Filed 7/21/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
)
Plaintiff and Respondent,
S012945
v.
County of Los Angeles
STANLEY BERNARD DAVIS,
Super. Ct. No. A093076
)
Defendant and Appellant.
A jury convicted defendant Stanley Bernard Davis of the first degree
murders of Michelle Boyd and Brian Harris. (Pen. Code § 187; further
undesignated statutory references are to the Penal Code.) As to each murder, the
jury found true the special circumstance allegations of murder during the
commission of a robbery and murder during the commission of kidnapping for
robbery. (§ 190.2, former subd. (a)(17)(i) & (ii), as added by initiative, Prop. 7,
§ 4 at the Nov. 7, 1978 Gen. Elec.) The jury also found true a special
circumstance allegation of multiple murder. (§ 190.2, former subd. (a)(3).) The
jury further found defendant guilty of the robbery (§ 211) and kidnapping for
robbery (§ 209, subd. (b)) of Boyd and Harris, grand theft auto (§ 487, subd. (3))1
and arson of Harris’s automobile (§ 451, subd. (d)) all committed in 1985, and the
1
Section 487, former subdivision (3), is now section 487, subdivision (d)(1).
1
1984 robbery (§ 211) and kidnapping for robbery (§ 209, subd. (b)) of David
Kingsmill. As to the murders, robberies, and kidnappings of Boyd and Harris, and
the theft of Harris’s car, the jury found for each offense that defendant was armed
with a firearm (§ 12022, subd. (a)) and that he personally used a firearm
(§ 12022.5, subd. (a)). With respect to the robbery and kidnapping of Kingsmill,
the jury found for each offense that a principal was armed with a firearm.
(§ 12022, subd. (a).)
At the penalty phase, the jury returned verdicts of death for the Boyd and
Harris murders. The trial court denied defendant’s automatic motion to modify
the verdict (§ 190.4, subd. (e)) and imposed death sentences for those counts. The
court imposed terms of imprisonment for the other counts, but it stayed them
pending imposition of the death penalty.
This appeal is automatic. (§ 1239, subd. (b).) We vacate the conviction for
the robbery of Boyd, but otherwise affirm the judgment.
I. FACTUAL BACKGROUND
A jury convicted defendant of the 1985 kidnapping, robbery, and first
degree murders of college students Michelle Boyd and Brian Harris. Three other
men—DeAndre Brown, Damon Redmond and Donald Bennett—were involved in
the crimes. Brown was the prosecution’s primary witness; he admitted being
present at the murder scene and purchasing the murder weapon, an Uzi semi-
automatic pistol. Brown testified that he, defendant, Redmond, and Bennett drove
from South Central Los Angeles to Westwood, where they commandeered
Harris’s car, with students Boyd and Harris inside, because they needed a car to
carry out a planned robbery. Brown testified that after driving to an isolated
location, defendant took Boyd and Harris out into a field and shot them. The
prosecution also introduced incriminating statements defendant made, which the
police tape-recorded while defendant was in jail with Redmond and Bennett. A
2
year before the Boyd and Harris murders, defendant kidnapped and robbed David
Kingsmill, also in Westwood.
A. Guilt Phase
1. Prosecution’s case
a. Kingsmill kidnapping and robbery
In 1984, David Kingsmill was a student at the University of California at
Los Angeles, in Westwood. On May 27, about 11:00 p.m., as Kingsmill was
getting out of his new black Volkswagen Rabbit, he felt a gun at his neck and
heard someone tell him to turn around and get back in the car. Kingsmill did so.
Defendant and two other African-American men got in after him. One of the men
told Kingsmill to drive where he was told. Ultimately, Kingsmill stopped
somewhere on Sepulveda Boulevard and gave the three men his wallet, money,
and credit cards. He then complied with their demand to get out of the car and
take off his pants and underwear. The three men left, taking Kingsmill’s clothes.
Four days later, deputy sheriffs stopped defendant in South Central Los Angeles
while he was driving with DeAndre Brown in a new black Volkswagen Rabbit.
With respect to this incident, defendant pleaded guilty to one misdemeanor count
of unlawfully taking a vehicle (Veh. Code, § 10851) for which he served a two-
month jail sentence.
b. Boyd and Harris murders
Testifying under a grant of immunity, DeAndre Brown gave the following
account of the murders. In September 1985, defendant was living with his friend
Brian Wright at the house of Wright’s grandmother in South Central Los Angeles.
On September 26, defendant and Wright were arrested. Defendant was able to
post bail but Wright was not. A few days later, defendant told Brown about a plan
to drive to Barstow, San Bernardino County, and rob a liquor store to get money to
post Wright’s bail. Brown agreed to take part in the planned robbery.
3
A few days later, on September 30, around 7:00 p.m., Brown and Damon
Redmond met up with defendant and Donald Bennett, who was driving a truck.
The four discussed the planned Barstow robbery. They decided to drive to
Westwood to get a car because Bennett did not want to use his truck in the
robbery. The group had with them a nine-millimeter Uzi semi-automatic pistol
and a .38-caliber handgun. The four arrived in Westwood around 9:00 p.m. They
split up and went looking for a car to steal. Brown and Redmond saw a man and a
woman in a beige or rust-colored Honda and told defendant about the car.
Defendant and Redmond went to investigate. When they returned to Bennett’s
truck, Redmond was driving the Honda, with defendant in the back seat. At
Bennett’s instruction, Brown grabbed the Uzi, which was loaded, from the back of
the truck. When Brown approached the Honda, he saw victim Michelle Boyd in
the back seat next to defendant, with her head in his lap. Brown also got in the
back seat. Bennett took the front passenger seat.
Redmond drove a short distance, then stopped to let Bennett drive. Bennett
drove near a high school. It was around midnight and the area was “pitch black,”
with no lights or houses around. Defendant signaled Bennett to stop the car.
Defendant, Redmond, and Brown got out, taking Boyd with them. Brown handed
defendant the Uzi. Brown saw defendant take Boyd out into a field but then lost
sight of them. Brown then heard thumping from inside the Honda’s trunk and a
voice yelling “let me out.” When defendant returned to the car, Redmond opened
the trunk hood and Brian Harris emerged holding his hands over his eyes. Harris
said he could not see and would not look. Defendant, still holding the Uzi, told
Harris, “I’m going to take you to your girl.” He and Redmond then walked Harris
out into the field. Brown saw Redmond walking back toward the car and then saw
a flash of light in the field. A second flash followed, after which defendant
4
returned to the car. When Brown asked defendant what he had done, defendant
said he had “killed ’em” because he did not want any witnesses.
Defendant, Brown, Bennett, and Redmond then drove away, with Bennett
at the wheel, planning to drive northeast from Los Angeles to Barstow to rob the
liquor store. Brown fell asleep. He awoke to defendant’s yelling at Bennett
because they had ended up in Bakersfield, in Kern County, north of Los Angeles,
about 130 miles from Barstow. Eventually the group drove to Barstow and arrived
at the liquor store they planned to rob. Brown went in to check out the store, but
came back and reported that there were people inside and it “wasn’t cool.” The
four then headed back to Los Angeles, arriving about 6:00 or 7:00 a.m. on October
1.
Brown got out at a bus stop a few miles from his home. He took the Uzi
with him, hidden in a brown briefcase he had found in victim Harris’s car. He
stored the gun and the briefcase in his bedroom.
Later that morning, Brown saw defendant, Redmond, and Bennett near
their homes in South Central Los Angeles. Redmond had burns on his face and
hands, received when he had poured gasoline on victim Harris’s Honda and lit it.
Either Bennett or defendant handed Brown the .38-caliber handgun, which he left
in Redmond’s house. Either Redmond or defendant gave Brown a wire ring.
Redmond kept another ring, which looked like a high school class ring with a
stone. Brown still had the wire ring in his bedroom when he was arrested; later he
gave it to his girlfriend. (Victim Boyd always wore a small gold twisted wire ring
and a high school senior class ring; after the murders, there were no rings on her
body.)
c. The arrests and interrogations
On October 1, 1985, about 8:30 a.m., James Shubsda arrived at the auto
store where he worked in South Central Los Angeles. He noticed a brownish-
5
colored Honda parked in the alley behind the store. About 15 minutes later,
Shubsda heard an explosion. He ran into the alley, saw the Honda on fire, and
called the fire department. Arson Investigator Derek Chew of the City of Los
Angeles Fire Department examined the Honda and determined that someone had
poured gasoline inside it and set it on fire. Victim Harris’s wallet was in the trunk
of the car. The police found only one fingerprint on the car; it belonged to
Redmond.
The police looked up Redmond’s known associates and found, among
others, Brown and defendant, whom they discovered had been involved in the
1984 kidnapping and robbery of college student David Kingsmill. They
determined that Kingsmill’s car had been taken only a few blocks from where
college students Boyd and Harris were last seen in Westwood, and that Brown,
Redmond, and defendant all lived within 12 blocks of where Harris’s Honda had
been abandoned in South Central Los Angeles. Brown, Redmond, and defendant
thus became suspects in the disappearance of Boyd and Harris.
Officer David Evans of the Los Angeles Police Department was the
investigating officer on the Boyd and Harris murders. He arrested Redmond
around 6:00 a.m. on Sunday, October 6, 1985. Redmond had burns on his face
and hands. Other officers arrested Brown about the same time. A search of
Brown’s bedroom turned up a brown briefcase with an Uzi and a loaded magazine
inside.
Later that day, Officer Evans and Detective Richard DeAnda questioned
Brown and Redmond at the West Los Angeles police station. Brown admitted
involvement in the kidnappings of Boyd and Harris and also implicated defendant,
Redmond, and Bennett. Brown said that defendant had shot and killed both
victims. Brown then led the police to the bodies of Harris and Boyd, in a field
6
near a high school on Mulholland Drive. Searches of the field turned up two shell
casings.
Still later that Sunday, October 6, 1985, Officer Evans and Detective
DeAnda questioned Redmond, who admitted being present at the murder scene.
That afternoon, defendant surrendered and was taken to the West Los Angeles
station. Bennett was arrested on October 8. During questioning, he admitted
being present at the murder scene.
d. The jailhouse conversations
At trial, the prosecution introduced excerpts of incriminating statements by
defendant that police had tape-recorded during conversations that defendant had
with Redmond and Bennett while the three were being held at the West Los
Angeles station before they were charged.
e. Other trial evidence
The parties stipulated that both Harris and Boyd died of single gunshot
wounds to the head. A pathologist from the Los Angeles County Chief Medical
Examiner Coroner’s Office recovered a bullet from Harris’s head.
A firearms expert test-fired the Uzi recovered from Brown’s bedroom and
compared the resulting bullets and shell casings with the bullet removed from
Harris’s head and the casings found at the murder scene. In his opinion, the
casings and bullets were fired from that Uzi.
2. Defense case
The defense tried to undermine Brown’s credibility and to inculpate him as
the shooter of Boyd and Harris. Los Angeles Police Department Detective Hugh
Wilton, whom the defense called as a witness, testified that he had found the
briefcase containing the Uzi and a loaded magazine in Brown’s bedroom. To
discredit Brown’s testimony that the crime scene was “pitch black,” two witnesses
7
testified that nearby streetlights were working on the night of the murders, and the
parties stipulated that the moon was nearly full that night.
B. Penalty Phase
1. Prosecution’s evidence in aggravation
Much of the prosecution’s aggravating evidence was presented by
stipulation of the parties, including these facts: Defendant was born on March 19,
1962, making him 23 years old at the time of the murders in 1985. In 1980, he
pled guilty to unrelated felony charges of grand theft auto and assault with a
deadly weapon in which the victim sustained three stab wounds. As a result of
those convictions, defendant was incarcerated for most of the period between May
29, 1980, and April 10, 1983. When defendant committed the assault, he was on
probation for the grand theft auto conviction, and at the time of the Boyd and
Harris murders in this case, he was on probation based on his unlawfully taking
the car of college student Kingsmill in 1984.
In 1981, when defendant was a ward at the California Youth Authority at
Chino, he threw hot water on a counselor. In 1982, when defendant was an inmate
at Soledad State Prison, he pushed a correctional officer through a doorway.
2. Defense evidence in mitigation
Several friends and family members testified about defendant’s difficult
childhood and adolescence. Shortly after defendant’s birth, his mother, Della
Moore, relinquished him to another woman, Ruby Orr. When Orr later married
Joe Davis, the two raised defendant as their own son together with their two
younger sons, Delano and Antoine. Orr abused defendant both physically and
psychologically. She hit defendant with her fist and various items including
switches, paddles, ironing cords, and a baseball bat. She verbally denigrated
defendant and forced him to take care of the younger brothers, whom she favored.
Orr and Davis had a violent relationship. Orr once shot Davis and once stabbed
8
him. When defendant was a teenager, Davis and Orr divorced. Orr then held late
night gambling parties in her house. When defendant was 18 or 19 years old, he
learned that Orr was not his birth mother.
Clinical Psychologist Adrienne Davis, not related to defendant, testified
about her psychological evaluation of defendant. Defendant scored in the
borderline range on intelligence tests, between low average intellectual function
and mild mental retardation. He scored at the fourth grade level in reading and
math. Personality tests indicated that defendant had emotional and psychological
problems, particularly with trusting and relating to other people, consistent with
his history of physical and emotional abuse and exposure to family violence. On
neuropsychological tests, defendant had difficulty with certain tasks, including
problem solving. Davis described defendant generally as feeling isolated,
inadequate, alienated, angry, frustrated, and confused. As the result of being
incarcerated for most of his adult life, defendant lacked the necessary skills to
cope with life outside of prison. He probably would function better in a closed
environment.
3. Prosecution’s rebuttal
Defendant’s younger brother, Antoine Davis, who was 17 years old at the
time of trial, denied that Orr had ever hit defendant with a baseball bat.
II. DISCUSSION
A. Jailhouse Taping
Defendant contends that the tape-recording by the police of his
conversations with Bennett and Redmond while the three were housed near each
other in holding cells at the West Los Angeles police station violated his rights
under the Fourth Amendment to the federal Constitution requiring reversal. We
disagree.
9
1. Facts
Before trial, defendant moved to suppress the tape recordings and
transcripts of his jailhouse conversations with Redmond and Bennett, citing the
Fourth Amendment to the federal Constitution and former section 2600 as
construed in this court’s decision in DeLancie v. Superior Court (1982) 31 Cal.3d
865 (DeLancie). At the hearing on the suppression motion, Detective DeAnda
testified that after the police arrested and interviewed defendant, Redmond and
Bennett, the three were placed in separate but adjacent cells in an isolated holding
area for felony suspects in the West Los Angeles police station.2 A solid wall and
a steel door separated defendant, Redmond and Bennett from the rest of the
facility.
Detective DeAnda testified that he had monitored and taped the three
suspects’ jailhouse conversations to ascertain whether they were threatening the
safety of DeAndre Brown, who was cooperating with the police investigation.
Former Deputy District Attorney Richard Neidorf (who, at the time of the hearing,
was a Los Angeles Municipal Court Judge) gave a different account of the reason
for the taping. The parties agreed to the admission of Neidorf’s declaration as his
stipulated testimony. It states: “Before any arrests were made[,] I was at the West
L.A. police station preparing arrest and search warrants. I arrived at
approximately 9 p.m. on a Saturday and stayed past midnight. [¶] I suggested to
Los Angeles Police Department officers, a lieutenant for sure and possibly
Detective DeAnda to eavesdrop the jail, after the suspects were apprehended. I
told them not to put any informants in the cell nor to put any undercover police
2
Other evidence in the record suggests that after questioning defendant, the
police took him to the Van Nuys police station, but brought him back to West Los
Angeles some time before the taping.
10
officers in the cell. Just to let the defendants freely talk among themselves. [¶]
When I suggested the eavesdropping I told the officers the reason was to gather
information. My concern in gathering information was to decide which of the
perpetrators to seek death against in that Carlos v. Superior Court (1983) 35
Cal.3d 131,3 was the law at the time and who [sic] to charge 12022.5, personal use
of a firearm and exculpatory evidence regarding . . . Beamon-type [People v.
Beamon (1973) 8 Cal.3d 625] evidence or any evidence regarding factual
innocence. [¶] At this time the warrants had not been signed yet and therefore no
suspects had been arrested.”
The trial court denied defendant’s suppression motion. It found that the
taping had a dual purpose: first, to gather evidence against the defendants, and
second, to obtain information regarding the safety of Brown. The trial court
explained: “A conscious decision was reached by the officer to tape-record and
monitor the conversations of these defendants. And it was based on a reasonable
suspicion that there might be conversations pertaining to the crime for which they
had been arrested. [¶] And let’s face it. It’s clear to me that the original purpose
in deciding to tape-record or monitor was to secure evidence to prosecute . . . .
[¶] And, finally, I’m forced to the conclusion or come to the conclusion that . . .
3
Our decision in Carlos v. Superior Court, supra, 35 Cal.3d 131 (Carlos)
held that the felony-murder special circumstance of the 1978 death penalty law
required proof of intent to kill regardless of whether the defendant was the actual
killer or an accomplice. Later, we overruled Carlos in People v. Anderson (1987)
43 Cal.3d 1104. There, we concluded that intent to kill is not an element of the
felony-murder special circumstance, but when the defendant is an aider and abetter
rather than the actual killer, intent to kill must be proved. (Id. at p. 1147.)
Thereafter, we held that Carlos applies when, as in this case, the crime was
committed after Carlos but before Anderson. (See People v. Osband (1996) 13
Cal.4th 622, 679; People v. Johnson (1993) 6 Cal.4th 1, 44-45.)
11
the reasonable protection of the public was involved ultimately before the taping
began. [¶] Before this taping began, a secondary consideration arose in the mind
of the officer, and that was the protection of Brown. . . . [¶] And when it comes to
protecting Brown — and I think it was very reasonable to expect that Brown
would be in danger here — there’s nothing better than knowing what these people
are planning. . . . [¶] There was bona fide interest in information pertaining to the
safety of Brown prior to the commencement of the taping.”
2. Discussion
In several cases we have rejected defendants’ Fourth Amendment
challenges to the admission of evidence obtained by tape-recording conversations
in jail. (See People v. Riel (2000) 22 Cal.4th 1153, 1183-1184 [conversation
between a defendant and family members in a jail visiting room]; People v. Hines
(1997) 15 Cal.4th 997, 1043 [conversation between a defendant and another
suspect in a jail holding cell before they were charged]; Donaldson v. Superior
Court (1983) 35 Cal.3d 24, 28-30 [conversation between a defendant and his
brother in a police station interview room].) Those cases relied on Lanza v. New
York (1962) 370 U.S. 139, in which the United States Supreme Court concluded
that Fourth Amendment protections do not apply inside a jail because a jail
“shares none of the attributes of privacy of a home, an automobile, an office, or a
hotel room” and “[i]n prison, official surveillance has traditionally been the order
of the day.” (Lanza, supra, 370 U.S. at p. 143.)
Defendant contends that Lanza was long ago superseded by other United
States Supreme Court decisions. He notes that a few years after Lanza, the high
court held in Katz v. United States (1967) 389 U.S. 347, 351 (Katz), that the
Fourth Amendment protects “people, not places,” and thus he asserts that the
location of a tape-recorded conversation (whether in a jail cell or not) should not
be dispositive of whether it enjoys Fourth Amendment protection. Rather,
12
according to defendant, the appropriate test is the one set out in Justice Harlan’s
concurring opinion in Katz, asking whether the subject of the taping had an actual,
subjective expectation of privacy that society recognizes as reasonable. (Katz,
supra, at p. 361 (conc. opn. of Harlan, J.).) Defendant notes that the high court
applied that test in a jail context in Bell v. Wolfish (1979) 441 U.S. 520 (Bell). In
Bell, the high court assumed, without deciding, that pretrial detainees retain an
expectation of privacy, albeit a diminished one. The court concluded, however,
that cell searches did not violate the Fourth Amendment if they were reasonably
related to legitimate institutional security needs. (Bell, supra, at pp. 556-557.)
Five years after Bell, the high court decided Hudson v. Palmer (1984) 468 U.S.
517 (Hudson); it holds that convicted prisoners have no legitimate expectation of
privacy in their cells, and thus no Fourth Amendment protection from cell
searches.4 (Hudson, supra, at pp. 522-530.)
Defendant here argues that under the reasoning of Bell and Hudson, persons
who are in custody and have not yet been convicted have privacy interests that the
Fourth Amendment protects from intrusion absent a legitimate institutional
security interest. According to defendant, he had an expectation of privacy that
precluded recording his conversations for reasons other than jail security. He
relies on the fact that at the time of the taping he had not been charged with any
crime. He thus reasons that his expectation of privacy in the jail cell was at least
equal to that of the pretrial detainees in Bell, supra, 441 U.S. at pages 556-557,
and greater than that of the convicted prisoners in Hudson, supra, 468 U.S. at
4
The parties also cite Block v. Rutherford (1984) 468 U.S. 576, decided on
the same day as Hudson. Block involved only a due process challenge to certain
jail security practices and therefore is not particularly helpful in analyzing
defendant’s Fourth Amendment claim.
13
pages 522-530. He further asserts that no legitimate security reasons existed here
based on the stipulated testimony of former Deputy District Attorney Neidorf that
he had ordered the taping “to gather information.” We are not persuaded.
Preliminarily, we note that various federal and state appellate courts have
disagreed with regard to whether the high court’s decision in Hudson that
convicted prisoners lack any expectation of privacy in their cells applies with
equal force to persons who are still facing trial. One line of cases, beginning with
United States v. Cohen (2d Cir. 1986) 796 F.2d 20, holds that persons being held
before trial retain a limited expectation of privacy that protects them from searches
conducted for other than legitimate security reasons. (See United States v.
Friedman (2d Cir. 2002) 300 F.3d 111, 123; United States v. Willoughby (2d Cir.
1988) 860 F.2d 15, 20-22 [intercepted conversations admissible where taping was
a justifiable security measure]; Cohen, supra, at p. 24 [warrantless cell search
solely to obtain information for prosecution violated Fourth Amendment]; Rogers
v. State (Fla. 2001) 783 So.2d 980, 990-992 [same]; McCoy v. State
(Fla.Dist.Ct.App. 1994) 639 So.2d 163, 167 [same]; State v. Henderson (Ga.
1999) 517 S.E.2d 61, 62-64 [same]; Lowe v. State (Ga.Ct.App. 1992) 416 S.E.2d
750, 752 [same]; State v. Neely (Neb. 1990) 462 N.W.2d 105, 112 [Hudson
inapplicable to search of pretrial detainee’s luggage held in jail’s locked
inventory]; State v. Jackson (N.J. Super. Ct. Law Div. 1999) 729 A.2d 55, 63-65
[evidence suppressed where security concern was merely a pretext for an
evidence-gathering search]; see also United States v. Hearst (9th Cir. 1977) 563
F.2d 1331, 1345; see generally 4 LaFave, Search and Seizure (3d ed. 1996)
§ 10.9(d), pp. 754-755.) We cited Cohen in People v. Hardy (1992) 2 Cal.4th 86,
181, in rejecting a claim that a jail cell search violated the detainee’s Sixth and
Fourteenth Amendment rights.
14
Another line of cases, however, construes Hudson as validating any
jailhouse search, regardless of its purpose, and as applying to persons incarcerated
before trial as well as to convicted prisoners. (See State v. Apelt (Ariz. 1993) 861
P.2d 634, 649; State v. O’Rourke (Me. 2001) 792 A.2d 262, 265-267; People v.
Phillips (Mich.Ct.App. 1996) 555 N.W.2d 742, 743-744; State v. Wiley (N.C.
2002) 565 S.E.2d 22, 32-33; State v. Martin (N.C. 1988) 367 S.E.2d 618, 620-622
[Hudson’s reasoning equally applicable to pretrial detainees in jails]; Soria v. State
(Tex.Crim.App. 1996) 933 S.W.2d 46, 60 [same]; see also People v. Von Villas
(1993) 11 Cal.App.4th 175, 212-216 [pretrial detainee had no expectation of
privacy in conversation with wife in jail visiting room]; United States v. Van
Poyck (9th Cir. 1996) 77 F.3d 285, 290-291 [pretrial detainee had no expectation
of privacy in phone calls from jail].)
We agree with this latter line of cases that persons held pretrial in a jail—as
defendant was when the police recorded his conversations with Redmond and
Bennett—have no expectation of privacy for the following reasons. First,
Hudson’s rationale, that jail security requires “close and continued surveillance of
inmates and their cells” (see Hudson, supra, 468 U.S. at p. 527), extends to anyone
being held in a jail. Indeed, in Bell the high court recognized that pretrial
detainees pose similar—if not the same—security concerns as convicted prisoners.
(See Bell, supra, 441 U.S. at pp. 546-547, fn. 28 [“[t]here is no basis for
concluding that pretrial detainees pose any lesser security risk than convicted
inmates”].) As Justice O’Connor has suggested, it is “[t]he fact of arrest and
incarceration [that] abates all legitimate Fourth Amendment privacy and
possessory interests in personal effects [citations] and therefore all searches and
seizures of the contents of an inmate’s cell are reasonable.” (Hudson, supra, 468
U.S. at p. 538 (conc. opn. of O’Connor, J.), italics added.)
15
Second, Hudson applies to jailhouse searches regardless of the purpose of
the search. (See Hudson, supra, 468 U.S. at pp. 529-530 [rejecting claim that
search violated Fourth Amendment because it was designed solely to harass].)
Third, although Hudson involved the physical search of a cell, its rationale
extends as well to eavesdropping. Lanza and Katz were eavesdropping cases, yet
the United States Supreme Court drew on those cases in Hudson. (See Hudson,
supra, 468 U.S. at p. 525 [applying Katz expectation of privacy test in cell search
context]; see also Bell, supra, 441 U.S. at pp. 556-557 [citing Lanza in cell search
context].)
As a separate reason supporting his claim that the tape recording violated
his Fourth Amendment rights, defendant points out that it took place in 1985,
when, he argues, California law provided persons incarcerated in this state with a
reasonable expectation of privacy. Defendant relies on former section 2600 as
construed in this court’s 1982 decision in DeLancie, supra, 31 Cal.3d 865.
Under former section 2600, state prison inmates could “be deprived of such
rights, and only such rights, as . . . necessary . . . to provide for the reasonable
security of the institution . . . and for the reasonable protection of the public.”
(Stats. 1975, ch. 1175, § 3, p. 2897.) DeLancie held that former section 2600
protected pretrial detainees as well as prison inmates and precluded the recording
of a pretrial detainee’s conversations with visitors and other detainees for reasons
other than jail security or protection of the public. (DeLancie, supra, 31 Cal.3d at
p. 876.)5 Because former section 2600 as construed in DeLancie was the
5
In 1994, the Legislature amended section 2600 to read as it presently does
that prison inmates may “be deprived of such rights . . . as [are] reasonably related
to legitimate penological interests.” That amendment, we held in People v. Loyd
(2002) 27 Cal.4th 997, restored the pre-DeLancie state of the law, allowing law
(Footnote continued on next page)
16
controlling law when the officers recorded defendant’s conversations in jail, he
asserts that he must have had an expectation of privacy in his jail cell that society
was “prepared to recognize as reasonable.” (See People v. Ayala (2000) 23
Cal.4th 225, 255 [reasonable expectation is one that has “ ‘ “a source outside of
the Fourth Amendment” ’ ”].)
We disagree. We have already concluded that under Hudson, supra, 468
U.S. 517, pretrial detainees can have no legitimate expectation that their jailhouse
conversations will not be monitored or recorded. DeLancie, which was decided
before Hudson, distinguishes permissible searches from impermissible ones based
on the purpose of the search: security searches are permissible, while investigatory
searches are not. Hudson, however, does not recognize that distinction. Rather, as
we have explained, under Hudson the purpose of a search has no bearing on the
question whether a legitimate expectation of privacy exists. (See Hudson, supra,
468 U.S. at pp. 529-530.) In other words, if a pretrial detainee can reasonably
expect that his cell may be monitored or searched for security reasons, then he
cannot reasonably expect any privacy. It is the fact that an intrusion may occur,
not the reason for the intrusion, that vitiates the expectation of privacy.
Accordingly, although under DeLancie defendant reasonably could have expected
that the police and prosecution would not violate state law by monitoring his
(Footnote continued from previous page)
enforcement officers, after the effective date of the amendment, “to monitor and
record unprivileged [jailhouse] communications . . . to gather evidence of crime.”
(Id. at p. 1010; see also Thompson v. Department of Corrections (2001) 25 Cal.4th
117, 120.)
17
conversations for investigatory reasons, that expectation was basically irrelevant to
the Fourth Amendment question.
Moreover, even were we to conclude that defendant retained some
legitimate expectation of privacy in jail that protected him from a warrantless tape-
recording of his conversations absent a legitimate security interest, here, the
officers conducted the tape-recording in part, as the trial court found, to further
just such an interest—the protection of DeAndre Brown, who was providing
evidence against defendant.
When considering a trial court’s denial of a suppression motion, “we view
the record in the light most favorable to the trial court’s ruling, deferring to those
express or implied findings of fact supported by substantial evidence.” (People v.
Jenkins (2001) 22 Cal.4th 900, 969; see also People v. Alvarez (1996) 14 Cal.4th
155, 182; People v. Williams (1988) 45 Cal.3d 1268, 1301.) We independently
review the trial court’s application of the law to the facts. (People v. Jenkins,
supra, at p. 969; People v. Alvarez, supra, at p. 182.)
Here, substantial evidence supports the trial court’s finding that a legitimate
security interest—protecting Brown—justified the jailhouse recording. Detective
DeAnda testified at defendant’s suppression hearing to the following facts: the
purpose of the tape-recording was to determine whether defendant or his co-
suspects were threatening Brown’s safety; Brown had told DeAnda that Brown
feared for his safety because he saw defendant shoot the two victims;6 and Brown
6
Defendant contends that in none of Brown’s tape-recorded conversations
with police does he express fear for his own safety. DeAnda testified, however,
that he had conversations with Brown that were not taped. Moreover, DeAnda’s
concern for Brown’s safety could have been based on considerations independent
of what Brown told him. Accordingly, the lack of a tape-recorded expression of
(Footnote continued on next page)
18
said that defendant was a member of the East Coast Crips gang. Moreover, at the
time of the taping, Brown was a potential prosecution witness against defendant in
a capital murder case. It thus was reasonable for Detective DeAnda to believe
that, even if Brown was jailed separately from defendant, defendant’s friends
might retaliate against Brown for informing on defendant. DeAnda’s testimony
amply supports the trial court’s conclusion that the police had a bona fide concern
for Brown’s safety, which justified the taping.
Defendant raises several other contentions. For example, he argues that the
safety concern expressed by the police was a pretext developed to justify an
otherwise illegal taping; that Detective DeAnda’s subjective concern for Brown’s
safety was insufficient to justify the tape recording absent articulable facts
providing a basis for such a concern; that the police helped to create the danger to
Brown by revealing Brown’s cooperation to defendant and by housing Brown
separately from defendant, Redmond, and Bennett; and that the taping was
improper because it was not “routine.” We have examined each of these
contentions and determined that none has merit.
B. Defendant’s Absence from Pretrial Hearing on Tape Excerpts
Defendant contends that his right to due process under the federal
Constitution, as well as his state constitutional and statutory rights, were violated
when the trial court failed to ensure his presence at a May 16, 1989 pretrial
hearing regarding admissibility of the jailhouse tape.
(Footnote continued from previous page)
fear by Brown does not undermine the trial court’s conclusion that a bona fide
security concern justified the taping.
19
Although defense counsel had earlier indicated that defendant would be
present at the hearing, counsel stated at the start of the hearing that defendant was
aware of the purpose of the hearing but had decided to “waive his presence.” At
the hearing, the trial court and counsel reviewed each of the 51 tape excerpts that
the prosecution sought to have admitted into evidence, in order to reach an
agreement as to the words being spoken so that a transcript of the tape could be
prepared. Defense counsel and the prosecutor then argued the admissibility of the
excerpts, and the trial court ruled that 49 of the excerpts would be admitted. The
taped excerpts were presented at trial together with the agreed-upon transcript of
the conversations on the tape.
Defendant now makes the following assertions: (1) his absence from the
hearing violated his constitutional and statutory rights (see Kentucky v. Stincer
(1987) 482 U.S. 730, 745; Snyder v. Massachusetts (1934) 291 U.S. 97, 105-106;
People v. Lucero (2000) 23 Cal.4th 692, 717; see also §§ 977, subd. (b)(1), 1043);
(2) defense counsel’s purported waiver of defendant’s presence was ineffective;
and (3) conducting the hearing in defendant’s absence resulted in the admission at
trial of highly prejudicial portions of the jailhouse tape. The Attorney General
counters that defendant, through counsel, validly waived his federal constitutional
right to presence at the hearing, and that although defendant’s purported waiver of
his state statutory right to be present was ineffective, his presence was not
statutorily required and any state law error was harmless.
We conclude that this claim fails because defendant suffered no prejudice.
We have summarized the federal law governing a defendant’s presence at
trial as follows: “ ‘A criminal defendant’s right to be personally present at trial is
guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution
. . . . [Citations.] A defendant, however, “does not have a right to be present at
every hearing held in the course of a trial.” [Citation.] A defendant’s presence is
20
required if it “bears a reasonable and substantial relation to his full opportunity to
defend against the charges.” [Citation.]’ ” (People v. Lucero, supra, 23 Cal.4th at
pp. 716-717; see People v. Waidla (2000) 22 Cal.4th 690, 742.) The standard
under sections 977 and 1043 is similar. “ ‘[T]he accused is not entitled to be
personally present during proceedings which bear no reasonable, substantial
relation to his opportunity to defend the charges against him . . . . [Citation.]’
[Citation.]” (People v. Ervin (2000) 22 Cal.4th 48, 74; People v. Waidla, supra,
22 Cal.4th at p. 742.)
Here, defendant had both a statutory and a constitutional right to be present
at the May 16, 1989, hearing during which the contents of the jailhouse tape were
discussed and agreed upon. Because defendant was personally present at the
police station lockup when the tapes were made, he could have assisted his
attorneys in deciphering the tape — both by identifying who was speaking in each
passage, and by determining what was being said. The tape, in turn, was the sole
evidence that corroborated DeAndre Brown’s testimony that defendant was
present during the kidnappings and robberies and personally shot both victims.
Even the prosecutor agreed that defendant should be present at this hearing.
Accordingly, defendant’s presence bore a reasonable and substantial relationship
to his ability to defend the charges against him.
Nor did defendant validly waive his right to be present under state or
federal law. Section 977, subdivision (b)(1), states that in felony prosecutions “the
accused shall be present” at certain proceedings not relevant here, and “at all other
proceedings unless he or she shall, with leave of court, execute in open court a
written waiver of his or her right to be personally present, as provided by
paragraph (2).” (Italics added.) Section 977, subdivision (b)(2) further provides
“[t]he accused may execute a written waiver of his or her right to be personally
present, approved by his or her counsel, and the waiver shall be filed with the
21
court.” Finally, section 1043 provides that a felony defendant “shall be personally
present at the trial,” (id., subd. (a)), but that the trial may continue in the
defendant’s absence if (1) the defendant persists in disruptive behavior after being
warned (id., subd. (b)(1)); (2) the defendant in a noncapital case is voluntarily
absent (id., subd. (b)(2)); or (3) the defendant waives his right to be present
pursuant to section 977 (id., subd. (d)). “[W]hen read together, sections 977 and
1043 permit a capital defendant to be absent from the courtroom only on two
occasions: (1) when he has been removed by the court for disruptive behavior
under section 1043, subdivision (b)(1), and (2) when he voluntarily waives his
rights pursuant to section 977, subdivision (b)(1).” (People v. Jackson (1996) 13
Cal.4th 1164, 1210.) Here, there is no claim that defendant’s disruptive behavior
allowed the court to conduct the May 16, 1989 hearing in his absence, and no
evidence that defendant executed a written waiver of his presence at that hearing.
Accordingly, the trial court erred under sections 977 and 1043 by conducting the
proceeding in defendant’s absence.
Similarly, there was no valid waiver of defendant’s constitutional right to
presence. As with other constitutional rights, a capital defendant may waive his
right to presence at trial, as long as his waiver is voluntary, knowing and
intelligent under the standard set forth in Johnston v. Zerbst (1938) 304 U.S. 458,
464. (See People v. Robertson (1989) 48 Cal.3d 18, 62 [defendant’s written
waiver of his right to be present at his sentence reduction hearing did not validly
waive his right to be present at his sentencing, because “defendant’s waiver form
cannot reasonably be construed to embrace a knowing and intelligent waiver of his
presence at the time of sentence”( italics added)]; see also People v. Price (1991) 1
Cal.4th 324, 405; People v. Sully (1991) 53 Cal.3d 1195, 1238-1240; People v.
Lang (1989) 49 Cal.3d 991, 1026.) In each of these cases, however, it was the
defendant himself who waived his presence; in contrast, in this case, defendant’s
22
counsel purported to waive his presence for him. It does not appear that we have
addressed the question whether defense counsel may waive the defendant’s
presence. Some federal cases that have addressed this issue have held that defense
counsel may do so, but only if there is evidence that defendant consented to the
waiver. (E.g., Carter v. Sowders (6th Cir. 1993) 5 F.3d 975, 981-982; Larson v.
Tansy (10th Cir. 1990) 911 F.2d 392, 396-397; but see United States v. Gordon
(D.C. Cir. 1987) 829 F.2d 119, 125-126 [personal on-the-record waiver of
presence right required].) At a minimum, there must be some evidence that
defendant understood the right he was waiving and the consequences of doing so.
(See United States v. Nichols (2d Cir. 1995) 56 F.3d 403, 416-417.)7
Here, there is scant evidence of consent, and even less evidence that
defendant understood the right he was waiving and the consequences of his
waiver. All the record shows is that defense counsel represented to the court that
counsel had discussed the hearing with defendant and that defendant would waive
his presence. There is no evidence that defense counsel informed defendant of his
right to attend the hearing; nor is there evidence that defendant understood that by
absenting himself from the hearing he would be unable to contribute to the
discussion of the contents of the tape recording. Accordingly, we cannot conclude
that defendant knowingly and intelligently waived his right to presence at the
hearing.
7
Relying on United States v. Gagnon (1985) 470 U.S. 522, the Attorney
General argues that defendant validly waived his federal constitutional right to be
present at the hearing by “his absence from the proceeding, which he knew was to
take place and that he had a right to attend.” Gagnon interprets Federal Rules of
Criminal Procedure, rule 43 (18 U.S.C.) and is inapplicable here.
23
We turn now to the question of prejudice. Under the federal Constitution,
error pertaining to a defendant’s presence is evaluated under the harmless beyond
a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S.
18, 23. (People v. Robertson (1989) 48 Cal.3d 18, 62; see Campbell v. Rice (9th
Cir., May 20, 2005, No. 99-17311) ___ F.3d ___, 2005 WL 1189650, *4-5.) Error
under sections 977 and 1043 is state law error only, and therefore is reversible
only if “ ‘it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.’ (People v. Watson
(1956) 46 Cal.2d 818, 836.)” (People v. Jackson, supra, 13 Cal.4th at p. 1211; see
also People v. Mayfield (1997) 14 Cal.4th 668, 738-739.) Defendant asserts that
had he been present at the May 16, 1989 hearing, he could have assisted his
attorney in deciphering the tape recording and filling in many of the portions of
the transcript that were marked “unintelligible.” He further asserts that some of
the most prejudicial excerpts (such as excerpt 9, in which he admits to having had
a chance to “get some nuts off,” indicating he could have raped victim Boyd),
would have been deemed irrelevant and inadmissible.
We disagree. First, defendant’s attorneys had access to the tape and the
proposed transcript before the May 16, 1989 hearing. Thus, they had ample
opportunity to discuss the contents with defendant and to seek his assistance in
deciphering the recorded conversation. Assuming they did so, defendant’s
presence at the hearing would have added little to his attorneys’ ability to argue
the admissibility of the excerpts. Further, the trial court’s rulings at the May 16,
1989 hearing were without prejudice to later arguments that the transcript was
inaccurate or that certain portions were not admissible. Thus, it appears that
defendant’s counsel could have consulted with him after the hearing, and could
have brought to the court’s attention at a later time any possible contributions or
corrections that defendant might have made.
24
But even assuming defendant and his counsel had no opportunity to review
the tape and transcript either before or after the hearing, there is no way on this
record to determine, had defendant been present at the hearing: (1) whether he
could have filled in the “unintelligible” portions of the tape and transcript;8
(2) whether the prosecutor would have agreed to defendant’s interpretation; and
(3) had defendant’s interpretation been agreed to, whether the resulting transcript
of the tape recording would have been less prejudicial to defendant than the
transcript used at trial. Because we do not know what defendant would have said
about the unintelligible portions on the tape, it seems equally reasonable to assume
that his clarifications would have done nothing to make the tape less incriminating
or perhaps made it even more incriminating.
Second, although the transcript contains numerous passages marked
“unintelligible,” the vast majority of the crucial passages that linked defendant to
the shooting were intelligible. As explained below at pages 30-31 and 43-44,
these unblemished passages sufficed to establish defendant’s identity as the
shooter and provided all the legal corroboration necessary for the jury to credit
Brown’s testimony.
Defendant also contends that had he been present at the hearing he could
have assisted his attorneys in identifying the voices on the tape. But as explained
below at pages 42-43, the jury could have identified the voices by analyzing what
was said without relying on Brown’s voice identifications. Defendant’s
contribution to the voice identification effort, assuming he would have been
8
It is doubtful that defendant would have waived his Fifth Amendment right
not to incriminate himself by testifying at the hearing regarding the contents of the
tape. Presumably, defendant’s contribution to the discussion at the hearing would
have been made through his attorneys.
25
willing to provide it, would not have changed the words that were on the tape or
the jury’s ability independently to analyze those words.
For all of these reasons, we conclude that defendant’s absence from the
May 16, 1989 hearing was harmless beyond a reasonable doubt. (Chapman v.
California, supra, 386 U.S. at p. 23.) It follows that it is not “ ‘reasonably
probable’ ” that a result more favorable to defendant would have been reached had
he been present. (People v. Jackson, supra, 13 Cal.4th at p. 1211.)
C. Admission of Hearsay Statements of Redmond and Bennett on
Tape Excerpts
1. Admissibility of hearsay on the tape excerpts
The prosecution offered into evidence 51 separate excerpts of the taped
jailhouse conversations. Defendant challenged each excerpt as inadmissible
hearsay (Evid. Code, § 1200) and asked the trial court to consider each excerpt
separately to determine whether it fell within any hearsay exception. The court
declined to do so. The court did exclude two excerpts, but it admitted the
remaining 49 either as statements of defendant, as adoptive admissions, or as
providing context to defendant’s statements. The court also ruled that the
probative value of the excerpts outweighed any prejudicial effect. (See Evid.
Code, § 352.)
At trial, the tape recording (designated People’s Exhibit 31) and a transcript
(designated People’s Exhibit 32) of the 49 excerpts were both admitted into
evidence. Brown identified each of the speakers on the tape, and testified that the
initials DR for Damon Redmond, DB for Donald Bennett, and SD for defendant
appearing on the transcript identified the person who, in Brown’s opinion, was the
speaker in each passage. The court told the jury that except where the transcript
indicated “unintelligible” or had words in parentheses, the parties agreed to the
26
words on the tape but did not agree as to who said what; that the initials on the
transcript reflected only Brown’s opinion as to who was speaking; and that
ultimately it was for the jury to decide what words were said, who said them, and
what relevance those words had to the case.
Defendant now contends that 16 of the excerpts admitted into evidence
contain hearsay statements by either Bennett or Redmond. He faults the trial court
for declining to consider separately the admissibility of each tape excerpt, and for
its giving of inadequate jury instructions on adoptive admissions, which together,
he asserts, resulted in jury consideration of prejudicial hearsay statements by
Redmond and Bennett, in violation of state and federal law. We disagree.
2. Legal principles
Hearsay is “evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) Hearsay is not admissible unless it
qualifies under some exception to the hearsay rule. Two hearsay exceptions are
relevant here. A defendant’s own hearsay statements are admissible. (See id.,
§ 1220; People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5; People v. Carpenter
(1999) 21 Cal.4th 1016, 1049.) A statement by someone other than the defendant
is admissible as an adoptive admission if the defendant “with knowledge of the
content thereof, has by words or other conduct manifested his adoption [of] or his
belief in its truth.” (Evid. Code, § 1221; see People v. Preston (1973) 9 Cal.3d
308, 314 & fn. 3.)
In determining whether a statement is admissible as an adoptive admission,
a trial court must first decide whether there is evidence sufficient to sustain a
finding that: (a) the defendant heard and understood the statement under
circumstances that normally would call for a response; and (b) by words or
conduct, the defendant adopted the statement as true. (Evid. Code, §§ 403, 1221;
27
People v. Carter (2003) 30 Cal.4th 1166, 1198; People v. Preston, supra, 9 Cal.3d
at p. 314 & fn. 3.) Generally, this requires separately examining each excerpt of
the tape-recorded conversations. (See Williamson v. United States (1994) 512
U.S. 594, 599-602 [trial court erred in admitting a lengthy narrative as a statement
against penal interest under Federal Rules of Evidence, rule 804(b)(3) (28 U.S.C.)
on the ground that it was generally self-inculpatory; rather, the trial court should
have examined each individual statement or remark within the longer narrative to
determine whether it was inculpatory or exculpatory]; accord, People v. Lawley
(2002) 27 Cal.4th 102, 153.)
Evidence of an out-of-court statement is also admissible if offered for a
nonhearsay purpose—that is, for something other than the truth of the matter
asserted—and the nonhearsay purpose is relevant to an issue in dispute. (People v.
Turner (1994) 8 Cal.4th 137, 189; People v. Armendariz (1984) 37 Cal.3d 573,
585.) For example, an out-of-court statement is admissible if offered solely to
give context to other admissible hearsay statements. (People v. Turner, supra, 8
Cal.4th at pp. 189-190.)
Here, the excerpts of the recorded jailhouse conversations and the
transcripts made of those recorded excerpts were evidence of statements made by
someone “other than by a witness while testifying at the hearing” (Evid. Code,
§ 1200, subd. (a))—in other words, out-of-court statements by defendant,
Redmond, and Bennett. Thus, statements on the tape qualified as hearsay to the
extent the prosecution was offering those statements to prove the truth of the facts
being asserted by the speaker. These statements were inadmissible unless, as
relevant here, they were defendant’s own statements, or they qualified as adoptive
admissions of defendant, or they were offered for a nonhearsay purpose.
28
3. Defense contentions
Defendant argues here that seven of the excerpts of the recorded
conversations were improperly admitted as adoptive admissions because
defendant’s response to an assertion made by Redmond or Bennett was either
unintelligible or indicated defendant did not hear or understand the assertion. For
example, in one exchange (excerpt 47 of People’s Exhibits 31 and 32) Bennett
asks defendant, “You know what else I am wondering?” to which defendant
responds “What?” Bennett then states, “They found it in the case he had it in,” to
which defendant answers “A what?” We conclude that each of these excerpts, as
well as the others to which defendant now objects, were properly admitted. As
explained on page 27, ante, a statement is admissible as an adoptive admission if
“there is evidence sufficient to sustain a finding” (Evid. Code, § 403, subd. (a))
that the defendant heard and understood the statement under circumstances calling
for a response and by words or conduct adopted it as true. That standard is amply
met here. For example, shortly after the exchange quoted above is the statement
by defendant “if they did, oh man, why man?” indicating defendant both heard
what Bennett said and understood it referred to the Uzi Brown had put in Harris’s
briefcase. Moreover, the trial court told the jurors to listen to the tape and decide
for themselves what was being said and by whom. Thus, it was up to the jury to
decide what words defendant spoke and whether through his words or silence he
adopted the comments by Redmond and Bennett. In doing so, the jury could have
considered numerous factors, such as tone of voice and inflection, that are not
reflected in the transcript.
Defendant also argues that portions of certain excerpts (1 and 11) were
inadmissible because Redmond was recounting his conversations with police,
conversations defendant could not have heard. (See Evid. Code, § 1221 [adoptive
admission requires that party have “knowledge of the content” of the declarant’s
29
statement].) But these statements by Redmond not only recounted his
conversations with police but also implicated defendant in the kidnapping and
murder of Boyd and Harris. For example, Redmond describes how the police
asked him “12 times” whether he had seen defendant shoot the victims, to which
defendant’s only reply was, “Oh man . . . 12 times.” From this response, the jury
reasonably could have concluded that by not denying that he had shot the victims,
defendant had implicitly adopted the substance of Redmond’s statement that
defendant was the shooter.
Defendant further contends that the last line or paragraph of certain
excerpts of the tape-recorded conversations (1, 4-6, 8-11, 14, 15, 37 and 41)
should have been excluded because the speaker was someone other than defendant
and there was no way to determine what defendant said or did in response.9 We
disagree. We have examined each of these statements and conclude they were
either innocuous or nonprejudicial in the face of a damaging admission or adoptive
admission by defendant earlier in the excerpt. Moreover, although Brown had
identified each of the speakers on the tape recording, it was ultimately for the jury
to decide who was speaking. In some instances, the jury may have concluded that
the person making the last statement on the excerpt was not Redmond or Bennett
but defendant.
Even assuming some of the challenged excerpt portions should not have
been admitted, defendant suffered no possible prejudice. The trial court instructed
the jury to consider statements by Redmond and Bennett only to the extent
9
For example, the final paragraph of the first excerpt quotes Redmond as
stating that the police asked him whether he knew of any object that defendant had
touched, and recounting his response as “I told them ‘no’ I can’t remember.” The
excerpt includes no reply by defendant.
30
defendant through his own comments or conduct had adopted those statements.
We presume the jury followed this instruction. (People v. Turner, supra, 8 Cal.4th
at p. 190; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Moreover, the jury reasonably could have concluded from defendant’s
comments in other excerpts not challenged here that defendant had admitted being
the shooter. For example, defendant made the following statement referring to the
police having learned the details of the crime from Brown: “No mother fucker
didn’t see me shoot no-mother-fuckin-body. Tell you the truth, the mother fucker
that told them that didn’t really see you know, they just heard, you know what I’m
sayin’?”10 Although any inadmissible hearsay statements of Redmond and
Bennett might have incrementally bolstered Brown’s credibility, it is not
reasonably probable that their admission affected the verdict (People v. Watson
(1956) 46 Cal.2d 818, 836) because they were inconsequential in light of the vast
quantity of admissible, highly damaging evidence on the tape in the form of
defendant’s own statements and adoptive admissions.
Finally, defendant faults the trial court for failing to consider each excerpt
individually in ruling on admissibility. Rather, the court simply concluded that the
“overall scene” was one in which defendant would have been expected to object,
and that any statements that were not adoptive admissions were admissible to give
context to defendant’s statements. Even had the trial court individually considered
10
Defendant also made the following statements about what Brown had told
the police: “Yeah, but damn, what De De [Brown] done told them, that’s what’
goin’ to count. That’s what goin’ to hurt right there. Man, they told me, just like a
picture. ‘You asshole mother fucker. You took the girl out first and bam, you
shot the girl. And then you took the dude out, then bam, then you shot the dude.’ ”
“I wonder if he tell where he pass Stanley the gun, and Stanley shot them.”
31
each excerpt, however, there is no reasonable probability that the outcome of the
trial would have been more favorable to defendant (People v. Watson, supra, 46
Cal.2d at p. 836; see Evid. Code, § 353, subd. (b)) because, as we have concluded,
all of the excerpts defendant challenges on appeal were properly admitted. For the
same reason, we reject defendant’s contention that admission of the tape excerpts
without individual consideration violated his Fifth and Fourteenth Amendment
right to due process of law, his Sixth Amendment right to confront and cross-
examine witnesses, and his Eighth Amendment right to reliability in the guilt and
sentencing determinations.
4. Special Instruction A
At a hearing on jury instructions, the trial court said it was disinclined to
instruct on CALJIC No. 2.71.5 (adoptive admissions—silence, false or evasive
reply to accusation) because there were no direct accusations made to defendant.
In addition, defense counsel objected to CALJIC No. 2.71.5 on the ground that
defendant’s silence in the face of accusatory statements was based on his Fifth
Amendment right to remain silent. The court also said it would not give CALJIC
No. 3.13 (accomplices may not corroborate one another) because cosuspects
Redmond and Bennett did not testify.
Ultimately, the court gave an alternative to CALJIC Nos. 2.71.5 and 3.13,
entitled “Special Instruction A,” which provided: “As to People’s Exhibit 31, the
tape recording of conversations in the holding cell area of the West Los Angeles
Station of the L.A.P.D., you are instructed as follows: [¶] Statements on that tape
which you find beyond a reasonable doubt to have been spoken by the defendant
may be considered by you to determine if they constitute an admission or
admissions as previously defined in these instructions. If you find that the
defendant made any admissions, such admissions may be considered in
determining whether the testimony of DeAndre Brown has been corroborated. [¶]
32
Statements on that tape made by any person other than defendant may not, in and
of themselves, be considered as possible corroboration of the testimony of
DeAndre Brown. Such statements may be considered by you only for the purpose
of explaining what the defendant meant by any statements made by him and/or as
a possible implied admission by the defendant. Such statements may be
considered by you for one or both of those purposes only if you find both of the
following to be true beyond a reasonable doubt: One, the defendant heard and
understood the other [person’s] statement; and Two, the defendant expressly or
impliedly indicated that the other [person’s] statement was true. [¶] Any implied
admission by the defendant may be considered as possible corroboration of the
testimony of DeAndre Brown.”
Defendant now contends that the trial court had a duty to give CALJIC No.
2.71.5 on its own initiative. We disagree. A trial court has no duty to so instruct
the jury without a request from counsel. (People v. Carter, supra, 30 Cal.4th at
pp. 1197-1198.)
Defendant further argues that Special Instruction A was defective in several
respects. Because defendant expressly agreed to this instruction, he is barred from
challenging it on appeal under the doctrine of invited error. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1135; People v. Cooper (1991) 53 Cal.3d 771, 830-831.)
In any event, defendant’s attacks on the instruction lack merit.
Contrary to defendant’s contention, Special Instruction A was not defective
in failing to tell the jury that a statement made by defendant could not be an
adoptive admission (or, in the court’s terminology, an “implied” admission) unless
it responded to an accusation against him. For the adoptive admission exception
to the hearsay rule to apply, no “direct accusation in so many words” is necessary.
(People v. Fauber (1992) 2 Cal.4th 792, 852.) Rather, it is enough that the
evidence showed that the defendant participated in a private conversation in which
33
the crime was discussed and the circumstances offered him the opportunity to
deny responsibility or otherwise dissociate himself from the crime, but that he did
not do so. (Ibid.) Here, Special Instruction A informed the jury of these
requirements by noting that defendant had to have “heard and understood” the
declarant’s statement and “expressly or impliedly indicated its truth.”
Defendant next contends that Special Instruction A failed to inform the jury
that a defendant must have “knowledge of the content” of the declarant’s
statement. (See Evid. Code, § 1221.) According to defendant, the knowledge
requirement refers not just to knowledge of the words the declarant spoke, but
more specifically to knowledge of the subject matter referred to in the declarant’s
statements. Even assuming the instruction did not convey that precise meaning,
there was no prejudice to defendant. The jury could not have concluded that, as
the instruction stated, defendant “heard and understood” another’s statement and
“expressly or impliedly indicated that the . . . statement was true” unless the jury
also decided that defendant was familiar with the subject matter of the statement to
which he impliedly assented.
Defendant complains that Special Instruction A was inadequate because it
lacked the admonition in CALJIC No. 2.71.5 that the declarant’s statements
cannot be considered for their truth. We disagree. The instruction told the jury
that statements of the speakers on the tape other than defendant could be
considered only for the purpose of “explaining what the defendant meant by any
statements made by him and/or as a possible implied admission.” The instruction
went on to explain that to conclude that any statement constituted an “implied”
admission the jury had to “find both of the following to be true beyond a
reasonable doubt: One, the defendant heard and understood the other [person’s]
statement; and Two, the defendant expressly or impliedly indicated that the other
[person’s] statement was true.” The trial court also instructed under CALJIC
34
No. 2.09 that the jury was to consider evidence only for the limited purpose for
which it was admitted. These instructions together advised the jury that the
statements by Redmond and Bennett could be considered only insofar as they gave
meaning to defendant’s own express or implied admissions.
Further, we are not persuaded that Special Instruction A was deficient in
not telling the jury that it must disregard any statements of others that it did not
find that defendant adopted. (Cf. CALJIC No. 2.71.5.) This notion was implicit
in the instruction’s admonition that the jury could consider statements of others
only if it found “beyond a reasonable doubt” that “the defendant expressly or
impliedly indicated that the other [person’s] statement was true.” CALJIC
No. 2.09, which told the jury to consider evidence only for the limited purpose for
which it was admitted, reinforced this concept. We presume the jury followed
these instructions. (People v. Turner, supra, 8 Cal.4th at p. 190; People v. Mickey,
supra, 54 Cal.3d at p. 689, fn. 17.)
Finally, we note that the inclusion in Special Instruction A of a beyond a
reasonable doubt requirement — that the jury find beyond a reasonable doubt that
defendant heard and understood another’s statement and expressly or impliedly
indicated it was true — was substantially more favorable to defendant than the
standard instruction on adoptive admissions, CALJIC 2.71.5. We express no
opinion, however, on whether such language was required.
In sum, Special Instruction A adequately advised the jury of the
requirements for finding adoptive admissions and of their proper use.
D. Accomplice Corroboration
Section 1111 prohibits a conviction based “upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to
connect the defendant with the commission of the offense.” Defendant raises
several contentions based on this provision. Specifically, he focuses on
35
accomplice DeAndre Brown’s testimony, which at trial provided the primary
evidence against defendant. According to defendant, his convictions for two
counts of capital murder, robbery, and kidnapping, as well as the arson and grand
theft convictions and the robbery-murder and kidnapping-murder special
circumstances, all must be set aside because erroneous and confusing jury
instructions, misleading prosecutorial argument, and tainted evidence allowed the
jury to convict defendant without understanding that Brown’s testimony had to be
corroborated by independent evidence connecting defendant to the crimes.
Defendant also asserts that the instructions did not properly inform the jury that
statements by the other accomplices—Redmond and Bennett—could not be used
to corroborate Brown’s testimony. We reject these contentions.
1. Facts
At the guilt phase of defendant’s trial, accomplice Brown testified, giving
his firsthand account of the kidnappings and murders of Boyd and Harris. The
prosecution sought to corroborate Brown’s testimony with evidence of the
recorded conversations in jail among defendant, Redmond, and Bennett. At one
point, the trial court discussed with the prosecutor and defense counsel the
procedure for playing that tape. Defense counsel objected to providing the jury
with a copy of a transcript of the tape that included initials reflecting Brown’s
identification of each speaker. The trial court overruled this objection.
Ultimately, the court admonished the jury: “The attorneys have listened to
the [] tape and followed it in the transcript, and have reached an agreement that
certain words were said. [¶] This agreement does not cover who said them, it
does not cover anything other than these are the words that the attorneys hear . . .
[¶] You will find that on the transcript, there are three sets of initials: S.D., D.R.,
and D.B., standing respectively for the names Stanley Davis [defendant], Damon
Redmond, Donald Bennett. . . . [¶] That merely indicates that Mr. Brown is going
36
to testify that, in his opinion, that statement that you hear is made by the person
whose initials are indicated. It does not amount to an agreement by the attorneys
that in fact that is the person talking on the tape. It’s merely a quick and short way
of having you understand that that’s the voice identification made by Mr. Brown,
and it has no other significance. . . . [¶] And I want to emphasize that the placing
of the initials to the side of the statement indicates only one thing: That it’s
Mr. Brown’s opinion based on his experience with the individuals that that’s
who’s talking. . . . [¶] You must understand that the agreement between the
lawyers is only that these are the words being said. They are not agreeing that
these things pertain to this case. Whether they do or not, that’s for you to decide.
[¶] More than that, what relevancy they have, if they do apply to this case, what
weight is to be given to them, what significance, that’s for you to decide. [¶]
Also, you must understand that you are the final judges of what is said on this tape
recording. [¶] This transcript has been prepared as an aid to following through,
but it is not binding upon you.”
The jury then heard the tape recording. Thereafter, Brown testified that he
was in the courtroom when the tape was played, that he had seen the transcript of
the tape, and that the initials on the transcript accurately reflected who was
speaking, except that he could not say for sure that the passages marked D.B. were
actually spoken by Bennett.
The trial court gave CALJIC Nos. 2.09 (evidence admitted for a limited
purpose), 2.71 (admissions), 3.10 (definition of an accomplice), 3.11 (testimony of
an accomplice must be corroborated by other evidence connecting defendant with
the offense), 3.12 (sufficiency of evidence to corroborate an accomplice), 3.16
(Brown an accomplice as a matter of law), 3.18 (accomplice testimony should be
viewed with distrust). The court also gave Special Instruction A, which told the
jury to consider the recorded statements of the speakers other than defendant only
37
insofar as they explained defendant’s statements. In addition, the court gave
“Special Instruction B,” which read in pertinent part: “The initials which appear
in the left margin of People’s Exhibit [No.] 32 only represent De Andre Brown’s
opinion as to the identity of the speaker . . . Counsel have not agreed as to the
identity of any speaker on People’s Exhibit [No.] 31. The identity of any speaker
on People’s Exhibit [No.] 31 is for you to decide.”
2. Claim of instructional error -- use of Brown’s voice
identifications
Defendant contends that Special Instruction A was deficient in not telling
the jury that, in determining whether statements on the tape corroborated Brown’s
trial testimony describing the circumstances of the killings, it could not rely on the
written initials on the transcript that Brown matched with voices on the tape. We
reject this contention.
Section 1111 requires corroboration of accomplice testimony. It provides:
“A conviction cannot be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the defendant with
the commission of the offense; and the corroboration is not sufficient if it merely
shows the commission of the offense or the circumstances thereof. An accomplice
is hereby defined as 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.” (Ibid.)
The trial court instructed the jury that Brown was an accomplice as a matter
of law. Thus, for the jury to rely on Brown’s trial testimony about the
circumstances of the robberies, kidnappings and murders of Boyd and Harris, it
had to conclude that evidence independent of Brown’s testimony linked defendant
to those crimes. (§ 1111; People v. Rodrigues, supra, 8 Cal.4th at pp. 1128-1130;
People v. Tewksbury (1976) 15 Cal.3d 953, 969.) Such evidence could not come
38
from the other two accomplices, Redmond and Bennett (see People v. Tewksbury,
supra, 15 Cal.3d at p. 958), or from Brown himself (see People v. Andrews (1989)
49 Cal.3d 200, 214). Rather, under section 1111, there had to be evidence tending
to connect defendant with the crimes “without aid or assistance from the testimony
of” Brown, for instance, his testimony that the initialing on the tape transcript
accurately reflected who was speaking. (People v. Perry (1972) 7 Cal.3d 756,
769.) Such independent evidence “ ‘need not corroborate the accomplice as to
every fact to which he testifies but is sufficient if it does not require interpretation
and direction from the testimony of the accomplice yet tends to connect the
defendant with the commission of the offense in such a way as reasonably may
satisfy a jury that the accomplice is telling the truth . . . .’ [Citations.]” (Id. at
p. 769, italics added; see also People v. Rodrigues, supra, at p. 1128.)
In this case, the only source of independent corroboration of Brown’s trial
testimony was the jailhouse tape recording on which defendant, through his
statements and adoptive admissions, implicated himself in the crimes. Thus, the
task for the jury was to determine, independently of Brown’s testimony, including
his voice identifications, whether any statements by defendant on that tape linked
him to the charged crimes. Once the jury did so, it was free to rely on the whole
of Brown’s testimony, including his identification of the other voices on the tape,
in deciding the question of defendant’s guilt. As we explain, the jury instructions
adequately advised the jury.11
11
The underlying assumption of the trial court’s instructions to the jury on
accomplice testimony seems to have been that the prosecution had to establish by
evidence independent of the testimony of accomplice Brown that defendant was
the actual shooter of the two victims and that he therefore entertained the intent to
kill required to prove the felony-murder special circumstances under Carlos v.
(Footnote continued on next page)
39
CALJIC No. 3.12, given here, told the jury that accomplice Brown’s
testimony had to be corroborated by evidence which, “if believed, by itself and
without any aid, interpretation or direction from” Brown, connected defendant to
the crimes. The instruction continued: “In determining whether an accomplice
has been corroborated, you must first assume the testimony of the accomplice has
been removed from the case. You must then determine whether there is any
remaining evidence which tends to connect the defendant with the commission of
the crime.” In addition, Special Instruction B specifically told the jury that the
parties did not agree that the initials on the transcript corresponding to Brown’s
voice identifications accurately reflected who was speaking, and that “the identity
of any speaker” on the tape was a question for the jury. Given these instructions,
the jury would have understood that, before it could consider Brown’s trial
testimony describing the circumstances of the crimes, it had to decide, without the
aid of Brown’s voice identifications, that defendant’s statements on the tape
connected him to those crimes.
Defendant contends that the instructions failed to advise the jury adequately
that it could not use Brown’s voice identifications to assist it in finding the
independent corroboration that section 1111 requires. Thus, he asserts the
instructions did not preclude the jury from using evidence derived from
accomplice Brown (his voice identifications) to aid it in finding the required
corroboration. Assuming for the sake of argument that defendant is not barred
(Footnote continued from previous page)
Superior Court, supra, 35 Cal.3d 131. We have never so held. (See People v
Hamilton (1989) 48 Cal.3d 1142, 1177 [independent corroboration required only
to prove the crimes underlying the felony-murder special circumstances].)
40
from raising this claim under the doctrine of invited error, because he expressly
consented to Special Instruction A (see ante, p. 33; People v. Rodrigues, supra, 8
Cal.4th at p. 1135), the instructions were proper.
As explained above, CALJIC No. 3.12 and Special Instruction B correctly
explained to the jury that it had to disregard Brown’s testimony, including his
voice identifications, before attempting to find statements by defendant on the
jailhouse tape linking defendant to the crimes. Thus, these instructions correctly
told the jury how to find independent corroboration of Brown on the jailhouse
tape. Defendant posits that the jury might have concluded that Special Instruction
A superseded the general instructions on accomplice testimony, including CALJIC
No. 3.12. Not so. The trial court admonished the jury, under CALJIC No. 1.01, to
view the instructions as a whole and not to “single out any particular sentence or
any individual instruction and ignore the others.” We presume the jury followed
this instruction. (People v. Turner, supra, 8 Cal.4th at p. 190; People v. Mickey,
supra, 54 Cal.3d at p. 689, fn. 17.)
Defendant contends that the jury could not have followed the trial court’s
instructions because the jailhouse tape—the only possible source of independent
corroboration—was tainted by Brown’s voice identifications. According to
defendant, the jury would have relied on Brown’s voice identifications as reflected
by the initials on the tape’s transcript in determining the identity of each speaker.
We disagree. We presume that the jury followed the court’s instruction to
“assume the testimony of [Brown] has been removed from the case” before the
jury itself decided upon the identity of each speaker on the tape and then
determined that some of defendant’s comments provided independent
corroboration for Brown’s trial testimony.
Defendant suggests that the jury would not have understood that the
testimony of Brown referred to in CALJIC No. 3.12 included the initials on the
41
transcript corresponding to Brown’s voice identifications. But defense counsel in
argument specifically told the jury to “draw a line through the initials” and
“remove the initials from the transcript because that’s Brown.” And the
prosecutor argued “no one attacked Deandre Brown’s version of who the voices
were, the legend on the tape.” In light of these arguments, the jury would have
understood that Brown’s testimony included his voice identifications and the
initials on the transcript, and that these could not be considered when the jury
determined who was speaking on the tape.
Defendant also contends that comments by the prosecutor confused the jury
about its obligation to consider corroborating evidence before considering
Brown’s testimony. For example, the prosecutor stated that Brown was the only
“direct independent source of evidence in this case presented by a live witness to
establish whose voices are on that tape,” and that “the most obvious person you
call to identify the voices and to make use of that tape” was Brown. We disagree.
The prosecutor correctly told the jury that the corroborating evidence had to be
independent of Brown’s testimony, and that the jury had to determine the
identities of the speakers on the tape. The prosecutor suggested that in light of
Detective Evans’s and Detective DeAnda’s trial testimony that Redmond and
Bennett had told them they were present at the murder scene, the jurors could
logically deduce that the person who stated on the tape “I didn’t tell them” must
have been defendant. No comment by the prosecutor misled the jury.
3. Insufficiency of corroborating evidence
Defendant contends that the corroborating evidence itself was insufficient
to sustain his convictions for the murders, robberies, and kidnappings of Boyd and
Harris and the special circumstances of robbery murder and kidnapping murder
because the jury could not have found evidence linking defendant to the crimes
independent of Brown’s testimony. (See People v. Hamilton, supra, 48 Cal.3d
42
1142, 1177 [when special circumstance requires proof of some other crime, that
crime cannot be proved by the uncorroborated testimony of an accomplice]; see
also People v. Bowley (1963) 59 Cal.2d 855, 861-862 [corroborating evidence was
insufficient to sustain defendant’s conviction where the value of the evidence
rested entirely on the testimony of the accomplice].) Had, for example, Brown’s
testimony been necessary to identify the voices on the tape, the independent
corroboration rule would not have been satisfied. (See People v. Bowley, supra,
59 Cal.2d at p. 862, fn. 6.) But, as we have explained, that was not the case. In
addition to the methods the prosecutor outlined, there were a number of ways for
the jury to identify the voices on the tape. For example, as defense counsel
suggested, in several excerpts (9, 26, 40) one speaker addresses another as “Stan.”
From that comment, the jury could have concluded that the person who responded
in these excerpts was defendant, Stanley Davis, and having thereby identified
defendant’s voice, the jury could have determined when defendant was the speaker
elsewhere on the tape.12
12
The following provided other ways in which the jury could have identified
defendant’s voice independent of Brown’s testimony or the initials on the
transcript identifying the speakers: In excerpt 16 a voice says “the only reason
why I got caught [was] because I turned myself in.” The evidence at trial was that
defendant was the only one of the four participants who had turned himself in to
the police. Accordingly, the jury could have concluded that the person making
this statement was defendant. In excerpt 18, the speaker recounts his conversation
with police officers, quoting the officer as saying “ ‘mother fuckin’ Davis, you the
one that gun down the victim and took his . . . GTI rabbit.’ ” The jury could have
concluded that the speaker was defendant. Finally, Detective DeAnda testified
that at one point during the taping he entered defendant’s cell and engaged in a
conversation with him. The jury could have determined that the other participant
in the conversation, which became excerpt 42, was defendant.
43
Having listened to the tape, we conclude that defendant’s voice is
identifiable and distinguishable from the voices of the other speakers. Moreover,
in several comments defendant makes (excerpts 9, 15, 16, 23, 24, 26, 27, 31, 34,
38, 45, and 48) there are links to the charged crimes of murder, robbery, and
kidnapping. These comments thus sufficiently provide the legal corroboration that
section 1111 requires. Accordingly, substantial, independent evidence
corroborates Brown’s trial testimony and supports defendant’s convictions as well
as the findings on the special circumstances of murder in the course of a robbery
and murder in the course of kidnapping for robbery.
4. Use of Redmond’s and Bennett’s statements
Defendant contends that Special Instruction A did not adequately tell the
jury that hearsay statements by accomplices Redmond and Bennett, both on and
off the tape, could not be used to corroborate Brown’s trial testimony. Defendant
further contends that the trial court erred in declining to instruct the jury that
Redmond and Bennett were accomplices as a matter of law (CALJIC No. 3.16)
and by declining to give CALJIC No. 3.13, which, as applicable here, provides:
“The required corroboration of the testimony of an accomplice may not be
supplied by the testimony of any or all of [his] accomplices, but must come from
other evidence.” The trial court refused to give these instructions as potentially
confusing to the jury because Redmond and Bennett did not testify, and also
because Redmond and Bennett lacked any motive to obtain a benefit from police
when they made the statements recorded on the tape. Defendant argues that
without these CALJIC instructions, Special Instruction A improperly allowed the
jury to use the hearsay statements of Redmond and Bennett on the tape to
corroborate Brown and to corroborate each other. We disagree.
Section 1111 serves to ensure that a defendant will not be convicted solely
upon the testimony of an accomplice because an accomplice is likely to have self-
44
serving motives. (People v. Rodrigues, supra, 8 Cal.4th at p. 1132; People v.
Belton (1979) 23 Cal.3d 516, 526.) CALJIC No. 3.13 “acknowledges this danger
in the context of multiple accomplices who may be motivated by self-interest to
offer complementary but inaccurate testimony adverse to the defendant.” (People
v. Rodrigues, supra, 8 Cal.4th at p. 1132.) That danger was not implicated here
with respect to Bennett and Redmond, both of whose statements on the tape
recording were not made to law enforcement officials in the hope of gaining
leniency or immunity. Rather, those statements were made to each other and to
defendant in a conversation in a jail cell that all three apparently believed to be
private. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1133; cf. People v.
Belton, supra, 23 Cal.3d at pp. 519, 525.) In this context, there was no need to
instruct the jury that Redmond and Bennett were accomplices whose statements
could not be used to corroborate Brown. (See People v. Rodrigues, supra, 8
Cal.4th at p. 1133 [CALJIC No. 3.13 unnecessary where accomplice’s utterance
was made in defendant’s presence during the commission of the crimes for the
reasonably apparent purpose of facilitating a robbery].)
5. Claim of federal constitutional error
Defendant contends the trial court’s failure to correctly instruct the jury on
section 1111’s accomplice corroboration requirement, together with misleading
prosecutorial argument and tainted evidence, violated his right to confront and
cross-examine witnesses under the Sixth Amendment to the federal Constitution.
He relies on Lee v. Illinois (1986) 476 U.S. 530, and Mason v. Scully (2d Cir.
1994) 16 F.3d 38, cases involving prosecutorial use of a codefendant’s confession
as substantive evidence against a defendant in violation of the confrontation
clause. Here, by contrast, there was no confrontation violation because the
statements of Redmond and Bennett were not admitted as substantive evidence
against defendant, but only to give meaning to defendant’s admissions on the tape.
45
(See Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 [hearsay statements
not admitted for their truth do not violate the confrontation clause]; accord, People
v. Turner, supra, 8 Cal.4th at pp. 190-191; People v. Preston, supra, 9 Cal.3d at
pp. 315-316.)
Further, because there was no violation of California law governing
accomplice corroboration in this case, we need not decide whether any such
violation would have infringed defendant’s federal due process rights on a theory
that it denied him a state-created right. (Hicks v. Oklahoma (1980) 447 U.S. 343.)
Finally, defendant contends the trial court’s failure to ensure compliance
with the accomplice corroboration rule violated his Eighth Amendment right to
reliability in the death penalty determination. Our conclusion that the trial court
fully complied with the requirements of section 1111 defeats this argument.
E. Voice Identification Testimony By Police
Defendant asserts that allowing Officer Evans and Detectives DeAnda and
Charles Brown to testify about what occurred during police questioning of
defendant, Redmond, and Bennett violated the hearsay rule and defendant’s Fifth
Amendment rights as protected by Miranda v. Arizona (1966) 384 U.S. 436
(Miranda). We disagree.
1. Facts
Over defendant’s hearsay objection, the trial court allowed Officer Evans
and Detective DeAnda to testify that, during interrogation, both Redmond and
Bennett admitted being present at the murder scene. The prosecution introduced
this testimony to show that the voice on the tape saying “I didn’t tell them”
belonged to defendant. The court also permitted testimony by Detective Brown
46
that, when questioning defendant, Brown accused defendant of the 1984
kidnapping of Kingsmill and the 1985 Boyd and Harris murders.13 With respect to
Detective Brown’s testimony, defendant raised a Miranda objection and asserted
that the testimony was more prejudicial than probative. The trial court overruled
these objections.14
After Officer Evans and Detective DeAnda testified, but before Detective
Brown did so, the trial court admonished the jury: “Ladies and Gentlemen of the
jury, I want to be very sure that you understand what is taking place here and what
is not. [¶] As I understand it, the district attorney is attempting to show to you
that the person who made the statement that is referred to on People’s 32, this
transcript, excerpt 18 at page 9, they’re -- the district attorney’s going to argue to
you that that excerpt is a statement made by Mr. Davis. [¶] And in attempting to
establish that it was made by Mr. Davis, they’re going to show that the inner
quotation in . . . the excerpt at 18 referred to an earlier conversation, that that was
a conversation that [Detective] Brown had with Mr. Davis. . . . [¶] [Detective
Brown is] going to tell you that he made a certain statement to Mr. Davis. You’ll
13
Detective Charles Brown testified that during his interview with defendant
on October 6, 1985, the detective had described the 1984 Kingsmill incident in
these words: “You walked up to some guy over there in Westwood and stuck a
gun to his head and put him in his car, drove him down to South Central L.A.,
dropped him off and kept his car and got arrested.” “Let me put it to you this way,
Stanley, this one’s exactly like the other one except people got killed.” Detective
Brown then turned to the murders of Harris and Boyd: “You were last seen with
them. You took the gun and you took the first one out in the bushes and you said
you were just going to take their clothes, then you shot that one. And then you
came back and then you dragged the other one out of the car and you took him out
there and you shot him.”
14
Earlier in the trial, the court had granted defendant’s motion to suppress his
own statements to police on Miranda grounds.
47
be the ones to decide whether he did nor didn’t. [¶] If you find that he did make a
certain statement, that statement is not to be considered by you for the truth of
what Detective Brown said to Mr. Davis. It’s merely to show that that statement
was made to Mr. Davis and circumstantially the D.A.’s then going to argue that
the person who spoke the excerpt 18 in referring to that statement must have been
Mr. Davis because he’s the one that Detective Brown said he made that statement
to. [¶] But again, I emphasize—and I can’t emphasize it too strongly that what, if
anything, you find that Detective Brown said to Mr. Davis is not to be considered
for the truth of its content. The issue is whether he made that statement to Mr.
Davis, and that’s the only purpose for which it’s being and any similar officer
dealing with the transcript and my comments apply to [sic] the same fashion.”
2. Testimony of Detective DeAnda and Officer Evans
Defendant contends the trial court erred in allowing the prosecution to
introduce inadmissible hearsay through the testimony of Detective DeAnda and
Officer Evans about admissions by Redmond and Bennett that they had been
present at the murder scene. We disagree.
Hearsay is “evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a), italics added.) Here, the trial court did not
admit the police testimony for its truth—that is, that accomplices Redmond and
Bennett were actually present at the crime scene—but only to show what Bennett
and Redmond had said to the officers before the recording of the jailhouse tape.
Thus, the police testimony was not hearsay. For the same reason, it did not violate
defendant’s rights under the confrontation clause of the Sixth Amendment to the
federal Constitution. (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9;
accord, People v. Turner, supra, 8 Cal.4th at pp. 190-191; People v. Preston,
supra, 9 Cal.3d at pp. 315-316.)
48
Defendant makes several other contentions about the testimony of
Detective DeAnda and Officer Evans. For instance, he contends that it was not
probative of the identity of the speakers on the jailhouse tape, that any possible
probative value was outweighed by the prejudicial effect of the testimony, that the
prosecutor failed to use the least prejudicial means to identify the voices on the
tape, and that the trial court erred in not giving on its own motion a limiting
instruction that the jury could not consider for their truth the comments Redmond
and Bennett made to the officers. Because defendant failed to request such a
limiting instruction, on appeal he may not complain of the lack of one. (See
People v. Lewis (2001) 25 Cal.4th 610, 638.) In any event, having considered
each of these claims, we conclude that none has merit.
Defendant further insists that the prosecutor misstated the evidence in
closing argument when he said that accomplices Redmond and Bennett were “the
only ones” who admitted being present at the murder scene, when no officer so
testified. Defendant adds that because during police questioning he had invoked
his Miranda rights, no officer could testify to his statements that he had or had not
been present at the murder scene. For a prosecutor to misstate the evidence is
prosecutorial misconduct. (Darden v. Wainwright (1986) 477 U.S. 168, 182;
People v. Carrera (1989) 49 Cal.3d 291, 320.) Here, however, defendant’s
counsel failed to object to the prosecutor’s statement. Review on appeal is
therefore barred unless an admonition would not have cured the harm. (People v.
Cunningham (2001) 25 Cal.4th 926, 1000-1001; People v. Earp (1999) 20 Cal.4th
826, 858.) Here, any harm could have been cured by an instruction to disregard
the prosecutor’s comment in view of the lack of evidence. Accordingly, defendant
has forfeited this claim on appeal.
Finally, defendant contends that his counsel’s failure to object to the
prosecutor’s comment was ineffective assistance of counsel under the Sixth
49
Amendment to the United States Constitution. To prevail on such a claim,
defendant must show both: (1) that counsel’s performance was deficient; and
(2) that the deficient performance prejudiced his defense. (Strickland v.
Washington (1984) 466 U.S. 668, 687-694; People v. Ledesma (1987) 43 Cal.3d
171, 216-218.) To establish prejudice, defendant must show that there is a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. (See Strickland v. Washington, supra, 466 U.S. at
pp. 693-694; In re Cordero (1988) 46 Cal.3d 161, 180.) A reasonable probability
is “ ‘a probability sufficient to undermine confidence in the outcome.’ ” (In re
Cordero, supra, 46 Cal.3d at p. 180, quoting Strickland v. Washington, supra, 466
U.S. at pp. 693-694.)
Here, we need not address whether counsel’s performance was deficient,
because we find no reasonable probability that, had counsel objected to the
prosecutor’s statement, the result of the proceeding would have differed. As we
have explained, there were numerous methods for the jury to determine who was
speaking on the tape. The prosecutor’s invitation to infer that defendant had not
admitted to police that he had been present at the murder scene was only one of
those methods. Even absent that method, we are confident that the jury could have
identified the voices with sufficient precision to find statements of defendant that
corroborated Brown. Accordingly, defendant’s ineffective assistance of counsel
claim fails.
3. Testimony of Detective Brown
Defendant asserts the trial court erred in permitting Detective Brown to
recount statements he had made to defendant during questioning after defendant’s
invocation of his Miranda rights. We are aware of no case—and defendant cites
none—holding that Miranda requires suppression of police comments made to a
defendant after the defendant invokes his own right to remain silent.
50
“Under the familiar requirements of Miranda, designed to assure protection
of the federal Constitution’s Fifth Amendment privilege against self-incrimination
under ‘inherently coercive’ circumstances, a suspect may not be subjected to
custodial interrogation unless he or she knowingly and intelligently has waived the
right to remain silent, to the presence of an attorney, and to appointed counsel in
the event the suspect is indigent. [Citations.] Once having invoked these rights,
the accused ‘is not subject to further interrogation by the authorities until counsel
has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with police.’ ” (People v. Sims
(1993) 5 Cal.4th 405, 440, citing Miranda, supra, 384 U.S. at pp. 444-445, and
Edwards v. Arizona (1981) 451 U.S. 477, 484-485.) The United States Supreme
Court recently held that the failure to give a defendant Miranda warnings does not
require suppression of physical evidence obtained as a result of the defendant’s
unwarned but voluntary statements. (United States v. Patane (2004) __ U.S. __
[124 S.Ct. 2620].) Rather, potential violations of the self-incrimination clause
“occur, if at all, only upon the admission of unwarned statements into evidence at
trial.” (Id. at p. ___ [124 S.Ct. at p. 2629], italics added.) In context, the high
court’s language makes clear that only the admission into evidence of statements
of the defendant taken in violation of Miranda violates the self-incrimination
clause. No such violation occurred here.
F. Miranda Mistrial Motion
Defendant asserts the trial court erred in denying his motion for a mistrial
on the grounds that certain excerpts (42 through 49) on the jailhouse tape and
transcript that were introduced into evidence were obtained in violation of
defendant’s rights under the Fifth Amendment to the federal Constitution.
51
1. Facts
When defendant was arrested on October 6, 1985, and taken to the West
Los Angeles police station, the police advised him of his Miranda rights, which he
refused to waive. The police then placed him in a holding cell next to
codefendants Bennett and Redmond and proceeded to record their conversations.
During the taping, Detective DeAnda, who knew that no fingerprints had been
found on the Uzi, entered defendant’s cell and looked directly at him. The
following conversation ensued:
“Det. DeAnda:
Well, you are going to court tomorrow my friend.
“[Defendant]:
So what will happen?
“Det. DeAnda:
Well we filed murder counts on you.
“[Defendant]: How
many?
“Det. DeAnda:
Two. Special Circumstances.
“[Defendant]: What’s
that?
“Det. DeAnda:
. . . Special Circumstances means that you can get life
in prison without parole or the death penalty.
“[Defendant]: Oh
man.
“Det. DeAnda:
Alright remember that Uzi?
“[Defendant]: Yeah.
“Det. DeAnda:
Think about that little fingerprint on it we’ll see ya
(Jail door closes).
“[Bennett]:
Say what? Is he talking about everybody?
“[Defendant]:
No man he talking about me.”
After this exchange, defendant made additional incriminating remarks:
“Now they trying to say the fingerprints on the Uzi is mine. Man that’s what’s
going to do the shit man. I’m telling you man.” “Man if that nigger De De
52
[Brown] don’t die, I am going to kick man. The fingerprints on the Uzi is mine. I
know that mother fucker has been handled since I handled it.”
After the jailhouse tape had been played for the jury, defendant moved to
strike the exchange just quoted and the portion of the tape that followed it
(excerpts 43-49). He asserted that his comments on the tape were obtained in
violation of Miranda. When the trial court declined to grant the motion, defense
counsel moved for a mistrial. The trial court denied that motion, reasoning that
the excerpts in question were not central to the prosecution’s case and did not
violate Miranda.
2. Discussion
Here defendant did not file a timely motion to exclude the challenged
excerpts as violating his Miranda rights, but rather moved for a mistrial after the
jury had already heard the excerpts. Thus, in reviewing the trial court’s ruling, we
use the deferential abuse of discretion standard. (People v. Price, supra, 1 Cal.4th
at p. 428; People v. McLain (1988) 46 Cal.3d 97, 113.) A trial court should grant
a mistrial only if the defendant will suffer prejudice that is “ ‘ “incurable by
admonition or instruction.” ’ ” (People v. Lucero, supra, 23 Cal.4th at p. 713;
People v. Hines, supra, 15 Cal.4th at p. 1038.) In making this assessment of
incurable prejudice, a trial court has considerable discretion. (People v. Hines,
supra, at p. 1038.)
On the facts here, there was no abuse of discretion. As stated earlier, the
high court’s decision in Miranda serves to protect a defendant’s Fifth Amendment
privilege against self-incrimination. (Miranda, supra, 384 U.S. at pp. 444-445.)
Suspects who invoke the rights to counsel and to remain silent may not be
subjected to further interrogation until counsel is made available or “ ‘the accused
himself initiates further communication.’ ” (People v. Sims, supra, 5 Cal.4th at
p. 440.) These rules apply not only when the police engage in express questioning
53
of a suspect, but also when they undertake its “functional equivalent” (Rhode
Island v. Innis (1980) 446 U.S. 291, 300-301; see also Arizona v. Mauro (1987)
481 U.S. 520, 526-527; People v. Sims, supra, 5 Cal.4th at p. 440), through
“words or actions . . . that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” (Rhode Island v. Innis, supra, at p. 301,
fns. omitted; see also Arizona v. Mauro, supra, at pp. 526-527; People v. Sims,
supra, at p. 440.) In deciding whether police conduct was “reasonably likely” to
elicit an incriminating response from the suspect, we consider primarily the
perceptions of the suspect rather than the intent of the police. (Arizona v. Mauro,
supra, at p. 527; Rhode Island v. Innis, supra, at p. 301.) Because the dual
elements of a police-dominated atmosphere and compulsion that result from the
interaction of custody and official interrogation are absent when the defendant is
unaware that he is speaking to a law enforcement officer, however, Miranda is
inapplicable when the defendant does not know that the person he is talking to is
an agent of the police. (See Illinois v. Perkins (1990) 496 U.S. 292, 296-300
[Miranda warnings were not required when the police placed the defendant in a
cell with an undercover agent who then elicited incriminating statements].)
People v. Sims, supra, 5 Cal.4th 405, involved the functional equivalent of
interrogation. The defendant, who was arrested in Nevada for the murder of a
pizza delivery person in California, invoked his Miranda rights. Thereafter, as the
officers were preparing to leave the jailhouse interview room, the defendant asked
them about being extradited to California or to South Carolina, where he was
wanted for additional crimes. During that conversation, a police officer from
California described the crime scene—a motel room—and suggested that the
defendant had occupied that room and had lured the victim inside when he arrived
to deliver a pizza. This court concluded that those statements by the officer were
the “functional equivalent” of interrogation because they indirectly accused the
54
defendant of the crime and thus were likely to induce him to incriminate himself.
(People v. Sims, supra, 5 Cal.4th at pp. 442-444; see also In re Albert R. (1980)
112 Cal.App.3d 783, 793 [“blatantly and flagrantly accusatorial” statements by
police are functional equivalent of interrogation]; United States v. Poole (9th Cir.
1986) 794 F.2d 462, 466-467.)
The situation here is quite similar. As a preliminary matter, we conclude
that Detective DeAnda directly engaged in interrogation when he asked defendant
if he “remember[ed] that Uzi.” That question, after defendant had invoked his
Miranda rights, elicited defendant’s response, “Yeah,” in violation of his privilege
against self-incrimination.
Furthermore, when Detective DeAnda said, “Think about that little
fingerprint on [the Uzi],” he implied that defendant’s fingerprint had been found
on the Uzi, and thus indirectly accused defendant of personally shooting the
victims. As in Sims, this comment was likely to elicit an incriminating response
and thus was the functional equivalent of interrogation. (People v. Sims, supra, 5
Cal.4th at pp. 442-444; see also Rhode Island v. Innis, supra, 446 U.S. at p. 299
[“psychological ploys” such as positing the guilt of the subject may be the
functional equivalent of interrogation].)
After the comment about the Uzi, Detective DeAnda left defendant’s jail
cell. Thereafter, defendant, unaware that police officers were listening to and
recording his statements, said to his cellmates: “The fingerprints on the Uzi is
mine. I know that mother fucker [the Uzi] has been handled since I handled it.”
Under the circumstances, defendant “consider[ed] himself in the company of
cellmates and not officers,” and the coercive atmosphere of custodial interrogation
was lacking. (Illinois v. Perkins, supra, 496 U.S. at p. 296.) Viewing the situation
from defendant’s perspective (see Arizona v. Mauro, supra, 481 U.S. at p. 527;
Rhode Island v. Innis, supra, 446 U.S. at p. 301), when he made these statements
55
to his cellmates there was no longer a coercive, police-dominated atmosphere, and
no official compulsion for him to speak. Thus, the admission of defendant’s
incriminating statements made after Detective DeAnda left the cell did not violate
his rights under Miranda.
Accordingly, we conclude that the only statement challenged here that was
admitted in violation of Miranda was defendant’s affirmative response to
Detective DeAnda’s question, “remember that Uzi?” It was incriminating to the
extent it conveyed to the jury that defendant knew that DeAnda was talking about
the Uzi used in the murders of Boyd and Harris. Given the many other damaging
admissions defendant made on the tape recording, the error in admitting this very
brief exchange was harmless beyond a reasonable doubt. Therefore, the trial court
did not abuse its discretion in denying defendant’s motion for a mistrial.
G. Multiple Prosecution of Kingsmill Offenses
Tried together with this September 1985 double murder case was the May
1984 robbery and kidnap for robbery of David Kingsmill. In June 1984, defendant
pled guilty to one misdemeanor count of unlawfully taking Kingsmill’s car. (Veh.
Code, § 10851.) Defendant now contends that prosecuting him in this case for the
robbery and kidnap for robbery of Kingsmill violated the prohibition on multiple
prosecution under section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822
(Kellett).
1. Facts
During the preliminary hearing, and later in the superior court, defendant
sought to enter a special plea of “a former judgment of conviction” to the counts
involving Kingsmill based on section 654 and Kellett. The trial court summarized
the relevant facts: “An individual by the name of David Kingsmill reported being
kidnapped and robbed of his vehicle on May 27, 1984. Subsequently on June 1st
of 1984 the defendant was apprehended driving the stolen vehicle. [¶] The
56
District Attorney rejected any prosecution on the kidnapping-robbery at that time
and referred the matter to the City Attorney’s office and a joyriding, 10851(a) of
the Vehicle Code[15] and a receiving stolen property, 496 of the Penal Code,
misdemeanors were filed against Mr. Davis. [¶] And he, as I understand it,
entered a plea and received a sentence, 60 days in the county jail. [¶] At this time
in this case the District Attorney’s office has filed in counts IX and X, the robbery
of David Kingsmill on May 27th, 1984 and the kidnapping for robbery on that
same date. And on the principles of the Kellett case, the defense feels that the
people are precluded at this time from pursuing these.”
Defendant asserted that the newly charged offenses arose from the same
act—the taking of Kingsmill’s car—for which he had already been convicted, and
thus that multiple prosecution was barred. The trial court disagreed: “Kellett does
not apply to a subsequent prosecution for an offense where . . . at the time of the
earlier prosecution the People did not have and reasonably could not have obtained
sufficient evidence” to overcome a motion for acquittal at the close of the
prosecution’s case. The court found that the People could not have prosecuted
defendant earlier for the robbery and kidnapping because, at the time of
defendant’s arrest in June 1984, Kingsmill was unable to identify any of his
assailants and defendant did not admit his involvement in the robbery and
kidnapping of Kingsmill until after he had served his jail sentence for the
15
In 1984, Vehicle Code section 10851, subdivision (a), provided in pertinent
part: “Any person who drives or takes a vehicle not his or her own, without the
consent of the owner thereof, and with intent either permanently or temporarily to
deprive the owner thereof of his or her title to or possession of the vehicle,
whether with or without intent to steal the vehicle . . . is guilty of a public offense
. . . .” (Stats. 1983, ch. 889, § 1, p. 3228.) This provision is essentially the same
today.
57
misdemeanor conviction of the unlawful taking of Kingsmill’s car. The trial court
concluded that when the prosecution later obtained adequate evidence to warrant
convictions for the robbery and kidnapping of Kingsmill, it was entitled to
prosecute defendant for those felony offenses, despite defendant’s earlier
misdemeanor conviction for the unlawful taking of Kingsmill’s car.
2. Discussion16
Section 654, subdivision (a), provides that when “[a]n act or omission . . . is
punishable in different ways by different provisions of the law,” “[a]n acquittal or
conviction and sentence under any one bars a prosecution for the same act or
omission under any other.” This provision thus bars multiple prosecutions for the
same act or omission where the defendant has already been tried and acquitted, or
convicted and sentenced. (People v. Britt (2004) 32 Cal.4th 944, 950; Kellett v.
Superior Court, supra, 63 Cal.2d at p. 825.) This preclusion is primarily “a
procedural safeguard against harassment.” (Neal v. State of California (1960) 55
Cal.2d 11, 21.)
The leading case is our decision in Kellett. There, the defendant, who
earlier had pled guilty to a misdemeanor offense of exhibiting a firearm in a
threatening manner (§ 417), was charged with a felony of being a felon in
possession of a firearm (§ 12021). Both charges arose out of the defendant’s
arrest on a public sidewalk while holding a pistol. We concluded that the second
prosecution was barred: “When, as here, the prosecution is or should be aware of
more than one offense in which the same act or course of conduct plays a
16
Defendant concedes that neither the federal nor the state double jeopardy
provisions (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15) barred the later
prosecution.
58
significant part, all such offenses must be prosecuted in a single proceeding unless
joinder is prohibited or severance permitted for good cause. Failure to unite all
such offenses will result in a bar to subsequent prosecution of any offense omitted
if the initial proceedings culminate in either acquittal or conviction and sentence.”
(Kellett, supra, 63 Cal.2d at p. 827, fn. omitted.) We observed: “Whether a
course of criminal conduct is divisible and therefore gives rise to more than one
act within the meaning of section 654 depends on the intent and objective of the
actor.” (Id. at pp. 824-825, citing Neal v. State of California, supra, 55 Cal.2d at
p. 19.)
We have recognized an exception to the multiple-prosecution bar where the
prosecutor “is unable to proceed on the more serious charge at the outset because
the additional facts necessary to sustain that charge have not occurred or have not
been discovered despite the exercise of due diligence.” (People v. Scott (1997) 15
Cal.4th 1188, 1202; see Brown v. Ohio (1977) 432 U.S. 161, 169, fn. 7 [discussing
analogous exception to federal double jeopardy bar].) Thus, for example, section
654 does not preclude prosecuting a defendant for the murder of a victim who dies
only after an earlier prosecution for attempted murder. (People v. Scott, supra, 15
Cal.4th at pp. 1201-1203.) Similarly, section 654 will not bar a later prosecution
when the government, despite reasonable efforts, has been unable to discover the
facts necessary to sustain a conviction on the more serious crime. (See United
States v. Stearns (9th Cir. 1983) 707 F.2d 391, 393.) But this exception applies
only when the government “acted with due diligence at the outset but was unable
to discover the additional facts necessary to sustain the greater charge.” (Ibid.)
Whether the government exercised due diligence is a question of fact. (Id. at
p. 394.)
The trial court here concluded that, notwithstanding reasonable efforts, the
prosecution could not have proceeded on the kidnapping and robbery charges
59
earlier because neither victim Kingsmill nor anyone else could identify defendant.
Substantial evidence supports this conclusion. At the preliminary hearing in this
case, Kingsmill testified that after the incident in May 1984, he doubted he could
ever identify any of his assailants because he did not have a clear view of them.
And at trial, Kingsmill mentioned that he viewed a photo lineup after his
Volkswagen was recovered but could not identify anyone. DeAndre Brown
testified at defendant’s preliminary hearing that after defendant had served his
time for the misdemeanor conviction of unlawfully taking Kingsmill’s
Volkswagen, defendant admitted to him how he had come into possession of that
car. Kingsmill’s and Brown’s testimony amply supports the trial court’s
conclusions that in June 1984 when defendant was arrested for taking Kingsmill’s
car, neither Kingsmill nor any other known witness could have provided evidence
to establish that defendant had kidnapped or robbed Kingsmill, and thus that
section 654 did not bar the later prosecution.
Finally, the policies underlying section 654—preventing harassment of the
defendant and the waste of public resources through relitigation of issues (Kellett,
supra, 63 Cal.2d at pp. 825-827)—would not be served here by holding that the
kidnapping and robbery charges were barred. Here, defendant’s interest in being
free from the harassment of a second trial in relation to the 1984 Kingsmill
incident was minimal given that he was already on trial for the much more serious
charges arising from the 1985 murders in this case. Further, the public’s interest
in avoiding the waste of resources through relitigation was minimal given that
defendant pled guilty to unlawfully taking Kingsmill’s car, thus dispensing with a
need for a trial. Balanced against these minimal interests was the public’s weighty
interest in prosecuting and punishing defendant for the serious crimes of robbing
and kidnapping Kingsmill. (See Id. at p. 828; see also In re Dennis B. (1976) 18
60
Cal.3d 687, 696 [noting the “undeniable state interest in prosecuting serious
misdemeanors and felonies”].)
H. Robbery of Michelle Boyd
Defendant asserts that misleading prosecutorial argument and inadequate
jury instructions violated his rights under state law and the federal Constitution.
Thus, he contends, this court must set aside his convictions for the robbery and
kidnap for robbery of Michelle Boyd, the special circumstance findings based on
the robbery and kidnap for robbery of Boyd, and the felony-murder conviction
based on the robbery of Boyd. We agree that the robbery conviction must be set
aside, but we otherwise reject these contentions.
1. Facts
Defendant was charged with robbery and kidnapping for robbery of Boyd,
as well as with the separate special-circumstances allegations that he killed Boyd
in the course of robbing her and kidnapping her for the purpose of robbery. The
information did not specify what property defendant had allegedly taken from
Boyd. Defendant also was charged with the grand theft of the Honda, described as
“a certain automobile then and there the personal property of” the other murder
victim, Brian Harris.
In closing argument relating to the Boyd robbery, the prosecutor argued
that the property stolen could have been either the Honda or Boyd’s rings, one of
which had been recovered from DeAndre Brown. The prosecutor further argued
that under the felony-murder rule, all the jury had to do was “find there was a
robbery.” He added that if the jury found that defendant had participated in a
robbery involving any property “in Westwood that night,” that evidence would be
sufficient under the felony-murder rule to convict defendant of the murder of
Boyd.
61
The trial court instructed the jury under CALJIC Nos. 9.40 (defining
robbery), 9.44 (when a robbery is still in progress), 9.54 (kidnapping to commit
robbery) 8.81.17 (special circumstances—murder in commission of robbery), 8.10
(murder defined), 8.20 (deliberate and premeditated murder) and 8.21 (first degree
felony murder—robbery).
2. Robbery conviction
Defendant challenges his conviction for the robbery of Boyd on three
separate bases. First, defendant contends that inadequate jury instructions and
misleading prosecutorial argument led to his conviction under the “legally
incorrect” theory that he robbed Boyd of the Honda car. He contends that he
could not properly have been convicted of the robbery of Boyd based on the
Honda because Boyd was a “mere passenger” in that car, which Harris owned, and
thus could not have had actual or constructive possession of it while Harris was in
it. (See People v. Hamilton (1995) 40 Cal.App.4th 1137, 1142 [suggesting that
passenger who was sole occupant of a vehicle would have sufficient possessory
interest to be a robbery victim]; see also People v. Lopez (2003) 31 Cal.4th 1051,
1062-1063 [passenger in a car who lacks sufficient possessory interest in it to
qualify as a robbery victim when the property taken is the car would qualify as a
carjacking victim]; People v. Hill (2000) 23 Cal.4th 853, 861, fn. 5.)
Second, defendant contends he was entitled to an instruction on theft
(§ 484) as a lesser included offense of robbery with respect to the taking of Boyd’s
rings because there was evidence from which the jury could have concluded that
defendant formed the intent to take the rings after he killed Boyd. (See People v.
Breverman (1998) 19 Cal.4th 142, 154 [trial court must instruct the jury on its own
initiative on all general principles of law relevant to the issues raised by the
evidence]; People v. Memro (1995) 11 Cal.4th 786, 871 [trial court’s obligation to
instruct on its own initiative encompasses instructions on lesser included offenses
62
when there is evidence that, if accepted by the trier of fact, would absolve the
defendant of guilt of the greater offense but not of the lesser].)
Third, defendant contends the trial court erred by failing to give a
unanimity instruction regarding the robbery charge involving victim Boyd.
We need not address the first two of defendant’s contentions, for we find
the third dispositive. Defendant notes that the prosecution presented evidence of
two distinct acts of robbery (the taking of the Honda from Boyd and Harris, and
the taking of Boyd’s rings) but did not elect which of those two it was relying on
to prove the robbery of Boyd. In this situation, defendant asserts, the trial court
had to instruct the jury that it must unanimously agree on which act constituted the
robbery.17 (See People v. Sapp (2003) 31 Cal.4th 240, 283; People v. Beardslee
(1991) 53 Cal.3d 68, 93 [“ ‘A unanimity instruction is required . . . if the jurors
could . . . disagree which act a defendant committed and yet convict him of the
crime charged’ ”]; People v. Diedrich (1982) 31 Cal.3d 263, 280-282.)
The record does not reflect that defendant requested a unanimity
instruction. Absent such a request, a trial court should instruct on unanimity when
the circumstances so warrant. (People v. Riel, supra, 22 Cal.4th at p. 1199; People
v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.) On the facts here, we conclude that
17
CALJIC No. 17.01 is the standard unanimity instruction. As applicable
here, it provides: “The defendant is accused of having committed the crime of
______ [in Count _____.] The prosecution has introduced evidence for the
purpose of showing that there is more than one [act] upon which a conviction [on
Count _____] may be based. Defendant may be found guilty if the proof shows
beyond a reasonable doubt that [he] committed any one or more the [acts].
However, in order to return a verdict of guilty [to Count _____], all jurors must
agree that [he] committed the same [act] [or] [acts]. It is not necessary that the
particular [act] agreed upon be stated in your verdict.”
63
defendant was entitled to a unanimity instruction. The evidence disclosed two
distinct takings: the taking of Harris’s car from Boyd and Harris, and the taking of
Boyd’s rings from her person. Moreover, the prosecutor argued that the jury could
rely on either theory to convict defendant of the robbery of Boyd.
We further conclude that the omission of the unanimity instruction was
prejudicial as to the robbery conviction because we cannot ascertain from the
record whether some jurors found defendant guilty of robbery based on the taking
of the rings while others relied solely on defendant’s taking of the Honda. On the
facts of this case, some jurors may have had a reasonable doubt as to whether
Boyd was still alive when the intent to take her rings was formed while other
jurors may have had a doubt about whether Boyd was in possession of Harris’s
car. Under these circumstances, the trial court’s failure to give the unanimity
instruction was prejudicial. (See People v. Diedrich, supra, 31 Cal.3d at pp. 282-
283.)
The Attorney General contends that we may affirm the robbery conviction
despite the lack of a unanimity instruction because the taking of the Honda and the
taking of the rings were so closely connected as to form one continuous
transaction (see People v. Sapp, supra, 31 Cal.4th at pp. 284-285; People v.
Stankewitz (1990) 51 Cal.3d 72, 100; People v. Crandell (1988) 46 Cal.3d 833,
875), and thus it would have been inconceivable for a juror to believe that
defendant committed one robbery, but disbelieve he committed the other (see
People v. Riel, supra, 22 Cal.4th at pp. 1199-1200; People v. Carrera, supra, 49
Cal.3d at pp. 311-312).
We are not persuaded. In each of the cases the Attorney General relies on,
we concluded that a unanimity instruction was not required (or, even if required,
we found no prejudice) either because the defendant offered the same defense to
both acts constituting the charged crime, so no juror could have believed
64
defendant committed one act but disbelieved that he committed the other, or
because “there was no evidence . . . from which the jury could have found
defendant was guilty of” the crime based on one act but not the other. (People v.
Carrera, supra, 49 Cal.3d at pp. 311-312.) The same cannot be said here. As
explained above, the potential defenses to the two acts of robbery were entirely
different: as to the car, the defense was that Boyd was not legally in possession of
it; as to the rings, the defense was that its taking constituted only the lesser
included crime of theft.
Further, there was evidence from which the jury could have found
defendant not guilty of the robbery of the rings. The greater offense of robbery
includes all of the elements of theft, with the additional element of a taking by
force or fear. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) If the
defendant does not harbor the intent to take property from the possessor at the time
he applies force or fear, the taking is only a theft, not a robbery. (Ibid.; People v.
Green (1980) 27 Cal.3d 1, 54 (Green).) Here, Brown testified that defendant and
his friends intended to steal a car so they could drive to Barstow to rob a store.
Although Brown testified that when defendant walked Boyd out into the field,
Brown thought that defendant would remove the clothes she was wearing
(presumably to hinder her escape, as defendant had done when he kidnapped
Kingsmill in 1984), Brown did not testify that he believed defendant would take
Boyd’s jewelry. The police ultimately recovered Boyd’s wire ring from Brown’s
girlfriend; never recovered was Boyd’s high school senior class ring, which was
also missing from her body. According to Brown, he received the wire ring from
either Redmond or defendant on the morning after the killings, that is, on October
1, 1985. There was no evidence that the rings were taken from Boyd while she
was still alive. And there was no evidence regarding when defendant, or any of
his accomplices, formed the intent to take Boyd’s rings. On these facts, the jury
65
could have concluded that defendant formed the intent to steal Boyd’s rings after
he killed her. Such a finding would absolve defendant of guilt of robbery, because
one cannot rob a dead person. But these facts would support a theft conviction.
Accordingly, there was evidence from which the jury could have found
defendant guilty of robbery based on the car but not the rings. The trial court’s
failure to instruct on unanimity therefore was prejudicial, and we must set aside
the conviction for the robbery of Boyd.
3. Robbery-murder special circumstance
We find no basis, however, to set aside the robbery murder special
circumstance as to victim Boyd. Although we have assumed, without deciding,
that the unanimity requirement applies to special circumstances (e.g., People v.
Sapp, supra, 31 Cal.4th at pp. 283-285 [rejecting, on the particular facts, a claim
that the trial court was required to give a unanimity instruction as to the financial
gain special circumstance]; People v. Mickle (1991) 54 Cal.3d 140, 178 [rejecting
claim that unanimity instruction actually given as to lewd and lascivious act
special circumstance did not result in a valid unanimous verdict]), we have never
so held. To the contrary, in People v. Edwards (1991) 54 Cal.3d 787, 824, we
concluded the trial court was not required to instruct the jury that it must
unanimously agree which acts constituted the lying in wait underlying the charged
lying-in-wait special circumstance. Rather, as long as each juror was convinced
beyond a reasonable doubt that defendant was guilty of lying in wait, as that
special circumstance is defined by statute, unanimous agreement as to the theory
of lying in wait was not required. (Ibid.)
Here, we need not decide whether jury unanimity as to the property taken
during the robbery underlying the special circumstance was required, because any
possible error in failing to instruct that the jury must unanimously agree on a
theory of robbery was harmless beyond a reasonable doubt with respect to the
66
special circumstance. That is because, as defendant concedes, the Boyd robbery-
murder special circumstance could have been found true based on the murder of
Boyd during the robbery of the car from Harris. For the felony-murder rule to
apply, the murder victim need not be the target of the underlying felony (People v.
Billa (2003) 31 Cal.4th 1064, 1070; People v. Welch (1972) 8 Cal.3d 106, 118-
119; People v. Johnson (1972) 28 Cal.App.3d 653, 658), and we see no reason
why a different rule should apply with regard to felony murder special
circumstances.
Defendant argues that this court cannot uphold the special circumstance on
this theory because the jury was never instructed on it. In support he cites Blakely
v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531], Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi), and Ring v. Arizona (2002) 536 U.S. 584, for the
rule that any fact that increases the maximum punishment a defendant is subjected
to must be submitted to a jury and unanimously found true beyond a reasonable
doubt.
We disagree. Apprendi and its progeny govern only the question of who, as
between judge and jury, must decide the existence of the facts that increase the
maximum punishment. Here, Apprendi’s requirement is satisfied by our state law
requiring the jury unanimously to agree that the murder occurred during the
commission of a robbery. We see nothing in Apprendi or Ring that requires the
jury to agree unanimously as to which robbery the murder facilitated.
Moreover, Apprendi error — that is, error in failing to submit a
punishment-increasing factual issue to the jury — is subject to harmless error
analysis under the beyond a reasonable doubt test of Chapman v. California,
supra, 386 U.S. at page 23. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326-
328 [Chapman harmless error standard applies to Apprendi error in failing to
instruct on element of sentencing enhancement].) Indeed, even when jury
67
instructions completely omit an element of a crime, and therefore deprive the jury
of the opportunity to make a finding on that element, a conviction may be upheld
under Chapman where there is no “record . . . evidence that could rationally lead
to a contrary finding” with respect to that element. (Neder v. United States (1999)
527 U.S. 1, 19; see also People v. Flood (1998) 18 Cal.4th 470, 504-505.)
Here, even assuming the jury should have been instructed on the theory that
Boyd was killed during the robbery of the car from Harris, any error was harmless.
The jury found true the robbery-murder special circumstance with respect to
victim Harris — that is, that the murder of Harris was carried out during and to
advance the commission of the robbery of the car from Harris (Green, supra, 27
Cal.3d at pp. 60-61 (see post, at p. 73)) — and defendant killed Harris and Boyd at
the same time. There was no evidence that rationally could have led the jury to
conclude that the murder of Boyd was not carried out during and to advance the
commission of the robbery of Harris. Accordingly, any error in the jury
instructions related to the Boyd robbery count was harmless beyond a reasonable
doubt with respect to the Boyd robbery murder special circumstance.
4. Robbery
murder
Defendant contends we must set aside the murder conviction with respect
to Boyd based on the felony-murder theory that the murder took place during a
robbery. Defendant asserts the conviction is invalid whether based on the robbery
of Boyd’s rings or on the robbery of the Honda. With respect to the rings, he
points out that an intent to steal that arises after the infliction of the fatal wounds
cannot support a felony-murder conviction. (See People v. Morris (1988) 46
Cal.3d 1, 23, fn. 9, disapproved on other grounds in In re Sassounian (1995) 9
Cal.4th 535, 543, fn. 5; accord, Green, supra, 27 Cal.3d at p. 54, fn. 44.) And he
argues that he could not properly have been convicted of robbing Boyd of the car
because she did not own or possess it. We disagree. The flaw in the Boyd
68
robbery conviction does not require reversal of the felony-murder conviction. As
we have explained, for the felony-murder rule to apply, the murder victim need
not be the target of the underlying felony. (People v. Billa, supra, 31 Cal.4th at
p. 1070; People v. Welch, supra, 8 Cal.3d at pp. 118-119.) Here, defendant was
properly convicted of robbing Harris of his car, and there was no evidence from
which the jury rationally could have concluded that Boyd was not murdered
during the perpetration of that robbery. (See Neder v. United States, supra, 527
U.S. at p. 19; People v. Flood, supra, 18 Cal.4th at pp. 504-505.) Accordingly,
there is no basis for disturbing defendant’s conviction for the murder of Boyd on a
felony-murder theory.
Moreover, the jury returned special verdicts unanimously finding defendant
guilty of murder on two separate theories: the willful, deliberate and premeditated
murder of Boyd and the felony-murder of Boyd. We have found no basis to
invalidate the premeditated murder verdict. Accordingly, the murder conviction
stands. (See People v. Morris, supra, 46 Cal.3d at p. 24.)
5. Kidnapping for robbery
Defendant argues that the kidnap for robbery conviction related to victim
Boyd, “insofar as it is based upon the underlying robbery allegation,” must be
reversed, along with the related special circumstance of murder during a kidnap
for robbery.18 We disagree. A defendant may be convicted of kidnapping for
18
The prosecution originally charged defendant with kidnapping murder
special circumstances based on both simple kidnapping (§ 207) and kidnapping for
robbery (§ 209). After the jury retired to deliberate, the prosecution moved
without objection to amend the kidnapping murder special circumstance
allegations to delete the reference to simple kidnapping, so that each count alleged
that the murders occurred during a kidnapping for robbery. The trial court so
amended the information. It is not clear why the prosecution requested this
(Footnote continued on next page)
69
robbery even if the robbery is not completed. (People v. Beaumaster (1971) 17
Cal.App.3d 996, 1007; People v. Zurica (1964) 225 Cal.App.2d 25, 32; People v.
Hernandez (1950) 100 Cal.App.2d 128, 132.) All that is required is that the
defendant have the specific intent to commit a robbery at the time the kidnapping
begins. (See People v. Tribble (1971) 4 Cal.3d 826, 831-832; People v. Jones
(1997) 58 Cal.App.4th 693, 717.) Thus, no matter what property defendant
intended to forcibly take from Boyd when he kidnapped her, he still committed a
kidnapping for robbery.19 On this basis, we reject defendant’s contentions.
I. Other Special Circumstances Instructions
Defendant claims a violation of his rights protected by state law and the
Sixth and Fourteenth Amendments to the federal Constitution in the trial court’s
failure to instruct on the multiple-murder and kidnapping for robbery special
circumstances. We are not persuaded.
(Footnote continued from previous page)
amendment, given that the statutory special circumstance applies to any
kidnapping, not just kidnapping for robbery. (See § 190.2, subd. (a)(17)(B).)
19
We note that the jury instructions here on kidnapping for robbery, requiring
that the robbery and kidnapping victims be the same person, were substantially
more favorable to defendant than the law required. A defendant may be convicted
under section 209, subdivision (b), even when the kidnapping victim is not the
victim (or intended victim) of the robbery. (People v. Laursen (1972) 8 Cal.3d
192, 200, fn. 7; People v. Zurica, supra, 225 Cal.App.2d at p. 32.) Thus, had the
jury been so instructed, it could have convicted defendant of kidnapping Boyd for
the purpose of robbing Harris of the Honda.
70
1. Facts
During the guilt phase trial, the trial court discussed jury instructions with
counsel. The court proposed that, instead of giving CALJIC No. 8.81.3,20 it would
instruct the jury that it must decide whether defendant was the person who fired
the bullet that killed each victim. Then, if the jury found defendant guilty of the
murders of Boyd and Harris, the multiple-murder special circumstance would be
true as a matter of law. Defendant’s counsel and the prosecutor agreed to this
procedure.
Thereafter, the trial court instructed the jury under CALJIC No. 8.80: “If
you find the defendant in this case guilty of murder of the first degree, you must
then determine if one or more of the following special circumstances are true or
not true: 1. The defendant was the person who fired the bullet which killed the
victim; 2. The murder was committed while the defendant was engaged in the
commission of robbery in violation of Penal Code Section 211; and 3. The murder
was committed while the defendant was engaged in the commission of kidnapping
for robbery in violation of Penal Code Section 209(b).” The court also gave
CALJIC Nos. 9.40 (robbery), 9.54 (kidnapping to commit robbery), and 8.81.17
(special circumstances—murder in commission of robbery).
After instructing the jury, and out of the jury’s presence, the court stated on
the record that the parties agreed “that with respect to the special circumstance
allegation concerning multiple murder in counts 1 and 2, that the finding the jury
20
At the time of trial, former CALJIC No. 8.81.3 stated: “To find the special
circumstance, referred to in these instructions as multiple murder convictions, is
true, it must be proved: [¶] [The] [A] defendant has in this case been convicted of
at least one crime of murder of the first degree and one or more crimes of murder
of the first or second degree.” The instruction is nearly identical today.
71
is being asked to make is whether the defendant personally killed the victim in that
count. [¶] And it has been agreed that if the jury finds the—that the defendant
personally killed each of the victims and is found guilty of count—first degree
murder in count 1 and count 2, that that is the legal equivalent of a finding that the
allegation . . . concerning multiple murder is true.”
2. Multiple-murder special circumstance
Defendant now contends that we must set aside the multiple-murder special
circumstance because the trial court, under an agreement between the prosecutor
and defense counsel, did not give CALJIC No. 8.81.3, which defines the multiple-
murder special circumstance, and therefore the jury made no finding on this
special circumstance. We disagree. We note that California law provides for a
jury finding on the truth of any special circumstance allegation (§ 190.4, subd. (a);
People v. Williams (1997) 16 Cal.4th 635, 688) and that the federal Constitution’s
Sixth Amendment requires a jury determination of any fact, other than the fact of a
prior conviction, that increases the penalty for a crime (Apprendi, supra, 530 U.S.
at pp. 476, 490). Here, however, defendant stipulated that the trial court need not
give CALJIC No. 8.81.3, so he is barred from challenging the court’s failure to
give that instruction under the doctrine of invited error. (See People v. Barton
(1995) 12 Cal.4th 186, 198.) Moreover, defendant suffered no possible prejudice
from the instruction, as explained below.
We test trial court error in removing from jury consideration a required
special circumstance finding under the beyond a reasonable doubt test of
Chapman v. California, supra, 386 U.S. 18, 24. (See People v. Sengpadychith,
supra, 26 Cal.4th at pp. 326-328; People v. Williams, supra, 16 Cal.4th at p. 689.)
Under that test, an error is harmless only when, beyond a reasonable doubt, it did
not contribute to the verdict. (Chapman, supra, at p. 24.) Here, under the
instructions given, the jury necessarily found that defendant was the person who
72
fired the bullet which killed both victims, Harris and Boyd, and the jury returned
special verdicts unanimously making that finding. This finding, coupled with the
jury’s guilty verdicts of first degree murder for the killings of Harris and Boyd,
was sufficient to establish that defendant was in this case “convicted of more than
one offense of murder in the first or second degree.” (§ 190.2, subd. (a)(3).)
Accordingly, the challenged instructional error did not contribute to the verdict.
3. Special circumstance of kidnapping for robbery
Defendant also asserts that we must set aside both of the kidnapping for
robbery special circumstances for instructional error. We disagree. The trial court
instructed the jury: “If you find the defendant in this case guilty of murder in the
first degree, you must then determine if one or more of the following special
circumstances are true or not true: [¶] . . . [¶] 3. The murder was committed
while the defendant was engaged in the commission of kidnapping for robbery in
violation of Penal Code Section 209(b).” The court further instructed the jury on
the elements of kidnapping for robbery, including that defendant had the “specific
intent to commit robbery . . . when the kidnapping commence[d].”
Not submitted to the jury was the question whether the two murders were
committed to advance an independent felonious purpose of kidnapping to commit
robbery, or instead whether the kidnappings were merely incidental to the
murders, a requirement derived from Green, supra, 27 Cal.3d 1. Green states that
the purpose of the felony-murder special circumstance is to single out defendants
who “ ‘killed in cold blood in order to advance an independent felonious
purpose.’ ” (People v. Valdez (2004) 32 Cal.4th 73, 113, quoting Green, supra, 27
Cal.3d at p. 61.) This rule is now reflected in the second paragraph of CALJIC
No. 8.81.17, which states (as relevant here) that in order to find a felony-murder
special circumstance true, the jury must find that “[t]he murder was committed in
order to carry out or advance the commission of the crime of [kidnapping] or to
73
facilitate the escape therefrom or to avoid detection. In other words, the special
circumstance referred to in these instructions is not established if the [kidnapping]
was merely incidental to the commission of the murder.” Here, there was no
request to instruct the jury on this clarifying language with respect to the special
circumstance of kidnapping for robbery.21 Therefore, the trial court had to give
the instruction without request only if some significant evidence would have
allowed the jury to conclude that the kidnappings for robbery of Boyd and Harris
were merely incidental to their murders. (See People v. Valdez, supra, 32 Cal.4th
at pp. 113-114; People v. Navarette (2003) 30 Cal.4th 458, 505; People v. Kimble
(1988) 44 Cal.3d 480, 499-503.) There was no such evidence in this case.
Brown testified that he, defendant, Redmond, and Bennett set out on the
evening of September 30, 1985, in Bennett’s truck, intending to rob a liquor store
in Barstow. Because Bennett did not want to use his own truck in the robbery, the
group decided to steal a car. They drove to Westwood, where Redmond and
Brown noticed a Honda automobile with a man (Harris) and a woman (Boyd)
inside. Defendant and Redmond left the truck but returned shortly thereafter in the
Honda, with Boyd in the back seat and Harris in the trunk. The four then drove
the two victims to an isolated area. Defendant and Redmond took Boyd and
Harris into a field, and moments later Brown heard shots fired. Defendant
returned to the car and said he had killed Boyd and Harris because he did not want
any witnesses. Defendant, Brown, Redmond, and Bennett, using the Honda taken
from the victims, then continued to their original destination, the liquor store in
Barstow.
21
The trial court did give such an instruction with respect to the robbery
murder special circumstance.
74
This evidence supports an inference that the purpose of the kidnappings of
Boyd and Harris was to facilitate the taking of the Honda for use in the planned
liquor store robbery, and that the murders were committed to eliminate the
witnesses to the kidnappings and robberies. The evidence that, about one and a
half years earlier, defendant had kidnapped Kingsmill in order to take his car
strengthened this inference.
Defendant contends, however, that the evidence equally supports an
inference that his intent from the outset of the kidnapping was to kill Boyd and
Harris to eliminate witnesses to his robbery of the Honda. According to
defendant, the jury could have found that his intent when he kidnapped the victims
was to rob them of their car and kill them. If so, according to defendant, he
committed a kidnapping during the commission of a murder for robbery, not a
murder during the commission of a kidnapping for robbery. In these
circumstances, defendant asserts, he was entitled to an instruction based on Green,
supra, 27 Cal.3d 1.
We disagree. In finding defendant guilty of kidnapping for robbery, the
jury determined that he had the intent to rob victims Boyd and Harris when he
kidnapped them, and therefore that the kidnappings served to facilitate the
robberies. Even assuming on the facts of this case that Green’s “independent
felonious purpose” requirement to “provide a rational basis for distinguishing
between those murderers who deserve to be considered for the death penalty and
those who do not” (Green, supra, 27 Cal.3d at p. 61, fn. omitted) would not be
satisfied with respect to the special circumstances of kidnapping for robbery, the
trial court did not err in failing to instruct the jury on defendant’s theory without a
request.
A trial court must instruct on its own initiative only on those principles of
law “commonly or closely and openly” connected with the facts of the case.
75
(People v. Montoya (1994) 7 Cal.4th 1027, 1047, italics added.) Accordingly, the
trial court here had to instruct on the independent felonious purpose principle of
Green with respect to the kidnapping for robbery only if some significant evidence
could have supported a finding that the kidnappings of Boyd and Harris were
incidental to their murders. (People v. Valdez, supra, 32 Cal.4th at pp. 113-114;
People v. Navarette, supra, 30 Cal.4th at p. 505; People v. Kimble, supra, 44
Cal.3d at pp. 499-503.) There was no significant evidence to support such a
finding. Defendant did nothing to develop at trial his current theory that he
formed the intent to kill Boyd and Harris before kidnapping them. (See People v.
Navarette, supra, 30 Cal.4th at p. 505.) Thus, defendant’s theory of the case “was
not one that the evidence would strongly illuminate and place before the trial
court.” (People v. Wade (1959) 53 Cal.2d 322, 335.) To the contrary, defendant’s
theory was “so far under the surface of the facts and theories apparently involved
as to remain hidden from even the [defense] until the case reached this court on
appeal.” (Ibid.) Under the circumstances, the trial court was not obligated to
instruct the jury with the language from Green.
Defendant argues that the failure so instruct violated his Sixth Amendment
right to a jury determination of every fact that may increase the maximum
punishment (see Blakely v. Washington, supra, 542 U.S. ___ [124 S.Ct. 2531];
Apprendi, supra, 530 U.S. 466) and his Fourteenth Amendment right to due
process of law (People v. Odle (1988) 45 Cal.3d 386, 410; People v. Garcia
(1984) 36 Cal.3d 539, 551). We disagree. The Green instruction merely clarifies
the term “in the commission of” with regard to special circumstance allegations
based on felony murder. Here, clarification of that term was unnecessary because,
as we have concluded, there was no evidence to support defendant’s theory that
the kidnappings of Boyd and Harris were merely incidental to their murders.
76
Moreover, we see nothing in the high court’s Blakely and Apprendi decisions that
would require such an instruction in the circumstances here.
J. Constitutionality of California’s Death Penalty Statute
Defendant argues that California’s death penalty statute violates his rights
under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution
and their state constitutional counterparts. As he acknowledges, we have in the
past rejected many of these same arguments. Specifically, we have held that
neither the cruel and unusual punishment clause of the Eighth Amendment nor the
due process clause of the Fourteenth Amendment requires that the jury make
unanimous separate findings as to the truth of aggravating evidence (People v.
Griffin (2004) 33 Cal.4th 536, 593-594), or provide a statement of reasons for its
penalty decision (ibid.), or find unanimously beyond a reasonable doubt that
aggravating circumstances outweigh mitigating circumstances and that death is the
appropriate punishment (ibid.; People v. Rodriguez (1986) 42 Cal.3d 730, 778-
779). We find no reason to depart from these holdings.
Defendant contends that because various provisions of state law require
certain protections in other proceedings where the consequences are less serious
than in a capital penalty trial (see §§ 1158 [jury must separately find whether
defendant has suffered a prior conviction], 1158a [jury must separately find
whether defendant was armed and/or used a firearm], 1163 [jury may be polled],
1170, subd. (c) [court must state reasons for its determinate sentencing choice]),
the equal protection clause of the Fourteenth Amendment mandates these same
protections in capital sentencing. Not so.
In People v. Allen (1986) 42 Cal.3d 1222, 1286-1288, we considered and
rejected a similar argument, concluding that the 1978 death penalty statute did not
violate equal protection because it does not allow for proportionality review
similar to that provided to noncapital defendants under the determinate sentencing
77
law. Also, applying similar reasoning, we concluded in People v. Danielson
(1992) 3 Cal.4th 691, that California’s 1978 death penalty statute did not violate
equal protection in allowing consideration of evidence of unadjudicated offenses
and the circumstances of prior offenses involving force or violence. (Id. at
pp. 719-720, overruled on other grounds in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13.) As we observed in Danielson, “capital case
sentencing involves wholly different considerations than ordinary criminal
sentencing.” (Danielson, at p. 720.)
Moreover, we have said that the jury’s task in assessing the appropriate
penalty in a capital case is an “essentially normative” one in which the jury
“applies its own moral standards to the aggravating and mitigating evidence.”
(People v. Mendoza (2000) 24 Cal.4th 130, 192.) Thus, the Legislature properly
could conclude that imposing the strict requirements of the beyond-a-reasonable-
doubt standard, jury unanimity, and a statement of reasons would be unsuited to
capital sentencing. (See People v. Allen, supra, 42 Cal.3d at p. 1286.)
Nor do the United States Supreme Court’s recent decisions interpreting the
Sixth Amendment’s jury trial guarantee (Ring v. Arizona, supra, 536 U.S. 584;
Apprendi, supra, 530 U.S. 466) compel a different result. (See People v. Griffin,
supra, 33 Cal.4th at pp. 594-595 [neither Apprendi nor Ring requires a written
statement of reasons for the penalty decision or unanimous jury findings beyond a
reasonable doubt on the existence of aggravating circumstances or that the
aggravating circumstances outweigh the mitigating]; see also People v. Prieto
(2003) 30 Cal.4th 226, 262-265 [Ring does not require that jury unanimously find
beyond a reasonable doubt that unadjudicated criminal acts involved force or
violence; Ring imposes no new requirements on California’s penalty phase
proceedings]; People v. Ochoa (2001) 26 Cal.4th 398, 452-454 [Apprendi does not
78
restrict the sentencing of California defendants who have been convicted of
special circumstances murder].) We decline to revisit those holdings here.
Finally, because the federal Constitution does not require application of the
reasonable doubt standard to the jury’s penalty determinations, trial counsel here
was not deficient in not requesting such an instruction. (See In re Robbins (1998)
18 Cal.4th 770, 810 [failure to raise a meritless claim is not deficient
performance].)
K. Cumulative Prejudice
We have concluded that the Boyd robbery conviction must be vacated.
Otherwise, we have found only two guilt phase errors (defendant’s absence from
the May 16, 1989 pretrial hearing regarding admissibility of the jailhouse tape (see
ante, pp. 19-26) and the Miranda violation in Detective DeAnda’s question to
defendant “remember the Uzi?” (see ante, pp. 51-56)) and two special
circumstances errors or potential errors (the trial court’s failure to instruct the jury
that it must unanimously agree on a theory of robbery with respect to the Boyd
robbery murder special circumstance (see ante, pp. 66-68), and the trial court’s
failure to instruct the jury on the multiple murder special circumstance (see ante,
pp. 72-73)). None of these errors is prejudicial standing alone. Defendant argues
that even if no single error requires reversal of the guilt or penalty judgments, the
cumulative effect of all the errors is sufficiently prejudicial to violate the
Fourteenth Amendment’s due process guarantee of fundamental fairness,
warranting reversal. (See Taylor v. Kentucky (1978) 436 U.S. 478, 487, fn. 15;
Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 622.) We disagree.
The cumulative effect of the guilt and special circumstances errors and
potential errors does not warrant reversal of defendant’s convictions or the special
circumstances findings. The evidence amply supported these convictions and
special circumstances and, for the reasons explained previously in relation to each
79
error, the evidentiary presentation would not have differed significantly in the
absence of the errors.
Nor does our reversal of the robbery conviction, in conjunction with the
other errors and potential errors, warrant reversal of the penalty judgment. The
jury properly considered all of the evidence and was aware of the circumstances of
the Boyd and Harris murders. (See People v. Hillhouse (2002) 27 Cal.4th 469,
512; People v. Kelly (1992) 1 Cal.4th 495, 551.) Even if the jury disagreed as to
what property defendant intended to steal from Boyd (or even if the jury
concluded that defendant formed the intent to steal Boyd’s rings after he killed
her), and thus erroneously convicted him of the robbery of Boyd, it would not
have given significant independent weight to the conviction for the robbery of
Boyd as opposed to the circumstances of the offenses and the aggravating and
mitigating evidence. (See People v. Hillhouse, supra, 27 Cal.4th at p. 512; People
v. Kelly, supra, 1 Cal.4th at p. 551.) The questions whether defendant robbed
Boyd of the car or the rings, or whether he formed the intent to steal the rings
before or after killing Boyd, were critical to the robbery conviction but likely
insignificant to the penalty determination. (People v. Hillhouse, supra, 27 Cal.4th
at p. 512.)
Under these circumstances, the errors or potential errors, singly or in
combination, were harmless under any applicable standard and did not render
defendant’s trial fundamentally unfair. (See People v. Coffman (2004) 34 Cal.4th
1, 128-129 [rejecting claim that cumulative errors rendered the defendant’s trial
fundamentally unfair]; People v. Hillhouse, supra, 27 Cal.4th at p. 512 [finding no
reasonable possibility of a different result at the penalty phase absent errors].)
80
III. DISPOSITION
We vacate the robbery conviction with respect to victim Michelle Boyd.
We affirm the judgment in all other respects.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
81
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Davis
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S012945
Date Filed: July 21, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Leslie W. Light
__________________________________________________________________________________
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders, Jay Colangelo, Assistant State Public
Defender, and Ellen J. Eggers, Deputy State Public Defender, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Lisa J. Brault, 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
(916) 322-2676
Lisa J. Brault
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2284
Opinion Information
| Date: | Docket Number: |
| Thu, 07/21/2005 | S012945 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Lisa Brault, Deputy Attorney General 300 S. Spring Street, Suite 500 Los Angeles, CA |
| 2 | Davis, Stanley Bernard (Appellant) Represented by Office Of The State Public Defender-Sac Ellen Eggers, Deputy State Public Defender 801 "K" Street, Suite 1100 Sacramento, CA |
| Disposition | |
| Jul 21 2005 | Opinion: Affirmed |
| Dockets | |
| Nov 14 1989 | Judgment of death |
| Nov 20 1989 | Filed certified copy of Judgment of Death Rendered 11-14-89. |
| Dec 26 1989 | Extension of Time application Granted To Court Reporter To 2-2-90 To Complete R.T. |
| Apr 29 1991 | Order appointing State Public Defender filed to represent appellant on his automatic appeal, including any related habeas proceedings. |
| Jul 17 1991 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jul 23 1991 | Extension of Time application Granted To Applt To 9-20-91 To request Corr. of Record. |
| Sep 17 1991 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 20 1991 | Extension of Time application Granted To Applt To 11-19-91 To request Corr. of Record. |
| Nov 14 1991 | Application for Extension of Time filed By Applt to request correction of Record. |
| Nov 18 1991 | Extension of Time application Granted To Applt To 12-18-91 To request Corr. of Record. |
| Dec 13 1991 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jan 3 1992 | Extension of Time application Granted To Applt To 2-17-92 To request Corr. of the Record |
| Feb 13 1992 | Application for Extension of Time filed By Applt to request correction of Record. |
| Feb 19 1992 | Extension of Time application Granted To Applt To 4-17-92 To request Corr. of Record. |
| Apr 14 1992 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 16 1992 | Extension of Time application Granted To Applt To 6-16-92 To request Corr. of Record. no further Extensions of time Are Contemplated. |
| Jun 11 1992 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 15 1992 | Extension of Time application Granted To Applt To 7-16-92 To request correction of Record. no further Extensions of time will be Granted. |
| Jun 17 1992 | Received: Suppl Decl of Service (on Trial Court) of request for Ext. of time to request Corr. of Record. |
| Jul 20 1992 | Received copy of appellant's record correction motion Request for correction of transcripts, for additional record on appeal, to examine transcripts previously sealed, and to settle the record on appeal. (35 pp.) |
| Oct 15 1992 | Filed: Notice by the State P.D. of Reassignment of the case from the L.A. Office to its Sacramento Office (Thomas Carroll and Ellen Eggers, Deputies) |
| Oct 19 1992 | Received: Amended Decl .of Service of mail of State P.D.'s Notice of Reassignment. |
| Aug 9 1999 | Record on appeal filed C-24 (3,647 Pp) and R-52 (6,255 Pp) Including Material Under Seal; Clerk's Transcripts includes 2,124 pages of Juror Questionnaires. |
| Aug 9 1999 | Appellant's opening brief letter sent, due: 9/20/99 |
| Sep 13 1999 | Application for Extension of Time filed To file Aob. |
| Sep 14 1999 | Extension of Time application Granted To 11/19/99 To file Aob. |
| Nov 12 1999 | Application for Extension of Time filed To file Aob. |
| Nov 29 1999 | Filed: Supplemental Declaration in support of request for Eot to file Aob. |
| Nov 30 1999 | Extension of Time application Granted To 1/18/2000 To file Aob. |
| Jan 10 2000 | Application for Extension of Time filed To file Aob. |
| Jan 12 2000 | Extension of Time application Granted To 3/20/2000 To file Aob. |
| Mar 16 2000 | Application for Extension of Time filed To file Aob. |
| Mar 17 2000 | Extension of Time application Granted To 5-19-2000 To file Aob. |
| May 9 2000 | Application for Extension of Time filed To file Aob. |
| May 11 2000 | Extension of Time application Granted To 7/18/2000 To file Aob. |
| Jul 11 2000 | Application for Extension of Time filed Declaration of Ellen J. Eggers in support of request for ext. of time to file AOB. |
| Jul 13 2000 | Extension of Time application Granted To 9/18/2000 to file AOB. No further ext. of time are contemplated. |
| Jul 17 2000 | Counsel's status report received (confidential) |
| Aug 21 2000 | Motion filed Applt's joint mnt to augment record on appeal pursuant to rule 12(a) |
| Aug 21 2000 | Received: People's trial exhibit 40 - submitted with applt's mtn to augment record pursuant to rule 12(a). |
| Sep 6 2000 | Application for Extension of Time filed To file AOB (seventh request). |
| Sep 15 2000 | Extension of Time application Granted to 11-17-2000 to file AOB. No further extensions of time will be granted. |
| Oct 10 2000 | Counsel's status report received (confidential) |
| Oct 18 2000 | Filed: People's exhibit 40 (filed pursuant to court order filed 10/18/2000) |
| Oct 18 2000 | Order filed: The "Joint Motion to Augment the Record on Appeal..." filed by applt on 8/21/2000, is granted and and the record is hereby augmented to include People's Exhibit 40. |
| Nov 17 2000 | Application to file over-length brief filed Applt's application for leave to file AOB longer than 280 pages. (456 page brief submitted under separate cover) |
| Nov 20 2000 | Counsel's status report received (confidential) |
| Nov 30 2000 | Order filed: Applt's applic. for leave to file AOB in excess of 280 pages is granted. |
| Nov 30 2000 | Appellant's opening brief filed (456 pages) |
| Dec 26 2000 | Application for Extension of Time filed To file resp's brief (1st request) |
| Jan 4 2001 | Extension of Time application Granted To 2/28/2001 to file resp's brief. |
| Jan 17 2001 | Counsel's status report received (confidential) |
| Feb 27 2001 | Application for Extension of Time filed to file resp's brief. (2nd request) |
| Mar 7 2001 | Extension of Time application Granted To 4/30/2001 to file Resp's brief. |
| Mar 15 2001 | Counsel's status report received (confidential) |
| Apr 25 2001 | Application for Extension of Time filed To file Respondent's brief. (3rd request) |
| Apr 30 2001 | Extension of Time application Granted To 6/29/2001 to file respondent's brief. |
| May 16 2001 | Counsel's status report received (confidential) |
| Jun 26 2001 | Application for Extension of Time filed to file respondent's brief. (4th request) |
| Jul 10 2001 | Extension of Time application Granted To 8/28/2001 to file resp.'s brief. |
| Jul 16 2001 | Counsel's status report received (confidential) |
| Aug 24 2001 | Application for Extension of Time filed respondent's brief |
| Aug 27 2001 | Application for Extension of Time filed To file resp.'s brief. (5th request) |
| Aug 31 2001 | Extension of Time application Granted to 10-29-2001 to file resp's brief. No further extensions of time are contemplated. |
| Sep 12 2001 | Motion filed to unseal transcript of in camera proceedings. |
| Sep 13 2001 | Counsel's status report received (confidential) from State P.D. |
| Oct 23 2001 | Application for Extension of Time filed to file resp's brief. (6th request) |
| Oct 26 2001 | Extension of Time application Granted To 11/28/2001 to file resp.'s brief. No further extensions of time will be granted. |
| Nov 14 2001 | Counsel's status report received (confidential) from State P.D. |
| Nov 28 2001 | Respondent's brief filed (273 pp.) |
| Dec 11 2001 | Request for extension of time filed To file reply brief. (1st request) |
| Dec 13 2001 | Extension of time granted To 2/19/2002 to file reply brief. |
| Jan 11 2002 | Counsel's status report received (confidential) |
| Feb 15 2002 | Request for extension of time filed To file reply brief. (2nd request) |
| Feb 25 2002 | Extension of time granted To 4/22/2002 to file reply brief. Dep. AG Eggers anticipates filing the brief by 10/17/2002. Only three further extensions totaling 180 additional days are contemplated. |
| Mar 12 2002 | Counsel's status report received (confidential) |
| Apr 19 2002 | Request for extension of time filed To file reply brief. (3rd request) |
| Apr 23 2002 | Extension of time granted To 6/21/2002 to file reply brief. Dep. State Public Defender Eggers' anticipates filing the brief by 10/17/2002. Only two further extensions totaling 120 additional days are contemplated. |
| May 13 2002 | Counsel's status report received (confidential) from State P.D. |
| Jun 14 2002 | Request for extension of time filed To file applt.'s reply brief. (4th request) |
| Jun 21 2002 | Extension of time granted to 8-20-2002 to file reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule. |
| Jul 9 2002 | Order filed Good cause appearing, and in the absence of opposition, respondent's "Motion to Unseal Transcript of In Camera Proceedings," filed 9-12-2001, is granted. The clerk of this court is ordered to unseal the reporter's transcript of the in camera proceedings held in Los Angeles Co. Superior Court on 9-12-89, before the Hon. Leslie W. Light (Superior Court No. A093076) volume 1C, pages 127-134, and to transmit a copy to counsel for respondent. |
| Jul 11 2002 | Counsel's status report received (confidential) from State P.D. |
| Aug 19 2002 | Request for extension of time filed to file reply brief. (5th request) |
| Aug 20 2002 | Extension of time granted to 10-17-2002 to file reply brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy State Public Defender Eggers's representation that she anticipates filing the reply brief by 10-17-2002. |
| Sep 17 2002 | Counsel's status report received (confidential) |
| Oct 9 2002 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Oct 15 2002 | Extension of time granted To 12/17/2002 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Ellen J. Eggers's representation that she anticipates filing that brief by 12/17/2002. After that date, no further extension will be granted. |
| Dec 17 2002 | Appellant's reply brief filed (115 pp.) |
| Jan 14 2003 | Counsel's status report received (confidential) |
| Mar 19 2003 | Counsel's status report received (confidential) |
| May 19 2003 | Counsel's status report received (confidential) |
| Jun 2 2003 | Motion filed for leave to file one copy of audio tapes as an exhibit to the petition for writ of habeas corpus. |
| Jun 13 2003 | Order filed Appellant's "Motion for Leave to File One Copy of Audiotapes" is granted. In conjunction with the filing of his expected petition for writ of habeas corpus, appellant shall file an original and one copy of each of the twenty-four audiotapes intended an an exhibit thereto. |
| Jun 16 2003 | Related habeas corpus petition filed (concurrent) No. S116750. |
| Jul 14 2004 | Exhibit(s) lodged People's #31 (audio cassette tape) |
| Jul 29 2004 | Letter sent to: counsel, advising them that People's exhibit no. 31, an audio cassette, which recently was transmitted to this court from the Superior Court of Los Angeles County at this court's request, apparently was damaged during shipment. This (clerk's) office has taken the necessary steps to return the cassette to playable condition, as described in the enclosed declarations of Mary Jameson, Automatic Appeals Unit Supervisor, and Marsha Smith, Deputy Clerk. (letter signed by John C. Rossi, Assistant Court Administrator - Clerk) |
| Jul 29 2004 | Filed: delcaration of Mary Jameson, Supervisor of the Automatic Appeals Unit, re exhibit No. 31. |
| Jul 29 2004 | Filed: declaration of Marsha Smith, deputy clerk of the Automatic Appeals Unit, re exhibit No. 31. |
| Aug 6 2004 | Exhibit(s) lodged Deft "J" Audio Tape in case. |
| Oct 21 2004 | Related habeas corpus petition filed (concurrent) case no. S130190 (filed nunc pro tunc, pursuant to court's order of 12-1-2004 in In re Davis on Habeas Corpus, No. S116750.) |
| Mar 11 2005 | Oral argument letter sent advising that case could be scheduled for oral argument as early as the first May calendar, to be held the week of May 2, 2005, 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. |
| Mar 23 2005 | Supplemental briefing ordered The parties are directed to file supplemental letter briefs addressing the following questions: (1) What effect does the trial court's failure to give a unanimity instruction with regard to the taking of victim Brian Harris's car from victim Michelle Boyd or the taking of Boyd's rings from Boyd have on the verdicts finding defendant guilty of the robbery of Boyd and the robbery-murder special circumstance with respect to Boyd? (See AOB p. 327; ARB pp. 95-97.) (2) Can the robbery-murder special circumstance with respect to Boyd be upheld based on the taking of Harris's car from Harris? The parties are to file simultaneous letter briefs on or before April 4, 2005. Simultaneous reply briefs may be filed on or before April 11, 2005. |
| Apr 1 2005 | Received: letter from appellant, dated 3-29-2005, advising that appellant will be filing a motion for leave to file a supplemental brief within the next several days. |
| Apr 1 2005 | Case ordered on calendar 5/4/05 @1:30pm, S.F. |
| Apr 4 2005 | Filed: appellant's supplemental letter brief, dated 4-4-2005. (5 pp.) |
| Apr 4 2005 | Filed: respondent's supplemental letter brief. (5 pp.) |
| Apr 8 2005 | Filed letter from: respondent, dated 4/8/2005, re focus issues for oral argument and request for 45 minutes for argument. |
| Apr 8 2005 | Filed: respondent's reply to appellant's supplemental letter brief, dated 4/8/2005. (3 pp.) |
| Apr 11 2005 | Filed: appellant's reply to respondent's supplemental letter brief, dated 4/8/2005. (4 pp.) |
| Apr 12 2005 | Filed letter from: appellant, dated 4/8/2005, re focus issues for oral argument and request for 45 minutes for argument. |
| Apr 14 2005 | Filed: appellant's request for leave to file supplemental reply brief (re: argument VI, a previously withdrawn issue). (brief submitted under separate cover) |
| Apr 20 2005 | Supplemental briefing ordered The "Request for Leave to File Supplemental Reply Brief," filed April 14, 2005, is hereby granted. George, C.J., was absent and did not participate. |
| Apr 20 2005 | Supplemental reply brief filed (AA) appellant's supplemental reply brief. (15 pp.) |
| Apr 21 2005 | Filed: letter from respondent, dated 4/21/2005, re supplemental authorities for oral argument. |
| Apr 22 2005 | Received: letter from appellant, dated 4/20/2005, re supplemental authorities for oral argument. |
| May 4 2005 | Cause argued and submitted |
| Jul 21 2005 | Opinion filed: Judgment affirmed in full robbery conviction with respect to victim Michelle Boyd is VACATED. Majority Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin & Moreno, JJ. |
| Aug 23 2005 | Remittitur issued (AA) |
| Aug 24 2005 | Order filed (150 day statement) |
| Sep 2 2005 | Received: acknowledgment of receipt of remittitur. |
| Aug 11 2006 | Exhibit(s) returned to our Los Angeles office for return to the Los Angeles Co. Superior Court exhibits custodian. (People's no. 31 and Defendant's J) |
| Aug 15 2006 | Note: exhibits returned to superior court. |
| Aug 25 2006 | Received: acknowledgment from superior court of receipt of exhibits. |
| Briefs | |
| Nov 30 2000 | Appellant's opening brief filed |
| Nov 28 2001 | Respondent's brief filed |
| Dec 17 2002 | Appellant's reply brief filed |
