IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
MICHAEL LEE ELLIOT,
Defendant and Appellant.
Super. Ct. No. 94F04986
Michael Lee Elliot was convicted in 1996 in Sacramento County Superior
Court of the first degree murder (Pen. Code, § 187, subd. (a))1 of Sherri Gandy.
The jury also found defendant guilty of attempted robbery (§§ 211, 664) and found
true two special circumstances, that the murder was committed during an
attempted robbery (§ 190.2, subd. (a)(17)) and that the murder was intentional and
involved torture (§ 190.2, subd. (a)(18)). The jury also found true allegations that
defendant personally used a firearm (§ 12022.5, subd. (a)) and a knife (former
§ 12022, subd. (b) [now § 12022, subd. (b)(1)]) in the commission of the crimes.
At the penalty phase, the jury determined that defendant should receive the death
penalty. This appeal is automatic. We affirm the judgment in its entirety.
All subsequent statutory references are to the Penal Code unless otherwise
I. STATEMENT OF FACTS
Sherri Gandy was killed at her workplace, the Black Stallion bar in
Orangevale, California, between 2:00 a.m. and 3:00 a.m. on June 1, 1994. Gandy
was the evening bartender at the Black Stallion. She worked the 6:00 p.m. to 2:00
a.m. shift, and was responsible for closing the establishment. The Black Stallion
was located in a strip mall. Its front door opened into a small vestibule, which led
to a bar and seating area. A storeroom, with a safe mounted in its floor, was
situated toward the back of the establishment. This safe was hidden from patrons’
view, being located behind the door separating the bar area from the storeroom,
and Gandy would place the receipts from her shift into the safe at the end of each
work night. She did not know the combination to the safe, so the safe was left
open for her and she would close and lock it at night after she made her deposit.
Several patrons who were at the Black Stallion during the evening of May
31, 1994 and the morning of June 1, 1994 testified at defendant’s trial. Anthony
Stewart, Gandy’s boyfriend, arrived at the Black Stallion around 9:30 p.m.
Stewart testified that defendant was at the bar when he arrived. Another patron,
Scott Atkins, also arrived at the Black Stallion around 9:30 p.m. and saw
defendant there. Atkins testified that defendant seemed friendly, but “not too
sober.” Stewart testified that although it appeared as if defendant had consumed
“a lot” of alcohol, defendant seemed alert and had no difficulty walking or playing
darts. At one point, defendant asked Gandy to take her shirt off, but Gandy did
Defendant made several trips in and out of the Black Stallion that night.
Defendant left the Black Stallion sometime before midnight, leaving behind most
of his beer, some money, and his sunglasses. Gandy put defendant’s items in a
cup which she placed on the bar’s back counter. Defendant returned to the bar
sometime later and requested a drink. Gandy was occupied and told defendant to
wait. Defendant cursed and proceeded to leave. Gandy chased after defendant,
apologized to him and said she would get him a drink. Gandy placed defendant’s
personal items in front of him along with his drink.
Another bar patron, Richard Donohue, overheard Gandy scolding
defendant. Gandy told defendant, “Don’t you do that any more or I’ll have to take
you over my knee and spank you.” Without explanation, defendant asked
Donohue if Donohue was going to hurt Gandy. Donohue testified that defendant
seemed “awful nervous and jittery” and “very unstable.”2
Defendant left the bar again not long thereafter. Defendant left behind
some money and most of his drink. Gandy told defendant to take his personal
items with him because she did not want to be responsible for them, but defendant
said he would return. After he returned with some cigarettes a few minutes later,
defendant walked to the back of the bar and pushed and pulled on a locked back
door. Defendant saw a patron looking at him, stopped pushing the door and went
into the men’s bathroom. Defendant left the bar yet again shortly before it closed.
Defendant again left behind his drink and some money.
Near closing time, Gandy told the three remaining patrons that she had to
count out the day’s receipts before closing the bar. When these patrons left,
Gandy locked the door behind them. As Donohue exited, he observed that
defendant had returned and was standing outside of his car in the strip mall’s
At some point that evening, Gandy told bar patrons, including defendant,
that she wasn’t concerned about violence because she carried a handgun on her at
all times. Gandy did, in fact, keep a gun in her purse.
parking lot. Defendant told Donohue that he wanted to go inside the bar to collect
his belongings. Donohue told him that he would have to return the next business
day to gather them. On direct examination, Donohue testified that he thought
defendant then drove away. On cross-examination, however, Donohue testified
that he could not swear that defendant had left before he did.
After leaving the Black Stallion earlier that evening, Atkins had gone to his
girlfriend’s house approximately 100 yards up the street from the Black Stallion.
While sitting outside of the house between 2:00 a.m. and either 2:30 a.m. or 2:40
a.m., Atkins heard a woman’s screams. Atkins said that the screams were “blood
curdling” and seemed to last for a long time.
Stewart also had left the Black Stallion before it closed, and was waiting at
Gandy’s house for her to return after she finished her shift. Gandy was supposed
to return home at 2:15 a.m. When Gandy did not appear, Stewart returned to the
Black Stallion to check on her. Stewart arrived at the Black Stallion shortly before
3:00 a.m. He found its front door unlocked and went inside. The bar was dark
and appeared closed for the night. Stewart called for Gandy but received no
response. Stewart noticed a light coming from the back storage area. When he
attempted to open the door to this room, he discovered Gandy’s dead body.
Police arriving at the scene pursuant to Stewart’s 911 call found a keychain
Gandy had used along with a set of keys on the ground outside the Black
Stallion’s entrance. One of the keys on the keychain was to the Black Stallion’s
front door. Just in front of the doorway was a bloody shoe print with a wavy
pattern. Other bloody footprints led from the back storeroom toward the front
door. There were no signs of a struggle in the main bar area.
Gandy’s body lay in the back storeroom where the floor safe was located.
The safe was closed and locked, and contained three bags of money. However,
the lid that normally covered the floor safe had been removed. Black Stallion
employees were supposed to keep this lid atop the safe, and the bartender who had
worked the day shift at the Black Stallion on May 31 testified that she had placed
the lid on top of the floor safe after putting her shift’s receipts in the safe. Gandy’s
opened purse was also found on the storeroom’s floor. Scattered about the
storeroom floor were Gandy’s identification and business cards, Gandy’s
checkbook wallet, and many coins. No paper money was found. Sometime after
the murder, one of the Black Stallion’s owners discovered that a bag containing
$155 in start-up money for the bar’s morning shift was missing from the back of
the establishment. Gandy had not known where this money was kept.
Dr. Robert Anthony, the forensic pathologist who performed Gandy’s
autopsy, determined that Gandy died from multiple stab and incision wounds.
Gandy suffered at least 82 knife wounds to her body. She also had been shot four
times in the head. The gunshots came either from the gun Gandy carried, or from
one with similar characteristics. All but one of the knife wounds had been
inflicted before Gandy’s death. The gunshot wounds were postmortem, but Dr.
Anthony testified that a layman would not necessarily have been able to determine
whether Gandy was alive or dead at the time the shots were fired. Gandy also had
small bruises and cuts on her hands, consistent with defensive wounds.
Postmortem tests showed that Gandy had a 0.11 percent blood-alcohol level.
There was no evidence that Gandy had been sexually assaulted.
The knife wounds were mainly, but not exclusively, to Gandy’s head, neck,
and torso. There were five wounds to the front of Gandy’s neck, 22 to her chest,
one postmortem wound to her abdomen, one wound to her thigh, 20 wounds in the
region between the base of her skull and her upper back, 14 wounds to her arms,
one wound to her side, one wound to her left cheek and 10 other wounds to her
face, three wounds to her upper back, three wounds to her middle back, and one
wound to her lower back. Of the knife wounds, only three could have caused
death within a short period – slash wounds to her carotid artery and jugular vein,
and a wound that pierced her chest wall and punctured her left lung. The other
stab wounds did not involve any major organs.
The injuries to Gandy’s neck included scratch-type wounds consistent with
the tip of a knife having been dragged across her skin. Among the wounds to
Gandy’s face were superficial cuts to her left and right eyelids. The wound to her
upper right eyelid essentially severed the lid in half. The cuts to the eyelids did
not damage Gandy’s eyeballs. Other than the one postmortem wound, Dr.
Anthony could not ascertain the order in which the knife wounds were inflicted, if
Gandy was conscious during the infliction of all of the injuries, or how long it took
to inflict all of the wounds.
The authorities never recovered any knife associated with the attack.
Defendant owned a small Swiss army knife. Shortly before the killing, defendant
informed a friend that his wife had recently bought him a filet knife and told
Dorothy Williams, a friend of his wife’s, that his wife had bought him a “really
Detectives Michael Bell and Kay Maulsby, investigating the case, learned
from other Black Stallion patrons that defendant had been at the bar the previous
evening and that he had worked at a local restaurant. The detectives visited
defendant at his home on June 2, 1994. The detectives told defendant they were
investigating a murder at the Black Stallion. Defendant acknowledged that he had
been at the Black Stallion the night of the murder. Defendant said that he had
visited the bar sometime during the evening, then returned at closing time to
recover sunglasses and a hat that he had left there. Defendant said that he and
another patron had left the bar at the same time, without incident.
The detectives asked defendant to return with them to the sheriff’s
department where they would continue to interview him. Defendant agreed and
said he would follow the detectives to the station in a separate car. At first,
defendant followed the detectives. But instead of going to the station with the
detectives, defendant veered off their route and disappeared. Defendant would
remain at large until June 10, 1994.
Defendant called his stepdaughter, Marcey Haugen, several times in the
interval between the crime and his apprehension. Haugen testified that defendant
asked her what his wife was saying to the police. Defendant asked Haugen why
his wife “couldn’t keep her mouth shut.” Defendant also asked Haugen to get rid
of some clothes in their backyard before anyone else found them. Haugen asked if
the clothes were from the Black Stallion killing. Defendant said that they were
not, and instead were from a knife fight in which he had been involved. Haugen
did not disturb the clothes, but neither did she inform the police of their existence.
On June 6, 1994, defendant called Detective Bell twice. In the first call,
defendant apologized for not following the detectives to the station. Defendant
said he had fled because “I had – all I saw was – you got a – you got a[n] armed-
robbery murder – you know.” Defendant told Bell that he had visited the Black
Stallion three times the night of the murder. The last time, he returned to the
Black Stallion when another bar closed. Defendant said he saw Gandy closing the
establishment, and left. At first, defendant recalled that he had gone directly
home. Upon further questioning, defendant said that he had picked up a hitchhiker
and taken him to a car wash. At the car wash, there had been an argument with
two or three other men, but no one was hurt.
In defendant’s second call to Detective Bell, made approximately three
hours after the first, defendant said he was “rattin[g] on himself” and that he had
been involved in a knife fight at the car wash. Defendant said that the hitchhiker
he had picked up had argued with the men at the car wash, one of whom pulled out
a knife and cut the hitchhiker under his arm. Defendant grabbed a fishing knife he
kept in his trunk and cut the attacker on his arm. The other armed man then ran
off and defendant attended to the hitchhiker’s wounds. Neither defendant nor the
hitchhiker wanted to notify the police, and defendant dropped the hitchhiker off
and went home. At home, defendant told his wife what had happened. Defendant
then went to a friend’s house in South Sacramento, throwing the knife he had used
in the fight off a bridge while en route.3
Prior to defendant’s apprehension, the police received word that there
might be some clothing buried in defendant’s yard. Defendant’s wife gave the
police permission to conduct a search and informed officers that she had seen a
partially buried pant leg while moving some wood on the side of the yard. Under
the wood, officers discovered a pair of denim jeans wrapped around a T-shirt and
a pair of shoes. Defendant’s stepdaughter identified the shoes as belonging to
defendant. Testing indicated that blood on the jeans and shoes could have come
from either defendant or Gandy, who shared the same blood type. The treads on
the shoes matched those of the bloody footprints found at the crime scene. A roll
of nickels and a roll of dimes also were found in the yard. The Black Stallion’s
start-up money sometimes included rolls of coins.
Defendant was apprehended by a warrant fugitive detail in a vehicle stop on
June 10, 1994. After defendant was detained, a search of the stopped car revealed
a brown paper bag containing $29.50 in coins. At the time of his arrest, defendant
Defendant also called Arthur Robertson of the Sacramento police
department on June 6. Defendant told Robertson that he had bloodstains on his
clothing after assisting a man injured in a knife fight at a car wash. Defendant said
that he had scared off the assailants with his own knife.
had a number of minor scratches on his right arm, some bruising below his right
armpit, and some minor scratches on his lower back.
Later on June 10, 1994, defendant called his wife from an interview room
at the sheriff’s department. Their conversation was surreptitiously recorded. A
tape of their discussion was introduced at trial. In the conversation, defendant
apologized to his wife and told her, “This has been goin’ on for a long time before
I met you – a long, long, long time.” When his wife asked, “How come I – you
never told me nothing about or nothin’,” defendant responded, “I don’t know. I
guess I never really thought it was anything and, well – I just – I get crazy. I don’t
– don’t know just – uhhh.” Defendant said, “one thing led to another and it just
came out.” Defendant also told his wife, “I’m in here for the rest of my life.”
The defense presented no witnesses at the trial’s guilt phase.
At the penalty phase, the prosecution presented testimony in aggravation
from four persons whom defendant had either robbed or attempted to rob in 1986
or 1987. Defendant had been convicted of these crimes on August 31, 1988.
Joseph Jacobs testified that on October 28, 1986, defendant emerged from a
hiding place to rob him at gunpoint at a Carmichael, California bank while Jacobs
sought to deposit the day’s receipts from his pharmacy.
Paula Jean Door testified that defendant attempted to rob her at an
automatic teller machine (ATM) on April 30, 1987. Defendant, lying on the
ground underneath some bushes, pointed a gun at Door and demanded $200.
Door, who was seven months pregnant at the time, returned to the ATM and
deliberately punched the wrong code several times until she saw a car approach.
She then pretended to faint. Defendant went back into the bushes but did not leave
until two men arrived to give Door aid.
Cathy Allen testified that on July 28, 1987, defendant robbed her as she
attempted to make a deposit at a local bank. Defendant yelled at Allen from
bushes near the bank’s night drop, demanding her money and her keys. Defendant
made away with Allen’s car and close to $1,200.
Calvin Ballard testified that on October 24, 1987, defendant accosted him
as he attempted to make a night deposit at a bank. Defendant instructed Ballard to
give him the night deposit bags. When Ballard hesitated, defendant revealed a
handgun. After Ballard gave defendant the money, defendant also demanded and
received Ballard’s car keys. Defendant could not start the car and ran away.
Marianne Bizallion, Gandy’s mother, also testified at the penalty phase.
Bizallion testified that Gandy had been her best friend and that Gandy loved being
a mother to her son, who was 13 years old when she died. Bizallion read a short
story by Gandy’s son about his mother. Bizallion testified that she had tried to put
makeup on Gandy so that people attending her funeral could see her face unveiled,
but there was too much damage to Gandy’s face for this to work.
Six witnesses testified on defendant’s behalf at the penalty phase.
Thomas Lindow had been defendant’s supervisor on the sanitation crew at
the meat processing plant at Mule Creek State Prison during defendant’s previous
prison stint. Lindow described defendant as very cooperative and an exceptional
worker. Lindow testified that defendant “seemed like he had a very good side to
him” and that defendant was aware that he needed to control his addictions to
alcohol and drugs.
Paul Valenzuela, another of defendant’s supervisors at Mule Creek State
Prison, thought defendant was a good worker and rated his performance as
average or above average.
Ronald Park, defendant’s former parole officer, testified that defendant was
friendly and courteous and that he never had reason to suspect that defendant was
engaged in any illegal activity.
James Esten, former program administrator for the California Department
of Corrections, described defendant’s likely placement in the California prison
system if he were to be sentenced to life without parole, the security precautions
taken at these prisons, and defendant’s likely living conditions in prison.
Sister Maria Fitzgerald, a Catholic nun who, at defense counsel’s request,
had visited defendant in jail, testified that defendant seemed very remorseful of the
Gandy crimes, and that from her visits she had found much to love about
The defense also presented an expert witness, Dr. William Vicary, who had
interviewed defendant on four separate occasions for a total of 10 hours. Dr.
Vicary also had performed two psychological tests on defendant to go along with a
battery of tests performed by a clinical psychologist, and had reviewed police
reports regarding defendant’s past and present crimes, transcripts of police
interviews with defendant and of defendant’s jailhouse conversation with his wife,
defendant’s arrest records, the coroner’s report, the preliminary hearing transcript,
defendant’s prior probation report, defendant’s jail, prison, school, military,
divorce, and medical records, and investigative reports summarizing interviews
with defendant’s family and acquaintances. In his testimony, Dr. Vicary
recounted in varying detail what he had learned about defendant and his
background from each of these sources. Dr. Vicary concluded that, in his opinion,
defendant was manic-depressive and suffered from antisocial personality disorder,
and that the “bottom line” was that defendant was “sick, very troubled and a very
Dr. Vicary also testified that defendant had given him two different
accounts of the murder. In the first, defendant grabbed Gandy outside of the Black
Stallion and forced her back inside. He demanded money. Gandy replied that the
money was locked in the safe. Gandy grew frightened and started to resist.
Defendant became enraged and stabbed her numerous times. Spotting Gandy’s
pistol, he then shot her to ensure she was dead.
In the second version, defendant arrived at the bar while Gandy was closing
the establishment. Defendant asked if he could keep Gandy company, and she
agreed. Inside the bar, defendant believed that Gandy was flirting with him.
Defendant put his arms around Gandy and touched her breasts. Gandy objected,
called him a pervert, and walked over to a phone to call the police. Defendant
took the phone from her, at which time Gandy ran to the end of the bar and
produced a gun from her purse. She pulled the trigger, but the gun did not fire.
Defendant then grabbed Gandy, pulled out a knife, stabbed Gandy numerous
times, loaded Gandy’s gun, and shot her.
Insufficiency of Evidence
Defendant was charged with first degree murder and tried under three
distinct theories of that crime – murder by torture, felony murder, and willful,
deliberate, and premeditated murder. At trial, the defense conceded that defendant
had killed Gandy, but argued that the slaying was not first degree murder. On
appeal, defendant asserts that there was insufficient evidence to sustain his
conviction for first degree murder under any theory. Defendant also contends that
the evidence failed to support either of the jury’s findings as to the special
circumstances. Defendant argues that his convictions thus violated his rights to
due process of law and to a reliable penalty determination under the Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution.
Standard of Review
“[T]he critical inquiry on review of the sufficiency of the evidence to
support a criminal conviction must be . . . to determine whether the record
evidence could reasonably support a finding of guilt beyond a reasonable doubt.”
(Jackson v. Virginia (1979) 443 U.S. 307, 318.) “In reviewing a criminal
conviction challenged as lacking evidentiary support, ‘ “the court must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence – that is, evidence which is reasonable,
credible, and of solid value – such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” ’ [Citation.] The same standard of
review applies to cases in which the prosecution relies mainly on circumstantial
evidence [citation], and to special circumstance allegations [citation]. An
appellate court must accept logical inferences that the jury might have drawn from
the circumstantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342,
Torture Murder and Torture Special Circumstance
First, defendant contends that insufficient evidence supports his conviction
for first degree murder under a murder-by-torture theory. Defendant asserts that
little or no evidence aside from the condition of Gandy’s body points toward a
murder by torture, and he argues that Gandy’s wounds, by themselves, do not
provide sufficient evidence to support a conviction under this theory.
We begin our analysis by reviewing the elements of first degree murder by
torture. Section 189 makes a murder perpetrated by means of torture a murder of
the first degree. “Murder by torture ‘is “murder committed with a wil[l]ful,
deliberate and premeditated intent to inflict extreme and prolonged pain.” ’
[Citation.] ‘The culpable intent is one to cause pain for “ ‘the purpose of revenge,
extortion, persuasion or for any other sadistic purpose.’ ” ’ [Citation.] There is no
requirement that the victim be aware of the pain. [Citation.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1207.) “ ‘However, there must be a causal relationship
between the torturous act and death, as Penal Code section 189 defines the crime
as murder “by means of” torture. [Citation.]’ [Citation.]” (People v. Proctor
(1992) 4 Cal.4th 499, 530.)
“The finding of murder-by-torture encompasses the totality of the brutal
acts and the circumstances which led to the victim’s death.” (People v. Proctor,
supra, 4 Cal.4th at p. 530.) “[F]or purposes of proving murder by torture, the
intent to inflict extreme pain ‘may be inferred from the circumstances of the crime,
the nature of the killing, and the condition of the victim’s body.’ [Citation.] But
we also have ‘cautioned against giving undue weight to the severity of the victim’s
wounds, as horrible wounds may be as consistent with a killing in the heat of
passion, in an “explosion of violence,” as with the intent to inflict cruel suffering.’
[Citation.]” (People v. Cole, supra, 33 Cal.4th at pp. 1213-1214.)
Contrary to defendant’s contentions, the record yields sufficient evidence to
support defendant’s conviction for first degree murder under a murder-by-torture
theory. Beginning with the physical evidence, Gandy suffered 81 premortem stab
and slash wounds. Only three of these wounds were potentially fatal. Some of
these wounds suggest a meticulous, controlled approach. Among them, Gandy’s
right eyelids were split by a knife. Even though the eyelids were cut through,
Gandy’s eyeballs were unharmed. The nature of these wounds strongly implies
the use of controlled force designed to torture. (See People v. Pensinger (1991) 52
Cal.3d 1210, 1240 [incision wounds on victim exhibiting a “nearly scientific air”
provide “strong evidence” of a calculated intent to inflict pain].) The jury
reasonably could have concluded that the stab and slash wounds to Gandy,
including the wounds that ultimately proved fatal, constituted torture. (See People
v. Mincey (1992) 2 Cal.4th 408, 433 [the condition of a victim’s body may create
an inference of an intent to torture].)
Yet more evidence than just Gandy’s wounds supported the prosecution’s
murder-by-torture theory. The evidence suggested that defendant may have
tortured Gandy to coerce her into revealing the combination to the Black Stallion’s
floor safe. Defendant’s repeated visits to the Black Stallion the night of the
murder could be interpreted as surveying the establishment in advance of a
robbery planned for later that evening. So too could defendant’s rattling of the
Black Stallion’s rear door. A reasonable jury could have construed defendant’s
leaving of his possessions at the bar as a pretext to gain admittance to the
establishment once it had closed and the other patrons had left. The location of the
keys found outside the Black Stallion’s front entrance suggests that Gandy was
accosted after leaving the bar, then forced back inside. Gandy’s body was not
found near the front of the bar, and indeed there were no signs of a struggle
anywhere in the main bar area. Rather, she was found on the floor of a storeroom
in the back of the bar. This storeroom also happened to contain the bar’s floor
safe. The floor safe’s lid was not in place when officers arrived at the scene of the
crime. A jury could have inferred from this evidence, taken together with Gandy’s
horrific wounds, that defendant tortured Gandy in the bar’s back storeroom to
coerce her into revealing the combination to the floor safe.
Defendant stresses that Dr. Anthony agreed with defense counsel’s
suggestion that the number and type of wounds Gandy suffered were consistent
with a violent struggle. That a struggle may have occurred at some point during
the assault, however, does not necessarily mean that all of Gandy’s wounds were
inflicted during a fight, and Dr. Anthony never expressly testified to that effect.
Even more fundamentally, the fact that a struggle may have occurred is not
inherently inconsistent with a murder by torture. Indeed, it would be expected that
someone would resist being tortured, and put up a struggle. The existence vel non
of evidence of a struggle is simply another circumstance for the trier of fact to
consider in deciding whether a victim was tortured. Here, even assuming a
struggle took place, the evidence provided a sufficient basis for a torture-murder
Finally, defendant missteps in arguing that an alleged dearth of evidence
indicating how long Gandy suffered refutes the prosecution’s torture-murder
theory. Defendant notes that although Atkins heard screams lasting a “long time,”
Dr. Anthony could not estimate how long it took defendant to inflict the knife
wounds on Gandy. Yet the question of how long Gandy actually suffered pain is
ultimately not a pivotal issue. “[M]urder by means of torture under section 189 is
murder committed with a wil[l]ful, deliberate, and premeditated intent to inflict
extreme and prolonged pain.” (People v. Steger (1976) 16 Cal.3d 539, 546, italics
Defendant also emphasizes the lack of evidence indicating Gandy was
bound and unable to resist during the attack. (Cf. People v. Bemore (2000) 22
Cal.4th 809, 820, 842 [binding of victim suggested that victim was tortured];
People v. Crittenden (1994) 9 Cal.4th 83, 141 [same]; People v. Proctor, supra, 4
Cal.4th at p. 530 [same].) We have never held that a failure to bind or gag a
victim necessarily precludes a finding that the victim was tortured. (See, e.g.,
People v. Davenport (1985) 41 Cal.3d 247, 258 [recitation of torture victim’s
injuries incorporates no indication that victim was bound or gagged].) On the
contrary, as stated above “[t]he finding of murder-by-torture encompasses the
totality of the brutal acts and the circumstances which led to the victim’s death”
(People v. Proctor, supra, 4 Cal.4th at p. 530), meaning that evidence that the
victim was or was not restrained is merely another consideration for the finder of
fact to take into account in determining whether a defendant committed murder by
torture. Here, as discussed, the nature of Gandy’s wounds and the circumstances
surrounding the killing provide sufficient support for a conviction premised on a
added.) Notwithstanding defendant’s attempt to conflate the two, the defendant’s
intent to inflict prolonged pain is not the same as the victim’s suffering of
prolonged pain. Indeed, a defendant may be found guilty of murder by torture
even if the victim is never aware of any pain. (People v. Cole, supra, 33 Cal.4th at
p. 1207; People v. Pensinger, supra, 52 Cal.3d at p. 1239; People v. Wiley (1976)
18 Cal.3d 162, 173.) The evidence here supports the conclusion that defendant
intended to inflict extreme and prolonged pain; that is enough.
We also conclude that the evidence sufficed to sustain the true finding as to
the torture-murder special circumstance. To find the torture-murder special
circumstance true, the jury had to find that “[t]he murder was intentional and
involved the infliction of torture.” (§ 190.2, subd. (a)(18).) The nature of Gandy’s
wounds and the circumstances surrounding the killing adequately support the
conclusions that defendant intended to kill Gandy and that the murder involved
Defendant also argues that the evidence does not support his conviction for
first degree murder under a felony-murder theory or the true finding as to the
attempted-robbery-murder special circumstance.
“ ‘ “[A]ll murder . . . which is committed in the perpetration of, or attempt
to perpetrate,” certain enumerated felonies, including [robbery], “is murder of the
first degree . . . .” (Pen. Code, § 189.)’ ” (People v. Gutierrez (2002) 28 Cal.4th
1083, 1140.) “ ‘We have required as part of the felony-murder doctrine that the
jury find the perpetrator had the specific intent to commit one of the enumerated
felonies [in section 189] . . . . [Citations.]’ [Citation.] It also is established that
the killing need not occur in the midst of the commission of the felony, so long as
that felony is not merely incidental to, or an afterthought to, the killing.
[Citations.]” (People v. Proctor, supra, 4 Cal.4th at p. 532.) Circumstantial
evidence may provide sufficient support for a felony-murder conviction. (See,
e.g., People v. Marks (2003) 31 Cal.4th 197, 230-231 [sufficient evidence
supported robbery-murder conviction based on evidence that victim usually
carried several $1 bills, no paper currency was found on victim or in his taxi, and
defendant had seven $1 bills on his person at the time of his arrest].)
The victim here was found, stabbed and slashed repeatedly, next to a floor
safe hidden in the back room of a bar. The contents of her purse were strewn
about the floor. The attack occurred after the bar had closed and other patrons had
left. The lid to the bar’s floor safe was not in place. A reasonable jury could have
interpreted defendant’s conduct throughout the night leading up to the murder as
evincing a plan to gain entry into the bar after it closed, and then rob the bartender
of the day’s receipts. The jury also could have concluded from the evidence
presented that defendant ambushed Gandy after she closed the bar, forced her at
knifepoint into the back room, and then inflicted fatal wounds as part of the
attempted robbery. The evidence therefore provides sufficient grounding for the
prosecution’s felony-murder theory premised on an attempted robbery.
Defendant argues at length that the trial evidence might be reconciled with
various scenarios not involving an armed robbery. Even if this were so, “ ‘ “ ‘If
the circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment. [Citation.]’ ” ’
[Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 368.) As reviewed above,
sufficient evidence supports a conviction for felony murder, and the viability of
alternate theories provides no basis for reversing the judgment.
We also conclude that the evidence suffices to support the jury’s true
finding as to the attempted-robbery-murder special circumstance. (See, e.g.,
People v. Valdez (2004) 32 Cal.4th 73, 105-106; People v. Proctor, supra, 4
Cal.4th at pp. 535-536.)5
Willful, Deliberate and Premeditated Murder
Defendant also challenges the sufficiency of the evidence as to the third
theory of first degree murder advanced by the prosecution, namely that defendant
committed willful, deliberate, and premeditated murder.
“Generally, there are three categories of evidence that are sufficient to
sustain a premeditated and deliberate murder: evidence of planning, motive, and
method. [Citations.] When evidence of all three categories is not present, ‘we
require either very strong evidence of planning, or some evidence of motive in
conjunction with planning or a deliberate manner of killing.’ [Citation.] But these
categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15,
26-27 [73 Cal.Rptr. 550, 447 P.2d 942], ‘are descriptive, not normative.’
[Citation.] They are simply an ‘aid [for] reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere unconsidered or rash
impulse.’ [Citation.]” (People v. Cole, supra, 33 Cal.4th at p. 1224.)
Anderson factors and reviewing the facts adduced at trial in
the light most favorable to the People (People v. Marks, supra, 31 Cal.4th at p.
230), we conclude that the record yields sufficient evidence to support the verdict
under a theory of willful, deliberate, and premeditated murder. With regard to
planning, a reasonable jury could infer that defendant armed himself with a knife
Although defendant does not expressly challenge the sufficiency of the
evidence underlying his conviction for attempted robbery, to the extent that his
arguments implicitly subsume such an attack we conclude that there was more
than adequate evidence to support his conviction for this crime, as well.
prior to accosting Gandy outside of the bar. Defendant told others shortly before
the killing that he had a new knife, and a knife kept in defendant’s trunk featured
prominently in the stories defendant told to the police in the days following the
killing. That defendant armed himself prior to the attack “supports the inference
that he planned a violent encounter.” (Ibid.) Furthermore, “the total vulnerability
of the victim and the evidence of a previously selected remote spot for the killing
do suggest planning.” (People v. Pensinger, supra, 52 Cal.3d at p. 1237.) As
discussed, a reasonable jury could have interpreted defendant’s actions earlier
during the evening of the murder as surveying the Black Stallion for a later attack.
Defendant waylaid and killed Gandy after the Black Stallion closed for the night
and all other customers had left. The fatal wounds were inflicted in a back
storeroom well removed from the bar’s front entrance. Taken collectively, the
record evidence supports a finding of planning.
The jury could have construed the evidence as establishing a motive, such
as that defendant deliberately intended to kill Gandy to eliminate her as a witness
to the attempted robbery and torture. (See People v. Proctor, supra, 4 Cal.4th at p.
529.) The method of killing here also suggests premeditation. (See People v.
Memro (1995) 11 Cal.4th 786, 863-864.) Gandy suffered three potentially lethal
knife wounds, not to mention almost eighty other stab and slash wounds to her
body. The jury could have construed the repeated slashing of Gandy’s throat, in
connection with the dozens of other wounds, as intimating a preconceived design
to kill. We also observe that defendant shot Gandy in the head four times from a
few feet away. Even though these wounds were inflicted after Gandy was
clinically dead, Dr. Anthony testified that when the shots were fired a layman
would not necessarily know that Gandy had already died. A reasonable jury could
have construed these shots as an ultimately unnecessary coup de grace to a fatal
attack effected with a calculated design to kill.
In sum, we find that a reasonable jury could have returned a guilty verdict
on a willful, deliberate, and premeditated killing theory of first degree murder, as
well as on the other theories of first degree murder offered to it. Sufficient
evidence also supports the torture-murder and felony-murder special
circumstances. We therefore reject defendant’s various challenges to the
sufficiency of the evidence.
Next, defendant contends that the court should have sua sponte excluded
certain guilt-phase testimony by Dorothy Williams, a friend of defendant’s wife.
Williams testified, in pertinent part, that a few days before the murder she had
seen defendant watching a film that depicted women being stabbed and cut.
Defendant contends that Williams’s testimony constituted inadmissible character
evidence that tainted the verdict and violated his right to due process of law and to
a reliable penalty determination under the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution.
Called near the close of the prosecution’s case, Williams testified that
during a visit to defendant’s house shortly before the killing, she observed
defendant watch a violent, “very gory X-rated” videotape depicting the “stabbing,
cutting up [of] a woman.” When Williams objected to the video, defendant said
that she and his wife, who also was present at the time, were “lightweights” who
“couldn’t handle” the movie. The prosecutor referenced this testimony in her
closing statement, arguing that the jury should find the torture special
circumstance allegation true because, among other reasons, “we know the last
week in May that the defendant had watched that movie . . . that was a very gory
X-rated type of cut them up film with women being cut up . . . .”
No objection was made to Williams’s testimony regarding the videotape.6
We therefore reject as forfeited defendant’s arguments on appeal challenging the
admission of this evidence. (Evid. Code, § 353; People v. Champion (1995)
9 Cal.4th 879, 918.)
For argument’s sake, even if we were to assume that defendant properly
preserved this claim and further assume that allowing the testimony was error, we
would find the mistake harmless. (See Chapman v. California (1967) 386 U.S. 18,
24; People v. Watson (1956) 46 Cal.2d 818, 836.) Williams’s testimony
established only that defendant watched a violent film with content vaguely
similar to the circumstances of the murder, and that he had a gruff response to
Williams’s objection. On cross-examination, Williams admitted that she could not
tell whether the movie was of a type that, “for good or bad,” could have been
obtained at a videotape rental store. Moreover, Williams’s testimony was a minor
part of the prosecution’s case, and the jury already had ample evidence before it
establishing defendant’s guilt of the crimes charged. We find it inconceivable that
the result here might have been affected in any respect by Williams’s brief
testimony regarding the videotape.7
Defense counsel objected to an instruction proposed by the trial court at the
penalty phase that would have directed the jury, “Evidence was presented in the
guilt phase for the purpose of showing the defendant used a videotape depicting
violent assaults against women. . . . [¶] You may consider the evidence described
in the instruction for whatever bearing, if any, it may have on the circumstances
surrounding the commission of the crimes of which the defendant was convicted
in the guilt phase of this trial. You may not consider it as evidence of bad
character.” Upon defense counsel’s objection, the court did not give this
Our conclusion obviates the need to respond to defendant’s argument that
because the testimony in question assertedly “had an unfair prejudicial impact on
the jury’s deliberations” (United States v. Young (1985) 470 U.S. 1, 17, fn. 14), his
claim on appeal was not forfeited by the absence of an objection.
Defendant also contends that the trial court erred in refusing to instruct the
jury not to consider Gandy’s gunshot wounds in determining whether she had been
tortured.8 Defendant argues that without this instruction, the jury may have
believed that the postmortem gunshot wounds themselves constituted torture. The
failure to instruct, defendant argues, violated his rights to due process of law and
to a reliable penalty determination under the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution.
We do not believe the jury was misled. The court instructed the jury that
to be guilty of murder by torture, defendant must have had a “willful, deliberate
and premeditated intent to inflict extreme and prolonged pain upon a living human
being for the purpose of revenge, extortion, persuasion, or any sadistic purpose,”
and that “[t]he acts or actions taken by the perpetrator to inflict extreme and
prolonged pain [must have been] the cause of the victim’s death.” With regard to
the torture-murder special circumstance, the jury was instructed that to find the
circumstance true, it must conclude that defendant intended to kill a human being,
that “defendant intended to inflict extreme cruel physical pain and suffering upon
a living human being for the purpose of extortion or persuasion or for any sadistic
purpose,” and that “[t]he defendant did in fact inflict extreme cruel physical pain
and suffering upon a living human being no matter how long its duration.”
Following these instructions, as it is presumed to have done, the jury would not
The proposed instruction provided, “In deciding whether the injuries
inflicted on the victim constituted torture, you must consider only the injuries
inflicted upon her while she was alive. You must not consider the post-mortem
gunshot wounds when determining whether or not she was tortured.”
have considered the postmortem gunshot wounds as themselves constituting
torture, since those wounds were not to a “living human being” and were not the
cause of Gandy’s death. (See People v. St. Joseph (1990) 226 Cal.App.3d 289,
In addition, to the extent that defendant’s proposed instruction would have
prohibited the jury from considering anything other than Gandy’s premortem
wounds in deciding whether Gandy had been tortured, the instruction misstated the
law and was properly refused. (See People v. Mickey (1991) 54 Cal.3d 612, 697.)
Defendant’s proposed instruction misstated the law because “[i]n determining
whether a murder was committed with that intent [to torture], the jury may of
course consider all the circumstances surrounding the killing.” (People v. Steger,
supra, 16 Cal.3d at p. 546.) Consistent with this general rule, acts following the
alleged torture can shed light on a defendant’s earlier intent. (See, e.g., People v.
Cole, supra, 33 Cal.4th at p. 1214 [finding defendant’s statements following an
attack on his wife to be probative of an intent to torture].) The trial judge,
therefore, did not err in declining to give defendant’s proposed instruction on this
Failure to Instruct on Lesser Included Offense
The jury was instructed as to the elements of murder, that murder was
classified into two degrees, and that if it determined defendant had murdered
Gandy, but had a reasonable doubt as to whether the murder was of the first or
second degree, it had to give the defendant the benefit of the doubt and return a
verdict fixing the murder as being of the second degree. The verdict forms
provided to the jury included a space in which the jury could return a second
degree murder verdict.
The trial court gave no other instructions expressly explaining the crime of
second degree murder, besides those related above. Defendant argues that the
failure to provide additional instructions detailing the elements of second degree
murder was the “functional equivalent of no instruction at all” regarding this
offense. Defendant contends that the failure to provide additional guidance to the
jury on this subject violated his rights to due process of law, to trial by jury, and to
a reliable penalty determination under the California Constitution and the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (Cf.
Beck v. Alabama (1980) 447 U.S. 625, 637.)
“ ‘[A] defendant has a constitutional right to have the jury determine every
material issue presented by the evidence [and] . . . an erroneous failure to instruct
on a lesser included offense constitutes a denial of that right . . . .’ [Citation.]”
(People v. Lewis (2001) 25 Cal.4th 610, 645.) However, we need not reach the
issues of whether defendant was entitled to a second degree murder instruction in
the first instance, or whether the trial court’s instructions regarding second degree
murder were deficient, because we conclude that any assumed instructional error
on this score was harmless beyond a reasonable doubt. (See Chapman v.
California, supra, 386 U.S. at p. 24.)
“ ‘[I]n some circumstances it is possible to determine that although an
instruction on a lesser included offense was erroneously omitted, the factual
question posed by the omitted instruction was necessarily resolved adversely to
the defendant under other, properly given instructions. In such cases the issue
should not be deemed to have been removed from the jury’s consideration since it
has been resolved in another context, and there can be no prejudice to the
defendant since the evidence that would support a finding that only the lesser
offense was committed has been rejected by the jury.’ [Citations.]” (People v.
Edelbacher (1989) 47 Cal.3d 983, 1028; see also People v. Koontz (2002) 27
Cal.4th 1041, 1086-1087 [failure to instruct as to manslaughter harmless given
jury’s true finding as to felony-murder special circumstance]; People v. Price
(1991) 1 Cal.4th 324, 464 [same].)
Here, the jury found defendant guilty of first degree murder and attempted
robbery, and found true both the torture-murder and the attempted-robbery-murder
special circumstances. To have convicted defendant of first degree murder under
a felony-murder theory here, the jury had to have found beyond a reasonable doubt
that defendant had killed Gandy in an attempt to perpetrate a robbery. (§ 189;
People v. Cavitt (2004) 33 Cal.4th 187, 197; 1 Witkin and Epstein, California
Criminal Law (3d ed. 2000) Crimes Against the Person, § 134, p. 750.) As noted
in connection with defendant’s challenge to the sufficiency of the evidence, the
killing “need not occur in the midst of the commission of the felony, so long as
that felony is not merely incidental to, or an afterthought to, the killing.” (People
v. Proctor, supra, 4 Cal.4th at p. 532.) Likewise, the jury was instructed that it
could find the attempted-robbery-murder special circumstance true only if it
determined, beyond a reasonable doubt, that the murder was committed while
defendant was engaged in the commission of an attempted robbery and in order to
carry out or advance the commission of the crime of attempted robbery or robbery,
or to facilitate the escape thereof or to avoid detection. The jury also was directed
that the felony-murder special circumstance is not established if the attempted
robbery was merely incidental to the commission of the murder. As the elements
of felony murder and the special circumstance coincide, the true finding as to the
attempted-robbery-murder special circumstance establishes here that the jury
would have convicted defendant of first degree murder under a felony-murder
theory, at a minimum, regardless of whether more extensive instructions were
given on second degree murder. (See People v. Koontz, supra, 27 Cal.4th at pp.
1086-1087; People v. Earp (1999) 20 Cal.4th 826, 886; People v. Price, supra, 1
Cal.4th at p. 464.) Because defendant would have been found guilty of first
degree murder regardless of whether more thorough instructions had been
provided relating to second degree murder, we reject defendant’s claim.9
Torture Special Circumstance
Defendant also contends that the trial court erroneously instructed the jury
regarding the intent required for an “infliction of torture” under section 190.2,
subdivision (a)(18), the torture special circumstance. The trial court instructed the
jury with CALJIC No. 8.81.18, directing that a true finding as to the torture-
murder special circumstance required proof that defendant intended to kill a
human being; that defendant “intended to inflict extreme cruel physical pain and
suffering upon a living human being” for the purpose of extortion or persuasion or
for any sadistic purpose; and that defendant did in fact inflict extreme cruel
physical pain and suffering upon a living human being, no matter how long its
duration. Defendant argues that the trial court also should have instructed the jury
that in order to find the torture special circumstance true, it had to find that the
defendant harbored a premeditated intent to inflict prolonged pain. Defendant
asserts that the failure to so instruct the jury violated his rights to due process of
law, to trial by jury, and to a reliable penalty determination under the California
The jury’s verdict also defeats defendant’s argument that he was prejudiced
by a failure to provide a second degree felony-murder instruction premised on the
underlying felony of torture. (§ 206.) (At the relevant time, the crime of torture
had not yet been added to the list of felonies eligible for incorporation into a first
degree felony-murder charge [see Stats. 1999, ch. 694, § 1].) The jury’s true
finding as to the felony-murder special circumstance under a theory involving a
murder occurring in the commission of an attempted robbery establishes beyond a
reasonable doubt that defendant suffered no prejudice from any failure to instruct
on this score.
Constitution and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution.
Defendant’s argument on this point turns on the 1990 amendment of
section 190.2, subdivision (a)(18). Section 190.2, subdivision (a)(18) was enacted
by initiative in 1978. As enacted, section 190.2, subdivision (a)(18) made a
defendant death-eligible where “the [first degree] murder was intentional and
involved the infliction of torture. For the purpose of this section torture requires
proof of the infliction of extreme physical pain no matter how long its duration.”
We have construed the special circumstance, as originally enacted in 1978, as
requiring proof of first degree murder, proof that the defendant intended to kill and
to torture the victim, and proof of the infliction of an extremely painful act upon a
living victim. (People v. Cole, supra, 33 Cal.4th at pp. 1227-1228; People v.
Davenport, supra, 41 Cal.3d at p. 271.) But we also have held that no proof is
required that defendant had a premeditated intent to inflict prolonged pain.
(People v. Cole, supra, 33 Cal.4th at pp. 1227-1228; People v. Davenport, supra,
41 Cal.3d at pp. 269-270.)
In 1990, the electorate passed Proposition 115, the Crime Victims Justice
Reform Act. Proposition 115, among other things, amended section 190.2,
subdivision (a)(18) by deleting its language regarding the infliction of extreme
physical pain. The special circumstance now applies where “[t]he murder was
intentional and involved the infliction of torture,” without providing further
explanation of what constitutes the “infliction of torture” for purposes of the
Defendant argues that in amending section 190.2, subdivision (a)(18) by
deleting its language regarding the infliction of extreme pain, the electorate that
enacted Proposition 115 intended one of two results. First, the electorate may
have intended to remove any requirement that torture involve “extreme physical
pain.” Defendant suggests that if this were the case, the special circumstance
would be unconstitutional for failing to adequately narrow the pool of death-
eligible defendants. (Cf. Zant v. Stephens (1983) 462 U.S. 862, 877.)
Alternatively and preferably, defendant argues, by deleting the language regarding
“extreme physical pain” and failing to further define “the infliction of torture,” as
that phrase is used in the special circumstance, the electorate may have intended to
give “torture” under the special circumstance the same meaning afforded that term
for purposes of proving a murder by torture under section 189; i.e., requiring a
“ ‘wil[l]ful, deliberate and premeditated intent to inflict extreme and prolonged
pain’ ” for the purpose of revenge, extortion, persuasion, or for any other sadistic
purpose. (People v. Cole, supra, 33 Cal.4th at p. 1207.) If this latter scenario is
true, defendant concludes, the jury here was misinstructed because it was not
directed that it had to find a premeditated intent to inflict prolonged pain.
We disagree with defendant’s interpretation of the electorate’s intent and
reject the forced choice he offers us. “In interpreting a voter initiative, we apply
the same principles that govern our construction of a statute. [Citation.] We turn
first to the statutory language, giving the words their ordinary meaning.
[Citation.] If the statutory language is not ambiguous, then the plain meaning of
the language governs. [Citation.]” (People v. Lopez (2005) 34 Cal.4th 1002,
1006.) “ ‘If, however, the statutory language lacks clarity, we may resort to
extrinsic sources, including the ostensible objects to be achieved and the
legislative history. [Citation.] In such situations, we strive to select the
construction that comports most closely with the Legislature’s apparent intent,
with a view to promoting rather than defeating the statute[’s] general purposes.
[Citation.] We will avoid any interpretation that would lead to absurd
consequences. [Citation.]’ [Citation.]” (People v. Montes (2003) 31 Cal.4th 350,
The language of section 190.2, subdivision (a)(18) does not expressly
define what is meant by “the infliction of torture.” We therefore turn to other
sources. “Proposition 115 was a remedial measure enacted in June 1990 to make
‘comprehensive reforms . . . in order to restore balance and fairness to our criminal
justice system.’ (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments
to voters, Gen. Elec. (June 5, 1990) Text of Proposed Law, Prop. 115, § 1, subd.
(a), p. 33.) The voters expressly found ‘that it is necessary to reform the law as
developed in numerous California Supreme Court decisions and as set forth in the
statutes of this state. These decisions and statutes have unnecessarily expanded
the rights of accused criminals far beyond that which is required by the United
States Constitution, thereby unnecessarily adding to the costs of criminal cases,
and diverting the judicial process from its function as a quest for truth.’ [Ibid.]”
(People v. Boulerice (1992) 5 Cal.App.4th 463, 474-475.) Also incorporated
within the text of the proposed law were the People’s findings that “the rights of
crime victims are too often ignored by our courts and by our State Legislature,
[and] that the death penalty is a deterrent to murder.” (Ballot Pamp., supra, Text
of Proposed Law, Prop. 115, § 1, subd. (a), p. 33.)
In light of the electorate’s avowed goals in enacting Proposition 115, it is
highly doubtful that the electorate sought to make it more difficult to prove the
torture special circumstance by requiring proof of a premeditated intent to inflict
prolonged pain. Indeed, other changes made to the Penal Code by Proposition 115
belie the argument that the electorate intended a sweeping change to the torture
special circumstance’s intent requirement. Proposition 115 created a new crime of
torture, section 206, which occurs when a person “who, with the intent to cause
cruel or extreme pain and suffering for the purpose of revenge, extortion,
persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in
Section 12022.7 upon the person of another.” The crime of torture therefore
incorporates the same intent element deemed necessary to demonstrate an
“infliction of torture” under section 190.2, subdivision (a)(18) prior to the passage
of Proposition 115. (See People v. Cole, supra, 33 Cal.4th at pp. 1227-1228;
People v. Davenport, supra, 41 Cal.3d at pp. 269-270.)
We infer from the above that the electorate, in amending section 190.2,
subdivision (a)(18), did not mean to change its intent requirement. Rather, it
accepted the previously adopted standard and codified it within the new crime of
torture. Had the electorate intended a more transformative change to the special
circumstance, we believe it would have more clearly manifested such an intent.
Consistent with decisions interpreting section 190.2, subdivision (a)(18)
prior to its 1990 amendment, we conclude that for an intentional murder to involve
“the infliction of torture” under section 190.2, subdivision (a)(18), as amended by
Proposition 115, the requisite torturous intent is an intent to cause cruel or extreme
pain and suffering for the purpose of revenge, extortion, persuasion, or for any
other sadistic purpose.10 A premeditated intent to inflict prolonged pain is not
required. Because the jury here was appropriately instructed to this effect, there
was no error.
Hearsay (CALJIC No. 2.10)
the trial court erred in instructing the jury at the
penalty phase with a variant of CALJIC No. 2.10 that pertained to Dr. Vicary’s
testimony. The trial court instructed the jury with the following version of
Our conclusion makes it unnecessary to address in detail defendant’s
argument that a modified torture special circumstance might insufficiently narrow
the pool of death-eligible defendants. We have upheld the constitutionality of
section 190.2, subdivision (a)(18) as enacted in 1978 (People v. Davenport, supra,
41 Cal.3d at pp. 266-271), and see no reason here to reach a contrary conclusion.
CALJIC No. 2.10: “There has been admitted in evidence the testimony of a
medical expert of statements made by the defendant in the course of an
examination of the defendant which was made for the purpose of diagnosis. Such
statements may be considered by you only for the limited purpose of showing the
information upon which the medical expert based his opinion. [¶] Such testimony
is not to be considered by you as evidence of the truth of the facts disclosed by the
defendant’s statements.” Defendant argues that this limiting instruction
improperly removed mitigating facts from the jury’s full consideration and
deprived him of equal protection and due process of law, the rights to present
witnesses and to trial by jury, and a reliable penalty determination in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
As discussed in part I.B.2, ante, Dr. William Vicary testified on behalf of
the defense in the penalty phase of defendant’s trial. Dr. Vicary testified at length
regarding the sources he relied upon in forming his opinion that defendant was
manic-depressive and suffered from an antisocial personality disorder. Dr. Vicary
also testified as to the information he gleaned from each of those sources. Among
Dr. Vicary’s sources of information was defendant himself, whom Dr. Vicary
interviewed four times. Defendant told Dr. Vicary, among other things, that he
was beaten as a child and that he suffered from a long-term addiction to alcohol.
Defendant’s statements on these points, as related by Dr. Vicary, were generally
consistent with information Dr. Vicary gleaned from investigators’ reports of
interviews with defendant’s family members. Defendant’s other statements to Dr.
Vicary included assertions that he had committed far more robberies than those for
which he had been apprehended, and that he had attempted to escape from jail.
Dr. Vicary also testified as to the two different versions of the Gandy murder that
defendant had told him.
The prosecution never raised a hearsay objection to any of Dr. Vicary’s
testimony. Before the prosecutor cross-examined Dr. Vicary, the judge inquired
whether the prosecutor wanted the jury to be instructed with CALJIC No. 2.10.
The prosecution then requested the instruction. The defense objected, arguing that
CALJIC No. 2.10 was inapplicable to the circumstances. The trial court disagreed
and ultimately gave the instruction at the close of the penalty phase.
Defendant argues that CALJIC No. 2.10 cannot be given at the penalty
phase of a capital trial, at least where it is claimed to remove mitigating facts from
the jury’s full consideration. We addressed this issue in People v. Stanley (1995)
10 Cal.4th 764, 838-840 (Stanley). In Stanley, at the defendant’s behest, a
videotaped interview between a defense psychiatrist and the defendant was played
to the jury in connection with the psychiatrist’s penalty-phase testimony. (Id. at p.
785.) The trial court instructed the jury that it could consider statements the
defendant had made to the psychiatrist only for the limited purpose of showing the
information upon which the psychiatrist based his opinion, and not for the truth of
the facts asserted in the statements. (Id. at p. 838.) The defendant claimed that
this instruction wrongfully removed mitigating facts contained in his statements to
the psychiatrist from the jury’s full consideration. (Ibid.)
We held otherwise, concluding that the instruction could be and was
appropriately given at the penalty phase of the defendant’s trial. (Stanley, supra,
10 Cal.4th at pp. 838-839.) While we recognized that, in rare cases, due process
considerations may override state evidentiary rules so as to “require admission, at
the penalty phase of a capital trial, of a highly relevant and reliable hearsay
statement,” in Stanley the defendant’s statements “had no indicia of reliability.”
(Id. at pp. 838-839.) We observed, “The statements did not predate the instant
charges; rather, they were made contemporaneously with the criminal proceedings
and specifically to provide evidence for the defense.” (Id. at p. 839.) We also
noted that the defendant’s position would allow defendants to insulate factual
assertions and self-serving testimony from any cross-examination simply by
having an expert relate them to the jury. (Ibid.) Furthermore, “the defense was
free to introduce competent evidence, including defendant’s testimony, of the
matters referred to on the tape.” (Id. at pp. 839-840; see also People v. Weaver
(2001) 26 Cal.4th 876, 979-982.)
We follow Stanley in rejecting defendant’s analogous claim of error. The
limiting instruction here was properly requested by the prosecution (see Evid.
Code, § 355) and given by the trial court to clarify that defendant’s statements to
Dr. Vicary were to be considered only for the limited purpose of assessing Dr.
Vicary’s opinion. (See People v. Weaver, supra, 26 Cal.4th at pp. 979-982;
People v. Dennis (1998) 17 Cal.4th 468, 533-534 [recognizing that a “defendant
could not offer his own hearsay statements as evidence of the truth of what he told
[a psychiatrist]”]; People v. Gardeley (1996) 14 Cal.4th 605, 619 [“[A] witness’s
on-the-record recitation of sources relied on for an expert opinion does not
transform inadmissible matter into ‘independent proof’ of any fact”]; Stanley,
supra, 10 Cal.4th at pp. 838-840.) Defendant complains the prosecution had an
obligation to interpose contemporaneous hearsay objections to Dr. Vicary’s
testimony. But here the prosecutor’s request for a limiting instruction served the
same purpose as hearsay objections would have, and placed defendant on notice
that his statements to Dr. Vicary were to be considered only for the limited
purpose of showing the information upon which the doctor relied in forming his
opinion. (People v. Weaver, supra, 26 Cal.4th at pp. 979-982; Stanley, supra, 10
Cal.4th at pp. 838-839; see also People v. Dennis, supra, 17 Cal.4th at pp. 533-534
[observing that the timing of a limiting instruction lies within the court’s
As we discerned in Stanley, supra, 10 Cal.4th at page 838, due process
concerns sometimes may require the admission at the penalty phase of a capital
trial of highly relevant and reliable hearsay statements. (See also Green v.
Georgia (1979) 442 U.S. 95, 96-97.) Assuming that the applicability of this
exception is properly before us, defendant’s statements to Dr. Vicary nevertheless
do not fit within its parameters. Defendant’s statements to Dr. Vicary were made
in preparation for trial, giving defendant an incentive to prevaricate. Dr. Vicary
himself acknowledged that defendant’s credibility was “not good” and that
defendant was a “liar” who had lied to him, to the police, and to his attorneys. Dr.
Vicary acknowledged that at least one of the versions of the Gandy murder that
defendant had given him was false. In sum, defendant’s statements to Dr. Vicary
lacked sufficient indicia of reliability for due process considerations to preclude
the use of CALJIC No. 2.10.11
Further compromising defendant’s due process argument is the fact that to
the extent that any of his statements to Dr. Vicary could have borne any indicia of
reliability – a showing that defendant, who had the burden of adducing such
indicia (see People v. Harris (1984) 36 Cal.3d 36, 70), manifestly failed to make –
these indicia would have derived from the statements’ corroboration by other
hearsay sources whose input also was related by Dr. Vicary at the penalty phase.
Practically by definition, the facts conveyed in defendant’s corroborated
statements were cumulative and thus properly subject to exclusion by the court.
(See People v. Smithey (1999) 20 Cal.4th 936, 996 [holding that cumulative
hearsay offered in mitigation was properly excluded at the penalty phase of a
capital trial].) Also, defendant’s statements to Dr. Vicary included information
such as defendant’s admissions that he had perpetrated numerous other robberies
and that he had tried to escape from jail. The trial court specifically instructed the
jury that it could not consider defendant’s statements regarding these robberies as
proof that he had committed them. All in all, the trial court’s instructions
regarding Dr. Vicary’s testimony might have inured to defendant’s benefit, not his
(footnote continued on next page)
Defendant also argues that the instruction swept too broadly in that it
improperly prevented the jury from considering for their truth statements in two
letters defendant wrote while in jail, which Dr. Vicary read to the jury;12
defendant’s assertions regarding prior crimes he had committed as a youth and
later; and defendant’s expressions of remorse for the Gandy slaying, as
paraphrased by Dr. Vicary in his testimony. Defendant characterizes all of these
statements as declarations against penal interest, which are not subject to the
hearsay rule. (Evid. Code, § 1230.)
“With respect to the penal interest exception, the proponent of the evidence
‘must show that the declarant is unavailable, that the declaration was against the
declarant’s penal interest when made and that the declaration was sufficiently
reliable to warrant admission despite its hearsay character.’ [Citations.]” (People
(footnote continued from previous page)
detriment. (See People v. Weaver, supra, 26 Cal.4th at p. 981 [finding any
assumed error resulting from limiting instruction based on CALJIC No. 2.10
harmless because defendant’s hearsay statements also incorporated aggravating
Defendant’s letter “to whom it may concern” provided in pertinent part as
follows: “I wish Sherri Gandy’s family to know that I am really sorry for the
horrible thing that I did to her. [¶] I also wish them to know that at no time was
robbery ever in the picture. I did not go back to the bar to commit a crime. I went
back because I was drinking – I was – in my drunken stupor, I thought she liked
me. I was wrong. And when she responded the way she did, I got scared, and
something snapped. [¶] I remember very little of the attack – itself. [¶] [B]ut I
did not take anything other than the gun and a towel out of the bar that – that’s all.
I swear it. [¶] Again, I am sorry.”
Defendant’s letter for his wife provided, in pertinent part, “I want to say to
you that I am so sorry for what I did. For the first time in my life, I had everything
– I thought I ever wanted. And something inside me just wouldn’t let me be
happy. It was like I just had to do anything I could to mess up what we had. All I
can say is that I hope you are happy for the rest of your life, because you deserve
v. Lawley (2002) 27 Cal.4th 102, 153; see also Evid. Code, § 1230.) Even
assuming that defendant’s argument on this point has been properly preserved, the
statements at issue here do not meet this standard.
First and foremost, defendant was not “unavailable” within the meaning of
Evidence Code section 1230. “Defendant was certainly not unavailable to
himself. Although he possessed, and exercised, a privilege not to testify, the
choice was his. He could have testified had he so elected. As stated in the
Comment of the Assembly Committee on the Judiciary to Evidence Code section
240, the section defining the phrase ‘unavailable as a witness,’ ‘if the out-of-court
statement is that of the party himself, he may not create “unavailability” under this
section by invoking a privilege not to testify.’ ” (People v. Edwards (1991) 54
Cal.3d 787, 819.) As defendant was not “unavailable” to himself, he cannot now
invoke Evidence Code section 1230.
Moreover, the statements contained in defendant’s letter addressed “to
whom it may concern,” in which defendant said that he killed Gandy while
intoxicated and that he just “snapped,” plainly come across as exculpatory rather
than inculpatory in light of defendant’s prosecution for first degree murder. (See
People v. Kraft (2000) 23 Cal.4th 978, 1073-1074; People v. Livaditis (1992) 2
Cal.4th 759, 780.) Under the totality of circumstances presented here, we likewise
conclude that defendant’s other statements were not sufficiently “ ‘against the
declarant’s penal interest when made and . . . sufficiently reliable to warrant
admission despite [their] hearsay character.’ [Citations.]” (People v. Lawley,
supra, 27 Cal.4th at p. 153.)13
We also observe that on its face the court’s instruction pertained only to
statements made by defendant to Dr. Vicary “in the course of an examination . . .
for the purpose of diagnosis.” Neither the letter “to whom it may concern” nor
(footnote continued on next page)
Defendant also complains that the trial court’s instruction improperly
singled out statements made by defendant to Dr. Vicary as unworthy of credence
and constituted an improper comment on the evidence. While it may have been
preferable for the trial judge to have broadened the instruction so that it included
other sources Dr. Vicary relied upon, the instruction was not prejudicial as given.
The jury no doubt grasped that the instruction was not intended as a pejorative
comment on defendant’s credibility or character but rather as a clarification
regarding how defendant’s statements to Dr. Vicary should be considered during
its deliberations.14 The fact that this instruction did not facially pertain to other
sources Dr. Vicary relied upon did not imply that those sources were to be
considered more trustworthy or reliable than defendant. In any event, any effect
the instruction could have had if the jury had construed it differently was
incontestably harmless. (See Chapman v. California, supra, 386 U.S. at p. 24;
People v. Watson, supra, 46 Cal.2d at p. 836.)
(footnote continued from previous page)
defendant’s second letter, written to his wife, technically fit within this
This is particularly true given that the challenged instruction was
immediately followed by another instruction directing the jury that it could not
consider for its truth defendant’s statement to Dr. Vicary that he had committed
many other robberies. The court’s instruction to the jury on this point provided,
“In his testimony in the penalty phase, Dr. Vicary referred to certain crimes
allegedly committed by the defendant which are different from the crimes which
the Deputy District Attorney sought to prove in her case in chief in the penalty
phase. You may consider his references to those crimes only for the purpose of
evaluating Dr. Vicary’s opinions. You may not consider his references to those
crimes as evidence that the defendant in fact committed those crimes.”
to Modify the Verdict
Defendant also challenges the trial court’s purported refusal to consider his
statements to Dr. Vicary for their truth when ruling upon the automatic motion to
modify the verdict pursuant to section 190.4, subdivision (e). Defendant contends
that the trial court’s alleged unwillingness to consider this information in
connection with the motion to modify the verdict, which the court ultimately
denied, denied him due process of law and a reliable penalty determination
guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States
The trial court’s order denying the motion to modify the verdict provided,
in pertinent part, “My findings are based on what, according to my understanding,
the direct evidence establishes and the circumstantial evidence strongly implies.
My findings concerning Mr. Elliott’s [sic] motives, specific intents, and mental
capacities and states at the time he committed the crimes of which he was been
convicted in the present proceedings are based on what I believe the circumstantial
evidence strongly implies. [¶] I find Dr. Vicary’s testimony on these points
problematic. Although Dr. Vicary cited some evidence in the record, he based his
opinions mainly on inadmissible evidence.” The court found, “Dr. Vicary cited
many ‘facts’ that were never proved by competent evidence. Some of this
information tended to mitigate Mr. Elliott’s [sic] culpability. Much of it had the
opposite effect.” The court considered Dr. Vicary’s opinions to be “often
incoherent,” and “[t]o the extent that any sense could be made of Dr. Vicary’s
opinions, they tended more to aggravate Mr. Elliott’s [sic] culpability than to
The court continued, “There is no competent independent evidence, apart
from the extrajudicial matters cited by Dr. Vicary, and Dr. Vicary’s opinions, such
as they were, that Mr. Elliott [sic] suffered from a cognizable mental illness
immediately before, during, or after the present crimes. Dr. Vicary testified that
the records and documents he reviewed reflected, and Mr. Elliott [sic] himself told
him, that he suffered from severe psychic decompensations at several points in his
life, and during some of those episodes serious seemingly psychotic symptoms
manifested themselves. I am allowed to consider, and have considered, that
information as it bears on the reliability of Dr. Vicary’s various opinions, but I
may not consider it for any other purpose. I may not and cannot base a finding as
to Mr. Elliott’s [sic] mental state at any of the times in question in this case on it.”
Later in its order denying the motion, the court held, “The information concerning
Mr. Elliott’s [sic] childhood was revealing and powerful. It came almost
exclusively from the mouth of Dr. Vicary. There was practically no competent
independent evidence of it. I am required to consider that information only as it
bears on the validity of Dr. Vicary’s opinions. In that regard, I think it sheds
important light on Mr. Elliott [sic] and the man he has become. . . .”
Defendant argues that the trial court’s ruling on the motion to modify the
verdict reveals that it failed to fully consider mitigating facts incorporated within
the sources relied on by Dr. Vicary, and that the trial court’s failure to do so fatally
compromised its ruling.
“Pursuant to section 190.4, in ruling upon an application for modification
of a verdict imposing the death penalty, the trial court must reweigh independently
the evidence of aggravating and mitigating circumstances and then determine
whether, in its independent judgment, the weight of the evidence supports the
jury’s verdict.” (People v. Crittenden, supra, 9 Cal.4th at p. 150.) “On appeal, we
subject a ruling on such an application to independent review: the decision
resolves a mixed question of law and fact; a determination of this kind is generally
examined de novo [citation]. Of course, when we conduct such scrutiny, we
simply review the trial court’s determination after independently considering the
record; we do not make a de novo determination of penalty.” (People v. Mickey,
supra, 54 Cal.3d at p. 704.)
As discussed in section II.B.1.b, ante, the court correctly determined that
defendant’s statements to Dr. Vicary had not been admitted for their truth, but
only for the purpose of establishing the basis for Dr. Vicary’s opinions. The court
therefore acted properly in declining to consider these statements as independent
evidence of the facts they related.
Although the trial court’s remark that he found Dr. Vicary’s testimony
“problematic” in part because Dr. Vicary “based his opinions mainly on
inadmissible evidence,” if viewed in isolation, might be construed as in tension
with the principle that an expert may properly base an opinion on hearsay (People
v. Carpenter (1997) 15 Cal.4th 312, 403), the record establishes the absence of
error, and that defendant suffered no prejudice. The trial court later clarified that it
did consider the statements of others that Dr. Vicary related to the extent that these
statements bore upon the reliability of Dr. Vicary’s opinions. Moreover, the trial
court explicitly stated that it would have denied the motion even had it considered
for their truth the facts related by Dr. Vicary’s sources. The trial court concluded
that these facts “would have ‘barely altered the sentencing profile’ ” and “would
not have changed any of [the court’s] findings or conclusions, even if all the facts
in question had been proven by independent and competent evidence.” The
court’s written order denying the motion stated, “The defense penalty phase
evidence evokes a certain sympathetic response. One cannot help but conclude
that if the facts are as Dr. Vicary has said they are, Mr. Elliott [sic] himself has
been in the broad sense a victim of circumstances which were beyond his control.
[¶] But any such sympathy is overwhelmingly outweighed by the numerous
aggravating factors reflected in the present record.” The court’s order reiterated,
“I have considered every possible factor in mitigation and all the evidence in
mitigation that was presented by the defendant, including the secondary evidence
of his wretched childhood and of his history of drug abuse, mental illness and
alcoholism . . . . I conclude, nevertheless, that the mitigating circumstances and
factors in this case are substantially outweighed by the aggravating circumstances
. . . .” These comments establish beyond peradventure that even if the trial court
had accepted the truth of the statements recounted by Dr. Vicary, it nonetheless
would have denied the motion to modify the verdict.
Defendant contends that even if the asserted errors in the guilt and penalty
phases of his trial were harmless individually, when taken together they warrant
reversal of the guilty verdict and sentence of death. We disagree, for “[w]e have
either rejected on the merits defendant’s claims of error or have found any
assumed errors to be nonprejudicial. We reach the same conclusion with respect
to the cumulative effect of any assumed errors.” (People v. Sapp (2003) 31
Cal.4th 240, 316.)
to California’s Death Penalty
Defendant also raises several constitutional challenges to the death penalty
statutes. All lack merit.
The special circumstances set forth at section 190.2 are not impermissibly
broad and adequately narrow the class of murders for which the death penalty may
be imposed. (People v. Griffin (2004) 33 Cal.4th 536, 596; People v. Anderson
(2001) 25 Cal.4th 543, 601; People v. Ochoa (1998) 19 Cal.4th 353, 479.)
Section 190.3, factor (a), as applied, does not result in the arbitrary and
capricious imposition of death. (People v. Brown (2004) 33 Cal.4th 382, 401;
People v. Lewis, supra, 26 Cal.4th at p. 394; People v. Jenkins (2000) 22 Cal.4th
Section 190.3 is not unconstitutional under Ring v. Arizona (2002) 536 U.S.
584 or otherwise for failing to require unanimity as to the applicable aggravating
factors. (People v. Brown, supra, 33 Cal.4th at p. 402.) Nor is the law
unconstitutional for failing to impose a burden of proof except as to other-crimes
evidence. The existence of other aggravating circumstances, the greater weight of
aggravating circumstances relative to mitigating circumstances, and the
appropriateness of a death sentence are not subject to a burden-of-proof
qualification. (People v. Brown, supra, 33 Cal.4th at pp. 401-402; People v. Snow
(2003) 30 Cal.4th 43, 126, fn. 32; People v. Jenkins, supra, 22 Cal.4th at p. 1054;
People v. Ochoa, supra, 19 Cal.4th at p. 479; People v. Frye (1998) 18 Cal.4th
894, 1029; People v. Hawthorne (1992) 4 Cal.4th 43, 79.) We likewise reject
defendant’s argument that the court was required to specifically instruct the jury
regarding the absence of any burden of proof. (See People v. Cornwell (2005) 37
Cal.4th 50, 104.) The court properly instructed the jury with CALJIC No. 8.88,
which accurately describes how jurors are to weigh the aggravating and mitigating
factors. (See People v. Smith (2005) 35 Cal.4th 334, 370.)
The death penalty law is not unconstitutional for failing to require that the
jury base any death sentence on written findings. (People v. Brown, supra, 33
Cal.4th at p. 402.)
Nor is the law defective for failing to require intercase proportionality
review. (People v. Brown, supra, 33 Cal.4th at p. 402.)
The jury’s consideration of unadjudicated criminal activity at the penalty
phase is not unconstitutional, and the jury need not make a unanimous finding that
defendant was guilty of the unadjudicated crimes. (People v. Brown, supra, 33
Cal.4th at p. 402; People v. Lewis, supra, 26 Cal.4th at p. 395.)
Section 190.3’s use of adjectives such as “extreme” and “substantial” in
describing mitigating circumstances does not impermissibly limit consideration of
these factors. (People v. Lewis, supra, 26 Cal.4th at p. 395.)
The judge was not required to specifically instruct the jury that section
190.3, factors (d), (e), (f), (g), (h) and (j) could only mitigate, and not aggravate,
the crime. (People v. Brown, supra, 33 Cal.4th at p. 402.)
Contrary to defendant’s arguments, “The death penalty law does not deny
capital defendants equal protection because it provides a different method of
determining the sentence than is used in noncapital cases.” (People v. Smith,
supra, 35 Cal.4th at p. 374.)
The death penalty as applied in this state is not rendered unconstitutional
through operation of international law and treaties. (People v. Ramos (2004) 34
Cal.4th 494, 533-534; People v. Brown, supra, 33 Cal.4th at pp. 403-404.)
“International law does not prohibit a sentence of death rendered in accordance
with state and federal constitutional and statutory requirements.” (People v.
Hillhouse (2002) 27 Cal.4th 469, 511.)
The judgment is affirmed in its entirety.
WE CONCUR: GEORGE, C. J.
Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section of the
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Elliot
Original Appeal XXX
Opinion No. S057063
Date Filed: November 28, 2005
Judge: Ronald W. Tochterman
Attorneys for Appellant:
Barry L. Morris, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves,
Assistant Attorney General, Patrick J. Whalen, Julia Bancroft and Stephanie A. Mitchell, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Barry L. Morris
1260 B Street, Suite 220
Hayward, CA 94541
Stephanie A. Mitchell
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
|1||The People (Respondent)|
Represented by Attorney General - Sacramento Office
Stephanie A. Mitchell, Deputy Attorney General
P.O. Box 944255
|2||Elliot, Michael Lee (Appellant)|
San Quentin State Prison
Represented by James M. Crawford
Attorney at Law
528 North Glassell
|3||Elliot, Michael Lee (Appellant)|
San Quentin State Prison
Represented by Barry L. Morris
Attorney At Law
1260 B Street, Suite 240
|Nov 28 2005||Opinion: Affirmed|
|Oct 31 1996||Judgment of death|
|Nov 4 1996||Filed certified copy of Judgment of Death Rendered|
|Nov 22 1996||Application for Extension of Time filed|
By Court Reporter T. Hennessy to Complete R.T.
|Nov 25 1996||Extension of Time application Granted|
To Court Reporter To 12-10-96 To Complete R.T.
|Jan 30 2001||Compensation awarded counsel|
|Jan 30 2001||Counsel appointment order filed|
appointing Barry L. Morris for the direct appeal.
|Mar 1 2001||Counsel's status report received (confidential)|
from atty Morris.
|Apr 2 2001||Received:|
Notice from superior court re: delivery of reccord to applt's counsel on 3/28/2001.
|May 11 2001||Counsel's status report received (confidential)|
from atty Morris.
|Jun 19 2001||Counsel's status report received (confidential)|
from atty Morris.
|Jul 13 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (1st request)
|Jul 17 2001||Extension of Time application Granted|
To 8/31/2001 to applt. to request corr. of the record.
|Aug 31 2001||Received copy of appellant's record correction motion|
Request for additional record on appeal, to examine sealed transcripts and exhibits and to correct the record on appeal. (16 pp.)
|Aug 31 2001||Counsel's status report received (confidential)|
from atty Morris.
|Sep 6 2001||Compensation awarded counsel|
|Dec 18 2001||Counsel's status report received (confidential)|
from atty Morris.
|Jan 3 2002||Counsel's status report received (confidential)|
from atty Morris.
|Jan 9 2002||Counsel's status report received (confidential)|
(supplemental) from atty Morris.
|Mar 8 2002||Counsel's status report received (confidential)|
from atty Morris.
|Apr 9 2002||Record on appeal filed|
C-9 (2353 pp.) and R-13 (2412 pp.) including material under seal. Clerk's transcript includes 1683 pp. of juror questionnaires.
|Apr 9 2002||Appellant's opening brief letter sent, due:|
May 20, 2002.
|Apr 10 2002||Compensation awarded counsel|
|May 7 2002||Counsel's status report received (confidential)|
from atty Morris.
|Jun 3 2002||Request for extension of time filed|
To file AOB. (1st request)
|Jun 5 2002||Request for extension of time filed|
To 7/5/2002 to file AOB.
|Jul 2 2002||Counsel's status report received (confidential)|
from atty Morris.
|Jul 2 2002||Request for extension of time filed|
To file AOB. (2nd request)
|Jul 3 2002||Extension of time granted|
To 9/3/2002 to file AOB.
|Sep 4 2002||Counsel's status report received (confidential)|
from atty Morris.
|Sep 4 2002||Request for extension of time filed|
to file AOB. (3rd request)
|Sep 6 2002||Extension of time granted|
To 11/1/2002 to file appellant's opening brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by11/31/2002.
|Oct 31 2002||Counsel's status report received (confidential)|
from atty Morris.
|Oct 31 2002||Request for extension of time filed|
To file appellant's opening brief. (4th request)
|Nov 4 2002||Extension of time granted|
To 12/31/2002 to file appellant's opening brief. After that date, nonly one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 2/1/2003.
|Jan 3 2003||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Jan 3 2003||Counsel's status report received (confidential)|
from atty Morris.
|Jan 8 2003||Extension of time granted|
To 3/3/2003 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 5/1/2003.
|Mar 4 2003||Counsel's status report received (confidential)|
from atty Morris.
|Mar 4 2003||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Mar 5 2003||Extension of time granted|
to 5/2/2003 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 7/1/2003. 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.
|May 21 2003||Filed:|
Motion for relief from default to file application for extension of time to file appellant's opening brief.
|May 21 2003||Filed:|
to file appellant's opening brief. (7th request)
|May 21 2003||Counsel's status report received (confidential)|
from atty Morris.
|May 23 2003||Order filed|
Good cause appearing, appellant's request for relief from default is granted. Extension is granted to 7/1/2003 to file appellant's opening brief. After that date, only one further extension totaling about 60 days will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 9/1/2003.
|Jun 9 2003||Motion filed (AA confidential)|
pro se motion filed by appellant
|Jul 2 2003||Counsel's status report received (confidential)|
from atty Morris.
|Jul 2 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Jul 8 2003||Extension of time granted|
to 9/2/2003 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 9/1/2003.
|Aug 5 2003||Filed:|
letter from atty Morris, dated 7-14-2003. (confidential)
|Aug 6 2003||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Aug 11 2003||Extension of time granted|
to 11/3/2003 to file appellant's opening brief. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 11/1/2003. After that date, no further extension will be granted.
|Sep 8 2003||Counsel's status report received (confidential)|
from atty Morris.
|Oct 30 2003||Counsel's status report received (confidential)|
from atty Morris.
|Nov 4 2003||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|Nov 12 2003||Extension of time granted|
to 1/2/2004 to file appellant's opening brief. Extension is granted based upon counsel Barry L. Morris's representation that he anticipates filing that brief by 1/2/2004. After that date, no further extension will be granted.
|Nov 18 2003||Opposition filed|
"People's Opposition to Further Appellant Requests for Extension of Time."
|Nov 19 2003||Counsel's status report received (confidential)|
from atty Morris.
|Nov 25 2003||Compensation awarded counsel|
|Dec 2 2003||Appellant's opening brief filed|
|Dec 10 2003||Compensation awarded counsel|
|Jan 2 2004||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jan 8 2004||Extension of time granted|
to 3/3/2004 to file respondent's brief.
|Feb 26 2004||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Mar 4 2004||Extension of time granted|
to 5/3/2004 to file respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Julia Bancroft's representation that she anticipates filing tht brief by 5/2/2004.
|Mar 30 2004||Respondent's brief filed|
(29,688 words; 101 pp.)
|Apr 14 2004||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Apr 16 2004||Extension of time granted|
to 5/19/2004 to file appellant's reply brief.
|May 17 2004||Appellant's reply brief filed|
(23,414 words - 94 pp.)
|May 25 2004||Compensation awarded counsel|
|Feb 8 2005||Exhibit(s) lodged|
People's: 1-45; 96, 96a, 96b; 97, 97a; and 105-116.
|Feb 14 2005||Exhibit(s) lodged|
People's 98, 98A, 98Band 98C.
|Jun 20 2005||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the September calendar, to be held the week of Sept. 6, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Jul 27 2005||Motion denied (confidential)|
|Aug 10 2005||Case ordered on calendar|
9/13/05 @ 1:30pm - San Francisco
|Aug 19 2005||Filed:|
Filed letter from respondent, dated 8/17/2005, re focus issues for oral argument.
|Aug 25 2005||Filed letter from:|
Appellate counsel, dated 8/21/2005, re focus issues for oral argument.
|Sep 2 2005||Filed:|
Supplemental proof of service of appellant's focus issues letter.
|Sep 13 2005||Cause argued and submitted|
|Sep 15 2005||Compensation awarded counsel|
|Nov 28 2005||Opinion filed: Judgment affirmed in full|
Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin & Aronson (CA 4 assigned), JJ.
|Dec 14 2005||Rehearing petition filed|
by appellant. (8 pp.; pursuant to rule 40.1(b)(3)(B))
|Dec 16 2005||Time extended to consider modification or rehearing|
to and including February 24, 2006
|Dec 29 2005||Filed:|
certificate of word count of appellant's petition for rehearing. (2476 words)
|Jan 6 2006||Related habeas corpus petition filed (concurrent)|
by the California Appellate Project, S.F.; case no. S140140.
|Jan 18 2006||Rehearing denied|
Petition for rehearing DENIED. Chin, J., was absent and did not participate.
|Jan 18 2006||Remittitur issued (AA)|
|Jan 23 2006||Received:|
receipt for remittitur.
|Feb 6 2006||Exhibit(s) returned|
People's 96, 97, 98, 105-116, 96-A, 96-B, 97-A, 98-A, 98-B, 98-C; Photos 1-45, Poster boards 49, 99, 100-104
|Feb 15 2006||Note:|
Received acknowledgment of receipt of exhibits from superior court.
|Mar 2 2006||Counsel appointment order filed|
appointing James M. Crawford to represent Elliot for habeas corpus/executive clemency proceedings related to the automatic appeal.
|Mar 16 2006||Motion filed (AA)|
appellant's "Request for Stay of Penal Code Section 1193 Proceedings." NOTE: Hearing in superior court to set exeuction date is March 22, 2006.
|Mar 16 2006||Order filed|
The "Request for Stay of Penal Code Section 1193 Proceedings," filed on March 16, 2006, is granted. Execution of the judgment of death entered against condemned inmate Michael Lee Elliot by the Sacramento Superior Court (No. 94F04986) and affirmed by this court on November 28, 2005 (37 Cal.4th 453), and any execution setting conference, are hereby stayed pending final determination of any timely filed petition for writ of certiorari in the United States Supreme Court. If a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting such petition has expired.
|Apr 21 2006||Order filed|
The order filed in the above case on March 2, 2006, is amended to read as follows: Upon request of condemned prisoner Michael Lee Elliot for appointment of counsel, James F. Crawford is hereby appointed to represent Michael Lee Elliot for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed ... within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas coropus/executive clemency counsel on behalf of condemned prisoner Michael Lee Elliot.
|Apr 26 2006||Order filed|
The order filed in the above case on April 21, 2006, is amended to read as follows: Upon request of condemned prisoner Michael Lee Elliot for appointment of counsel, James M. Crawford is hereby appointed to represent Michael Lee Elliot for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of condemned prisoner Michael Lee Elliot.
|May 3 2006||Counsel's status report received (confidential)|
from atty Crawford.
|Jun 9 2006||Compensation awarded counsel|
|Jun 13 2006||Received:|
letter from U.S.S.C., dated 06/08/2006, advising that the petition for writ of certiorari was filed on 04/19/2006, and placed on the docket 06/07/2006 as No. 05-11381.
|Jun 28 2006||Compensation awarded counsel|
|Oct 10 2006||Received:|
letter from U.S.S.C., dated October 2, 2006, cert petn was denied.
|Nov 27 2006||Note:|
motion to stay setting of execution date filed this date in related habeas corpus matter, no. S140140.
|Dec 8 2006||Compensation awarded counsel|
|Dec 13 2006||Note:|
order regarding stay setting of execution date filed this date in related habeas corpus matter, no. S140140.
|Dec 20 2006||Compensation awarded counsel|
|Apr 18 2007||Compensation awarded counsel|
|May 9 2007||Compensation awarded counsel|
|Dec 7 2007||Compensation awarded counsel|
|Dec 19 2007||Compensation awarded counsel|
|Mar 27 2008||Compensation awarded counsel|
|Apr 9 2008||Compensation awarded counsel|
|Sep 3 2008||Compensation awarded counsel|
|Oct 22 2008||Compensation awarded counsel|
|Nov 13 2008||Compensation awarded counsel|
|Mar 12 2009||Compensation awarded counsel|
|Mar 25 2009||Compensation awarded counsel|
|Dec 2 2003||Appellant's opening brief filed|
|Mar 30 2004||Respondent's brief filed|
|May 17 2004||Appellant's reply brief filed|