideration.
Section 190.2 is not impermissibly overbroad in violation of the Fifth,
Sixth, Eighth, or Fourteenth Amendments to the federal Constitution. (People v.
Dykes, supra, 46 Cal.4th at p. 813.) Specifically, the number of special
circumstances is not so high as to fail to perform the constitutionally required
narrowing function; the special circumstances are not overinclusive, either on their
face or as interpreted by this court; and the felony-murder special circumstance is
not invalid for failing to narrow meaningfully the class of persons eligible for the
death penalty. (Ibid.; People v. Jenkins, supra, 22 Cal.4th at p. 1050.)
Section 190.3, factor (a) is not impermissibly vague in violation of the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, because, in defendant‟s view, the specified factor (the
“circumstances of the crime”) has been applied in a “wanton and freakish” manner
so that “every feature of any murder, even features at odds with those of other
murders, have been found to be „aggravating‟ within the statute‟s meaning.”
(People v. Brasure (2008) 42 Cal.4th 1037, 1066.)
Contrary to defendant‟s claim, it is not constitutionally required that the
jury be instructed to apply the beyond-a-reasonable-doubt standard to sentencing
factors or to find beyond a reasonable doubt that death is the appropriate penalty,
and there is no statutory or constitutional requirement that aggravating
circumstances outweigh mitigating circumstances beyond a reasonable doubt in
order for the jury to return a verdict of death. (People v. Brasure, supra, 42
Cal.4th at p. 1067.) The high court‟s decisions in Apprendi v. United States,
supra, 530 U.S. 466, and Ring v. Arizona, supra, 536 U.S. 584, do not alter this
conclusion. (People v. Bramit, supra, 46 Cal.4th at p. 1249 & fn. 22.) In addition,
the California death penalty scheme is not constitutionally flawed either by its
failure to require written jury findings on the existence of aggravating factors or as
to aggravating factors outweighing mitigating circumstances, or by its failure to
require jury unanimity concerning the existence of aggravating factors. (People v.
Dykes, supra, 46 Cal.4th at p. 813.)
Intercase proportionality review is not constitutionally required. (People v.
Dykes, supra, 46 Cal.4th at p. 813.) Neither the equal protection clause nor the
due process clause requires that the same disparate-sentence review be applied to
noncapital and capital cases. (People v. Crittenden (1994) 9 Cal.4th 83, 156.)
There is no constitutional requirement that, in instructing on circumstances
in aggravation and mitigation, the court omit assertedly “irrelevant” factors.
(People v. Anderson (2001) 25 Cal.4th 543, 600.)
The use of the terms “extreme” and “substantial,” in connection with
section 190.3, factors (d) and (g), does not render unconstitutional the
consideration of evidence in mitigation. (People v. Martinez, supra, 47 Cal.4th at
p. 455.) In addition, the temporal references in section 190.3, factors (d) and (h)
(consideration of any “extreme mental or emotional disturbance,” or “impairment”
as a result of “mental disease or defect or the effects of intoxication,” at the time
of the offense) “[do] not preclude the jury from considering any such evidence
merely because it did not relate specifically to defendant‟s culpability for the
crimes committed.” (People v. Hughes, supra, 27 Cal.4th at p. 405, fn. 33.)
The trial court did not err in failing to specify which statutory factors could
be considered solely in mitigation. (People v. Catlin (2001) 26 Cal.4th 81, 178.)
5. Pattern Instruction CALJIC No. 8.88
Pattern instruction CALJIC No. 8.88 (former CALJIC No. 8.84.2) is not
constitutionally flawed because the term “so substantial” assertedly is vague or the
term “warrants” is overly broad (People v. Arias, supra, 13 Cal.4th at p. 171), nor
is the instruction defective in failing to inform the jury of the full range of
potentially mitigating circumstances. (People v. Dykes, supra, 46 Cal.4th at
6. Cumulative Prejudice
Defendant has not demonstrated the existence of error that cumulatively
establishes prejudice, either at the guilt phase or the penalty phase of his trial.
For the foregoing reasons, the judgment is affirmed in its entirety.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Williams
Original Appeal XXX
Opinion No. S029490
Date Filed: June 28, 2010
County: Los Angeles
Judge: J. D. Smith
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court,
Jay Colangelo and Andrew S. Love, Assistant State Public Defenders, and Ellen J. Eggers, Deputy State
Public Defender, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey, Suzann E. Papagoda and
Kenneth C. Byrne, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Ellen J. Eggers
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814-3518
Kenneth C. Byrne
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Automatic appeal from a judgment of death.
|Mon, 06/28/2010||49 Cal. 4th 405, 233 P.3d 1000, 111 Cal. Rptr. 3d 589||S029490||Automatic Appeal||submitted/opinion due|
|1||The People (Respondent)|
Represented by Kenneth C. Byrne
Office of the Attorney General
300 S. Spring Street, Suite 500
Los Angeles, CA
|2||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Mr. Rama R. Maline, Deputy Attorney General
300 South Spring Street, Suite 500
Los Angeles, CA
|3||Williams, David Earl (Appellant)|
San Quentin State Prison
Represented by Michael R. Belter
Law Offices of Michael R. Belter
16 N. Marengo, Suite 619
|4||Williams, David Earl (Appellant)|
San Quentin State Prison
Represented by Office of the State Public Defender-Sac
Ellen Eggers, Deputy State Public Defender
801 "K" Street, Suite 1100
|Opinion||Chief Justice Ronald M. George|
|Concur||Justice Carlos R. Moreno, Justice Carol A. Corrigan, Justice Joyce L. Kennard, Justice Kathryn M. Werdegar, Justice Marvin R. Baxter, Justice Ming W. Chin|
|Oct 20 1992||Judgment of death|
|Oct 29 1992||Filed certified copy of Judgment of Death Rendered|
|Mar 6 1998||Order appointing State Public Defender filed|
to represent appellant on his automatic appeal now pending in this court.
|Mar 31 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Apr 2 1998||Extension of Time application Granted|
To Applt To 6-5-98 To request Corr. of Record.
|May 29 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jun 3 1998||Extension of Time application Granted|
To 8-4-98 To request Record correction
|Jul 31 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 4 1998||Extension of Time application Granted|
To 9-18-98 To request Record correction
|Sep 23 1998||Received:|
Copy of Applt's request for correction and Completion of the Record (29 Pp.)
|Sep 25 1998||Counsel appointment order filed|
Thomas Nishi Is appointed to represent Applt for Habeas Corpus/Executive Clemency Proceedings Related to the Automatic Appeal.
|Oct 9 1998||Motion filed|
By Habeas Corpus Counsel Thomas Nishi to be Relieved as Counsel of Record.
|Oct 26 1998||Filed:|
First Amended Suppl Proof of Service of motion to Withdraw.
|Oct 28 1998||Order filed:|
granting applic. of separately appointed habeas corpus/executive clemency counsel for permission to withdraw as attorney of record. The order appointing Thomas Nishi is vacated. Michael Millman, Executive Director of the California Appellate Project, is appointed to serve as interim habeas corpus/ executive clemency counsel for appellant.
|Jul 17 2000||Counsel's status report received (confidential)|
from State P.D.
|Oct 10 2000||Counsel's status report received (confidential)|
from State P.D.
|Nov 20 2000||Counsel's status report received (confidential)|
from State P.D.
|Jan 3 2001||Counsel appointment order filed|
The order appointing Michael Millman, Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for applt Williams, filed 10-28-1998, is hereby vacated. Michael R. Belter is hereby appointed to represent applt for habeas corpus/executive clemency proceedings related to the automatic appeal now pending in this court.
|Jan 17 2001||Counsel's status report received (confidential)|
from State P.D.
|Feb 8 2001||Record on appeal filed|
C-16 (2,854 pp.) and R-14 (1,725 pp.) including material under seal; Clerk's Transcript includes 300 pages of Juror Questionnaires.
|Feb 8 2001||Appellant's opening brief letter sent, due:|
|Mar 14 2001||Application for Extension of Time filed|
To file AOB. (1st request)
|Mar 15 2001||Counsel's status report received (confidential)|
from State P.D.
|Mar 16 2001||Extension of Time application Granted|
To 5/21/2001 to file AOB.
|Mar 20 2001||Counsel's status report received (confidential)|
from atty Belter.
|May 3 2001||Counsel's status report received (confidential)|
from atty Belter.
|May 15 2001||Application for Extension of Time filed|
To file AOB. (2nd request)
|May 16 2001||Counsel's status report received (confidential)|
from State P.D.
|May 21 2001||Extension of Time application Granted|
To 7/20/2001 to file AOB.
|Jun 13 2001||Compensation awarded counsel|
|Jul 9 2001||Counsel's status report received (confidential)|
from atty Belter.
|Jul 12 2001||Application for Extension of Time filed|
To file AOB. (3rd request)
|Jul 13 2001||Extension of Time application Granted|
To 9/18/2001 to file AOB.
|Jul 18 2001||Counsel's status report received (confidential)|
from State P.D.
|Sep 7 2001||Counsel's status report received (confidential)|
from atty Belter.
|Sep 13 2001||Counsel's status report received (confidential)|
from State P.D.
|Sep 13 2001||Application for Extension of Time filed|
To file AOB. (4th request)
|Sep 20 2001||Extension of Time application Granted|
To 11/19/2001 to file AOB.
|Nov 1 2001||Counsel's status report received (confidential)|
from atty Belter.
|Nov 1 2001||Filed:|
Declaration of atty. Michael Belter. (confidential)
|Nov 5 2001||Filed:|
Declaration of atty. Michael Belter. (confidential)
|Nov 13 2001||Compensation awarded counsel|
|Nov 15 2001||Request for extension of time filed|
To file AOB. (5th request)
|Nov 16 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 16 2001||Extension of Time application Granted|
To 1/18/2002 to file AOB. The court anticipates that only one further extension for a total of 60 additional days will be granted.
|Nov 20 2001||Filed:|
Suppl. declaration in support of 5th request for extension of time to file AOB.
|Jan 9 2002||Request for extension of time filed|
To file AOB. (6th request)
|Jan 11 2002||Counsel's status report received (confidential)|
from atty Belter.
|Jan 15 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 15 2002||Extension of time granted|
To 3/19/2002 to file AOB. Dep. State Public Defender Eggers anticipates filing the brief by that date. No further extension is contemplated.
|Mar 5 2002||Filed:|
Request for interim payment; declaration of counsel (confidential).
|Mar 6 2002||Counsel's status report received (confidential)|
from atty Belter.
|Mar 6 2002||Compensation awarded counsel|
|Mar 19 2002||Appellant's opening brief filed|
|Mar 19 2002||Counsel's status report received (confidential)|
from State P.D.
|Apr 4 2002||Compensation awarded counsel|
|Apr 12 2002||Request for extension of time filed|
To file resp.'s brief. (1st request)
|Apr 15 2002||Filed:|
Suppl. declaration of service by mail of AOB.
|Apr 19 2002||Filed:|
Supplemental declaration re proof of service for request for extension of time to file resp.'s brief.
|Apr 30 2002||Extension of time granted|
To 6/17/2002 to file resp.'s brief.
|May 13 2002||Counsel's status report received (confidential)|
from atty Belter.
|Jun 7 2002||Request for extension of time filed|
to file resp's brief. [2nd request]
|Jun 13 2002||Extension of time granted|
to 8-16-2002 to file resp's brief. After that date, only four further extensions totaling 126 additional days are contemplated. Extension granted based upon Deputy AG Papagoda's representation that she anticipates filing brief by 12-20-2002.
|Jul 11 2002||Counsel's status report received (confidential)|
from atty Belter.
|Jul 26 2002||Compensation awarded counsel|
|Aug 9 2002||Request for extension of time filed|
to file resp's brief. (3rd. request.)
|Aug 14 2002||Extension of time granted|
to 10-15-2002 to file respondent's brief. Extension granted based upon Deputy AG Papagoda's representation that she anticipates filing the brief by 12-20-2002. After that date, only one further extension totaling 66 additional days is contemplated.
|Sep 9 2002||Counsel's status report received (confidential)|
from atty Belter.
|Sep 17 2002||Counsel's status report received (confidential)|
(supplemental) from atty Belter.
|Oct 10 2002||Respondent's brief filed|
|Oct 24 2002||Request for extension of time filed|
To file appellant's reply brief. (1st request)
|Oct 29 2002||Extension of time granted|
To 12/30/2002 to file appellant's reply brief.
|Nov 13 2002||Counsel's status report received (confidential)|
from atty Belter.
|Nov 21 2002||Filed:|
Supplemental declaration of service of application for extension of time to file appellant's reply brief.
|Dec 23 2002||Request for extension of time filed|
To file appellant's reply brief. (2nd request)
|Dec 30 2002||Extension of time granted|
To 2/28/2003 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Jan 9 2003||Counsel's status report received (confidential)|
from atty Belter.
|Feb 24 2003||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Feb 26 2003||Extension of time granted|
to 4/29/2003 to file appellant's reply brief. After that date, only one further extension totaling about 50 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 6/17/2003.
|Mar 10 2003||Counsel's status report received (confidential)|
from atty Belter.
|Apr 23 2003||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Apr 25 2003||Extension of time granted|
to 6/17/2003 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Ellen J. Egger's representation that she anticiaptes filing tht brief by 6/17/2003. After that date, no further extension will be granted.
|Apr 30 2003||Compensation awarded counsel|
|May 9 2003||Counsel's status report received (confidential)|
from atty Belter.
|Jun 11 2003||Filed:|
Request for interim payment; fixed fee; declaration of counsel (confidential).
|Jun 17 2003||Appellant's reply brief filed|
|Jun 18 2003||Compensation awarded counsel|
|Jun 19 2003||Filed:|
Supplemental proof of service of appellan't reply brief.
|Jul 11 2003||Counsel's status report received (confidential)|
from atty Belter.
|Aug 20 2003||Filed:|
"Appellant's Application for Leave to File Supplemental Reply Brief."
|Aug 25 2003||Order filed|
"Appellant's Application for Leave to File Supplemental Reply Brief," is granted.
|Aug 25 2003||Supplemental reply brief filed|
|Sep 11 2003||Counsel's status report received (confidential)|
from atty Belter.
|Sep 24 2003||Compensation awarded counsel|
|Nov 12 2003||Counsel's status report received (confidential)|
from atty Belter.
|Dec 12 2003||Related habeas corpus petition filed (concurrent)|
|Dec 29 2003||Compensation awarded counsel|
|Feb 14 2005||Habeas funds request filed (confidential)|
|Apr 27 2005||Order filed re habeas funds request (confidential)|
|Oct 9 2009||Exhibit(s) lodged|
people's exhibit - 75
|Oct 14 2009||Exhibit(s) lodged|
people's exhibits - 56, 57, 58
|Dec 1 2009||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the February calendar, to be held the week of February 1, 2010, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Jan 13 2010||Supplemental briefing ordered|
The parties are directed to serve and file briefs discussing the question whether at the penalty phase of a capital trial, the trial court has a sua sponte duty to instruct the jury that prior felony convictions admitted under Penal Code section 190.3, factor (c), must be proved beyond a reasonable doubt. (See People v. Harris (2005) 37 Cal.4th 310, 360; see also People v. Millwee (1998) 18 Cal.4th 96, 161, fn. 30; CALCRIM No. 765; CALJIC No. 8.86; but see People v. Kennedy (2005) 36 Cal.4th 595, 637; People v. Pinholster (1992) 1 Cal.4th 865, 965; People v. Wright (1990) 52 Cal.3d 367, 437; People v. Morales (1989) 48 Cal.3d 527, 566; People v. Gates (1987) 43 Cal.3d 1168, 1202.) The parties are directed to serve and file their briefs within 20 days of the date of this order, and may serve and file responsive briefs within 15 days thereafter.
|Jan 21 2010||Received:|
Letter from State Public Defender Michael J. Hersek, dated January 19, 2010, requesting that the case not be set for oral argument for the March 2010 calendar.
|Jan 25 2010||Letter brief filed|
Respondent: The PeopleAttorney: Attorney General - Los Angeles Office by respondent, dated January 21, 2010, in response to court's order dated January 13, 2010.
|Feb 3 2010||Letter brief filed|
Appellant: Williams, David EarlAttorney: Office of the State Public Defender-Sac by appellant, dated February 1, 2010, in response to court's order dated January 13, 2010.
|Feb 18 2010||Request for extension of time filed|
by appellant to file responsive letter brief. (1st request)
|Feb 23 2010||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing the appellant's responsive letter brief by February 24, 2010, counsel's request for an extension of time in which to file that brief is granted to February 24, 2010. After that date, no further extension is contemplated.
|Feb 24 2010||Letter brief filed|
Appellant: Williams, David EarlAttorney: Office of the State Public Defender-Sac by appellant, dated February 23, 2010, response to the letter brief filed by respondent on January 25, 2010.
|Mar 3 2010||Case ordered on calendar|
to be argued Tuesday, April 6, 2010, at 2:00 p.m., in Los Angeles
|Mar 11 2010||Received:|
appearance sheet from Deputy State Public Defender Ellen J. Eggers, indicating 45 minutes for oral argument for appellant.
|Mar 15 2010||Received:|
appearance sheet from Deputy Attorney General Kenneth C. Byrne, indicating 30 minutes for oral argument for respondent.
|Mar 16 2010||Filed:|
appellant's focus issues letter, dated March 15, 2010.
|Mar 18 2010||Filed:|
respondent's focus issues letter dated March 12, 2010.
|Mar 30 2010||Received:|
letter from appellant, dated March 29, 2010, with additional authority.
|Apr 6 2010||Cause argued and submitted|
|Apr 15 2010||Letter sent to:|
to Deputy State Public Defender Ellen Eggers: At oral argument on April 6, 2010, counsel for respondent asserted that the defense had withdrawn Argument VII of the opening brief, the claim that "[t]he prosecutor engaged in prejudicial misconduct by telling the jurors that the Bible required them to impose the death penalty." In support, counsel for respondent relied upon page 1 of appellant's reply brief. Counsel for appellant did not respond to the assertion in her rebuttal argument. The briefing, however, suggests that a narrower withdrawal was intended. Specifically, it appears that the defense withdrew the claim that trial counsel's failure to object to arguments made by the prosecution constituted ineffective assistance of counsel. (See Appellant's Opening Brief, p. 121; Appellant's Reply Brief, p. 1. ["With respect to AOB Argument VII, regarding the prosecutor's reliance on biblical authority in urging the jury to vote for the death penalty, trial counsel's failure to object to the argument constitutes grounds for a claim of ineffective assistance of counsel. As such, that claim is, and will be, more properly raised in a petition for writ of habeas corpus; it is hereby withdrawn from this direct appeal" (italics added)].) Please advise the court in a letter served and filed on or before April 27, 2010, whether and to what extent Argument VII has been withdrawn.
|Apr 27 2010||Filed:|
Letter from Deputy State Public Defender Ellen Eggers, dated April 26, 2010, in response to letter of April 15, 2010.
|Jun 25 2010||Notice of forthcoming opinion posted|
To be filed on Monday, June 28, 2010 at 10 a.m.
|Mar 19 2002||Appellant's opening brief filed|
|Oct 10 2002||Respondent's brief filed|
|Jun 17 2003||Appellant's reply brief filed|
appellants_opening_brief.pdf (7809791 bytes) - Appellant's Opening Brief
respondents_brief.pdf (6626371 bytes) - Respondent's Brief
appellants_reply_brief.pdf (2837034 bytes) - Appellant's Reply Brief
appellants_supplemental_reply_brief.pdf (410341 bytes) - Appellant's Supplemental Reply Brief
respondents_letter_brief.pdf (412228 bytes) - Respondent's Letter Brief
appellants_supplemental_letter_brief.pdf (85536 bytes) - Appellant's Supplemental Letter Brief
appellants_responsive_letter_brief.pdf (64071 bytes) - Appellant's Responsive Letter Brief
|Dec 2, 2010|
Annotated by zcarpenter
In this case a 42-year-old woman was brutally murdered in Los Angeles County on March 20, 1989. After a parking lot collision, a man forced the woman into the passenger seat of her own car at gunpoint, then took her to several ATMs and forced her to make large withdrawals. Eventually, the woman was locked in the trunk of her own car, which was then set on fire with gasoline. At trial, a coroner testified that the victim was alive when the fire started, and died approximately 10 minutes later from smoke inhalation and burns.
The defendant in this case, Mr. Williams, made four statements to the police after his arrest, on March 25, 27, and 28, 1989 each of which were entered into evidence at trial. Interrogating Officers advised Mr. Williams of his Miranda rights during the first interview, conducted on March 25, 1989, but did not restate the Miranda warning at the second interview. The Miranda warning was given and Mr. Williams’ rights were waived during the third and fourth interviews, during which Mr. Williams’ statements were tape-recorded. Mr. Williams changed his story over the course of these interviews, but in the final interview he admitted to robbing the victim, taking her car, forcing her to withdraw cash from an ATM, and pouring gasoline on the vehicle. He denied forcing the victim into the trunk of the vehicle, and he denied igniting the fire himself.
During the guilt phase of the trial, the defense did not present any evidence whatsoever. At sentencing, the prosecution put on evidence concerning Mr. Williams’ criminal history, including the facts of a 1983 rape and burglary conviction. In addition to another taped statement, in which Mr. Williams admitted to the burglary, this evidence included testimony from the rape victim detailing a brutal scene in which she was beaten and raped by Mr. Williams, who then poured orange juice on her to “get rid of fingerprints.” In response, defense counsel put on evidence of Mr. Williams’ youth, during which his mother died of a possibly-intentional drug overdose, he was abused numerous times by various family members, and each of his siblings was incarcerated. Defense counsel also put on evidence from a Psychiatrist who testified that Mr. Williams had borderline personality disorder, had been diagnosed previously with antisocial personality disorder, and had likely been the victim of abuse as a child.
After a hearing on the issue whether the four statements included Miranda violations or coercive interrogation tactics, which included testimony from the interrogating Officers, the trial judge found that “defendant’s statements … were freely and voluntarily made with no coercion on behalf of the officers, that his rights under Miranda are not violated in any way.”
Mr. Williams was convicted in Los Angeles County Superior Court of robbery, arson causing great bodily injury, kidnapping for robbery, kidnapping, and first degree murder with special circumstances of felony-murder and torture, and Mr. Williams was sentenced to death. As such his appeal was automatic under § 1239(b), which states:
“(b) When upon any plea a judgment of death is rendered, an appeal is automatically taken by the defendant without any action by him or her or his or her counsel. The defendant's trial counsel, whether retained by the defendant or court appointed, shall continue to represent the defendant until completing the additional duties set forth in paragraph (1) of subdivision (e) of Section 1240.1.”
The Supreme Court of California declined to rehear the case on August 18, 210, and subsequently, petition for certiorari from the United States Supreme Court was filed on November 15, 2010.
(1) Whether the circumstances of Mr. Williams’s interrogation, and his confession therein over the course of four interviews, violated Mr. Williams’s Fourth, Fifth, and Fourteenth Amendment rights?
(1) Defendant, Mr. Williams, gave a valid waiver of his Miranda rights knowingly, voluntarily, and intelligently under the totality of the circumstances surrounding the interrogation.
(1) Relying on precedent, the court also held that during the course of an interrogation, a Miranda invocation issued subsequent to a waiver must be unambiguous to be valid and binding on the interrogating Officer(s). Further, the court held that Mr. Williams had not invoked his Fifth Amendment right to remain silent during the investigation, noting that “A defendant has not invoked his or her right to silence when the defendant’s statements . . . amounted only to a refusal to discuss a particular subject covered by the questioning.” (citations omitted). Finally, the court upheld the principle that a subsequent interrogation does not require an addition Miranda advisement so long as it is “reasonably contemporaneous” with the prior knowing and intelligent waiver.
The Supreme Court of California affirmed the lower decision in its entirety.
Concurrence – Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Cal. Pen. Code § 1239(b)
Annotated by Zack Carpenter