Filed 5/23/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S025519
v.
COLIN RAKER DICKEY,
Fresno
County
Defendant and Appellant.
Super. Ct. No. 416903-3
A jury found defendant Colin Raker Dickey guilty of the murders of Marie
Caton and Louis Freiri, finding true special circumstances of felony-murder
robbery, felony-murder burglary, and multiple murder. (Pen. Code, § 190.2,
subds. (a)(3), (17)(A)(G).)1 The jury also found defendant guilty of first degree
robbery with regard to each of the victims, as well as of first degree burglary. At
the penalty phase, the jury fixed the punishment for the murders at death. This
appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
1
Unless otherwise indicated, all further section references are to the Penal
Code.
1
I.
FACTS
A. Guilt Phase
1. The Prosecution Case
The murder victims were Fresno residents⎯Marie Caton, 76, and Louis
Freiri, 67, a friend and boarder of Mrs. Caton’s. Their bodies were discovered by
one of Mrs. Caton’s daughters, Lavelle Garratt. Mrs. Garratt or her sister checked
on their mother every day, “[b]ecause she was lonely, because she was our mother,
because we loved her and we wanted to see her.”
Late in the afternoon of November 8, 1988, when Mrs. Garratt could not
reach her mother by telephone, she drove to her house. She found Mrs. Caton on
the floor of her bedroom, covered with a bloodstained blanket. Mrs. Caton was
beaten so badly her eyes bulged out of their sockets like golf balls. Mrs. Caton
also had knife wounds on her chest and a jagged cut on her back. She lingered for
11 days, but never regained consciousness. The cause of death was respiratory
failure associated with “shock lung syndrome,” the shock having been caused by
her injuries.
Mr. Freiri wore a brace on his right leg and required a cane. Mrs. Garratt
found him facedown, stretched across the archway between the dining room and
the living room. A chair, wall, and window blinds near his body were
bloodstained. Pieces of his cane were found in the living room and one of the
bedrooms. Mr. Freiri had been stabbed in the chest, armpit, and forearm; he also
had a bone-deep laceration on his forehead. He was stabbed with such force that
two of his ribs were broken. He died of blood loss.
Mrs. Garrett told the police she suspected her son, Richard Cullumber.
Cullumber was, Mrs. Garratt believed, a drug addict, and he asked his
grandmother Mrs. Caton for money⎯cash she would take out of a buffet
2
drawer⎯almost every day. Mrs. Caton “grew up during the Depression and she
was afraid of being hungry again, I guess, and so she hid money all over.” Among
other caches, Mrs. Caton kept at least $6,000 in cash in a metal box placed inside a
suitcase stored under her bed. She also kept a smaller sum in another suitcase.
Cullumber, also known as “R.C.,” lived in an apartment in Fresno, along
with defendant, Gail Goldman, Richard Buchanan, and two other men. The night
of the murders Cullumber packed his bag and left the apartment. He returned
several days later but fled again when informed the police were looking for him.
On November 12, 1988, after a high-speed police chase, Cullumber, cornered,
killed himself.
The pistol Cullumber used to shoot himself was registered to Mr. Freiri.
He had earlier warned the driver of a car he commandeered, “I need the car; I’ve
already killed a woman.”
Two knives possibly linked to the murders were discovered in Mrs. Caton’s
kitchen—a butcher knife and a steak knife. The steak knife (People’s exhibit
No. 18) was, in the opinion of defendant’s housemates Gail Goldman and Richard
Buchanan, identical to a knife belonging in their apartment.
In addition to his knife wounds, Mr. Freiri had a four-inch-long ligature
wound, caused by a cord that was wrapped around his neck. It was a cotton cord
of the color, weave, and texture used in venetian blinds. The venetian blinds in
Mrs. Caton’s house were intact, but a venetian blind kept in the hall closet of the
apartment defendant shared with Cullumber and the others was missing its cord.
On the night of the murders, Gene Buchanan saw defendant remove a venetian
blind from the closet of their apartment, walk into the bedroom with it, and then
replace it in the closet. Goldman testified it was Cullumber who had done that.
3
Defendant’s thumbprint was found on a slat from the venetian blind found by the
police in the apartment closet.2
The case against defendant rested on the testimony of Gail Goldman and
Gene Buchanan.3
a) The Testimony of Gail Goldman4
Goldman shared a one-bedroom apartment in Fresno with defendant,
Cullumber, Buchanan, and two other men. According to Detective Doug Stokes,
Goldman told him “about a venetian blind that had been in the hall closet that was
. . . taken by the suspect, Dickey, . . . into a bedroom and that the cord was
removed from that venetian blind and then the venetian blind was placed back
inside the hall closet.” However, when she testified, Goldman said it was
Cullumber who took the venetian blind out of the closet and went into the
bedroom with it. Later, she testified, the blind had been replaced in the closet, but
the cord was missing from a blind in the bedroom.
At approximately the same time that Cullumber was engaged with the
venetian blind, defendant walked into the kitchen and opened a drawer containing
2
No usable prints were found at the scene of the crime, not even those of
Mrs. Caton or Mr. Freiri.
3
Defendant impeached Buchanan on the grounds, among others, that his
testimony against defendant was motivated by revenge and a desire to collect the
reward offered by Mrs. Caton’s relatives. Defendant was less successful in
attacking Goldman’s credibility. If not a hostile witness for the prosecution, she
was clearly reluctant to testify against defendant, both because she was fond of
him and because she feared the consequences of informing on anyone. A critical
question, then, is to what extent Goldman’s testimony corroborates Buchanan’s.
To facilitate consideration of that question, we have set out their testimony
separately.
4
Because she died before the trial began, Goldman’s preliminary hearing
testimony was read into the record. (See Evid. Code, § 240, subd. (a)(3).)
4
knives and other silverware.5 According to Detective Stokes, Goldman told him
defendant removed a knife from the drawer and left the kitchen with it. Again
according to Detective Stokes, when he came to the apartment investigating the
murders, he showed Goldman a knife. She told him, “I have a knife exactly like
that knife, or they are twins.”
After the activity just described, Goldman testified, defendant and
Cullumber left the apartment. They had no money, Goldman believed, when they
left. If Cullumber had money, he spent it on drugs; before defendant left he asked
Goldman for money to buy cigarettes. However, when they returned, Cullumber
gave Goldman $40 or $50 in cash, saying it was in partial payment of what he
owed her. Cullumber then packed his clothes and left.
Sometime thereafter, while Goldman and defendant were watching the
news on television, they saw a story about this crime. Defendant became upset
when he learned Mr. Freiri was dead and that Mrs. Caton, while near death, was
still alive. He told Goldman to come into the bedroom, that he wanted to talk to
her. Buchanan followed them into the bedroom.
Defendant told them he had accompanied Cullumber to the home of Mrs.
Caton. On the one hand, defendant said that Cullumber had assured him “nothing
was going to happen.” On the other hand, defendant admitted he had gone with
Cullumber “[t]o help [him] get the money.” With Mrs. Caton present, defendant
looked for money in her bedroom, where Cullumber told him it could be found.
When defendant stepped out of the bedroom and saw Mr. Freiri slumped over in a
chair, he “knew something had happened.” Cullumber “went berserk. He came
5
Goldman later testified she did not know which drawer defendant had
opened.
5
into the bedroom and started beating up on his grandmother.” Defendant and
Cullumber found $700, which they split.
Defendant was crying, “like he was sad,” when he confessed to Goldman
and Buchanan. Later, when defendant learned Mrs. Caton had died, “he wasn’t as
depressed as he was before.”
While he was confessing, defendant said maybe he should turn himself in.
Goldman advised him against it. When Detective Stokes first asked Goldman
whether she knew anything about these crimes, Goldman denied that she did.
Defendant was a good friend of hers, she still liked him, and she did not want to
do anything to get him into trouble. She did not want to tell on anyone, especially
someone she liked as much as she liked defendant. Buchanan told her he was
going to turn defendant in for the reward. By contrast, Goldman testified at the
preliminary hearing only because she had been subpoenaed. During a break,
Goldman told the prosecutor she wanted to make sure defendant knew she was not
the one who turned him in. She was afraid for her life. “I always felt that if you
would inform on somebody they would kill you or have you killed.” Defendant
said he was not concerned that someone would betray him, “because if they did,
they wouldn’t do it again.” On the other hand, Goldman thought that her
relationship with defendant was such that “it would take an awful lot to make him
hurt me.”
Goldman had “had 20 surgeries on [her] stomach,” and depending on how
much pain she was in, she used “speed ball cocaine and heroin” or other “street
drugs” to kill the pain.
b) The Testimony of Gene Buchanan
One evening in November 1988, defendant took a venetian blind from the
hall closet of the apartment he shared with Buchanan, Cullumber, Goldman, and
6
two others. Defendant took the blind into the bedroom and shortly thereafter
replaced it in the closet. Buchanan looked into the bedroom. On the bed was a
knife belonging to Gail Goldman, a knife with a bone handle and a serrated edge.
People’s exhibit No. 18 was that knife, or else it looked exactly like Goldman’s
knife.
Defendant and Cullumber left the apartment around 9:00 p.m. That night
everyone living in the apartment was broke, or claimed to be. However, when
defendant and Cullumber returned, defendant opened his wallet and said, “I got
$350,” and, “call the connection.”
Buchanan ordered drugs, which were injected by defendant, Cullumber,
Goldman, and Buchanan. Afterwards, Cullumber asked Buchanan to take him for
a drive; defendant went along. Defendant directed Buchanan to a canal, and as
they drove over it, defendant threw in a pair of shoes. After looking for a good
place to do it, defendant also threw his jacket out of the window.
About two days later, Buchanan and defendant were in the living room of
the apartment; defendant was watching the news on television. Defendant jumped
up and ran into the bedroom to Goldman. Buchanan heard Goldman say, “ ‘Oh,
my God, how low can you go,’ or ‘get’; something to that effect.” Buchanan went
into the bedroom to find out what was going on. Defendant said to him, “I’ve
already told her, so I might as well tell you.”
Defendant told Buchanan that “him and R.C. had been over to R.C.’s
grandmother’s house, and that they had entered the house—how he had done it,
how he had walked up to the door, knocked, faked like R.C. was going to be in
jail, needed to use the phone, and then R.C. sneaked in, they were supposed to tie
them up, get this money and everything. And while the defendant is supposedly in
the bedroom looking for the money he hears a commotion, looked out the
7
bedroom door, sees an elderly man with his head slumped down, considers him
dead, and that if you kill one you might as well kill them both.”
In response to the prosecutor’s questions, Buchanan clarified his testimony.
“[Defendant] said that he—only what he thought, he didn’t say what he did. He
said that, ‘If you kill one you might as well kill them both.’ ” “[H]e didn’t say he
said it to R.C., he just said it as that was his opinion.” Defendant did not tell
Buchanan what happened after he had this thought.
Defendant also told Buchanan that what prompted his confession was a
television story saying that Mrs. Caton “was still alive when she should have been
dead.”
Buchanan did not speak to the police until several months after defendant’s
confession to him. At a convenience store he saw a flyer announcing a reward,
and he left his name with the clerk. He was then contacted by a grandson of
Mrs. Caton’s, and he agreed to speak to Detective Stokes. However, his
willingness to do so was not motivated by the reward; it was his “Christian
upbringing.” He did not tell Goldman he was going to turn defendant in for the
reward.
Defendant had torn up Buchanan’s one photograph of his youngest
daughter, which made Buchanan angry. He wanted to throw defendant off the
balcony of a motel, but Goldman stopped him.
Buchanan used drugs “[a]s often as I can get them.” He injected
“speedballs,” a heroin/cocaine mixture. He used drugs an hour or two before
defendant confessed to him, and he continued to do so as recently as the day
before his testimony.
8
2. The Defense Case
Defendant testified he did not make the statements attributed to him by
Goldman and Buchanan, and that he did not have anything to do with these
crimes. He got along well with Goldman, but not with Buchanan, who was “just a
snake; a deceitful person.” His fingerprint was on the venetian blind because it
had fallen off the back door and he had put it into the closet; he did not know why
the cord was missing from it. He did rip up the photograph of Buchanan’s
daughter.
John Inderrienden had known Goldman for five or six years, and they had
once lived in the same apartment building. He “wouldn’t trust her as far as I could
throw her, and she weighed quite a bit.”
Goldman once lived in a house owned by Harry Arax. She did not pay her
rent, nor did she pay her bill at his market.
Goldman, a former neighbor of Peter Najarian’s, told him she was going to
be a witness in a murder case, but that she “didn’t know nothing about no
murder.”
Magadelena Desumala, who ran a halfway house in which Goldman lived
on and off for about 10 years, was “like a sister” to Goldman. She said Goldman
told her it was the grandson of the murder victim who had confessed to her.
B. Penalty Phase
The only witness who testified at the penalty phase, Detective Stokes, was
called by the prosecution to provide a foundation for the admission of the autopsy
photographs. No other evidence, aside from a stipulation to defendant’s prior
burglary conviction, was introduced.6
6
Defense counsel’s failure to present mitigating evidence is discussed below.
(See post, at pp. 45-46.)
9
II.
DISCUSSION
A. Guilt Phase Issues
1. Felony-murder special circumstances
a) Sufficiency of the evidence as to aiding or abetting
Defendant contends the evidence was insufficient to support the felony-
murder special-circumstances findings. Defendant does not contend the evidence
was insufficient to prove he planned and participated in the burglaries and
robberies; he concedes it was sufficient. Rather, defendant contends the
prosecution was required to prove, not only that he aided or abetted the burglaries
and robberies, but also that he “assisted in the killings themselves.”
Defendant relies upon the language we italicize in section 190.2, former
subdivision (b). “Every person whether or not the actual killer found guilty of
intentionally aiding, abetting . . . or assisting any actor in the commission of
murder in the first degree shall suffer death or confinement in state prison for a
term of life without the possibility of parole, in any case in which one or more of
the special circumstances enumerated in [specified paragraphs covering, among
others, the crimes of burglary and robbery] of subdivision (a) of this section has
been charged and specially found under Section 190.4 to be true.” (§ 190.2,
former subd. (b), added by initiative measure Prop. 7, § 6, approved by the
electorate Nov. 7, 1978; see now § 190.2, subd. (c).)
Section 190.2, former subdivision (b) is not helpful to defendant because,
under the felony-murder doctrine, he was found guilty of aiding or abetting first
degree murders. All persons aiding or abetting the commission of burglary or
robbery are guilty of first degree murder when one of them kills while acting in
furtherance of the common design. (§ 189; People v. Pulido (1997) 15 Cal.4th
713, 716; People v. Washington (1965) 62 Cal.2d 777, 782.)
10
Defendant
also
relies
on
People v. Anderson (1987) 43 Cal.3d 1104
(Anderson), to support his argument that the “actus reus of a special circumstance
requires that a defendant aid or abet the actual killing, not just the underlying
felony.” In particular, defendant relies upon the following statement in Anderson:
“[G]iven a realistic reading the statutory requirement that the aider and abett[o]r
intentionally aid, abet, counsel, command, induce, solicit, request, or assist any
acts in the commission of first degree murder—even when applied to felony
murder—is not ambiguous: the aider and abett[o]r must intentionally aid in a
killing.” (Anderson, at p. 1145.)
Defendant’s reliance on Anderson is unfounded. It is axiomatic a decision
does not stand for a proposition not considered by the court. (People v. Barker
(2004) 34 Cal.4th 345, 354; People v. Harris (1989) 47 Cal.3d 1047, 1071
(Harris).) The proposition advanced by defendant—for a felony-murder special
circumstance, the aiding or abetting has to relate to the act of killing itself, rather
than just the underlying felony⎯was not considered by the court in Anderson.
The question we considered in Anderson—reconsidered, actually—was
“whether and under what circumstances intent to kill is an element of the felony-
murder special circumstance.” (Anderson, supra, 43 Cal.3d at p. 1141.)
Anderson overruled Carlos v. Superior Court (1983) 35 Cal.3d 131
(Carlos). “In Carlos . . . , we held that intent to kill was an element of the felony-
murder special circumstance whether or not the defendant was the actual killer.”
(Anderson, supra, 43 Cal.3d at p. 1139.) In Anderson, we concluded “the broad
holding of Carlos that intent to kill is an element of the felony-murder special
circumstance cannot stand, and that the following narrow holding must be put in
its place: intent to kill is not an element of the felony-murder special
circumstance; but when the defendant is an aider and abett[o]r rather than the
11
actual killer, intent must be proved before the trier of fact can find the special
circumstance to be true.” (Id. at pp. 1138-1139.)
The premise of the decision in Carlos, the Anderson court explained, “was
our determination that section 190.2[, subdivision] (a)(17) is ambiguous. As
shown above, on further reflection we now believe that premise was mistaken:
given a fair reading, section 190.2[, subdivision] (a)(17) provides that intent is not
an element of the felony-murder special circumstance.” (Anderson, supra, 43
Cal.3d at p. 1143.)
According to Anderson, Carlos’s mistaken premise rested on two bases.
(Anderson, supra, 43 Cal.3d at pp. 1143-1145.) The statement relied upon by
defendant appears in the context of Anderson’s reexamination of the second of the
two bases.
“The second basis of our analysis in Carlos was our belief that unless
section 190.2(a)(17) were read to require intent to kill, the meaning and function
of section 190.2(b) would be hard to determine: ‘In the first place, paragraph 17,
alone of the listed paragraphs, already contains language equating the liability of
principal and accomplice. In addition, the requirement that the accomplice
“intentionally” aid in the commission of a murder is inherently ambiguous when
applied to a felony murder, for it could mean either that the accomplice must
intentionally aid in a killing, or that he need only intentionally aid the commission
of the underlying felony.’ ([Carlos, supra,] 35 Cal.3d at p. 142.)
“On reexamination we now find this basis, too, to be lacking. First, section
190.2(a)(17) does not treat the liability of the murderer and his aider and abett[o]r,
but rather the liability of the perpetrator of the underlying felony and his aider and
abettor. Thus, the statutory provision does nothing more than declare that both the
perpetrator of the underlying felony and his aider and abett[o]r are felony
murderers. Section 190.2(b) then declares that the felony-murder aider and
12
abett[o]r is eligible for the death penalty if intent to kill is proved. Second, given a
realistic reading the statutory requirement that the aider and abett[o]r intentionally
aid, abet, counsel, command, induce, solicit, request, or assist any acts in the
commission of first degree murder⎯even when applied to felony murder⎯is not
ambiguous: the aider and abett[o]r must intentionally aid in a killing.” (Anderson,
supra, 43 Cal.3d at pp. 1144-1145.)
In the paragraph immediately following the statement upon which
defendant relies we reiterated the issue we were actually resolving in Anderson.
“Thus, in Carlos we mistook the first and crucial step in our analysis by
determining that section 190.2(a)(17) is ambiguous: given a fair reading in
conjunction with section 190.2(b), the provision can realistically be read only to
require intent to kill for the aider and abett[o]r but not for the actual killer.”
(Anderson, supra, 43 Cal.3d at p. 1145.)7
Finally, defendant recasts this argument as an instructional claim. He
contends the trial court prejudicially erred by failing to instruct the jury he had to
have aided or abetted the actual killings, not just the underlying felonies. For the
reasons stated, this contention lacks merit.
7
Defendant’s reliance upon People v. Sanders (1990) 51 Cal.3d 471, is also
unavailing. The Sanders court quoted the statement in question from Anderson.
(Sanders, at p. 517.) However, like the Anderson court, the Sanders court did not
hold the aiding or abetting underlying a felony-murder special-circumstance
finding has to relate to the act of killing itself, rather than just the underlying
felony. In Sanders, the defendant claimed the evidence did not show whether he
or his confederate was the actual killer. Therefore, he contended, two felony-
based special-circumstance findings should be reversed because the jury was not
instructed to determine whether he intended to kill the victim. (Id. at p. 516.) We
held the jury had been adequately instructed on this point. (Id. at p. 517.)
13
b) Sufficiency of the evidence as to intent
Defendant contends the evidence was insufficient to prove he had the
requisite intent to kill his victims.
In reviewing the sufficiency of the evidence for a special circumstance, as
for a conviction, we ask whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the allegation beyond a reasonable doubt. (People v. Hart
(1999) 20 Cal.4th 546, 607; People v. Rowland (1992) 4 Cal.4th 238, 271; People
v. Mickey (1991) 54 Cal.3d 612, 678.)
As proof of defendant’s intent to kill, the prosecution relied on his
confession to Buchanan that, upon seeing the apparently lifeless body of Mr.
Freiri, defendant thought to himself, “If you kill one you might as well kill them
both.”
Defendant contends his statement to Buchanan is susceptible to the
interpretation, not that he intended to kill the victims, but that he realized the
penalty provided by law would be the same whether both or only one of them
were killed. While that is true, defendant did not urge the less damning
interpretation below. At trial, he denied having made the statement to Buchanan
at all, and claimed to have had nothing to do with these crimes. More to the point,
although the language used by defendant was susceptible to more than one
reasonable interpretation, the interpretation urged by the prosecution, that
defendant intended to kill his victims, was certainly one reasonable jurors could
reach.
In the alternative, and assuming arguendo the evidence of his intent to kill
was sufficient with regard to Mrs. Caton, defendant contends it was insufficient as
to Mr. Freiri. The statement the prosecution relies upon, defendant points out,
concerned a thought⎯“If you kill one you might as well kill them both”⎯that
14
occurred to defendant after he discovered Mr. Freiri had apparently been killed by
Cullumber. “The very basis for the thought was the assumption that Mr. Freiri
was dead. . . . If one thinks that a person is dead, there can be no intent to kill that
person.”
However, Buchanan’s testimony as to defendant’s statement did not occur
in a vacuum. While the prosecution did not rely upon it, there was ample evidence
defendant formed the intent to kill Mr. Freiri before he discovered his body.
(People v. Williams (1997) 16 Cal.4th 635, 678-679; People v. Allison (1989) 48
Cal.3d 879, 896-898.)
Under the evidence, the jury was entitled to reach the following
conclusions: The cord found around Mr. Freiri’s neck came from the venetian
blind in defendant’s apartment, and defendant was responsible for bringing it to
Mrs. Caton’s house. Defendant was also responsible for bringing the knife used to
stab Mrs. Caton and Mr. Freiri. Defendant knew his intended victims were elderly
and that Mr. Freiri was partially paralyzed, and so he could not have believed he
and Cullumber, both younger men, needed the knife to commit the robberies.
Therefore, defendant intended to kill, and not just rob, Mrs. Caton and Mr. Freiri.
Moreover, defendant knew he could not escape justice if Mr. Freiri were left alive.
Defendant had gained entry by saying he needed to use the phone because
Cullumber was going to jail. Even if Mr. Freiri did not recognize defendant, he
must have known Cullumber, who was an almost daily visitor to his
grandmother’s home. Mr. Freiri would have led the police to Cullumber, and
Cullumber would have led them to defendant.
c) Instruction on concurrence of act and specific intent
Defendant contends the trial court prejudicially erred by failing to instruct
the jury that, for purposes of the special circumstances, he had to possess the intent
15
to kill concurrently with his aiding or abetting the actual killings. This contention
lacks merit because it rests on the premise we earlier rejected, that the prosecution
was required to prove not only that defendant aided or abetted the burglaries and
robberies, but also that he aided or abetted the actual killings. (See ante, at pp.
10-13.)
The jury was properly instructed on concurrence of act and intent with
regard to the special circumstances. (People v. Rodrigues (1994) 8 Cal.4th 1060,
1144.) In accordance with CALJIC No. 3.31, the jury was instructed that, with
regard to each of the crimes charged in the information, “there must exist a union
or joint operation of act or conduct and a certain specific intent in the mind of the
perpetrator. Unless such specific intent exists, the crime to which it relates is not
committed. [¶] The specific intent required is included in the definition of the
crimes charged. [¶] All of the special circumstances allegations require an intent
to kill.”
2. Failure to give the cautionary instruction
When the evidence warrants, the court must instruct the jury sua sponte to
view evidence of a defendant’s oral admissions or confession with caution.
(People v. Carpenter (1997) 15 Cal.4th 312, 392 (Carpenter); People v. Bunyard
(1988) 45 Cal.3d 1189, 1224 (Bunyard).)
Failure to give the cautionary instruction here was raised by defendant in
his motion for a new trial. The prosecution conceded the error, but contended it
was harmless, and the trial court agreed.
The standard of review for erroneous failure to give the cautionary
instruction is “the normal standard of review for state law error: whether it is
reasonably probable the jury would have reached a result more favorable to
defendant had the instruction been given. (People v. Stankewitz (1990) 51 Cal.3d
16
72, 94; People v. Beagle [(1972)] 6 Cal.3d [441,] 456.) Defendant argues a
violation of state law also violates federal due process, thus mandating the more
stringent standard for federal constitutional error. He is wrong. Mere instructional
error under state law regarding how the jury should consider evidence does not
violate the United States Constitution. (Estelle v. McGuire (1991) 502 U.S. 62,
71-75.) Failure to give the cautionary instruction is not one of the ‘ “very
narrow[]” ’ categories of error that make the trial fundamentally unfair. (Id. at
p. 73.)” (Carpenter, supra, 15 Cal.4th at p. 393.)
It is not reasonably probable the jury would have reached a result more
favorable to defendant had the cautionary instruction been given here.
“ ‘The purpose of the cautionary instruction is to assist the jury in
determining if the statement was in fact made.’ (People v. Beagle, supra, 6 Cal.3d
at p. 456.)” (Carpenter, supra, 15 Cal.4th at p. 393.) “Since the cautionary
instruction is intended to help the jury to determine whether the statement
attributed to the defendant was in fact made, courts examining the prejudice in
failing to give the instruction examine the record to see if there was any conflict in
the evidence about the exact words used, their meaning, or whether the admissions
were repeated accurately. [Citations.]” (People v. Pensinger (1991) 52 Cal.3d
1210, 1268.)
Where there was no such conflict in the evidence, but simply a denial by
the defendant that he made the statements attributed to him, we have found failure
to give the cautionary instruction harmless. (Bunyard, supra, 45 Cal.3d at
pp. 1225-1226.) In Bunyard, two witnesses, Popham and Johnson, testified
concerning statements made by the defendant in soliciting them to kill his wife.
“We agree with the Attorney General that there was no issue of conflicting
evidence in this case concerning the precise words used, their meaning or context,
or whether the oral admissions were remembered and repeated accurately.
17
(Cf. People v. Bemis (1949) 33 Cal.2d 395.) Defendant simply denied soliciting
Popham or Johnson to kill his wife. At issue was whether Popham or Johnson
were credible witnesses or had fabricated their testimony concerning defendant’s
solicitations. The jury was properly instructed to view Popham’s testimony, as an
accomplice, with distrust (CALJIC No. 2.18), that Johnson’s prior felony
conviction could be considered in weighing his credibility (CALJIC No. 2.23), and
that prior inconsistent statements, inconsistent testimony, feigned loss of memory,
and wilfully false testimony would all bear on credibility (CALJIC Nos. 2.13 and
2.21). These instructions adequately alerted the jury to view the testimony of
Johnson and Popham with caution. We believe that a more favorable result was
not reasonably probable absent the error.” (Bunyard, supra, 45 Cal.3d at
pp. 1224-1225.)
As in Bunyard, defendant denied making the statements attributed to him,
and the question for the jury was whether Buchanan and Goldman were credible
witnesses or had fabricated their testimony concerning his admissions to them.
And as in Bunyard, the court, while neglecting to give the cautionary instruction,
did in other respects thoroughly instruct the jury on judging the credibility of
witnesses. The jury was instructed on the significance of prior consistent or
inconsistent statements of witnesses, discrepancies in a witness’s testimony or
between his or her testimony and that of others, witnesses who were willfully false
in one material part of their testimony being distrusted in other parts, weighing
conflicting testimony, evidence of the character of a witness for honesty and
truthfulness to be considered in determining the witness’s believability, and was
given a general instruction on witness credibility that listed other factors to
consider, including a witness’s bias, interest or other motive, ability to remember
the matter in question, and admissions of untruthfulness.
18
As the Attorney General contends, given these instructions, and given the
extensive impeachment of Buchanan and Goldman raising credibility issues to
which the instructions were pertinent,8 the jury was unquestionably aware their
testimony should be viewed with caution.
For the same reason, we reject defendant’s contention that defense counsel
was ineffective in having failed to request the cautionary instruction. The standard
for determining ineffective assistance of counsel is well established. A defendant
must demonstrate that: (1) his attorney’s performance fell below an objective
standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).)
A reasonable probability is a probability sufficient to undermine confidence in the
outcome. (Id. at p. 694.) Even assuming arguendo that defense counsel’s
performance, in failing to request the cautionary instruction, fell below an
8
The jury knew Goldman and Buchanan were drug addicts, that they had
been using drugs almost daily around the time of defendant’s statements, and that
Buchanan had used drugs the day before his testimony. They knew that, even
though he had initially denied it, Buchanan was aware of the $5,000 reward, that
Buchanan had told others he wanted the reward for turning defendant in, and that
he had then testified the reward was not the reason he had come forward. They
knew room and board expenses incurred by Buchanan were to be deducted from
the reward. (See post, at pp. 22-24.) They knew Buchanan disliked defendant,
and that he wanted revenge against defendant for tearing up a picture of his
daughter.
The jury also knew Goldman had initially lied to the police, disclaiming
any knowledge of the crimes. One witness testified he would not trust Goldman
as far as he could throw her. Another witness, a former neighbor, testified
Goldman told him she had been called as a witness in a murder case, but that she
“didn’t know nothing about no murder.” Another witness, who testified she was
“like a sister” to Goldman, said Goldman told her it was the grandson of the
murder victim who had confessed to her.
19
objective standard of reasonableness, it is not reasonably probable that, but for
counsel’s failure, the result of the trial would have been different.
3. Failure to disclose evidence
Defendant contends the prosecutor violated his duty under the Fourteenth
Amendment’s due process clause to disclose evidence to him. (Brady v. Maryland
(1963) 373 U.S. 83.)
To merit relief on this ground, the evidence a prosecutor failed to disclose
must have been both favorable to the defendant and material on either guilt or
punishment. Evidence would have been favorable if it would have helped the
defendant or hurt the prosecution, as by impeaching one of its witnesses.
Evidence would have been material only if there is a reasonable probability that,
had it been disclosed to the defense, the result would have been different. The
requisite reasonable probability is a probability sufficient to undermine
confidence in the outcome on the part of the reviewing court. It is a probability
assessed by considering the evidence in question under the totality of the relevant
circumstances and not in isolation or in the abstract. (In re Sassounian (1995)
9 Cal.4th 535, 543-544.)
When Ken Hahus, the prosecutor in this case, first spoke to Buchanan after
the case was reassigned to him, Buchanan had been released on his own
recognizance (OR) in an unrelated narcotics case and had failed to appear.
Barbara Dotta, the prosecutor in the narcotics case, had met with defense counsel
in chambers, and after defense counsel had pointed out defects in the search
warrant, defects which made it impossible to then proceed with the preliminary
hearing, and which eventually resulted in dismissal of that case, Ms. Dotta had
agreed to Buchanan’s release on OR. However, Buchanan told Mr. Hahus he had
been released OR in the narcotics case because he was a prime witness in this
20
case, and that a reporter had been present when counsel met in chambers and
reached the purported agreement, but that the reporter had been instructed not to
report the agreement, in order to keep defense counsel in this case from learning of
it. Mr. Hahus heatedly informed Buchanan no such agreement could have been
made because he was the prosecutor in this case, that he would have had to
authorize such an agreement, and he had not done so.
Mr. Hahus did not inform defense counsel of his conversation with
Buchanan until shortly before the hearing on the motion for a new trial. The
motion for new trial was based on other grounds. This contention was not added
to the motion, and thus the trial court did not address it.
We conclude that while this information would have been favorable to
defendant insofar as it tended to impeach Buchanan’s credibility, it was not
material because it would have added little to the cumulative impact of the other
impeachment evidence.
The jury knew Buchanan was a drug addict, that he had been using drugs
almost daily around the time of defendant’s statements, and that he had used drugs
the day before his testimony. They knew that, even though he had initially denied
it, Buchanan was aware of the $5,000 reward, that Buchanan had told others he
wanted the reward for turning defendant in, and that he had then testified the
reward was not the reason he had come forward. They knew room and board
expenses incurred by Buchanan were to be deducted from the reward. (See post,
at p. pp. 22-24.) They knew Buchanan disliked defendant, and that he wanted
revenge against defendant for tearing up a picture of his daughter.
It is not reasonably probable, we conclude, that whatever confidence the
jury placed in Buchanan’s testimony would have been fatally undermined by
21
knowing he had made a resoundingly unsuccessful effort to convince Mr. Hahus
his testimony entitled him to, in Mr. Hahus’s words, “get-out-of-jail-free cards.”9
4. Knowing use of false testimony
Defendant contends the prosecutor knowingly failed to correct a false
impression, created by Buchanan’s testimony, that the prosecution had not done
Buchanan any favors that might reflect on his credibility.
When the prosecution fails to correct testimony of a prosecution witness
which it knows or should know is false and misleading, reversal is required if
there is any reasonable likelihood the false testimony could have affected the
judgment of the jury. This standard is functionally equivalent to the “harmless
beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S.
18. (In re Jackson (1992) 3 Cal.4th 578, 597-598.)
We conclude the prosecutor did knowingly fail to correct a false
impression⎯indeed, knowingly exploited the false impression in his argument to
the jury⎯that the prosecution had not done Buchanan any favors that might reflect
on his credibility.
The impression was false because a prosecution investigator facilitated an
arrangement with the proprietor of a boarding house under which Buchanan
received room and board in return for IOU’s backed by the reward money he was
hoping to receive. However, we conclude that, in light of other information the
jury had about Buchanan’s arrangement with the proprietor of the boarding house,
9
Defendant contends his trial counsel was ineffective in failing to impeach
Buchanan with the fact that the charges in the unrelated narcotics case had been
dismissed. This information would have been of no impeachment value. After
hearing the motion for a new trial, the trial court concluded the narcotics case
“was dismissed because of its weakness months before Mr. Buchanan testified. So
there was really no favor done to Mr. Buchanan, and there was no further hook on
Mr. Buchanan at that time.”
22
as well as other indications of his interest in obtaining the reward, the prosecutor’s
action was harmless beyond a reasonable doubt.
On cross-examination, Buchanan was asked about his contacts with Melvin
King, a defense investigator. Buchanan said, among other things, that King
bought him lunch, as well as a beer, and “wanted to take me to church and wanted
to take me skydiving and stuff like that.”
On redirect, the prosecutor asked Buchanan how many times he had spoken
to defense investigator King. Buchanan responded he had done so perhaps a
dozen times, in person or on the phone. The prosecutor asked him what King had
bought him. Buchanan said King had bought him lunch, beer on three occasions,
and a pair of shoes.
The prosecutor and Buchanan then engaged in the following colloquy. “Q.
At any time have you spoken with anybody who’s told you they were from my
office, from the D.A.’s office? [¶] A. No, sir, only when they’ve come to pick me
up for court. [¶] Q. You’ve talked to me a couple of times; is that right? [¶] A.
Yes, sir. [¶] Q. At any time have the folks who’ve come to pick you up from my
office or me, have we bought you anything? [¶] A. Not a single thing, sir.”
In his argument to the jury, the prosecutor sought to exploit the false
impression he had created⎯that unlike the defense, the prosecution had done
nothing for Buchanan that might reflect on his credibility. “His statements to Mel
King, the only investigator who supplied him with money or alcohol or food was
never to back off of his statement that [defendant] made that confession. Now,
he’s con-wise. ‘This guy has taken me out to lunch. This guy is taking me out
buying me beer, why kill the goose that’s laying the golden egg? You want to
hear something, pal, say whatever you want to hear, let’s have another Colt 45.’
But did he ever, ever back out of that statement?”
23
As previously stated, the impression was false because a prosecution
investigator facilitated an arrangement with the proprietor of a boarding house
under which Buchanan received room and board in return for IOU’s, amounting to
$3,000 or $4,000, backed by the reward money he was hoping to receive. The
prosecution investigator even went so far as to draft a document signed by
Buchanan under which he agreed the district attorney’s office had his permission
to discharge his IOU’s before he received the remainder of the reward. The
prosecutor was aware of this arrangement; he so testified at the hearing on the
motion for a new trial.
That said, we conclude there is no reasonable likelihood the false
impression created by Buchanan’s testimony could have affected the judgment of
the jury. While the jury did not know of the role the prosecution investigator
played in facilitating the agreement between Buchanan and the proprietor of the
boarding house, the jury knew, through Buchanan’s testimony and that of the
defense investigator, of the agreement itself. They knew, through the defense
investigator’s testimony, that Buchanan has said on “many” occasions “[h]e was
expecting to receive the reward, deduct what money he owed his landlord, buy
himself a pickup truck or a car and leave town and start his life over.” Finally,
they knew through Goldman’s testimony that Buchanan had told her “he was
going to turn in [defendant] so he could get the reward.”
Defendant contends his trial counsel was ineffective in failing to impeach
Buchanan with the room and board agreement backed by his IOU’s, as well as
with the role of the prosecutor’s investigator in facilitating the arrangement.10
However, for the reasons stated, it is not reasonably probable that, but for
10
Defense counsel knew of the arrangement.
24
counsel’s inaction, the result of the trial would have been different. (See
Strickland, supra, 466 U.S. at p. 694.)
5. Reference to section 128
Defendant contends reference to section 128 by the court and prosecutor
constituted prejudicial error. The contention lacks merit. (Harris, supra, 47
Cal.3d at p. 1083, fn. 17.)
Section 128 provides: “Every person who, by willful perjury or
subornation of perjury, procures the conviction and execution of any innocent
person, is punishable by death or life imprisonment without possibility of parole.
The penalty shall be determined pursuant to Sections 190.3 and 190.4.”
On redirect, the prosecutor asked Buchanan whether he recalled being
informed by the prosecutor of a Penal Code section dealing with testimony in a
capital case. Buchanan responded, “Oh, yes, sir, yes; definitely remember that
one.” Defense counsel objected, without specifying any ground. Outside the
presence of the jury, the prosecutor supported the propriety of this line of
questioning by citing Harris, supra, 47 Cal.3d 1047.
In Harris, the defendant claimed “the prosecutor . . . improperly attempted
to establish [a witness’s] credibility by eliciting testimony that [the witness] was
aware of Penal Code section 128, and that the section provided for the death
penalty for a witness who gave perjured testimony leading to a conviction in a
capital case. Again, there was no objection, and the question was proper.”
(Harris, supra, 47 Cal.3d at p. 1083, fn. 17, italics added.)
After he had an opportunity, along with the court, to read Harris, defense
counsel did not renew his objection. Rather, he said the prosecutor should be
limited to asking Buchanan whether he was “aware” of section 128. The
prosecutor so confined his query, and after Buchanan again testified he was aware
25
of the section, the court read it to the jury. Finally, during his closing argument,
the prosecutor asked the jury, “Do you think Gene Buchanan would lie to send a
man to prison? Perhaps. Do you think Gene Buchanan would lie to send a man to
prison that he doesn’t like? Even more perhaps. Do you think that Gene
Buchanan would lie to send a man to prison behind a murder charge where Gene
Buchanan himself could face a capital case for it?”
Defendant
argues
section
128 is not a meaningful deterrent to perjury.
“Given the inevitable time lapse between potential conviction and execution, and
the remote prospect of conclusive exonerating evidence being discovered after an
execution, the chances of a successful prosecution under Penal Code section 128
in any case are so remote as to make the proffered evidence wholly irrelevant.”
We decline to second-guess the Legislature, which in enacting the section,
clearly believed it would have a meaningful deterrent effect. Admittedly, the
delay between conviction and execution has grown exponentially since section
128 was enacted in 1872. However, by 1997, when the Legislature amended and
thereby reaffirmed the section,11 the notion of swift justice in capital cases was
already a thing of the past. Moreover, with the advent of DNA testing, “the
prospect of conclusive exonerating evidence being discovered after an execution”
is, if anything, less “remote.” In any event, the stakes under section 128, “death or
life imprisonment without possibility of parole,” are so high a potential perjurer
may well decide it is not worth the risk, however small.
Finally, since it was proper for the prosecutor to ask Buchanan whether he
had been made aware of section 128, defense counsel was not ineffective insofar
as he failed to perfect his objections to this line of inquiry.
11
The 1977 amendment added the phrase “or life imprisonment without
possibility of parole,” as well as the second sentence. (Stats. 1977, ch. 316, § 3,
p. 1256, eff. Aug. 11, 1977.)
26
6. Allegedly inadmissible character evidence
Defendant contends his trial counsel was ineffective in failing to object to
testimony by Gail Goldman, “[t]he only possible relevance of [which] was to
prove that [defendant] was a likely participant in the murders as a result of his
violent and deadly traits.” The contention lacks merit.
As previously stated, because she died before the trial began, Goldman’s
preliminary hearing testimony was read into the record. (Evid. Code, § 240,
subd. (a)(3).) The testimony by Goldman that defendant now complains of was
that defendant “was not afraid of anyone,” “would strike like a cobra,” and had
once hit a karate expert who was threatening him “so fast I couldn’t believe it.”
Defendant contends Goldman’s testimony was inadmissible character evidence
offered to prove he committed the murders. (See Evid. Code, § 1101, subd. (a).)
However, her testimony must be placed in context. Shortly before, Goldman had
testified, in response to the prosecutor’s question, that she wanted to make sure
defendant knew she wasn’t the person who turned him in.
“Generally,
evidence that a witness is afraid to testify is admissible as
relevant to the witness’s credibility. (Evid. Code, § 780; People v. Warren (1988)
45 Cal.3d 471, 481.)” (People v. Sapp ( 2003) 31 Cal.4th 240, 301.) In apparent
recognition of this rule, defendant does not complain of Goldman’s earlier
testimony that she was afraid defendant might “do something to [her] if [she]
talked to the police,” nor does he complain of Detective Stokes’s subsequent
testimony that Goldman told him defendant “had said he would kill her if she or
anyone else talked about what he had told [her and Buchanan]. The testimony
defendant does complain of simply went to Goldman’s belief that defendant was
capable of carrying out his threats of retaliation.
Defendant complains his trial counsel was also ineffective in failing to
object to testimony by Goldman concerning Cullumber. Goldman testified, in
27
response to leading questions from the prosecutor, that Cullumber was not “mean”
or “violent,” did not have a “temper,” but rather was “a very funny person” who
“kept [her] laughing all the time.” This testimony, defendant asserts, “fell
squarely into the proscription of Evidence Code section 1101, subd. (a), as it was
offered to prove that someone else was the likely source of the apparent
malevolent intent and murderous acts in question.”
It is not apparent what legitimate purpose the prosecutor could have had in
eliciting this testimony from Goldman concerning Cullumber’s benign character.
The Attorney General suggests none. However, neither is it apparent that defense
counsel was ineffective in failing to object to it.
Again, to establish ineffective assistance of counsel, a defendant must
demonstrate his attorney’s performance fell below an objective standard of
reasonableness, and there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
(Strickland, supra, 466 U.S. at pp. 688, 694.) A reasonable probability is a
probability sufficient to undermine confidence in the outcome. (Ibid.) We do not
find it reasonably probable the outcome here would have been different in the
absence of this testimony.
7. Alleged vouching for a witness
Defendant contends the prosecutor committed prejudicial misconduct by
vouching for the credibility of Gene Buchanan.
“A prosecutor is prohibited from vouching for the credibility of witnesses
or otherwise bolstering the veracity of their testimony by referring to evidence
outside the record. . . . However, so long as a prosecutor’s assurances regarding
the apparent honesty or reliability of prosecution witnesses are based on the ‘facts
of [the] record and the inferences reasonably drawn therefrom, rather than any
28
purported personal knowledge or belief,’ her comments cannot be characterized as
improper vouching. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971.)
The conduct defendant complains of occurred as the prosecutor, in his
argument to the jury, acknowledged and sought to dispel any doubts they may
have had regarding Buchanan’s credibility. “He’s a drug addict, street-wise, and
he’s con-wise and he doesn’t work . . . . [¶] . . . But that doesn’t mean that the
truth cannot come out of the mouth of a drug addict. It can come out of the mouth
of a drug addict just as well as it can come out of the mouth of a priest. No priests
lived at that Harvard address, only drug addicts. This murder was committed in
hell. We don’t have angels for witnesses, we’ve people that live in hell. [¶] But
do you think Gene Buchanan would lie for $5,000? Maybe. Do you think Gene
Buchanan would lie to send a man to prison? I don’t think so.”
We need not decide whether the prosecutor’s comment amounted to
improper vouching because defense counsel objected to the comment, the
objection was sustained, and the court admonished the jury: “That’s an improper
argument, ladies and gentlemen, [the prosecutor] has stated his personal opinion.
You are to ignore that statement, please.” We presume the jury heeded the
admonition and that any error was cured. (People v. Burgener (2003) 29 Cal.4th
833, 874 (Burgener); People v. Jones (1997) 15 Cal.4th 119, 168; People v. Wash
(1993) 6 Cal.4th 215, 263.)
8. Failure to object to prosecutor’s closing argument
Defendant claims the prosecutor, in his closing argument to the jury in the
guilt phase of the trial, made two “misstatements amounting to misconduct.” His
counsel’s failure to perfect objections to these instances of alleged misconduct,
defendant contends, constituted ineffective assistance.
29
“As we have noted repeatedly, the mere failure to object rarely rises to a
level implicating one’s constitutional right to effective legal counsel. (People v.
Williams (1997) 16 Cal.4th 153, 221.)” (People v. Boyette (2002) 29 Cal.4th 381,
433.)
With regard to the first instance of alleged misconduct by the prosecutor,
defense counsel did object, and the objection was sustained, and so ineffective
assistance cannot be claimed. As to the second, we find no misconduct.
The prosecutor, defendant complains, “took on the role of an unsworn
forensics expert in constructing an unreasonable inference that a single fingerprint
[belonging to defendant] found on a blind accessible to everyone at the apartment
before and after the incident implied some form of special handling by the owner
of the print that could only be explained by the act of cutting a cord from the blind.
Since there obviously was no expert testimony to support this contrived inference,
the argument constituted statements of supposed facts not in evidence, to which
counsel failed to object.”
In his argument, defense counsel acknowledged that defendant’s fingerprint
was on one of the slats of the venetian blind. He then raised the question why the
fingerprints of others who had handled the blind, including Cullumber and a Jerry
Lilliard, were not. “[S]omething to consider,” he said.
The prosecutor responded, “[D]efense counsel points out that neither
Jerry’s fingerprint nor R.C.’s fingerprint was found on there. I submit to you, all
they did was pick it up. They didn’t have to hold it securely while the cord was
cut from it. They didn’t have to apply pressure to it. They didn’t have to hold it
immobile while the cord was being cut from it. That will explain the pressure that
results in the oils being left that results in a latent being lifted, that results in
finding it was his fingerprint, and not simply being picked up off the floor because
30
it fell off the door. If that’s all that happened wouldn’t there have been other
prints on it?”
It is well settled that a prosecutor is given wide latitude during argument.
The scope of this latitude includes stating matters not in evidence, but which are
common knowledge. (People v. Williams, supra, 16 Cal.4th at p. 221; People v.
Wharton (1991) 53 Cal.3d 522, 567.) It is a matter of common knowledge that,
assuming an object is of the sort that takes fingerprints, and that one is
barehanded, the harder one presses on it with one’s fingers, the more likely one is
to leave a fingerprint. Therefore, the prosecutor’s argument was not misconduct,
and, a fortiori, it was not ineffective assistance for defense counsel not to object it.
In any event, the jury was instructed that statements made by counsel were not
evidence, and that they were to reject interpretations of the evidence they found to
be unreasonable.
9. Cumulative error
Defendant contends “the cumulative effect of numerous errors occurring
during the guilt phase compels reversal.” The contention has no merit
B. Penalty Phase Issues
1. Reaction by victim’s family to jury verdicts
Defendant contends the trial court “prejudicially erred by denying [his]
motion to discharge the jury based on the emotional outburst of the victims’
families in favorable response to the rendition of the guilty verdict.” This
contention lacks merit.
At the conclusion of the guilt phase of the trial, when the jury’s verdicts
and findings were read in open court, Lavelle Garrett, the daughter of victim
Marie Caton, said in a loud voice, “Yes, yes.” The court admonished her to
“[k]eep it down, ma’am”; and the prosecutor also loudly instructed her to remain
31
silent. Other members of Mrs. Caton’s family embraced one another, cried, and
whispered among themselves.
The following week defense counsel moved to discharge the jury on the
ground it had been exposed to constitutionally impermissible victim impact
evidence under Booth v. Maryland (1987) 482 U.S. 496. In denying the motion,
the court expressed doubt as to whether any prejudice occurred, but offered to
admonish the jury to disregard the outburst and not let it influence their penalty
deliberations, unless the defense preferred that an admonition not be given, as it
might serve to highlight the incident in the minds of the jurors. Defense counsel
said he would have to decide whether to ask for such an admonition. As it turned
out, no admonition was given. While the record does not reflect whether defense
counsel expressly declined the court’s offer, it strongly suggests he did. The next
day the court stated that “some matters had been discussed in chambers and we’ve
gone over” the penalty phase instructions. After the court listed the instructions it
intended to give, it asked whether either counsel wanted other instructions.
Defense counsel stated, “I have no other requests.” Earlier, defense counsel had
stated he felt no admonition could be effective⎯that the proverbial bell could not
be unrung.
Assuming arguendo an admonition would have cured any prejudice,
defendant contends his trial counsel was ineffective in failing to request an
admonition. Again, we disagree.
The brief, spontaneous reaction of the members of Marie Caton’s family to
the jury verdicts did not constitute victim impact evidence of the sort proscribed in
Booth v. Maryland, supra, 482 U.S. 496. Moreover, while this case has been on
appeal, the United States Supreme Court, partially overruling Booth and South
Carolina v. Gathers (1989) 490 U.S. 805, held that “[i]n a capital trial, evidence
showing the direct impact of the defendant’s acts on the victims’ friends and
32
family is not barred by the Eighth or Fourteenth Amendments to the federal
Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825-827 [(Payne)].)”
(People v. Pollock (2004) 32 Cal.4th 1153, 1180.) Payne applies retroactively.
(People v. Clair (1992) 2 Cal.4th 629, 672 (Clair).)
“Under California law, victim impact evidence is admissible at the penalty
phase under section 190.3, factor (a), as a circumstance of the crime, provided the
evidence is not so inflammatory as to elicit from the jury an irrational or emotional
response untethered to the facts of the case. (People v. Boyette, supra, 29 Cal.4th
at p. 444; People v. Edwards (1991) 54 Cal.3d 787, 835-836.)” (People v.
Pollock, supra, 32 Cal.4th at p. 1180.) It would come as no surprise to a jury that
a victim’s family was anguished by her murder, relieved that part of the trial was
over, and satisfied with the guilty verdicts. The relatively muted reaction of Marie
Caton’s family to the jury verdicts was certainly not “so inflammatory as to elicit
from the jury an irrational or emotional response untethered to the facts of the
case.” (Ibid.) Finally, defense counsel may have made a reasonable tactical
decision that an admonition was not, on balance, desirable, because it would
remind the jury of the incident
2. Alleged Marsden error
“In
[People v.] Marsden[ (1970) 2 Cal.3d 118], we said: ‘[A] judge who
denies a motion for substitution of attorneys solely on the basis of his courtroom
observations, despite a defendant’s offer to relate specific instances of misconduct,
abuses the exercise of his discretion to determine the competency of the attorney.
A judicial decision made without giving a party an opportunity to present
argument or evidence in support of his contention “is lacking in all the attributes
of a judicial determination.” (Spector v. Superior Court (1961) 55 Cal.2d 839,
33
843.)’ (Marsden, supra, 2 Cal.3d at p. 124.)” (People v. Jones (2003) 29 Cal.4th
1229, 1244.)
“A defendant is entitled to have appointed counsel discharged upon a
showing that counsel is not providing adequate representation or that counsel and
defendant have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result. (People v. Earp (1999) 20 Cal.4th
826, 876 (Earp); People v. Memro (1995) 11 Cal.4th 786, 857 (Memro).)”
(People v. Jones, supra, 29 Cal.4th at pp. 1244-1245.)
Defendant contends that, following the guilt phase of the trial, he sought to
make a motion for the appointment of different counsel to assist him in the penalty
phase, and the court, without conducting the hearing required by Marsden,
prejudicially erred by declining to rule on his motion until the penalty phase was
concluded.
The Attorney General responds that defendant was not making a motion for
the appointment of substitute counsel to represent him in the penalty phase.
Rather, the Attorney General contends, defendant moved for the appointment of
separate counsel for the purposes of preparing a motion for a new trial based on,
among other grounds, incompetence of counsel during the guilt phase. Once the
court ascertained that defendant was seeking the appointment of separate counsel
to prepare a new trial motion, the Attorney General argues, the court properly
declined to rule on it until the trial was over, at which time separate counsel for
that purpose was appointed.
While the matter is not entirely free from doubt, doubt engendered largely
by the court’s confused and confusing references to Marsden, we agree with the
Attorney General’s characterization of defendant’s motion.
Defendant’s trial counsel, Marvin F. Schultz, clearly framed the matter as,
not a motion for substitute counsel to represent defendant in the penalty phase, but
34
rather as a motion for the appointment of separate counsel to represent defendant
in the preparation of a motion for a new trial, which motion, counsel said, was
likely to include, among other grounds, allegations that he acted incompetently in
the guilt phase. The disagreements between defendant and himself, counsel said,
regarded “trial tactic decisions that were made on witnesses who were called and
not called and the way some things were presented.” The idea for the appointment
of separate counsel for this limited purpose, according to counsel, was his, not
defendant’s.12
The court asked defense counsel when defendant wished the matter to be
heard. Counsel responded, “Well, my understanding procedurally is that the
12
“MR. SCHULTZ: I have explained to Mr. Dickey the ground—the types
of things that could be presented to the Court as part of a motion for a new trial
when the time is appropriate for that motion, and that there are some
disagreements between Mr. Dickey and I as to some trial tactic decisions that were
made on witnesses who were called and not called and the way some things in the
case were presented.
“In terms of including in a motion for new trial any issues of incompetency
of counsel I advised Mr. Dickey that, obviously, I think my decisions were correct.
And I understand why he would disagree with that. But in terms of being able to
present that issue as a motion for a new trial, it was my advice to Mr. Dickey that
the request should be made to the Court for an attorney to—a separate attorney to
review the record, considering we do have an existing transcript that somebody
can review at this point, and determine whether or not he can consult with that
attorney on the issues that he disagreed with me on, to determine whether or not
there was a legitimate basis or any basis for making a motion for new trial based
on incompetence of counsel.
“And I was concerned when Mr. Dickey presented the request to the Court
that it would include conversations that we had discussing the trial tactics and
witnesses and things might come up. And I thought it was—it’s not really a pure
Marsden hearing, but there are obviously disagreements as to tactics. And I think
the only way that I can think of to resolve that issue was to have Mr. Dickey
request of the Court that the transcripts be reviewed by a separate attorney to
determine whether or not there’s basis for the motion for new trial on the
incompetency issue.” (Italics added.)
35
motion for new trial would have to wait until after the penalty phase.” The court
replied, “That was my thinking.”
The court then addressed defendant. It referred to Marsden, and it stated,
incorrectly, that Marsden hearings are not to be conducted “in the middle of a
trial.” (Cf. Memro, supra, 11 Cal.4th at p. 856 [the defendant made several
Marsden motions, including one just before the penalty trial began].) However,
the court added, “I’ll hear whatever you have to say. I may have to tell you at the
end of the statement that this is not the time to get into that, but I don’t know until
I hear you out.”13 The following colloquy ensued.
“THE DEFENDANT: Well, if this is not the time then this is not the time.
“THE COURT: I can’t tell. See, you apparently want to make some
statements concerning what you believe to be—I don’t know, unwise choice[s] on
the part of Mr. Schultz concerning calling witnesses, questions asked of them. I
don’t know what you’re getting to. That would be the sort of thing we’d want to
hear after the trial is over with, and before sentencing.
“THE DEFENDANT: Yes, I’m not satisfied with the competency of my
attorney. There are witnesses that are—that were available that [were] not called
13
“THE COURT: Mr. Dickey, we don’t constantly have Marsden hearings
during the course of a trial. We normally will hear a Marsden motion preceding
the trial if the issue arises. And the trial is had, and if there’s a subsequent—not a
Marsden motion—well, you could have a Marsden motion before sentencing if—
once we get to that stage. But we don’t do it in the middle of a trial. And we still
are—we’re not through with your case, we still have the second part, the penalty
phase, to get out of the way, if we get to that. I’ve been advised there are some
motions counsel want[s] to make before we get to the penalty phase. So I’ll have
to hear them out and determine whether or not this is a case where we are going to
get to the penalty phase.
“I’ll hear whatever you have to say. I may have to tell you at the end of the
statement that this is not the time to get into that, but I don’t know until I hear you
out.”
36
that I feel [were] crucial to my defense, and issues that were not raised that I feel
[were] crucial, and questions that [were] not asked of me while I was on the stand
that should have been raised.
“THE COURT: That sounds like the sort of thing that you’d want to raise
after—before sentencing rather than at this time.
“THE DEFENDANT: Okay, I’ll leave that to your discretion, you know.
“THE COURT: From what you’ve just stated, that seems like the sort of
thing you’d want to discuss then.
“THE DEFENDANT: There’s other issues of motions for new trial other
than that. But I don’t believe this is the appropriate time.
“THE COURT: Once we get to the end of the trial, a transcript will be
provided to another attorney, to review the case and determine whether or not he
feels there’s grounds for new trial based on incompetency of counsel. We have to
be through with the trial.
“THE DEFENDANT: Yes.” (Italics added.)
The court did appoint separate counsel, Katherine Hart, to assist defendant
in the preparation of a motion for a new trial. Ms. Hart’s new trial motion, which
was heard following the penalty phase of the trial, was based on the grounds,
among others, that (1) defendant’s trial counsel, Mr. Schultz, was ineffective in the
guilt phase, and (2) the court erred in failing to conduct a Marsden hearing
following the guilt phase.
The new trial motion was denied. As to defendant’s Marsden claim, the
court said, “I think at the time you were arguing this, that in my view there was a
poor choice of words on the Court’s part. I know Mr. Schultz let me know that it
was not strictly a Marsden motion, and then I started to talking about a Marsden
motion. And I do, of course, know the law, that you can have a Marsden motion
at any stage of the proceedings. [¶] Mr. Dickey was not asking that the Court
37
have that Marsden hearing. He, of course, was dissatisfied with the results after
the jury returned the verdict of guilty and found the special circumstances to be
true. [¶] So I do find that [the prosecutor] is absolutely correct, it was a poor
choice of words on the Court’s part, and there was no reason to have a Marsden
hearing at the time. It was not asked for.”
We conclude the court did not commit Marsden error. “ ‘Although no
formal motion is necessary, there must be “at least some clear indication by
defendant that he wants a substitute attorney.” ’ (People v. Mendoza (2000) 24
Cal.4th 130, 157, quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)”
(People v. Valdez (2004) 32 Cal.4th 73, 97.) Defendant did not clearly indicate he
wanted substitute counsel appointed for the penalty phase. To the extent he made
his wishes known, he wanted to use counsel’s assertedly incompetent performance
in the guilt phase as one of the bases of a motion for new trial, and he wanted to
have separate counsel appointed to represent him in the preparation of such a
motion. As his expressed wishes were honored, he has no grounds for complaint
now.14
Moreover, it is clear a Marsden motion would have been baseless.
Again, in his colloquy with the court at the time he made the motion,
defendant stated, “There are witnesses that are—that were available that [were]
not called that I feel [were] crucial to my defense, and issues that were not raised
14
Defendant contends his comments the following day, when he stated he did
not wish to be present in the courtroom during the penalty phase, manifested an
irreconcilable conflict with counsel. We disagree. Defendant’s remarks suggested
he had lost confidence, not in counsel, but in the jury. “I would just as soon that
the defense not even say nothing, just rest. I don’t intend to plead nothing to the
jury. I’d just as soon sit in the cell. I have no intentions or desire to try to have
any sympathy or pity from the jury that convicted me of these crimes. I don’t
intend to be present, neither; I don’t wish to be.”
38
that I feel [were] crucial, and questions that [were] not asked of me while I was on
the stand that should have been raised.”
The one point in Ms. Hart’s new trial motion that appears relevant to these
complaints is her claim that Mr. Schultz failed to accede to defendant’s request
that he present a defense of “third-party culpability,” i.e., that Gene Buchanan was
“the real perpetrator.”15 “Buchanan disappeared right after the crime, and
Buchanan’s truck, which he owned with Gail Goldman, was abandoned. The
truck was later located by the repossessor. After R.C. committed suicide,
Buchanan reappeared. Buchanan’s disappearance was unusual, because Buchanan
had lived with Goldman for five years, and during the time defendant was residing
with Goldman and Buchanan, Buchanan did not disappear for days at a time.
Defendant’s theory is that Buchanan was the real perpetrator, that Buchanan had
the same motive to commit the killing as the prosecution imputed to defendant
(that is, a motive to rob or steal to obtain money for drugs), that Buchanan
disappeared right after the crime because he was guilty of the crime and wished to
avoid detection, and reemerged once R.C.’s suicide was publicized.”
In a preface to this portion of her written motion, Ms. Hart stated,
“Defendant requests a separate hearing on this issue only if his motion for new
trial on the basis of the actual record is denied. That is, there will be no need to
conduct a separate, detailed hearing on the issue of whether his defense was
appropriately presented if his motion for new trial is granted on other grounds.
Also, at the time this motion was being prepared, defendant was still investigating
facts supporting the claim of third-party culpability. . . . Defendant expects to
15
Whether defendant was claiming Buchanan was the lone killer or
Cullumber’s accomplice is not clear from Ms. Hart’s moving papers.
39
present, at the hearing on third-party culpability, declarations and witnesses not
available for submission at the time this motion was filed.”
Ms. Hart was appointed on March 26, 1991. She filed the motion for new
trial almost five months later, on August 16, 1991. The hearing on the motion was
held five months after that, on January 17, 1992. At the hearing, the court stated it
had been informed by Ms. Hart she was not abandoning the contention that
Buchanan was the killer, but that she had nothing further to present to support the
theory.
In denying the new trial motion, the court observed there did not appear to
have been “sufficient evidence available to Mr. Schultz to present a credible
theory that Mr. Buchanan would have been the person who went with RC that
night and who was responsible for the killing. [¶] So I don’t find that there was
any error on Mr. Schultz’s part in failing to present this theory, and that it was not
ineffective assistance of counsel to fail to do that.”
We do not find Marsden error where complaints of counsel’s inadequacy
involve tactical disagreements. (People v. Cole (2004) 33 Cal.4th 1158, 1192;
People v. Welch (1999) 20 Cal.4th 701, 728-729 (Welch); People v. Barnett (1998)
17 Cal.4th 1044, 1107, fn. 37.) The conflict between defendant and counsel, over
whether defendant’s theory that Buchanan was the real killer should have been
presented to the jury, was a tactical disagreement, and in the apparent absence of
any evidence supporting the theory, a disagreement in which counsel seems to
have taken the wiser view.
3. Defendant’s absence during penalty phase
At his request and pursuant to his written waiver, defendant absented
himself from the courtroom during the penalty phase of the trial and observed the
proceedings on a television monitor in the holding cell. Defendant now contends
40
his absence violated the federal Constitution and sections 977 and 1043. We
conclude defendant validly waived his constitutional right to be present, and while
sections 977 and 1043 were violated, the error was harmless under People v.
Watson (1956) 46 Cal.2d 818, 836.
Before the penalty phase began, defense counsel informed the court
defendant did not wish to be in the courtroom during the proceeding. Counsel
advised the court he had discussed the issue with defendant, and that he did not
oppose defendant’s wishes in this regard. He observed, “with the video setup
that’s available in the holding area, obviously there’s no confrontation issue.”
The court confirmed “we have a holding cell right next to this courtroom,
we have a TV monitor in there . . . so that you will both be able to see and hear
what is going on in this courtroom.” While stating he was prepared to comply
with defendant’s wish to be absent, the court advised defendant “it would probably
be wiser to be in the courtroom during the taking of the testimony,” and if
defendant changed his mind at any time, “we’ll bring you back immediately.”
Defendant responded, “I would just as soon that the defense not even say
nothing, just rest. I don’t intend to plead nothing to the jury. I’d just as soon sit in
the cell. I have no intentions or desire to try to have any sympathy or pity from
the jury that convicted me of these crimes. I don’t intend to be present, neither; I
don’t wish to be.”
Having readvised defendant of his confrontation and cross-examination
rights, the court took an oral waiver in which defendant confirmed he understood
his right to be present, that he was voluntarily asking to absent himself, and that he
understood he could return to the courtroom “anytime you want to come back.”
The oral waiver was confirmed in a written waiver signed in open court after
defendant himself actively participated in its wording.
41
A defendant has the right, under the Sixth Amendment of the federal
Constitution, to be present at trial during the taking of evidence. Nonetheless, as a
matter of both federal and state constitutional law, a capital defendant may validly
waive his presence at critical stages of the trial. (People v. Weaver (2001) 26
Cal.4th 876, 966 (Weaver); People v. Jackson (1996) 13 Cal.4th 1164, 1209-1210
(Jackson).) Defendant’s waiver was valid; accordingly, his constitutional rights
were not violated.
A capital defendant cannot voluntarily waive his rights under sections 977
and 1043 to be present at trial. (Weaver, supra, 26 Cal.4th at pp. 967-968;
Jackson, supra, 13 Cal.4th at p. 1210.) However, permitting defendant to waive
those rights was merely statutory error, and thus we should reverse the judgment
on this ground only if we conclude the error was prejudicial. (Weaver, at p. 968;
Jackson, at p. 1211.) The standard for reviewing error in permitting a defendant to
absent himself from the penalty phase of a capital case is whether there is a
“ ‘reasonable possibility’ ” the jury would have reached a different result had the
error not occurred. (People v. Hernandez (2003) 30 Cal.4th 835, 877, italics
added; People v. Brown (1988) 46 Cal.3d 432, 448.) Weaver and Jackson were
also capital cases, and we used the reasonable probability standard in those cases.
(Weaver, at p. 968; Jackson, at p. 1211.) However, the error in Weaver occurred
in the sanity phase of the trial (Weaver, at p. 965), and in the guilt phase in
Jackson (Jackson, at p. 1209).
We conclude it is not reasonably possible a result more favorable to
defendant would have been reached in the absence of the error. First, the
television monitor in the holding room enabled defendant to see and hear the
proceedings, and the court made it clear defendant would be brought back into the
courtroom the moment defendant decided he wanted to return. Second, the only
witness who testified during the penalty phase was the detective who provided the
42
foundation for the admission of the autopsy photographs of the victims. The
admissibility of the autopsy photographs had already been vigorously contested by
defense counsel, and it is not apparent what value defendant’s presence during the
detective’s testimony would have been to defense counsel. (See Weaver, supra,
26 Cal.4th at p. 968.) Third, given defendant’s professed lack of any desire to
receive “sympathy or pity from that jury that convicted me of these crimes,” his
demeanor, had he been present in the courtroom, might have undermined his
counsel’s argument. Finally, the court advised the jury that defendant had
exercised his option of not being present, but that he was following the
proceedings on a television screen in the holding cell, and that they were not to
consider his absence in their deliberations.
4. Autopsy photographs
Defendant contends the trial court prejudicially erred in admitting autopsy
photographs of the victims. The contention lacks merit.
“We repeatedly have determined that photographs of victims’ bodies may
be admissible at the penalty phase to demonstrate graphically the circumstances of
the crime, a factor relevant to the issues of aggravation and penalty. (E.g., People
v. Lucas [(1995)] 12 Cal.4th [415,] 490; People v. Sanchez (1995) 12 Cal.4th 1,
63-65; People v. Medina (1995) 11 Cal.4th 694, 775; People v. Wader (1993) 5
Cal.4th 610, 655; People v. Raley (1992) 2 Cal.4th 870, 914; People v. Hardy
(1992) 2 Cal.4th 86, 199-200.)” (People v. Smithey (1999) 20 Cal.4th 936, 990.)
Defendant contends the photographs should not have been admitted against
him because he was merely an aider and abettor. However, we have upheld the
admission of autopsy photographs in the penalty phase of the trial of a defendant
convicted on an aiding and abetting theory. (People v. Sanchez, supra, 12 Cal.4th
43
at pp. 63-65.) Defendant notes there was more evidence in Sanchez of the
defendant’s direct involvement in the murderous acts. (Id. at p. 22.) That is
beside the point. The “circumstances of the crime of which the defendant was
convicted in the present proceeding” (§ 190.3, factor (a)), which include the
brutality of its commission, and whether the defendant’s “participation in the
commission of the offense was relatively minor” (§ 190.3, factor (j)) are separate
sentencing factors. The circumstances of the offense here, as evidenced by the
photographs of the victims, were arguably an aggravating factor, and the
prosecutor made that argument. The nature of defendant’s involvement, that he
was an aider and abettor, was arguably a mitigating factor, and defense counsel
made that argument. The jury was properly instructed. No error appears.
5. Ineffective assistance of counsel
“At the penalty phase as at the guilt trial, defendant bears the burden of
showing ineffective assistance. He must show (1) deficient performance under an
objective standard of professional reasonableness, and (2) prejudice under a test of
reasonable probability. (In re Marquez (1992) 1 Cal.4th 584, 602-603.)” (People
v. Mayfield (1993) 5 Cal.4th 142, 185 (Mayfield).) Prejudice is established when
there is a reasonable probability that, absent the errors of counsel, the sentencer
would have concluded the balance of aggravating and mitigating circumstances
did not warrant death. As in the guilt phase, reasonable probability is defined as
one that undermines confidence in the verdict. (In re Gay (1998) 19 Cal.4th 771,
790; In re Marquez, at p. 606.)
“In measuring counsel’s performance, the United States Supreme Court has
cautioned that judicial scrutiny ‘must be highly deferential. It is all too tempting
for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has
44
proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. [Citation.] A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.” [Citation.] There
are countless ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the same way.’
(Strickland, supra, 466 U.S. at p. 689; Bell v. Cone (2002) 535 U.S. 685.) The
high court has also expressly reaffirmed that the Strickland standard applies to an
assessment of counsel’s ‘failure to adduce mitigating evidence and the waiver of
closing argument’ with respect to capital sentencing. (Bell v. Cone, at pp. 696-
699.)” (In re Andrews (2002) 28 Cal.4th 1234, 1253-1254.)
a) Failure to present mitigating evidence
Defendant contends he received ineffective assistance of counsel because
counsel presented no mitigating evidence in the penalty phase.
“On a silent record . . . we will not assume that the defense counsel’s failure
to present mitigating evidence rendered his assistance ineffective. Any assertion
that counsel was inadequate in this regard must be raised on habeas corpus.”
(People v. Diaz (1992) 3 Cal.4th 495, 566 (Diaz); see People v. Anderson (2001)
25 Cal.4th 543, 598.)
The record is not silent here. However, insofar as it speaks, it undercuts
defendant’s ineffectiveness claim.
45
Defendant contends his mother should have been called to testify as to the
“awful conditions of [his] upbringing.” A declaration by defendant’s mother was
attached to the motion for a new trial filed by defendant’s new counsel appointed
for the purpose of preparing the motion. In the declaration, defendant’s mother
states she had been available to testify that when defendant was growing up he
“suffered abusive beatings” by his father, and that at times she had taken out her
“rage” on defendant, beating him with a belt.
Prior to the penalty phase, defense counsel discussed with the court his
concern that such “abuse” could be viewed as harsh punishment, raising the
question, on rebuttal, whether defendant had done something to provoke such
punishment. This was a concern because defendant had, indeed, done something
deserving of severe punishment—he had sexually molested his little sister. The
abuse occurred over a period of two years, starting when defendant was 12 and his
sister was only 5.16 Noting such rebuttal would be “devastating,” defense counsel
said he would have to decide whether the risk was too great. In the end, defense
counsel called neither defendant’s mother nor any other witness.
When defense counsel’s reasons are not readily apparent from the record,
we will not assume he was ineffective unless his challenged conduct could have
had “ ‘ “no conceivable tactical purpose.” ’ ” (Earp, supra, 20 Cal.4th at p. 896;
People v. Hines (1997) 15 Cal.4th 997, 1065; Diaz, supra, 3 Cal.4th at p. 558.)
Here, defense counsel’s tactical purpose is readily apparent from the record.
Indeed, in arguing the motion for a new trial, defendant’s substitute counsel
expressly acknowledged defense counsel made a “strategic and tactical decision”
16
In her declaration filed in support of defendant’s new trial motion,
defendant’s mother acknowledged defendant was “accused” of molesting his
sister, but stated she “had no personal knowledge” of it. However, the probation
report reveals defendant was adjudged guilty of the conduct by a juvenile court.
46
in not calling defendant’s mother. Accordingly, we reject this assignment of
ineffectiveness of counsel.
b) Brevity of argument
Defendant next contends defense counsel was ineffective because his
penalty phase argument was brief. It was brief; in transcript, three pages long.
(The prosecutor’s argument was longer by only a page.) However, the
effectiveness of an advocate’s oral presentation is difficult to judge accurately
from a written transcript, and the length of an argument is not a sound measure of
its quality. (Weaver, supra, 26 Cal.4th at p. 979; People v. Cudjo (1993) 6 Cal.4th
585, 634-635.)
Defense counsel argued the trial was conducted on an aider and abettor
theory; that Richard Cullumber was the actual killer; that defendant had expressed
remorse as he told his story to Goldman and Buchanan; that the prosecutor in
argument had acknowledged only a burglary had been planned; that life
imprisonment without possibility of parole meant that defendant would never get
out of prison; that sending another man to his death was not an appropriate
response to this tragedy; that sentencing defendant to life imprisonment without
possibility of parole was the second most severe penalty the law allowed and
would not serve to condone defendant’s crime; that the aggravating factors had to
substantially outweigh the mitigating factors to warrant the death penalty; and that
any lingering doubt the jurors may have had during the guilt phase, even though
not amounting to a reasonable doubt, was sufficient for mitigation.
We conclude defense counsel’s argument, though brief, did not fall below
the standard of reasonably competent representation, and we find no reasonable
probability that a different argument would have convinced the jury to vote for life
over death. (Weaver, supra, 26 Cal.4th at p. 979; People v. Lewis (2001) 25
47
Cal.4th 610, 675 [penalty phase argument two pages in length not inadequate
representation]; Mayfield, supra, 5 Cal.4th at pp. 186-187 [brief, “perfunctory”
penalty phase argument not inadequate representation].)
6. CALJIC No. 8.85
Defendant contends the standard instruction given here with regard to the
factors the jury might take into account in determining the penalty (§ 190.3;
CALJIC No. 8.85) failed to adequately guide its discretion, in violation of
defendant’s rights under the Eighth and Fourteenth Amendments to the United
States Constitution.
Defendant’s various attacks on CALJIC No. 8.85 have been repeatedly
rejected by this court, and we conclude he gives us no compelling reason to
reconsider our decisions.
CALJIC No. 8.85 does not encourage the double-counting of aggravating
factors. (People v. Lewis, supra, 25 Cal.4th at p. 669; People v. Ayala (2000) 24
Cal.4th 243, 288-289.)
The federal Constitution does not bar consideration of unadjudicated
criminal activity. (Tuilaepa v. California (1994) 512 U.S. 967, 976-977; People v.
Marks (2003) 31 Cal.4th 197, 237; People v. Anderson, supra, 25 Cal.4th at
p. 601.) Moreover, defendant seems to complain the jury was permitted to
consider prior criminal activity involving use or attempted use of force, whereas
the prosecutor candidly acknowledged to the jury, “There is no evidence at all of
any previous violent activity on the part of [defendant].”
“[A] reasonable juror would readily have identified” the “emotional
disturbance” and “diminished capacity” factors as mitigating. (People v. Benson
(1990) 52 Cal.3d 754, 802; see People v. Williams (1997) 16 Cal.4th 153, 268-
269; People v. McPeters (1992) 2 Cal.4th 1148, 1191.) “The presumption that the
48
jurors in this case understood and followed the mitigation instruction supplied to
them is not rebutted by empirical assertions to the contrary based on research that
is not part of the present record and has not been subject to cross-examination.
[Citation.]” (Welch, supra, 20 Cal.4th at p. 773.)17
Finally, failure to delete inapplicable statutory sentencing factors from
CALJIC No. 8.85 as given did not violate defendant’s rights under the federal
Constitution. (People v. Box (2000) 23 Cal.4th 1153, 1217; People v. Turner
(1994) 8 Cal.4th 137, 207-208.) Likewise, the failure to identify which factors
were aggravating and which mitigating was not error; the aggravating or
mitigating nature of the factors is self-evident within the context of each case.
(People v. Hillhouse (2002) 27 Cal.4th 469, 509; see Box, at p. 1217.)
7. CALJIC No. 8.88
Defendant
contends
giving the standard instruction on the weighing of
aggravating and mitigating factors (CALJIC No. 8.88) violated his rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. We have repeatedly rejected similar claims, and defendant gives us
no compelling reason to reconsider our decisions.
“Defendant contends that the standard instruction on the weighing of
mitigating and aggravating factors was impermissibly vague and misleading in
that it failed to inform the jury that unless it found that the factors in aggravation
outweighed the factors in mitigation, it could not impose a sentence of death, and
in that it failed to inform the jury that if factors in mitigation outweighed those in
17
As here, the defendant in Welch relied upon an article “claiming that
interviews with former jurors or with randomly selected subjects show that many
of the subjects failed to properly understand the concept of mitigation correctly
after they had been given CALJIC No. 8.88. [Citations.]” (Welch, supra, 20
Cal.4th at pp. 772-773.)
49
aggravation, it must impose a sentence of life in prison without the possibility of
parole. He also complains that the instruction’s direction that before the jury may
return a verdict of death, it must find that the aggravating circumstances are ‘so
substantial’ as to warrant a sentence of death and not life imprisonment without
possibility of parole, was vague and led to arbitrary decisionmaking. He claims
violation of his right to due process of law and to a reliable and nonarbitrary
penalty determination under the Eighth Amendment of the United States
Constitution. [¶] We repeatedly have rejected identical claims and decline
defendant’s invitation to reconsider our prior rulings. [Citations.]” (People v.
Catlin (2001) 26 Cal.4th 81, 174 (Catlin).)
Defendant also contends the standard instruction, in referring to the
“totality” of the aggravating and mitigating circumstances, erroneously implied a
single mitigating circumstance could not outweigh any and all aggravating
circumstances. However, the instruction was not susceptible of this interpretation.
(People v. Berryman (1993) 6 Cal.4th 1048, 1099-1100.)
Finally, no instruction defining life imprisonment without possibility of
parole was required. (People v. Hughes (2002) 27 Cal.4th 287, 405 (Hughes).)
8. Reasonable doubt and penalty determination
Defendant contends failure to instruct the jury that the reasonable doubt
standard governs the penalty determination violated his rights under the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. We have
rejected the identical contention, and defendant gives us no reason to reconsider
our decision.
“Defendant claims that it is unconstitutional to impose a sentence of death
unless the aggravating circumstances outweigh the mitigating circumstances
beyond a reasonable doubt. This claim was first rejected by our court in People v.
50
Rodriguez [(1986)] 42 Cal.3d [730,] 777-779, and has been rejected ever since.
(See, e.g., [People v.] Snow [(2003)] 30 Cal.4th [43,] 125-127; Burgener, supra,
29 Cal.4th at p. 884, fn. 7; People v. Gutierrez (2002) 28 Cal.4th 1083, 1150-
1151; Clair, supra, 2 Cal.4th at p. 691.) As we recently stated: ‘The Constitution
does not require the jury to find beyond a reasonable doubt that a particular factor
in aggravation exists, that the aggravating factors outweighed the mitigating
factors, or that death was the appropriate penalty.’ (Burgener, supra, 29 Cal.4th at
p. 884.)” (People v. Cox (2003) 30 Cal.4th 916, 971.)
Defendant acknowledges this court has previously rejected similar
arguments. However, as did the defendant in Cox, defendant “asks us to
reconsider this position in light of two recent United States Supreme Court cases,
Apprendi v. New Jersey (2000) 530 U.S. 466, and Ring v. Arizona (2002) 536 U.S.
584. Specifically, defendant argues that the two cases read together mandate that
the aggravating circumstances necessary for the jury’s imposition of the death
penalty be found beyond a reasonable doubt. We disagree. As this court recently
stated in [People v.] Snow, supra, 30 Cal.4th at page 126, footnote 32: ‘We reject
that argument for the reason given in People v. Anderson[, supra,] 25 Cal.4th [at
pp.] 589-590, footnote 14: “[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.” The high
court’s recent decision in Ring v. Arizona[, supra,] 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
51
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 system
constitutionally must find any aggravating factor true beyond a reasonable doubt.’
(Accord, People v. Smith (2003) 30 Cal.4th 581, 642; People v. Prieto (2003) 30
Cal.4th 226, 275 [(Prieto)].)” (People v. Cox, supra, 30 Cal.4th at pp. 971-972.)
9. Constitutionality of California’s death penalty statute
Defendant raises a number of other constitutional challenges to California’s
death penalty statute, claims we have consistently rejected and find no persuasive
reason to reexamine.
Accordingly, we continue to hold:
The death penalty law adequately narrows the class of death-eligible
offenders. (People v. Brown (2004) 33 Cal.4th 382, 401 (Brown); Prieto, supra,
30 Cal.4th at p. 276.)
The jury is not constitutionally required to presume life imprisonment
without possibility of parole is the appropriate punishment. (Hughes, supra, 27
Cal.4th at p. 404; People v. Jones, supra, 15 Cal.4th at p. 196.)
Nor is the jury constitutionally required to achieve unanimity as to
aggravating factors. (Brown, supra, 33 Cal.4th at p. 402; People v. Jenkins (2000)
22 Cal.4th 900, 1053.)
52
The absence of a requirement that the jury make written findings does not
render the law unconstitutional. (Brown, supra, 33 Cal.4th at p. 402; Prieto,
supra, 30 Cal.4th at p. 275; People v. Ochoa (2001) 26 Cal.4th 398, 462.)
Nor is it defective in failing to require intercase proportionality review.
(Brown, supra, 33 Cal.4th at p. 402; Prieto, supra, 30 Cal.4th at p. 276; People v.
Lewis (2001) 26 Cal.4th 334, 394-395.)
The law is not constitutionally defective because the prosecutor retains
discretion whether or not to seek the death penalty. (Brown, supra, 33 Cal.4th at
p. 403; Hughes, supra, 27 Cal.4th at p. 404.)
The method of execution does not constitute cruel and unusual punishment.
Moreover, matters bearing on the legality of the execution of the sentence, rather
than the validity of the sentence itself, are not a basis for the reversal of the
judgment. (People v. Taylor (2001) 26 Cal.4th 1155, 1176-1177; People v.
Samayoa (1997) 15 Cal.4th 795, 864.)
Finally, “we need not consider whether a violation of state or federal
constitutional law would also violate international law, ‘because defendant has
failed to establish the premise that his trial involved violations of state and federal
constitutional law . . . .’ ([People v. Jenkins, supra, 22 Cal.4th at p.] 1055.)
Moreover, had defendant shown prejudicial error under domestic law, we would
have set aside the judgment on that basis without recourse to international law.”
(People v. Hillhouse, supra, 27 Cal.4th at p. 511; see Brown, supra, 33 Cal.4th at
pp. 403-404; Burgener, supra, 29 Cal.4th at p. 885.)
10.
Automatic motion to modify verdict
Defendant
contends
the
trial court, in ruling on the automatic motion to
modify the verdict (§ 190.4, subd. (e)), failed to apply the proper standard,
properly consider the aggravating and mitigating factors, adequately state the
53
reasons for its findings, or direct the clerk to record its reasons in the minutes.
Only the last point has merit, and the error with regard to it was not, we conclude,
prejudicial.
In ruling upon an automatic motion to modify the verdict under section
190.4, subdivision (e), the trial court “shall review the evidence, consider, take
into account, and be guided by the aggravating and mitigating circumstances
referred to in Section 190.3, and shall make a determination as to whether the
jury’s findings and verdicts that the aggravating circumstances outweigh the
mitigating circumstances are contrary to law or the evidence presented. The judge
shall state on the record the reasons for his findings. [¶] The judge shall set forth
the reasons for his ruling on the application and direct that they be entered on the
Clerk’s minutes.”
Section 190.4, subdivision (e) requires a court ruling upon a motion for
modification to reweigh independently the evidence of aggravating and mitigating
circumstances and then determine whether, in its independent judgment, the
weight of the evidence supports the jury’s verdict. (Catlin, supra, 26 Cal.4th at
p. 177; People v. Crittenden (1994) 9 Cal.4th 83, 150.)
Defendant contends the court erroneously applied a deferential standard of
review appropriate to appellate proceedings. To the contrary, the court expressly
stated, “I do understand and agree that the Court must use its independent
judgment in reweighing the evidence of mitigating and aggravating circumstances
in determining what the penalty ought to be in this case and whether or not this
Court agrees with the jury’s verdict.”
And contrary to defendant’s claims, the court carefully reviewed the
evidence bearing on each of the aggravating and mitigating factors and clearly
explained why it found the aggravating factors substantially outweighed the
mitigating factors. Defense counsel urged defendant’s culpability was only that of
54
an aider and abettor. The court agreed Cullumber was the “major culprit,” but
noted the evidence showed defendant’s role was “not minor.” Defense counsel
brought up defendant’s “drug use.” However, there was no evidence, the court
observed, defendant was under the influence of drugs at the time of the offenses.
Defense counsel noted the remorse defendant had shown when confessing to Gail
Goldman. However, the court observed that defendant’s expression of remorse on
that occasion was triggered by the television story concerning the crime, and that
he had shown no remorse immediately after the murders, but rather had grandly
purchased drugs for all of his housemates with the money he had stolen. The
circumstances of the crime—that defendant participated in the brutal murders of
his elderly victims to obtain money to buy drugs—was, the court stated, the most
significant aggravating factor.
Apparently, the court did neglect to direct the clerk to enter the reasons for
its ruling on the application in the minutes. However, the reporter’s transcript
provides an entirely adequate basis for review, and so it is not reasonably possible
that this failure to comply with a statutory directive prejudiced defendant.
11. Cumulative prejudice in penalty phase
Defendant contends the cumulative impact of errors in the penalty phase
compels reversal of the death penalty. We disagree.
55
III.
DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
56
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Dickey
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S025519
Date Filed: May 23, 2005
__________________________________________________________________________________
Court: Superior
County: Fresno
Judge: Ralph Nunez
__________________________________________________________________________________
Attorneys for Appellant:
James W. Haworth, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, Jean M. Marinovich and J. Robert Jibson, Deputy Attorneys General, for
Plaintiff and Respondent.
57
Counsel who argued in Supreme Court (not intended for publication with opinion):
James W. Haworth
220 Montgomery Street, Suite 1068
San Francisco, CA 94104
(415) 981-2424
J. Robert Jibson
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 445-6981
58
Opinion Information
| Date: | Docket Number: |
| Mon, 05/23/2005 | S025519 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Sacramento Office J. Robert Jibson, Supervising Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | The People (Respondent) Represented by Justain Riley Attorney General's Office P.O. Box 944255 Sacramento, CA |
| 3 | Dickey, Colin Raker (Appellant) San Quentin State Prison Represented by Kerry Bensinger Bensinger, Ritt, Tai & Thvedt 65 North Raymond Ave., Suite 320 Pasadena, CA |
| 4 | Dickey, Colin Raker (Appellant) San Quentin State Prison Represented by Elizabeth Elaine Piliavin-Godwin Attorney at Law 65 North Raymond Ave., Suite 320 Pasadena, CA |
| Disposition | |
| May 23 2005 | Opinion: Affirmed |
| Dockets | |
| Feb 27 1992 | Judgment of death |
| Mar 9 1992 | Filed certified copy of Judgment of Death Rendered 2-27-92. |
| Mar 23 1992 | Application for Extension of Time filed By Court Reporter Rudy Garcia to Complete R.T. |
| Mar 30 1992 | Extension of Time application Granted To 4-21-92 To Court Reporter To Complete R.T. |
| Apr 20 1992 | Application for Extension of Time filed By Court Reporter Rudy Garcia to Complete R.T. |
| Apr 27 1992 | Extension of Time application Granted To 5-21-92 To Court Reporter To Complete R.T. |
| May 22 1996 | Counsel appointment order filed James W. Haworth Is appointed to represent Applt on His A.A., Including Any Related Habeas Proceedings. |
| Jul 8 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 9 1996 | Extension of Time application Granted To Applt To 9-9-96 To request Corr. of Record. |
| Sep 6 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 9 1996 | Extension of Time application Granted To Applt To 10-9-96 To request Corr. of Record. |
| Oct 10 1996 | Received: Copy of Applt's request to correct, Augment, Settle Record & Examine Sealed Transcripts (14 Pp.) |
| Oct 16 1996 | Compensation awarded counsel |
| Jun 26 1997 | Compensation awarded counsel |
| Jul 2 1999 | Record on appeal filed C-22 (4,814 Pp.) and R-32 (5,689 Pp.) (Including Material Under Seal). Clerk's Transcript includes 3,678 pags of Juror Questionnaires. |
| Jul 2 1999 | Appellant's opening brief letter sent, due: 8-11-99. |
| Aug 9 1999 | Application for Extension of Time filed To file Aob. |
| Aug 13 1999 | Extension of Time application Granted To 9-10-99 To file AOB |
| Sep 10 1999 | Application for Extension of Time filed To file Aob. |
| Sep 14 1999 | Extension of Time application Granted To 10/12/99 To file Aob. |
| Oct 8 1999 | Application for Extension of Time filed To file Aob. |
| Oct 15 1999 | Extension of Time application Granted To 11/11/99 To file Aob. |
| Nov 10 1999 | Application for Extension of Time filed To file Aob. |
| Nov 12 1999 | Extension of Time application Granted To 12/13/99 To file Aob. |
| Dec 10 1999 | Application for Extension of Time filed To file Aob. |
| Dec 16 1999 | Extension of Time application Granted To 1/12/2000 To file Aob. |
| Jan 11 2000 | Application for Extension of Time filed To file Aob. |
| Jan 13 2000 | Extension of Time application Granted To 2/14/2000 To file Aob. |
| Feb 14 2000 | Application for Extension of Time filed To file Aob. |
| Feb 18 2000 | Extension of Time application Granted To 3/15/2000 To file Aob. |
| Mar 14 2000 | Application for Extension of Time filed To file Aob. |
| Mar 16 2000 | Extension of Time application Granted To 4/14/2000 To file Aob. |
| Apr 13 2000 | Application for Extension of Time filed To file Aob. |
| May 1 2000 | Filed: Suppl Declaration to Appl for Eot to file Aob. |
| May 2 2000 | Extension of Time application Granted To 5/15/2000 To file Aob. |
| May 12 2000 | Application for Extension of Time filed To file Aob. |
| May 16 2000 | Extension of Time application Granted To 6/14/2000 To file Aob. |
| Jun 14 2000 | Application for Extension of Time filed To file Aob. |
| Jun 22 2000 | Extension of Time application Granted To 7/14/2000 To file Aob. |
| Jul 17 2000 | Application for Extension of Time filed To file AOB (12th request). |
| Jul 24 2000 | Extension of Time application Granted To 8/14/2000 to file AOB. |
| Aug 15 2000 | Application for Extension of Time filed To file AOB. (13th request) |
| Aug 21 2000 | Extension of Time application Granted To 9/13/2000 to file AOB. |
| Sep 13 2000 | Application for Extension of Time filed To file AOB. (14th request) |
| Sep 13 2000 | Counsel's status report received (confidential) |
| Sep 18 2000 | Extension of Time application Granted To 10/13/2000 to file AOB. |
| Oct 13 2000 | Application for Extension of Time filed To file AOB. (15th request) |
| Oct 24 2000 | Extension of Time application Granted To 11/13/2000 to file AOB. |
| Nov 13 2000 | Application for Extension of Time filed To file AOB. (16th request) |
| Nov 17 2000 | Extension of Time application Granted to 12-13-2000 to file AOB. |
| Dec 13 2000 | Application for Extension of Time filed To file AOB. (17th request) |
| Dec 21 2000 | Extension of Time application Granted To 1/12/2001 to file AOB. |
| Jan 12 2001 | Application for Extension of Time filed To file AOB. (18th request) |
| Jan 17 2001 | Extension of Time application Granted To 2/13/2001 to file AOB. |
| Feb 13 2001 | Counsel's status report received (confidential) |
| Feb 13 2001 | Application for Extension of Time filed To file AOB. (19th request) |
| Feb 21 2001 | Extension of Time application Granted To 3/15/2001 to file AOB. |
| Mar 14 2001 | Application for Extension of Time filed To file AOB. (20th request) |
| Apr 13 2001 | Application for Extension of Time filed to file AOB. (21st request) |
| Apr 24 2001 | Extension of Time application Granted To 6/14/2001 to file AOB. No further extensions of time are contemplated. |
| Jun 13 2001 | Counsel's status report received (confidential) |
| Jun 13 2001 | Application for Extension of Time filed To file AOB. (22nd request) |
| Jun 25 2001 | Order filed: In light of attorney James W. Haworth's representation that he "anticipate[s] that the opening brief will be completed and ready for filing with the Court within the 60 day period" of time requested, applt's applic. for extension of time to file the AOB is extended to and including 8-13-2001. No further extensions of time will be granted. |
| Aug 10 2001 | Application for Extension of Time filed To file AOB. (23rd request) |
| Aug 20 2001 | Extension of Time application Granted In view of the circumstance that counsel requires additional time in order to complete changes to the draft brief as suggested by the California Appellate Project, applt's applic. for an extension of time to file AOB is granted to and including 8-28-2001. No further extensions of time will be granted. |
| Aug 27 2001 | Application for Extension of Time filed to file AOB. (24th request) |
| Aug 29 2001 | Extension of Time application Granted To 8/30/2001 to file AOB. |
| Aug 30 2001 | Filed: applt's application to file AOB in excess of 280 pp. |
| Aug 31 2001 | Order filed: granting applt's application to file AOB in excess of 280 pp. |
| Aug 31 2001 | Appellant's opening brief filed (340 pp.) |
| Sep 26 2001 | Application for Extension of Time filed To file resp. brief. (1st request) |
| Oct 3 2001 | Extension of Time application Granted To 10/31/2001 to file resp.'s brief. |
| Oct 24 2001 | Application for Extension of Time filed To file resp.'s brief. (2nd request) |
| Nov 5 2001 | Filed: Amended application for extension of time to file resp.'s brief. |
| Nov 9 2001 | Extension of Time application Granted To 12/31/2001 to file resp.'s brief. |
| Dec 27 2001 | Request for extension of time filed To file resp.'s brief. (3rd request) |
| Jan 9 2002 | Counsel's status report received (confidential) |
| Jan 9 2002 | Extension of time granted To 3/1/2002 to file resp.'s brief. Supervising Dep. AG Jibson anticipates filing the brief by 5/1/2002. Only one further extension totaling 60 additional days is contemplated. |
| Feb 22 2002 | Request for extension of time filed To file resp.'s brief. (4th request) |
| Mar 6 2002 | Extension of time granted To 5/1/2002 to file resp.'s brief. No further extensions of time are contemplated. |
| Mar 14 2002 | Counsel's status report received (confidential) (supplemental) from atty Haworth. |
| May 1 2002 | Respondent's brief filed (163 pp.) |
| May 29 2002 | Change of Address filed for: Applt. counsel James W. Haworth. |
| May 29 2002 | Request for extension of time filed To file reply brief. (1st request) |
| May 29 2002 | Counsel's status report received (confidential) from atty Haworth. |
| Jun 3 2002 | Extension of time granted To 6/20/2002 to file reply brief. |
| Jun 20 2002 | Request for extension of time filed To file applt.'s reply brief. (2nd request) |
| Jun 24 2002 | Filed: Suppl. declaration in support of request for extension of time. |
| Jun 27 2002 | Extension of time granted To 7/19/2002 to file applt.'s reply brief. Counsel anticipates filing that brief by 8/19/2002. One further extension totaling 31 additional days is contemplated. |
| Jul 18 2002 | Request for extension of time filed To file applt.'s reply brief. (3rd request) |
| Jul 22 2002 | Extension of time granted To 8/19/2002 to file applt.'s reply brief. Counsel anticipates filing that brief by 8/19/2002. No further extension is contemplated. |
| Aug 16 2002 | Request for extension of time filed To file appellant's reply brief. (4th request) |
| Aug 20 2002 | Extension of time granted to 9-18-2002 to file reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Haworth's representation that he anticipates filing the brief by 9-18-2002. |
| Sep 17 2002 | Request for extension of time filed To file appellant's reply brief. (5th request) |
| Sep 19 2002 | Extension of time granted To 10/3/2002 to file appellant's reply brief. Extension is granted based upon counsel James W. Haworth's representation that he anticipates filing that brief by 10/3/2002. After that date, no further extension will be granted. |
| Oct 2 2002 | Request for extension of time filed To file appellant's reply brief. (6th request) |
| Oct 7 2002 | Extension of time granted To 10/11/2002 to file appellant's reply brief. Extension is granted based upon counsel James W. Haworth's representation that he anticipates filing that brief by 10/11/2002. After that date, no further extension will be granted. |
| Oct 15 2002 | Appellant's reply brief filed (93 pp. - pursuant to rule 40(k)) |
| Apr 7 2003 | Counsel's status report received (confidential) |
| Apr 14 2003 | Related habeas corpus petition filed (concurrent) (No. S115079) |
| Apr 21 2003 | Filed: Declaration of attorney James W. Haworth (confidential). |
| May 14 2003 | Compensation awarded counsel Atty Haworth |
| Mar 17 2004 | Filed: Declaration of attorney James W. Haworth (confidential). |
| Apr 9 2004 | Compensation awarded counsel Atty Haworth |
| Sep 9 2004 | Exhibits requested People's 34, 35, 37, 39 and 40. |
| Sep 22 2004 | Exhibit(s) lodged People's 34, 35, 37, 39 and 40. |
| Dec 30 2004 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the February calendar, to be held the week of February 7, 2005, in Sacramento. 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 9 2005 | Case ordered on calendar 3/9/05 @9am, S.F. |
| Feb 18 2005 | Filed letter from: Attorney James W. Haworth, dated 2/18/2005, re focus issues for oral argument. |
| Feb 18 2005 | Received: Request from attorney James W. Haworth for 45 minutes for oral argument. |
| Feb 22 2005 | Filed letter from: respondent, dated 2/17/2005, re focus issues for oral argument. |
| Feb 25 2005 | Filed: Appellant's request for permission to file supplemental points and authorities. (19 pp. supplemental authorities received under separate cover) |
| Feb 28 2005 | Received: letter from respondent, dated 2/24/2005, re additional authorities for oral argument. |
| Mar 1 2005 | Order filed Appellant's request for permission to file supplemental points and authorities is granted. Any response is to be served and filed on or before 3/4/2005. |
| Mar 1 2005 | Filed: Appellant's supplemental points and authorities. (19 pp.) |
| Mar 4 2005 | Filed: respondent's response to appellant's supplemental points and authorities. (3 pp.) |
| Mar 9 2005 | Cause argued and submitted |
| Mar 18 2005 | Exhibit(s) lodged Defendant's exhibits, nos.: 3, 4, 5, 6,and 7. |
| Mar 23 2005 | Compensation awarded counsel Atty Haworth |
| May 23 2005 | Opinion filed: Judgment affirmed in full Opinion by Brown, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, & Moreno, JJ. |
| Jun 9 2005 | Rehearing petition filed by appellant (11,534 words; 46 pp.) [rule 40.1(b)] |
| Jun 13 2005 | Time extended to consider modification or rehearing The time for granting or denying rehearing is extended to and including 8-19-2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jul 13 2005 | Rehearing denied George, C.J., was absent and did not participate. |
| Jul 13 2005 | Remittitur issued (AA) |
| Jul 14 2005 | Exhibit(s) returned People's 34, 35, 37, 39 and 40; Defendant's 3, 4, 5, 6 and 7. |
| Jul 22 2005 | Received: Acknowledgment of receipt of remittitur. |
| Jul 25 2005 | Received: Acknowledgment of receipt of exhibits. |
| Jul 26 2005 | Order filed (150 day statement) |
| Aug 31 2005 | Change of contact information filed for: attorney James W. Haworth. |
| Oct 6 2005 | Received: letter from U.S.S.C., dated 10/3/2005, advising extension of time to and including 11/2/2005 to file cert petition. |
| Nov 14 2005 | Received: letter from USSC, dated 11-8-2005, advising that cert petition was filed on 11-2-2005, and placed on the docket 11-18-2005 as No. 05-7421. |
| Feb 21 2006 | Certiorari denied by U.S. Supreme Court |
| Jul 18 2008 | Related habeas corpus petition filed (post-judgment) (No. S165302) |
| Aug 15 2008 | Motion to withdraw as counsel filed Motion to withdraw as counsel of record, filed by attorney James Haworth. |
| Aug 15 2008 | Motion for appointment of counsel filed Motion for appointment as counsel of record (filed by attorney Kerry R. Bensinger). |
| Aug 15 2008 | Filed: supplemental proof of service for motion for appointment of counsel. |
| Aug 15 2008 | Motion for appointment of counsel filed Motion for appointment as associate counsel of record (filed by attorney by Elizabeth Piliavin-Godwin) |
| Aug 27 2008 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for condemned prisoner Colin Raker Dickey, filed August 15, 2008, is granted. The order appointing James W. Haworth as counsel of record for condemned prisoner Colin Raker Dickey, filed May 22, 1996, is hereby vacated. Kerry R. Bensinger and Elizabeth Piliavin-Godwin are hereby appointed as lead and associate counsel of record, respectively, for condemned prisoner Colin Raker Dickey. Counsel are appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. |
| Nov 12 2008 | Compensation awarded counsel Atty Bensinger |
| Dec 23 2008 | Compensation awarded counsel California Appellate Project - SF |
| Dec 23 2008 | Compensation awarded counsel Atty Haworth |
| Briefs | |
| Aug 31 2001 | Appellant's opening brief filed |
| May 1 2002 | Respondent's brief filed |
| Oct 15 2002 | Appellant's reply brief filed |
