Filed 7/10/06
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S046733
v.
Riverside County
GREGORY SPIROS DEMETRULIAS,
Super. Ct. No. CR40220
Defendant and Appellant.
Gregory Spiros Demetrulias was convicted and sentenced to death for
murdering Robert Miller in the commission of a robbery or attempted robbery
against Miller. On his automatic appeal, we affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant fatally stabbed Miller in Miller’s room on the evening of
January 10, 1989. The prosecution maintained he did so while robbing Miller.
Defendant at trial admitted killing Miller, but claimed he did so in a struggle
Miller initiated when defendant came to collect money Miller owed him.
Guilt Phase Evidence
Prosecution
The victim, Robert Miller, 56, lived in a second floor room at the Mar Mac
Manor, a boarding house in Riverside. On January 10, 1989, around 6:45 p.m., he
had dinner at the Yum Yum Restaurant, where he was a regular customer. When
he paid for his meal, he took from his pocket what, to the cashier, appeared to be
several hundred dollars in cash. Bank records showed he had withdrawn $480 in
the preceding week and on January 17, 1989, had an account balance of $1,151.
Defendant, then 35 years old, was living with his parents in Riverside.
According to the parents, on the day of the crimes defendant drank a large amount
of beer, may have been taking prescription drugs, and displayed an angry or
hostile attitude. That evening, defendant’s mother, at his request, drove him to the
Round Up Bar, not far from the Mar Mac Manor. She also gave him $30 or $40.
Defendant had been going to the Round Up Bar regularly over the previous month
or so, as had the victim, Robert Miller. Defendant got to the Round Up Bar
around 7:30 p.m. His speech slightly slurred, he ordered a beer and drank about
half. He then slammed his drink on the bar, acting very upset. The bartender
asked him to leave; after finishing the beer, defendant did so, stating he was going
to get a beer at the Stop-and-Go convenience store next door. Through the bar
window, a witness in the bar saw defendant walk back and forth between the bar
parking lot and the Stop-and-Go several times over the course of the next hour and
a half, drinking. About 9:30 p.m., he walked away.
Robert Hanshaw, a second floor Mar Mac Manor resident like Robert
Miller, testified that just before 10:00 p.m. on January 10, 1989, he was awakened
by someone running up the stairs. Hanshaw heard someone say, “Give me your
wallet,” in a loud, demanding voice. About 45 seconds later, Hanshaw heard steps
descending the stairs; Miller then came out of his room and announced: “He
stabbed me in the heart. He’s killed me.”
Eric Carson lived on the first floor of the boarding house. Sometime
between 9:30 and 10:00 p.m., he heard banging and stomping, then someone say
in an aggressive voice: “Give me your money. Give me your wallet.” Carson
went out into the first floor hallway, where he was joined by the building manager,
Herb Hamilton. After Hamilton yelled something, Carson saw defendant, who
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seemed to have something in his hand, hurry down the stairs. Defendant said
something, rushed by Carson and Hamilton, and left by the front door. Miller then
staggered down the stairs and, saying he had been stabbed in the heart, collapsed
by Carson and Hamilton.
Miller died of a seven-inch-deep stab wound to his chest. He had also been
stabbed in the face, back, and upper arm. All the wounds were inflicted with a
knife that had one sharp and one dull edge. Directly outside Miller’s room,
investigating officers found such a knife blade, almost eight-inches long, with
blood on it. In the kitchen of the Mar Mac Manor, on the first floor, a drawer
containing knives and other implements was partially open. Miller’s wallet was in
a fanny pack on the dresser in his room. No money was in it, but $34.70 in cash
was in his pants pocket. The fanny pack also contained papers, including a pawn
shop loan receipt, dated December 2, 1988, for $10.
About 4:30 the next morning (January 11, 1989), a police investigator
assigned to the Miller homicide encountered defendant walking on a street near
the Mar Mac Manor, appearing very intoxicated. Defendant, who resembled a
composite sketch based on Carson’s observations of the assailant, acted evasively
when the investigator approached him. The officer detained and searched
defendant. His clothes had apparent bloodstains. In his pockets police found
$1,274 in cash, as well as two knives, numerous coins, four .38-caliber cartridges,
and a wallet and drug prescription bottle with identification for one Clarence
Wissel of Colton.
Police went to Wissel’s house, less than a mile away, and found it had been
ransacked. Wissel’s belongings, some gathered in plastic bags, were in the
doorway, on the driveway, and across the street. Wissel, 82, was in a bedroom,
bound with a telephone cord and with a heavy dresser placed on top of him. Dried
blood was on the walls, as well as on Wissel’s head and on a telephone beneath
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him. In the same room, police found a wallet with defendant’s identification and a
revolver with the cylinder removed. Beer bottles and a knife were in the kitchen
sink, and another knife was on the washing machine. Wissel’s dentures were
found in a toilet. Wissel had suffered stab wounds to his neck, elbow, and chest,
as well as brain injuries, and was comatose when he arrived at the hospital.
In a field about halfway between the Mar Mac Manor and Clarence
Wissel’s house, investigators found shoe prints the same size as defendant’s shoes
and matching the Reebok print pattern of the athletic shoes defendant was wearing
when arrested. The same prints were found at and around Wissel’s house. A
woman who lived by the field had heard her neighbor’s dogs bark loudly around
10:00 p.m. on January 10, which indicated to her that someone was outside.
Defense
The owner of the Mar Mac Manor testified, from her business records, that
Miller had paid his $275 rent in cash on January 10, 1989. A woman who was
with Eric Carson in his room the night of Miller’s killing testified that Carson had
described the assailant to her as a Black man. (Defendant is not Black.) A
defense investigator testified that Robert Hanshaw had told him he did not hear
another person say, “Give me your wallet” or any words to that effect, but heard
only Miller say, “He stabbed me.” A sample of defendant’s blood taken at 10:15
a.m. on January 11, 1989, showed a blood-alcohol level of .04 percent (suggesting
a higher level, around .10 percent, three hours earlier), a therapeutic-range level of
diazepam (Valium), and an unknown amount of Lorazepam, also a sedative.
In support of defendant’s claim that he knew Miller and had lent him
money, Maria de Vries, the owner of the Round Up Bar, testified she had seen
defendant and Miller in the bar together on one occasion, but did not remember if
they had talked with one another. Contradicting herself, she also testified she had
4
never seen the two in the bar at the same time, or at least did not remember seeing
them together. Martha Smith, a bartender, also testified she saw defendant and
Miller talking together at the bar one evening. She was uncertain of the date, but
thought it was two or three weeks after she had begun working, which was just
after Christmas 1988. On rebuttal, the prosecution produced, through de Vries,
timesheets for Smith’s employment. The earliest was for April 1989, after
Miller’s death. Smith, however, testified that when she began working at the bar
they used a sign-in sheet, instead of individual timesheets, to keep track of shifts
worked.
Defendant testified on his own behalf. He admitted felony convictions for
burglary in 1976, theft offenses in 1980 and 1983, and robbery and assault with a
deadly weapon for the attack on Clarence Wissel in 1989.
According to defendant, he and Miller met while both were drinking at the
Round Up Bar in December 1988. They talked in the bar a few times after that.
On January 6 or 7, 1989, defendant lent Miller $40, which Miller promised to
repay at the bar on the evening of January 10.
During the day of January 10, 1989, defendant consumed about 12 beers
and took Valium and other prescription drugs, up until 5:00 or 6:00 p.m. A couple
of hours later, his mother drove him to the Round Up Bar, where he was to meet
Miller. After drinking one or two beers, defendant got tired of waiting for Miller,
slammed his beer on the bar, and left. He went to the adjacent market, bought a
few more beers, and drank them while he paced and waited, for about an hour.
Having previously learned from Miller where he lived, defendant decided to go
there. Walking, he arrived at the Mar Mac Manor about 10:00 p.m.
After knocking, defendant entered the boarding house through the front
door and went up the stairs to Miller’s room. Miller’s door was open, and Miller
was sitting there with the television on. Standing in the doorway, defendant asked
5
Miller why he had not been at the Round Up Bar and whether he had defendant’s
money. Miller said he was broke and, to defendant’s further inquiry, said he did
not know when he would have the money to repay defendant. Defendant entered
the room, and an argument ensued. Miller yelled at defendant to get out, while
defendant “could have” said something like “Just give me the money.”
Miller reached down and picked up something, then charged at defendant
with a knife in his hand. Defendant wrested the knife from Miller’s hand and
stabbed Miller in the face, but Miller came at him again with his fists. Defendant
stabbed him in the side of his chest. Miller kept coming, and defendant stabbed
him in his back and the back of his arm while pushing him off. Defendant fell in
the struggle, and the knife blade broke off. Finally defendant, sensing Miller “had
had enough,” left, without going through Miller’s pockets or taking anything.
Still holding the handle of the broken knife, defendant descended the stairs.
Seeing Carson, he explained, “We got into it, he attacked me,” but Carson did not
respond or move out of defendant’s way. Defendant went around him and fled the
building. Not knowing what Carson would do, defendant ran. He wanted to find
a telephone in order to talk to his mother before turning himself in. He knew who
Wissel was because of business dealings defendant’s father had had with Wissel,
so he stopped there.
Wissel opened the door with a gun in his hand. When he raised the gun,
defendant pulled out a pocketknife and stabbed Wissel three times. When Wissel
walked to another room and picked up a telephone, defendant hit him with the
phone, disabled the gun by removing the cylinder, then tied Wissel up with the
phone cord and put a dresser on top of him to keep him from moving around.
Defendant drank about eight beers from Wissel’s refrigerator and took a handful
of Valium. He ransacked the house, taking money and other things, and gathered
6
other items to take later. When he found Wissel’s dentures in a medicine cabinet,
he threw them in the toilet, though he did not know why.
The police arrested defendant while he was walking the streets. The money
in his pocket belonged mostly to Wissel, but a small amount was defendant’s own.
Because he did not want to talk to the police and was “pretty wasted,” defendant
lied in a police interview and said he did not know anything about Miller’s death
or the assault on Wissel. A few months later, he also lied to two psychiatrists
appointed to examine him, because he also did not want to talk to them. He told
them he had no memory of the events of the time and that his memory was largely
blacked out between Christmas 1988 and his arrest on January 11, 1989.
Penalty Phase Evidence
Prosecution
The officers who found Clarence Wissel beaten and bound also found that a
Medicare card had been placed in his rectum. Before the attack, Wissel was in
good health for his age; he lived independently and was not limited mentally.
After the attack, he could not walk or speak and was unaware of events around
him. He could not feed himself, though eventually he was able to be fed by a
caretaker.
Robert Miller’s daughter, Terrie Ormonde, testified that as an adult she was
close to her father. He spent weekends with her family, going to church with them
and doing fun things with her children. After his death, Ormonde notified Miller’s
ailing mother, who was devastated by the news.
The prosecution introduced evidence of several prior violent crimes. In
1976, defendant knocked down a woman in a grocery store parking lot and took
her purse. She suffered a serious cut on her head, as well as bruises. In 1977, he
argued with his brother Peter over defendant’s plan to steal from their father.
7
Defendant, under the influence of heroin, cut Peter’s hands with a pocketknife in
the altercation. In 1980, another man robbed a gas station attendant at knifepoint;
shortly thereafter, defendant was arrested, after a chase, driving a car in which the
robber was a passenger. Also in 1980, defendant, apparently under the influence
of drugs, robbed a liquor store clerk while brandishing a handgun. In 1983, he
robbed a grocery store by claiming to have a weapon.
The prosecution also introduced evidence of defendant’s violence while he
was in custody in the Riverside County jail. In 1989, defendant grabbed a
cellmate, Wesley Richards, and threw him, headfirst, into the bars of their cell,
injuring Richards’s eye and head. Also in 1989, correctional officers found a
loose razor blade in defendant’s property box. Later that year, a cellmate of
defendant’s was found covered in blood with injuries to his face; defendant was at
the back of the cell washing his hands, which were red, cut, and trembling. In
1991, defendant shoved a cellmate headfirst into the cell bars and punched him,
injuring his face. Also in 1991, defendant assisted a cellmate, Harry Copenhaver,
resist extrication from their cell after Copenhaver refused to give up extra milk
cartons the correctional officer said were contraband. When a team of officers
came into the cell to get Copenhaver, defendant and Copenhaver pushed
mattresses on them, kicked them, and hit them with weapons made by putting soap
bars in socks.
Defense
After the 1983 grocery store robbery, defendant’s blood was found to
contain alcohol, opiates, and methadone. Wesley Richards testified that another
cellmate besides defendant had also hit him in the 1989 incident and that his
injuries were probably caused by that cellmate or by still another inmate, rather
than by defendant. Copenhaver testified that in the 1991 incident he resisted being
8
handcuffed and removed from the cell because he thought he would be beaten if
he complied, and he warned his cellmates not to comply for this reason. Inmates
from the next cell testified that after the fight they saw Copenhaver dragged
unconscious through the hallway by sheriff’s deputies and jabbed with batons,
though he was not resisting.
Several members of defendant’s family testified as character witnesses.
Defendant’s father testified defendant had worked with him at their farm and
poultry processing plant and later, at their restaurant equipment business, and that
he was a good worker. At some point, though, defendant developed a drug
problem and began to act differently.
Defendant’s mother testified he was a thoughtful child and something of a
loner. In his twenties, though, he started doing drugs; in 1983, she saw him on the
street with heroin. When he was released from prison in 1988, he had long hair
and was paranoid. She tried to get him help through his parole officer. When she
visits defendant in jail now, he cries over what he did to Miller and Wissel.
Georgeann Demetrulias, defendant’s sister, testified he is a sensitive and
caring person. When they were children, they had to work long hours at the
family poultry business and were beaten by their mother, especially when she
drank. Defendant would try to stop the beatings, then would withdraw physically;
all the children tried to get away at one time or another.
Defendant’s former sister-in-law testified that between 1972 and 1980 she
saw defendant frequently; he was sensitive and fun and treated her daughter
nicely. An aunt and cousin testified that when the cousin was growing up,
defendant visited them on many occasions. He worked on cars with his uncle,
visited with his grandmother, and helped his cousin swim at the beach.
Debbie Floyd was defendant’s girlfriend for about two years in the late
1970’s. Floyd’s daughter lived with them for several months; they did activities
9
as a family, and her daughter viewed defendant as a father figure. During their
relationship, defendant started drinking and doing drugs. At defendant’s
suggestion, Floyd left for Virginia while pregnant with their son, Christopher Jay
Demetrulias (Jay). Defendant wrote and sent money for their son.
Jay came to California to live with his half sister when he was having
trouble in Virginia with school and his mother. While in California, Jay learned
his father was in the Riverside County jail and talked to him on the telephone.
After talking with his father, Jay moved back to Virginia, started going to school,
and decided to stay away from drugs and alcohol.
Defendant’s older son, Gregory Demetrulias, Jr., was raised by defendant’s
parents but remembers spending time with defendant at a local camp. They
communicated by letter and card while defendant was incarcerated, then lived
together, with defendant’s parents, after his release in 1988 and before the present
offenses. During that time, they lifted weights together, tinkered with things, and
horsed around. Defendant, in his son’s view, is not a bad person and has no hatred
toward others.
Friends also testified on defendant’s behalf. Victor Miceli, a Riverside
County Superior Court judge, knew the Demetrulias family for many years and
watched defendant grow up. Defendant often helped out with gardening and other
tasks at Miceli’s house, and they worked together for a number of years as
volunteers at a YMCA camp. Miceli never saw defendant misbehave, but knew
that defendant began getting into trouble with the law after developing a drug
problem. Miceli once arranged for defendant to surrender himself to police.
A friend who met defendant in ninth grade spent time riding dirt bikes with
him, but became aware around 1980 that defendant had developed a drug problem.
The mother of another friend testified that drugs had caused a lot of changes for
families in their neighborhood.
10
On the morning of January 10, 1989, defendant went to the home of Jackie
Bridgewater, whom he had known for more than 20 years and who was like a
mother to him. Defendant looked sick and asked Bridgewater to make telephone
calls to get him help. Bridgewater called psychiatric hospitals, the Social Security
office, and defendant’s parole officer, but “no one would take him.” Bridgewater
has since visited defendant in jail; he has cried when discussing Miller and Wissel.
Bridgewater has also taken her granddaughter to visit defendant; he sends the
granddaughter drawings of teddy bears and hot rod cars, and the granddaughter
calls him “Daddy Greg.”
An expert in drug and alcohol addiction testified in general terms about
heroin use, addiction, and withdrawal. He did not know whether defendant was a
heroin addict or a recreational user.
Verdicts and Judgment of Death
The jury convicted defendant of first degree murder (Pen. Code, §§ 187,
189),1 with a finding he personally used a knife (§§ 1192.7, subd. (c)(23), 12022,
subd. (b)), and a special circumstance finding that the murder was committed
while defendant was engaged in a robbery or attempted robbery (§ 190.2, subd.
(a)(17)(A)). After the penalty trial, the same jury set the penalty at death. The
trial court denied defendant’s motion for modification of the verdict or for a new
trial and sentenced him to death.
1
Unless otherwise specified, all further statutory references are to the Penal
Code.
11
DISCUSSION
Guilt Phase Issues
1. Admission of Evidence of Crimes Against Clarence Wissel
Defendant contends the admission of evidence of his uncharged assault on
Clarence Wissel, his ransacking of Wissel’s house, and his theft of Wissel’s
property violated Evidence Code sections 352 and 1101 and deprived him of due
process in violation of the United States and California Constitutions. We
conclude the court did not err in admitting the evidence.
On defendant’s in limine motion to exclude the Wissel evidence, the trial
court ruled the similarities between the charged homicide of Robert Miller and the
uncharged assault on Wissel were not sufficiently distinctive to make the Wissel
evidence admissible on the identity of Miller’s killer, but that the Wissel evidence
was admissible to show “intent, motive, common design or plan.” Before the
evidence was presented, defendant renewed his objection in part, arguing that at
the least the evidence should be in some manner “sanitize[d]” of inflammatory
details. In the discussion that followed, the prosecutor agreed not to introduce
evidence that a Medicare card was found inserted into Wissel’s rectum (that
evidence was ultimately introduced at the penalty phase) and that among
defendant’s identification cards found in his wallet at Wissel’s house was one
from the Department of Corrections. No other details discovered at the Wissel
crime scene were excluded.
The court instructed the jury twice on the limited admissibility of the
Wissel evidence, once at its introduction and once in the overall guilt phase
instructions. On both occasions, the court instructed that the evidence “if
believed” was not to be considered as showing defendant’s bad character or
“disposition to commit crimes,” but only for the limited purpose of “determining if
12
it tends to show” a characteristic “method, plan or scheme” similar to that used in
the charged crime, the “intent which is a necessary element of the crime charged,”
or “a motive for the commission of the crime charged.”
Defendant argues the Wissel evidence was relevant only as character
evidence, i.e., to show his propensity for crime, and hence was inadmissible under
Evidence Code section 1101, subdivision (a), which generally bars admission of
character evidence to prove conduct on a specific occasion. We disagree. The
evidence was relevant for nonpropensity purposes, in particular to show
defendant’s motive and intent in attacking Miller, uses expressly permitted by
Evidence Code section 1101, subdivision (b). (See People v. Kipp (1998) 18
Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
Evidence of other crimes is admissible only if relevant to prove a material
fact at issue, separate from criminal propensity. (People v. Daniels (1991) 52
Cal.3d 815, 856.) Motive, though not itself an ultimate fact put at issue by the
charges or the defense in this case, was probative of two ultimate facts, intent and
lack of justification. Viewed as motive evidence, the Wissel assault and robbery
tended to prove both that defendant had the intent to rob Miller when he attacked
him, an element of the charged robbery-murder special circumstance, and that
defendant did not act in real or perceived self-defense. Both issues were central to
the anticipated defense and were already in active dispute at the time the court
ruled in limine on the Wissel evidence, for at the hearing on that motion defense
counsel stated his expectation the trial evidence would put into question whether
defendant went to the Mar Mac Manor with the intent of robbing Miller or only
responded to Miller’s attack on him. Similarly, in his opening statement, made
before the prosecution put on its case-in-chief, defense counsel explained at length
how the evidence would show his client stabbed Miller in self-defense, rather than
13
in an attempt to rob him. Defendant’s motive was thus important to two disputed
material issues.
As to motive, the Wissel evidence tended to show defendant felt a strong
need for Wissel’s money and property on the night in question and acted out of
that motive rather than merely to defend himself against Wissel. A trier of fact
could rationally infer that defendant had also felt a strong need for money a short
time earlier on the same night, when he confronted Miller, and therefore that he
stabbed Miller in order to take his money rather than to defend himself against
Miller.
As defendant concedes, the probativeness of other-crimes evidence on the
issue of motive does not necessarily depend on similarities between the charged
and uncharged crimes, so long as the offenses have a direct logical nexus. (People
v. Daniels, supra, 52 Cal.3d at p. 857; People v. Pertsoni (1985) 172 Cal.App.3d
369, 374.) In Pertsoni, the defendant, charged with the shooting murder of a man
who was thought to be an agent for the Yugoslav secret police, claimed he had
acted in self-defense. Evidence was admitted of an uncharged prior violent act:
the defendant’s having shot at a man he believed to be the Yugoslav Ambassador.
(Pertsoni, at pp. 372-373.) Though the acts were dissimilar in the circumstances
of their commission, the other-crimes evidence was held admissible to show the
defendant’s motive of “passionate hatred towards anyone connected with the
Yugoslav government.” (Id. at p. 374.) This motive was in turn relevant to show
the defendant acted “to kill an agent of the detested government, rather than to
protect himself against a perceived danger.” (Id. at p. 375.) Here, similarly,
evidence of defendant’s motives for robbing and assaulting Wissel tended to show
he had had the same motives earlier the same night when he stabbed Miller, and
thus acted with the intent to rob, rather than in self-defense.
14
Defendant relies on People v. Bigelow (1984) 37 Cal.3d 731, in which
evidence of prior robberies and thefts was held inadmissible to show the
defendant’s motive in his trial for murder, robbery, and kidnapping. But in that
case, the defendant’s motive―his desire to take the victim’s property―“was not
seriously contested; there was no question but that, whoever shot [the victim], the
robbery, kidnapping and murder were done as part of a plan to steal [the victim’s]
car.” (Id. at p. 748.) For that reason, proof the defendant had previously
committed thefts or robberies to get the victims’ property “adds little to this case.”
(Ibid.) The opposite was true here: defendant admitted having stabbed Miller, but
denied having tried to rob him and claimed he acted in self-defense. Here, the
identity of the killer was not seriously contested, but defendant’s motive in
attacking and killing Miller most certainly was. Bigelow’s reasoning is simply
inapplicable to the present case.
We also conclude the Wissel incident was similar enough to the Miller
incident to bear directly on defendant’s intent in stabbing Miller. To satisfy this
theory of relevance, charged and uncharged crimes need only be “sufficiently
similar to support the inference that the defendant ‘ “probably harbor[ed] the same
intent in each instance.” [Citations.]’ ” (People v. Ewoldt, supra, 7 Cal.4th at
p. 402.) The incidents need not have the greater degree of similarity required to
show the existence of a common plan or the shared distinctive pattern required to
show identity. (Id. at pp. 402-403.)
Twice in one evening, defendant entered an older man’s home, confronted
the man alone, and stabbed the man several times hard enough to inflict very
serious wounds, including in both cases stab wounds to the chest. Both times he
claimed the other man had attacked or threatened him first and that he had acted in
self-defense. As we have previously explained, quoting from Wigmore: “ ‘[T]he
recurrence of a similar result . . . tends (increasingly with each instance) to
15
negative accident or inadvertence or self-defense or good faith or other innocent
mental state, and tends to establish (provisionally, at least, though not certainly)
the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ ”
(People v. Ewoldt, supra, 7 Cal.4th at p. 402, italics added.) The jury could
rationally find it unlikely that defendant had the extremely bad luck to be attacked
within a short period of time by two older solitary men in ways that required him
to use potentially deadly force against the older men to repel the attacks.
Especially given the evidence that defendant’s assault on Wissel went far beyond
any conceivable need for self-defense and that defendant then ransacked Wissel’s
house and stole from him, the jury could rationally infer instead that defendant
probably attacked both men with the same criminal intent―robbery.
Defendant points to several factual differences between the two incidents,
some of which we acknowledge were shown by the evidence: though both
victims were older than defendant, Wissel was significantly older than Miller;
Wissel lived in a single-family house, Miller in a boarding house; whereas
defendant stayed at Wissel’s house for hours, ransacked it, and stole Wissel’s
property, the evidence he took anything from Miller was weak at best, and no
evidence showed he disturbed Miller’s furnishings before fleeing, which he did
immediately after stabbing Miller; defendant, in the words of his brief, “degraded”
Wissel in a “bizarre” crime, while he simply stabbed Miller several times with a
knife.
Especially in light of the close proximity in place and time between the two
incidents, we disagree that these dissimilarities vitiated the inference that
defendant had the same intent in each incident. Given the evidence that
immediately after his fatal stabbing of Miller, defendant walked or ran less than a
mile to Wissel’s house, where he stabbed and otherwise assaulted that victim, and
given the other similarities outlined above, a jury could rationally reject the
16
coincidental explanation for the two events—that defendant just happened to have
assaulted somewhat similar victims in somewhat similar ways on the same
night―and conclude instead that he harbored the same criminal intent in both
cases. “[W]hen the other crime evidence is admitted solely for its relevance to the
defendant’s intent, a distinctive similarity between the two crimes is often
unnecessary for the other crime to be relevant. Rather, if the other crime sheds
great light on the defendant’s intent at the time he committed that offense it may
lead to a logical inference of his intent at the time he committed the charged
offense if the circumstances of the two crimes are substantially similar even
though not distinctive.” (People v. Nible (1988) 200 Cal.App.3d 838, 848-849.)
The decisions defendant cites as illustrating insufficient similarity between
charged and uncharged crimes to establish relevance on intent are each
distinguishable.
In People v. Williams (1988) 44 Cal.3d 883, 907-908, the People argued
that evidence of prior thefts, committed some days or weeks before the charged
robbery murders, tended to negate the defendant’s diminished capacity defense,
which was based partly on drug and alcohol intoxication. We rejected this theory
of relevance because of the complete lack of evidence the defendant had used
drugs or alcohol at the time of the prior thefts, a crucial dissimilarity that fatally
undermined the logical connection the People had attempted to draw between the
charged and uncharged crimes. (Id. at pp. 908-909.) Defendant points to no such
crucial dissimilarity in the present case. Though the victims and their
circumstances differed in some ways, the crimes―stabbing assaults on older men
alone in their homes, committed very close together in time and place―were
sufficiently alike to support an inference that if defendant acted with an intent to
rob rather than in self-defense in the Wissel case, he did so as well in stabbing
Miller.
17
In People v. Guerrero (1976) 16 Cal.3d 719, 727-728, we rejected the use
of a prior rape to show that the charged murder was committed in the course of an
attempted rape, i.e., to show the defendant’s intent in engaging in sexual activity
with the victim. The fatal flaw in this theory, we explained, was the lack of any
evidence that in the charged killing the defendant had engaged in any sexual
activity with the victim. The prior rape was thus improperly being used both to
establish that the charged incident involved sexual activity and to explain the
intent with which the defendant engaged in that sexual activity. (Id. at p. 728.)
“In short, the People may not conjure up an attempted rape in this instance in
order to introduce evidence of another rape.” (Ibid.) In the case at bench, of
course, there was independent evidence defendant was robbing or trying to rob
Miller when he killed him: the testimony of two boarding house residents that
they heard the assailant demand, “Give me your wallet” or “Give me your
money.” Unlike Guerrero, the prosecution here did not use the Wissel evidence to
“conjure up” an intent to rob in the charged Miller homicide.
Finally, in People v. Harvey (1984) 163 Cal.App.3d 90, 104-105, the
appellate court found a prior robbery the defendant had committed in the same
area six months earlier insufficiently similar to the charged homicide to show an
intent to rob in the charged incident. The appellate court’s reasoning on this point
is neither clear nor persuasive; the court simply referred (id. at p. 105) to its earlier
discussion regarding proof of identity, without explicitly considering whether the
lack of “ ‘distinctive’ ” similarities that made the prior crime irrelevant on identity
(id. at p. 103) also precluded an inference that the assailant in the two incidents
acted with the same criminal intent. As noted, this court later clarified that the
distinctiveness needed to prove identity is not required to make an uncharged
crime relevant on intent. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) In
any event, the six-month passage of time between the uncharged and charged
18
crimes in Harvey distinguishes it from this case. As explained above, the
closeness of time between the incidents here―a matter of minutes, rather than
days or months―provides, together with the other similarities already noted, a
significant basis for an inference that defendant acted with the same criminal
intent in the two incidents.
Because the Wissel evidence was relevant on motive and intent, we need
not decide whether it bore the somewhat greater similarity to the Miller attack
required to be relevant on the existence of a common design or plan (see People v.
Ewoldt, supra, 7 Cal.4th at pp. 402-403). The court’s instruction that the jury
could also consider the evidence for whether it showed a common design or plan
could not, under the circumstances, have been prejudicial. The jury was properly
permitted to consider the Wissel evidence on the hotly disputed issue of whether
defendant stabbed Miller in self-defense or with the intent to rob him. Not
surprisingly, as this was the crucial factual question of the trial, the prosecutor’s
discussion of the Wissel evidence in his argument to the jury focused largely on
this question. Though the prosecutor referred to a similar “pattern of conduct” in
the two incidents, he did not argue for the existence of a common design or plan as
such. That the jury, which was properly permitted to consider the Wissel evidence
on the central questions of self-defense and intent to rob, would have reached a
different result had it not been told it could also consider the evidence on whether
defendant had a common design or plan in the two incidents―a peripheral
question at most―is not reasonably probable. (People v. Welch (1999) 20 Cal.4th
701, 749-750.)2
2
In light of this conclusion, we need not address defendant’s claim the
instruction on common design or plan was inadequate or erroneous in failing to
tell the jury the plans must be highly similar and in stating that the existence of a
(footnote continued on next page)
19
Nor do we agree with defendant that the probative value of the Wissel
evidence was outweighed by its potential for prejudice. The evidence was
strongly probative on the central issue at trial, whether defendant stabbed Miller in
self-defense or with the intent of robbing him. Though the evidence’s probative
value was attenuated to some extent by dissimilarities between the incidents,
“[t]he close proximity in time of the uncharged offenses to the charged offenses
increases the probative value of this evidence.” (People v. Balcom (1994) 7
Cal.4th 414, 427.) Some aspects of the Wissel evidence were potentially
inflammatory, but at the same time the ferocity and extent of defendant’s attack on
Wissel was probative of his criminal intent and lack of need for self-defense. The
jury was twice instructed not to consider the Wissel evidence as showing bad
character, minimizing the potential for improper use (People v. Barnett (1988) 17
Cal.4th 1044, 1119), and the prosecutor did not suggest to the jury that it consider
the Wissel evidence for any improper purpose. The Wissel incident involved an
assault, albeit a very serious one, rather than a homicide like the charged attack on
Miller. The jury, moreover, was informed through defendant’s testimony that he
had pled guilty to assault and robbery and was serving a sentence for the Wissel
crimes. This greatly reduced the likelihood, if any existed, that the jury would
convict defendant of capital murder of Miller in order to punish him for the assault
on Wissel. (Balcom, at p. 427.) Under these circumstances, the trial court did not
abuse its discretion under Evidence Code section 352 in admitting the Wissel
(footnote continued from previous page)
common plan could tend, in turn, to show defendant’s criminal intent. (On the
latter point see contra, People v. Ewoldt, supra, 7 Cal.4th at p. 394 & fn. 2.)
Neither the instruction as a whole nor these particular features bore a reasonable
probability of prejudice because common design or plan was not an important
issue compared to those issues on which the evidence was properly admitted.
20
evidence, nor did that ruling infringe upon defendant’s constitutional right to a fair
trial.3
2. Admission of Evidence of Victims’ Peaceful Characters
Defendant contends certain testimony elicited during the prosecution’s
case-in-chief about Miller’s and Wissel’s nonaggressive or nonviolent characters
violated Evidence Code section 1103, subdivision (a). As the cited provision
states not a rule of exclusion but an exception to one, we understand defendant to
be arguing, more precisely, that the admission of this evidence violated the rule
against use of character evidence to show conduct on a particular occasion (id.,
§ 1101, subd. (a)) because it was not within the exception for rebuttal of defense
evidence of the victim’s character (id., § 1103, subd. (a)(2)).4 We conclude
defendant forfeited the issue of the evidence’s admission by his failure to make a
timely objection on this ground. (Id., § 353, subd. (a).)
3
Defendant argues the jury may well have known that Wissel had died by
the time of trial, and the court should therefore have instructed the jury that
defendant did not kill Wissel. But as there was no evidence as to whether the
effects of defendant’s attack hastened Wissel’s death, the court could not give
such an instruction with complete confidence it was correct. In any event, it was
unnecessary. Whatever the jury surmised about Wissel’s death, it knew defendant
had been convicted only of assault and robbery against him. From a legal point of
view, Wissel’s death was not attributable to defendant, and the jury knew that.
4
Evidence Code section 1103 provides in part: “(a) In a criminal action,
evidence of the character or a trait of character (in the form of an opinion,
evidence of reputation, or evidence of specific instances of conduct) of the victim
of the crime for which the defendant is being prosecuted is not made inadmissible
by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove
conduct of the victim in conformity with the character or trait of character.
[¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant
under paragraph (1).”
21
The issue arises as follows. The prosecutor asked the cashier at the Yum
Yum Restaurant, where Miller was a regular customer, whether she had ever seen
Miller acting “hostile or threatening or violent towards anybody.” The defense
objection, “irrelevant,” was overruled, and the witness answered, “No.” Similarly,
a bartender at the Round Up Bar testified, over a defense objection of “relevance
and speculation, foundation,” that Miller was nice and polite, not angry or
threatening, on the occasions when she had seen him there. A fellow tenant at the
Mar Mac Manor testified, over defense objections of “foundation” and
“speculation,” that he had never known Miller to be hostile. Clarence Wissel’s
daughter testified, over a defense objection of “irrelevant,” that he was a quiet man
who avoided conflict. Finally, in response to defense counsel’s question whether
she considered Miller a friend, the owner of the Round Up Bar testified that Miller
was just a customer, but he was a “very nice man” who would give anyone who
asked the “shirt off his back.” The court denied the defense motion to strike this
answer as nonresponsive.
Later, on the basis of defense statements indicating that defendant was
claiming self-defense, the prosecution sought to call other witnesses to testify to
Miller’s peaceful character. The defense moved to exclude the witnesses, arguing
the self-defense claim did not open the door to such rebuttal character evidence
(Evid. Code, § 1103, subd. (a)(2)) because the defense had not and would not
introduce any negative character evidence regarding Miller (id., subd. (a)(1)). At
the same time, the defense moved to strike any previous references to either
victim’s peaceful character. The court, agreeing the character evidence door
would not be opened simply by defendant’s likely testimony that Miller had
attacked him, excluded the proposed prosecution witnesses, but declined to strike
the “limited and brief reference[s]” to the victims’ characters already in the record.
22
Evidence Code section 353, subdivision (a) allows a judgment to be
reversed because of erroneous admission of evidence only if an objection to the
evidence or a motion to strike it was “timely made and so stated as to make clear
the specific ground of the objection.” Pursuant to this statute, “ ‘we have
consistently held that the “defendant’s failure to make a timely and specific
objection” on the ground asserted on appeal makes that ground not cognizable.’ ”
(People v. Partida (2005) 37 Cal.4th 428, 433-434.) Under this principle,
defendant’s claim that the admission of evidence of the victims’ peaceful
characters violated Evidence Code section 1103 is not cognizable; defendant
forfeited his claim by failing to make timely objections or a timely motion to strike
on that specific ground.5
Defendant made timely objections (or in the case of the Round Up Bar
owner’s testimony, a timely motion to strike), but not on the grounds now
asserted. Contrary to defendant’s argument, a relevance objection does not, in
itself, alert the trial court to the claim that the testimony objected to is inadmissible
character evidence. Evidence of a character trait has a “tendency in reason” (Evid.
Code, § 210) to prove the person’s conduct in conformity with that trait on a
particular occasion. Indeed, the Law Revision Commission comment to Evidence
Code section 1100 notes that “[e]vidence of a person’s character or a trait of his
character is relevant . . . when offered as circumstantial evidence of his conduct in
conformity with such character or trait of character.” (Cal. Law Revision Com.
com., 29B pt. 3 West’s Ann. Evid. Code (1995 ed.) foll. § 1100, p. 431.) The
general rule against its use for this purpose (Evid. Code, § 1101, subd. (a)) is
5
The same is true as to defendant’s appellate claim that admission of this
“propensity” evidence in violation of Evidence Code section 1103 infringed his
constitutional due process rights.
23
founded not on lack of relevance but on “Extrinsic Policies” (id., title of div. 9)
relating to prejudice, the potential for the jury to be distracted and base its decision
on the parties’ characters themselves, and the potential for confusion of the issues
and extended inquiry into collateral matters. (See Cal. Law Revision Com. com.,
supra, foll. § 1101, p. 438.) Nor did defense counsel’s objections that the
testimony lacked foundation, was speculative, or nonresponsive reasonably
specify the character evidence claim now presented.
Defendant did rely on Evidence Code section 1103 (and thus impliedly on
Evidence Code section 1101, to which section 1103 is an exception) in his motion
to strike the testimony, which was made some days afterward. The motion was
thus specific enough, but not timely. “When the nature of a question indicates that
the evidence sought is inadmissible, there must be an objection to the question; a
subsequent motion to strike is not sufficient.” (People v. Perry (1972) 7 Cal.3d
756, 781, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28;
see Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 657-658
[failure to object at the time of testimony forfeited claim under Evid. Code, § 353,
notwithstanding motion to strike at close of day’s trial proceedings].) “Any other
rule would in a great measure do away with the necessity of interposing
seasonable objections and enlarge the motion to strike out.” (People v.
Scalamiero (1904) 143 Cal. 343, 346.)
The same rule applies here, even though defendant did object to the
testimony before it was given, because those objections were not made on the
specific ground now urged. To satisfy Evidence Code section 353, subdivision
(a), the objection or motion to strike must be both timely and specific as to its
ground. An objection to evidence must generally be preserved by specific
objection at the time the evidence is introduced; the opponent cannot make a
“placeholder” objection stating general or incorrect grounds (e.g., “relevance”)
24
and revise the objection later in a motion to strike stating specific or different
grounds. In People v. Camacho (1993) 19 Cal.App.4th 1737, 1745, for example,
the appellate court held the defendant had forfeited his claim of improper
examination by the trial court where, though he initially objected on other
grounds, his objection that the court was improperly “cross-examining” him was
raised only later, after additional testimony. Similarly, in People v. Horn (1960)
187 Cal.App.2d 68, 76-78, the defendant’s hearsay claim was held forfeited
because at the time the evidence was admitted the defendant objected only that it
was “ ‘incompetent, irrelevant and immaterial,’ ” though he later submitted a
further objection on hearsay grounds. Though the trial court in this case could
perhaps have excused the untimeliness of defendant’s objection and stricken the
testimony (which was, as the court noted, “limited and brief”), it was not required
to do so.
3. Refusal of Jury Instruction on Claim of Right
The defense requested the following special instruction be given to the jury:
“A belief in the right to reclaim one’s property negates the specific intent
necessary to constitute robbery. If such specific intent is not present at the time of
the alleged offense then the special circumstance of robbery, or attempted robbery,
is not proved.” The trial court refused this request, apparently because of
counsel’s failure to present the court with published authority for the special
instruction.
Defendant now cites People v. Butler (1967) 65 Cal.2d 569, as supporting
the requested instruction. In People v. Sakarias (2000) 22 Cal.4th 596, 622, we
explained that Butler had been overruled “to the extent it allowed a claim-of-right
defense to robbery where the alleged robber’s intent was to collect a claimed debt,
rather than to recover specific property taken from him. (People v. Tufunga
25
(1999) 21 Cal.4th 935, 956.)” We also held, however, that “[a]pplication of that
holding to conduct preceding Tufunga’s finality . . . would constitute an
unforeseeable retroactive expansion of criminal liability, in violation of due
process. (Bouie v. City of Columbia (1964) 378 U.S. 347, 353.)” (Ibid.)
At oral argument, the Attorney General suggested defendant’s testimony
did not support a claim-of-right instruction even under the law at the time of his
trial because defendant testified that he went to Miller’s room with the intent of
peacefully collecting the $40 debt, not with the intent of retaking his money by
force, and insisted that he used force only in response to Miller’s attack. In the
abstract, however, the possibility existed the jury could believe defendant about
the existence of the debt, but not about his intent to collect it peacefully. Belief in
this factual theory was, as explained below, very unlikely, but its theoretical
possibility arguably supported the giving of a claim-of-right instruction under
People v. Butler, supra, 65 Cal.2d 569.
Even assuming the instruction should have been given, we agree with the
Attorney General that any error was harmless even under the standard of
Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Creath (1995) 31
Cal.App.4th 312, 320 [applying Chapman standard without discussion].)
Although not given the proposed claim-of-right instruction, the jury was instructed
on the element of specific intent to take property from another and deprive the
other person permanently of that property necessary for a finding of robbery, and
hence murder in the commission of a robbery, as well as on the specific intent to
rob necessary to find attempted robbery. Defense counsel argued the special
circumstance was not proved because the evidence showed “that Greg Demetrulias
was in Mr. Miller’s room over a debt, not a robbery. And that Greg Demetrulias
acted in self-defense when Mr. Miller came at him with a knife.” The prosecutor
did not suggest to the jury that collection of a debt could constitute robbery, but
26
rather argued defendant had simply invented the $40 debt to explain his demand
for Miller’s money, which he knew had been overheard by witnesses.
As defense counsel’s argument indicates, the claim defendant went to
Miller’s room merely to collect a debt was closely tied to the claim of self-defense.
The jury had many reasons to reject defendant’s self-defense claim, as it clearly
did, and the same reasons, by and large, suggested rejection of defendant’s claim
he was only trying to collect a debt. Defendant’s self-serving testimony regarding
the debt was completely uncorroborated; whether he and Miller were even
acquainted was disputed, but no evidence other than defendant’s testimony existed
to show Miller had borrowed money from defendant. Miller’s fellow tenants
heard his killer demand, “Give me your wallet,” not “Give me the $40 you
borrowed.” Circumstantial evidence suggested defendant took the knife he used
to kill Miller from the Mar Mac Manor kitchen on his way to Miller’s room; he
would have had no reason to take a knife if he had come simply to ask for his $40.
The number and severity of the stab wounds defendant inflicted on Miller strongly
suggested defendant’s intent was not limited either to repelling an attack from the
older man or recovering his loan. Defendant fled from the scene, indicating
consciousness of guilt, and later falsely denied any knowledge of the events.
Shortly after killing Miller, defendant assaulted Wissel, who had not borrowed any
money from him, and stole more than $1,000 and much additional property from
Wissel. If defendant’s intent with Miller were simply to seek repayment of a $40
debt, why would he come armed with a kitchen knife, stab Miller four times, flee
the scene, and shortly thereafter attack an even more vulnerable victim and take
from him many times the amount of Miller’s supposed debt?
The jury, by its first degree murder verdict, necessarily rejected defendant’s
testimony that he acted in self-defense (perfect or imperfect). We see no
reasonable basis on which a jury could have rejected self-defense but accepted a
27
claim-of-right claim. Both defense theories rested solely on defendant’s
testimony, and no reason appears in the evidence for a trier of fact to believe
defendant as to the debt collection but not as to Miller’s asserted attack on him;
indeed, as discussed above, the evidence casting great doubt on defendant’s
version of events applies to both defense theories. The jury was instructed
generally on the need to find specific intent to rob or steal, and neither party’s
argument to the jury suggested that collection of a debt could be robbery. Under
all these circumstances, any error in failing to give the requested claim-of-right
instruction was harmless beyond a reasonable doubt. (Chapman v. California,
supra, 386 U.S. at p. 24.)
4. Refusal of Instructions on Heat-of-passion Voluntary Manslaughter
Defendant requested the jury be instructed on voluntary manslaughter
committed “upon a sudden quarrel or heat of passion” prompted by sufficient
provocation. (§ 192, subd. (a).) The trial court refused, reasoning that defendant’s
testimony did not show any provocation other than Miller’s asserted attack on
defendant, which warranted instructions on self-defense and voluntary
manslaughter as a killing done out of an honest but unreasonable belief in the need
for self-defense, but not on heat-of-passion voluntary manslaughter. The jury was
therefore instructed only on imperfect self-defense voluntary manslaughter.
We need not decide whether the trial court was required to instruct on heat-
of-passion voluntary manslaughter, because any error in failing to do so was
clearly harmless, even under the standard of Chapman v. California, supra, 386
U.S. at page 24, which defendant argues applies. (See People v. Breverman
(1998) 19 Cal.4th 142, 165-166 [failure to instruct on court’s own motion on
lesser included offense in noncapital case is error of state law only].) The jury
found true the special circumstance allegation that defendant killed Miller in the
28
course of, and in order to advance, the commission or attempted commission of a
robbery. The robbery-murder special-circumstance finding also dictated a finding
of first degree felony murder under section 189 and the corresponding felony-
murder instruction, which was properly given. The failure to instruct on one
theory of voluntary manslaughter was therefore harmless, as the jury necessarily
determined the killing was first degree murder, not manslaughter, under other
properly given instructions. (People v. Koontz (2002) 27 Cal.4th 1041, 1085-
1086; People v. Lewis (2001) 25 Cal.4th 610, 646.)
5. Exclusion of Hearsay Evidence as to When Miller Paid His Rent
Defendant contends the trial court erred in excluding hearsay evidence that
Miller paid the rent for his Mar Mac Manor room only 20 or 30 minutes before he
was killed, which defendant maintains would have tended to show he did not steal
any money from Miller. Defendant does not argue that the evidence, statements of
the Mar Mac Manor manager to the boarding house owner and to investigating
officers, was within any statutory exception to the hearsay rule; instead, he urges
this court to hold the evidence should have been admitted on the nonstatutory
ground that it was “critical reliable evidence” offered in a capital trial. We
conclude the trial court properly declined to recognize a nonstatutory exception for
the proposed evidence in this case.
The issue arises as follows. Detective Frogue, who investigated Miller’s
death, testified he reached the conclusion that all the cash found on defendant at
his arrest belonged to Clarence Wissel, and he therefore gave the cash to a
member of Wissel’s family. Defense counsel’s question whether Frogue learned
something about the money from Herb Hamilton, the Mar Mac Manor manager,
drew a prosecution hearsay objection, which was sustained.
29
Out of the jury’s presence, defense counsel offered to show that Hamilton,
deceased by the time of trial, told Frogue that Miller had given him the rent at 9:00
or 9:30 on the night of January 10, after Miller had dinner at the Yum Yum
Restaurant and shortly before he was killed. He argued such evidence was
important to dispel any impression that at the time of his death Miller still had the
hundreds of dollars the Yum Yum cashier observed, and hence that defendant
stole that money from Miller. Counsel conceded he could think of no applicable
exception to the hearsay rule, but argued due process required the trial court to
admit the evidence under a “catchall” exception. The court excluded the offered
hearsay, ruling it was not within any exception and was unnecessary in light of
Frogue’s testimony that he had concluded all the money found on defendant was
taken from Wissel. The offer was later renewed, counsel noting that Hamilton’s
statement was recorded in two police reports, but again arguing not for any
statutory exception to the hearsay rule but for a due process or “catchall”
exception. The court adhered to its earlier ruling, stating as well that it did not
consider the evidence entirely reliable.
Marjorie McCrory, owner of the Mar Mac Manor, testified for the defense
that she kept records of rent, which was paid to her manager, in a diary. The diary
reflected that Miller had paid his $275 monthly rent on January 10, 1989, the day
of his death. The entry did not say what time the rent was paid or whether it was
in cash or by money order, but McCrory remembered that Miller always paid cash.
Just before McCrory testified, addressing “records we’ll be seeking to use,”
defense counsel showed the court and prosecutor that, at the bottom of her diary
entry regarding Miller, McCrory had written “murdered by a parolee shortly after
paying rent on January 10th.” Counsel explained he had advised McCrory not to
discuss that note during her testimony “pending any ruling you [the court] might
make on it,” and that “[a]ssuming that you find that that’s not appropriate, I would
30
ask the Court might also advise her similarly.” The court then cautioned
McCrory, out of the jury’s presence, not to volunteer anything about her note
regarding Miller’s death.
While the defense clearly made an offer of proof as to Frogue’s testimony,
the colloquy over McCrory’s testimony does not demonstrate the defense sought
to introduce her note regarding Miller’s death or to elicit testimony to the same
effect. Rather, it appears counsel (for obvious reasons) wanted to avoid McCrory
saying that Miller was “murdered” by a “parolee” shortly after paying his rent.
Counsel asked the court to caution McCrory not to discuss the note, and the court,
without prosecutorial objection, did so. Defendant, by requesting exclusion rather
than admission of the evidence, waived any appellate claim that the note, or
testimony in accord with it, should have been admitted. (See Evid. Code, § 354.)
Moreover, defense counsel did not suggest any statutory hearsay exception
was applicable to either McCrory’s or Frogue’s testimony. Defendant now asserts
the statement in McCrory’s records was “arguably” within the business records
exception (Evid. Code, § 1271) and the statement to Frogue “might be viewed” as
an excited utterance (id., § 1240), but he provides no actual arguments for either
assertion, even in response to the Attorney General’s detailed arguments to the
contrary. The defense completely failed to establish at trial the foundational facts
necessary for these exceptions, for example that McCrory’s note as to the agency,
criminality, and time of her tenant’s death was made “in the regular course” of her
boarding house business (id., § 1271, subd. (a)) or that Hamilton’s statement to
Frogue was made spontaneously and while Hamilton was under the “stress of
excitement” caused by perceiving the event narrated (id., § 1240, subd. (b)). The
burden of producing evidence to establish these foundational facts fell to
defendant as the proponent of the evidence, and in the absence of such
31
foundational evidence, we will not assume error. (People v. Ramos (1997) 15
Cal.4th 1133, 1177-1178.)
Although California appellate courts have the authority to recognize
nonstatutory exceptions to the hearsay rule, we do so cautiously in light of the
venerable policy against admitting declarations by witnesses who cannot be
cross-examined. (People v. Ayala (2000) 23 Cal.4th 225, 268.) Whether or not an
exception for “critical reliable evidence” in capital cases might deserve
recognition, this case does not present a suitable occasion because the evidence at
issue was neither critical nor entirely reliable.
The jury heard that on January 10, 1989, Miller withdrew $340 from his
bank account, paid his $275 rent, ate dinner at a restaurant, and had about $35 on
his person when he died. Consistent with this, the jury also heard that the
investigating detective had concluded the more than $1,000 in cash found on
defendant when he was arrested came largely or wholly from Wissel. Defendant
argues the testimony of the Yum Yum Restaurant cashier, that Miller had what
looked like several hundred dollars in cash when he ate dinner, could have led the
jury to surmise Miller had hundreds of dollars―which defendant stole―even after
paying his rent. But no such inference arises naturally from the evidence; a juror
could conclude at least as readily that Miller had disposed of his cash by paying
his rent after dinner.
Moreover, evidence Miller did pay the rent after dinner would not establish
that he did not have additional cash on hand at the time of his encounter with
defendant. Defendant fears one or more jurors might have imagined Miller had
much more on hand during the day of January 10 than the $340 he had withdrawn,
so much that even after paying his rent he still had hundreds of dollars when he ate
dinner at the Yum Yum Restaurant. But a juror who imagined Miller had this
much additional cash could as easily believe he still had it when he was attacked
32
by defendant despite having paid his rent after dinner. The timing of Miller’s rent
payment does not show how much cash he had on January 10 in addition to the
rent money.
Finally, and most importantly, robbery murder was established as fully by
evidence defendant attempted to rob Miller as by evidence he actually completed a
robbery. The prosecution case for attempted robbery―consisting largely of the
fellow tenants’ testimony that Miller’s assailant demanded money―was
unaffected by the defense suggestions that nothing was actually taken from
Miller’s room. The proposed evidence was therefore not critical to the defense.
As to reliability, McCrory’s note reflects a statement made by Hamilton
that includes his conclusions, drawn from unknown sources, that the killing was
“murder” by a “parolee” and states only that Miller had paid his rent “shortly”
before being killed, which does not pin down the time to before or after dinner.
Hamilton’s statement to Frogue may be reliable enough in itself, and was
apparently more precise as to timing, but, as the Attorney General notes,
cross-examination of Hamilton, were he available, might have shed a different
light on his statement, for example by showing Miller had a significant sum left
even after paying his rent. The principle behind the hearsay rule, that declarations
not subject to cross-examination are inherently unreliable, is applicable here and
militates strongly against creating a new exception to the rule in this case.
For the same reasons―the evidence was neither critical to the defense case
nor wholly reliable―its exclusion did not deprive defendant of his constitutional
right to a fair trial.
6. Cumulative Prejudice from Guilt Phase Error
Defendant contends the cumulative effect of errors in the guilt phase of trial
was prejudicial and requires reversal. We disagree. Although we have assumed
33
error in three respects (the trial court’s instruction that the Wissel evidence could
be considered as showing a common design or plan (ante, pt. 1) and its failure to
give requested instructions on claim of right (ante, pt. 3) and heat of passion (ante,
pt. 4)), we found all three assumed errors harmless. The two omitted instructions,
moreover, went to different jury findings―heat of passion to whether defendant
harbored malice when he killed Miller, and claim of right to whether he killed
Miller in the course of a robbery, attempted or complete. Any adverse effects of
omitting these instructions therefore could not have added together. Nor can we
see how the additional design or plan portion of the other-crimes instruction could
have aggravated any effect of the omitted instructions on claim of right or heat of
passion.
7. Defendant’s Impeachment with Statements Taken in Violation of
Miranda
The trial court granted in part defendant’s motion to exclude his statements
to Detective Frogue made after his arrest (in which he denied he knew anything
about the assaults on Miller and Wissel). Because the detective had continued his
questioning after defendant was advised of and declined to waive his right not to
talk to the detective (Miranda v. Arizona (1966) 384 U.S. 436), the court held,
postinvocation statements could not be used in the government’s case-in-chief, but
could be used for impeachment if defendant testified, which he later did. (See
Harris v. New York (1971) 401 U.S. 222, 225-226 (Harris); People v. Peevy
(1998) 17 Cal.4th 1184, 1188 (Peevy).)
Defendant contends use of his statements in impeachment should also have
been prohibited because in questioning him Detective Frogue deliberately failed to
34
honor his invocation of the right to remain silent.6 As defendant recognizes, we
rejected this argument for an exception to the Harris rule in Peevy, supra, 17
Cal.4th at pages 1196-1202. Defendant argues that Peevy’s holding should be
reevaluated in light of Dickerson v. United States (2000) 530 U.S. 428
(Dickerson), but we fail to see Dickerson’s bearing on the question.
The Dickerson court held that Miranda’s protections are constitutionally
required and therefore could not be altered by statute. (Dickerson, supra, 530 U.S.
at pp. 438-441.) The high court acknowledged that some of its decisions,
including Harris, supra, 401 U.S. 222, had limited Miranda’s application, but
explained those decisions were not inconsistent with Miranda’s constitutional
foundation: “These decisions illustrate the principle―not that Miranda is not a
constitutional rule―but that no constitutional rule is immutable. No court laying
down a general rule can possibly foresee the various circumstances in which
counsel will seek to apply it, and the sort of modifications represented by these
6
Although the Attorney General does not dispute defendant’s claim that
Frogue deliberately continued questioning after invocation of a Miranda right, the
record is actually ambiguous as to the deliberateness of the violation. At the
hearing on defendant’s motion, Frogue first testified he did not think defendant
had ever firmly invoked his right to remain silent and that his habit and custom
was to stop an interview when the suspect invoked Miranda rights. On cross-
examination, however, he said he had learned from training materials and classes
that an interviewer could continue questioning after a suspect invoked the right to
remain silent (but not the right to have an attorney present) because a subsequent
statement could be used for impeachment. On redirect, Frogue said he ended the
interview if a suspect definitely said he did not want to talk. In litigating the
exclusion motion, the prosecution disputed whether defendant had clearly and
unequivocally articulated his desire not to talk to the detective, and while the trial
court resolved this question in favor of the defense, the court expressly declined to
find that Frogue had heard the invocation and intentionally ignored it when he
continued questioning defendant.
35
cases are as much a normal part of constitutional law as the original decision.”
(Dickerson, at p. 441.) Dickerson, as the high court understood its decision, is
clearly not inconsistent with Harris.
Our decision in Peevy did not rest on the premise Miranda’s rules are
nonconstitutional. Indeed, in Peevy we expressly disagreed with the People’s
argument that Miranda “impose[s] no affirmative duties upon police officers, but
merely establish[es] rules of evidence” or “mere advice regarding preferred police
conduct.” (Peevy, supra, 17 Cal.4th at p. 1202.) We recognized in Peevy that
Miranda states required rules of conduct for police officers, drawn from the
United States Constitution, but held the deliberateness of a violation of those rules
did not alter the balance struck in Harris and other cases “between deterring police
misconduct and exposing defendants who commit perjury at trial.” (Peevy, at pp.
1204-1205.) The high court’s reiteration of Miranda’s constitutional principles in
Dickerson therefore does not affect our holding in Peevy.
The trial court did not err in allowing defendant to be impeached with his
statements to Detective Frogue.
Penalty Phase Issues
1. Prosecutorial Misconduct in Penalty Phase Argument
Defendant contends the prosecutor committed misconduct at five points in
his penalty phase argument to the jury.7 We conclude defendant forfeited some
7
Within this claim, defendant also points to two aspects of the prosecution’s
guilt phase conduct he contends were improper. In light of our earlier conclusions
on related guilt phase issues, neither contention requires extended discussion.
Because the Wissel evidence was admissible under Evidence Code section 1101,
subdivision (b), its introduction was not misconduct, nor did defendant object on
the basis of prosecutorial misconduct (see People v. Samayoa (1997) 15 Cal.4th
795, 841) to the Wissel evidence or to questions regarding the victims’ peaceful
characters. (See ante, pts. 1 & 2.) The prosecutor did not misconduct himself by
(footnote continued on next page)
36
of his claims by failing to object and seek an admonition (People v. Boyette (2002)
29 Cal.4th 381, 432; People v. Samayoa, supra, 15 Cal.4th at p. 841) and that, in
any event, none of the challenged prosecutorial remarks were improper.
In penalty phase argument, the prosecutor maintained the evidence of
“hardships” defendant had suffered when younger “can never excuse or even
explain his violent choices in life.” He continued: “And who hasn’t suffered
some hardship in their life? Who hasn’t been disadvantaged in some way? All of
us. There are no excuses for what he did to Mr. Miller or Mr. Wissel or the
number of other victims. And should you choose life without parole for the
defendant, based on this, then no human being would ever receive the death
penalty because there is always some disadvantage or hardship that they may have
suffered.”
Defendant contends this argument improperly suggested the jury could not
legally consider his past hardships in deciding on penalty. He did not object or
seek a jury admonition, which could have cured any prejudice, and has therefore
forfeited his appellate claim. (People v. Jackson (1996) 13 Cal.4th 1164, 1239.)8
We also disagree on the merits. The prosecutor elsewhere acknowledged to the
(footnote continued from previous page)
seeking a robbery-murder special-circumstance finding despite being aware of
hearsay evidence that Miller had paid his rent shortly before being killed;
whenever Miller paid his rent, the prosecutor was entitled to pursue the theory,
which was not precluded by the excluded hearsay evidence, that defendant robbed
Miller of other money or, at the least, attacked him to advance an attempted
robbery. (See ante, pt. 5.)
8
Defendant contends any objection would clearly have been futile in light of
the court’s overruling of previous objections. But the earlier prosecutorial
arguments as to which objections were overruled were on different, if somewhat
related, points. (See post, fns. 10, 11, 13, and accompanying text.)
37
jurors that under the law the defense could present, and had presented, evidence of
any aspect of defendant’s “character or record” as a basis for a sentence less than
death (see § 190.3, factor (k)).9 In the challenged portion of his summation, the
prosecutor argued not that the law prohibited consideration of the defense
evidence, but that it was not worthy of consideration because it did not reflect any
extraordinary hardships that could excuse or even explain defendant’s violent
criminality. The argument, a proper one, was that the evidence did not show
defendant deserved sympathy, not that sympathy and mercy could not legally be
entertained. (Jackson, at p. 1241; People v. Raley (1992) 2 Cal.4th 870, 917;
People v. Haskett (1990) 52 Cal.3d 210, 246.) For the same reason, we cannot
agree with defendant’s claim the argument improperly disparaged our legal
system.
Defendant also contends the prosecutor misstated the law regarding
mitigation and improperly impugned defense counsel’s integrity by arguing that
the defense, in its penalty phase evidence, “continued to present or portray
[defendant] as a victim,” just as they had claimed self-defense in the guilt phase,
that this constituted an “attempt to distract” the jury from “the real victims of his
violent life,” and that the jury should “[l]et that disingenuous attempt fall on deaf
ears.”10 Again, we believe the argument was proper. An attorney, including a
prosecutor, is entitled to point out that the opposing side is engaging in what the
attorney believes to be an attempt to confuse the issues, and may urge the jury to
9
Defense counsel, of course, emphasized this point, and the jury was given
the standard instruction on section 190.3, factor (k).
10
A defense objection to this argument as misconduct was immediately
overruled, excepting defendant from the requirement he ask the jury to be
admonished. (See People v. Boyette, supra, 29 Cal.4th at p. 432.)
38
ignore that attempt and focus on the relevant evidence. The prosecutor’s
admonition to the jury not to be distracted by the defense emphasis on defendant’s
hardships was neither a misstatement of the law, nor an attack on defense
counsel’s honesty and integrity, nor an improper appeal to passion. (People v.
Taylor (2001) 26 Cal.4th 1155, 1166-1167; People v. Sanders (1995) 11 Cal.4th
475, 549-550; People v. Gionis (1995) 9 Cal.4th 1196, 1216-1218; People v.
Cummings (1993) 4 Cal.4th 1233, 1302 & fn. 47.)
Defendant reiterates his misconduct claims with regard to prosecutorial
argument aimed at testimony from defendant’s family members about the impact a
death sentence for defendant would have on them. The prosecutor suggested the
defense had “applied guilt” to the jury: “And they tell you . . . this harms his
children. This harms his family. This was done to prevent you from doing what is
necessary; what is just. This was done to weaken your resolve. This was done to
weaken your commitment to justice and the right thing. Whatever you choose,
whatever penalty you choose, ensure that you follow the law and that you do
justice. Whatever you choose, do not decide this case because someone tries to
make you feel guilty.” Defendant’s appellate claim of misconduct in this regard is
forfeited because he failed to object to the argument, but we disagree on the merits
as well.
“We explained in [People v.] Ochoa [(1998) 19 Cal.4th 353] that when
considering mitigating evidence in determining the penalty, the relevant factor ‘is
a defendant’s background and character―not the distress of his or her family. A
defendant may offer evidence that he or she is loved by family members or others,
and that these individuals want him or her to live. But this evidence is relevant
because it constitutes indirect evidence of the defendant’s character.’ ” (People v.
Smithey (1999) 20 Cal.4th 936, 1000.) The evidence in the present case was
admitted, and the prosecutor did not argue it could not be considered to the extent
39
it reflected on defendant’s character. The prosecutor did not improperly appeal to
passion and prejudice, did not misstate the law of mitigation, and did not denigrate
defense counsel in arguing that the jury should not decide penalty on the basis of
“guilt” over the distress a death sentence would cause defendant’s family, but
should instead follow the law and do justice.
After reviewing evidence of defendant’s violent conduct in custody, the
prosecutor argued it showed the danger of giving defendant a life sentence: “We
cannot put him in a cage somewhere and put him in a hole and never feed him and
never have anyone come in contact with him. . . . He will be with other inmates.
He will have contact with other jail deputies. He will have contact with doctors,
nurses, all the types of people that live or work in the Department of
Corrections. . . . Those people are all mothers and fathers and grandfathers and
sons―[11] . . . . None of these people deserve the pain or suffering that the
defendant is capable of inflicting. . . . Life without possibility of parole will afford
him an opportunity―an opportunity―to harm others. . . . He’ll be free to do
whatever he wants in prison, to inflict whatever pain he so desires. As we know,
this violence must end. It must stop. . . . And there is only one punishment that
can accomplish that.”
“ ‘[W]e have never held that in closing argument a prosecutor may not
comment on the possibility that if the defendant is not executed he or she will
remain a danger to others. Rather, we have concluded that the prosecutor may
make such comments when they are supported by the evidence.’ ” (People v.
Michaels (2002) 28 Cal.4th 486, 540-541, quoting People v. Champion (1995) 9
11
At this point, defense counsel objected to the argument as misconduct; her
objection was immediately overruled. (See People v. Boyette, supra, 29 Cal.4th at
p. 432.)
40
Cal.4th 879, 940; accord, People v. Ray (1996) 13 Cal.4th 313, 353.) In the
present case, there was ample evidence in aggravation showing defendant had
committed violent assaults on jail personnel and fellow inmates alike. The
prosecutor was entitled to urge the jury to extrapolate from that evidence to what
defendant’s behavior was likely to be in state prison if given a life sentence.12 The
argument neither went beyond the evidence nor improperly appealed to passion
and prejudice.
Finally, defendant contends the prosecutor committed misconduct in
arguing that he was “less deserving of leniency” because the evidence did not
show he killed Miller while under the influence of an extreme mental or emotional
disturbance (§ 190.3, factor (d)) or that Miller participated in or consented to the
homicidal conduct (id., factor (e)).13 Again, we disagree. The prosecutor clearly
explained that factors (d) and (e) were “mitigating factors” and that consequently
their absence “does not change to aggravating circumstances” and “does not
aggravate this particular crime or aggravate towards the punishment of death,” but
merely shows “the defendant is less deserving of leniency” than if the factors were
present. This was not, as defendant claims, a misstatement of the law. (See
12
Defendant observes there was no evidence of the conditions under which he
would be held if given a life sentence. The prosecutor nonetheless could
reasonably argue that defendant could not be kept in complete isolation for his
entire life and would therefore pose a threat to, for example, medical personnel.
Nor is it relevant to this claim that, as defendant points out, the jury asked a
question during deliberations about the relative conditions of confinement for life
prisoners and those on death row. The prosecutor’s argument went not to the
desirability of housing defendant on death row, but to the appropriateness of a
death sentence.
13
Defense counsel objected to both remarks as misstatements of the law, but
her objections were immediately overruled. (See People v. Boyette, supra, 29
Cal.4th at p. 432.)
41
People v. Crittenden (1994) 9 Cal.4th 83, 148-149; People v. Rodriguez (1986) 42
Cal.3d 730, 788-789.)
With regard to emotional disturbance, the prosecutor argued the killing of
Miller “had nothing to do with” extreme disturbance but was “quite simply for
robbery purposes.” The prosecutor did not argue that a mental or emotional
disturbance could not mitigate the crime unless it qualified as “extreme.” Indeed,
shortly thereafter the prosecutor acknowledged that, under the law, “[a]ny other
circumstance which extenuates the gravity of the crime” could be considered in
mitigation. (§ 190.3, factor (k).) The argument thus did not contravene factor
(k)’s permission to consider any mitigating circumstance of the crime.
For the reasons above, we conclude the prosecutor, in penalty phase
argument, did not use deceptive or reprehensible methods in violation of
California law, or by his remarks render the penalty trial unfair or unreliable in
violation of the Eighth and Fourteenth Amendments to the United States
Constitution. (See People v. Hill (1998) 17 Cal.4th 800, 819.)
2. Exclusion of Testimony Offered in Mitigation
Defendant contends the court’s exclusion of certain proposed testimony
from his sister, Georgeann Demetrulias, and a friend, Jackie Bridgewater, violated
his constitutional right to have the jury consider all relevant mitigating evidence.
(Skipper v. Carolina (1986) 476 U.S. 1, 4; Eddings v. Oklahoma (1982) 455 U.S.
104, 112-114.)
Georgeann Demetrulias
Defendant complains first that Georgeann Demetrulias was precluded from
testifying that when they were young, their mother Tula told defendant he was of
little value. The nature and purpose of this testimony, however, was not made
clear at the time of the exclusion; we therefore could not reverse on this ground
42
even if we concluded the evidence was admissible and its exclusion caused a
miscarriage of justice. (Evid. Code, § 354, subd. (a); see People v. Whitt (1990)
51 Cal.3d 620, 647-650.)
The entire exchange involving this evidence was as follows:
“Q (by [defense counsel]): Did your mom tell Greg and the kids at times―
“[The prosecutor]: Objection hearsay.
“The Court: Sustained.
“Q: Were you told that you were of little value by your mother?
“[The prosecutor]: Objection. Hearsay.
“The Court: Sustained.”
We may assume that defense counsel’s first question, had it been
completed, would have been whether Tula had told defendant and his siblings they
“were of little value.” But this assumption is based on counsel’s second question,
which of course had not yet been asked when the court sustained the hearsay
objection to the first question. Although defendant now argues the witness’s
answer to the first question would have been relevant and admissible for a
nonhearsay purpose (showing that Tula told defendant he was worthless, not that
Tula’s statement was true), the trial court could not know that at the time because
counsel did not tell the court what her complete question was and what answer she
expected the witness to give. For all the trial court could tell, the question called
for a hearsay answer. (Evid. Code, § 354, subd. (a); People v. Fauber (1992)
2 Cal.4th 792, 854.)14
14
Counsel’s second question suggested the nonhearsay purpose, but it called
for irrelevant evidence, as what Tula told Georgeann was not relevant to
defendant’s background and character.
43
Even assuming error, exclusion of this testimony in mitigation was
harmless beyond a reasonable doubt. (See People v. Fudge (1994) 7 Cal.4th 1075,
1117-1118.) The witness had already testified that Tula was a strong
disciplinarian with a violent temper, that when she had been drinking she gave the
children the impression they “really couldn’t do anything right,” and that she told
them she “never wanted to have kids” and they were “the biggest mistake she ever
made.” There is no reasonable possibility the penalty verdict would have been
affected had Georgeann additionally testified Tula told the children they were of
little value.
Second, defendant contends the trial court erroneously excluded testimony
by Georgeann that “it is hard for the family to be together.” The record, however,
reflects that Georgeann did so testify, without objection. She said that each of the
Demetrulias children had “made a decision about abandonment, and we all went
away” and that “none of us can even be with each other.” To counsel’s further
question, “It’s hard for the family to be together even now?” the witness answered,
“Yes.” She then (without any further question being asked) repeated that they had
all gone their own ways, adding that “it was just very painful.” An objection to
her attempted further statement of what happened “even today when we get
together” was sustained on the basis of nonresponsiveness. The record does not
show, and the trial court could not have known, what the witness was going to say
happened when the family gets together. As she had already answered,
affirmatively, the question of whether it was hard for them to be together, the
continued testimony did appear nonresponsive and the objection was properly
sustained. More important, the testimony defendant complains was excluded was
actually admitted.
44
Jackie Bridgewater
Jackie Bridgewater, who described defendant as “like a son” to her,
testified that defendant came to her house on January 10, 1989, looking pale and
ill, and that she called a number of agencies (including a psychiatric hospital)
trying, unsuccessfully, to get him immediate help. To defense counsel’s question,
“What kind of mental state was he in?” the court sustained the prosecutor’s
objection of “calls for speculation.” To defense counsel’s next question, “Can you
describe his behavior?” Bridgewater answered: “He cried and hung on to me, and
asked me for help. He said that he― ” The prosecutor’s hearsay objection,
interposed at that point, was sustained. Defendant complains both rulings
deprived him of relevant mitigating evidence.
As defendant did not make an offer of proof, the record does not show what
answer Bridgewater would have given about his mental state. Even if we found
prejudicial error, therefore, we could not reverse on this ground. (Evid. Code,
§ 354, subd. (a); see People v. Whitt, supra, 51 Cal.3d at pp. 647-650.) On appeal,
defendant suggests Bridgewater would have testified he was “disturbed.” This
would have added little if anything to Bridgewater’s testimony that defendant
“cried and hung on to me, and asked me for help” and that she called a psychiatric
hospital on his behalf. Its exclusion, even if error, was harmless beyond a
reasonable doubt. (People v. Fudge, supra, 7 Cal.4th at pp. 1117-1118.)
The prosecutor correctly objected on hearsay grounds to Bridgewater’s
testimony that defendant “said that he―” The continued answer was also
nonresponsive to counsel’s question about defendant’s behavior. Again, we
cannot tell from the record what Bridgewater would have said. To the extent she
would have narrated defendant’s “pleas for help,” as he claims on appeal, the
evidence might have been admissible for a nonhearsay purpose, but would have
added little if anything to her testimony that defendant “asked me for help.”
45
Later, Bridgewater testified without objection that she had gotten to know
the Demetrulias family better “over the past year or so” and that they were not “a
normal family.” The prosecutor’s relevance objections were sustained, however,
to a series of related questions regarding Bridgewater’s recent observations of the
family. The same objection was sustained to defense counsel’s question, “Has his
mom told you that she used to beat the heck out of the kids?” Finally, a relevance
objection was sustained to counsel’s question, “Did you see a lot of kids in the
neighborhood ultimately on drug-related problems?” Defendant complains these
rulings deprived him of relevant mitigating evidence.
Defendant failed at trial, and still fails, to explain how Bridgewater’s
observations of the state of his family in the year or so before trial were relevant to
his character or record; the trial court’s rulings on this series of questions appear
correct. Similarly, defendant failed at the time, and still fails, to explain the
relevance of general testimony about drug use in the neighborhood. Whether
defendant’s mother beat “the kids” does appear relevant, assuming defense
counsel’s question referred to a time when defendant was among “the kids” at
home, but the question clearly called for hearsay. Contrary to defendant’s
suggestion, his mother’s supposed declaration was not within the exception for
statements against interest (Evid. Code, § 1230), as she was by no means
unavailable as a witness. She in fact testified for the defense in the penalty phase,
but defense counsel chose not to ask her whether she had beaten her children.
In any event, the proposed testimony was largely cumulative of other
evidence. Georgeann Demetrulias testified to their mother’s abuse of her children
and to the current difficulties of the family. Another neighbor testified that drugs
had caused problems for many families in the neighborhood. Even if error,
exclusion of additional proposed testimony along these lines was harmless beyond
a reasonable doubt. (People v. Fudge, supra, 7 Cal.4th at pp. 1117-1118.)
46
3. Prohibition on Defense Use of Chart in Jury Argument
In closing argument, defense counsel proposed to use an illustrative chart
stating, among other things, that the jury “[m]ust vote for LWOP if mitigation and
aggravation are equal.” The trial court ruled the chart could not be used because
“when you start telling [a penalty jury] what they ‘must’ do, that’s inappropriate.”
Defendant contends this ruling violated state law and his federal constitutional
rights to counsel, due process, and a reliable penalty hearing.
We have repeatedly approved penalty phase instructions telling the jurors
that to return a death verdict they must each be persuaded “that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.” (See, e.g., People v.
Sakarias, supra, 22 Cal.4th at pp. 637-639; People v. Raley, supra, 2 Cal.4th at
pp. 919-920.) The jury in the present case was so instructed. (CALJIC No. 8.88
(1989 rev.).)
Defendant argues it follows from the principle expressed in this approved
instruction that when the aggravating and mitigating circumstances are of equal
weight, the jury must vote for life rather than death. As he puts it, “the words ‘so
substantial in comparison’ [must] mean, at a minimum, ‘greater than.’ ” For this
reason, he contends, the precluded chart stated the law correctly and should have
been allowed.
We addressed related contentions in People v. Hayes (1990) 52 Cal.3d 577,
643 (Hayes), People v. Samayoa, supra, 15 Cal.4th at pages 852-853 (Samayoa),
and People v. Smith (2005) 35 Cal.4th 334, 370 (Smith). In Hayes, we rejected the
claim that the jury should have been instructed “what to do if it found the
circumstances in aggravation and mitigation to be precisely equal in weight.”
(Hayes, at p. 643.) No such instruction was needed or proper, we held, “[b]ecause
the determination of penalty is essentially moral and normative . . . . The jurors
47
cannot escape the responsibility of making the choice by finding the circumstances
in aggravation and mitigation to be equally balanced and then relying on a rule of
law to decide the penalty issue.” (Ibid.)
In Samayoa, we approved an instruction stating that the law “expresses no
preference as to which sentence is appropriate.” (Samayoa, supra, 15 Cal.4th at
p. 852.) Relying on Hayes, and rejecting the defendant’s reliance on the standard
instruction’s “so substantial” language, we held that “neither death nor life is
presumptively appropriate or inappropriate under any set of circumstances, but in
all cases the determination of the appropriate penalty remains a question for each
individual juror.” (Samayoa, at p. 853.)
More recently, in Smith, we observed that CALJIC No. 8.88, by instructing
the jury to choose death only if the aggravating circumstances were “so
substantial” in relation to the mitigating circumstances as to warrant that penalty,
“convey[ed] to the jury that a life sentence is mandatory if aggravation does not
outweigh mitigation.” (Smith, supra, 35 Cal.4th at p. 370.) Partly on this basis,
we rejected the defendant’s claim of instructional error. (Ibid.)
Defendant’s theoretical position, that the principle embodied in CALJIC
No. 8.88 implied that a jury must vote for life if it finds the aggravating and
mitigating circumstances in equipoise, is consistent with Smith’s analysis but
seemingly inconsistent with that in Samayoa. But even if, as defendant contends,
Samayoa and Hayes are distinguishable as involving instructions rather than
argument, we find no prejudicial error in the court’s precluding defense counsel’s
use of a chart. Although counsel was not permitted to use the chart, she was
allowed to argue the principle involved, that jurors should vote for life if they
found the aggravating and mitigating circumstances of equal weight. Without
objection, counsel told the jury that “You could find that the factors are equal, and
the appropriate penalty is life without possibility of parole.” She further argued,
48
without objection, that “[u]nless you find that the factors in aggravation
substantially outweigh the factors in mitigation, you don’t even reach the decision
about whether you should impose the death penalty.” Counsel thus told the jury
that equally weighted mitigation and aggravation must lead to a verdict of life
without possibility of parole. No possibility of prejudice, even under the standard
of Chapman v. California, supra, 386 U.S. at page 24, arose from the ruling
preventing counsel from using a chart to make the same point.
4. Admission of Wissel Victim Impact Evidence
Over a defense objection, the trial court admitted evidence of the effect
defendant’s attack had on Clarence Wissel’s physical and mental condition.
Defendant contends the evidence was not properly admitted under section 190.3,
factor (b) (violent criminal activity) because evidence of Wissel’s condition “does
not bear on the question of whether or not a crime was committed.” As we have
held, however, the circumstances of the uncharged violent criminal conduct,
including its direct impact on the victim or victims of that conduct, are admissible
under factor (b). (People v. Holloway (2004) 33 Cal.4th 96, 143; People v.
Mendoza (2000) 24 Cal.4th 130, 185-186.)
Because a penalty phase jury “ ‘may consider evidence of other crimes only
when the commission of such crimes is proved beyond a reasonable doubt’ ”
(People v. Robertson (1982) 33 Cal.3d 21, 53), defendant also contends the jury
should have been instructed to decide whether the impact on Wissel had been
proven beyond a reasonable doubt. But he cites nothing suggesting that the
penalty jury must find beyond a reasonable doubt every factual circumstance of an
offense shown under section 190.3, factor (b), including its impact. The jurors
here were properly instructed that they could consider defendant’s assault on
Wissel by force likely to cause great bodily injury as an aggravating circumstance
49
only if they were persuaded beyond a reasonable doubt that defendant “did in fact
commit such criminal acts.” (CALJIC No. 8.87 (1989 rev.).) No other instruction
was required.15
5. Cumulative Prejudice from Guilt and Penalty Phase Errors
We have not found any errors based on defendant’s penalty phase
contentions, but have in one instance assumed error and found it harmless beyond
a reasonable doubt. (Ante, pt. 10 [preclusion of use of chart in argument].) Any
adverse effect attributable to this assumed error did not tend to aggregate with any
adverse effects from assumed guilt phase errors, as the issues are not related to one
another. We thus can see no possible accumulation of harms amounting to
prejudice, even assuming error.
6. Lack of a Beyond a Reasonable Doubt Burden of Proof
Requirement
Defendant contends California’s death penalty law is unconstitutional in
that it does not require the penalty phase jury to find beyond a reasonable doubt
that individual aggravating factors exist, that the aggravating factors substantially
outweigh the mitigating ones, or that death is the appropriate penalty. We have
repeatedly rejected these contentions (see, e.g., People v. Snow (2003) 30 Cal.4th
15
Because we hold the disputed evidence was properly admitted under
section 190.3, factor (b), we do not address defendant’s claim that erroneous
admission of the evidence was prejudicial because it “produced a constitutional
violation under the Eighth Amendment.” Regarding the need for proof beyond a
reasonable doubt, defendant cites Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi) for the proposition that all facts supporting a sentence of death had to
be submitted to the jury and found beyond a reasonable doubt. As discussed
below (see post, pt. 13), the principles of Apprendi and its progeny do not apply to
the use of aggravating factors in a California penalty trial. (People v. Anderson
(2001) 25 Cal.3d 543, 589-590, fn. 14.)
50
43, 126; People v. Kipp (2001) 26 Cal.4th 1100, 1137), and defendant does not
persuade us to reconsider our previous rulings. We adhere to the principle that the
assessment of aggravating and mitigating circumstances required of California
penalty jurors is inherently “ ‘normative, not factual’ [citation] and, hence, not
susceptible to a burden of proof quantification.” (People v. Hawthorne (1992) 4
Cal.4th 43, 79.)
With regard to proof of aggravating factors, defendant relies on Apprendi,
supra, 530 U.S. 466, and Ring v. Arizona (2002) 536 U.S. 584. These decisions
are inapposite for reasons previously explained: “ ‘[U]nder the California death
penalty scheme, once the defendant has been convicted of first degree murder and
one or more special circumstances has been found true beyond a reasonable doubt,
death is no more than the prescribed statutory maximum for the offense; the only
alternative is life imprisonment without possibility of parole. (§ 190.2, subd. (a).)
Hence, facts which bear upon, but do not necessarily determine, which of these
two alternative penalties is appropriate do not come within the holding of
Apprendi.’ [(People v. Anderson, supra, 25 Cal.4th at pp. 589-590, fn. 14.)] The
high court’s recent decision in Ring v. Arizona (2002) 536 U.S. 584 does not
change this analysis. Under the Arizona capital sentencing scheme invalidated in
Ring, a defendant convicted of first degree murder could be sentenced to death if,
and only if, the trial court first found at least one of the enumerated aggravating
factors true. (Id. at p. 603.) Under California’s scheme, in contrast, each juror
must believe the circumstances in aggravation substantially outweigh those in
mitigation, but the jury as a whole need not find any one aggravating factor to
exist. The final step in California capital sentencing is a free weighing of all the
factors relating to the defendant’s culpability, comparable to a sentencing court’s
traditionally discretionary decision to, for example, impose one prison sentence
rather than another. Nothing in Apprendi or Ring suggests the sentencer in such a
51
system constitutionally must find any aggravating factor true beyond a reasonable
doubt.” (People v. Snow, supra, 30 Cal.4th at p. 126, fn. 32.)
7. Lack of a Jury Unanimity Requirement
For essentially the same reasons we rejected the previous claim, we also
disagree with defendant that our statute is unconstitutional because it does not
require jurors to agree unanimously on the existence of particular factors in
aggravation. (Accord, e.g., People v. Boyette, supra, 29 Cal.4th at p. 466; People
v. Hardy (1992) 2 Cal.4th 86, 214.) While all the jurors must agree death is the
appropriate penalty, the guided discretion through which jurors reach their penalty
decision must permit each juror individually to assess such potentially aggravating
factors as the circumstances of the capital crime (§ 190.3, factor (a)), prior felony
convictions (id., factor (c)), and other violent criminal activity (id., factor (b)), and
decide for him- or herself “what weight that activity should be given in deciding
the penalty.” (People v. Ghent (1987) 43 Cal.3d 739, 774.) The series of
normative judgments involved in deciding whether a particular circumstance is
indeed aggravating and, if so, what weight it should be given, cannot be fitted into
a scheme of unanimous jury fact finding. Defendant’s contention is premised on a
“misunderstand[ing] [of] the penalty determination process.” (People v. Miranda
(1987) 44 Cal.3d 57, 99.)
8. Refusal of Lingering Doubt Instruction
The trial court refused defendant’s proposed instruction on lingering doubt,
which read as follows: “Each individual juror may consider as a mitigating factor
residual or lingering doubt as to whether the defendant committed first degree
murder. ‘Lingering or residual doubt’ is defined as the state of mind between
beyond a reasonable doubt and beyond all possible doubts. Thus if any individual
juror has a lingering or residual doubt about whether the defendant is guilty of first
52
degree murder and the special circumstances are true, he or she must consider this
as a mitigating factor and assign it the weight you deem appropriate.”16 The court
nonetheless observed that the defense could argue lingering doubt as a mitigating
circumstance under section 190.3, factor (k), and defense counsel subsequently did
so, reading the proposed instruction’s first two sentences to the jury as a
“definition” of lingering doubt.
As we have previously held, “[t]here is no constitutional entitlement to
instructions on lingering doubt.” (People v. Earp (1999) 20 Cal.4th 826, 903.)
Instructions to consider the circumstances of the crime (§ 190.3, factor (a)) and
any other circumstance extenuating the gravity of the crime (id., factor (k)),
together with defense argument highlighting the question of lingering or residual
doubt, suffice to properly put the question before the penalty jury. (Earp, at
p. 904.) Defendant presents no persuasive argument to the contrary.
9. Unconstitutionality of California’s Death Penalty Law
Defendant contends several features of California’s capital sentencing
scheme violate the United States Constitution, both in general and as applied in his
trial. For reasons largely explained in previous decisions, we disagree.
“Use of the word ‘extreme’ in section 190.3, factor[] (d) . . . does not
impermissibly restrict the jury’s consideration of mitigating factors.” (People v.
Smith (2003) 30 Cal.4th 581, 642.) The jury’s consideration of prior
16
The trial court did not state a reason for refusing the instruction other than
that it was not required, but the court’s comments regarding the defense’s use of a
chart in argument (see ante, pt. 10) suggest the court was properly wary of telling
penalty jurors they “must” reach a particular verdict or consider a particular factor.
(See People v. Snow, supra, 30 Cal.4th at p. 125 [finding no authority that jurors
“must” consider lingering doubt]; People v. Kaurish (1990) 52 Cal.3d 648, 705-
706 [approving lingering doubt instruction that said only that such doubt “may” be
considered].)
53
unadjudicated criminal conduct under section 190.3, factor (b) does not render the
statute’s use unconstitutional. (People v. Gray (2005) 37 Cal.4th 168, 236; People
v. Hillhouse (2002) 27 Cal.4th 469, 507.)
California homicide law and the special circumstances listed in section
190.2 adequately narrow the class of murderers eligible for the death penalty, and
the existence of prosecutorial discretion to seek the death penalty in a
death-eligible case does not render the imposition of the penalty unconstitutionally
arbitrary and capricious. (People v. Stitely (2005) 35 Cal.4th 514, 573; People v.
Snow, supra, 30 Cal.4th at pp. 125-126.)
Our statute “is not invalid for failing to require (1) written findings or
unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a
reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a
reasonable doubt, or (4) findings that death is the appropriate penalty beyond a
reasonable doubt.” (People v. Snow, supra, 30 Cal.4th at p. 126.) Generally, no
instruction on burden of proof is required in a California penalty trial. (People v.
Gray, supra, 37 Cal.4th at p. 236.)
The terms “aggravating” and “mitigating” are not vague or ambiguous and
do not require definition in the jury instructions. (People v. Williams (1997) 16
Cal.4th 153, 267.) In any event, the court here did define the terms, using
CALJIC No. 8.88 (1989 rev.), and defendant does not criticize the definitions
given.
Instructions on the meaning of a sentence of life imprisonment without the
possibility of parole and on the “presumption of life” were not constitutionally
required. (People v. Gray, supra, 37 Cal.4th at p. 237; People v. Stitely, supra, 35
Cal.4th at p. 573; People v. Snow, supra, 30 Cal.4th at pp. 123-124; People v.
Arias (1996) 13 Cal.4th 92, 172-173.)
54
“International law does not compel the elimination of capital punishment in
California.” (People v. Snow, supra, 30 Cal.4th at p. 127.) Defendant’s argument
that the use of capital punishment “as regular punishment for substantial numbers
of crimes” violates international norms of human decency and hence the Eighth
Amendment to the United States Constitution fails, at the outset, because
California does not employ capital punishment in such a manner. The death
penalty is available only for the crime of first degree murder, and only when a
special circumstance is found true; furthermore, administration of the penalty is
governed by constitutional and statutory provisions different from those applying
to “regular punishment” for felonies. (E.g., Cal. Const., art. VI, § 11;
§§ 190.1-190.9, 1239, subd. (b).)
“Comparative intercase proportionality review by the trial or appellate
courts is not constitutionally required.” (People v. Snow, supra, 30 Cal.4th at
p. 126; accord, e.g., People v. Gray, supra, 37 Cal.4th at p. 237; People v. Stitely,
supra, 35 Cal.4th at p. 574.)
Citing Justice Blackmun’s concurring opinion in Sawyer v. Whiteley (1992)
505 U.S. 333, 357-360, his dissent from denial of certiorari in Callins v. Collins
(1994) 510 U.S. 1141, and this court’s decision in In re Clark (1993) 5 Cal.4th
750, defendant contends the procedural barriers to habeas corpus relief in state and
federal courts have rendered the postconviction review of capital sentences
unconstitutionally arbitrary and unreliable. Defendant’s generalized complaints
about the difficulty of obtaining relief on habeas corpus are premature in this
direct appellate proceeding and, to the extent they concern the federal courts, are
directed to the wrong tribunal as well.
Citing Judge Noonan’s dissenting opinion in Jeffers v. Lewis (9th Cir.
1994) 38 F.3d 411, 425-427, defendant contends that the administration of
California’s death penalty suffers from the same arbitrariness perceived by Judge
55
Noonan in Arizona’s system, and in particular that the “backlog of death cases in
state courts . . . truncates the review eventually provided” and renders
impermissibly arbitrary “the ultimate selection of who lives and who dies.”
In People v. Snow, we rejected a similar contention, based on the same
dissenting opinion, that California’s pace of execution, slow in comparison to the
number of death judgments, makes our system arbitrary. We explained: “The
federal appellate court has rejected this argument (Woratzeck v. Stewart (9th Cir.
1997) 118 F.3d 648, 652); we do so as well. ‘If Woratzeck’s death sentence does
not violate the Eighth Amendment, then neither does the scheduling of his
execution. Arizona must establish some order of execution. There has been no
prima facie showing that this scheduling violates the Eighth Amendment.’ (Ibid.)
The same is true here. Defendant does not face imminent execution and can
hardly claim he is being singled out for either quick or slow treatment of his
appeal and habeas corpus proceedings. More generally, defendant makes no
showing that the number of condemned prisoners executed in California, or the
order in which their execution dates are set, is determined by any invidious means
or method, with discriminatory motive or effect, or indeed according to anything
other than the pace at which various defendants’ appeals and habeas corpus
proceedings are concluded, a matter by no means within the sole control of the
state.” (People v. Snow, supra, 30 Cal.4th at p. 127.) Defendant presents nothing
to prompt reevaluation of that view.
The claimed flaws in our state’s death penalty statute identified by
defendant, whether considered individually or together, do not make it
unconstitutional.
56
10. Delay Inherent in Capital Appellate System
“Defendant contends that the delay in appointing appellate counsel and
hearing this automatic appeal (from the judgment in [May 1995] to the present)
deprived him of due process, and that his execution after such delay would serve
no legitimate penological purpose and would therefore violate the Eighth
Amendment to the United States Constitution. We have rejected substantially
identical contentions in several recent cases (People v. Ochoa (2001) 26 Cal.4th
398, 462-464; People v. Anderson, supra, 25 Cal.4th at pp. 605-606; People v.
Frye [(1998)] 18 Cal.4th [894,] 1030-1031) and find no cause to reconsider those
decisions here.” (People v. Snow, supra, 30 Cal.4th at p. 127; accord, People v.
Dunkle (2005) 36 Cal.4th 861, 942; People v. Massie (1998) 19 Cal.4th 550, 574;
People v. Hill (1992) 3 Cal.4th 959, 1014-1016.) In particular, we have
previously explained the reasons for rejecting defendant’s claim (made in reliance
on decisions of foreign courts) that a prolonged wait for execution is itself cruel
treatment precluding subsequent execution. (See Frye, at pp. 1030-1031.)
11. Unconstitutional Methods of Execution
Defendant contends that both the administration of lethal gas and lethal
injection, the two execution methods authorized by section 3604, violate the
Eighth Amendment’s bar on cruel or unusual punishment. As we have previously
held, a challenge to the method of a future execution is not cognizable on appeal
because it does not affect the validity of the judgment. (People v. Snow, supra, 30
Cal.4th at pp. 127-128; People v. Holt (1997) 15 Cal.4th 619, 702.)
57
DISPOSITION
The judgment of the superior court is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
58
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Demetrulias
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S046733
Date Filed: July 10, 2006
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: H. Dennis Myers
__________________________________________________________________________________
Attorneys for Appellant:
Joseph Baxter, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, William M. Wood and Teresa Torreblanca, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joseph Baxter
645 Fourth Street, Suite 205
Santa Rosa, CA 95404
(707) 544-1149
Teresa Torreblanca
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2279
60
Opinion Information
| Date: | Docket Number: |
| Mon, 07/10/2006 | S046733 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Teresa Torreblanca, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Demetrulias, Gregory Spiros (Appellant) San Quentin State Prison Represented by Joseph Baxter Attorney at Law 645 Fourth Street, Suite 205 Santa Rosa, CA |
| Disposition | |
| Jul 10 2006 | Opinion: Affirmed |
| Dockets | |
| May 19 1995 | Judgment of death |
| May 24 1995 | Filed certified copy of Judgment of Death Rendered 5-19-95. |
| Jun 22 1995 | Application for Extension of Time filed By Court Reporters to Complete R.T. |
| Jun 23 1995 | Extension of Time application Granted To Court Reporters To 8-7-95 To Complete R.T. |
| Oct 20 1999 | Compensation awarded counsel |
| Oct 20 1999 | Counsel appointment order filed appointing Joseph Baxter to represent appellant for both the direct appeal and related state habeas corpus/executive clemency proceedings. |
| Nov 1 1999 | Received letter from: Superior Court, dated 10/29/99, Advising Record Was mailed to Applt's Counsel on 10/27/99. |
| Jan 28 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Jan 31 2000 | Filed: Amended Proof of Service |
| Feb 4 2000 | Extension of Time application Granted To 3/31/2000 To Applt To request Corr. of the Record. |
| Mar 31 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Apr 7 2000 | Extension of Time application Granted To 5/30/2000 To Applt To request Corr. of the Record. |
| May 4 2000 | Received: Copy of Applt's motion for correction and Addit. Record on Appeal (7 Pp.) |
| May 17 2000 | Compensation awarded counsel Atty Baxter |
| Jul 25 2000 | Counsel's status report received (confidential) |
| Oct 5 2000 | Counsel's status report received (confidential) |
| Nov 28 2000 | Record on appeal filed C-31 (8,209 pps.) and R-47 (7,001 pps.) including material under seal; Clerk's Transcript includes 3,871 pages of Juror Questionnaires. |
| Nov 28 2000 | Appellant's opening brief letter sent, due: 1/8/2001 |
| Dec 13 2000 | Counsel's status report received (confidential) |
| Jan 8 2001 | Application for Extension of Time filed To file AOB. (1st request) |
| Jan 10 2001 | Extension of Time application Granted To 3/9/2001 to file AOB. |
| Mar 8 2001 | Counsel's status report received (confidential) |
| Mar 8 2001 | Application for Extension of Time filed to file AOB. (2nd request) |
| Mar 12 2001 | Extension of Time application Granted To 5/8/2001 to file AOB. |
| May 7 2001 | Application for Extension of Time filed To file AOB. (3rd request) |
| May 7 2001 | Counsel's status report received (confidential) |
| May 8 2001 | Extension of Time application Granted To 7/9/2001 to file AOB. |
| Jul 9 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Jul 9 2001 | Counsel's status report received (confidential) |
| Jul 13 2001 | Extension of Time application Granted To 9/7/2001 to file AOB. |
| Sep 7 2001 | Counsel's status report received (confidential) |
| Sep 7 2001 | Application for Extension of Time filed To file AOB. (5th request) |
| Sep 13 2001 | Extension of Time application Granted To 11/7/2001 to file AOB. |
| Nov 5 2001 | Counsel's status report received (confidential) |
| Nov 5 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| Nov 13 2001 | Filed: Suppl. declaration in support of application for extension of time to file AOB. |
| Nov 16 2001 | Extension of Time application Granted To 1/7/2002 to file AOB. |
| Dec 20 2001 | Counsel's status report received (confidential) |
| Jan 7 2002 | Request for extension of time filed To file AOB. (7th request) |
| Jan 8 2002 | Counsel's status report received (confidential) |
| Jan 11 2002 | Extension of time granted To 3/8/2002 to file AOB. |
| Mar 7 2002 | Request for extension of time filed To file A0B. (8th request) |
| Mar 7 2002 | Counsel's status report received (confidential) |
| Mar 12 2002 | Extension of time granted To 5/7/2002 to file AOB. Counsel anticipates filing the brief by 7/2002. Only two further extensions totaling 85 additonal days are contemplated. |
| Apr 16 2002 | Compensation awarded counsel Atty Baxter |
| May 7 2002 | Request for extension of time filed To file AOB. (9th request) |
| May 8 2002 | Counsel's status report received (confidential) |
| May 14 2002 | Extension of time granted To 7/8/2002 to file AOB. Counsel anticipates filing the brief by 7/31/2002. Only one further extension totaling 23 additoinal days is contemplated. |
| Jun 27 2002 | Compensation awarded counsel Atty Baxter |
| Jul 5 2002 | Request for extension of time filed To file AOB. (10th request) |
| Jul 8 2002 | Extension of time granted To 9/6/2002 to file AOB. Counsel anticipates filing that brief by 8/31/2002. No further extension will be granted. |
| Sep 6 2002 | Request for extension of time filed to file appellant's opening brief. (11th request) |
| Sep 10 2002 | Counsel's status report received (confidential) |
| Sep 10 2002 | Extension of time granted To 10/21/2002 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Joseph Baxter's representation that he anticipates filing that brief by 10/21/2002. |
| Oct 4 2002 | Compensation awarded counsel Atty Baxter |
| Oct 18 2002 | Request for extension of time filed To file appellant's opening brief. (12th request) |
| Oct 24 2002 | Extension of time granted To 11/20/2002 to file appellant's opening brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate cousnel of record, of this schedule, and to take all steps necessary to meet it. |
| Nov 19 2002 | Request for extension of time filed To file appellant's opening brief. (13th request) |
| Nov 19 2002 | Counsel's status report received (confidential) |
| Nov 21 2002 | Extension of time granted to 12-20-2002 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Joseph Baxter's representation that he anticipates filing the brief by 12-20-2002. |
| Dec 19 2002 | Request for extension of time filed to file AOB. (14th request) |
| Dec 23 2002 | Extension of time granted To 12/31/2002 to file appellant's opening brief. Extension is granted based upon counsel Joseph Baxter's representation that he anticipates filing that brief by 12/31/2002. After that date, no further extension will be granted. |
| Jan 3 2003 | Request for extension of time filed to file appellant's opening brief. (15th request) |
| Jan 6 2003 | Filed: Declaration of Joseph Baxter re guidelines for fixed fee appointment (confidential). |
| Jan 9 2003 | Counsel's status report received (confidential) |
| Jan 9 2003 | Application for relief from default filed to file appellant's opening brief. (272 pp. brief submitted under separate cover on 1/8/2003) |
| Jan 13 2003 | Order filed Appellant's request for relief from default to file appellant's opening brief is granted. |
| Jan 13 2003 | Appellant's opening brief filed (272 pp.) |
| Jan 13 2003 | Filed: Proof of service of appellant's opening brief. |
| Jan 13 2003 | Compensation awarded counsel Atty Baxter |
| Jan 22 2003 | Compensation awarded counsel Atty Baxter |
| Jan 30 2003 | Request for extension of time filed to file respondent's brief. (1st request) |
| Feb 3 2003 | Extension of time granted to 4/14/2003 to file respondent's brief. |
| Apr 4 2003 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Apr 10 2003 | Extension of time granted to 6/16/2003 to file respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Teresa Torreblanca's representation that she anticipates filing that brief by 6/14/2003. |
| Apr 28 2003 | Filed: Amended declaration of service of second application for extension of time to file respondent's brief. |
| May 22 2003 | Respondent's brief filed (203 pp.) |
| Jun 5 2003 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Jun 10 2003 | Extension of time granted to 8/11/2003 to file appellant's reply brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Aug 8 2003 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Aug 12 2003 | Extension of time granted to 10/10/2003 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separte counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Oct 14 2003 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Oct 20 2003 | Extension of time granted to 12/9/2003 to file appellant's reply brief. The court anticipates that after that date, ony one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Nov 6 2003 | Counsel's status report received (confidential) |
| Nov 14 2003 | Filed: "Notice of Unavailability of Counsel," for appellant from 12/18/2003 through 1/5/2004. |
| Dec 10 2003 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Dec 17 2003 | Extension of time granted to 2/9/2004 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Joseph Baxter's representation that he anticipates filing that brief by 2/7/2004. |
| Jan 14 2004 | Counsel's status report received (confidential) |
| Jan 22 2004 | Filed: Declaration of attorney Joseph Baxter pursuant to penal code 1241 (confidential). |
| Feb 5 2004 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Feb 17 2004 | Extension of time granted to 4/12/2004 to file appellant's reply brief. After that date, no further extension will be granted. based upon counsel Joseph Baxter's representation that he anticipates filing that brief by 4/10/2004. |
| Feb 18 2004 | Compensation awarded counsel Atty Baxter |
| Feb 25 2004 | Compensation awarded counsel Atty Baxter |
| Mar 10 2004 | Counsel's status report received (confidential) |
| Apr 12 2004 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Apr 15 2004 | Appellant's reply brief filed (17,065 words - 87 pp.; pursuant to Rule 40(k)) |
| Apr 15 2004 | Extension of time granted to 4/14/2004 to file appellant's reply brief. Extension is granted based upon counsel Joseph Baxter's representation that he anticipates filing that brief by 4/14/2004. After that date, no further extension will be granted. |
| May 6 2004 | Filed: List of errata in appellant's opening brief. |
| May 12 2004 | Counsel's status report received (confidential) |
| Jul 16 2004 | Counsel's status report received (confidential) |
| Sep 9 2004 | Counsel's status report received (confidential) |
| Nov 10 2004 | Counsel's status report received (confidential) |
| Jan 19 2005 | Counsel's status report received (confidential) |
| Feb 16 2005 | Compensation awarded counsel Atty Baxter |
| Mar 15 2005 | Counsel's status report received (confidential) |
| May 12 2005 | Counsel's status report received (confidential) |
| Jul 11 2005 | Counsel's status report received (confidential) |
| Aug 17 2005 | Related habeas corpus petition filed (concurrent) No. S136487 |
| Aug 29 2005 | Filed: Declaration of Joseph Baxter (confidential). |
| Sep 23 2005 | Compensation awarded counsel Atty Baxter |
| Feb 2 2006 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the March calendar, to be held the week of March 6, 2006, 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. |
| Feb 15 2006 | Filed letter from: atty Joseph Baxter, dated February 14, 2006, requesting oral argument be calendared no sooner than April 27, 2006 due to out of country prepaid vacation plans. |
| Mar 3 2006 | Letter sent to: counsel advising that the court has considered Mr. Baxter's letter of February 14, 2006, regarding the scheduling of oral argument, and advising them that it has tentatively scheduled this case for the early May oral argument session, to be held the week of May 1, 2006, in San Francisco. |
| Apr 4 2006 | Filed letter from: attorney Joseph Baxter, dated March 31, 2006, re focus issues for oral argument. |
| Apr 4 2006 | Case ordered on calendar Tuesday, May 2, 2006, at 1:30 p.m., in San Francisco |
| Apr 11 2006 | Filed letter from: Deputy Attorney General Teresa Torreblanca, dated 4/11/2006, re focus issues for oral argument. NOTE: counsel's request for 45 minutes for argument submitted on appearance sheet. |
| Apr 17 2006 | Received: Appellate counsel's appearance sheet for oral argument, requesting for 45 minutes for argument. |
| May 2 2006 | Cause argued and submitted |
| May 11 2006 | Filed: appellant's motion to file supplemental reply brief, and for vacation of submission to allow the filing of the supplemental brief. |
| May 17 2006 | Order filed Appellant's "Notice of Motion and Motion to File Supplemental Reply Brief, and for Vacation of Submission to Allow the Filing of the Supplemental Brief" is denied. |
| Jun 1 2006 | Compensation awarded counsel Atty Baxter |
| Jul 10 2006 | Opinion filed: Judgment affirmed in full Opinion by Werdegar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Moreno & Corrigan, JJ. |
| Jul 26 2006 | Rehearing petition filed by appellant. (4560 words; 21 pp. - pursuant to Rule 40.1(b)(3)(B)) |
| Aug 2 2006 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 6, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Aug 30 2006 | Rehearing denied Petition for rehearing DENIED. |
| Aug 30 2006 | Remittitur issued (AA) |
| Aug 31 2006 | Order filed (150 day statement) |
| Sep 8 2006 | Received: acknowledgment of receipt of remittitur. |
| Sep 25 2006 | Compensation awarded counsel Atty Baxter |
| Dec 12 2006 | Received: letter from U.S.S.C; dated December 8, 2006; advising cert petn. filed on November 28, 2006; No. 06-8211. |
| Feb 26 2007 | Received: letter from U.S. Supreme Court, dated February 20, 2007, advising that petition for writ of certiorari was denied that date. |
| Feb 19 2008 | Related habeas corpus petition filed (post-judgment) no. S160990 |
| Briefs | |
| Jan 13 2003 | Appellant's opening brief filed |
| May 22 2003 | Respondent's brief filed |
| Apr 15 2004 | Appellant's reply brief filed |
