Supreme Court of California Justia
Citation 46 Cal. 4th 731, 209 P.3d 1, 95 Cal. Rptr. 3d 78
People v. Dykes

Filed 6/15/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S050851

v.

EARNEST EDWARD DYKES, JR.,

Alameda County

Defendant and Appellant.

Super. Ct. No. 118376



Defendant Earnest Edward Dykes appeals from a judgment of the Alameda

County Superior Court imposing a sentence of death following his conviction of

the first degree murder of Lance Clark (Pen. Code, § 187, subd. (a)),1 one count of

attempted murder (§§ 664, 189), and one count of robbery (§ 211), both involving

Bernice Clark. In connection with each count, the jury found true an allegation

that defendant personally used a firearm. (§ 12022.5.) With respect to the charge

of attempted murder, the jury found not true an allegation that the attempted

murder had been willful, deliberate, and premeditated. (§§ 189, 664, subd. (a).)

In connection with the attempted murder and robbery counts, the jury found true

the allegations that the victim suffered great bodily injury and that she was a

victim age 70 years or older. (§ 12022.7, subd. (c).) The jury found true a

robbery-murder special-circumstance allegation. (§ 190.2, subd. (a)(17)(A).) At


1

Statutory references are to the Penal Code unless otherwise indicated.

1

the penalty phase of the trial the jury determined that the punishment should be

death. The trial court imposed a sentence of death and imposed sentence on the

noncapital offenses. Defendant‟s appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase Evidence

Bernice Clark owned an apartment building in Oakland. During a period of

unemployment, defendant, who was 20 years of age, resided for several months

with his mother in one of the apartments in Bernice‟s building. The apartment

defendant shared with his mother overlooked the rear parking lot of the building.

Tenants, including defendant, were aware that Bernice carried ample cash

with her on her frequent visits to the apartment building. On her visits, Bernice

cashed checks for tenants and lent them money; she had cashed a check for

defendant. Indeed, another tenant, LaCondra Douglas, had warned Bernice not to

carry cash with her. Douglas testified that defendant had expressed an intent to

rob Bernice prior to the commission of the charged crimes. Tenants testified that

they had observed Lance Clark, the murder victim, who was Bernice‟s young

grandson, accompanying Bernice on her rounds on multiple occasions.

In November 1992, defendant acquired a .45-caliber revolver. Bianca

Rodriguez, then his girlfriend, testified that at his request she gave him the money

with which to purchase the weapon. Douglas testified that about two months prior

to the commission of the charged crimes, she sold defendant approximately 20

bullets for his handgun.

On the afternoon of July 26, 1993, Bernice, who was then 70 years of age,

and her grandson Lance, then nine years of age, drove to the rear parking lot of the

apartment building, where she consulted with her handyman. Bernice testified

2
that she was approached by one of her tenants, Edward Tyson, who asked to

borrow $20. She agreed, and while he was signing a receipt, a man approached

wearing a stocking mask. The man placed a dark object against her head. She

recognized the man as defendant and told him that he looked like one of her

tenants. She heard a shot, then defendant said something about money or a

holdup, and she recalled a struggle over her wallet. She heard only one shot, but

her recollection of the crime was confused, and she was unable to hear well after

the weapon discharged.

Tyson testified that on the afternoon of July 26, 1993, Bernice agreed to

lend him $20. He heard her drive to the rear parking lot and approached her as she

sat in the driver‟s seat with the door open. Tyson observed Lance seated in the

passenger seat of the vehicle. As Tyson signed a receipt, a man approached

wearing a light-colored hooded sweatshirt. He had a woman‟s nylon stocking

over his head. The man demanded money of Tyson, but Tyson backed away and

denied he had any. Tyson witnessed the man point his weapon at Bernice and

demand money. Tyson heard Bernice inform the man that he resembled one of

her tenants named Earnest. Tyson fled, and as he passed a gap in the fence he

heard a firearm “dry fire.” He subsequently heard two shots in quick succession,

the first followed by a sound of breaking glass. After an interval he heard a third

shot. He heard the robber continue to demand money after the first shot.

Alphonso Odom, who had been staying for several months with a resident

of the apartment building located next to the one owned by Bernice, testified that

he was acquainted with defendant and with Bernice. Odom observed defendant in

front of the apartment building a few minutes prior to the shooting. Defendant

was wearing a grey hooded sweatshirt and green or blue acid-washed jeans.

Odom observed Bernice drive with her grandson to the rear of the apartment

building. Shortly thereafter, Odom heard two shots and witnessed the second shot

3
being fired as he stood on his apartment balcony. He observed defendant standing

by Bernice‟s vehicle holding a firearm and wearing a gray sweatshirt and green or

blue acid-washed jeans. He heard the sound of breaking glass after the second

shot, and observed defendant flee over the back fence.

Odom ran from his apartment to the scene of the shooting, joining Tyson,

who had returned after initially fleeing. They observed Lance slumped over in the

automobile. Bernice‟s neck was bleeding. Lance had been shot and soon stopped

breathing. Emergency medical personnel were unable to revive him.

Tyson remained at the scene, while Odom returned to his apartment. Tyson

gave a statement to the police, picked defendant‟s photograph from a photo lineup,

and reported that the robber‟s voice sounded like defendant‟s. Odom, on the other

hand, did not contact the police concerning his knowledge of the crime until after

he was arrested on unrelated charges a few days subsequent to the commission of

the charged offenses. He hoped for leniency in return for information he was able

to provide. His testimony was impeached with prior felony convictions.

Defendant changed his attire and returned to the scene of the shooting.

There he spoke with a police officer, stating that he had observed Tyson speaking

with Bernice as she sat in her vehicle and that as he crossed the parking lot he

heard shots. An unidentified, armed Black male wearing jeans and a white hooded

sweatshirt ran past him and fled over the back fence. The officer testified that

defendant appeared composed and was not intoxicated. Odom overheard some of

this discussion, reporting that defendant told the officer, “that‟s messed up. The

dude ran right by me.”

In the afternoon or evening of July 26, 1993, Odom lent his bicycle to

defendant. When defendant returned with some beer, defendant said to Odom,

“that was f‟d up, you know, what happened.” Odom agreed and said he knew

4
defendant was responsible for the shooting. Odom testified that defendant

admitted he was the culprit and said, “man, I didn‟t mean it to go down like that.”

Lance was killed by a single gunshot that passed through his body from his

left chest, exiting on the lower right side of his back. There was a large entry

wound, indicating the same bullet had passed through Bernice‟s neck before it

struck Lance. The forensic pathologist, Dr. Paul Hermann, was unable to

determine with certainty Lance‟s position when he was shot, but the pathologist

believed Lance had been leaning to the left. Bernice received an injury to her neck

but survived.

An examination of Bernice‟s automobile produced a bullet lodged inside

the rear door on the passenger side. The impact of the bullet had shattered the

door‟s window. Another bullet later was discovered in the front passenger floor

area.

Dr. Lansing Lee, a firearms expert, testified that the bullets discovered in

Bernice‟s vehicle were for a .45-caliber semiautomatic pistol. Although the

ammunition was manufactured for a semiautomatic weapon, it also could be fired

by a certain vintage Colt .45-caliber revolver. Such a weapon could be fired by

single action if the shooter pulled back the hammer using two pounds of pressure.

The weapon also could be fired without pulling back the hammer, but would

require at least eight pounds of pressure to fire.

Sergeant Madarang of the Oakland Police Department was interviewing

Tyson at the police station on the day of the crime when he received a telephone

call from someone who would identify herself only as Connie, stating that she had

sold defendant some bullets a few days preceding the crime, and that defendant

had told her he planned to rob Bernice. In her own testimony, LaCondra Douglas

would admit only that she placed an anonymous call to the police on that date,

denying she had reported that defendant had purchased ammunition from her.

5
On August 7, 1993, defendant telephoned the Oakland Police Department,

stating he “want[ed] to know if I shot somebody.” He mentioned Bernice and

provided his location, but denied responsibility for the crime. He was arrested and

transported to the police department for interrogation. Arresting officers directed

him not to speak while he was being transported, but he did so in a rambling

manner, wondering how he could be identified and stating he would not commit

anything like the charged crimes. Once defendant arrived at the police station, he

was advised of his constitutional rights and interrogated by Officers Chenault and

Madarang. During two hours of questioning, he denied responsibility for the

crime. He reported that he had heard the shots because he had been walking

through the parking lot on his way to purchase beer, and repeated his story of

having witnessed an unidentified Black male flee from the scene. Ultimately the

officers confronted him with evidence in their possession, including statements of

eyewitnesses. Defendant became distressed and admitted involvement in the

shooting. The unrecorded statement reflected the circumstance that he was aware

prior to the shooting that Lance was in the vehicle.

Defendant subsequently made two tape-recorded statements. These were

played for the jury. In the first statement, he explained that his family expected

more of him than he was able to deliver and that he needed money to attend Laney

Community College. He observed Bernice from the rear of his apartment and

decided to rob her. He approached the vehicle and demanded money. She did not

respond quickly, so he unsuccessfully attempted to fire a warning shot, and on the

second attempt fired a shot to the rear of the vehicle, intending to destroy the rear

window. Bernice said “don‟t be silly, child” and told him to take the money from

her wallet but leave the cards. He had one hand on the wallet and the other hand,

which was holding his firearm, on the headrest of the driver‟s seat. During the

struggle over the wallet, the weapon fired accidentally. He claimed he had not

6
observed Lance in the vehicle. He departed from the scene, changed his clothes,

and returned to the apartment building to see what was happening. He

subsequently threw the murder weapon, a .45-caliber Colt service revolver

manufactured in 1917, into the Oakland Estuary. He stated he had drunk four cans

of Olde English 800 malt liquor prior to committing the crime and one afterwards,

but in his statement he informed the police he was not under the influence of

alcohol when he committed the crime. Defendant sobbed during the recorded

statements and reiterated “I didn‟t mean for it to go down like that. I‟m no killer.”

He informed the officers he had spent two weeks following his commission of the

crime drinking alcohol and using marijuana, feeling that his world was coming to

an end. After his father notified him he had been mentioned in the newspaper as a

suspect in the crime, he telephoned the police department.

Defendant testified on his own behalf at trial, giving substantially the same

narrative he had given in his taped statements. He testified he had spent the

afternoon preceding the crime applying for employment, and then returned home

and performed household chores. When he observed Bernice drive into the rear

parking lot of the building, he formed the intent to rob her. He retrieved his

loaded firearm, and then took some stockings from his mother‟s room to wear as a

mask. Donning jeans over his shorts and pulling the hood of his sweatshirt over

his head to disguise himself from Bernice, he proceeded to the parking lot and

confronted Bernice without ever observing Lance in her vehicle. He demanded

her money. She said, “Don‟t be stupid, child.” When she hesitated, he attempted

to fire his weapon, but failed. A second attempt resulted in a warning shot aimed

at the rear of the vehicle. Bernice tried to remove the cash from her wallet, but

defendant grabbed the wallet.

In his trial testimony, defendant claimed for the first time that after he fired

the warning shot, LaCondra Douglas‟s boyfriend drove into the parking lot and

7
defendant became flustered and rushed, leading to the accidental firing of the

weapon during his struggle with Bernice over her wallet. He denied intending to

shoot Bernice or injure her. He seized the cash from the wallet and fled through a

gap in the rear fence, wondering whether he really had shot Bernice. He changed

his clothing, found a hiding place for his firearm, purchased some beer, and

shortly thereafter returned to the parking lot to find out what had transpired. He

lied to the police, trying to offer a description of the shooter that “somewhat”

matched his own appearance, in case he had been observed during the shooting.

He subsequently disposed of his weapon and spent the ensuing days in a state of

intoxication, “trying to forget.” He testified that he “was just doing stuff like [he]

felt this was [his] last days on earth or something.” After discussion with his

father, he telephoned the police department to determine whether there was a

warrant for his arrest. During the initial stage of his interrogation, he had denied

responsibility for the crimes because he was frightened.

In the course of his testimony, defendant denied that his girlfriend had

given him the money to buy the firearm and claimed that LaCondra Douglas had

provided him with the ammunition free of charge, months prior to the crime. He

testified he had test-fired the weapon and found its firing unpredictable.

Defendant testified he had observed Lance accompanying Bernice on only one

occasion. Defendant denied he had stated prior to committing the crime that he

intended to rob Bernice, claiming he merely had been present when other tenants

discussed robbing her. He acknowledged he was on probation for illegal

possession of a firearm at the time he committed the crime and knew he should not

be armed, but he claimed he needed a weapon to protect himself from the drug

dealers who trafficked in his neighborhood.

8
B. Penalty Phase Evidence

Penalty phase evidence introduced by the prosecution included testimony

from Bernice, Lance‟s sister Kristie, and Lance‟s elementary school teacher. They

described how they had learned of Lance‟s death and described the impact of his

death upon them. Bernice recounted the difficult course of her recovery from her

physical injuries.

Oakland Police Officer Rand Monda described the circumstances of

defendant‟s prior illegal possession of a loaded, concealed firearm.

Defendant‟s mother, father, sister, brother, and aunt testified on his behalf,

describing their love for him and their hope that he would be granted a sentence of

life imprisonment.

II. DISCUSSION

A. Asserted Errors Affecting the Guilt Phase of Trial



1. Denial of motion to exclude statements

Defendant claims statements he made to the police and the deputy district

attorney at the police station following his arrest were obtained in violation of

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), because the police failed to

honor his asserted unequivocal request for counsel. He also contends he made

these statements involuntarily. Finally, he challenges as involuntary the

statements he made in the police vehicle as he was being transported to the police

station after his arrest. Defendant argues that the trial court‟s failure to suppress

the statements constituted a violation of rights secured by the Fifth Amendment to

the United States Constitution and requires reversal of his conviction and sentence

of death.



a. Factual background

At the in limine hearing on defendant‟s motion to exclude his statements

from evidence, the parties presented starkly contrasting accounts of defendant‟s

9
interactions with arresting officers Grier and Fritz, and his interviews with

Sergeants Madarang and Chenault.

On August 7, 1993, defendant telephoned a police dispatcher to inquire

about his potential responsibility for the charged crimes. Officer Fritz arrived to

arrest him. Fritz placed defendant in his patrol car, advised him that he was under

arrest on suspicion of murder, and directed him not to ask questions concerning

the case. Fritz did not advise defendant of his Miranda rights or pose any

questions. Defendant began to talk, inquiring how he had been identified and

remarking that he had not been in trouble recently. Fritz then asked Officer Keller

to join him in the police vehicle. Fritz again informed defendant that he should

not inquire about the charges or make any statements. Defendant nonetheless

continued to speak, again questioning who had identified him and inquiring, “are

you sure it‟s me?” After approximately 10 minutes, Officer Keller exited from the

vehicle and Fritz drove defendant to the police station, arriving at approximately

10 a.m.

Defendant was placed in an interview room and was offered food, drink,

and cigarettes. Sergeant Madarang, the primary investigating officer, was at that

time in Sacramento. He returned to Oakland, entering the interrogation room with

his partner, Sergeant Chenault, at approximately 12:20 p.m. He asked defendant

some preliminary questions. Sergeant Madarang then read defendant the full

Miranda advisements directly from a printed form, which defendant initialed.

Defendant agreed to speak with the officers. Over the next hour and a half, he

denied any responsibility for the shooting and claimed to have been merely a

witness. At approximately 2:00 p.m., the officers took a break, offering defendant

refreshment and a bathroom break. They returned for further interrogation at

approximately 3:30 p.m. Defendant continued for approximately an hour to deny

guilt. The detectives informed defendant that witnesses had identified him as the

10
shooter, and challenged him with the evidence they had gathered against him.

Defendant became emotional and stated he wished to explain what really

happened. At approximately 4:45 p.m., defendant confessed to the crime,

explaining he decided to rob the victim because he was under financial pressure

from his family.

Sergeant Madarang subsequently initiated a tape-recorded interview in

which defendant again confessed. Defendant acknowledged he had been advised

of his rights when the officers first arrived to question him. Sergeant Madarang

again read the Miranda advisements to defendant. After confirming that his

initials were on the Miranda form, defendant stated he understood his rights and

wished to speak with the detectives. At the end of the tape-recorded interview,

defendant confirmed he was not promised anything or threatened in any way.

After the tape-recorded interview with Sergeant Madarang, defendant

participated in another tape-recorded interview with Deputy District Attorney

O‟Connor, again confessing to the murder. At the beginning of this second

interview, defendant confirmed that he already had spoken to the officers, that he

had done so freely and voluntarily, and that the officers had read the Miranda

advisements to him. After the deputy district attorney again read defendant the

Miranda advisements, defendant initialed a second Miranda form and stated he

understood his rights and, having those rights in mind, wanted to speak.

Defendant testified at the hearing that he had telephoned the police because

he had read a newspaper article about the shooting. According to defendant, he

made no requests for action on the part of the police department, but was informed

an investigator would arrive to speak with him. He was placed in the patrol car.

He inquired whether the officers had a warrant, but said nothing else. After his

arrest he waited two to three hours in a small room at the police station before

being interviewed by the officers.

11
Defendant claimed that when the officers began to interrogate him, they

failed to advise him of his rights. He claimed he requested counsel, but was

informed “there isn‟t one right now, but we‟ll get one for you,” and the

interrogation continued. According to defendant, the officers accused him of

committing the murder, stated he could not make a statement later if he waited for

a lawyer, threatened him with not seeing his girlfriend unless he told the truth, and

informed him the matter was not sufficiently serious to warrant a judgment of

death. Defendant testified the police informed him that a truthful confession

would be beneficial to him and result in imprisonment only for a few years, and

advised him that if he did not tell the truth then, his statement would constitute

damaging evidence when he was brought before a court and at trial. According

to defendant, he again requested counsel and to telephone his parents. Defendant

testified he confessed only after the officers ignored his requests for counsel,

asserted that they had witnesses against him, stated that he would have no

opportunity to make a statement later, and patted him on the shoulder urging him

to confess. On cross-examination, defendant acknowledged that he had been

offered food and drink throughout the interviews, that he had been advised of his

constitutional rights in past unrelated matters, that he knew he could speak with a

lawyer, and that on prior occasions he had been arrested and had refused to talk to

the police.

Sergeants Madarang and Chenault testified that defendant did not request to

speak with an attorney during their interrogations. They denied defendant‟s other

assertions. The officers denied threatening or making promises to defendant to

persuade him to confess. They denied having discussed the death penalty or

offered benefits in exchange for the confession. The officers did not say it would

“make a difference” to the court or the prosecution if defendant told the truth.

They did not threaten defendant would not see his parents or girlfriend unless he

12
confessed, nor did they inform him that if he confessed he would be subject to

imprisonment for only a few years. Sergeant Madarang denied patting defendant

on the shoulder. Madarang testified that throughout the interviews, the officers

provided defendant with soft drinks and with cigarettes at his request, allowed him

to use the restroom, and offered him food.

In argument on the motion, the prosecutor stressed defendant‟s written and

recorded acknowledgements that he had been advised of his rights in a timely

manner. Defense counsel did not seriously contest the Miranda issue, stating in

response to the prosecutor‟s argument: “I think the issue is not whether or not he

was properly admonished. I believe that the timing — you know, I see no reason

to disbelieve, frankly, the time of that.” Instead, defense counsel argued: “The

issue is whether or not he was told it was a capital offense, whether he was told

things would be better for him.”

The trial court denied the motion to suppress and admitted defendant‟s

statements, accepting the officers‟ version of the events as true and concluding

that defendant properly was advised of and waived his Miranda rights. The court

made a finding that Sergeants Madarang and Chenault were credible witnesses,

based on “the content of their testimony” and the court‟s “personal observations of

their demeanor as they testified.” The court concluded it was established beyond a

reasonable doubt that defendant had received timely admonitions and knowingly

and intelligently had waived his rights. The court further found, beyond a

reasonable doubt, that defendant‟s statements “were freely and voluntarily given.”

Specifically, the trial court concluded “that there [were] no circumstances of

coercion or force, and that the totality of the circumstances indicate[d] that these

statements were voluntarily given.” With respect to the statements made to the

deputy district attorney, the trial court reached the same conclusions, finding

beyond a reasonable doubt that defendant was “appropriately and in a timely

13
fashion advised . . . of his constitutional rights, and . . . freely and voluntarily

waived those rights.”



b. Defendant‟s challenge to the admissibility of his confessions

Defendant asserts his initial confession to Sergeants Madarang and

Chenault was obtained in violation of Miranda because it was elicited from him

after his unequivocal request for counsel. Defendant also asserts his second

confession to Deputy District Attorney O‟Connor was the tainted product of his

initial confession. We conclude the trial court properly denied defendant‟s motion

to suppress these two confessions.

Pursuant to Miranda, supra, 384 U.S. 436, “a suspect [may] not be

subjected to custodial interrogation unless he or she knowingly and intelligently

has waived the right to remain silent, to the presence of an attorney, and, if

indigent, to appointed counsel.” (People v. Cunningham (2001) 25 Cal.4th 926,

992; see also People v. Rundle (2008) 43 Cal.4th 76, 114, disapproved on another

ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) After a knowing

and voluntary waiver, interrogation may proceed “ „until and unless the suspect

clearly requests an attorney.‟ ” (People v. Gonzalez (2005) 34 Cal.4th 1111,

1124.) The prosecution bears the burden of demonstrating the validity of the

defendant‟s waiver by a preponderance of the evidence. (People v. Bradford

(1994) 14 Cal.4th 1005, 1034, citing Colorado v. Connelly (1986) 479 U.S. 157,

168.)

In considering a claim on appeal that a statement or confession is

inadmissible because it was obtained in violation of a defendant‟s Miranda rights,

we “review independently the trial court‟s legal determinations . . . . We evaluate

the trial court‟s factual findings regarding the circumstances surrounding the

defendant‟s statements and waivers and „ “accept the trial court‟s resolution of

14
disputed facts and inferences, and its evaluations of credibility, if supported by

substantial evidence.” ‟ ” (People v. Rundle, supra, 43 Cal.4th at p. 115.)

The trial court in the present case was aware that the prosecution‟s burden

was to establish the validity of defendant‟s waiver by a preponderance of the

evidence but, apparently to demonstrate its confidence in its conclusion, applied

the stricter beyond a reasonable doubt standard. The court stressed that it credited

the officers who testified that defendant was advised of his Miranda rights in a

timely manner and that he never requested counsel. The two tape-recorded

interviews, the first with the officers and the second with the deputy district

attorney, further corroborate the officers‟ version of the events. In the tape-

recorded interviews, defendant acknowledged that he had been advised of his

rights at the commencement of the prior interrogation, that he initialed the waiver

form, and that he wished to speak to the authorities. We accept the trial court‟s

resolution of the factual dispute that existed between the defense and the

prosecution witnesses, along with its credibility determination, because both

findings were amply supported by the evidence.

Defendant‟s attack on the credibility of all of the police officers,

unsupported by the record of the suppression hearing, is insufficient to provide a

basis for rejecting the trial court‟s findings. Defendant urges that the very

comprehensiveness of the officers‟ denials that they urged defendant to confess

undermines the officers‟ credibility. We are persuaded, however, that the trial

court‟s determination that the officers were credible witnesses is supported by

substantial evidence. In sum, defendant‟s Miranda claim lacks merit. Having

concluded that defendant‟s initial confession to the officers was not obtained in

violation of Miranda, we reject defendant‟s related claim that his second

confession to the deputy district attorney was the tainted product of his initial

confession.

15
Defendant also challenges the admission of the statements on the ground

they were involuntary. Any involuntary statement obtained by a law enforcement

officer from a criminal suspect by coercion is inadmissible pursuant to the

Fourteenth Amendment to the federal Constitution and article I, section 7 of the

California Constitution. (People v. Sapp (2003) 31 Cal.4th 240, 267; People v.

Neal (2003) 31 Cal.4th 63, 67.) To determine the voluntariness of a confession,

courts examine “ „whether a defendant‟s will was overborne‟ by the circumstances

surrounding the giving of a confession.” (Dickerson v. United States (2000) 530

U.S. 428, 434.) In making this determination, courts apply a “totality of the

circumstances” test, looking at the nature of the interrogation and the

circumstances relating to the particular defendant. (People v. Haley (2004) 34

Cal.4th 283, 298; People v. Massie (1999) 19 Cal.4th 550, 576.) With respect to

the interrogation, among the factors to be considered are “ „ “the crucial element

of police coercion [citation]; the length of the interrogation [citation]; its location

[citation]; its continuity . . . .” ‟ ” People v. Massie, supra, 19 Cal.4th at p. 576.)

With respect to the defendant, the relevant factors are “ „ “the defendant‟s maturity

[citation]; education [citation]; physical condition [citation]; and mental

health.” ‟ ” (Ibid.) “A statement is involuntary [citation] when, among other

circumstances, it „was “ „extracted by any sort of threats . . . , [or] obtained by any

direct or implied promises . . . .‟ ” ‟ ” (People v. Neal, supra, 31 Cal.4th at p. 79.)

As with Miranda claims, the trial court‟s legal conclusion as to the

voluntariness of a confession is subject to independent review on appeal. (People

v. Haley, supra, 34 Cal.4th at p. 298; People v. Massie, supra, 19 Cal.4th at

p. 576.) The trial court‟s resolution of disputed facts and inferences, its evaluation

of credibility, and its findings as to the circumstances surrounding the confession

are upheld if supported by substantial evidence. (People v. Haley, supra, 34

Cal.4th at p. 298; People v. Massie, supra, 19 Cal.4th at p. 576.) The state bears

16
the burden of proving the voluntariness of a confession by a preponderance of the

evidence. (People v. Haley, supra, 34 Cal.4th at p. 298.)

In the present case, again applying the beyond a reasonable doubt standard,

the trial court concluded that “there [were] no circumstances of coercion or force,

and that the totality of the circumstances indicates that these statements were

voluntarily given.” The interrogating officers specifically denied defendant‟s

claims, including that they offered him benefits for confessing, issued threats, or

misled him concerning the potential punishment he faced. The trial court credited

the officers‟ testimony, and its credibility determination is supported by

substantial evidence.

Under all the circumstances, we agree with the trial court that defendant‟s

statements were made voluntarily. Although defendant was required to wait

approximately two hours before the interrogation began, the delay was not the

result of improper police conduct. Rather, it arose because the police had not

planned to arrest or interview defendant prior to his own telephone call to the

police; Sergeant Madarang, the lead investigator, was in Sacramento and was

required to travel to Oakland to interview defendant. During defendant‟s

interrogation, the officers provided defendant with soft drinks and cigarettes,

allowed him to use the restroom, and offered him food. Most important, as the

trial court found, the officers did not engage in any impermissibly coercive tactics

in procuring defendant‟s confession.

Defendant contends his own unbalanced mental state rendered him

susceptible to coercion. His claim that he was mentally disturbed is based

primarily upon the circumstance that he telephoned the police dispatcher and that

he spoke in a rambling manner in the police vehicle while being transported to the

police station. This conduct, however, may be explained by the stress and emotion

felt by defendant after recognizing that he would face responsibility for the crime.

17
In any event, his own vulnerability does not demonstrate official coercion.

“Insofar as a defendant‟s claims of involuntariness emphasize that defendant‟s

particular psychological state rendered him open to coercion, this court has noted

that „[t]he Fifth Amendment is not “concerned with moral and psychological

pressures to confess emanating from sources other than official coercion.” ‟ ”

(People v. Smith (2007) 40 Cal.4th 483, 502, italics added.) Although defendant

may have felt vulnerable, there is no indication of police coercion during his initial

contacts with the police or during the subsequent interrogations. Similarly,

although defendant claims his decision to confess was based upon his youth and

his absence of experience with the criminal justice system, there was no indication

of police exploitation of these circumstances. On the contrary, during his tape-

recorded interviews, defendant expressly stated that he was speaking freely and

voluntarily.

Consequently, the trial court properly concluded that defendant‟s

confession was made voluntarily.



c. Defendant‟s challenge to statements he made in the patrol
car

Defendant contends his spontaneous statements made en route to the police

station on August 7, 1993 were similarly involuntary because he was mentally

disturbed at the time he made the statements.

In response to an ambiguous challenge to the voluntariness of statements

defendant made in Officer Fritz‟s patrol vehicle, the trial court found that these

statements “were freely and voluntarily given.” In addition, according to the trial

court, although defendant was not given Miranda advisements, his statements

were made spontaneously and “were not the product of custodial interrogation.”

Accordingly, the trial court concluded that these spontaneous statements were

admissible. The trial court also stated that based upon its personal observation of

18
Officer Fritz as he testified, it found that the officer was “a believable and credible

witness.”

Defendant again contends his unbalanced mental state is evidenced by his

conduct in contacting the police and in his repetitive and rambling statements

made while he was seated in Officer Fritz‟s patrol car. Fritz did not describe

defendant‟s statements as rambling or incoherent. Defendant himself testified that

he said nothing at all in the patrol car, whether rambling or otherwise, other than

to inquire whether the officers had a warrant. Fritz credibly testified that he did

nothing more than sit and listen to defendant. There is no evidence of any official

coercion or of exploitation of defendant‟s youth or asserted inexperience.

Defendant‟s claimed psychological vulnerabilities do not suggest his statements

were involuntary. (See People v. Leonard (2007) 40 Cal. 4th 1370, 1403; People

v. Smith, supra, 40 Cal.4th at p. 502.) Accordingly, we conclude that the trial

court properly denied defendant‟s motion to suppress the statements defendant

made in the police car.



2. Prior consistent statements

Defendant contends that the trial court erred by permitting the prosecutor to

enhance the credibility of prosecution witness Alphonso Odom through the

admission of Odom‟s prior consistent statements. Defendant claims in essence

that these prior out-of-court statements constituted hearsay and were not made

admissible by Evidence Code section 791, subdivision (b). In pertinent part, that

provision limits the admission of a prior out-of-court statement to circumstances in

which there has been an express or implied charge that the witness is fabricating or

is influenced by bias or other improper motive, and the statement was made before

any potential bias or motive to lie arose. Defendant points out that the defense had

not yet impeached Odom when the statements were admitted, and he claims that,

19
in any event, Odom already had a motive to fabricate when he made the prior

statements.

This claim arises in the following factual setting. At trial, Odom recounted

his observations on the day the crimes were committed. He testified he was

present at his home that afternoon. He resided in the apartment building next to

the building in which defendant resided. He observed defendant, wearing

distinctive clothing, standing near the mail box area of his own apartment

building. From the vantage point of his apartment balcony, Odom observed

defendant proceed down the driveway toward the back of the building and the

parking lot where the murder occurred. Returning to the interior of the apartment,

Odom heard a shot. He ran to the balcony and witnessed the shooting that resulted

in Lance‟s death. Odom hurried to the scene and attempted to provide assistance

to Lance until he realized that the boy was dead. Odom returned to his home as

the police approached. Odom observed defendant return to the scene and “act

surprised” during defendant‟s discussion with the responding officers. Later that

day, Odom made it known to defendant that he, Odom, realized defendant was the

perpetrator of the crime. Defendant responded “it wasn‟t supposed to go down

that way.”

During his trial testimony, Odom experienced some difficulty recalling the

precise course of events, explaining that the years intervening between the crimes

and the trial rendered precise recollection difficult. He was uncertain whether he

had seen defendant at the mailboxes on one or two occasions, that is, whether he

had returned to his apartment during defendant‟s visit to the mailboxes. During

his testimony, initially he recalled having heard only one shot, but later, with the

assistance of his prior statements to refresh his recollection, reported having heard

two shots. Odom was uncertain of the precise words employed by defendant in

making the foregoing admission.

20
Defendant complains of three occasions on which the prosecutor displayed

to Odom his prior statement to the police, his preliminary hearing testimony, or

notes from a photographic lineup, thereafter requesting that Odom ratify the prior

statements.

In the first example, Odom testified that the person he observed at the door

of Bernice‟s automobile with a gun in hand was wearing the same clothing he had

observed defendant wearing just before the gunshots sounded. During further

direct examination on the following day of trial, in the context of identifying the

shooter, Odom testified, “I didn‟t see a face, I just seen the same clothing.” The

prosecutor then read Odom‟s preliminary hearing testimony, as follows: “Q: Was

there any question in your mind that was [defendant] you saw? [¶] A: No , there

was no question in my mind, because I had just seen him in that clothing.” Odom

confirmed he had given that answer at the prior hearing, adding “Like I said I seen

him in that clothing.” The prosecutor essentially repeated the question and

received the same answer. Ultimately the prosecutor inquired: “Is it your

testimony now that you have no question as you sit there now that it was the

defendant . . . that you saw at the door of the car? [¶] A: Yes. [¶] [Q:] You do or

do not have? [¶] A: I mean, yes, it was Earnest Dykes.”

In the second example, Odom testified concerning his encounter with

defendant on the day of the crime when defendant admitted his culpability. Odom

recalled at trial that defendant said something to the effect “it wasn‟t supposed to

go down like that,” but Odom apologized, expressing some uncertainty regarding

the exact wording of this admission. The prosecutor responded: “Well, no need

to apologize. And you testified yesterday that [defendant] told you that he did

this, is that correct?” The examination continued: “[¶] A: Yes. [¶] Q: When

you picked the photograph out, photograph number two, on August 10th, you

picked that photograph as being the person who told you they did it, is that

21
correct? [¶] A: Come again? I didn‟t . . . . [¶] Q: When you picked

[defendant‟s] photograph out of the group of photographs, you picked his

photograph as being the person who told you he did it, is that correct? [¶] A:

Yes. Yes. [¶] Q: So in other words you were saying the same thing at that time

as you said here in court yesterday? [¶] A: Yes.”

The final example occurred when Odom testified that defendant told him he

took the money he stole from Bernice Clark and his weapon to a girlfriend‟s

residence after the crime. According to Odom‟s testimony, defendant commented

that he had stolen “about a hundred bucks.” Odom was uncertain of defendant‟s

exact words. In response to a question posed by the prosecutor, Odom verified

that in his statement to the police and when he testified under oath at the

preliminary hearing, he stated that Dykes told him he “got about a hundred

bucks.”

Defendant concedes that his attorney did not interpose timely objections to

the questions on the ground asserted on appeal. As defendant also acknowledges,

numerous decisions by this court have established the general rule that trial

counsel‟s failure to object to claimed evidentiary error on the same ground

asserted on appeal results in a forfeiture of the issue on appeal. (People v. Partida

(2006) 37 Cal.4th 428, 433-435; People v. Lewis (2001) 26 Cal.4th 334, 357.)

Defendant asserts that the forfeiture rule should not apply, because there is a

“heightened need for reliability and fairness in a capital case.” This court,

however, has rejected the claim that the forfeiture rule does not apply in capital

cases. (People v. Benavides (2005) 35 Cal.4th 69, 115 [rejecting a claim that we

should conduct “ „plain error review‟ ” notwithstanding forfeiture in capital cases];

People v. Cain (1995) 10 Cal.4th 1, 28.) Defendant fails to establish the existence

of any “structural defect” such as was identified by the high court in Arizona v.

22
Fulminante (1991) 499 U.S. 279, 309-310, that would lead us to overlook our

forfeiture doctrine.

Defendant adds that, even if the evidentiary claim was forfeited, the

underlying claim should be reached on the theory that the prosecutor committed

misconduct in conducting the examination of Odom, rendering the trial

fundamentally unfair. But trial counsel‟s failure to object in a timely manner to

asserted prosecutorial misconduct also results in the forfeiture of the claim on

appeal. (People v. Stanley (2006) 39 Cal.4th 913, 952.) Contrary to defendant‟s

assertion, even if we assume there was merit to the claim, a timely objection and a

request for admonition would not have been futile.

In any event, defendant‟s claims are not meritorious. Defendant assumes

that the sole possible basis for the admission of Odom‟s prior statements was

Evidence Code section 791, subdivision (b), but that the evidence did not meet the

requirements of that provision. This statute permits the admission of a prior

consistent out-of-court statement when there has been a charge that the testimony

at the hearing has been fabricated or “influenced by bias or other improper motive,

and the statement was made before the bias, motive for fabrication, or other

improper motive is alleged to have arisen.” (Evid. Code, § 791, subd. (b).)

Defendant claims that the prior consistent statements were elicited before there

had been any attempt to impeach Odom, and after Odom already had developed a

motive to fabricate. He asserts that Odom‟s motive to fabricate — the desire to be

released from jail — arose before he contacted the police to offer assistance in

their investigation.

Even if Odom‟s out-of-court statements were not admissible because they

were not made “before the bias, motive for fabrication, or other improper motive

is alleged to have arisen” (Evid. Code, § 791, subd. (b)), if defendant had

interposed hearsay objections to the introduction of the prior statements, the

23
prosecutor might have been able to demonstrate that at least the first two

statements were admissible as examples of prior identification pursuant to

Evidence Code section 1238.2 As the Law Revision Commission comment to that

provision explains: “Under Section 1238, evidence of a prior identification is

admissible if the witness admits the prior identification and vouches for its

accuracy.” (Cal. Law Revision Com. com., 29B pt. 4 West‟s Ann. Evid. Code

(1995 ed.) foll. § 1238, p. 249; see People v. Gould (1960) 54 Cal.2d 621, 626

[“Unlike other testimony that cannot be corroborated by proof of prior consistent

statements unless it is first impeached [citations], evidence of an extrajudicial

identification is admitted regardless of whether the testimonial identification is

impeached, because the earlier identification has greater probative value . . . .”],

overruled on other grounds in People v. Cuevas (1995) 12 Cal.4th 252, 263; see

also People v. Boyer (2006) 38 Cal.4th 412, 480; 1 Witkin, Cal. Evidence (2000

ed.) Hearsay, § 163, pp. 876-877.)3

The prosecutor also might have been able to secure the admission of all

three of the statements on the ground that the witness had been forgetful and


2

Evidence Code, section 1238 provides: “Evidence of a statement

previously made by a witness is not made inadmissible by the hearsay rule if the
statement would have been admissible if made by him while testifying and: [¶]
(a) The statement is an identification of a party or another as a person who
participated in a crime or other occurrence; [¶] (b) The statement was made at a
time when the crime or other occurrence was fresh in the witness‟ memory; and
[¶] (c) The evidence of the statement is offered after the witness testifies that he
made the identification and that it was a true reflection of his opinion at that time.”

3

Other elements required under this hearsay exception also appear to be

present, in that defense counsel stipulated that the written statements accurately
reflected what the witness had said on the prior occasions, and Odom‟s statements
to the police and the selections he made at the photo lineup occurred less than two
weeks following the commission of the crime.

24
evasive during his testimony, rendering prior statements admissible for their truth

as prior recorded recollections pursuant to Evidence Code sections 1235 and 770.

Discussing the two provisions, we explained that “[t]hose statutes . . . provide for

the admission against a hearsay challenge of a prior statement by a witness „if the

statement is inconsistent with his testimony at the hearing and is offered in

compliance with Section 770.‟ [Citation.] Under Evidence Code section 770,

prior inconsistent statements are admissible only if: „(a) The witness was so

examined while testifying as to give him an opportunity to explain or to deny the

statement; or [¶] (b) The witness has not been excused from giving further

testimony in the action.‟ ” (People v. Sapp, supra, 31 Cal. 4th at p. 296.) Under

certain circumstances, testimony may be considered inconsistent with prior

statements when it reflects absence of recollection or evasiveness. (See People v.

Green (1971) 3 Cal.3d 981, 987-988; see also People v. Sapp, supra, 31 Cal.4th at

p. 297.)

We need not speculate whether, in response to defense objections, the

prosecutor could have established the proper foundation for admissibility of each

of Odom‟s prior out-of-court statements under these provisions, because it is clear

that admission of the statements was harmless. Defendant admitted in his

recorded confessions and in his trial testimony that he robbed Bernice and was

responsible for the shot that injured her and killed Lance. Prosecution witness

Edward Tyson, along with the surviving victim, Bernice, also provided detailed

eyewitness testimony. Defendant himself testified that he demanded money from

Bernice, and his claim that he did not recall the exact amount was impeached by

his prior inconsistent statement to the police at the time of his arrest that he had

garnered exactly $142.

Defendant counters that prejudice occurred because Odom‟s credibility was

essential to the prosecution‟s case. According to defendant, Odom‟s credibility

25
was important not only because Odom testified that defendant admitted

committing the crimes and assertedly provided details that were not available from

other witnesses, but also because Odom‟s testimony provided a significant basis

for the charge of premeditated murder and premeditated attempted murder.

Defendant claims this was because Odom testified he observed defendant standing

near the apartment building mailbox shortly before the first shot rang out —

testimony assertedly giving rise to an inference that defendant planned the crime

in advance “and that he was waiting for Mrs. Clark to arrive in order to commit

the crime.” But defendant himself testified that he decided up to one-half hour in

advance of the crime to rob Bernice and also decided on that occasion to arm

himself with a loaded firearm, even though his purpose was to confront an elderly

woman who was known to lend money freely. It added little to the proof of

premeditation for Odom to suggest that defendant had been standing outside the

apartment building shortly before committing the crime.

Moreover, to the extent defendant‟s claim is based upon the argument that

the jury would infer that critical portions of Odom‟s trial testimony were true

because Odom had made prior statements that were consistent with his trial

testimony on other points, the contention lacks merit. The same inference could

be gleaned through many other instances in which the prosecutor referred to

Odom‟s prior consistent statements. The prosecutor repeatedly referred to

Odom‟s prior statements and testimony during his direct examination of Odom,

and no objection was forthcoming at trial (or, for that matter, on appeal). 4

4

As noted in connection with defendant‟s claim that we should overlook

defense counsel‟s failure to object at trial to the admission of the evidence,
defendant has not identified any “structural error” that would require reversal in
the absence of a showing of prejudice. (See People v. Carter (2005) 36 Cal.4th
1114, 1160.)

26


3. Prosecutorial misconduct

Defendant contends the prosecutor committed prejudicial misconduct on a

number of occasions during the guilt phase of the trial. He claims a violation of

his right to a fair trial under the Fifth and Fourteenth Amendments to the federal

Constitution and parallel provisions of the state Constitution.

We review claims of prosecutorial misconduct pursuant to a settled

standard. “Under California law, a prosecutor commits reversible misconduct if

he or she makes use of „deceptive or reprehensible methods‟ when attempting to

persuade either the trial court or the jury, and it is reasonably probable that without

such misconduct, an outcome more favorable to the defendant would have

resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that

does not result in the denial of the defendant‟s specific constitutional rights —

such as a comment upon the defendant‟s invocation of the right to remain silent —

but is otherwise worthy of condemnation, is not a constitutional violation unless

the challenged action „ “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” ‟ ” (People v. Riggs (2008) 44

Cal.4th 248, 298; People v. Crew (2003) 31 Cal.4th 822, 839.) In addition, “ „a

defendant may not complain on appeal of prosecutorial misconduct unless in a

timely fashion — and on the same ground — the defendant made an assignment of

misconduct and requested that the jury be admonished to disregard the

impropriety.‟ [Citation.] ” (People v. Stanley, supra, 39 Cal.4th at p. 952.)

Objection may be excused if it would have been futile or an admonition would not

have cured the harm. (See People v. Hill (1998) 17 Cal.4th 800, 820.)

In considering defendant‟s claims, we recall the limited issues that were in

dispute in the present case. In view of defendant‟s testimony and his confessions,

defense counsel admitted in his argument to the jury that defendant had fired the

shot that injured Bernice Clark, and that he had committed a robbery and a

27
robbery murder. Defense counsel disputed that defendant intended to kill Bernice.

Counsel also urged the jury to conclude that because Lance‟s killing assertedly

was accidental and occurred while defendant was attempting to disengage from

Bernice in their struggle over her wallet, the killing was not committed to

“advance” the felony within the meaning of the robbery-murder special-

circumstance allegation. Although the point is not critical to the discussion of the

present issue, to avoid confusion we note that there is no requirement that the

prosecution prove an additional or different element that the killing be committed

to “advance” the felony. (People v. Horning (2004) 34 Cal.4th 871, 907-908.)5


5

As we have explained, “[t]he felony-murder special circumstance applies to

a murder committed while the defendant was engaged in, or was an accomplice in
the commission of, the attempted commission of, or the immediate flight after
committing or attempting to commit, various enumerated felonies . . . . [Citation.]
A strict causal or temporal relationship between the felony and the murder is not
required; what is required is proof beyond a reasonable doubt that the defendant
intended to commit the felony at the time he killed the victim and that the killing
and the felony were part of one continuous transaction.” (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 87.) Relying upon People v. Green (1980) 27 Cal.3d
1, 61, we have explained that the felony-murder special circumstance was
intended to apply to those who “killed „to advance an independent felonious
purpose,‟ ” but was not intended to apply when the felony was “ „merely
incidental to the murder . . . .‟ ” (People v. Horning, supra, 34 Cal.4th at p. 907,
and cases cited.) The pattern jury instruction reflects the so-called Green rule.
(CALJIC No. 8.81.17 [proof is required that “[t]he murder was committed in order
to carry out or advance the commission of the crime . . . . In other words, the
special circumstance referred to in these instructions is not established if the
[crime] was merely incidental to the commission of the murder”].) The “carry out
or advance” language found in the pattern instruction is based upon our cases and
constitutes merely another way of describing the Green rule — that a felony
murder is not established by proof of a felony that was merely incidental to a
murder. (People v. Horning, supra, 34 Cal.4th at pp. 907-908; People v.
Navarette (2003) 30 Cal.4th 458, 505.)

28
a. Opening statement

Defendant contends the prosecutor‟s opening statement was argumentative,

unsupported by the record, and constituted an appeal to passion and prejudice. He

refers to the following comments: “You know, there‟s three ways to get money.

You can earn it, you can borrow it, or you can steal it, and [defendant] chose to

steal it at gunpoint from a senior citizen in the company of a nine-year-old child

and a dog. [¶] After you hear all the evidence from the technician and two

criminalists you will be convinced that the same bullet that passed through Mrs.

Clark‟s neck then passed through her grandson‟s body and killed him. And he

died looking at her, and she had to sit there next to him in the car. I think it

probably goes without saying that that sort of experience almost defies

description.”

There was no objection and the claim is forfeited. (People v. Prince (2007)

40 Cal.4th 1179, 1275.)

In any event, the claim lacks merit. With one possible exception, the

statement was closely tied to the evidence presented by the prosecutor.

Respondent acknowledges that the evidence may not have established that the

victim died looking at his grandmother, but there was evidence that could support

the view that the child was leaning toward his grandmother when he was shot. As

we have commented, “remarks made in an opening statement cannot be charged as

misconduct unless the evidence referred to by the prosecutor „was “so patently

inadmissible as to charge the prosecutor with knowledge that it could never be

admitted.” ‟ ” (People v. Wrest (1992) 3 Cal.4th 1088, 1108.) In the present case,

the jury was instructed that the prosecutor‟s opening statement did not constitute

evidence. As we have declared in a comparable case, “[a]ny inconsistency

between the opening statement and the evidence was inconsequential.

[Defendant] was permitted to confront all witnesses and to challenge and rebut all

29
evidence offered against him. Under these circumstances, [defendant] suffered no

conceivable prejudice.” (Id. at pp. 1109-1110.)

Defendant contends that the quoted language describing him in an

unflattering and critical light was argumentative and constituted an appeal to

passion. The comments, along with the prosecutor‟s description of Bernice

Clark‟s tragic experience, were based upon evidence to be presented at the trial,

however, and were within the “broad scope of permissible argument.” (People v.

Chatman (2006) 38 Cal.4th 344, 387 [the prosecutor properly could claim the

defendant lied, lacked humanity, was frightening, and was barely human].)



b. Examination of witnesses

Defendant contends the prosecutor committed misconduct “during the

examination of witnesses by improperly injecting emotion into the guilt phase of

the trial, seeking to elicit inadmissible evidence, and implying that the defense was

obstructionist.”

Defendant refers to the examination of Bernice Clark, alleging in his

opening brief that the prosecutor asked her whether her grandson was “dead and

buried by the time she was released from the hospital.” The prosecutor did not

make the comment that appears in defendant‟s opening brief. Rather, in the

context of exploring the witness‟s memory of events from the time of the crime to

the point when she gave a statement to the police during her hospital stay, the

prosecutor inquired whether she recalled making the statement, whether she

recalled when during the stay she had made the statement, whether she slept a

great deal in the hospital, whether she remembered visitors, or whether the

hospital stay “sort of [ran] together when you think back on it?” Bernice

responded that she was not told about her grandson‟s death while she was in the

hospital. When she added that she recalled hospital visits from her granddaughter

30
and son, this colloquy ensued: “Q: And they had not told you yet that — [¶] A:

No. [¶] Q: That Lance was dead? [¶] A. No. [¶] [Q:] Did you go to his

funeral? [¶] A: No. [¶] [Q:] You weren‟t even aware that it happened? I mean,

was he buried by the time you found out that he was dead? [¶] A: No, I found —

I got to see him. I got to go to the mortuary. I just wasn‟t up to going to the

funeral.” (Italics added.)

There was no objection to the italicized question (or any portion of the

surrounding examination), and the claim is forfeited. (People v. Prince, supra, 40

Cal.4th at p. 1275.) In any event, as in comparable cases the question “was not so

likely to evoke sympathy in the jurors that we could conclude the question was

misconduct, or even if it was, that any misconduct was prejudicial.” (People v.

Riggs, supra, 44 Cal.4th at p. 302 [the prosecutor asked the victim‟s father

whether he had participated in making funeral arrangements for the victim].)

Defendant claims the prosecutor sought to portray prosecution witness

Alphonso Odom in a sympathetic light by asking him irrelevant questions that

served to inform the jury that the witness had a young son who had accompanied

him to court and that Odom also had brought the child with him to an interview

with the prosecutor. The court sustained defendant‟s relevancy objection. The

defense did not object on the basis of prosecutorial misconduct, and the claim is

forfeited. (See People v. Prince, supra, 40 Cal.4th at p. 1275.) In any event, any

misconduct was harmless. When the court sustained the relevancy objection — if

not before — the jury likely understood that Odom‟s status as a parent was

irrelevant.

Defendant claims the prosecutor committed misconduct by proffering

evidence of Odom‟s prior consistent statements. The question whether the prior

statements were admissible and whether their admission was prejudicial already

has been resolved against defendant. In any event, defendant did not object to the

31
admission of the statements on the basis of prosecutorial misconduct, and the

claim is forfeited. (People v. Prince, supra, 40 Cal.4th at p. 1275.)

Defendant contends the prosecutor committed misconduct during cross-

examination of defendant. He refers to a question asking whether defendant had

discussed his testimony with his attorney prior to testifying. An objection to the

question was sustained, and defendant did not answer it. No conceivable prejudice

ensued. (See People v. Coffman and Marlow, supra, 34 Cal.4th at p. 94 [the

prosecutor noted the defendant had not mentioned the battered woman syndrome

defense until her attorneys were appointed].) Defendant claims the comment

added to the prejudice he suffered when the prosecutor during his closing

argument to the jury assertedly accused the defense of fabrication, but, as we shall

explain, we have concluded that the prosecutor‟s argument does not bear that

interpretation.

Defendant contends the prosecutor committed misconduct while cross-

examining defendant by commenting upon defendant‟s answers. He refers to the

following line of questioning concerning defendant‟s statements to the police and

his failure to inform the police that, as he testified at trial, LaCondra Douglas‟s

boyfriend arrived at the scene during the robbery:

“Q: Well, you were trying to tell them the whole truth about what

happened, weren‟t you?

“A: Yes, I just didn‟t tell — didn‟t put him in it.

“Q: Well, you could have said somebody pulled in, you didn‟t know who

they were, right?

“A: I knew who the car . . . belonged to.

“Q: Right. But you hadn‟t had any compunction about lying to the police

up to that point, right?

“A: I wasn‟t lying, I just didn‟t put him in there, sir.

32
[¶] . . . [¶]

“Q: You‟re not scared?

“A: I‟m just telling you the whole truth.

“Q: The jury will be the judge of that, Mr. Dykes.”

Defense counsel objected on the ground the statement was argumentative,

and the court sustained the objection.

As the examination progressed, the prosecutor asked defendant: “In other

words, you‟re pretty good at lying with a straight face, are you, Mr. Dykes[?]”

The court sustained a defense objection.

The prosecutor is entitled to attempt to impeach the credibility of a

defendant‟s testimony (see People v. Chatman, supra, 38 Cal.4th at p. 382) and

point out inconsistencies between his or her testimony and prior inconsistent

statements. When a defendant chooses to testify concerning the charged crimes,

the prosecutor can probe the testimony in detail and the scope of cross-

examination is very broad. (Id., at pp. 382-383; People v. Mayfield (1997) 14

Cal.4th 668, 754.) Moreover, because the trial court sustained objections to the

argumentative element of the prosecutor‟s questioning, we assume any prejudice

was abated. (See People v. Pinholster (1992) 1 Cal.4th 865, 943; see also People

v. Riggs, supra, 44 Cal.4th at p. 299.)

Defendant challenges other aspects of the prosecutor‟s cross-examination.

On direct examination, defendant testified he owned a firearm purely for self-

protection because “at the time there [were] a lot of dope dealers on the street, they

[were] having altercations . . . up the street . . . [and] I just felt I didn‟t want to be

caught in it and be made a statistic.” On cross-examination, the prosecutor also

elicited testimony that defendant had purchased the firearm because there were

drug dealers in the neighborhood. The prosecutor then asked defendant whether

he had been a drug dealer himself, an accusation defendant denied. Then the

33
prosecutor inquired: “Do you recall telling the police when you gave the

statement that you gave up selling dope when you met your girlfriend?” (Italics

added.) It is worth observing that according to Sergeant Chenault‟s interview

notes from defendant‟s first unrecorded confession (marked for identification but

not introduced into evidence), defendant informed the officers that when he met

his girlfriend he “got out of dope.”

Defendant did not respond to the question. Rather, he volunteered: “Sir, I

had a conviction on — well, I don‟t think they convicted me of that, but I got

caught in the car with my cousin who was a dope dealer, that‟s how it came

about.” The prosecutor elicited the admission that “this isn‟t the first gun that

[defendant] ever owned,” and that defendant had been on probation for illegal

possession of a firearm when the murder occurred. The prosecutor inquired

whether the other firearm owned by defendant had served merely for protection,

too, and defendant answered in the affirmative. The prosecutor pursued the

information volunteered by defendant in his previous answer:

“Q: Do you recall when you were arrested with [the firearm] you were

caught with drugs possessed in a package for sale?

“A: They didn‟t catch me with . . . drugs, sir.

“Q: Were you selling drugs with your gun back then?

“A: No I wasn‟t, sir.

“Q: And it‟s your testimony that you have never indicated to anyone that

you were a drug dealer at that time?

“A: No I didn‟t, sir.

“Q: I‟m sorry?

“A: I didn‟t indicate nothing.

“Q: And just for clarity when you were interviewed with the police you

denied selling narcotics when you met your girlfriend, Bianca?

34
“Mr. Strellis [defense]: Objection. Irrelevant.

“The Court: Sustained.” (Italics added.)

The prosecutor maintained the question was relevant to defendant‟s

statement regarding his reason for possessing the firearm, but the trial court again

sustained the defense objection.

Defendant did not interpose a timely objection to this line of questioning.

Counsel‟s ultimate objection was on the ground of relevancy, not prosecutorial

misconduct, and he did not request an admonition. This claim is forfeited.

(People v. Prince, supra, 40 Cal.4th at p. 1275.)

Defendant‟s claim also lacks merit. It constitutes misconduct to examine a

witness solely for the purpose of implying the truth of facts stated in the question

rather than in the answer to be given, and a prosecutor should not pursue a line of

questioning that is damaging but irrelevant. (People v Mayfield, supra, 14 Cal.4th

at p. 753; see also People v. Visciotti (1992) 2 Cal.4th 1, 52; People v. Hamilton

(1963) 60 Cal.2d 105, 116, overruled on other grounds in People v. Morse (1964)

60 Cal.2d 631, 637, fn. 2, and People v. Daniels (1991) 52 Cal.3d 815, 866.) On

the other hand, in the present case, defense counsel asked defendant why he

purchased the firearm, opening the door to examination on the same point by the

prosecution. The prosecutor was entitled to explore the credibility of defendant‟s

claim that he had purchased a firearm solely for self-protection. The prosecution

could have impeached defendant‟s denial that he had ceased his involvement with

drugs (when he met his girlfriend) with the inconsistent statement defendant made

to Sergeants Madarang and Chenault. In addition, during cross-examination,

defendant volunteered information concerning his arrest, and the prosecution was

entitled to explore defendant‟s assertions. We note that eventually a relevancy

objection was sustained by the court and that the prosecutor did not refer to drug

dealing in his closing argument, thereby diminishing the impact of this evidence.

35
Defendant also contends the prosecutor committed misconduct by objecting

to the defense cross-examination of witness Dr. Lansing Lee, the ballistics expert.

The murder weapon was not discovered; defendant testified that he had disposed

of it in the Oakland Estuary. During the defense examination of Lee, defense

counsel inquired whether the murder weapon‟s functioning, including its trigger

pull, would be “partly personal to the history of the particular firearm?” The

expert answered in the affirmative. The defense then inquired: “And we have no

idea since we don‟t have the firearm that fired the projectiles in this case?” The

prosecutor objected: “Well, objection, your honor. That assumes facts not in

evidence that the defense doesn‟t know where the gun is. There‟s no evidence.”

The court responded by requesting that defense counsel rephrase the question.

Defendant now contends the prosecutor‟s objection “furthered the prosecutor‟s

goal of arguing that the defense was obstructing the case, even to the point of

creating a defense out of whole cloth.”

The defense did not object on the ground of misconduct and the claim is

forfeited. (People v. Prince, supra, 40 Cal.4th at p. 1275.) In any event,

defendant admitted he had disposed of the murder weapon, providing damaging

evidence that the weapon was not available for testing by the ballistics expert

because of defendant‟s effort to escape responsibility for the crimes. There was no

conceivable prejudice arising from the prosecutor‟s speaking objection.

Defendant claims the prosecutor committed misconduct by eliciting

inadmissible evidence of absence of remorse. He refers to the prosecutor‟s

examination of Sergeant Madarang.

The prosecution questioned Sergeant Madarang concerning the course of

events leading to defendant‟s tape-recorded statements to the police. Madarang

described defendant‟s initial denial of responsibility, commenting that defendant‟s

manner was composed, he did not appear intoxicated, and the denial was quite

36
convincing — except that, as Madarang testified, the officer was aware of facts

contradicting some of defendant‟s assertions. When Madarang confronted

defendant with eyewitness accounts, defendant became emotional, eventually

admitting most of his role in the crimes during two statements interrupted by

audible sobbing. Defense counsel agreed that the tape-recorded statements should

be played to the jury “because I feel the inflection with which the words are said is

part of the impact of the words.” After the jury listened to the tape-recorded

statements, the prosecutor asked Madarang whether defendant had wept during the

period of questioning in which he denied responsibility. Madarang replied in the

negative. In cross-examining Madarang, defense counsel established that

defendant‟s voice had not been recorded during the period he denied responsibility

but during the taped confessions “we can hear for ourselves what his voice

sounded like.”

Defendant did not object to the question posed to Sergeant Madarang, and

the claim is forfeited. (People v. Prince, supra, 40 Cal.4th at p. 1275.) Defendant

now contends that an admonition would not have cured the harm. He asserts that

“[t]he evidence of lack of remorse was designed to prejudice the jury against

[defendant] by depicting him as a cold, remorseless killer who only displayed

emotion when he was faced with having his confession audio taped.” He claims

the inadmissible testimony made him appear to be a “hardened killer” and

constituted “inadmissible negative character evidence.”

“[U]nless a defendant opens the door to the matter in his or her case-in-

chief [citation], his or her remorse is irrelevant at the guilt phase.” (People v.

Jones (1998) 17 Cal.4th 279, 307.) Defendant‟s sobbing during his tape-recorded

statements to the police and to the deputy district attorney, however, supported the

inference that he experienced remorse. Indeed, during the prosecution‟s case-in-

chief, when the prosecutor sought to introduce transcripts of defendant‟s tape-

37
recorded confessions, the defense urged the jurors to listen to the recordings

themselves in order to permit them to hear evidence of defendant‟s emotional

state. Defendant testified that after committing the crime, he was unable to sleep,

lost weight, and sought relief in drugs and alcohol, thereby suggesting emotional

turmoil. In addition, the issue of defendant‟s demeanor and state of mind during

his various statements to the police was relevant to the credibility of those

statements. Under these circumstances, we conclude misconduct did not occur.

c. Closing argument

Defendant contends the prosecutor committed misconduct in several

respects. We observe, however, that “[a] prosecutor is given wide latitude to

vigorously argue his or her case and to make fair comment upon the evidence,

including reasonable inferences or deductions that may be drawn from the

evidence.” (People v. Ledesma (2006) 39 Cal.4th 641, 726.)

Defendant claims the prosecutor committed misconduct during closing

argument by accusing him of fabricating a defense. Defendant cites the following

portion of the prosecutor‟s argument in support: “And you might wonder as an

aside, yesterday, when defendant was on the stand, how we get this new version,

and I‟ll come back to this, that he was attempting to pull his hand out and get away

[when the gun fired], at least that‟s the way I got it on his direct examination. He

knows the legal niceties here, ladies and gentlemen, he‟s had two years to study

these instructions. He‟s got two lawyers. So ask yourself, why now, in the 11th

hour, we get the version he‟s attempting to pull his hand free of the car, he‟s just

attempting to get away. He never actually said it. And he changed his story on

cross-examination. But the gist of it, as I got it, is he was no longer committing

robbery. And so I guess his act of trying to pull the hand from the car, trying to

abandon the robbery, would not be an act in the furtherance of the robbery, I‟m

38
not trying to get the money, and therefore the special circumstance is untrue.”

(Italics added.)

Defense counsel objected to the argument, denying that defendant had

suggested he was no longer engaged in the robbery when the fatal shot was fired.

Defense counsel stated that “[t]he instruction, part of which counsel has read to the

jury, points out that escape is part and parcel of a robbery. Had he studied the

instruction it would have been clear that he would have read all of it and not part

of it.” In other words, defense counsel objected to the implication that defendant‟s

testimony was tailored to fit a defense, because counsel conceded that a homicide

committed during flight from a robbery constitutes felony murder.

In response, the court informed the jury that in closing argument, counsel

may state the facts and the law according to their understanding of each. The

court admonished, however, “I have stated the rules here, that if there is any

variance as to what the facts are, as stated by either counsel, and what you believe

them to be, accept your recollection of the facts [and] you are to follow the law as

I state it.”

Defendant‟s claim lacks merit. Defendant testified at the guilt phase of the

trial, and the prosecutor was entitled to challenge his credibility and point to

inconsistencies between his testimony and his earlier statements. It was within the

broad bounds of permissible argument to suggest that defendant‟s trial testimony

concerning the sequence of events leading to the murder, far from representing the

truth, differed from his prior statements and was framed to coincide with an

imagined defense based upon the asserted accidental nature of the killing. The

commentary was appropriate in spite of defense counsel‟s concession that the

accidental nature of the killing did not prevent conviction for felony murder.

Defense counsel relied upon the claim of accident to urge that defendant lacked

the intent to kill Bernice Clark, and defense counsel made the (unfounded) claim

39
that the felony-murder special-circumstance allegation was not true because of the

prosecutor‟s failure to prove an additional element of proof that the killing was

intended to advance the robbery. The prosecutor‟s comment did not suggest that

defense counsel had participated in fabricating a defense for defendant, nor did it

constitute a personal attack upon counsel or counsel‟s credibility. (See People v.

Zambrano (2007) 41 Cal.4th 1082, 1154, disapproved on another ground in

People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Under the circumstances,

the comment did not “focus[] the jury‟s attention on irrelevant matters and divert[]

the prosecution from its proper role of commenting on the evidence and drawing

reasonable inferences therefrom.” (People v. Bemore (2000) 22 Cal.4th 809, 846.)

Defendant contends the prosecutor committed misconduct during closing

argument at the guilt phase of the trial by commenting upon the asserted absence

of remorse displayed by defendant. Defendant refers to the following statement:

“When you listen to those tapes, ladies and gentlemen, and you hear him crying,

you don‟t see him crying here in court, you didn‟t see him crying on the witness

stand yesterday. Do you really think those tears — who are they for? You think

they‟re for Lance Clark or Bernice? Do you really think that? When he‟s crying

on the tape, he‟s crying for himself, because he realizes his plan is not going to

work, he‟s been identified.” (Italics added.)

Because there was no objection to the comment, the claim is forfeited.

(People v. Stanley, supra, 39 Cal.4th at p. 952.) We discern no reason that

defendant could not have objected and sought an admonition. Moreover, as noted,

defense counsel urged the court to permit the jury to hear the statements in which

defendant‟s sobs were recorded. Defendant‟s own testimony suggested emotional

turmoil. The prosecutor could comment upon an anticipated argument by defense

counsel. (See People v. Bemore, supra, 22 Cal.4th at p. 846.)

40
Defendant next contends the prosecutor improperly introduced the issue of

race into the deliberations during his rebuttal to defense counsel‟s closing

argument. (It bears noting that defendant is Black; Bernice Clark is White, as was

Lance Clark. It appears that the jury did not include any Black members.)

In his closing argument defense counsel informed the jury it would be

instructed not to be influenced by “mere sentiment, conjecture, sympathy, passion,

prejudice public opinion, or public feeling.” Defense counsel then argued: “Why

do you imagine the district attorney showed you the pictures of the dead lad?

Why do you think he talked about Lance? Do you think there was any possibility

he was appealing to your prejudice? [¶] He talked about people who are different

from you, different lifestyle, different person.[6] Do you think there was a

message in there? It gets lost, but it‟s there and it has an honest meaning.” Later

in his closing argument, defense counsel continued: “Do you understand why it

was important that you see the picture of Lance, that you be told that he‟s — that

[defendant] is different? Because we need some passion here. We need some

blood. The cold facts are troublesome.” Defense counsel returned to the theme of

the jury‟s duty not to be moved by passion or prejudice, but to determine with care

whether the prosecution had proved its case: “How can we make it beyond a

reasonable doubt? We can if we‟re angry enough, if we want to pick the bad

thing, if we want to make the choice? Because, after all, this is — he‟s different

from us. But absent that kind of thinking, how do we make the choice?” Defense


6

The prosecutor previously had argued that defendant had planned the

robbery, selecting “somebody he‟s got absolutely nothing against, and yet he‟s the
kind of person that would pick someone like that to do this to, because he just
doesn‟t care. He‟s not like you. That doesn‟t make sense to you. But then,
you‟ve never found yourself in a courtroom facing these kind of charges, either.
And that‟s the difference between you and [him].”

41
counsel added: “Now, [defendant], according to the district attorney, is not

worthy of belief. He‟s — you know, he‟s different. He doesn‟t work. He‟s

just — you know, he‟s a different species.”

The prosecutor began his rebuttal with the following statement: “I guess

I‟m going to have to take the bait, because the defense — I‟m sitting there trying

to bite my tongue. The defense plays the race card as only a desperate defense

attorney [sic]. I‟m shocked, even someone of Mr. Strellis‟s reputation would

resort to that.” Defense counsel attempted to interject “Is the inference[?],” but

the prosecutor continued: “I‟m not asking you to convict [defendant] because he‟s

Black. I‟m asking you to convict him because he‟s guilty. He didn‟t rob Bernice

Clark and kill Lance Clark because they‟re White. He did it because he thought

they had money. This case has nothing to do with race. [¶] He is different from

some other people. He‟s different from Mr. Odom. He‟s different than Mr.

Chenault. He‟s different than LaCondra Douglas. He‟s different than his

girlfriend. He is a murderer. [¶] Mr. Strellis is going to stand up here and tell you

he‟s not any different than anybody else. If there are any other murderers in the

courtroom, please stand up. He is different. [¶] But to suggest that it‟s because

he‟s Black or somehow he‟s being prosecuted because he‟s Black that is the basis,

sort of appeal to you, and again, I feel an obligation to respond to it. [¶] You

know, for someone that wants you to really consider the facts and just go onto the

facts, Mr. Strellis didn‟t mention the facts in his hour that he puffed on to you with

his hot air about the law in Scotland or whatever it was.”

The prosecutor‟s references to race did not constitute misconduct, but rather

represented fair rebuttal to defense counsel‟s suggestion that the prosecution had

attempted to play on the all-White jury‟s emotions and racial prejudice. The

argument “did little more than urge the jury not to be influenced by [defense]

42
counsel‟s arguments, and to instead focus on the testimony and evidence in the

case.” (People v. Stanley, supra, 39 Cal.4th at p. 952.)

Defendant claims that the prosecutor‟s comment, “I‟m shocked, even

someone of Mr. Strellis‟s reputation would resort to that,” implied that Strellis had

a poor reputation in the community. Defendant claims the statement relied upon

the existence of evidence of poor reputation that was not contained in the record.

It is not clear from the statement that the prosecutor was suggesting that

Strellis had a poor reputation. “To prevail on a claim of prosecutorial misconduct

based on remarks to the jury, the defendant must show a reasonable likelihood the

jury understood or applied the complained-of comments in an improper or

erroneous manner. [Citations.] In conducting this inquiry, we „do not lightly

infer‟ that the jury drew the most damaging rather than the least damaging

meaning from the prosecutor‟s statements.” (People v. Frye (1998) 18 Cal.4th

894, 970, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at

p. 421, fn. 22.) We are not persuaded that the jury drew the damaging inference

suggested by defendant, but even if the comment was inappropriate, it constituted

a mere passing reference of no real import to the case.

In any event, the prosecutor certainly did not accuse defense counsel of

fabricating evidence or deceiving the jury on the facts. As noted above, the

comment did not “focus[] the jury‟s attention on irrelevant matters and divert[] the

prosecution from its proper role of commenting on the evidence and drawing

reasonable inferences therefrom.” (People v. Bemore, supra, 22 Cal.4th at p. 846.)

As we observed in a similar context, “[i]t was clear the prosecutor‟s comment was

aimed solely at the persuasive force of defense counsel‟s closing argument, and

not at counsel personally.” (People v. Zambrano, supra, 41 Cal.4th at p. 1155.)

We have found misconduct to be absent from similar prosecutorial remarks.

(Ibid., citing People v. Stitely (2005) 35 Cal.4th 514, 559-560 [the prosecutor

43
warned the jury not to “fall for” defense counsel‟s “ridiculous” effort to let the

defendant “walk free”]; People v. Gionis (1995) 9 Cal.4th 1196, 1215-1216 [the

prosecutor argued that defense counsel was a great lawyer because he spoke “out

of both sides of his mouth”]; People v. Breaux (1991) 1 Cal.4th 281, 306-307 [the

prosecutor argued that law students are taught to create confusion to benefit the

defense]; People v. Bell (1989) 49 Cal.3d 502, 538 [the prosecutor claimed that the

defense attorney‟s job was to confuse the jury and obscure the facts].)

Defendant draws our attention to another occasion on which he claims the

prosecutor demeaned defense counsel. The prosecutor stated: “Mr. Strellis wants

to try to confuse you about what the meaning of the special circumstance

instruction is. Well, he‟s a skilled attorney, and he‟s doing the best he can.”

Because there was no objection at the trial, this claim is forfeited. (People v.

Stanley, supra, 39 Cal.4th at p. 952.) In any event, such comments fall within the

broad scope of permissible comment, as demonstrated by the cases cited above.

Defendant contends the prosecutor misrepresented the law pertaining to

voluntary intoxication when he stated: “No act is less criminal because someone

is in a state of voluntary intoxication. But you get to consider it on whether or not

they actually formed the required mental state. . . . It is only if you‟re intoxicated

to the effect that you cannot appreciate what you‟re doing, where you don‟t

actually have the required intent for the crime, that intoxication can be a defense.”

This claim is forfeited because defense counsel did not object. (People v. Prince,

supra, 40 Cal.4th at p. 1275.) In any event, the court instructed the jury properly

on the issue of intoxication, and it is not reasonably likely the jury would have

44
understood the prosecutor — as defendant asserts — to claim that this defense

may be established solely by evidence of “extreme” intoxication.7

Next, defendant contends the prosecutor committed misconduct by

commenting on defendant‟s character. Defendant refers to these remarks: “To

show the kind of person [defendant] is, he uses people. This is the kind of guy

that will spend 90 bucks on a hot gun, and yet will kill somebody and rob a

woman in order, to tell you, to get money for college tuition. And it doesn‟t stop

there. It‟s not even his 90 bucks that he spends. He leeches $50 of it off his

girlfriend, against her better judgment.” Defendant also refers to another

comment: “[Defendant] is the kind of person that, I think the evidence shows, will

cause you to reexamine and rethink all your ideas about human decency and what

should flow from what, as far as who deserves something, who doesn‟t deserve

something, whether or not the right thing ever really happens in this world. [¶]

And you‟re never going to meet Lance Clark, because of him, because of his

greed, his selfishness, his self-centeredness, his refusal to do honest work.” The

prosecutor also claimed defendant lied under oath “at will.”

Because there was no objection to these comments, this claim is forfeited.

(People v. Prince, supra, 40 Cal.4th at p. 1275.) In any event, for the most part

these remarks constituted proper comment upon the evidence and upon

defendant‟s credibility as a witness. “Referring to the testimony and out-of-court

7

The jury was instructed that: “Where a specific intent or mental state is an

essential element of the crime . . . you should consider the defendant‟s voluntary
intoxication in your determination of whether the defendant possessed the required
specific intent or mental state at the time of the commission of the alleged crime.”
The jury also was instructed: “Intoxication of a person is voluntary if it results
from the use of any intoxicating liquor, drug or other substance knowing that it is
capable of an intoxicating effect or when he or she willingly assumes the risk of
that effect voluntarily.”

45
statements of a defendant as „lies‟ is an acceptable practice so long as the

prosecutor argues inferences based on evidence rather than the prosecutor‟s

personal belief resulting from personal experience or from evidence outside the

record.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) There was evidence

to support the inference that defendant lied when, among other occasions, he

returned to the scene after the crimes and claimed he had observed an unknown

Black man commit the crimes; when he contacted the police department to turn

himself in; when he gave his statements to the police; in his testimony when he

denied his girlfriend had given him money to purchase a firearm; and in his

testimony when he denied having observed Lance in the car prior to the shooting.

Moreover, the prosecutor is entitled to make a vigorous argument, and

“opprobrious epithets” may be employed if “reasonably warranted by the

evidence.” (Ibid. [noting cases permitting argument that described the defendant

as an “animal,” “professional robber,” or “vicious gunman”].) To the extent the

prosecutor suggested that the jury draw inferences concerning defendant‟s guilt

from conclusions regarding defendant‟s general bad character, any misconduct

would not have affected the outcome or fairness of the trial in light of the

overwhelming evidence of guilt introduced by the prosecution and defendant‟s

own testimony.

Defendant contends the prosecutor committed misconduct in referring to

the trial of O.J. Simpson. He refers to the following comment: “I just wanted to

remind you the reason why we‟re here, if this seems like a big imposition on you,

because I know that it is, it‟s been hard sometimes to break the news to you or I

see on the judge‟s face, when we‟re going to break early or when there‟s going to

be a delay to start. I assure you, we haven‟t been wasting time. It‟s just with the

O.J. case, I know you‟re reliving some of the big imposition those jurors have on

their life but I assure you, as the judge has indicated, when we do break early or

46
oftentimes we‟re here before and after you come and go, but there are very

important legal issues that we‟ve been working on.”

Because there was no objection, any claim of misconduct is forfeited.

(People v. Stanley, supra, 39 Cal.4th at p. 952.) In any event, it is not reasonably

likely the jury would understand this comment to refer, as defendant claims, “to

the common view, at least among non-Black jurors, that Simpson got away with

murder,” nor would it, as defendant claims, “prejudice the jury in the

prosecution‟s favor.”

Defendant contends the prosecutor improperly bolstered the credibility of a

prosecution witness with this comment: “If you believe [defendant], Sergeant

Chenault is lying, risking his career and everything it stands for, to somehow

frame this man.” This claim was forfeited because there was no objection below,

and in any event the remark constituted fair comment on the evidence. (See

People v. Chatman, supra, 38 Cal.4th at pp. 381-383.)

Defendant contends that his failure to object to various asserted instances of

misconduct should not stand as a barrier to appellate review of his claims. He

argues that an objection and admonition would have been futile, because the

misconduct was pervasive and created a “hostile trial atmosphere.” As our

discussion has demonstrated, the prosecutor did not engage in pervasive

misconduct. Defendant‟s reliance upon People v. Hill, supra, 17 Cal.4th 800, is

misplaced. Unlike that case, which we have characterized as representing an

“extreme” example of pervasive and corrosive prosecutorial misconduct that

persisted throughout the trial (see People v. Riel (2000) 22 Cal.4th 1153, 1212),

the present case did not involve counsel experiencing — as did counsel in Hill —

a “constant barrage” of misstatements, demeaning sarcasm, and falsehoods, or

ongoing hostility on the part of the trial court, to appropriate, well-founded

objections. (See People v. Hill, supra, 17 Cal.4th at p. 821 [counsel risked

47
“repeatedly provoking the trial court‟s wrath, which took the form of comments

before the jury suggesting [counsel] was an obstructionist [who was ] delaying the

trial with „meritless‟ objections”].)8

4. Asserted cumulative error

We have not identified any error that was prejudicial, whether considered

separately or cumulatively. (See People v. Salcido (2008) 44 Cal.4th 93, 156.)

B. Asserted Errors Affecting the Penalty Phase of Trial

1. Evidence that defendant possessed a loaded and concealed weapon

Defendant raises two challenges to the admission of penalty phase evidence

concerning an incident in which he was discovered in illegal possession of a

concealed weapon. His first claim is that the evidence was inadmissible because

the incident did not involve a threat or implied threat of violence within the

meaning of section 190.3, factor (b), and that admission of this evidence


8

Defendant contends the asserted misconduct constituted “plain error” that

should be reviewed on appeal notwithstanding our rules pertaining to forfeiture.
He claims that “virtually all jurisdictions” permit the reviewing court to reverse a
conviction in some instances in which the error was not preserved in the trial
court. This court has recognized exceptions to the forfeiture rule in cases of
pervasive prejudicial prosecutorial misconduct (see, e.g., People v. Hill, supra, 17
Cal.4th at p. 821), but, as explained above, the instances cited in defendant‟s case
do not fall within that category of cases. Defendant refers also to a federal rule of
procedure permitting appellate courts to reach a claim of error that was not
preserved below, when the error is clear or obvious and affects the defendant‟s
substantial rights. (See United States v. Olano (1993) 507 U.S. 725, 730; Fed.
Rules Crim. Proc., rule 52(b), 18 U.S.C.) Under that rule, however, ordinarily an
error that “ „affect[s] substantial rights,‟ ” occurs only when the defendant can
demonstrate prejudice. (United States v. Olano, supra, 507 U.S. at p. 734.)
Defendant has not demonstrated prejudicial prosecutorial misconduct, and even
within the terms of the authority he relies upon, he fails to establish any behavior
that is “ „inconsistent with the fairness and integrity of judicial proceedings . . . .‟ ”
(People v. Wash (1993) 6 Cal.4th 215, 277 (conc. & dis. opn. of Mosk, J.).)

48
constituted a violation of the Eighth Amendment to the United States Constitution.

His second claim is that the trial court abused its discretion in failing to strike

certain testimony by Oakland Police Officer Rand Monda concerning the incident

in question.

The prosecution presented evidence establishing that on December 16,

1991, defendant was detained on grounds not specified at trial. It was stipulated

that defendant‟s “detention and arrest . . . [was] based on legal cause.” Officer

Monda testified that at approximately 9:30 p.m., he exited from his vehicle and

approached defendant, who was wearing dark clothing, including a cap, “a dark

puffy black jacket with a hood over his head, [and] . . . large black ski

gloves . . . .” The officer directed defendant to identify himself and noticed that

defendant was “fidgeting.” In the absence of any request by the officer, defendant

removed his cap and gloves and placed them on the roof of the patrol vehicle.

Monda patted defendant down for his own safety and noticed that one of

defendant‟s gloves contained a firearm. The weapon was a loaded and cocked

.25-caliber semiautomatic firearm. One round was in the chamber of the weapon,

and three rounds were in the clip. Monda requested that defendant sit in the back

of the patrol vehicle while the officer checked for outstanding warrants and called

for backup. Defendant was not handcuffed. Monda recalled that defendant had

shouted at him from inside the vehicle when Monda retrieved the weapon. The

officer testified that the incident was memorable, because he had not observed the

weapon at the beginning of the encounter and “could have been shot.” He

explained: “Well, he had the . . . large ski glove in his hands. He had his hand in

the glove and his gun, the gun was in his hand and he could have shot me and I

didn‟t even see it. I wouldn‟t have even seen it coming.” Monda thereafter

transported defendant to jail.

49
Defendant claims the evidence was inadmissible because the incident did

not involve a threat or implied threat of violence.9 He contends that an

interpretation of section 190.3, factor (b) that would permit the admission of such

evidence would heighten the risk of arbitrary imposition of the death penalty, in

violation of the Eighth and Fourteenth Amendments to the United States

Constitution.

Section 190.3, factor (b) permits the introduction of evidence in

aggravation consisting of “[t]he presence . . . of criminal activity by the defendant

which involved the use or attempted use of force or violence or the express or

implied threat to use force or violence.”

Evidence establishing that a defendant knowingly possessed a potentially

dangerous weapon while in custody is admissible under section 190.3, factor (b),

even when the defendant has not used the weapon or displayed it with overt

threats. (People v. Tuilaepa (1992) 4 Cal.4th 569, 589.) Even in a noncustodial

setting, illegal possession of potentially dangerous weapons may “show[ ] an

implied intention to put the weapons to unlawful use,” rendering the evidence

admissible pursuant to section 190.3, factor (b). (People v. Michaels (2002) 28

Cal.4th 486, 536.) For example, in the Michaels case, evidence was presented that

the defendant had been discovered with a firearm concealed in the glove

compartment of his parked vehicle and had been arrested for unlawful possession

of knives on prior occasions. We noted the criminal character of the defendant‟s

possession of these weapons, adding that similar knives had been used in charged


9

Defendant objected on the same ground prior to trial. The trial court

overruled the objection, observing that “someone who carries a loaded and
concealed handgun is carrying a classical instrument of violence that is normally
used only for criminal purposes.”

50
offenses and that the concealed firearm had been employed in a robbery

committed one day before the discovery of the weapon in the defendant‟s vehicle.

Citing all of these circumstances, we concluded that the trial court did not err in

admitting the prosecution‟s evidence for the purpose of demonstrating the

defendant‟s commission of a prior crime involving the threat of violence. The

defendant, we pointed out, was free to present evidence upon which the jury could

base a contrary conclusion, such as “evidence . . . to show that his possession was

for the purpose of self-protection, or the protection of someone else, not for

criminal violence.” (Ibid.)

Similarly, in the present case the jury legitimately could infer an implied

threat of violence from all the circumstances, including the “criminal character of

defendant‟s possession” (People v. Michaels, supra, 28 Cal.4th at p. 536; see

§§ 12025, subd. (a), 12031, subd. (a)), the concealment of the loaded and cocked

weapon in a manner that rendered it available for instant, surprise use, and

defendant‟s use of a similar firearm in committing the present offense.

Defendant contends that possession of a firearm ordinarily is not illegal,

that his possession would have been legal had he obtained a special permit to carry

a concealed weapon, and that in some states permits are not required for the

possession of concealed and loaded firearms. These circumstances do not detract

from the conclusion that a jury could determine that defendant‟s possession of a

loaded and concealed firearm, without the permit required in California,

constituted a crime, and that an inference of an implied threat of violence properly

could be drawn from the circumstances of the incident.

Defendant makes a brief reference to the Second Amendment to the United

States Constitution, commenting that “[g]enerally, a defendant may lawfully

possess a firearm,” and surmising that it is “doubtful that the mere carrying of a

firearm constitute[s] an implied threat of force or violence” and that the

51
circumstance “that in California, such carrying is unlawful and constitutes a

misdemeanor, does not transform the conduct from one of innate self-protection

into a threat against others.”

In support of his claim, defendant refers to the Solicitor General‟s briefing

in a federal case. (United States v. Haney (10th Cir. 2001) 264 F.3d 1161.) More

recently, however, the United States Supreme Court decided District of Columbia

v. Heller (2008) ___ U.S. ___ [171 L.Ed.2d 637] (Heller). In that case, the high

court determined that a District of Columbia law prohibiting the possession of an

operable handgun in the home was inconsistent with the Second Amendment.

(Heller, supra, ___ U.S. at pp. ___ [171 L.Ed.2d at pp. 679, 683-684.) Defendant

does not contend that the California statutes prohibiting possession of a concealed,

loaded firearm in a public place are void under the Second Amendment. He

merely suggests that, because persons have a right to bear arms, their possession

of a firearm does not, in itself, suggest a threat of violence. We have concluded,

however, that the evidence in the present case would permit the jury to infer an

implied threat of violence.

In any event, the court in Heller disapproved a statute that prohibited

possession of an ordinary handgun in the home. Although the high court

determined that the Second Amendment referred to an “individual right to keep and

bear arms” (Heller, supra, ___ U.S. at pp. ___ [171 L.Ed.2d at pp. 659, 675-677]),

the court warned that this right was not unlimited. The court did not recognize a

“right to keep and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose,” observing that historically, most courts have “held that

prohibitions on carrying concealed weapons were lawful under the Second

Amendment or state analogues.” (Id. at p. ___ [171 L.Ed.2d at p. 678].) The high

court‟s decision in Heller does not require us to conclude that possession in a public

place of a loaded, cocked, semiautomatic weapon with a chambered round,

52
concealed in a large glove and ready to fire, cannot be defined as a crime under

state law. Moreover, nothing in that decision requires us to conclude that such

conduct cannot be considered as carrying an implied threat of violence.

In a related claim, defendant contends the trial court should have stricken

Officer Monda‟s testimony that he “didn‟t even see the gun” and that he “could

have been shot.” According to defendant, “[e]ven if evidence regarding this

incident was admissible as evidence in aggravation under factor (b), Officer

Monda‟s testimony that he remembered the incident „because [he] could have

been shot,‟ was irrelevant, unduly prejudicial, and should have been stricken.”

This evidentiary claim is forfeited, as is defendant‟s related suggestion that

the testimony in question constituted improper victim-impact evidence, because,

as defendant concedes, defense counsel did not object to the testimony at trial on

the basis stated in this claim. (See People v. Partida, supra, 37 Cal.4th at pp. 433-

434.)10 In any event, the testimony was relevant to Monda‟s credibility and

reliability as a witness, specifically to his ability to recall the incident accurately

after the lapse of three and one-half years. The evidence also was relevant to the

question whether defendant‟s possession of the firearm carried an implied threat of

violence within the meaning of section 190.3, factor (b). The evidence was not

offered or referred to in argument as victim impact evidence. We are confident

the jury understood in what respect the evidence was relevant in light of pattern

instructions explaining how the jury was to consider evidence in connection with

section 190.3, factors (a) and (b) (see CALJIC Nos. 8.84.1, 8.85, 8.88), and pattern

instructions concerning the consideration of and burden of proof applicable to


10

Defendant‟s assertion that this court must reach the claim because it

represents “plain error” is without merit, for the reasons stated ante, at page 48,
footnote 8.

53
evidence of illegal possession of a firearm. (See CALJIC Nos. 3.31, 8.87, 16.460,

16.470; see also CALJIC Nos. 2.01, 2.02, 2.90.)

Defendant claims the trial court should have excluded this evidence

because it was more prejudicial than probative within the meaning of Evidence

Code section 352. To the extent the trial court retains such discretion in this

context (see People v. Box (2000) 23 Cal.4th 1153, 1200-1201), the failure of the

court to exercise that discretion is forfeited on appeal when the claim was not

raised below. (People v. Davenport (1995) 11 Cal.4th 1171, 1205, disapproved on

another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn.5.)

2. Admission of victim-impact evidence

Defendant contends “almost all” of the victim-impact evidence introduced

at trial was admitted in error. Defendant claims that this evidence introduced

passion and prejudice into the penalty phase proceedings and created an

“unreasonable risk of an arbitrary result.” He asserts the evidence was so

prejudicial that its admission deprived him of due process of law and resulted in an

arbitrary penalty decision in violation of the Eighth and Fourteenth Amendments

to the United States Constitution and parallel provisions of the California

Constitution.

Over objection, the prosecutor presented victim-impact evidence through

the testimony of Lance‟s teacher, Judy Schaff, his grandmother, Bernice Clark,

and his sister, Kristie Clark. In addition, three still photographs and a videotape

were introduced into evidence.

Schaff testified that she was on vacation when she learned Lance had been

murdered; that Lance was a quiet student who was well-liked by other students;

that he helped others; that she had seen Lance for the last time at a school party

54
attended by Lance‟s sister Kristie; and that the school conducted a memorial for

Lance.

Bernice Clark testified concerning the plans she and Lance had for the day

he was murdered, her profound sense of loss after his murder, and the sense of

loss, fear, and dislocation suffered by Lance‟s younger brother as a result of the

murder. Some comments were especially poignant. For example, Bernice

testified that on the day he was murdered, Lance planned to buy a toy for his

younger brother with money he had saved from his allowance. She also said of

Lance that “[h]e was always going to be my protector and he would go, every

night and do his exercise” in order to grow big and sufficiently strong to protect

her.

Kristie Clark was 21 years of age when the murder occurred. She testified

that she learned of the murder on the day it occurred while she was shopping for

clothing to wear to her grandfather‟s funeral. She described her shock when a

physician at the Oakland Children‟s Hospital gave her the news that Lance was

dead. She was unable to share the news with her grandmother, Bernice Clark, for

several days, because of her grandmother‟s uncertain medical condition. She

described the sorrow experienced by Bernice and by Lance‟s younger brother, for

whom Lance had served as a protector and comforter. Kristie was the family

member who made the funeral arrangements for Lance. She described in moving

terms the sorrow and sense of unreality she experienced while making those

arrangements: “We . . . special ordered [a casket], a medium-sized one because

the large ones made him look too small and the baby one made him look too big.”

She said of Lance‟s younger brother that after the murder, he “was still kind of

waiting for him to come home. I mean he realized he was buried, he did attend his

funeral, but that didn‟t all click together.”

55
Kristie also described Lance. She testified that he had been an amusing

child who loved animals; that he had celebrated his birthday just four or five days

prior to the murder; that he was a Cub Scout; and that she had served almost as a

surrogate mother for him because his mother was “unreliable.” She described the

impact of Lance‟s murder on her. She said she missed having Lance comfort her

when she was sad (“he would come up and give you a hug and kiss and say I love

you”), and that “you miss more than anything just the little things. I mean eating

popcorn, sitting in your chair with you at night or, . . . watching videos with you,

and just little things you miss.”

The prosecutor played a videotape depicting preparations for and

enjoyment of a family trip to Disneyland. Kristie identified persons depicted in

the videotape.

The applicable law is settled. “In a capital trial, evidence showing the

direct impact of the defendant‟s acts on the victims‟ friends and family is not

barred by the Eighth or Fourteenth Amendments to the federal Constitution.

[Citation.] 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. Pollock

(2004) 32 Cal.4th 1153, 1180.)

In Payne v. Tennessee (1991) 501 U.S. 808 (Payne), the United States

Supreme Court explained that a relevant consideration for sentencing authorities

traditionally has been the “specific harm caused by the crime.” (Id. at p. 825.) In

order to understand the harm caused by the crime, a state may choose to permit the

introduction of victim-impact evidence because such evidence is “designed to

show . . . each victim‟s „uniqueness as an individual human being . . . .‟ ” (Id. at

p. 823, italics omitted.) The high court determined that the state should not be

56
prevented from “offering „a quick glimpse of the life‟ which a defendant „chose to

extinguish‟ [citation], or demonstrating the loss to the victim‟s family and to

society which has resulted from the defendant‟s homicide.” (Id. at p. 822.) In

sum, “[a] State may legitimately conclude that evidence about the victim and

about the impact of the murder on the victim‟s family is relevant to the jury‟s

decision as to whether or not the death penalty should be imposed.” (Id. at

p. 827.)

On the other hand, as the high court recognized, “[i]n the event that

evidence is introduced that is so unduly prejudicial that it renders the trial

fundamentally unfair, the Due Process Clause of the Fourteenth Amendment

provides a mechanism for relief.” (Payne, supra, 501 U.S. at p. 825.) State law is

consistent with these principles. “Unless it invites a purely irrational response

from the jury, the devastating effect of a capital crime on loved ones and the

community is relevant and admissible as a circumstance of the crime under section

190.3, factor (a).” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057;

cf. People v. Edwards (1991) 54 Cal.3d 787, 835-836.)

It is difficult to discern the exact nature of defendant‟s claim. He argues

that victim-impact evidence necessarily is prejudicial, but the high court has

concluded that states are not precluded from permitting such evidence at the

penalty phase of a trial. Defendant argues that victim-impact evidence is

particularly prejudicial when the victim is a child. As defendant contends,

evidence concerning the impact of the death of a child on his or her family and

friends is particularly poignant, but within the meaning of Payne, supra, 501 U.S.

808, such evidence remains relevant to the jury‟s understanding of the harm

caused by the crime.

In the present case, the trial court carefully considered whether the

proposed testimony fell within appropriate limits, making every effort to ensure

57
that it was not inflammatory. Lance‟s parents did not testify, because the

prosecutor feared that their testimony would be inflammatory, a concern shared by

the trial court. The court emphatically admonished counsel to prepare witnesses

well to avoid inflammatory emotional remarks and to ensure they did not blurt out

their views concerning the crime itself, the defendant, or the appropriate penalty.

The child‟s grandmother and his sister testified regarding their feeling of loss, but

the testimony was not dramatic or inflammatory. (See People v. Smith (2005) 35

Cal.4th 334, 365 [permissible victim-impact evidence included mother‟s testimony

concerning the loss of her child: “ „I don‟t think the pain will ever go away . . . I

think the worst part of it is . . . what goes on in my mind what happened to him.

What he went though is . . . just very difficult‟ ”]; People v. Benavides, supra, 35

Cal.4th at p. 105 [permissible victim-impact evidence was admitted through the

testimony of the aunt and cousins of an infant victim, concerning the agony caused

to the family, including the infant‟s sister, by the victim‟s death].) And, contrary

to defendant‟s claim, the evidence received in the present case had no tendency to

arouse racial animus.

Defendant contends Bernice Clark should not have been permitted to testify

concerning anything but “the immediate effects of the crime.” He complains

specifically that she should not have been permitted to describe her and Lance‟s

plans for the day, including Lance‟s intention to buy a toy using money he had

saved from his allowance. Such testimony, however, plainly concerns the

circumstances of the crime within the meaning of section 190.3, factor (a). We

have rejected similar claims. (People v. Edwards, supra, 54 Cal.3d at p. 833

[victim-impact evidence is not limited to “the immediate temporal and spatial

circumstances of the crime” but includes “ „[t]hat which surrounds [the crime]

materially, morally, or logically‟ ”].)

58
Defendant contends the testimony of the witnesses concerning the impact

of the crime on them was too extensive. We disagree. The prosecutor‟s

questioning was relatively brief — 5 pages of transcript in the case of Schaff, 9

pages of transcript in the case of Bernice Clark, and 18 pages of transcript in the

case of Kristie Clark. Defendant counters that victim-impact evidence ordinarily

is permitted when it supplies a “quick glimpse” of the victim and the impact of his

or her death on others, but that in the present case, “most” of the single day

devoted to the evidentiary portion of the penalty phase was devoted to victim-

impact evidence. He does not identify any persuasive basis for a rule that victim-

impact evidence may not form a substantial portion of a prosecutor‟s case in

aggravation. Indeed, we have rejected the claim that the evidence must be

confined to a single witness. (People v. Zamudio (2008) 43 Cal.4th 327, 364; see

also People v. Pollock, supra, 32 Cal.4th at p. 1183.)

Defendant contends the witnesses should not have been permitted to testify

concerning the victim‟s character, but such evidence conveys the insight into the

victim that the high court has concluded is appropriate. (Payne, supra, 501 U.S. at

pp. 823, 827.) Contrary to defendant‟s claim, this evidence was not inflammatory.

Rather, it resembled victim-impact testimony we have accepted as appropriate in

many cases. (See, e.g., People v. Cruz (2008) 44 Cal.4th 636, 652, 682 [the

evidence included testimony by the victim‟s wife and children concerning the

sorrow they felt and the devastating impact of the crime on their lives, as well as

evidence concerning the victim‟s professional life]; People v. Boyette (2002) 29

Cal.4th 381, 444 [family members expressed love for the victims and explained

their sense of loss; photographs depicted the victims in life].)

Defendant contends that section 190.3, factor (a) must be construed to

restrict the scope of victim-impact evidence in order to avoid constitutional

deficiencies, including concerns that the statute is unconstitutionally vague and

59
permits arbitrariness in the penalty decision. Defendant contends that this court

must afford a narrow interpretation to section 190.3, factor (a), limiting victim-

impact evidence to evidence (1) given by a family member who was at the scene

of the crime or immediately thereafter; (2) describing circumstances known to or

reasonably foreseeable to the defendant at the time of the murder and (3) presented

by a single witness. We have rejected similar claims, and defendant has not

persuaded us to reconsider those decisions. (People v. Pollock, supra, 32 Cal.4th

at p. 1183; see also People v. Zamudio, supra, 43 Cal.4th at p. 364-365, People v.

Lewis and Oliver, supra, 39 Cal.4th at p. 1057.)

Defendant also challenges the court‟s decision to permit the prosecution to

present evidence in the form of the eight-minute videotape, that, as noted above,

depicted Lance Clark and family members preparing for and enjoying a trip to

Disneyland. The videotape began with a clip of Lance having climbed up a tree.

It then portrayed Lance spending time with family members. The tape included

parts of the drive to Southern California and displayed the family interacting in a

hotel room. The videotape occasionally focused on Lance, who often is smiling or

making amusing gestures to the camera, but it also included footage of other

family members.

Defendant contends that the videotape constituted improper victim-impact

evidence because it was inflammatory and went beyond the “quick glimpse” of the

victim contemplated by Payne, supra, 501 U.S. 808. He stresses that the

videotape was highly prejudicial in light of Kristie Clark‟s courtroom demeanor

and testimony, which “contrasted sharply and painfully” with the happy images of

her, Lance Clark, and others on the videotape. He stresses the prejudicial impact

of observing a young murder victim happily climbing a tree and seeing him, his

younger brother, and other family members happily anticipating and undertaking a

journey to Disneyland.

60
There is no bright-line rule pertaining to the admissibility of videotape

recordings of the victim at capital sentencing hearings. (People v. Prince, supra,

40 Cal.4th at p. 1288.) We consider pertinent cases in light of the general

understanding that the prosecution may present evidence for the purpose of

reminding the sentencer that “ „the victim is an individual whose death represents

a unique loss to society and in particular to his family‟ ” (Payne, supra, 501 U.S.

at p. 825), but that the prosecution may “not introduce irrelevant or inflammatory

material” that “ „diverts the jury's attention from its proper role or invites an

irrational, purely subjective response.‟ ” (People v. Edwards, supra, 54 Cal.3d at

p. 836.)

“Courts must exercise great caution in permitting the prosecution to present

victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the

victim. Particularly if the presentation lasts beyond a few moments, or emphasizes

the childhood of an adult victim, or is accompanied by stirring music, the medium

itself may assist in creating an emotional impact upon the jury that goes beyond

what the jury might experience by viewing still photographs of the victim or

listening to the victim's bereaved parents.” (People v. Prince, supra, 40 Cal.4th at

p. 1289.)

Videotaped evidence nevertheless may be relevant to the penalty

determination, because it “humanize[s] [the victim], as victim impact evidence is

designed to do.” (People v. Kelly (2007) 42 Cal.4th 763, 797.) For example, a

videotaped photomontage may convey the family and society‟s loss; it may

“help[] the jury to see that defendant took away the victim‟s ability to enjoy her

favorite activities,” and may “further illustrate[] the gravity of the loss by showing

[the victim‟s] fresh-faced appearance before she died.” (Ibid.)

The trial court exercised appropriate caution to avoid introducing irrelevant

drama and undue emotion into the penalty determination. The court carefully

61
reviewed the videotape prior to its admission, ordered the audio portion deleted,

and vigorously cautioned the prosecutor to ensure that Kristie Clark‟s commentary

during the playing of the videotape should be unemotional.

Like the trial court, we have reviewed the tape to determine whether it

contains elements that are irrelevant to the penalty determination. We agree with

the trial court that the material, which merely depicts ordinary activities and

interactions between Lance Clark and his family, was relevant to humanize the

victim and provide some sense of the loss suffered by his family and society. The

videotape is an awkwardly shot “home movie” depicting moments shared by

Lance with his family shortly before he was murdered. The videotape does not

constitute a memorial, tribute, or eulogy; it does not contain staged or contrived

elements, music, visual techniques designed to generate emotion, or background

narration; it does not convey any sense of outrage or call for vengeance or

sympathy; it lasts only eight minutes and is entirely devoid of drama; and it is

factual and depicts real events. (See, e.g., People v. Zamudio, supra, 43 Cal.4th at

pp. 366-367; People v. Kelly, supra, 42 Cal.4th at pp. 797-798.) The evidence

supplemented but did not duplicate Kristie Clark‟s testimony, and her narration

was not objectionable. We conclude the trial court did not err.

Defendant claims the prosecutor should have accepted his offer to stipulate

that he would not offer evidence in mitigation in the event the prosecution would

agree not to introduce victim-impact evidence. He points out that the court in

Payne expressed the view that it would be unfair to deny the prosecution the

opportunity to offer evidence of the harm caused by the defendant‟s crime while

permitting the defendant to introduce relatively unlimited evidence to paint a full

picture of his or her life experience and character for the purpose of eliciting

sympathy. Contrary to defendant‟s view, however, the high court did not suggest

that prosecution victim-impact evidence was admissible solely to rebut the

62
mitigating impact of evidence submitted by the defense. As noted, the court

stressed the traditional and permissible place in the sentencing determination of a

consideration of the “specific harm caused by the crime in question.” (Payne,

supra, 501 U.S. at p. 825.) As for defendant‟s offer to refrain from producing

evidence in mitigation in return for similar silence from the prosecution, it was not

within defendant‟s power to force the prosecution to refrain from presenting a

persuasive case in aggravation through the introduction of relevant, admissible

evidence. Ordinarily the prosecution “ „cannot be compelled to accept a

stipulation if the effect would be to deprive the state‟s case of its persuasiveness

and forcefulness.‟ ” (People v. Garceau (1993) 6 Cal.4th 140, 182, disapproved

on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; see also

People v. Salcido, supra, 44 Cal.4th at p. 147.)

Defendant adds that the victim-impact evidence should not have been

admitted or permitted to form a basis for the prosecutor‟s argument because, in his

view, there was little evidence in aggravation and the mitigating factors far

outweighed the aggravating factors — a claim he bases in part upon the

circumstance that the jury‟s deliberations on penalty occupied a period of

approximately seven days. We have not restricted victim-impact evidence to cases

in which it would have little effect upon the verdict. Victim-impact evidence is

relevant to the penalty determination because such evidence provides the jury with

an idea of who the victim was and of the impact of his or her death on family and

close friends. The relevance of the evidence does not depend upon the strength or

weakness of the prosecution‟s case in aggravation. Although this type of evidence

should not be admitted if it is inflammatory, as long as it is otherwise admissible,

it properly may form a basis — along with the prosecutor‟s related argument —

for the jury‟s decision in favor of the death penalty.

63


3. Asserted prosecutorial misconduct

Defendant contends the prosecutor engaged in an egregious “pattern of

misconduct” throughout the penalty phase, thereby denying him a fair trial under

the Fifth and Fourteenth Amendments to the federal Constitution and parallel

provisions of the California Constitution, and requiring this court to set aside the

death judgment. We disagree.

As at the guilt phase of the trial, at the penalty phase a prosecutor commits

misconduct under the federal standard by engaging in conduct that renders the trial

so unfair as to constitute a denial of due process. (Darden v. Wainwright (1986)
477 U.S. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642; People

v. Earp (1999) 20 Cal.4th 826, 858.) State law characterizes the use of deceptive

or reprehensible methods as misconduct. (People v. Earp, supra, 20 Cal.4th at

p. 858.) In order to preserve any claim of prosecutorial misconduct, there must be

a timely objection and request for admonition. (Ibid.) “ „[O]therwise, the point is

reviewable only if an admonition would not have cured the harm caused by the

misconduct.‟ ” (Ibid.)

“For prosecutorial misconduct at the penalty phase, we apply the

reasonable possibility standard of prejudice first articulated in People v. Brown

[(1988)] 46 Cal.3d [432,] 448, and which, as we have later explained, is the „same

in substance and effect‟ as the beyond-a-reasonable-doubt test for prejudice

articulated in Chapman v. California (1967) 386 U.S. 18.” (People v. Wallace

(2008) 44 Cal.4th 1032, 1092.)

Defendant faults the prosecution for dwelling on the victim-impact

evidence in his closing argument to the jury, claiming that the prosecutor “urged

the jurors to identify with the victims and the emotional pain of their loss, . . . a

tactic that . . . tends to inflame the emotions of the jurors.” Even if we were to

overlook defendant‟s failure to object to the argument, we would reject this claim.

64
In closing argument, a prosecutor may rely upon the impact of the victim‟s death

on his or her family. The prosecutor in the present case merely commented upon

evidence we have determined was admissible, as he was entitled to do. (See

People v. Leonard, supra, 40 Cal.4th at p. 1419.) Although the prosecutor‟s

argument had emotional impact, it was permissible. We have acknowledged that

emotion need not be eliminated from the penalty determination. Although

emotion “ „must not reign over reason,‟ ” it “ „need not, indeed, cannot, be entirely

excluded from the jury‟s moral assessment.‟ ” (Id. at p. 1418.)

Defendant asserts the prosecutor suggested the existence of facts outside

the record and misstated the evidence. The prosecutor, in closing argument,

addressed section 190.3, factor (i), concerning the age of the defendant at the time

of the crime. He stated: “The law allows you to consider the defendant‟s age.

And he was young when he did this. He wasn‟t 18, but he wasn‟t an older

individual. [¶] But ask yourself this, he‟d been on probation for a year and a half

for illegally possessing a gun, the gun was taken from him, and yet he chose to

rearm himself and hatch this plan. He might not be old chronologically, but as

criminal age goes, he was well down the road. The system had tried leniency on

him, probation had been tried. [¶] What did probation do? What did it result in?

The leniency extended him through the court, what was the result of that? A

woman shot through the neck and a dead child right beside her, with a different

gun. [¶] Did he learn from going through the court system the first time? What

did he learn? He bought a bigger gun, and he made himself a promise, I‟m not

going to be identified, I‟m going to wear a disguise, and if that doesn‟t work,

there‟s something else I can do to make sure I don‟t get identified „cause I don‟t

want to go to jail.‟ [¶] So you can consider his age at the time of the crime. But

before you find any mitigation there, consider not his chronological age but what

65
his state of mind was and what choices he‟d made before. It‟s not the first time

he‟d been in this position.”

Defendant claims on appeal that the italicized language constituted

misconduct. He charges the prosecutor with misstating the evidence, because

defendant was not “well down the road” to a life of crime but had one assertedly

minor prior conviction. In addition, defendant claims the prosecutor‟s statement

implied, or at least invited speculation, that defendant had a more extensive

criminal record than appeared through the evidence introduced at trial. Defendant

adds that the prosecutor should not have referred to the failure of probation,

arguing that such a statement suggests that the only effective form of correction

for failure on probation would be the death penalty.

These claims are forfeited because the defense did not object in the trial

court. (People v. Wilson (2008) 44 Cal.4th 758, 800.) In any event, the

prosecutor‟s argument did not in the least suggest the existence of a more

extensive criminal record than was established at trial, nor did it suggest an

abstract rule that the sole appropriate punishment for failure on probation was the

penalty of death. In addition, the prosecutor was entitled to request that the jury

draw inferences from the record concerning defendant‟s culpability, on the basis

of the evidence admitted pursuant to section 190.3, factor (b). It was for the jury

to decide whether the inferences were reasonable. (See People v. Wallace, supra,

44 Cal.4th at p. 1094 [“the absence of any deterrent effect from defendant‟s earlier

brushes with the law was [a] . . . reasonable inference”].)11

11

Defendant invites us to consider inferences that could be drawn by the jury

from an examination of a report prepared by his investigator concerning
postverdict discussions with jurors. (The report was attached to defendant‟s
motion for new trial.) As we shall explain, the verdict cannot be impeached by
such inadmissible hearsay. (See post, pp. 99-101.)

66
Defendant claims the prosecutor committed misconduct by comparing

defendant to other criminals during his discussion of section 190.3, factor (g),

“whether or not the defendant acted under extreme duress or under the substantial

domination of another person.” The prosecutor argued: “This is not a situation

where Leonard Lake is orchestrating the thing and perhaps influencing other

people to do his bidding for him, or Mr. Koresh, down in Texas, or maybe with his

extreme influence of the people that he was leading, caused them to do things they

wouldn‟t ordinarily do. Not the reverend Jim Jones, down in Guyana. [¶]

[Defendant] did this by himself. He thought about it himself. He planned this out

himself. He profited by it himself. [¶] Factor (g) does not apply. There‟s no

mitigation there.”

Defendant claims his culpability was not comparable with that of the

named individuals and that the argument constituted an appeal to passion and

prejudice. This claim was not raised below and hence is forfeited. (People v.

Wilson, supra, 44 Cal.4th at p. 800.) In any event, the claim is without merit. The

prosecutor‟s point was that defendant did not act under the domination of another

person. The reference to other named criminals served to illustrate the very

different circumstances under which section 190.3 factor (g) in mitigation might

apply. The prosecutor merely argued that unlike the persons who were dominated

by Jim Jones, for example, defendant acted alone. Contrary to defendant‟s claim,

the prosecutor did not suggest defendant himself was a mass murderer or serial

killer with followers under his domination.

Defendant claims that several portions of the prosecutor‟s closing argument

improperly compared the murder victim‟s family with defendant‟s family. In

discussing section 190.3, factor (k), the prosecutor explained that the defense was

entitled to present evidence to persuade the jury to impose a sentence less than

death. He characterized the testimony the jury had heard from defendant‟s family

67
as a “bare request” that the jury spare his life. He sought to persuade the jury that

such a “bare request” was not sufficient to supply a basis for the lesser

punishment: “They offered no opinion as to his character, they didn‟t tell you

about anything good he‟d ever done, but just the bare request, he‟s my relative,

don‟t execute him. That‟s it. That‟s all that‟s been offered to you in mitigation.”

(Italics added.)

Then, turning to the jury‟s duty to weigh circumstances in aggravation and

mitigation, the prosecutor argued: “And you‟re going to weigh that [the defense

evidence] against the circumstances of the crime, the harm to the victim‟s family,

and his other criminal conduct. [¶] [I]t‟s a weighing process. And when you

weigh what you heard yesterday by the defense against the rest of the case, it‟s

inconceivable that the scales could turn out any other way.”

Returning to his argument that the jury should accord little weight to the

defense evidence in mitigation, the prosecutor continued: “He has offered nothing

to you that extenuates the gravity of the offense for which you‟ve convicted him.

You haven‟t heard anything redeeming about him. [¶] Sure his mom came in, and

I respect that, his father came in, and a couple of relatives that have seen him a

total of five times in two years. You know, they‟re asked — called upon to come in

here and try to say something to save [defendant]. And they did that, as a good

family member would do. But don‟t you think they‟d have seen him more than five

times in two years if they were that concerned about it? [] Kristie went to see

Bernice more times in two days than those two relatives have gone to see

[defendant] in the two years since he committed this murder. That will show you

something about legitimate concern or legitimate care. [¶] And what I don‟t want

you to think is I‟m somehow casting aspersions about his family. I‟m not. He‟s

got a good family. In fact, the point is, the punishment is for [defendant], it‟s not

for [his] family.” (Italics added.)

68
The prosecutor continued in the same vein, comparing defendant with other

persons in order to emphasize defendant‟s personal culpability. He also sought to

minimize the weight of defendant‟s mitigating evidence on the ground that any

mitigating value related to the witnesses, and not to defendant: “[Defendant] had a

better upbringing, had better parents than the victim in this case did. He‟s had a

job. He had a girlfriend, a nice woman, that he shook down for $50 to buy his

second handgun, against her better judgment. [¶] But he knows what life‟s about.

He knows the choices he makes. And he knows what life has to offer . . . . But he

chose a different path, and he chose it more than once. [¶] [Defendant] is

responsible for this murder. Not his father, not his mother, not either one of his

relatives, not his sister. [¶] The punishment that you decide in this case is for

[defendant], and [defendant] alone, for what he did.”

Defendant complains on appeal that the prosecutor improperly compared

the regard borne by the victim‟s family for the victim, with the relative absence of

concern about defendant, as inferred by the prosecutor from the testimony of

members of defendant‟s family. Again, there was no objection and hence the

claim of misconduct is forfeited. (People v. Wilson, supra, 44 Cal.4th at p. 800.)

The claim also lacks merit. We do not believe the import of the prosecutor‟s

argument was that suggested by defendant. (See People v. Howard (1992)

1 Cal.4th 1132, 1192 [cautioning against lightly inferring that the prosecutor

intended, or the jury understood, his or her remarks to have their most damaging

meaning].) The witnesses in the present case merely recounted their attachment to

the victim, an appropriate subject — and one appropriate for comment by the

prosecutor. (See also id. at pp. 1191-1192.) Moreover, a prosecutor may compare

the mitigating weight of a defendant‟s personal history with the impact of the

crime on the victim‟s family. (People v. Riggs, supra, 44 Cal.4th at p. 324.)

69
We also agree with respondent that the prosecutor‟s comments concerning

defendant‟s family simply noted the absence of mitigating evidence and, as the

prosecutor cautioned expressly, were not intended to disparage defendant‟s family.

It was appropriate to remind the jury that the penalty would be imposed upon

defendant, not his family. (See People v. Pride (1992) 3 Cal.4th 195, 261-262 [the

prosecutor argued that sympathy for the victim‟s family should not extend to the

defendant].)

Defendant claims misconduct based upon the comment that defendant “had

a better upbringing, had better parents than the victim in this case did.” He asks us

to recall earlier statements defendant characterizes as suggesting that, because the

victim‟s family expressed more concern for the victim than defendant‟s family

expressed for him, the victim‟s life possessed a higher value than defendant‟s life.

Defendant also challenges the following argument as a distortion of the proper

weighing function assigned to the jury: “The reason we are here is because

[defendant] took this person, this living breathing child, and turned him into this.

[The prosecutor displayed an autopsy photograph to the jury.] [¶] That is the

beginning and end of why we‟re here. [¶] As I said to you before, the value that

you place on anything is measured by the price that someone has to pay for taking

it. [¶] [Defense counsel]: I‟m going to object to that. [¶] [Prosecutor]: So by

your verdict — [¶] [Defense counsel]: Your honor, I‟m going to object to that as

inappropriate. [¶] [The court]: The objection‟s overruled [¶] [Prosecutor]:

Again, the price I‟m going to be asking you is for the life of this man. The death

penalty, under the laws of this state, is the appropriate punishment for what has

occurred, for what [defendant] alone, himself, has done, and what you, by your

unanimous verdict, have held him responsible for. What was the life of Lance

Clark worth? That‟s the question submitted to you. [¶] What is the proper

70
punishment for the person who took that life. What should happen to that

person?” (Italics added.)

The prosecutor subsequently argued: “We have the death penalty in this

state . . . because you can‟t bring those people back. What value do you place on

the people who are gone and can‟t protect themselves. They‟re just part of

eternity.” (Italics added.) Defense counsel objected to this last argument, but the

objection was overruled.

Defendant contends the prosecutor‟s argument constituted a prohibited

attempt to inflame the passions of the jury. The argument essentially requested the

jury to weigh the circumstances of the crime, including the victim-impact

evidence, against the circumstances in mitigation, including the evidence that the

jury had received concerning defendant‟s background. The prosecutor may urge

that the death penalty is appropriate in light of the seriousness of the crimes

(People v. Salcido, supra, 44 Cal.4th at p. 160) and may “ „remind[] the sentencer

that just as the murderer should be considered as an individual, so too the victim is

an individual whose death represents a unique loss to society . . . .‟ ” (Payne,

supra, 501 U.S. at p. 825.)

Notwithstanding the defense‟s assertion that the prosecutor‟s italicized

language suggested a mechanical weighing process, when we view these

statements in the context of the prosecutor‟s argument as a whole we conclude he

did not urge such a mechanical process but instead argued the jury should make a

subjective moral evaluation of the appropriate punishment. In addition, we have

held that the prosecutor may remark upon the function of the death penalty in

exacting retribution on behalf of the community, as long as his or her remarks are

not inflammatory and do not represent the prosecutor‟s main theme or argument.

(People v. Zambrano, supra, 41 Cal.4th at pp. 1178-1179.) We conclude the

71
prosecutor‟s argument did not extend beyond permissible bounds by appealing

solely to emotion.

Hewing to his theme that the jury should not accord much mitigating

weight to the testimony given by defendant‟s family, however sympathetic the

family members themselves appeared to the jury, the prosecutor argued: “You

might ask yourself, why were those questions asked of [defendant‟s] father about

his war record, which is admirable, and his 20 years of employment in Alameda

County after he got out [after] serving 20 years in the Navy. They would like for

you to feel that — they don‟t want you to focus on him and his conduct,

[defendant‟s] conduct, they want you to focus on the father and have you diverted

into thinking that if you impose the death penalty that somehow it‟s hurting the

father. That misses the point. You don‟t judge somebody in this world by what

their parents are like. [¶] The defense wants to make you feel like you‟ll be

punishing good people that don‟t deserve punishment if you return a death verdict

in this case. And I think we can understand why. There‟s nothing redeeming in

[defendant] to point to. And so we‟ll try to hide behind his family. What other

reason could there be for bringing that out? [Defendant] has a good family.”

(Italics added.)

Continuing the argument that the defense had presented the testimony of

defendant‟s family solely to cause the jury to develop feelings of sympathy for the

family members, the prosecutor argued that other reasons for calling family

members did not exist, but certainly would have been argued had they been

present. “And you can bet your last dollar, if he had a dysfunctional family, that

would be urged to you as a reason to give him life without parole. He never had a

square shot in this world. He had a bad father, a bad mother, wasn‟t brought up

right, never had a chance. That isn‟t the case. He had a good family. And you

72
saw them here. And, if anything, that‟s less of a reason for him to do what he

did.” (Italics added.)

The prosecutor then claimed that if defendant had experienced the difficult

family life endured by the murder victim, the defense certainly would have

presented such evidence. Because, in the prosecutor‟s view, the defense would

have made that argument had the evidence been available, the defense was

“try[ing] to have it both ways.” Thus, the prosecutor argued: “Think for a minute.

What if Lance Clark had grown up and this had never happened to him, and he

went out and did something like [defendant] did, and he was on trial? If he were

being defendant, they‟d say, well, his father is a drug addict and a thief, how do

you expect him to turn out. See, they try to have it both ways. They want you to

judge him by virtue of his parents.” (Italics added.)

Defendant contends the italicized portions of the argument constituted

misconduct because they invited irrelevant speculation and suggested that the

decision to present the testimony of defense witnesses concerning defendant‟s

upbringing was cynical and hypocritical. This claim is forfeited because there was

no objection. (People v. Wilson, supra, 44 Cal.4th at p. 800.) In any event, the

claim also lacks merit, because the prosecutor‟s central argument was that the

defense evidence in mitigation was meaningful only because it elicited sympathy

for the defendant‟s family. He urged the jury not to find mitigation on the basis of

such sympathy. He suggested that sympathy for defendant‟s family could not be

considered in mitigation. This argument is consistent with the law. (People v.

Ochoa (1998) 19 Cal.4th 353, 456; see also People v. Carter (2003) 30 Cal.4th

1166, 1205.) The suggestion of cynicism and hypocrisy on the part of the defense

was a passing comment, not the sort of sustained broadside attack on defense

counsel we condemned in People v. Hill, supra, 17 Cal.4th at pages 832-834.

73
Defendant claims the argument was particularly harmful because it played

on the jurors‟ prejudice against criminal defendants based upon the assumption

that all criminals seek to avoid responsibility for their actions, whereas he

accepted responsibility by contacting the police and by testifying. In our view,

however, the jury was perfectly capable of drawing its own inferences from the

evidence and deciding whether it believed defendant had taken full responsibility

for his actions. In the context of the argument as a whole, any prejudice arising

from the prosecutor‟s suggestion could have been cured by a timely objection and

admonition to the jury, and it was not reasonably possible there would have been a

different outcome in the absence of the prosecutor‟s argument.

Defendant contends that the alleged misconduct in closing argument was

particularly prejudicial, in part because “[t]he facts of [the] case did not strongly

support the death penalty” and the jury deliberated the question of punishment for

“at least seven full days.” He also directs our attention to misconduct that

assertedly occurred at the guilt phase of the trial, and claims that pervasive

attempts to disparage defense counsel and to inflame the jury affected the verdict.

It is not our function to reweigh the case in aggravation and mitigation. In

any event, although defendant characterizes his crime as an “impulsive robbery”

ending in a death that was “not a calculated murder,” there was evidence

establishing that the robbery had been planned; that defendant had armed himself

for the purpose of robbing a woman who was 70 years of age; and that when

defendant shot Bernice Clark, he intended to kill her because she had recognized

him and would be able to identify him. The jury properly was instructed that

counsel‟s statements do not constitute evidence and that the jurors should decide

the case purely upon the basis of the admitted evidence. Most jurors presumably

are aware that defense counsel‟s duty to provide a vigorous defense extends to the

penalty phase. In sum, it is not reasonably possible the verdict was affected by the

74
prosecutor‟s suggestion that defense counsel would seize on any conceivable

circumstance to influence the jury.

Defendant contends the prosecutor committed misconduct by requesting

that the jury imagine the murder victim‟s experience: “Think about what it must

have felt like for Lance Clark to have a hot piece of lead tear through his chest, go

through his heart, his lungs, his liver and come out his back.” Defendant does not

allege the argument misstates the evidence, and we have concluded that at the

penalty phase, the prosecutor ordinarily may ask the jury to consider the pain

suffered by the victim. (People v. Stitely, supra, 35 Cal.4th at p. 568; People v.

Cole (2004) 33 Cal.4th 1158, 1233-1234.) Contrary to defendant‟s claim, it is not

improper at that phase of the trial for the prosecutor to “invite the jurors to put

themselves in the place of the victims and imagine their suffering.” (People v.

Slaughter (2002) 27 Cal.4th 1187, 1212.) We do not consider the prosecutor‟s

statement inflammatory.

Defendant contends the prosecutor improperly urged the jury to consider

the absence of mitigating evidence as a circumstance in aggravation. (See People

v. Davenport (1985) 41 Cal.3d 247, 288-289.) Defendant claims “[t]he

prosecutor clearly argued that the evidence provided by [defendant‟s] family — a

factor in mitigation under [section 190.3] factor (k) — constituted evidence in

aggravation and did not provide any extenuation for the crime, nor anything that

the jury should consider. Further, by arguing that [defendant] had a better family

than did the victim, the prosecutor implied that [defendant] should be punished for

victimizing someone less fortunate than himself.” Because defendant failed to

object in the trial court, the issue is forfeited. (People v. Wilson, supra, 44 Cal.4th

at p. 800; People v. Wader (1993) 5 Cal.4th 610, 659, fn. 9.) This claim was not

revived by the filing of a motion for new trial raising the Davenport claim.

(People v. Williams (1997) 16 Cal.4th 153, 254.)

75
In any event, the prosecutor did not argue that the absence of evidence in

mitigation constituted evidence in aggravation. In our view, he merely argued that

defendant‟s proffered evidence in mitigation was not entitled to great weight,

because its chief impact was to render the jury sympathetic to defendant‟s family

members — and sympathy for family members is not properly considered in

mitigation. The prosecutor‟s comparison between defendant‟s family and that of

the victim, if considered in context, served to highlight the absence of any

mitigating evidence of personal hardship in defendant‟s background.

4. CALJIC No. 8.84.1

During discussion of proposed penalty phase instructions to the jury,

defendant requested that the language of pattern instruction CALJIC No. 8.84.1 be

modified.12 Counsel argued: “I do have a request for a modification . . . where

the [instruction] reads, „you must neither be influenced by bias nor prejudice

against the defendant, nor swayed by public opinion or public feelings‟ . . . and

„the people and the defendant have a right to expect that you will consider all of

the evidence, follow the law, exercise your discretion conscientiously, and reach a

just verdict.‟ [¶] I would like to add a sentence to that . . . [saying] that you are to

reach your verdict based upon the evidence, and should not either speculate, you

know, not be subject either to speculation or conjecture.” Counsel contended that

the jury, rather than engage in conjecture, must make the penalty decision solely

12

The court delivered the pattern instruction as follows: “You must

determine what the facts are from the evidence received during the entire trial
unless you are instructed otherwise. [¶] You must accept and follow the law that I
. . . state to you. Disregard all other instructions given to you in other phases of
this trial. [¶] You must neither be influenced by bias nor prejudice against the
defendant nor swayed by public opinion or public feelings. Both the people and
the defendant have a right to expect that you will consider all of the evidence,
follow the law, exercise your discretion conscientiously and reach a just verdict.”

76
upon the basis of the evidence introduced at trial. He stated: “Clearly it‟s the law

. . . that they can‟t speculate or conject[ure], but are only supposed to use the

evidence as it‟s been presented to them. That was — conjecture, for some reason

got left out of this instruction when they went over to capital. And I believe that to

be a fair statement of the law.”

The trial court declined defense counsel‟s invitation to modify the

instruction, commenting that the proposed amendment to CALJIC 8.84.1 could

have confused the jury in that it stood in tension with the normative and

individualized nature of the jury‟s task at the penalty phase of the trial.

On appeal, defendant contends the trial court abused its discretion by

refusing to add the language proposed by the defense. He claims that without the

modification, the pattern instruction “allowed the jury to speculate regarding

matters outside the guilt and penalty phase evidence.”

“To determine whether the trial court erred in instructing the jury, „we

examine the entire record, including the instructions and arguments, to determine

whether the jury was misled to the prejudice of the defendant about the scope of

its sentencing discretion. [Citation.] We must ascertain whether, overall, the jury

was adequately informed of the full nature of its sentencing responsibility, both as

to the manner in which the various factors are to be weighed and as to the scope of

its sentencing discretion. [Citation.]‟ ” (People v. Slaughter, supra, 27 Cal.4th at

p. 1215.) Ordinarily, “ „[w]e presume that jurors comprehend and accept the

court‟s directions.‟ ” (People v. Welch (1999) 20 Cal.4th 701, 773.)13

13

Defendant asserts that evidence submitted in support of his motion for new

trial supports the view that jurors “in fact speculated about matters outside the
record.” He refers to hearsay evidence, consisting of postverdict remarks by jurors
to a defense investigator. In a later discussion, we conclude those remarks should
not be considered to impeach the verdict. (See post, pp. 99-101.)

77
The trial court did not abuse its discretion. Defendant‟s concern that the

jury not base its decision upon the existence of facts not introduced in evidence

was met by other instructions. The trial court reminded the jury that they “must

decide all questions of fact in this case from the evidence received in this trial and

not from any other source.” (CALJIC No. 1.03.) The jury‟s factfinding function

was described adequately in this and other instructions.14

5. Asserted error in responding to a question by the jury concerning

section 190.3, factor (k) and the absence of remorse


Defendant contends that the court erred in responding to a question posed

by the jury during deliberations. According to defendant, the court‟s response

directed that remorse not be considered as a factor in mitigation, and indeed that

absence of remorse should be considered in aggravation. He claims the court‟s

asserted error violated his rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution by elevating absence of remorse

into a circumstance in aggravation.

Defendant‟s claim is based upon the following circumstances. On the fifth

day of deliberations, the jury delivered the following note to the court: “We the

jury . . . request the following, the second paragraph on page 45 [of the written

jury instructions] . . . states that we, as jurors, shall consider, take into account and


14

We refer to portions of CALJIC Nos. 8.84.1 as delivered at trial (“You

must determine what the facts are from the evidence received during the entire
trial unless you are instructed otherwise”) and 8.85 as delivered at trial (“In
determining which penalty is to be imposed on the defendant you shall consider all
of the evidence which has been received during any part of the trial of this case
except as you may be hereafter instructed”). The trial court also repeated guilt
phase instructions defining evidence, circumstantial evidence, inferences, and the
manner in which various types of evidence should be considered and weighed.

78
be guided by the applicable factors of aggravating and mitigating circumstances.

Are we to assume that these circumstances are A through K as stated on pages 25

through 27, or can we look at all the circumstances, regardless of being on A

through K . . . , or not?”

The court responded that “the factors of aggravating and mitigating

circumstances are stated in jury instruction 8.85, factors A through K . . . . [¶]

However, I need to ask you a question as to the meaning of the last . . . paragraph

of the note . . . . [¶] The last question, the one I‟m inquiring about is, „or can we

look at all circumstances, regardless of being an A through K factor or not?‟ ” At

defense counsel‟s request the court inquired: “My question is, is there any

particular evidence or testimony that is the subject of your inquiry here?”

The jury foreperson initially requested to consult with the jury as a whole,

but then responded: “I would think it would be in regard to the circumstances in

regard to information at the trial — all the information.” The foreperson repeated:

“I would think it would be in regard to the circumstances related to the trials, the

testimony, and it would be in general.”

The court responded as follows: “Then I will give you what is . . . a partial

response, but I still think I need to have you focus with a little more specificity . . .

as to what it is you‟re asking about or what it is you‟re thinking about in terms of

that last question.” The court continued: “When jury instruction 8.88 . . . states

„after having heard all of the evidence and after having heard and considered the

arguments of counsel, you shall consider, take into account and be guided by the

applicable factors of aggravating and mitigating circumstances upon which you

have been instructed‟ . . . the applicable factors of aggravating and mitigating

circumstances are defined in jury instruction 8.85 . . . and they are . . . found

within items that are labeled parenthesis A through parenthesis K. [¶] Now, my

question is, is there any particular testimony or evidence that you are inquiring

79
about with respect to where it fits or could fit in that framework of factors that are

listed A through K?”

The jury responded with two additional notes to the court. The notes read

as follows: “Can we, as jurors, consider, take into account and be guided by

anything other than the evidence which was received during both phases of the

trial, as they pertain to factors A through K? Can we look at factors other than A

through K, such as the remorse or lack of remorse exhibited by the defendant?”

The second note read as follows: “Under K are we allowed to consider the pleas

by both the victim‟s family and defendant‟s family?

The court excused the jury for the day and discussed the notes with counsel.

The matter was discussed in chambers again the following morning. Ultimately,

the court responded to the two notes in comments and instructions that span six

pages of transcript. Defense counsel agreed that the court‟s statements represented

the appropriate response to the jury‟s questions.

Concerning remorse, the court responded to the jury‟s question as follows:

“You may properly consider evidence tending to show remorse or the lack of

remorse exhibited by the defendant, as you determine the evidence to be. [¶] To

the extent such evidence tends to show the defendant‟s lack of remorse regarding

the crimes of which he has been convicted, if you determine such to be the case,

such evidence may not be considered by you as a factor or circumstance in

aggravation. [¶] Lack of remorse, if such is the case, is not a factor in

aggravation and cannot be considered as such by you. [¶] However, you may

consider such evidence as tending to establish the absence or lack of remorse as a

mitigating factor, in other words, as tending to show that remorse, an appropriate

factor in mitigation in any case, under factor K, in instruction 8.85, is absent in

this case. [¶] Whether the evidence does, in fact, show the presence or absence of

remorse as a mitigating factor under factor K, and the weight and significance, if

80
any, which should be given such facts are exclusively matters for your

determination.” (Italics added.)

The court proceeded to discuss victim-impact evidence and the question

whether the jury might consider factors other than those enumerated in the statute.

“The factors set forth in jury instruction 8.85, paragraphs A through K, is the

exclusive list of those factors which you shall consider, take into account and be

guided by, if applicable. In other words, the only factors you shall consider, take

into account and be guided by are those factors defined in paragraphs A through K

in this instruction. [¶] However, I remind you of another principle . . . that you

must consider the instructions as a whole . . . .” The court then reread pattern

instructions CALJIC Nos. 8.85 and 8.88 to the jury.

As defense counsel at trial himself agreed, the court‟s instruction properly

informed the jury in what respects remorse or absence of remorse were pertinent

to section 190.3, factor (k), explaining plainly and repeatedly that absence of

remorse may not be considered as a circumstance in aggravation, but that absence

of remorse may be considered as “ „relevant to the question of whether remorse is

present as a mitigating circumstance . . . .‟ ” (People v. Bonilla (2007) 41 Cal.4th

313, 356.)

Defendant concedes that this court has concluded that a prosecutor may

urge the jury to consider absence of remorse for the purpose of demonstrating the

absence of a mitigating circumstance. Defendant claims, however, that although

“such argument is permissible, an instruction from the trial court directing the jury

to consider lack of remorse under [section 190.3,] factor (k) presents a reasonable

likelihood of transforming lack of remorse into a factor in aggravation.” This

claim lacks merit, in view of the circumstances that the instruction was necessary

because the jury requested guidance on this specific point (see § 1138), that the

court gave an answer (consistent with the law) stressing evidence of absence of

81
remorse could not be considered in aggravation, and that the answer to the jury‟s

question was approved by defense counsel. (See People v. Marks (2003) 31 Cal.

4th 197, 237 [a response that is generally consistent with the law cannot be

challenged for the first time on appeal in the absence of a request for modification

or clarification]; see also People v. Roldan (2005) 35 Cal.4th 646, 729 [if a party

fails to object to a court‟s response to a question posed by the jury during

deliberations, any claim on appeal based upon the court‟s response ordinarily is

forfeited], disapproved on another ground in People v Doolin, supra, 45 Cal.4th at

p. 421, fn. 22; People v. Benavides, supra, 35 Cal.4th at p. 114 [same]; People v.

Martinez (2003) 31 Cal.4th 673, 698 [same]; People v. Boyette, supra, 29 Cal.4th

at p. 430 [failure to object deemed a tacit approval]; and see People v. Hughes

(2002) 27 Cal.4th 287, 402 [trial counsel‟s agreement with court‟s response

forfeits a claim of error on appeal].)

We do not find any merit in defendant‟s claims that the court‟s response

was argumentative, favored the prosecution, or suggested that evidence in

mitigation could not be considered or was absent.

6. Absence of unanimity instruction

Defendant contends the trial court erred by refusing to instruct the jury that

it should not consider a factor in aggravation unless it had unanimously

determined that defendant committed the act and that (in the case of § 190.3,

factor (b)) it was established beyond a reasonable doubt that the uncharged

criminal activity carried an implied threat of violence. Defendant claims a

violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution.

The jury was instructed it could not consider the uncharged criminal

activity in aggravation unless defendant‟s guilt was proved beyond a reasonable

82
doubt. The court supplied extensive instruction on the elements of the firearms

offenses, concerning which evidence was introduced at the penalty phase. The

court declined to require that the jury agree unanimously that the prior crime or

crimes had been committed. The trial court also declined to instruct the jury that it

must agree unanimously and beyond a reasonable doubt that the uncharged

criminal activity involved a threat or implied threat of violence. The trial court

acted appropriately.

The “jury need not unanimously agree on the truth of aggravating factors.”

(People v. Hines (1997) 15 Cal.4th 997, 1066.) More specifically, “[j]ury

unanimity is not required with respect to unadjudicated criminal conduct.”

(People v. Harris (2008) 43 Cal.4th 1269, 1316.) Juries are not required to agree

unanimously on “foundational” matters such as that a crime involving violence

has been committed. (See People v. Hines, supra, 15 Cal.4th at pp. 1066-1067,

see also People v. Brown (2004) 33 Cal.4th 382, 402.) We also have rejected

claims that Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002)
536 U.S. 584, or Cunningham v. California (2007) 549 U.S. 270, require juries to

enter unanimous findings concerning aggravating factors. (People v. Salcido,

supra, 44 Cal.4th at p. 167; see also People v. Williams (2008) 43 Cal.4th 584,

649.) We decline defendant‟s invitation to reconsider our prior decisions.

7. Court‟s asserted suggestion that the jury could reconsider its guilt

phase “not true” finding

As noted, at the guilt phase of the trial the jury convicted defendant of the

first degree murder of Lance Clark and found true a felony-murder special-

circumstance allegation. The jury also convicted defendant of the attempted

murder of Bernice Clark but found not true an allegation that the attempted murder

was willful, deliberate, and premeditated.

83
The jury posed the following question during deliberations: “Even though

we agreed that the death of Lance Clark was murder of the first degree because it

happened during the commission of a robbery (felony-murder law . . . ) are we

now permitted to look at the willful, premeditated and deliberate nature of this

killing under factor A?”15

The court responded: “You may consider such factors under factor A of

jury instruction 8.85 in your consideration of the circumstances of the crime of

which the defendant was convicted in the present proceeding and the existence of

any special circumstance found to be true.”

Defense counsel did not object to the court‟s response to the jury‟s question

or request that the jury be reminded of its “not true” finding in connection with the

allegation that the attempted murder of Bernice was willful, deliberate, and

premeditated. Indeed, the court stated on the record that the court and counsel

discussed the jury‟s questions and agreed upon the wording of the court‟s

response.16


15

This question was presented to the court at the same time the jury inquired

whether counsel had entered into a stipulation concerning the prior incident
involving a threat of violence.

16

The court off the record discussed the jurors‟ queries with counsel, then

returned to proceed on the record to summarize the substance of the unrecorded
conferences. In doing so, the court failed to comply with section 190.9, which
requires all conferences and proceedings during capital trials to be “on the record
with a court reporter present.” (See also People v. Rundle, supra, 43 Cal.4th at
p. 110 [quoting statute].) The record is adequate for us to determine whether
defense counsel preserved objections for appeal and to conclude that certain
claims are forfeited, however, because the court placed a nearly contemporaneous
description of the unreported conferences on the record and provided defense
counsel and the prosecutor with an opportunity to comment and to preserve
objections for the record. (See id., pp. 111-112 & fn. 8.)

84
On appeal, defendant claims that the court‟s response failed to take into

account the danger that the jury would reconsider its prior verdict. He claims the

jury‟s verdict on the charge of attempted murder of Bernice Clark — a verdict

convicting defendant of the attempted murder but acquitting him of having

committed a willful, deliberate, and premeditated attempted murder — established

that the jury acquitted defendant of having committed a willful, deliberate,

premeditated murder of Lance Clark, and that the jury should have been so

informed to avoid violating double jeopardy principles that defendant invokes for

the first time on appeal. Defendant claims that the unusual facts of the case

established an implied acquittal, thereby requiring deviation from the general rule

that, if the trial is based upon an accusatory pleading charging two or more crimes,

“[a]n acquittal of one or more counts shall not be deemed an acquittal of any other

count” (§ 954), and also from the general rule that “ „ “[t]he murder of two

persons, even by the same act, constitutes two offenses, for each of which a

separate prosecution will lie, and . . . a conviction or acquittal in one case does not

bar a prosecution in the other.” ‟ [Citations.]” (People v. Carpenter (1999) 21

Cal.4th 1016, 1039, fn. 4.) He points to the circumstance that a single shot

accomplished both the attempted murder and the murder, claiming that the jury‟s

verdict on the attempted murder charge therefore essentially constituted a special

verdict or finding with respect to the mental state involved in the murder. He

claims this asserted special verdict should have barred “reconsideration” of

willfulness, deliberation, and premeditation as circumstances of the crime under

section 190.3, factor (a). He asserts the court‟s response constituted an error

under section 190.3, factor (a), which refers only to consideration of circumstances

85
of the crimes of which the defendant was convicted, and that the error violated the

federal double jeopardy clause.17 He also urges that the asserted error constituted

a violation of the Eighth Amendment to the United States Constitution, because it

undermined the reliability of the proceedings.

We note that even if we were to accept the debatable general premise of

defendant‟s collateral estoppel argument, his claim contains analytical flaws. For

example, the “not true” finding constituted a finding that the prosecutor had failed

to prove that the attempted murder of Bernice Clark was willful, deliberate, and

premeditated, but the verdict did not establish that the jury agreed none of those

mental states had been established. The verdicts certainly did not reflect a finding

that the attempted murder of Bernice was not willful. A killing is willful if intent

to kill is proved (People v. Moon (2005) 37 Cal.4th 1, 29), and the attempted-

murder verdict established the jury found intent to kill. (People v. Smith (2005) 37

Cal.4th 733, 739.) The element of willfulness was the focus of the parties‟ closing

arguments and was impervious to any possible attack based upon collateral

estoppel principles.

In any event, defendant‟s claim is forfeited on appeal, because defendant

did not object or request clarification at trial; he instead agreed with the court‟s

formulation.

The court is under a general obligation to “clear up any instructional

confusion expressed by the jury,” but “[w]here . . . the original instructions are

themselves full and complete, the court has discretion . . . to determine what

additional explanations are sufficient to satisfy the jury‟s request for information.”


17

Defendant refers to parallel provisions of the California Constitution but

does not present separate argument and analysis based upon California law.
Accordingly we do not address his claim under California constitutional law.

86
(People v. Gonzalez, (1990) 51 Cal.3d 1179, 1212, 1213; see also People v.

Smithey (1999) 20 Cal.4th 936, 985; § 1138.)

When the trial court responds to a question from a deliberating jury with a

generally correct and pertinent statement of the law, a party who believes the

court‟s response should be modified or clarified must make a contemporaneous

request to that effect; failure to object to the trial court‟s wording or to request

clarification results in forfeiture of the claim on appeal. (People v. Marks, supra,

31 Cal. 4th at p. 237; see also People v. Roldan, supra, 35 Cal.4th at p. 729;

People v. Benavides, supra, 35 Cal.4th at p. 114; People v. Martinez, supra, 31

Cal.4th at p. 698.)

It is appropriate to apply this forfeiture rule in the present case. Guilt phase

instructions permitted the jury to convict defendant of the first degree murder of

Lance Clark on a felony-murder theory, which does not require proof of malice

(People v. Dillon (1983) 34 Cal.3d 441, 474-475; see also People v. Patterson

(1989) 49 Cal.3d 615, 626), or alternatively on the theory that the murder was

committed with malice aforethought. (§§ 188, 189.) The jury evidently was

concerned because it had based the first degree murder verdict on a felony-murder

theory, but was uncertain whether at the penalty phase it was permissible to

consider such mental elements as to which it had been instructed with respect to

the other theory of first degree murder. The court‟s answer to the jury‟s question

was correct in that a jury that has convicted the defendant of first degree murder

on the basis of a felony-murder theory may consider, as part of its evaluation of

defendant‟s culpability and its moral and normative decision concerning the

appropriate penalty, the defendant‟s state of mind with respect to the murder —

that is, whether the defendant also intended to kill or acted with malice

87
aforethought.18 It was this information that the court‟s response conveyed, and we

conclude the jury would have understood the court‟s response in this manner. If

the defendant wished to limit or clarify the information conveyed by the court,

defense counsel should have requested limitation or clarification.

Defendant contends that although defense counsel did not object or request

clarification at the time the court responded to the jury‟s question, his attorney

subsequently brought the matter to the court‟s attention. We shall recount the

action taken by defense counsel, but we emphasize that the ensuing discussion did

not concern the response by the court that defendant now attacks on appeal.

Rather, the discussion occurred after the court had proposed a response, secured

defense counsel‟s agreement to the suggested wording, and delivered the agreed-

upon explanation to the jury. Additionally, the discussion noted below occurred

after the jury had resumed its deliberations, and after two of its members

subsequently were excused.

The sequence of events was as follows. After two deliberating jurors were

excused and alternate jurors were seated, the court and counsel discussed the

principle that, after substitution of jurors during deliberations, the jury should be


18

The defendant‟s culpable mental state may be considered as a circumstance

of the crime under section 190.3, factor (a). (People v. Catlin (2001) 26 Cal.4th
81, 175.) Even when the verdict is based upon a felony-murder theory, it is
appropriate to consider any apparent premeditation on the part of the defendant as
an aggravating circumstance of the crime. (See People v. DePriest (2007) 42
Cal.4th 1, 57 [in denying a motion to modify the verdict, the trial court properly
weighed the sentencing factors, including the “premeditated and brutal nature” of
the attack on the robbery-murder victim]; see also People v. Sturm (2006) 37
Cal.4th 1218, 1246, fn. 1 (dis. opn. of Baxter, J.) [“Of course, the guilt jury‟s
failure to return a „premeditated murder‟ verdict did not prevent the penalty jurors
from concluding, as a circumstance of the crime [citation], that the murder was
premeditated”].)

88
directed to begin its deliberations anew. The court expressed concern that the

jurors might believe that because of the substitution they must “begin deliberations

regarding the guilt phase of this trial again and that‟s clearly not the intent of the

instruction or the law.” (Italics added.) The court therefore proposed that the jury

be directed to commence the penalty phase deliberations anew. Defense counsel

commented: “And for the record . . . I am specifically requesting this because at

the time of the guilt phase they found a nonpremeditated murder and I don‟t . . .

want to revisit that. They have made a finding and I believe we have a right to

have that finding be an appropriate finding.” This comment clearly suggests that

defense counsel did not believe the court‟s response to the jury‟s question

suggested to the jury that it should reconsider its prior verdicts.

The prosecutor‟s subsequent reply is significant, because defense counsel

stated he agreed with it. The prosecutor responded that it could not be determined

that the jury acquitted defendant of the premeditated murder of Lance Clark and

that, in any event, “they‟re free under the law to consider the circumstances of the

offense as they see fit, . . . based on all the evidence . . . . But the fact that they

had a reasonable doubt as to whether or not the murder was willful, deliberate and

premeditated would not prevent them from considering either the theory of willful,

deliberate and premeditated or certain parts of it and you never know if they had a

reasonable doubt as to one part . . . . [¶] In any event, the burden of proof of the

circumstances of the events is not beyond a reasonable doubt and therefore a jury

could have conceivably been convinced to some extent that it was actually

deliberate and premeditated or some part thereof and yet not be convinced beyond

a reasonable doubt of that, but would be free to revisit those views as it bears on

the circumstances of the offense because there is a different burden of proof, and

by their finding that the attempted murder was not the finding, not the true

89
premeditation clause, does not prevent them from considering any part of the state

of mind that that instruction defines.” (Italics added.)

The court stated it agreed with defense counsel that the jury should not

recommence deliberations on the guilt verdicts. At the same time, the court added,

“[t]he law is clear they should consider the circumstances of the crime as one of

the factors under [section 190.3, factor (a)] as one of the things they may consider

in determining appropriate penalty. [¶] So certainly they are free and I have told

them previously in response to earlier notes that is precisely what they may

do . . . .”

Defense counsel responded, “I‟m not arguing with his [the prosecutor‟s]

statement as to what they can consider, I believe the instruction [concerning

recommencing deliberation] as amended more accurately tells them what they‟re

supposed to be doing and with this jury I may not live long enough for them to go

back and relitigate both parts of the case.” (Italics added.)

The court instructed the jury to begin its deliberations “from the

beginning,” but explained: “You must therefore set aside and disregard all past

deliberations at the penalty phase of the trial and begin deliberating anew. This

means that each remaining original juror must set aside and disregard the earlier

deliberations at the penalty phase of the trial as if they [had] not taken place.”

Under the circumstances described above, trial counsel did not preserve the

issue that defendant now seeks to raise.

Moreover, we conclude it is not reasonably likely the jury would

understand the court‟s response as an invitation to reconsider its verdict (see

People v. Cain, supra, 10 Cal.4th at p. 69; see also People v. Coffman and

Marlow, supra, 34 Cal.4th at p. 123), especially in light of the apparent purpose of

the jury‟s question — to determine generally whether it could consider

defendant‟s mental state with reference to the murder of Lance Clark despite the

90
circumstance that the murder verdict rested upon a felony-murder theory. Our

examination of the arguments of counsel supports our conclusion. The focus of

the closing arguments was upon intent to kill rather than premeditation; the

prosecutor‟s closing argument did not suggest that the jury reconsider its prior

guilt phase verdicts; and defense counsel reminded the jury that it had determined

the attempted murder was not premeditated — a reminder that was not rebutted.

Thus, in his closing argument at the penalty phase of the trial, the

prosecutor did not ask the jury to reconsider its prior finding that the allegation

that the attempted murder of Bernice Clark occurred with premeditation,

deliberation, and willfulness was not true. Rather, he informed the jury that he

anticipated the defense would renew its claim that the shooting was accidental or

at least did not involve intent to kill. He reminded the jury it had found intent to

kill when it convicted defendant of the attempted murder of Bernice. The

prosecutor argued that the robbery was planned and that when defendant prepared

for the robbery, he contemplated the possibility he might employ deadly force

against a weak and elderly victim. The prosecutor stressed that intent to kill could

be inferred from this preparation and from the circumstance that defendant

realized Bernice had recognized him.

For its part, the defense‟s closing argument reminded the jury of its

apparent conclusion that the attempted murder of Bernice Clark involved intent to

kill but was not premeditated, and it focused on asking the jury to recognize some

lingering doubt concerning the question whether the shooting involved an intent to

kill or was entirely accidental. Defense counsel urged that even if defendant

formed the intent to kill, the death penalty was not warranted. The prosecutor did

not offer argument in rebuttal to this point.

In addition, the jury did not pose a question specifically directed at

reconsideration of prior guilt phase verdicts or findings, nor was the court‟s

91
response directed to that possibility. We also note defense counsel‟s evident

understanding that the trial court‟s response had not invited the jury to reconsider

its prior guilt phase verdicts.

Furthermore, the court instructed and reinstructed the jury (in the terms of

the statute) that it should consider the circumstances of the crimes of which

defendant was convicted, thereby rendering it unlikely the jury would consider an

allegation that it had found not to be true.19 Finally, after the alternate jurors had

been seated, the court reminded the reconstituted jury to recommence deliberation

solely on the potential penalty phase verdict — thereby informing the former

alternates who had not participated in the guilt verdicts and findings that their task

did not include reconsidering those matters. Under these circumstances, it is not

reasonably likely the jury, including the newly seated alternates, would have

reexamined the guilt phase verdicts.

8. Asserted juror misconduct

Defendant contends that prejudicial juror misconduct occurred at the

penalty phase of the trial. His principal argument is that the trial court abused its

discretion by declining to conduct an evidentiary hearing concerning the issue of

juror misconduct. He also claims the trial court erred by denying his motion for

new trial. He contends the error violated his rights under the Fifth, Sixth, and

Seventh Amendments to the federal Constitution.


19

As we have observed, having received appropriate instruction — and

reinstruction — in the language of section 190.3, factor (a), which permits the
jurors to consider the circumstances of the crimes of which the defendant was
convicted, it is not reasonably likely they “were misled to believe they should
ignore their own not guilty verdict . . . .” (People v. Cain, supra, 10 Cal.4th at
p. 69.)

92
On November 5, 1995, following the jury‟s verdict of death, defendant

submitted a motion for new trial based upon asserted prosecutorial misconduct.

Attached to the motion were reports prepared by the defense investigator

concerning postverdict interviews with several jurors. The trial court granted

defense counsel‟s request for additional time in which to prepare a written motion

for new trial based upon the allegation of juror misconduct.

On November 30, 1995, defense counsel filed the anticipated motion for

new trial based upon his claim of juror misconduct. The motion alleged that

“three separate claims of jury error must be addressed. [¶] First . . . did the jury

discuss the opinion that death did not mean death, despite the court[‟s]

instructions. Second, did the jury discuss the defendant[‟s] lack of remorse as a

factor in aggravation. Third, did the jury discuss that „life does not mean life.‟

Based upon these facts, it would appear that the jury discussed, and hence may

have considered information that was improper.” (Fns. omitted.) Attached to the

motion were unsworn reports, prepared for defense counsel by the defense

investigator, concerning interviews with several jurors. The motion was based

exclusively on the three enumerated claims and concluded with a request for an

evidentiary hearing after which, the motion asserted, “the parties can discuss [the]

impact, if any of the record.” The motion added that “since the error goes only to

the penalty phase, if the court were to reduce the sentence to [life in prison without

possibility of parole], the issue becomes [moot].”

In his opposition, filed December 11, 1995, the prosecutor contended that

the unsworn hearsay reports prepared by the investigator were not a competent

basis upon which to grant a motion for new trial and that, in any event, prejudicial

juror misconduct had not been demonstrated.

More than one week later, the trial court conducted a hearing, advising

counsel that it had considered with care defendant‟s motion and the People‟s

93
opposition. The court inquired whether the parties wished to comment, and

defense counsel responded that “the next logical step would be the submission of

affidavits.” Defense counsel claimed he had not submitted affidavits in support of

the motion, because he understood from the court that it first would make a

“threshold decision” concerning the truth of the allegations, in order to avoid

“bothering the jury.”

The prosecutor objected that the court had not suggested such a bifurcated

proceeding. More significantly, the court emphatically denied it had done so. The

court also denied having instructed defense counsel concerning how to approach

the jurors.

The court concluded that the investigator‟s unsworn reports to defense

counsel were not admissible to impeach the verdict. It added that, even if the

investigator‟s hearsay reports were considered, defendant‟s allegations lacked

merit. Finally, the court determined that the motion did not provide a sufficient

basis for conducting an evidentiary hearing.

Defendant contends the trial court abused its discretion in declining to

conduct an evidentiary hearing on the issue of asserted juror misconduct and in

denying the motion for new trial. He renews the claims he made in the trial court

based on statements allegedly made by Jurors R.A., S.L., and F.C. to the defense

investigator.

According to defendant, Juror R.A. “recalled a discussion that a death

sentence did not mean the defendant actually would be executed.” As we read the

record, when the investigator asked the juror whether she remembered anyone

“discussing the topic that the Death Penalty does not necessarily mean that

someone will be put to death, in light of the fact that there have been very few

executions in recent history,” R.A. responded that “she remembered that there was

some opinion stated along that topic” and that “a few people commented on that

94
topic.” She added that “she did not think it influenced anyone‟s opinion nor their

decision to vote for the death penalty.”

Defendant claims Juror S.L.‟s misconduct appears from her comment to the

defense investigator that “ „to be honest, if we thought he would actually get death,

we probably wouldn‟t put him to death.‟ ”20

Defendant claims that Juror F.C.‟s misconduct is evident because,

according to defendant, she informed the investigator that “she had relayed to

other jurors that she had „worked for a lawyer in the Fresno courthouse‟ and had

seen many people get sentenced to life without possibility of parole, but

nonetheless be released from prison.” The record, however, reflects the

circumstance that F.C. told the investigator about her work experience. The

investigator‟s report does not relate that F.C. stated she conveyed her supposed

work experience — which occurred between 1973 and 1974, more than 20 years

prior to the trial and prior to the enactment of the current death penalty statute —

to other jurors as the source of her belief that persons sentenced to life in prison

without parole may be released from prison.21 According to the investigator, F.C.


20

According to the defense investigator‟s report attached to the motion, when

Juror S.L. was asked what caused her to decide on a death verdict, she “began
immediately by saying that in her opinion, „to be honest, if we thought he would
actually get death, we probably wouldn‟t put him to death. There have been only
two in the last 28 years.‟ . . . She explained that it was her opinion that there was
little likelihood that he would actually get the death penalty . . . .” When
questioned further concerning her opinion that it was unlikely defendant would be
executed, “she reaffirmed that [it] was her opinion only.” When asked whether
other jurors “felt the same way or had used the same reasoning,” she responded “it
was her opinion that they may have felt somewhat similar to her in that a death
penalty does not necessarily mean that he would actually be executed.”

21

The defense investigator‟s account of Juror F.C.‟s statement reflects that,

when asked the “main factors” she considered in arriving at the verdict, she
mentioned various aspects of the evidence, adding that the jury “felt that there was

(footnote continued on next page)

95
also stated that “the jurors felt that their concerns about his getting out of prison

were not considered to be reasons to give the death penalty.” She informed the

investigator that she told other jurors who wondered whether a death sentence

would be carried out that the speculation was not appropriate and “that they should

consider the death penalty as something that for all their knowledge they might

give a verdict out and he might be executed the next week.”22

(footnote continued from previous page)

a likelihood that the defendant would „do it again.‟ ” According to the defense
investigator, F.C. informed him that “she worked for a lawyer in the Fresno
courthouse and said that she had seen many people get sentenced to life without
possibility of parole and in fact eventually get out of prison. [¶] She stated that
she . . . did not want to see this defendant get out of prison. She said that all of the
jurors were afraid that he would get out because of his young age and she said that
she knew of three instances where people had gotten life without parole and had
actually gotten out of prison. [¶] She said that there were several of the jurors
who similarly commented that they had heard of it happening. She believes that
there were at least three other jurors who had heard of cases where people had
been given life, but were actually released from prison earlier.” She added that
“[s]ome of the jurors said that if they gave [defendant] the death penalty, it was
possible that he would never get executed, but it would certainly be harder for him
to get out of jail and certainly a harder punishment by being sentenced to death
and incarcerated,” but “she stated that she told the jurors that that was not
appropriate to consider and that they should disregard such activities and they
should consider the death penalty as something that for all their knowledge they
might [return] a verdict . . . and he might be executed the next week.”

22

In his appellate briefs, defendant refers to a number of other alleged

instances of juror misconduct that he claims were disclosed by the investigator‟s
reports and should have been the basis for a hearing or a new trial. The People
respond that defendant did not raise these concerns in the trial court in connection
with his motion for new trial or his request for an evidentiary hearing, and
therefore the additional claims of misconduct should be forfeited on appeal. We
agree that failure to raise the issue of juror misconduct and seek relief from the
court on that basis results in a forfeiture of the issue on appeal. (See People v.
Stanley, supra, 39 Cal.4th at p. 950 [failure to object to juror misconduct and
request mistrial]; People v. Holloway (2004) 33 Cal.4th 96, 124.) The
circumstance that defendant raised some juror misconduct claims in his motion for

(footnote continued on next page)

96
The trial court is vested with broad discretion to act upon a motion for new

trial. (See People v. Ault (2004) 33 Cal.4th 1250, 1260.) When the motion is

based upon juror misconduct, the reviewing court should accept the trial court‟s

factual findings and credibility determinations if they are supported by substantial

evidence, but must exercise its independent judgment to determine whether any

misconduct was prejudicial. (People v. Tafoya (2007) 42 Cal.4th 147, 192; see

also People v. Ault, supra, 33 Cal.4th at pp. 1263-1265.) A juror‟s receipt or

discussion of evidence not submitted at trial constitutes misconduct. (People v.

San Nicolas (2004) 34 Cal.4th 614, 650.) Juror misconduct raises a rebuttable

presumption of prejudice; a trial court presented with competent evidence of juror

misconduct must consider whether the evidence suggests a substantial likelihood

that one or more jurors were biased by the misconduct. (People v. Tafoya, supra,

42 Cal.4th at p. 192.)

The trial court has discretion to determine whether to conduct an

evidentiary hearing to resolve factual disputes raised by a claim of juror

misconduct. (People v. Avila (2006) 38 Cal.4th 491, 604.) “Defendant is not,

however, entitled to an evidentiary hearing as a matter of right. Such a hearing

should be held only when the court concludes an evidentiary hearing is „necessary

to resolve material, disputed issues of fact.‟ [Citation.] „The hearing . . . should

be held only when the defense has come forward with evidence demonstrating a

strong possibility that prejudicial misconduct has occurred.[23] Even upon such a


(footnote continued from previous page)

new trial does not serve to preserve other bases for his claim on appeal. (People v.
Masotti (2008) 163 Cal.App.4th 504, 508.)

23

Defendant suggests that this standard — that the defense should make a

prima facie showing of a “strong possibility” of prejudicial misconduct — “may
be unreasonably elevated” and inconsistent with federal constitutional law.

(footnote continued on next page)

97

(footnote continued from previous page)

(Italics added.) He does not expand upon this tentative assertion or supply
persuasive authority. We rejected a related contention in People v. Loker (2008)
44 Cal.4th 691, 747 [the defendant claimed the California rule — calling for
setting aside the verdict for juror misconduct only if “there appears to be a
substantial likelihood of juror bias” — was inconsistent with federal constitutional
law].) We also note the discussion and standard enunciated by the United States
Court of Appeals for the Second Circuit: “ „[C]ourts are, and should be, hesitant
to haul jurors in after they have reached a verdict in order to probe for potential
instances of bias, misconduct or extraneous influences.‟ [Citation.] „This is to
avoid harassment of jurors, inhibition of deliberation in the jury room, a deluge of
post-verdict applications mostly without merit, . . . an increase in opportunities for
jury tampering . . . [and] to prevent jury verdicts from being made more
uncertain.‟ [Citations.] As we explained . . . , a trial court is required to hold a
post trial juror interrogation only when reasonable grounds for investigation exist.
[Citation.] Reasonable grounds are present when there is „clear,‟ „strong‟ and
„incontrovertible‟ evidence.” (United States v. Rosario (2d Cir. 1997) 111 F.3d
293, 298-299, italics added; United States v. Angulo (9th Cir. 1993) 4 F.3d 843,
847 [“in determining whether a hearing [under Remmer v. United States (1954)
347 U.S. 227] must be held, the court must consider the content of the allegations,
the seriousness of the alleged misconduct or bias, and the credibility of the
source”].)


We note that the United States Court of Appeals for the Ninth Circuit has

held that the trial court has broad discretion in this context. “[I]t is within the trial
court‟s discretion to determine whether and when to hold an evidentiary hearing
on [juror misconduct] allegations. If the judge orders an investigative hearing, it is
within his discretion to determine its extent and nature. [Citations.] As a matter
of common sense, a trial judge in making these decisions will necessarily be
directed by the content of the allegations, including the seriousness of the alleged
misconduct or bias, and the credibility of the source.” (United States v. Hendrix
(9th Cir. 1977) 549 F.2d 1225, 1227-1228, fn. omitted; see also United States v.
Shryock (9th Cir. 2003) 342 F.3d 948, 973.) Presumably, a trial court would have
discretion to view an unsworn report by a defense investigator as lacking in
sufficient credibility. A report that falls short of asserting that the juror said he or
she had conveyed information to other jurors based upon his or her work
experience may be considered lacking in seriousness. Federal court decisions
recognize the breadth of the trial court‟s discretion in such matters. “The decision
to investigate jury misconduct allegations rests within the sound discretion of the
[trial] court.” (United States v. Rosario, supra, 111 F.3d at p. 299 [also referring
to the court‟s “very broad discretion”]; United States v. Shryock, supra, 342 F.3d

(footnote continued on next page)

98
showing, an evidentiary hearing will generally be unnecessary unless the parties‟

evidence presents a material conflict that can only be resolved at such a hearing.‟

[Citation.] ” (People v. Avila, supra, 38 Cal.4th at p. 604.) The trial court‟s

decision whether to conduct an evidentiary hearing on the issue of juror

misconduct will be reversed only if the defendant can demonstrate an abuse of

discretion. (Ibid.; People v. Carter, supra, 30 Cal.4th at p. 1216; People v. Jones,

supra, 17 Cal.4th at p. 317; People v. Williams, supra, 16 Cal.4th at p. 686; People

v. Cox (1991) 53 Cal.3d 618, 694, disapproved on another ground in People v.

Doolin, supra, 45 Cal.4th at p. 421, fn. 22].)

Contrary to defendant‟s assertion, ordinarily a trial court does not abuse its

discretion in declining to conduct an evidentiary hearing on the issue of juror

misconduct when the evidence proffered in support constitutes hearsay. (People v.

Hayes (1999) 21 Cal.4th 1211, 1256 [“Normally, hearsay is not sufficient to

trigger the court‟s duty to make further inquiries into a claim of juror

misconduct”]; see also People v. Avila, supra, 38 Cal.4th at p. 605; People v.

Carter, supra, 30 Cal.4th at p. 1217.) Moreover, a trial court does not abuse its

discretion in denying a motion for new trial based upon juror misconduct when the

evidence in support constitutes unsworn hearsay. (People v. Cox, supra, 53 Cal.3d


(footnote continued from previous page)

at p. 973.) In a case in which defense counsel presented “unverified conjecture”
prior to the verdict that a juror may be biased because of a relationship with
government witnesses, “[i]n the absence of a showing which, on its face, would
disqualify [the] juror . . . , the court act[s] properly in taking into account . . . the
failure of counsel to provide an affidavit” detailing evidence of misconduct.
(United States v. Bradshaw (10th Cir. 1986) 787 F.2d 1385, 1390.) The evidence
proffered by the defense in the present case was not such that the court‟s failure to
conduct an evidentiary hearing constituted error under either the state or federal
standards.

99
at p. 697 [the defense presented the unsworn statement of a juror and an affidavit

by an investigator recounting the juror‟s statement to him, but the evidence was

not competent, and this court‟s decision in People v. Hedgecock (1990) 51 Cal.3d

395 is not to the contrary]; People v. Williams (1988) 45 Cal.3d 1268, 1318-1319

[“The sole evidence of the alleged misconduct was the declaration of a defense

investigator that purports to relate a conversation with a juror. It is settled,

however, that „a jury verdict may not be impeached by hearsay affidavits‟ ”].)

Defendant does not offer a persuasive basis for deviating from the general

rule governing unsworn hearsay as a basis for a motion for new trial or for a

request to hold an evidentiary hearing on an allegation of juror misconduct. The

trial court afforded defense counsel approximately one month to amend or

supplement his original motion for new trial to include the juror misconduct claim.

We accept as true the trial court‟s assertion that it did not suggest to defense

counsel in off-the-record conversations that counsel was not obliged to support the

motion for new trial with affidavits or declarations from jurors. Defendant does

not point to any discussion on the record in which the court made such a

suggestion. The prosecution‟s written opposition to the motion — filed almost

two weeks prior to the hearing on the motion — relied in part upon the failure of

defense counsel to submit juror affidavits, citing governing decisions by this court,

yet defense counsel did not respond by submitting such affidavits prior to or at the

hearing. Defense counsel evidently had full access to the jurors, and there is no

indication that the defense could not have obtained juror affidavits. We note, too,

that the defense motion was not even supported by a declaration from the

investigator, but merely by his unsworn reports to defense counsel. Defense

counsel did not seek to call the investigator to testify. In addition, defense counsel

did not request a continuance for the purpose of securing juror affidavits.

100
Defendant contends the investigator‟s reports did not constitute hearsay,

because they were not offered for their truth. In other words, according to

defendant, it was immaterial whether the jurors‟ statements to the investigator

were true. Rather, according to defendant, they constituted objective evidence that

improper matters had been discussed during deliberations.

We are not persuaded. The investigator‟s report itself interposed a level of

hearsay (see, e.g., People v. Williams, supra, 45 Cal.3d at p. 1318), and the

investigator‟s assertions concerning juror statements were probative only if the

investigator‟s assertions — that the jurors had made the comments — were true.

Finally, we disagree with defendant that his motion alleged such serious

misconduct that the court abused its discretion by declining to order an evidentiary

hearing. The purported statements by jurors concerning the effect on them of the

possibility of defendant‟s release from prison and the probability of an execution

constituted indications of juror mental processes that are made inadmissible by

Evidence Code section 1150, subdivision (a). (See People v. Steele (2002) 27

Cal.4th 1230, 1261 [statements of jurors “regarding their understanding of the

meaning of a life sentence and what they would have done had they believed

differently came squarely within the prohibition against impeaching a verdict with

evidence of the juror‟s mental processes”].) To the extent the comments reflected

speculation concerning punishment, in People v. Steele, supra, 27 Cal.4th 1230,

and other decisions, we have accepted similar discussions as an inevitable feature

of the jury system. (See id. at pp. 1264-1265; see also People v. Schmeck (2005)

37 Cal.4th 240, 307 [no misconduct in jury‟s discussion of a television talk show

program concerning a prisoner who was released although he had been sentenced

to life in prison without the possibility of parole, or in jurors‟ speculation

concerning the defendant‟s possible release]; People v. Riel, supra, 22 Cal.4th at

p. 1219 [no misconduct when a juror who had been employed at the county jail

101
expressed the opinion that the court would reduce a death sentence to life

imprisonment]; People v. Pride, supra, 3 Cal.4th at pp. 267-268 [jurors discussed

a recent escape from Vacaville prison, and a juror known to have served as an

employee at that prison suggested that a life prisoner has a far greater opportunity

to escape than a prisoner condemned to death]; People v. Cox, supra, 53 Cal.3d at

p. 696 [juror who referred to former Chief Justice Rose Bird, and asserted that the

death penalty had not been carried out since the 1960‟s, did not commit

misconduct].)

With respect to defendant‟s claim that Juror F.C. committed misconduct by

informing the jury that she had knowledge concerning the release of prisoners

based upon her work with a lawyer in the Fresno County courthouse, the

investigator‟s reports did not state that Juror F.C. said she had conveyed outside

information to other jurors in the form of her asserted “experience” in the Fresno

County courts. (See People v. Riel, supra, 22 Cal.4th at p. 1219 [a juror who

suggested the court would commute a death sentence had been employed at a

county jail, but there was no indication she “did anything but express a personal

opinion” to other jurors].) The circumstance that the juror herself may have

considered this asserted experience goes in large part to her internal thought

processes and, in any event, does not constitute misconduct. (Ibid. [“ „Jurors

bring to their deliberations knowledge and beliefs about general matters of law and

fact that find their source in everyday life and experience‟ ”].)

Under all the circumstances, the trial court did not abuse its discretion in

concluding that the investigator‟s unsworn reports did not constitute a basis for

holding an evidentiary hearing. For the same reasons, the court did not err in

denying the motion for a new trial. No error under state law or federal

constitutional law occurred.

102
9. Challenges to California‟s death penalty scheme

Contrary to defendant‟s claim based upon the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution, the California death

penalty statute is not impermissibly broad, whether considered on its face or as

interpreted by this court. (People v. Mungia (2008) 44 Cal.4th 1101, 1141; People

v. Cruz, supra, 44 Cal.4th at p. 680; People v. Morgan (2007) 42 Cal.4th 593, 626;

see also People v. Gurule (2002) 28 Cal.4th 557, 663 [rejecting an overbreadth

claim based upon asserted overinclusiveness of the felony-murder special

circumstance].)

As in prior decisions, we reject the claim that section 190.3, factor (a), on

its face or as interpreted and applied, permits arbitrary and capricious imposition

of a sentence of death in violation of the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution. (People v. Williams, supra, 43

Cal.4th at p. 648; People v. Morgan, supra, 42 Cal.4th at p. 626.) The statute does

not create a presumption in favor of death (People v. Salcido, supra, 44 Cal.4th at

p. 163), nor does it permit an unconstitutional aggregation of aggravating factors.

(People v. Seaton (2001) 26 Cal.4th 598, 690-691.)

The absence of intercase proportionality review does not violate the federal

or state Constitutions. (People v. Crittenden (1994) 9 Cal.4th 83, 156-157

[rejecting claims based upon due process and equal protection guarantees, the

prohibition on cruel or unusual punishment, and § 1170 (f)]; see also People v.

Cruz, supra, 44 Cal.4th at p. 681.)

“[N]othing in the federal Constitution requires the penalty phase jury to

(1) make written findings of the factors it finds in aggravation and mitigation

[citations]; (2) agree unanimously that a particular aggravating circumstance exists

[citations]; (3) find all aggravating factors proved beyond a reasonable doubt or by

a preponderance of the evidence [citations]; (4) find that aggravation outweighs

103
mitigation beyond a reasonable doubt [citations]; or (5) conclude beyond a

reasonable doubt that death is the appropriate penalty. [Citations].” (People v.

Williams, supra, 43 Cal.4th at pp. 648-649.) The application of these principles to

penalty determinations does not violate equal protection principles established by

the 14th Amendment to the United States Constitution. (People v. Cruz, supra, 44

Cal.4th at p. 681 [“capital defendants are not similarly situated to noncapital

defendants, [so] the death penalty law does not violate equal protection by denying

capital defendants certain procedural rights given to noncapital defendants”];

People v. Valencia (2008) 43 Cal.4th 268, 311.)

“[E]xcept for prior violent crimes evidence and prior felony convictions

under section 190.3, factors (b) and (c), the court need not instruct regarding a

burden of proof . . . .” (People v. Cruz, supra, 44 Cal.4th at p. 681.) Because

“ „[u]nlike the guilt determination, “the sentencing function is inherently moral

and normative, not factual” [citation] and, hence, not susceptible to a burden-of-

proof quantification‟ ” (People v. Manriquez (2005) 37 Cal.4th 547, 589), it is

sufficient that the jury was instructed that “ „[t]o return a judgment of death, each

of you must be persuaded that the aggravating circumstances are so substantial in

comparison with the mitigating circumstances that it warrants death instead of life

without possibility of parole.‟ ” (Ibid.) Moreover, “[t]he United States Supreme

Court decisions rendered in Ring v. Arizona (2002) 536 U.S. 584 and Apprendi v.

New Jersey (2000) 530 U.S. 466 do not compel a different conclusion.” (People v.

Manriquez, supra, 37 Cal.4th at p. 589; see also People v. Williams, supra, 43

Cal.4th at p. 649 [the high court‟s decision in Cunningham v. California, supra,
549 U.S. 270, does not compel a different result].) Under the principles recited

above and contrary to defendant‟s claim, Evidence Code section 520, establishing

that a party “claiming that a person is guilty of crime or wrongdoing has the

104
burden of proof on that issue,” does not apply to the normative decision on penalty

that is performed by the trier of fact at the penalty phase of a capital trial.

10. CALJIC No. 8.85

Defendant contends that asserted defects in pattern instruction CALJIC

No. 8.85 prejudicially affect the jury‟s understanding of its weighing function, in

violation of the prohibition against cruel or unusual punishment contained in the

Eighth Amendment to the United States Constitution and the Fourteenth

Amendment‟s guarantee of equal protection of the laws, as well as parallel state

constitutional provisions. We decline to reconsider prior decisions holding that

the instruction “is not unconstitutionally vague” (People v. Farnam (2002) 28

Cal.4th 107, 192; People v. Lucero (2000) 23 Cal.4th 692, 728); that the

instruction is not flawed for its failure to identify which facts may be considered

aggravating and which may be considered mitigating (People v. Cruz, supra, 44

Cal.4th at p. 681; People v. Valencia, supra, 43 Cal.4th at p. 309); that the trial

court is not compelled to delete assertedly inapplicable factors from the instruction

(People v. Farnam, supra, 28 Cal.4th at pp. 191-192); that the instruction does not

“ „inherently encourage the double counting of aggravating factors‟ ” (People v.

Ayala (2000) 24 Cal.4th 243, 289); and that the trial court is not compelled to

instruct the jury on the court‟s own motion not to consider the same facts twice in

aggravation, in the absence of any misleading argument by the prosecutor. (Ibid.)

Defendant contends the instruction failed to guide the jury in its

consideration of “[t]he presence or absence of criminal activity by the defendant,

other than the crimes for which the defendant has been tried in the present

proceedings, which involved the use or attempted use of force or violence or the

express or implied threat to use force or violence.” (CALJIC No. 8.85.) This

claim lacks merit because pattern instructions adequately direct the jury in their

105
consideration of unadjudicated criminal activity. (People v. Monterroso (2004) 34

Cal.4th 743, 793.) We are not persuaded by defendant‟s added claim that the

instruction, given in the terms of the statute, permitted the jury to consider

unreliable evidence of defendant‟s possession of a loaded firearm, an assertedly

nonviolent act. (See ibid.) Moreover, the high court has determined that section

190.3, factor (b), the language of which is reproduced in the pattern instruction, is

not unconstitutionally vague. (Tuilaepa v. California, (1994) 512 U.S. 967, 977-

980; People v. Lucero, supra, 23 Cal.4th at p. 727.) This court has rejected claims

that the consideration of prior unadjudicated crimes denies due process, equal

protection, or the right to a reliable sentencing procedure. (People v. Cain, supra,

10 Cal.4th at pp. 69-70.) The terms “force” and “violence” are readily

understandable and do not require explanation. (People v. Dunkle (2005) 36

Cal.4th 861, 922, disapproved on another ground in People v. Doolin, supra, 45

Cal.4th at p. 421, fn. 22.)

CALJIC No. 8.85 instructs the jury in the terms of section 190.3, factors (d)

(“extreme mental or emotional disturbance”) and (h) (“mental disease or defect or

the effects of intoxication”). Defendant contends the giving of this instruction

resulted in a violation of his rights under the state and federal Constitutions

because the jury was not instructed that these factors properly may be considered

solely in mitigation. Defendant refers to anecdotal evidence and a 1994 academic

study suggesting that public attitudes toward these factors may cause them to be

considered in aggravation.

It is unnecessary to instruct the jury that section 190.3, factors (d) and (h)

may be considered solely in mitigation. (People v. Page (2008) 44 Cal.4th 1, 61;

People v. Lucero, supra, 23 Cal.4th at p. 728.) The pattern instruction does not

suggest that the absence of a mitigating factor should be considered in

aggravation. (People v. Page, supra, 44 Cal.4th at p. 61.) Speaking of the same

106
academic study cited by defendant, this court observed that “ „[w]e presume that

jurors comprehend and accept the court‟s directions.‟ [Citation.] The

presumption that the 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.” (People v. Welch, supra, 20 Cal.4th at p. 773.)

11. CALJIC No. 8.88

Defendant challenges CALJIC No. 8.88, an instruction that concerns the

jury‟s function in weighing the circumstances in aggravation and mitigation and in

deciding the appropriate penalty. Defendant contends that this instruction is

“vague and imprecise, fail[s] to adequately describe the weighing process the jury

must apply in capital cases, and deprived [defendant] of the individualized

consideration the Eighth Amendment requires.” We have held, however, that the

pattern instruction “properly instructs the jury on its sentencing discretion and the

nature of its deliberative process.” (People v. Valencia, supra, 43 Cal.4th at

p. 310.) Defendant claims the instruction was misleading and improperly

weighted the scale in favor of death, because it permitted the jury to impose the

death penalty even if it found the mitigating circumstances outweighed the

aggravating circumstances, so long as it found “substantial” aggravating

circumstances. This contention lacks merit. (People v. Salcido, supra, 44 Cal.4th

at p. 163; People v. Page, supra, 44 Cal.4th at p. 57.)

Defendant contends the instruction failed to provide an accurate description

of the jury‟s weighing function. He claims the instruction called for a quantitative,

mechanical weighing process rather than a qualitative evaluation of the applicable

factors, and that it failed to convey that a single mitigating factor may warrant a

sentence less than death. We do not agree. The instruction itself informs the jury

107
that “[t]he weighing of aggravating and mitigating circumstances does not mean a

mere mechanical counting of factors on each side of an imaginary scale, or the

arbitrary assignment of weights to any of them. You are free to assign whatever

moral or sympathetic value you deem appropriate . . . .” (CALJIC No. 8.88; see

People v. Gutierrez (2002) 28 Cal.4th 1083, 1161 [the instruction “properly

describes the weighing process as „ “merely a metaphor for the juror‟s personal

determination that death is the appropriate penalty under all of the

circumstances” ‟ ”]; see also People v. Page, supra, 44 Cal.4th at p. 56.) The

court was not obliged to instruct the jury that a single mitigating circumstance

could outweigh multiple aggravating circumstances. (People v. Salcido, supra, 44

Cal.4th at pp. 162-163.)

Contrary to defendant‟s claim, the instruction is not defective because of an

asserted failure to inform the jury which circumstances warrant the penalty of life

in prison without the possibility of parole. The instruction adequately conveys

that unless substantial aggravating factors outweigh mitigating circumstances, a

sentence of death is not appropriate. (People v. Taylor (2001) 26 Cal.4th 1155,

1181.) The defendant is not under an obligation to demonstrate that mitigating

circumstances “warrant” the lesser penalty. The instruction is not defective for its

asserted failure to describe or define the penalty of life in prison without the

possibility of parole. (People v. Zamudio, supra, 43 Cal.4th at p. 372.)

Defendant‟s reliance upon Shafer v. South Carolina (2001) 532 U.S. 36 is

unavailing. (People v. Harris, supra, 43 Cal.4th at p. 1317 [In Shafer, the court

explained that “the South Carolina instructions were defective because they failed

to inform the jury of the defendant‟s parole eligibility status,” whereas the

108
California instructions “explicitly informed the jury that there would be no

possibility of parole”].)24

Defendant claims the instruction fails to inform the jury concerning the full

scope of evidence that may be considered mitigating, asserting that the instruction

implies that the sole pertinent circumstance in mitigation must concern the capital

crime. As noted, however, we have concluded the instruction “properly instructs

the jury on its sentencing discretion and the nature of its deliberative process”

(People v. Valencia, supra, 43 Cal.4th at p. 310), and we presume jurors

understand the instructions notwithstanding “empirical assertions to the contrary

based on research that is not part of the present record and has not been subject to

cross examination.” (People v. Welch, supra, 20 Cal.4th at p. 773.)

12. Presumption against the death penalty

Defendant contends the court‟s failure to instruct that the jury should

entertain a presumption in favor of a life sentence violated his federal

constitutional right to due process of law under the Fifth and Fourteenth

Amendments, his Eighth Amendment rights to a reliable penalty determination

and to be free of cruel and unusual punishment, and his right to equal protection

under the Fourteenth Amendment. Contrary to defendant‟s claim, he was not

entitled to an instruction informing the jury that a presumption exists in favor of a

sentence less than death. (People v. Mungia, supra, 44 Cal.4th at p. 1142; People

v. Zamudio, supra, 43 Cal.4th at p. 373.)


24

As explained ante, we decline to consider the unsworn juror

affidavits claimed by defendant to suggest jurors believed that capital-offense
defendants serving life terms without possibility of parole actually may be
released. (See post, pp. 99-101.)

109
13. Proportionality

Defendant contends the penalty of death is disproportionate to his

individual culpability. He claims a violation of article I, section 17 of the

California Constitution and the prohibition against cruel and unusual punishment

contained in the state and federal Constitutions.

Defendant‟s claim that the punishment is disproportionate to his culpability

requires us to consider “ „the nature of the offense and/or the offender, with

particular regard to the degree of danger both present to society.‟ ” (People v.

Dillon, supra, 34 Cal.3d at p. 479.) We inquire “whether the punishment is

grossly disproportionate to the defendant‟s individual culpability . . . .” (Ibid.)

“ „[W]e examine the circumstances of the offense, including its motive, the extent

of defendant‟s involvement, the manner in which the crime was committed, the

consequences of defendant‟s acts, and defendant‟s personal characteristics

including age, prior criminality, and mental capabilities.‟ ” (People v. Tafoya,

supra, 42 Cal.4th at p. 198.)

Defendant draws our attention to his youth at the time of the crime. He was

20 years of age when he committed the murder.25 He contends he acted

impulsively and lacked the intent to kill the murder victim. He refers to the jury‟s

verdict finding him guilty of the attempted murder of Bernice Clark but without

premeditation. He refers also to evidence suggesting he was intoxicated at the

time of the crime. He asserts he had “virtually no criminal history,” claiming the

evidence of the prior firearm offense demonstrated he did not act violently or


25

Defendant‟s briefing claims he was 19 years of age at the time of the crime,

but the record demonstrates that defendant was born on December 23, 1972. The
crime occurred in July 1993, when defendant was 20 years of age.

110
resist arrest, and that the prior offense constituted a misdemeanor rather than a

felony.

We acknowledge that defendant‟s youth stands in his favor. His prior

record, although denominated a misdemeanor, suggests a disregard for safe and

appropriate use of firearms that, even under defendant‟s account, is evident in the

present crime, as well. Many of the other circumstances upon which defendant

relies are common to felony-murder cases, and yet it does not constitute a

violation of the Eighth Amendment to sentence a person to death who personally

kills during an enumerated felony but who does not premeditate — or even lacks

intent to kill. (People v. Harris, supra, 43 Cal.4th at p. 1322; People v. Anderson

(1987) 43 Cal.3d 1104, 1140, 1147.) Defendant has requested that we conclude he

did not act with premeditation, relying upon the jury‟s verdict on the attempted

murder charge. If we consider the jury‟s verdict on the latter charge in connection

with the capital offense, it also causes us to conclude that defendant actually did

form the intent to kill before he discharged his weapon, because intent to kill is an

element of the offense of attempted murder. Thus, defendant‟s claim that the

murder constituted an entirely accidental killing is not persuasive — particularly

when we consider evidence suggesting he shot Bernice Clark because she had

recognized him. There was ample evidence demonstrating that defendant planned

the robbery and armed himself with a loaded weapon for the purpose of

confronting an elderly woman, as the trial court found when it considered the

proportionality question in connection with the automatic motion for

reconsideration of the jury‟s verdict (§190.4, subd. (e)). The court also pointed to

evidence suggesting that defendant was aware Lance Clark frequently

accompanied his grandmother on her rounds and that, indeed, defendant must have

observed Lance in the automobile when he observed Bernice drive to the rear of

the apartment building. The claim that defendant may have been intoxicated at the

111
time of the capital offense does not diminish the degree of danger defendant

evidently presents to society, nor does it diminish his culpability in robbing and

shooting an elderly woman who was known to lend money to her tenants. Finally,

none of defendant‟s claims on appeal counter the nature and tragic result of the

crime itself.

Defendant contends we should rely upon section 1181, subdivision 7 and

section 1260, provisions that govern motions for new trial and the authority of

appellate courts to modify judgments, as a basis for exercising our own authority

to reduce the capital sentence. Prior decisions establish that these provisions do

not confer authority on this court to “substitute its judgment as to the choice of

penalty for that of the trier of fact, and . . . the court may not reduce a capital

defendant‟s sentence from death to life imprisonment simply because it disagrees

with the jury‟s penalty determination.” (People v. Hines, supra, 15 Cal.4th at

p. 1080; see also People v. Steele, supra, 27 Cal.4th at pp. 1268-1269.)

Accordingly, we reject defendant‟s claim that the statutory provisions constitute a

“procedural entitlement that is protected by the due process clause.” Our

conclusion does not impair defendant‟s right to meaningful appellate review

within the meaning of the Eighth Amendment or the due process clause of the

United States Constitution; defendant‟s rights in this regard are confined to and

satisfied by our having considered, and rejected, his assertion that his sentence of

death is disproportionate to his individual culpability.

Contrary to defendant‟s claim, we are not required also to conduct intercase

proportionality review. (People v. Mungia, supra, 44 Cal.4th at p. 1142; see also

People v. Harris, supra, 43 Cal.4th at pp. 1322-1323 [questioning the defendant‟s

assertion that we have “categorically forbidden such review”].)

112
14. Prosecutorial discretion

Contrary to defendant‟s claim, the California death penalty provisions do

not violate the Fifth, Eighth, and Fourteenth Amendments to the United States

Constitution by virtue of the assertedly “unbridled” charging discretion these

provisions vest in prosecutors. (People v. Prince, supra, 40 Cal.4th at p. 1298;

People v. Crittenden, supra, 9 Cal.4th at p. 152.)

15. Method of execution

Defendant‟s challenge to California‟s method of execution, and to the

administrative procedure followed in adopting it, is not cognizable on appeal,

“ „because alleged imperfections in the method of execution do not affect the

validity of the death judgment itself. Defendant‟s attack on asserted illegalities in

the execution process that may or may not exist when his death sentence is carried

out are premature.‟ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 536; see

also Baze v. Rees (2008) __ U.S. __ [170 L.Ed.2d 420] [Kentucky‟s three-drug

protocol for lethal injection, a protocol that is identical to California‟s, does not

violate the Eighth Amendment].)

16. International law

We have rejected the contention that California‟s death penalty statutes

violate international law. (People v. Cruz, supra, 44 Cal.4th at p. 689; People v.

Geier (2007) 41 Cal.4th 555, 620.) Defendant argues that even if capital

punishment itself is consistent with international norms, its asserted use as a

“regular punishment for substantial numbers of crimes” is not. As noted above,

however, the death penalty statutes adequately narrow the class of persons subject to

the penalty of death under state and federal law. Imposition of that penalty in a

manner consistent with state and federal law does not constitute a violation of

international law. (People v. Cruz, supra, 44 Cal.4th at p. 689; People v. Brown,

supra, 33 Cal.4th at p. 404.) Contrary to defendant‟s contention, the trial and post-

113
verdict proceedings in his case were conducted in a manner consistent with state and

federal law.

17. Cumulative prejudice

Contrary to defendant‟s claim, the errors we have found or assumed are so

insignificant in the context of the trial as a whole that there is no reasonable

possibility that they affected the outcome of the proceedings, whether such errors

are considered singly or cumulatively.

III. CONCLUSION

For the foregoing reasons, the judgment is affirmed in its entirety.

GEORGE, C. J.

WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.



114
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Dykes
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S050851
Date Filed: June 15, 2009
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Jeffrey W. Horner

__________________________________________________________________________________

Attorneys for Appellant:

Karen L. Landau, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias, Eric D. Share and René A.
Chacón, Deputy Attorneys General for Plaintiff and Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Karen L. Landau
2626 Harrison Street
Oakland, CA 94612
(510) 839-9230

René A. Chacón
Deputy Attorney General
455 Golden Gate Avenue, Suite 1100
San Francisco, CA 94102-7004
(415) 703-1375




Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 06/15/200946 Cal. 4th 731, 209 P.3d 1, 95 Cal. Rptr. 3d 78S050851Automatic Appealclosed; remittitur issued

DYKES (ERNEST) ON H.C. (S126085)

Parties
1The People (Respondent)
Represented by Rene A. Chacon
Attorney General's Office
455 Golden Gate Ave., Suite 11000
San Francisco, CA
2The People (Respondent)
Represented by Attorney General - San Francisco Office
Eric D. Share, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
3Dykes, Ernest Edward (Appellant)
San Quentin State Prison
Represented by Karen L. Landau
Attorney At Law
2626 Harrison Street
Oakland, CA
4Dykes, Ernest Edward (Appellant)
San Quentin State Prison
Represented by Steven S. Lubliner
Law Offices of Steven Lubliner
P.O. Box 750639

Petaluma, CA

Disposition
Jun 15 2009Opinion: Affirmed

Dockets
Dec 22 1995Judgment of death
Dec 27 1995Filed certified copy of Judgment of Death Rendered
12-22-95.
Apr 6 2000Counsel appointment order filed
Atty Karen L. Landau Is appointed for the direct Appeal
Apr 19 2000Received:
Copy of letter from Superior Court to Applt's Counsel, dated 4-18-2000, Regarding Transmission of Record that Date.
Jul 19 2000Application for Extension of Time filed
By applt to request corr. of the record. (1st request)
Jul 20 2000Compensation awarded counsel
Atty Landau
Jul 24 2000Filed:
Amended proof of service
Jul 26 2000Extension of Time application Granted
To 9/22/2000 to applt to request corr. of the record.
Aug 8 2000Counsel's status report received (confidential)
from atty Landau.
Sep 13 2000Compensation awarded counsel
Atty Landau
Sep 21 2000Application for Extension of Time filed
by applt to request correction of the record. (2nd request)
Sep 22 2000Extension of Time application Granted
to applt to 11-21-2000 to request correction of the record.
Oct 12 2000Counsel's status report received (confidential)
from atty Landau.
Nov 17 2000Compensation awarded counsel
Atty Landau
Nov 22 2000Received:
Copy of applt's mtn. to augment and correct the record on appeal (13 pages)
Dec 8 2000Counsel appointment order filed
appointing Steven S. Lubliner to represent applt for habeas corpus/executive clemency proceedings related to the automatic appeal.
Dec 15 2000Counsel's status report received (confidential)
from atty Landau.
Jan 10 2001Compensation awarded counsel
Atty Landau
Feb 6 2001Counsel's status report received (confidential)
from atty Lubliner.
Feb 15 2001Counsel's status report received (confidential)
from atty Landau.
Mar 28 2001Compensation awarded counsel
Atty Lubliner
Apr 10 2001Counsel's status report received (confidential)
from atty Lubliner.
Apr 27 2001Counsel's status report received (confidential)
from atty Landau.
May 23 2001Compensation awarded counsel
Atty Lubliner
Jun 12 2001Counsel's status report received (confidential)
from atty Lubliner.
Jun 15 2001Counsel's status report received (confidential)
from atty Landau.
Jun 20 2001Compensation awarded counsel
Atty Lubliner
Jul 20 2001Compensation awarded counsel
Atty Landau
Jul 27 2001Change of Address filed for:
applt. counsel Steven Lubliner.
Aug 10 2001Record on appeal filed
C-65 (16911 Pp.) and R-41 (4172 Pp.); including material under seal and juror questionnaires of 15670 Pp.
Aug 10 2001Appellant's Opening Brief Letter sent, due: Sept. 19, 2001.
Aug 15 2001Counsel's status report received (confidential)
from atty Landau.
Aug 15 2001Compensation awarded counsel
Atty Landau
Aug 31 2001Counsel's status report received (confidential)
from atty Lubliner.
Sep 18 2001Application for Extension of Time filed
to file AOB. (1st request)
Sep 20 2001Filed:
Suppl. proof of service of application for extension of time.
Sep 21 2001Extension of Time application Granted
To 11/19/2001 to file AOB.
Oct 15 2001Counsel's status report received (confidential)
from atty Landau.
Oct 19 2001Filed:
Declaratoin of attorney Steven S. Lubliner. (confidential)
Nov 1 2001Counsel's status report received (confidential)
from atty Lubliner.
Nov 13 2001Compensation awarded counsel
Atty Lubliner
Nov 19 2001Request for extension of time filed
to file AOB. (2nd request)
Nov 21 2001Filed:
Applt.'s revised application for extension of time to file AOB.
Nov 26 2001Filed:
Suppl. declaration in support of application for extension of time to file AOB.
Nov 27 2001Counsel's status report received (confidential)
from atty Lubliner. (supplemental)
Nov 28 2001Extension of time granted
To 1/18/2002 to file AOB.
Dec 14 2001Counsel's status report received (confidential)
from atty Landau.
Jan 22 2002Request for extension of time filed
To file AOB. (3rd request)
Jan 24 2002Extension of time granted
To 3/19/2002 to file AOB.
Feb 4 2002Compensation awarded counsel
Atty Landau
Feb 11 2002Counsel's status report received (confidential)
from atty Lubliner.
Feb 14 2002Counsel's status report received (confidential)
from atty Landau.
Mar 19 2002Request for extension of time filed
To file AOB. (4th request)
Mar 21 2002Filed:
Suppl. declaration in support of application for extension of time to file AOB.
Mar 21 2002Extension of time granted
To 5/20/2002 to file AOB.
Apr 15 2002Counsel's status report received (confidential)
from atty Landau.
Apr 17 2002Counsel's status report received (confidential)
from atty Lubliner.
May 3 2002Request for extension of time filed
To file AOB. (5th request)
May 7 2002Extension of time granted
To 7/19/2002 to file AOB. Counsel anticipates filing the brief by 8/15/2002. Only one further extension totaling 27 additional days is contemplated.
Jun 14 2002Counsel's status report received (confidential)
from atty Landau.
Jun 27 2002Motion for discovery (in AA case)
Motion by appellant's habeas corpus counsel Steven Lubliner for discovery of confidential police personnel files.
Jun 28 2002Counsel's status report received (confidential)
from atty Lubliner.
Jul 5 2002Opposition filed
by attys. for Oakland Police Dept., to habeas corpus counsel's motion for discovery of confidential police personnel files.
Jul 9 2002Filed:
Notice of errata re opposition of Oakland Police Dept. to motion for discovry of confidential police personnel files.
Jul 9 2002Filed:
Amended proof of service of opposition to motion for discovery of confidential police files.
Jul 16 2002Request for extension of time filed
To file AOB. (6th request)
Jul 22 2002Extension of time granted
To 8/19/2002 to file AOB. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to inform his assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet this schedule.
Aug 13 2002Counsel's status report received (confidential)
from atty Landau.
Aug 19 2002Appellant's opening brief filed
(257 pp.)
Aug 29 2002Compensation awarded counsel
Atty Lubliner
Sep 4 2002Compensation awarded counsel
Atty Landau
Sep 5 2002Counsel's status report received (confidential)
from atty Lubliner.
Sep 11 2002Discovery motion denied
Appellant's "...Motion for Discovery of Confidential Police Personnel Files," filed June 27, 2002, is denied.
Sep 16 2002Request for extension of time filed
To file respondent's brief. (1st request)
Sep 18 2002Extension of time granted
To 11/18/2002 to file respondent's brief.
Nov 6 2002Request for extension of time filed
To file respondent's brief. (2nd request)
Nov 12 2002Extension of time granted
To 1/17/2003 to file respondent's brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Nov 22 2002Counsel's status report received (confidential)
from atry Lubliner.
Jan 10 2003Request for extension of time filed
to file respondent's brief. (3rd request)
Jan 14 2003Extension of time granted
To 3/18/2003 to file respondent's brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to take all steps necessary to meet his schedule.
Jan 24 2003Counsel's status report received (confidential)
from atty Lubliner.
Mar 5 2003Change of Address filed for:
Direct appeal counsel Karen L. Landau.
Mar 12 2003Filed:
Amended proof of service of change of address for direct appeal counsel Karen L. Landau.
Mar 13 2003Request for extension of time filed
to file respondent's brief. (4th request)
Mar 18 2003Extension of time granted
to 5/19/2003 to file respondent's brief. Extension is granted based upon Supervising Deputy Attorney General Eric D. Share's representation that he anticipates filing that brief by 5/19/2003. After that date, no further extension is contemplated.
May 5 2003Counsel's status report received (confidential)
from atty Lubliner.
May 16 2003Respondent's brief filed
(243 pp.)
May 23 2003Request for extension of time filed
to file appellant's reply brief. (1st request)
May 29 2003Filed:
Supplemental declaration in support of application for extension of time to file appellant's reply brief.
Jun 2 2003Extension of time granted
to 8/4/2003 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon counsel Karen L. Landau's representation that she anticipates filing that brief by 9/1/2003.
Jun 24 2003Filed:
Declaration of attorney Steven S. Lubliner pursuant to penal code section 1241 in support of third progress payment (confidential).
Jun 27 2003Compensation awarded counsel
Atty Lubliner
Jul 28 2003Request for extension of time filed
to file reply brief. (2nd request)
Jul 31 2003Extension of time granted
to 10-3-2003 to file reply brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 5 2003Counsel's status report received (confidential)
from atty Lubliner.
Sep 30 2003Request for extension of time filed
to file appellant's reply brief. (3rd request)
Oct 3 2003Extension of time granted
to 11/3/2003 to file appellant's reply brief. Extension is granted based upon counsel Karen L. Landau's representation that she anticipates filing that brief by 11/3/2003. After that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and take all steps necessary to meet it.
Oct 28 2003Request for extension of time filed
to file appellant's reply brief. (4th request)
Oct 31 2003Extension of time granted
to 1/5/2004 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is orderd to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 24 2003Counsel's status report received (confidential)
from atty Lubliner.
Jan 6 2004Received:
appellant's reply brief, per Rule 40(k). (Note: not yet filed; needs certificate regarding number of words; see Rule 36(b)(1)).
Jan 7 2004Appellant's reply brief filed
(w/certificate of length of brief: 33,103 words)
Jan 14 2004Compensation awarded counsel
Atty Landau
Feb 3 2004Compensation awarded counsel
Atty Lubliner
Mar 26 2004Counsel's status report received (confidential)
from atty Lubliner.
Jun 28 2004Counsel's status report received (confidential)
from atty Lubliner.
Jun 28 2004Filed:
Declaration of attorney Steven S. Lubliner pursuant to Penal Code Section 1241 (confidential).
Jun 29 2004Compensation awarded counsel
Atty Lubliner
Jul 6 2004Habeas funds request filed (confidential)
by attorney Lubliner.
Jul 6 2004Related habeas corpus petition filed (concurrent)
No. S126085
Jul 28 2004Compensation awarded counsel
Atty Lubliner
Sep 1 2004Order filed re habeas funds request (confidential)
Feb 8 2005Motion filed (AA)
Respondent's motion for order granting copies of volumes 62, 63, and 64 of the clerk's transcript.
Mar 21 2005Letter sent to:
counsel regarding sealed record. Counsel to respond by 4-13-2005; any opposition to a response due 4-27-2005.
Mar 30 2005Motion for access to sealed record granted
Respondent's "Motion for Order Granting the People Copies of Volumes 62, 63, and 64 of the Clerk's Transcripts," filed February 8, 2005, is granted in part and denied in part. The clerk is directed to provide a copy of volumes 63 (pp. 16575-16721) and 64 (pp. 16722-16770) to respondent. The clerk is further directed to keep the original of volumes 63 and 64 under seal. Respondent is prohibited from using the material contained in volumes 63 and 64 except in the present proceedings. In all other respects, the motion is denied.
Apr 8 2005Filed:
respondent's letter dated 4-8-2005, in response to the court's letter of 3-21-2005.
Apr 8 2005Filed:
appellant's letter dated 4/6/2005, in response to court's letter of 3/21/2005.
May 11 2005Order filed
The Clerk of this court is directed to return the record to the Alameda County Superior Court. That court is directed to hold a hearing on the failure of the public record in this case to conform to its August 24, 1995, order that the portions of the record containing jurors' identifying information be sealed (RT 4048-4049) because a compelling governmental interest exists in safeguarding the jurors' identities (see Code Civ. Proc., former Section 237, subd. (b); Stats. 1993, ch. 632, Section 2, pp. 3722-3723). If the superior court decides that the public record is to be further redacted to conform to its 1995 order, it must notify the Clerk of this court. The Clerk must thereupon strike the filing of appellant's opening and reply brief for failure to conform to the superior court's 1995 order. If the superior court takes some action pursuant to which the record need not be further redacted, it must also notify the Clerk of this court. In that case, the filing of appellant's briefs will not be stricken, and the Clerk must permit appellant to refile his original petition for writ of habeas corpus in In re Ernest Edward Dykes on Habeas Corpus (S126085) nunc pro tunc. This court's order of March 30, 2005, in that cause is set aside to the extent that it requires appellant to take certain steps by May 13, 2005. In either event, the parties may retain the copies of the record and the briefs that they currently possess, as long as they use them solely for purposes of the present proceeding and, pursuant to California Rules of Court, rule 12.5(g), do not publicly disclose any information from them that would violate the superior court's 1995 order, if it remains in effect. The superior court is directed to hold its hearing no later than June 17, 2005. If it orders further redaction of the public record, it must certify the corrected record as soon as practicable thereafter and retransmit it to this court for filing, completing that process no later than September 30, 2005. If it orders further redaction of the public record, appellant is directed, no later than thirty days following the court's certification of the corrected record, to file corrected opening and reply briefs in the direct appeal and, if he wishes, a corrected petition for writ of habeas corpus in In re Ernest Edward Dykes on Habeas Corpus (S126085).
May 24 2005Filed:
certified copy of order from superior court, filed May 20, 2005, rescinding its order of Aug. 24, 1995 ordering that portions of the record containing jurors' identifying information be sealed.
May 26 2005Note:
record returned by superior court.
Jun 8 2005Filed:
1 vol. of reporter's transcript of proceedings held on 5-19-2005 (6 pp.). (note: received disk copy)
Jun 8 2005Filed:
certified copy of superior court minute order of 5-19-2005.
Feb 22 2006Compensation awarded counsel
Atty Lubliner
May 24 2006Compensation awarded counsel
Atty Lubliner
Jul 9 2007Exhibit(s) lodged
People's nos. 10A, 11A, 11B and 11D.
Jan 26 2009Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 2, 2009, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Feb 10 2009Received:
appellant's letter, dated February 9, 2009, with additional authorities.
Mar 4 2009Received:
letter from Deputy Attorney General Eric D. Share, dated March 4, 2009 requesting that the court place the case on its calendar for early March 2009 and not for April 8 or 9, 2009, due to family obligations for the Passover holiday.
Mar 11 2009Case ordered on calendar
to be argued Monday, April 6, 2009, at 1:30 p.m., in Los Angeles
Mar 16 2009Received:
appearance sheet from Attorney Karen L. Landau, indicating 30 minutes for oral argument for appellant.
Mar 23 2009Received:
appearance sheet from Deputy Attorney General Rene A. Chacon, indicating 30 minutes for oral argument for respondent.
Mar 23 2009Filed:
appellant's focus issues letter, dated March 20, 2009.
Mar 24 2009Filed:
Corrected, appellant's focus issue letter, dated March 23, 2009.
Mar 26 2009Filed:
respondent's focus issue letter, from Deputy Attorney General Rene Chacon, dated March 26, 2009.
Apr 1 2009Received:
appellant's letter of additional authorities for oral argument dated, March 30, 2009.
Apr 1 2009Filed:
Certificate of Service (for focus issue letter dated)
Apr 6 2009Cause argued and submitted
Apr 17 2009Compensation awarded counsel
Atty Landau
Jun 12 2009Notice of forthcoming opinion posted
Jun 15 2009Opinion filed: Judgment affirmed in full
opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jun 29 2009Rehearing petition filed
(2,467 words; 10 pp.)
Jul 6 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 14, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 12 2009Rehearing denied
Moreno and Corrigan, JJ., were absent and did not participate.
Aug 12 2009Remittitur issued
Aug 17 2009Exhibit(s) returned
to superior court.
Aug 19 2009Received:
acknowledgment receipt for remittitur from superior court.
Aug 24 2009Received:
acknowledgment of receipt of exhibits.

Briefs
Aug 19 2002Appellant's opening brief filed
(257 pp.)
May 16 2003Respondent's brief filed
(243 pp.)
Jan 7 2004Appellant's reply brief filed
(w/certificate of length of brief: 33,103 words)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website