Supreme Court of California Justia
Docket No. S054372

People v. Ervine

Filed 12/7/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S054372

v.

DENNIS NEWTON ERVINE,

Sacramento County

Defendant and Appellant.

Super. Ct. No. 96F00389



After his motion for change of venue was granted, defendant Dennis

Newton Ervine was convicted by a Sacramento County jury of the first degree

murder of Lassen County Deputy Sheriff Larry Griffith and the attempted willful,

deliberate and premeditated murder of Commander William Freitas, Deputy

Wayne Aldridge, and Deputy Henry Mahan, all by use of a firearm. (Pen. Code,

§§ 187, subd. (a), 664, subds. (a), (e)(1), 1203.06, 12022.5.)1 The jury found true

the special circumstances that defendant murdered a peace officer in the line of

duty (§ 190.2, subd. (a)(7)), that defendant committed the murder to avoid arrest

(id., subd. (a)(5)), and that defendant committed the murder by means of lying in

wait (id., subd. (a)(15)). After a penalty trial, the jury returned a verdict of death

on March 6, 1996. The court denied defendant‘s motions for new trial (§ 1181)

1

All further statutory references are to the Penal Code unless otherwise

indicated.

1


and to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced defendant to

die. Defendant was also sentenced to three consecutive sentences of life

imprisonment without the possibility of parole and an additional term of 16 years.

This appeal is automatic.

We affirm the judgment in its entirety.

I. BACKGROUND

Commander William Freitas and Deputy Sheriffs Wayne Aldridge, Larry

Griffith, and Henry Mahan of the Lassen County Sheriff‘s Department drove to

defendant‘s residence on the morning of March 2, 1995, following a report of an

incident of domestic violence the night before by his wife, Julie Ervine. They

were in marked patrol vehicles and in uniform. Defendant, who had barricaded

the downstairs windows and watched the officers‘ arrival from an upstairs

bedroom, responded by firing his .30-.30 Winchester rifle at the officers, killing

Deputy Griffith. Defendant continued to fire his weapon until a bullet from one of

the officers grazed his head. After a standoff of several hours, the surviving

officers were evacuated under cover of a dump truck. Defendant surrendered

several hours after that.

Guilt Phase Evidence

On March 2, 1995, Wayne Aldridge was awakened by a call from the

Lassen County Sheriff‘s Department dispatcher around 3:45 a.m. The dispatcher

told Aldridge, the on-call deputy, that a woman had reported a domestic violence

situation at her home in Ravendale, during which a gun was fired. Aldridge put on

his uniform—dark brown slacks and a khaki-colored shirt with Lassen County

Sheriff‘s Department patches on each shoulder, dark brown epaulets, dark brown

pocket covers, and a badge on the upper left chest—and met Deputy Larry Griffith

at the sheriff‘s department in Susanville. Griffith was also in uniform. The

2

reporting party was identified as Julie Ervine, and the officers were dispatched to

meet her at the post office in Ravendale, about 60 miles away. They drove in a

marked patrol car—a brown 1994 Ford Crown Victoria with Lassen County

Sheriff‘s Department insignia on each side, a sheriff‘s logo on the rear, and red

and blue overhead lights—and arrived around 5:30 a.m. Julie Ervine (Julie) was

there, dressed in a bathrobe and accompanied by her neighbor, John Boske.

Julie reported that defendant had seemed strange when she returned home

around 9:00 p.m. the night before. He had been cleaning a semiautomatic rifle,

despite the late hour and despite the fact he had recently cleaned it. About an hour

later, they argued. He demanded the keys to her car, ostensibly to repair the

windshield wiper on the rear window. Julie pointed out that the wiper had been

―messed up‖ for two years. As the argument escalated, Julie announced she was

going to leave him. Defendant entered the bedroom, grabbed her by the neck, and

threw her on the bed. He then pulled out a silver-colored semiautomatic handgun

and pressed it against her left cheek. When he said he ought to kill her right there,

she tried to talk her way out of the situation. He pulled the gun away, fired a

round into a stuffed toy dinosaur that was near her head, and left the room. Julie,

clad only in her bathrobe, climbed out the bathroom window. However, she made

a noise closing the window, and defendant rushed in and saw her escape. She ran

towards the rear of the house and hid in the sagebrush. From her position, she

could see defendant moving vehicles around at the front of the house, so she

crawled to the Boske residence, approximately half a mile away to the south.

Upon hearing this account, Deputy Aldridge decided to call for backup and

the two officers, accompanied by Julie and her neighbor, went to the Boske

residence to do so. Aldridge parked the patrol car in front, with its rear facing

defendant‘s residence. There was a clear view between the residences. Reached

by phone, Commander Freitas instructed Aldridge and Griffith to continue to

3

observe the Ervine residence and said that he would ―gather the troops‖ in the

meantime. Through his binoculars, Aldridge saw defendant shuttle back and forth

between the Ervine house and a red car, which was the vehicle parked closest to

the house. Griffith went outside the Boske house with another pair of binoculars

and watched defendant, who in turn was watching the two deputies through his

own pair of binoculars. Defendant continued to watch them for about a minute

and then went into the house and up the stairs, where he observed them through

his binoculars for another minute.

Meanwhile, Commander Freitas tried to telephone defendant‘s house, but

defendant never picked up the phone and the answering machine message was

garbled. Freitas and Deputy Henry Mahan then drove to the Boske residence and

parked their patrol vehicle directly behind Aldridge‘s vehicle. They were wearing

the same uniforms as Aldridge and Griffith. Julie described to them the weapon

defendant had used the previous night, which appeared to be a .22-caliber

semiautomatic, as well as other weapons defendant possessed. As to defendant‘s

state of mind, Julie told the officers that he ―had lost it.‖ The four officers got

back into their vehicles and headed towards defendant‘s house around 9:00 a.m.,

intending to arrest him for felony domestic violence.

The deputies proceeded down the Ervines‘ long driveway towards the

Ervines‘ fenced-in yard, with Freitas‘s car in the lead. Outside again, defendant

watched them for a time and then walked toward and re-entered his residence as

the deputies approached, turning once or twice to look back as he did so. Freitas

and Mahan stopped at the locked gate and exited their vehicle. They yelled to

defendant to come and talk. Aldridge and Griffith parked behind them and at an

angle. Aldridge pulled out his binoculars and observed defendant at a second-

story window with what appeared to be a weapon. Aldridge warned the others and

opened his car door. Griffith exited Aldridge‘s vehicle on the passenger side and

4

knelt down. Defendant came closer to the second-story window, used his weapon

to knock a hole in it, and immediately began firing.

Freitas ducked behind his car door and heard two quick shots fired by

defendant, who had a tactical advantage by being able to fire down from above

the officers, approximately 187 feet away. Although there was some dispute at

trial over the sequence of the subsequent shots, the record showed that defendant

fired in Freitas‘s direction at least twice; that defendant fired another shot that

grazed the top of Mahan‘s head as well as firing other shots in Mahan‘s direction;

that defendant shot Griffith in the head; and that Aldridge, who tried to find a

vantage point but could not because the lead patrol vehicle‘s rear window and

light bar were in the way, took cover in the ―V‖ of his open vehicle door.2 The

record also showed that Griffith managed to fire a single round from his M16 rifle

before being shot; that Freitas returned defendant‘s fire using his .45-caliber

semiautomatic pistol; and that Mahan used his shotgun to fire once at defendant.

After the shotgun was fired, defendant appeared to roll backwards away from the

window, leading Mahan to think defendant had been knocked down. The entire

encounter lasted about 10 to 15 seconds.

As Commander Freitas moved towards the rear of his vehicle to retrieve his

sniper rifle, he saw that Deputy Griffith had been hit in the head. Freitas was sure

Griffith was dead and told Aldridge, ―We‘ve got an officer down. Call 1199,‖

using an emergency code indicating an officer in trouble. Aldridge thought that

Mahan must have been the victim because he did not see Mahan at first, but, as

Aldridge grabbed his car radio to report the 1199 call, he saw Mahan do the same

2

Bullets from defendant‘s rifle also struck the driver‘s side hood and the

spotlight on Freitas‘s vehicle, and blew out the passenger-side rear window in
Aldridge‘s vehicle.

5

thing in the lead vehicle. Aldridge then noticed a piece of skull membrane on his

radio and ―pink material‖ splashed on the front seat and elsewhere in the car‘s

interior and called out to Griffith. There was no response. Aldridge dropped

down to the ground and saw Griffith lying on the ground on the other side of the

vehicle. There was an exit wound at the back of his head.

After the shooting stopped, defendant did not reappear at the window or

otherwise communicate with the officers, and they were concerned that defendant,

a veteran of the Vietnam War, might come out of the house and pick them off

from behind. The patrol vehicles constituted the only cover available to the

officers, and they were pinned down, unable to move, for three hours. The

sheriff‘s department finally obtained a dump truck with a snowplow blade on the

front. The truck backed down the entire length of the Ervines‘ driveway, with its

bed (filled with sand) tilted up as a shield, and the surviving officers climbed into

or onto the vehicle to make their escape. Sniper teams were then set up at the four

corners of the house. Several hours later, around 6:00 p.m., defendant

surrendered. As he exited his property, he paused for several seconds at Griffith‘s

body, which had remained the entire day where it had fallen.

When taken into custody, defendant had a nonserious puncture-type wound,

about two millimeters long, on his upper left forehead.

An investigation at the scene revealed that defendant had placed several

five-gallon gasoline cans at various spots in the yard which could be seen from

inside the residence, including a can placed on top of the red Toyota in front of the

residence, a can placed next to a pickup truck parked near the fence, a can placed

near a blue truck west of the residence, and a can placed near an old army

ambulance parked near an outbuilding at the front corner of the yard. There was

also a five-gallon gasoline can inside the residence near the entry to the living

room.

6

Weapons and ammunition of every variety were found throughout the

house. There were cartridges of .30-.30-caliber, .357-caliber Magnum, and .38-

caliber ammunition in the living room. In the dining room were found a loaded

12-gauge shotgun and .32-caliber semiautomatic pistol, an unloaded .30-.30

Winchester rifle,3 a .357 Magnum speed loader with six cartridges, a partial box of

.357 Magnum cartridges, a box of 12-gauge shotgun shells, a box of .32-caliber

automatic ammunition, a box of .32-caliber Smith & Wesson ammunition, and a

box of .30-.30 cartridges (and other such cartridges). The master bedroom

contained .22-caliber, .30-.30-caliber, .357-caliber, and .38-caliber ammunition, as

well as a .22-caliber rifle, a .357 Magnum Colt Python revolver, and a second .30-

.30-caliber rifle, this one with a leather sling.

Plywood covered the windows in the living room, dining room, master

bedroom, and kitchen, and some of it was buttressed by two-by-four wood boards.

Plywood also covered the back door, which led to the kitchen. A stuffed ―Barney

toy‖ lay in the kitchen; it had a hole through the head from back to front and the

inside material had melted. The screen on the bathroom window had been

knocked out and was lying on the ground.

A portion of a south-facing window in the upstairs bedroom had been

broken from the inside, and there were a flashlight, a bullhorn, and binoculars on a

cardboard box below the window. There were four spent .30-.30 casings on the

3

A bullet recovered from Aldridge‘s vehicle‘s passenger-side door was

tested as consistent with having been fired by this rifle, which was cocked but not
loaded when recovered. This rifle, which also had some blood stains on it and
fresh scratches on the butt end, had a lighter trigger pull than a second .30-.30
rifle, which was found in the master bedroom. The lighter trigger pull would have
made the first rifle easier to fire with accuracy than the second rifle.

7

bedroom floor, as well as some .45-caliber bullets, pellets of double-aught

buckshot, and a series of blood drops.

Deputy Griffith died of a gunshot wound to his head. The bullet entered at

the hairline on the right side of his head and exited at the left rear of his head; the

trajectory was from right to left on a downward path. The size of the entry wound

corresponded to a .30-caliber bullet.

Defendant denied knowing that the men arriving at his house were peace

officers and denied any intent to shoot them. He believed instead that the visitors

were his wife, whom he suspected of having an affair and of taking his life

savings, and her boyfriend; he claimed he did not realize that they were from the

sheriff‘s department (and that he had shot one of them) until much later.

Defendant had many complaints about his wife. He had been trying to sell

their Sacramento house—the title of which was in her name alone—but she

reportedly failed to answer repeated messages on behalf of an interested buyer left

on her home phone in Ravendale or at her work at the Lassen County school

district. He also had told her a foreclosure notice had been posted on the

Sacramento house in December 1994. She promised to straighten it out, but she

must not have, since another foreclosure notice was posted on the house a month

later. He also learned that the $29,000 he had inherited from his father was gone

and that he had less than $120 in his bank account. Julie was supposedly the one

who paid the bills.

Defendant had finished moving his belongings from Sacramento to

Ravendale on Valentine‘s Day 1995. In late February, he discovered that the key

to the box containing his coin and stamp collections and some cash was missing

from its place in the nightstand. Julie claimed that she would find the key, but

defendant instead picked the lock and discovered that all but $97 of his $2,500 in

cash was missing.

8

When Julie arrived home around 9:30 p.m. on March 1, 1995, defendant

was trying to fix a .22-caliber semiautomatic rifle he had obtained from a friend in

a trade. He then put the gun away and asked his wife for a haircut, since he was

interested in pursuing some job openings listed in the newspaper and she was the

one who ordinarily cut his hair.4 Julie said she was tired and told him the scissors

were on the dresser, but he complained that he could not cut his own hair. He also

asked her for $10 or $20 to buy gas, but she said she did not have any money.

Defendant returned the gun repair tools to the basement and brought up a

wiper blade he had purchased in Sacramento for her car‘s rear window. He asked

where the ―arm‖ for the wiper blade was, since he insisted on getting the chore of

changing the blade out of the way, but they got into a heated argument over her

privacy, the house in Sacramento, the mail, and his coin collection. When she

said, ―Fine, I‘m leaving,‖ defendant grabbed the Colt Python .357-caliber double

action revolver and stuck it in her face. She said, ―Go ahead and kill me. Then

you really won‘t have anything.‖ He replied, ―I wouldn‘t kill you. I would make

you suffer, but I wouldn‘t kill you.‖5 He used the gun to push away a stuffed

animal the dog had placed on the bed, and the gun ―went off.‖ Defendant checked

to make sure the dog had not been shot, and Julie screamed, ―I can‘t believe you

shot that F-in‘ thing next to my head.‖ He told her she could leave, but not with

the red car (i.e., her car), which he planned to sell in Sacramento. When defendant

discovered that Julie had escaped out the bathroom window, he got into his truck

and backed it in front of her car to block its exit.

4

Defendant had not been employed since 1991 or 1992 but had been buying

and selling government surplus.

5

At trial, defendant said he did not know at the time whether he wanted to

shoot his wife, but he did want to scare her.

9

Once Julie left, defendant entered her car and found bags containing mail

from the preceding three months. He also found bottles of prescription pain

medicine (many of them in the name of his late father), as well as bills for credit

cards in his name that he did not know he had, men‘s clothing (not his), a shoulder

pad for a women‘s garment with Julie‘s wedding ring pinned to it, Post-it notes

that read ―Can you squeeze me?‖ and ―Can you find time for me today, Mike?‖

and a log of her workdays, the longest of which was 5.5 hours—even though she

routinely left for work around 7:30 or 8:00 a.m. and did not return until 8:00 p.m.

or later.

While sorting through the mail, defendant retrieved one of his loaded .30-

.30 Winchester rifles—the one without the sling—because he planned to go

looking for his wife (and ―probably‖ kill her) but, for undisclosed reasons, he did

not actually go looking for her. Instead, he went back to her car. When he

discovered through bank statements that she had been taking his coin collection

and depositing it in the bank and that he had less than $2 left in his bank account,

he barricaded all of the first-floor windows (except the mud room window) with

plywood: ―I was just gonna shut myself off from the rest of the world.‖

Defendant denied erecting the barricades to deflect police bullets. As he was

going back and forth to the car, he noticed a brown or beige car at the Boske

residence and assumed it was Julie‘s boyfriend‘s. Defendant then brought a

number of items upstairs: a flashlight, ―because it was just starting to get daylight,

and it was dark in the room‖; a bullhorn, because he planned to tell Julie, when she

came back, to ―just take one of those trucks and leave‖ without letting her back in

the house (although, as he admitted, he used the .30-.30 rifle instead of the

bullhorn when the deputies arrived and could not say why he did so); and

binoculars, so that he could see what was going on across the street and who was

there (but, he claimed, these ―wouldn‘t even be good at a football game‖). He also

10

took the .30-.30 Winchester rifle upstairs as well as a box of ammunition, but that

was ―hard to explain. It‘s—it was more or less like a comfort.‖

When defendant saw the brown car leave the Boske residence and come

towards his driveway, he went inside the house and snuck into the upstairs

bedroom to position the rifle next to the window. It was already loaded.

Defendant observed two identical cars approach his gate, and even though he had

―a pretty good inclination that the police were gonna show up sooner or later,‖ he

―expected‖ that his wife and her boyfriend were in the vehicles now approaching.6

The driver of the lead car exited the vehicle. Defendant could not see the people

inside the vehicles, only silhouettes. Defendant said he tried to open the window

and could not do so, so he grabbed the rifle and knocked out a pane of glass with

the barrel. Then he placed the rifle up to his shoulder, set his finger on the trigger,

and twice ―shot towards the passenger door‖ of the lead vehicle, which was where

he thought his wife was.7 He did not use the bullhorn, nor did he pick up the

binoculars to see who was there, nor did he fire a warning shot, and he ―can‘t

really say whether [he] wanted to kill [his] wife or not.‖ Observing that the driver

―had got to cover,‖ defendant fired twice at the door on the driver‘s side.8


6

Defendant admitted, though, that he had seen Julie‘s suspected boyfriend

driving a gray van and a white van, but never driving cars like these.

7

Defendant had been an expert shooter in the Army as a helicopter door

gunner and continued to hone his skills through target practice near the house.
Target practice included shooting at head-size silhouettes about 35 feet away and
shooting at beer cans about 60 yards away. He had used the .30-.30 rifle with the
sling in target practice, but claimed he had never before shot the rifle he used to
kill Griffith.

8

Defendant claimed that he did not aim at the driver; ―If I wanted to kill that

man, he would never have got back to cover.‖ Defendant claimed he intended
―more or less to suppress fire,‖ although he also said he had not seen that the
driver had any weapon.

11

Switching back to the other side of the lead vehicle, defendant noticed out of the

corner of his eye the bedroom window breaking. Pieces of glass went flying, and

he got hit in the head. He claimed his gun discharged as he fell backwards. When

he got back up, blood fell on his hand, his head was ringing, and he felt as though

he had been hit in the head with a baseball bat. Defendant also testified that he

never aimed at any individual person, never shot at the second vehicle, and never

intended to hit anyone, although he knew that a high-powered weapon could shoot

through the metal of a car. He did not know why he continued to fire after his first

shot, although he testified that he would have kept firing if a bullet had not grazed

his head. He ―just wanted them to leave [him] alone.‖

Nonetheless, defendant went downstairs and loaded all his weapons ―to the

max.‖ He thought he would shoot at anyone‘s feet that were visible underneath

the door of either vehicle; then, when the person or persons fell, he planned to

―finish it off.‖ But defendant could no longer see anyone from upstairs, so he

planned to escape by rappelling off the west side of the house and then ambushing

the cars from behind. As defendant went to retrieve some more ammunition,

though, he noticed ―this guy‘s legs sticking out‖ on the ground. They were not

moving. Defendant went back downstairs to get to the phone, ―and somewhere

between the time I looked out that window, and I finally got somebody on the

phone, I realized it was a Sheriff.‖ Defendant then reported, ―I shot the Sheriff.‖

Defendant claimed he told the officer on the phone ―that they could get the

deputies out of there.‖ He also agreed to allow the dump truck to rescue them.

Defendant claimed that he did not see any emblems on the patrol vehicles, did not

recognize the uniforms, and thought the light bars were ski racks. ―I don‘t know

whether it was when I was just standing there staring at this man waiting for him

12

to move or what, when I realized who he was.‖ He claimed he had never seen a

Lassen County Sheriff‘s Department vehicle before.9

Defendant admitted placing a gas can in front of each vehicle that was close

to a building because he did not expect to get out of there and did not want to

leave anything standing for his wife. Three of the cans were full of gasoline; the

rest contained a couple of gallons each. Defendant planned to shoot the full cans

with a rifle, let them drain halfway, and then fire a .357 Magnum hollow-point

bullet filled with gunpowder at the flammable liquid. He could see each of the

gasoline cans from the upstairs bedroom window, and he also had placed a can

inside the house. The thought of committing suicide ―crossed [his] mind‖ when he

called the police, and he also wrote out a will. He ultimately agreed to surrender

himself. Defendant paused and said a prayer for Griffith as he passed by the body.

He felt remorse and wished he could have traded places with Griffith. He could

not believe the other officers ―left him layin‘ there‖ prior to his surrender.

Special Agent Albert Fox of the Department of Justice testified in rebuttal

that defendant, during a taped interview the day after the shooting, had said he

barricaded the windows ― ‘cuz I wasn‘t gonna go to jail, man, you know.‖ During

the interview, defendant also said he knew without a doubt that the driver who

exited the lead vehicle was from the sheriff‘s department. Defendant, in

surrebuttal, claimed his statements during the interview concerning his awareness

9

The defense also called James Hooper, a California Highway Patrol officer,

who testified that he had had trouble seeing the sheriff‘s vehicles as he initially
drove down the Ervines‘ driveway because they blended into the sagebrush and
background. However, Hooper also testified that he had snow and ―stuff‖ all over
his windshield and that he was able to recognize them clearly as being Lassen
County Sheriff‘s Department vehicles as he proceeded farther down the driveway
but was still a few hundred yards away.

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that the driver was a sheriff were based on what he had figured out after the

shooting.

Penalty Phase Evidence

Julie Ervine recounted the events that led her to flee her home through the

bathroom window. Defendant was sitting on the couch, cleaning a rifle, when she

arrived home around 9:00 p.m. on March 1, 1995. Defendant ―looked different,‖

but it was hard to explain how, and seemed upset about a lot of things. They

discussed his wanting to have a haircut and wanting to repair the wiper on her rear

windshield right then, but Julie thought that both of those tasks could wait until the

next day. After she had changed into her bathrobe, he grabbed her, threw her

down on the bed, pinned her arms and legs, and shoved a gun into her cheek. He

said, ―I should shoot you,‖ and added that he wanted to kill her. Then he said,

―No, I think that you—that you should suffer,‖ and slid the gun off her face and

fired it into the stuffed animal that was next to her.

Julie was afraid defendant was going to kill her and then himself, so she

decided to escape and believed the only way out—since he was keeping an eye on

the front door and the back door had been sealed shut—was through the bathroom

window. She dove out the window in her robe and slippers and crawled to the

Boske residence. The journey took her at least two hours and it was very cold.

She reported the incident to the sheriff‘s department and then left the house with

Boske, because they were afraid defendant would come over. She and Boske met

Deputy Aldridge and Deputy Griffith at the post office and begged them not to go

over to defendant‘s house, but Griffith responded that ―that‘s his job, and that‘s

what they‘re here for, and that it would be okay, and they would do everything

they could to make sure that nothing happened.‖

14

Defendant had been a steelworker at the time Julie married him, five years

earlier. Defendant then turned to buying and selling government surplus, but he

had to give that up for a time to take care of his father, who lived with them and

needed round-the-clock care. Defendant received an inheritance of $20,000 to

$30,000 after his father died in 1992. Julie had hoped that the move from

Sacramento to Ravendale would be helpful to defendant, who was having trouble

getting along with people and did not seem to want to work anymore.

The People also presented evidence of the crime‘s impact on Deputy

Griffith‘s family and coworkers.

Deputy Larry Griffith‘s wife, Laurie Griffith, testified that she had been

uncomfortable when her husband received the call about the domestic violence

incident from dispatch around 4:30 a.m. A few hours later, Kay Dieter from the

probation department came to the Lassen County credit union, where Laurie

worked, to say ―they had a situation, and they needed [her] to go down to the

Department.‖ Her heart sank: ―It was kind of one of those feelings that you

always dread.‖ She and Karen Freitas were taken to the sheriff‘s department and

told that there was a deputy ―down‖—but not which one. Around 12:30 p.m., she

found out it was her husband. Her 14-year-old daughter Crystal was there when

she learned the awful news. Larry‘s son David is a deputy sheriff in Florida and

has two children, including one that Larry never got to see.

Lassen County Sheriff Ronald D. Jarrell hired Larry Griffith in 1984 and

described the sheriff‘s department as a close-knit group. There was grief and pain

everywhere after this incident, and Jarrell brought in two professional counselors

for the staff and their families. Jarrell felt helpless upon learning that Griffith had

been shot but he also needed to ensure that the remaining officers were safely

removed from the situation. It was difficult to deal with his anger and continue to

perform his duties as a professional peace officer, and it bothers him still that they

15

were not able to retrieve Griffith‘s body at the time they rescued the surviving

officers. The murder caused some experienced officers to question their own

abilities and bred a lack of self-confidence among the more junior officers. In

particular, Deputy Aldridge told Jarrell a few days later that he wanted to see his

children grow up and decided to quit. The dispatcher still has difficulty dealing

with the fact that she sent Griffith to respond to this call. Even at the time of trial,

deputies were more likely to request assistance in responding to a domestic

violence call, and deputies in the field would respond even out of their areas to

such requests.

The defense called a total of 22 witnesses—family members, friends,

neighbors, and coworkers—to attest to defendant‘s character. Defendant had

served in the Army in Vietnam and had received a medal for bravery. After he

came home, he was in charge of the honor guard at the Presidio in San Francisco

and traveled all over the western United States to attend military funerals.

Several of defendant‘s family members, friends, and coworkers testified

that defendant was a hard worker and well liked by his bosses. His niece and

nephew testified that he was always there to listen and to help settle differences

among the family members. Defendant had helped out by watching his friend

Danny Joe ―Jake‖ Jacobsen‘s sons when he lived at the Jacobsen house between

jobs and was considered ―family.‖ Peggy Van Ness, too, considered defendant to

be ―family,‖ and he had dated her sister Denise off and on for seven years.

William Enbysk had sent his youngest son to live with defendant for a time, when

the boy was struggling through an awkward age; Enbysk said defendant was like

―a brother.‖ Robert Harter testified that defendant was his best friend and mentor

and also was considered to be part of the family.

Defendant‘s neighbors in Sacramento testified that he was a very good

neighbor and had been helpful on numerous occasions, including repairing (and

16

then replacing) May Belle Oliver‘s wheelchair and giving her a wheelchair ramp

for her house. Bernadette Tuton, another neighbor (and a single parent), said

defendant had helped her many times. Tuton also admitted expressing concern to

Julie Ervine about her safety if she moved to Ravendale with defendant.

The defense presented two awards defendant had received for bravery

during combat in Vietnam in 1969. The People presented evidence of a reprimand

defendant received from the Army in 1975 that involved punching a military

police officer, as well as a letter of discharge that same year due to defendant‘s

―poor attitude and lack of self-discipline.‖

II. PRETRIAL ISSUES

A. The Intrusion into Privileged and Confidential Defense Strategy

Documents by the Sacramento County Sheriff’s Department

On January 25, 1996, during jury selection, defense counsel reported to the

court that Sacramento County jail personnel had entered defendant‘s cell while he

was in court two days earlier and ―read all of his notes which I asked him to

prepare for this case which he has in his legal file.‖ The prosecutor, Chief

Assistant Attorney General George Williamson, responded that neither he nor

Ridgely Lazard, the Lassen County District Attorney, was aware of this cell search

and that they never received any information from it.

Six days later, defendant filed a motion to dismiss the indictment, alleging a

violation of his right to counsel under the state and federal Constitutions and

violation of various state statutes. The motion was supported by declarations from

defense counsel and defendant himself, which asserted that counsel had provided

defendant with copies of police reports, investigative reports, transcripts of his

tape-recorded statements, and other discovery; that defendant had reviewed those

materials and had made notes on them to assist in his defense; that defendant

provided counsel with copies of these notes; that counsel had initiated

17

investigations based on those notes and commentary; and that members of the

Sacramento County Sheriff‘s Department had apparently read these defense

materials during a cell search.

The defense called two witnesses to testify at the hearing on the motion to

dismiss: defendant himself and Willy Percy, an inmate in the adjacent jail cell.

Percy testified that he had observed jail officers enter defendant‘s cell and remain

for ―a good half an hour or more.‖ Percy then announced that he did not wish to

testify ―as far as anything that [he] may have saw or didn‘t see‖; that he had been

told by a member of the sheriff‘s department ―to stay out of this‖; that he had been

strip-searched and his own cell had been searched ―since this has come about‖;

and that he was afraid of what would happen in his own criminal case as a result

of testifying. Defendant testified that when he returned to his cell that day, he

noticed that the cell had been searched, but not in a ―normal‖ way. According to

defendant, a normal cell search involves stripping the bed covers from the mattress

and removing contraband styrofoam cups and extra clothing from the cell, but this

time the covers were still on the mattress, his extra sock was still hanging on the

sink, and the extra styrofoam cups had not been removed. The only items that

seemed to have been disturbed were those on the table, including his legal folders,

which were jumbled. The papers in the folders had been turned sideways or

backwards, and some pages were bent.

The trial court made a factual finding that Sacramento County jail

personnel had read defendant‘s privileged legal materials. But, in the absence of

any evidence that jail personnel had communicated the confidential defense

information to the Lassen County prosecution team, the trial court determined that

defendant had failed to make out a prima facie violation of his Sixth Amendment

right to counsel and denied the motion to dismiss. Chief Assistant Attorney

General George Williamson reiterated that he and District Attorney Lazard were

18

willing to take the stand and be asked if they had directed, authorized, or received

any information from the search of defendant‘s cell—although, he added, ―I don‘t

think that we‘ll be able to help him‖—but defendant did not accept the invitation.

Defendant renews his constitutional and statutory claims here. Although

we certainly do not condone the intrusion on defendant‘s privileged materials by

members of the Sacramento County Sheriff‘s Department, we agree with the trial

court that the record does not establish reversible error.

We begin our analysis of defendant‘s Sixth Amendment claim with

Weatherford v. Bursey (1977) 429 U.S. 545 (Weatherford). Weatherford was an

undercover agent for the South Carolina State Law Enforcement Division who,

along with Bursey and two other individuals, vandalized a local office of the

Selective Service. In order to maintain Weatherford‘s undercover status,

Weatherford was arrested and charged along with Bursey. Prior to trial,

Weatherford was invited to meet with Bursey and his attorney on two occasions to

discuss ― ‗information, ideas, or suggestions as to [Bursey]‘s defense.‘ ‖ (Id. at p.

548.) At no time did Weatherford discuss or pass on to his superiors or to the

prosecuting attorney any details or information he had obtained from those

meetings. Weatherford did, however, testify at Bursey‘s trial as to his undercover

activities and his eyewitness account of the vandalism. After Bursey was

convicted, he initiated a civil rights action under 42 United States Code section

1983, alleging that Weatherford had communicated confidential defense

information to his superiors and prosecuting officials, thereby depriving Bursey of

his Sixth Amendment right to the assistance of counsel. (Weatherford, supra, 429

U.S. at pp. 548-549.)

The high court rejected, at the outset, the contention that ―whenever

conversations with counsel are overheard the Sixth Amendment is violated and a

new trial must be had.‖ (Weatherford, supra, 429 U.S. at p. 551.) Rather, ―the

19

constitutionality of the conviction depends on whether the overheard

conversations have produced, directly or indirectly, any of the evidence offered at

trial.‖ (Id. at p. 552.) Given the district court‘s finding that the undercover agent

had communicated nothing at all about the two defense meetings to anyone, there

was no ―realistic possibility of injury to Bursey or benefit to the State.‖ (Id. at p.

558.) Accordingly, ―[a]s long as the information possessed by Weatherford

remained uncommunicated, he posed no substantial threat to Bursey‘s Sixth

Amendment rights.‖ (Id. at p. 556.)

Defendant concedes that the trial court here, like the district court in

Weatherford, made an explicit finding that no privileged information had been

communicated to the prosecution team. He attempts to distinguish Weatherford

on the ground that the trial court‘s finding here was not supported by any direct

evidence. Defendant is correct that the People made only an offer of proof that the

prosecution team neither instigated nor benefited from the improper conduct of the

Sacramento County Sheriff‘s Department and never actually called any witnesses

to the stand to establish that fact. Yet it is also true, as the Attorney General points

out, that the record is devoid of any indication that the sheriff‘s department

communicated any confidential information to anyone.

The question, then, becomes which party bears the burden of proof

concerning the communication of privileged information to the prosecution team.

Is the burden on defendant to establish that the prosecution or its witnesses

obtained confidential information? Or is the burden on the People to establish that

no confidential information was communicated to the People or its witnesses?

Once again, we find Weatherford instructive. In response to Justice Marshall‘s

dissent, which complained about the difficulties of ―[p]roving that an informer

reported to the prosecution on defense strategy‖ (Weatherford, supra, 429 U.S. at

p. 565 (dis. opn. of Marshall, J.)), the Weatherford majority rejected the contention

20

that ―federal or state prosecutors will be so prone to lie or the difficulties of proof

will be so great that we must always assume . . . that an informant communicates

what he learns from an encounter with the defendant and his counsel . . . .‖ (Id. at

pp. 556-557, italics added.)

Defendant nonetheless insists that where any government agency intrudes

on a criminal defendant‘s attorney-client relationship, a prima facie violation of

the Sixth Amendment has been established. In his view, there can and should be a

presumption that the offending agency has shared confidential information with

the prosecuting entity, and points out that the high court has not explicitly resolved

―the issue of who bears the burden of persuasion for establishing prejudice or lack

thereof when the Sixth Amendment violation involves the transmission of

confidential defense strategy information.‖ (Cutillo v. Cinelli (1988) 485 U.S.

1037 (dis. opn. of White, J., from the denial of cert.).) Some federal circuit courts

place the burden on defendant to establish prejudice. (Clark v. Wood (8th Cir.

1987) 823 F.2d 1241, 1249-1250; U.S. v. Steele (6th Cir. 1984) 727 F.2d 580,

586.) By contrast, some circuit courts find a per se violation of the Sixth

Amendment once the defendant demonstrates that the prosecution has improperly

obtained information concerning confidential defense strategy. (Shillinger v.

Haworth (10th Cir. 1995) 70 F.3d 1132, 1141-1142; U.S. v. Levy (3d Cir. 1978)
577 F.2d 200, 209-210.) Taking an intermediate position are the circuit courts

which hold that once the defendant has shown that confidential defense strategy

was transmitted to the prosecution, the burden shifts to the prosecution to

demonstrate there was no prejudice to the defendant from the disclosure. (U.S. v.

Mastroianni (1st Cir. 1984) 749 F.2d 900, 907-908; accord, U.S. v. Danielson (9th

Cir. 2003) 325 F.3d 1054, 1071-1074.)

Although these federal courts are divided as to whether the defendant or the

prosecution has the burden of establishing prejudice arising from governmental

21

intrusion on confidential attorney-client communications, there is no dispute as to

the duty of the defense to establish, as part of its prima facie case, that confidential

information was actually communicated to the prosecution team. Even those

courts that find a per se constitutional violation when privileged information is

communicated to the prosecution, and those courts that place the burden on the

prosecution of rebutting prejudice in those circumstances, presuppose that the

defendant has first established that privileged information was communicated to

the prosecution team. (U.S. v. Danielson, supra, 325 F.3d at p. 1074 [the defense

established that the privileged information ―was told to, and preserved by,

members of the prosecution team‖ and ―that the prosecutor in charge of the case

kept much (perhaps all) of this information in his private office‖]; Shillinger v.

Haworth, supra, 70 F.3d at pp. 1134-1136 [the defense established that the

prosecution learned about confidential attorney-client discussions from a deputy

sheriff and used these confidences at trial]; U.S. v. Mastroianni, supra, 749 F.2d at

pp. 907-908 [―the defendant must prove that confidential communications were

conveyed as a result of the presence of a government informant at a defense

meeting‖ before the burden shifts to the government to demonstrate the absence of

prejudice]; U.S. v. Levy, supra, 577 F.2d at p. 209 [―We think that the inquiry into

prejudice must stop at the point where attorney-client confidences are actually

disclosed to the government agencies responsible for investigating and

prosecuting the case‖ (italics added)]; see also Briggs v. Goodwin (D.C. Cir. 1983)
698 F.2d 486, 493, fn. 23 [―appellants have demonstrated that the informant may

have passed information concerning their case to the prosecution‖], vacated on

other grounds (D.C. Cir. 1983) 712 F.2d 1444; People v. Knippenberg (Ill. 1977)

362 N.E.2d 681, 682-683 [the prosecution introduced at trial the defendant‘s

statements to the defense investigator]; Manley v. State (Nev. 1999) 979 P.2d 703,

706 [the prosecution introduced at trial the defendant‘s statements to counsel];

22

State v. Quattlebaum (S.C. 2000) 527 S.E.2d 105, 107 [the investigator and the

prosecuting attorney eavesdropped on confidential attorney-client

conversations].)10

Defendant made no such showing here. The agency responsible for

intruding on defendant‘s relationship with his attorney (the Sacramento County

Sheriff‘s Department) was completely unrelated to the agency actually prosecuting

defendant (the Lassen County District Attorney‘s Office). Indeed, defendant

makes no allegation that the Sacramento County Sheriff‘s Department was any

part of the prosecution team in this case, nor does he cite even a single authority

for his contention that any government agency that intrudes improperly on

attorney-client communications automatically should be presumed to have

communicated confidential information to the agency or agencies that are actually

involved in the prosecution. (Cf. In re Pratt (1980) 112 Cal.App.3d 795, 857

[―there is no showing whatsoever, short of sheer speculation and conjecture on the

part of defense counsel, that the prosecuting attorney in the instant case either was

aware of the FBI informants in defense camp or received or used any of the

knowledge obtained by FBI Cointelpro informants concerning defense tactics or

strategy‖ (capitalization omitted)].)

10

Defendant also asserts that reversal is required even if there is only a

―substantial threat‖ that the prosecution obtained information from the Sacramento
County Sheriff‘s Department, and invokes United States v. Morrison (1981) 449
U.S. 361 as authority for this relaxed standard. He has misread Morrison, which
assumed that the Sixth Amendment had been violated (Morrison, supra, at p. 364)
and referred to ―demonstrable prejudice, or substantial threat thereof‖ only insofar
as those standards might justify the remedy of dismissing the indictment.
(Morrison, supra, at p. 365.) Morrison did not address the standard for
ascertaining the existence of a Sixth Amendment violation, which is the question
presented here.

23

We have already recognized that ― ‗information possessed by an agency

that has no connection to the investigation or prosecution of the criminal charge

against the defendant is not possessed by the prosecution team‘ ‖ with respect to

the prosecution‘s duty to disclose exculpatory information under the federal

constitution and state discovery rules. (In re Steele (2004) 32 Cal.4th 682, 697.)

Similarly, we find that misconduct by a government agent who has no

involvement in the investigation or prosecution of the criminal charge against the

defendant cannot automatically be imputed to the prosecution team for purposes of

the Sixth Amendment. (Cf. Steele, supra, at p. 701 [―Prison officials did not

investigate or help prosecute any of these crimes. Thus, the prosecution was

generally not responsible for information prison officials possessed that might help

the defense‖].) Whatever civil remedy defendant may have had against the

culpable members of the Sacramento County Sheriff‘s Department, it seems plain

that, in the absence of evidence that confidential information was actually

conveyed to the prosecution team, defendant has no claim that his Sixth

Amendment rights were violated. (People v. Jenkins (2000) 22 Cal.4th 900, 1001-

1003 [court-ordered searches of the defendant‘s cell, including his legal materials,

did not violate the Sixth Amendment where no material observed by sheriff‘s

deputies was introduced at trial or used by the prosecution against the defendant];

People v. Hardy (1992) 2 Cal.4th 86, 181 [the defense allegation that some legal

papers were viewed by jail officials during a lockdown and search did not

establish a Sixth Amendment violation where ―there was no evidence the search

was instigated by the prosecutor, or otherwise designed to enhance the

prosecution‘s case‖]; see generally Jenkins, supra, 22 Cal.4th at p. 1002

24

[―conditions of confinement that have not actually affected the defendant

adversely are not grounds for reversal of a conviction‖].)11

Defendant also asserts that ―[a]n inevitable consequence‖ of the intrusion

by the sheriff‘s department was an ―enduring fear‖ concerning the privacy of his

communications with counsel, which impaired his federal right to the effective

assistance of counsel. Under our case law, however, a defendant‘s inability to

consult with counsel or to assist in his defense must appear in the record. (People

v. Jenkins, supra, 22 Cal.4th at pp. 1002-1005.) Here, defendant not only fails to

identify any instance in which his relationship with counsel was impaired (or,

indeed, to claim that more direct methods of communicating with his attorney

11

For similar reasons, we reject defendant‘s claim that, under People v.

Zapien (1993) 4 Cal.4th 929, the People bore the burden to disprove prejudice
arising from the intrusion on the attorney-client relationship by the Sacramento
County Sheriff‘s Department. As we recently explained, Zapien declared that ―in
order to avoid dismissal of a criminal action because of prosecutorial destruction
of evidence, the People must prove facts, by a preponderance of the evidence,
establishing that the destruction of the evidence did not prejudice the defendant.‖
(People v. Posey (2004) 32 Cal.4th 193, 212, italics added.) In Zapien, one of the
prosecutors had directed the chief investigator to listen to a cassette tape found in a
sealed envelope bearing the name of the defense attorney and report what was on
the tape; the chief investigator instead disposed of the tape without listening to it.
(Zapien, supra, 4 Cal.4th at p. 961.) There was no evidence in the record that the
investigator had listened to the tape and, hence, no evidence of an invasion of the
attorney-client relationship. (Id. at pp. 963-966.) We therefore had no occasion to
consider in that case who would bear the burden of proving or disproving
prejudice and how that burden might be satisfied where a defendant claimed a
violation of the right to counsel due to an invasion of the attorney-client
relationship. Moreover, here, unlike in Zapien, defendant submitted no evidence
that anyone involved with either the investigation or prosecution of his case
participated in or was even aware of the misconduct by the Sacramento County
Sheriff‘s Department. (See Weatherford, supra, 429 U.S. at p. 558 [unless the
substance of attorney-client conversations was communicated to the prosecution
―and thereby created at least a realistic possibility of injury to [the defendant] or
benefit to the State, there can be no Sixth Amendment violation‖].)

25

were inadequate), but he was offered the opportunity, at the time the trial court

denied his motion to dismiss, to renew his claim of error and submit additional

evidence, but never did so. (People v. Cantrell (1992) 7 Cal.App.4th 523, 551.)

Because his claim still is not supported by any reference to the record, we must

reject it. (People v. Jenkins, supra, 22 Cal.4th at p. 1005.)

Defendant fares no better with his claim that his right to counsel under

article I, section 15 of the California Constitution was violated. He relies

principally on Barber v. Municipal Court (1979) 24 Cal.3d 742 (Barber), which

considered the proper pretrial remedy when an accused‘s right to counsel was

denied by the actions of an undercover police officer who posed as a codefendant,

attended the attorney-client conferences of the accused, and communicated

privileged information to his superiors. (Id. at pp. 745, 749.) Barber declined to

follow Weatherford, noting that ―the right to privacy of communication between

an accused and his attorney has consistently been grounded on California law‖

(Barber, supra, 24 Cal.3d at p. 755) and that ―the issue of remedy for a violation

of the right to counsel in a criminal case was not before the court in Weatherford

since ―the court found there had been no violation of the federal Constitution at

all.‖ (Id. at p. 758, fn. 19.)

Barber determined that a pretrial remedy barring the prosecution from

relying on any evidence obtained by the undercover officer or the fruits thereof

would be inadequate under the facts presented, for several reasons. First, the

record demonstrated that the petitioners had been prejudiced in their ability to

prepare their defense in that they had become ―[d]istrustful of each other and

fear[ful] that any one of them might also be an undercover police officer‖ and thus

refused to participate or cooperate in their defense, which ―resulted in counsel‘s

inability to prepare adequately for trial.‖ (Barber, supra, 24 Cal.3d at p. 756.)

Second, we were concerned that it would be easy for the undercover officer, as a

26

prosecution witness, to formulate answers and shade testimony with knowledge of

the confidential attorney-client communications, but difficult for a defendant to

prove the influence of those confidential communications on the witness‘s

testimony. (Id. at p. 757.) Third, we noted that the accused would be placed ―in a

Catch-22 situation‖ because the full contents of the privileged conversations

would need to be disclosed in order for the court to understand what needed to be

protected. (Id. at p. 758.)

The circumstances of this case are distinguishable from those in Barber.

As stated above, the record contains no evidence that defendant was prejudiced in

the preparation of his defense. In addition, no one in the Sacramento County

Sheriff‘s Department was involved in the investigation or prosecution of this case

or even testified at defendant‘s trial. And the trial court could readily have

determined what confidences were compromised (because defendant and his

attorney had copies of what documents jail personnel had reviewed) and whether

disclosure of these confidences could have disadvantaged the defense, but

defendant never presented the documents to the trial court for its review or made

them part of the record on appeal. (People v. Towler (1982) 31 Cal.3d 105, 122

(Towler).) Defendant is correct that the record does not reveal ―whether the

prosecution team—and its witnesses—received information which derived from

the government‘s intrusion into the confidential heart of his defense,‖ but it was

defendant who failed to make that record in the first instance. (See People v.

Benally (1989) 208 Cal.App.3d 900, 909.)

In that respect, Towler, not Barber, is the closer analogue. In Towler, the

district attorney entered the defendant‘s cell and read a synopsis of the defense

prepared by the defendant at counsel‘s request. The confidential document was

never introduced into evidence or made part of the record on appeal, and the

defendant never made a motion to suppress the document or to dismiss the case.

27

(Towler, supra, 31 Cal.3d at p. 121.) We found the record ―totally inadequate to

determine whether or not dismissal would be an appropriate sanction,‖ inasmuch

as ―it might have been readily apparent from an examination of the document

whether or not the prosecution was actually aided by the information and whether

some remedy short of dismissal would be adequate to protect defendant‘s rights.‖

(Id. at p. 122; see also People v. Fulton (1984) 155 Cal.App.3d 91, 100 [quoting

Towler].) Similarly, here, even if confidential information contained in

defendant‘s notes had been shared with the prosecution, the record here (which

likewise does not contain a copy of the documents reviewed by the sheriff‘s

department) is insufficient to demonstrate that defendant was actually prejudiced.

(Towler, supra, 31 Cal.3d at pp. 122-123.)

Having already rejected defendant‘s claims that his federal and state

constitutional right to counsel were violated, we have no difficulty rejecting

defendant‘s claim that the sheriff‘s department‘s misconduct deprived him of his

right to due process. If, as discussed above, there is no evidence that the cell

search had any effect on this trial, it follows that the search could not have

undermined the fundamental fairness of the trial. (People v. Jenkins, supra, 22

Cal.4th at pp. 1002-1003 [rejecting due process claim based on ―allegedly

disruptive searches of the defendant‘s cell and legal materials‖].)

Finally, we reject defendant‘s claim that his conviction must be reversed

because of asserted violations of state statutes that protect the right to

communicate confidentially with his attorney, such as Evidence Code sections 952

and 954, Code of Civil Procedure sections 2018.020 and 2018.030, and Penal

Code section 2601, subdivision (b). Even assuming that one or more of these

provisions was violated, defendant still has the burden to show a miscarriage of

justice. (Cal. Const., art. VI, § 13.) He has made no effort to do so, and the

foregoing discussion shows that he cannot.

28

B. Shackling of Defendant During a Portion of Voir Dire

There is no dispute that defendant was shackled unjustifiably during a

portion of the voir dire. Defendant contends that the error violated his rights under

the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution

and article I, sections 7, 15, 16, and 17 of the state Constitution and requires

reversal of the judgment.12 In our view, the record fails to demonstrate the

restraints were visible to the jury and, even if they were, any error in shackling

defendant during a portion of the voir dire was harmless beyond a reasonable

doubt.

At a pretrial hearing on January 16, 1996, the trial court recounted the

discussion that had occurred in chambers concerning ―the issue of restraints in this

matter.‖ The court stated that it ―intends to defer to the Sheriff‖ and that the

assigned deputy had indicated ―that no restraints will ever be shown or disclosed

to the jury, the jury will never see that.‖ The court added that if a belly chain were

12

As to this and nearly every claim on appeal, defendant asserts the alleged

error violated his constitutional rights. At trial, he failed to raise some or all of the
constitutional arguments he now advances. We nonetheless address the merits of
these contentions: ―In each instance, unless otherwise indicated, it appears that
either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte;
erroneous instruction affecting defendant‘s substantial rights) that required no trial
court action by the defendant to preserve it, or (2) the new arguments do not
invoke facts or legal standards different from those the trial court itself was asked
to apply, but merely assert that the trial court‘s act or omission, insofar as wrong
for the reasons actually presented to that court, had the additional legal
consequence
of violating the Constitution. To that extent, defendant‘s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‗gloss‘ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.‖ (People v. Boyer (2006)
38 Cal.4th 412, 441, fn. 17; see also People v. Partida (2005) 37 Cal.4th 428,
433–439.)

29

used during the trial, ―we will dispense with the normal opening so that

[defendant] is not in any way embarrassed, or shown not to show respect to the

Court.‖ Defense counsel requested that defendant not be in restraints ―during the

course of the trial‖ because counsel feared that, no matter what efforts were made

to conceal the restraints from the jury, ―eventually in a case that is going to take a

little while, the jury is going to recognize the fact that he‘s in restraints,‖ and

because defendant had no criminal history that would justify restraints. The court

addressed only the first of these objections: ―If the Court felt in any way the jury

would become aware of his restraints, I would be very concerned . . . ; but I am

satisfied they will not be. [¶] I have tried zillions of cases with and without

restraints, and I never had an instance in which the jury indicated that they were

aware of the use of the type of restraints that we use here.‖ The minute order from

that date stated, ―The defendant will be seated in a security chair with no restraints

visible to the jury.‖

For the first two days of jury selection, the record does not indicate what

restraints, if any, were used in court. On the third morning, the court

acknowledged that it had ―certainly‖ erred in deferring to the sheriff‘s department

on the issue of restraints, but stated that ―[o]f course we haven‘t had the use of

restraints yet in front of this jury at all, so I suppose that the problem is inapposite

up to now.‖ When the bailiff corrected the court and advised that defendant was

using a belly chain ―right now,‖ the court declared a need for a hearing, at which it

would make factual determinations concerning the need for restraints, and

proposed to hold the hearing later that morning, since the restraint ―is still

invisible.‖ Defense counsel objected to the latter characterization, complaining

that ―it‘s not. You can see it, but you have to look. It‘s not covered,‖ but the court

overruled the objection: ―I never had a juror see a seat restraint in my experience

in all these years.‖

30

After a morning of voir dire, the court announced that it had reviewed

defendant‘s criminal history, which contained only some instances of resisting an

officer in ―the rather distant past‖ and two ―relatively slight‖ jail disciplinary

violations. The court accordingly found no basis to continue using the belly chain

and ordered it removed.

―[A] defendant cannot be subjected to physical restraints of any kind in the

courtroom while in the jury‘s presence, unless there is a showing of a manifest

need for such restraints.‖ (People v. Duran (1976) 16 Cal.3d 282, 290-291, fn.

omitted.) ―The imposition of physical restraints in the absence of a record

showing of violence or a threat of violence or other nonconforming conduct will

be deemed to constitute an abuse of discretion‖ under state law. (Id. at p. 291.)

Under the federal Constitution, where a court ordered a defendant, without

adequate justification, to wear restraints that were seen by the jury, the state must

prove beyond a reasonable doubt that the unjustified shackling did not contribute

to the verdict. (Deck v. Missouri (2005) 544 U.S. 622, 635.) ―The trial court may

not delegate to law enforcement personnel the decision whether to shackle a

defendant.‖ (People v. Seaton (2001) 26 Cal.4th 598, 651.)

The Attorney General concedes that the trial court erred in delegating to the

sheriff‘s department the decision whether to shackle defendant and in allowing

defendant to be shackled during a portion of voir dire without a showing of

manifest necessity. He contends nonetheless that these errors were nonprejudicial,

in that the record does not indicate that the restraint was visible to the prospective

jurors or that the restraint impaired defendant‘s ability to assist in his defense. We

agree.

Although defense counsel stated that ―[y]ou can see‖ the restraint ―but you

have to look,‖ he did not indicate that the restraint could be seen from the jury

box. (See People v. Strickland (Ill.App.Ct. 2006) 843 N.E.2d 897, 903; Alexander

31

v. State (Miss. 2001) 759 So.2d 411, 418.) As defendant concedes, courts

typically find unjustified shackling of a defendant to be harmless where the

restraints were not visible to the jurors. (People v. Cleveland (2004) 32 Cal.4th

704, 740 [― ‗ ―We have consistently found any unjustified or unadmonished

shackling harmless where there was no evidence it was seen by the jury‖ ‘ ‖]; U.S.

v. Mejia (9th Cir. 2009) 559 F.3d 1113, 1117 [― ‗When the jury never saw the

defendant‘s shackles in the courtroom, we have held that the shackles did not

prejudice the defendant‘s right to a fair trial‘ ‖].) Defendant is correct that

restraints also have the potential to impair an accused‘s ability to communicate

with counsel or participate in the defense (Deck v. Missouri, supra, 544 U.S. at p.

631), but inasmuch as the record here does not reveal that any such impairment

occurred, the error once again was harmless. (People v. Wallace (2008) 44

Cal.4th 1032, 1051; People v. Combs (2004) 34 Cal.4th 821, 839; U.S. v. Baker

(11th Cir. 2005) 432 F.3d 1189, 1246; Castillo v. Stainer (9th Cir. 1992) 983 F.2d

145, 149, as amended (9th Cir. 1993) 997 F.2d 669.)

Even if the restraint had been glimpsed during that portion of voir dire by

one or more of the prospective jurors who actually sat on the jury, the unjustified

shackling was harmless beyond a reasonable doubt. (People v. Cunningham

(2001) 25 Cal.4th 926, 988-989; People v. Tuilaepa (1992) 4 Cal.4th 569, 584-

585; accord, State v. Speer (Ariz. 2009) 212 P.3d 787, 801 [no prejudice where

juror saw the handcuffed defendant ―brought into the courtroom in restraints

during a preliminary proceeding‖]; Rhodes v. State (Ga. 1994) 441 S.E.2d 748,

749 [― ‗[t]he failure, through an oversight, to remove shackles from a prisoner for

a short time after proceedings have commenced, or any technical violation of the

rule prohibiting shackling, not prejudicial to him, is not ground for a new trial

. . . .‘ ‖]; State v. Clark (Wn. 2001) 24 P.3d 1006, 1029 [―[b]ecause the impact of

shackling on the presumption of innocence is the overarching constitutional

32

concern, it would logically follow that in the minds of the jurors Clark‘s shackling

on the first day of voir dire was more than logically offset by over two weeks of

observing Clark in the courtroom without shackles‖].)

III. GUILT PHASE ISSUES

A. Alleged Error Relating to the Admission of Julie Ervine’s Out-of-

court Statements Concerning the Assault

As proof that the Lassen County officers were engaged in the lawful

performance of their duties within the meaning of the special circumstance

allegation (§ 190.2, subd. (a)(7)) and the crime of attempted murder of a peace

officer (§ 664, subd. (e))—and, in particular, that the officers had probable cause

to believe that defendant had committed a felony assault against his wife—

Commander Freitas and Deputy Sheriffs Aldridge and Mahan testified as to what

they were told by the Lassen County dispatcher and by defendant‘s wife, Julie

Ervine. The trial court first explained to the jury the nonhearsay purpose of this

evidence when Aldridge was about to testify as to what he had learned about the

domestic violence incident from the dispatcher: ―Your first lesson, in the hearsay

rule, ladies and gentlemen, which I am sure you have heard of before. [¶] It

simply means that, what someone testifies as to what another told him, is usually

hearsay evidence, right, because we can‘t cross-examine that other person. We

don‘t know whether it‘s true. [¶] But it comes in not for whether or not what the

person said is true, it comes to explain what the person who heard it did, okay. [¶]

So he‘s going to explain what he did in response to what this person told him; but

you do not—and so you receive it for that purpose only, to explain what the officer

may have done in response to this information, but you don‘t take it as being for

the truth of the matter stated by the person on the phone, okay. [¶] And now this

would be double hearsay. The dispatcher doesn‘t know what happened. She

heard it from somebody else, right. [¶] So you just have to keep in mind when

33

you listen to this kind of testimony, that when it‘s hearsay testimony like that, it‘s

not being offered to prove that those things are true.‖

When Aldridge moved on a few minutes later to describe what he had

learned from Julie directly, defense counsel objected. The prosecutor explained

that the evidence was offered ―for a nonhearsay purpose, Your Honor, that goes to

the special circumstance [of] performance of duties,‖ and the court reminded the

jury that ―[i]t comes in for the same reasons, to explain what he did.‖ At the

conclusion of the trial, the jury was reminded that some evidence had been

admitted subject to a limiting instruction.

Defendant contends that the admission of Julie‘s statements concerning the

events that night were inadmissible hearsay and violated his state and federal

constitutional right to confront the witnesses against him as well as state

evidentiary rules. We find no error.

Defendant‘s statutory and constitutional arguments presuppose that the out-

of-court statements introduced through the peace officers‘ testimony were

inadmissible hearsay, but (as demonstrated above) the jury was instructed at length

that these statements were not offered for their truth. Indeed, the jury was

cautioned that defendant‘s wife and the dispatcher were not subject to cross-

examination, that ―we don‘t know whether [what they said was] true,‖ that their

statements were ―not being offered to prove that those things are true,‖ and that

their statements instead were being admitted only ―to explain what the officer may

have done in response to this information‖ as part of the People‘s proof of ―the

special circumstance [of] performance of duties.‖ (See People v. Mayfield (1997)

14 Cal.4th 668, 751 [witness‘s out-of-court statement to officer that the defendant

possessed a gun ―was not admissible to prove that defendant in fact possessed a

gun‖ but ―was admissible for the nonhearsay purpose of establishing [the

officer‘s] state of mind and the appropriateness of his ensuing conduct‖ to rebut a

34

charge of excessive force].) Out-of-court statements that are not offered for their

truth are not hearsay under California law (Evid. Code, § 1200, subd. (a); Smith v.

Whittier (1892) 95 Cal. 279, 293-294), nor do they run afoul of the confrontation

clause. (See Crawford v. Washington (2004) 541 U.S. 36, 60, fn. 9.)

Furthermore, we presume the jury faithfully followed the court‘s limiting

instruction. (People v. Mendoza (2007) 42 Cal.4th 686, 699.) Defendant points

out, correctly, that limiting instructions have been deemed insufficient to protect a

defendant from a nontestifying codefendant‘s confession implicating the defendant

at a joint trial (Bruton v. United States (1968) 391 U.S. 123), but Bruton

recognized only a ―narrow exception‖ to the general rule that juries are presumed

to follow limiting instructions (People v. Lewis (2008) 43 Cal.4th 415, 454), and

defendant offers no rationale for extending the Bruton exception to this case.

Nor do we find that isolated (and largely unobjected-to) references in the

prosecutor‘s opening statement or closing argument to what defendant ―did‖ or

―what occurred‖ when Julie was in the house undermined the court‘s limiting

instruction. (See People v. Carter (2003) 30 Cal.4th 1166, 1209 & fn. 13.) The

prosecutor consistently referred to what the deputies had learned from the

dispatcher or from defendant‘s wife and at no point sought to rely on the truth of

those reports. Indeed, our review of the proceedings reveals that the prosecutor

did no more than refer in a kind of shorthand to ―Ravendale‖ as being the place

―where Mr. Ervine lived, and where he did what he did‖; to the deputies‘

obligation ―to have contact with victims . . . to find out what occurred in order to

figure out if they have to arrest somebody,‖ since ―what occurred was essentially a

felony‖; and to the deputies‘ conversation with Julie to find out ―what happened.‖

Based on those conversations, Commander Freitas testified that he ―believed‖ Ms.

Ervine was afraid of defendant, that he ―had no reason to disbelieve Ms. Ervine,‖

that he believed he had probable cause to arrest defendant, and that he intended to

35

arrest defendant for assault with a deadly weapon—all of which were relevant to

whether the officers had been lawfully performing their duties, regardless of

whether Julie‘s statements were later proved to be true. And in closing argument,

the prosecutor‘s reference to Julie‘s statements that defendant was angry and had a

gun, regardless of the truth of those statements, explained why the officers

approached the house without turning on their lights and sirens. (See generally

People v. Marsh (1962) 58 Cal.2d 732, 738 [―it has consistently and properly been

held that the statements a police officer relies upon to make an arrest are

admissible against hearsay objections, not to prove the truth of such statements,

but to show the officer‘s state of mind (probable cause) in making the arrest‖].)

Finally, we reject defendant‘s claim that the prejudicial effect of Julie‘s out-

of-court statements outweighed their probative value (see Evid. Code, § 352)—an

argument that defendant forfeited by failing to assert it below. (People v. Wilson

(2008) 44 Cal.4th 758, 790, fn. 6; People v. Escobar (2000) 82 Cal.App.4th 1085,

1103, fn. 11 [hearsay objection did not preserve claim of undue prejudice].)

Julie‘s out-of-court statements were essential to proving that the officers were

performing their lawful duties when they approached defendant‘s home (see U.S.

v. Silva (7th Cir. 2004) 380 F.3d 1018, 1020), and it was far less inflammatory to

introduce those statements through the testimony of the peace officers than

through the testimony of Julie herself. Inasmuch as defendant‘s plea of not guilty

put at issue all of the elements of the charged crimes, the jury was instructed not to

consider those statements for their truth, and defendant was not even charged with

the assault against his wife, we perceive no risk of undue prejudice. Hence, the

trial court did not abuse its discretion in allowing those officers to testify as to

what they learned from defendant‘s wife about the felony assault. (People v.

Whisenhunt (2008) 44 Cal.4th 174, 204-205.)

36

B. Exclusion of Defendant’s Postoffense Handwritten Statements

Defendant complains next that the trial court excluded two documents—a

handwritten will and five pages of notes defendant prepared in the hours after the

shooting—as hearsay. We review the trial court‘s ruling for abuse of discretion

(People v. Poggi (1988) 45 Cal.3d 306, 318-319), and find no error.

A criminalist testified that he found a two-page handwritten document,

defendant‘s exhibit H, in defendant‘s living room. When defendant took the

stand, he testified that the thought of suicide ―had crossed [his] mind‖ after the

shooting and that exhibit H was the will he wrote during the hours he was trying to

get the phone ―hooked up‖ for negotiations with the law enforcement personnel

outside the house. This document, entitled ―The Last Will and Testament of

Dennis Ervine,‖ conveyed family mementos to his brother and personal

possessions to a friend to repay a debt, extended a wish of peace to family and

friends, and expressed a hope that ―the world will learn something from this.‖

Defendant testified that he also wrote some other notes, which were marked

collectively as defendant‘s exhibit I. In this five-page document, defendant

apologized for ―hurting innocent people‖; described his wife‘s drug problem, theft,

and infidelity, and forgave her; claimed he had been ―driven to the edge of no

return‖ and was wracked with passion and turmoil; asked for God‘s forgiveness

and for God to help the fallen officer; begged to be sent to ―a life of eternal

damnation‖ if the officer was dead; wondered whether he should be a coward and

let others kill him; stated that he could not kill his wife because he loved her; and

advised his nephews to straighten out their lives.

Defendant sought to admit these exhibits into evidence as exceptions to the

hearsay rule (see Evid. Code, §§ 1240 [spontaneous statement], 1250 [statement of

declarant‘s then existing mental or physical state]) or as nonhearsay evidence of

his state of mind. The trial court, after having read both exhibits, denied the

37

motion, finding that the writings were ―neither spontaneous or contemporaneous‖

and were hearsay not within any exception.

On appeal, defendant has abandoned his argument that the written

statements qualified as spontaneous declarations. He argues instead that the

written statements tend to prove his state of mind either as an exception to the

hearsay rule or as nonhearsay. He also argues, for the first time, that certain

statements were admissible as prior consistent statements (see Evid. Code,

§§ 791, 1236) and that exclusion of these exhibits violated his constitutional right

to present a defense. We examine these arguments in order.

Evidence Code section 1250 allows into evidence a statement of the

declarant‘s then existing state of mind, notwithstanding the hearsay rule, when the

statement is offered to prove the declarant‘s state of mind ―at that time or at any

other time when it is itself an issue in the action.‖ (Id., subd. (a)(1).) The five-

page note (exhibit I) contains a number of hearsay representations as to

defendant‘s state of mind, including that he felt ―driven to the edge of no return‖;

that there was ―anger‖ and ―turmoil‖ inside him; that he had fired no gun ―in

anger, just one in passion, missed because of love‖; that he was ―sorry‖ for hurting

innocent people and ―[h]ope[d]‖ the officer would recover; and that he felt ―alone,

cut off by the world, that what I wished for so long.‖ (See People v. Jurado

(2006) 38 Cal.4th 72, 129 [―assertions and descriptions of [the defendant‘s] own

feelings and other mental states[] were hearsay‖].) However, this exception to the

hearsay rule is inapplicable ―if the statement was made under circumstances such

as to indicate its lack of trustworthiness.‖ (Evid. Code, § 1252.)

― ‗The decision whether trustworthiness is present requires the court to

apply to the peculiar facts of the individual case a broad and deep acquaintance

with the ways human beings actually conduct themselves in the circumstances

material under the exception. Such an endeavor allows, in fact demands, the

38

exercise of discretion.‘ ‖ (People v. Edwards (1991) 54 Cal.3d 787, 819-820.)

―To be admissible under Evidence Code section 1252, statements must be made in

a natural manner, and not under circumstances of suspicion, so that they carry the

possibility of trustworthiness. Such declarations are admissible only when they

are ‗ ―made at a time when there was no motive to deceive.‖ ‘ ‖ (Id. at p. 820.)

We find the trial court did not abuse its discretion. At the time defendant

wrote these documents, he was trapped inside his house; personnel from the

Lassen County Sheriff‘s Department and other law enforcement agencies were just

outside. He was aware that his only options were surrender or suicide, and his

statements focus largely on securing forgiveness. In addition, he had been grazed

by a bullet himself, which is what caused him to stop shooting, not a sudden

concern over the welfare of the officers outside, and elected to write these notes

while attempting to pursue negotiations with law enforcement. There was thus

ample ground to suspect his motives and sincerity when he wrote these self-

serving documents. (People v. Edwards, supra, 54 Cal.3d at p. 820.)13

Defendant then claims that ―the relevance of a number of the statements in

the notes and last will clearly does not depend on the truth of the matter asserted‖

—and thus the statements were not hearsay at all—but offers only a single

example of such a statement: ―Whether or not Ms. Ervine had been unfaithful or

had spen[t] her husband‘s inheritance on drugs, [defendant]‘s belief that she had

done so was consistent with his trial testimony that his actions were not cold and

deliberate, and were not made with an intent to kill the deputies.‖ Yet defendant

had already testified at trial, without contradiction, that he was upset with Julie for


13

The documents would not have been admissible as evidence of defendant‘s

previously existing mental state either, inasmuch as defendant was not unavailable
as a witness. (Evid. Code, § 1251, subd. (a).)

39

having spent his inheritance, for being unfaithful, and for having a collection of

prescription drugs in her car. Accordingly, the jury was well acquainted with

defendant‘s state of mind with respect to Julie‘s behavior. It simply did not

believe that defendant‘s anger over Julie‘s conduct justified barricading himself

inside his house, setting gas cans around and inside the house, and shooting at four

uniformed members of the Lassen County Sheriff‘s Department who had arrived

in their marked vehicles to arrest him for the act of violence against his wife the

night before.

Defendant also contends the documents were admissible as prior consistent

statements under Evidence Code sections 791 and 1236. The issue is not

cognizable on appeal because defendant did not present that theory of

admissibility at trial. (Evid. Code, § 354; People v. Smith (2003) 30 Cal.4th 581,

629-630.) Even if the issue had been preserved, defendant has not clearly shown a

basis on which to admit any of his prior written statements under this theory. ―A

prior statement consistent with a witness‘s trial testimony is admissible only if

either (1) a prior inconsistent statement was admitted and the consistent statement

predated the inconsistent statement, or (2) an express or implied charge is made

that the testimony is recently fabricated or influenced by bias or other improper

motive, and the consistent statement was made before the bias, motive for

fabrication, or other improper motive is alleged to have arisen.‖ (Smith, supra, at

p. 630.) Although it is true that the written statements predated defendant‘s

statements to Special Agent Fox that he had barricaded the windows because he

―wasn‘t gonna go to jail‖ and had no doubt that the driver of the lead car was from

the sheriff‘s department, defendant fails to explain how these particular oral

statements are inconsistent with his earlier written statements, which nowhere

deny the reason for the barricade or defendant‘s awareness of who was outside.

Moreover, we emphatically reject defendant‘s argument that any prior written

40

statements automatically became admissible merely because his ― ‗credibility in

general‘ ‖ was attacked during cross-examination.

As for defendant‘s federal claims, which were not asserted below and thus

are barred to the extent they offer an independent basis for admission of these

documents (see fn. 12, ante), it is enough to note that ― ‗[t]he same lack of

reliability that makes the statements excludable under state law makes them

excludable under the federal Constitution.‘ ‖ (People v. Smith, supra, 30 Cal.4th

at p. 629; see also People v. Jurado, supra, 38 Cal.4th at p. 130.) Moreover,

defendant presented all of this evidence—without contradiction—during his

testimony at trial. In particular, the jury was aware that defendant contemplated

suicide in the hours following the shooting, even going so far as to prepare a

handwritten will, and that defendant felt remorse after the shooting and wished he

could have traded places with the fallen officer. The jury nonetheless believed

that even though defendant came to regret his actions, defendant did what he

wanted to do at the time of the shooting. We find no error in the trial court‘s

exclusion of the handwritten documents and certainly no prejudice under any

standard.

C. Failure to Instruct the Jury to View with Caution Out-of-court

Admissions During the Taped Interrogation (CALJIC No. 2.71)

In its rebuttal case, the People sought to impeach defendant‘s testimony

through the introduction of admissions he had made while he was interrogated by

Special Agent Albert Fox and Special Agent Ronald Eicher. The interrogation

was tape-recorded, but neither the recording nor a transcript of the interrogation

was introduced into evidence. Instead, Special Agent Fox recounted defendant‘s

statements by testifying that defendant said he barricaded the house because he

―wasn‘t going to go to jail, man‖ and admitted he knew the man outside the car

was a sheriff.

41

The jury was instructed with a portion of CALJIC No. 2.71 (Admission—

Defined), as follows: ―An admission is a statement made by the defendant other

than at his trial which does not by itself acknowledge his guilt of the crimes for

which such defendant is on trial, but which statement tends to prove his guilt when

considered with the rest of the evidence. [¶] You are the exclusive judges as to

whether the defendant made such an admission and, if so, whether such statement

is true in whole or in part. If you should find the defendant did not make the

statement, you must reject it. If you find that it is true in whole or in part, you may

consider that part which you find to be true.‖ However, the trial court declined to

give the jury the final sentence of that instruction, which provides, ―Evidence of

an oral admission of [a] [the] defendant not made in court should be viewed with

caution.‖

Defendant claims the omission of the final cautionary admonition was error

and requires reversal of the judgment. (See People v. Carpenter (1997) 15 Cal.4th

312, 392 [―When the evidence warrants, the court must give the cautionary

instruction sua sponte‖].) The People contend that the admonition was not

required here because the admissions were tape-recorded (People v. Mayfield,

supra, 14 Cal.4th at p. 776 [―this cautionary instruction is inapplicable, and should

not be given, if the oral admission was tape-recorded‖]), even though the tape was

never played for the jury. We need not decide whether the trial court had a duty to

instruct the jury with the closing sentence under these peculiar circumstances

because we find that any error was assuredly harmless. (See People v. Heishman

(1988) 45 Cal.3d 147, 166.)

The purpose of CALJIC No. 2.71 is to help the jury determine whether the

admissions (in this case, defendant‘s statements to Special Agent Fox) were ever

made. (People v. Mungia (2008) 44 Cal.4th 1101, 1134-1135; see also CALCRIM

No. 358.) The portion of the instruction the jury did receive emphasized the jury‘s

42

role as the exclusive judges of whether defendant made those statements and, if so,

whether the statements were true.14 Moreover, the defense never contested the

accuracy of Fox‘s recollection, even during closing argument, and did not even

bother to cross-examine him. Indeed, defendant admitted telling Fox that he knew

that ― ‗[t]he guy that stood up‘ ‖ was ― ‗a Sheriff,‘ ‖ but he tried to explain that this

undisputed reference was to what he knew after the shooting had ended. Although

defendant did testify prior to Fox‘s testimony that he did not know whether he

made a statement about the barricade during the interrogation, the defense still has

never claimed that Fox‘s account of what defendant said, which was fully

consistent with the transcript of the taped interrogation, was inconsistent in any

way with the taped interrogation itself. (Cf. Evid. Code, § 412.) Furthermore,

there was considerable circumstantial evidence of defendant‘s intent in barricading

the house and setting a booby trap with the gas cans, independent of his admission

to Fox. Accordingly, any error in omitting the additional cautionary admonition

was harmless under any standard. (People v. Mungia, supra, 44 Cal.4th at p.

1135; People v. Heishman, supra, 45 Cal.3d at p. 166; see also People v. Dickey

(2005) 35 Cal.4th 884, 905-906.)

D. Exclusion of the Remainder of Defendant’s Statements During the

Taped Interrogation

Prior to trial, defense counsel stated that he had intended to file a motion to

suppress defendant‘s statements during the taped interrogation with Special Agent

Fox but had been unable to find legal grounds to do so. Counsel did advise the

14

Hence, we find unconvincing defendant‘s contention that ―[a]ny attempt by

defense counsel to argue that the statements should be viewed with caution would
have been undercut by the trial court‘s failure to give the cautionary admonition.‖

43

court, however, that ―if something should come up, I will be renewing that motion

before any evidence in the statement comes before the Court.‖

The first time the taped interrogation was mentioned at trial was during

defendant‘s cross-examination, when defendant admitted telling Fox he had fired

the first shot. Defendant also claimed he did not remember whether he told Fox he

had barricaded the house because he ―wasn‘t going to go to jail, man.‖ On

redirect, defendant said he had expressed his wish, during the interrogation, to

trade places with the fallen officer if he could. When defense counsel asked

whether defendant had also said, ―I don‘t have any excuse for shooting that

Sheriff,‖ the court sustained the prosecutor‘s hearsay objection. During a sidebar

conference after the jury had been dismissed, defendant argued that once a portion

of the interrogation had come in, then ―the whole conversation‖ became

admissible under Evidence Code section 356. The court disagreed and explained

that only those interrogation statements related to those already elicited would be

admissible. The trial court also rejected defendant‘s attempt to admit the

statement as a spontaneous declaration or as evidence of his state of mind.

In rebuttal, the People called Special Agent Fox to testify as to two of

defendant‘s statements: that defendant said he barricaded the house because he

―wasn‘t gonna go to jail‖ and that he had no doubt the ―guy that stood up‖ outside

the car was from the sheriff‘s department. In surrebuttal, defendant testified that

he realized only after the shooting that the ―guy‖ was a peace officer. When

defense counsel asked, ―And at the time you gave the interview did you know that

those two vehicles were Sheriff‘s vehicles?,‖ the court sustained the prosecutor‘s

objections to the question as outside the scope of the direct examination and

calling for hearsay.

Defendant now contends that these statements from the interrogation—

indeed, the ―whole transcript of the interrogation‖—were admissible under the

44

rule of completeness (Evid. Code, § 356) and as prior consistent statements (Evid.

Code, §§ 791, 1236), and that exclusion of the statements violated his

constitutional right to present a defense. The People respond that defendant has

preserved his claim only as to the two specific interrogation statements he sought

to introduce at trial (i.e., that he did not ―have any excuse for shooting that

Sheriff‖ and that he did not know the two vehicles were sheriff‘s department

vehicles); and that even as to those statements, defendant was barred from arguing

that they were admissible as prior consistent statements or that their admissibility

was compelled by his constitutional right to present a defense, inasmuch as

defendant had failed to assert either basis during the trial. (Evid. Code, § 354.)

We begin by noting that here, as with some of his other claims, defendant

forfeited his contention of constitutional error by failing to assert it below, except

to the extent that the constitutional claim relies on the same facts and legal

standards the trial court itself was asked to apply, and asserts merely that the trial

court‘s act or omission, insofar as wrong for the reasons actually presented to that

court, had the additional legal consequence of violating the Constitution. (See fn.

12, ante.) Defendant contends that he nonetheless preserved a broader

constitutional argument by asking the court, prior to trial, to consider that ―every

motion that is being made in this court by the defense‖ is ―in order to protect the

defendant‘s Federal 4th, 5th, 6th, 8th, and 14th Amendment, constitutional rights,

State Constitution, Article One, Sections One, Seven, 13, 15, 16, 17, and 27,

constitutional rights, and all statutory rights he may have.‖ Not so. We have long

held that the proponent of evidence must identify the specific ground of

admissibility at trial or forfeit that basis of admissibility on appeal. (People v.

Fauber (1992) 2 Cal.4th 792, 854; see generally People v. Partida, supra, 37

Cal.4th at p. 435 [―A party cannot argue the court erred in failing to conduct an

analysis it was not asked to conduct‖].) This standard of specificity is not satisfied

45

by offering a generic laundry list of potentially applicable constitutional provisions

untethered to any particular piece of evidence.

However, even if we assumed that defendant had preserved all possible

bases for admission and even if we were to view defendant‘s claims broadly

enough to encompass the entirety of the taped interrogation, we would conclude

that defendant was not prejudiced. True, some of the interrogation elicited

information that was arguably helpful to defendant. For example, defendant stated

during the interrogation that there were bags of unopened mail in his wife‘s car,

that his wife had spent all of his inheritance, that she had not been paying the bills,

and that he believed she was having an affair with a colleague at work. But

defendant had testified about these same matters on the stand, and none of these

matters was contested. Other statements made during the interrogation were also

consistent with defendant‘s testimony at trial, such as his statement that he did not

recognize the vehicles as being from the sheriff‘s department, that his binoculars

were not that strong, that he thought his wife‘s lover was in the car at the Boske

house, that he thought the short person in the passenger seat of one of the brown

cars was his wife, that he did not think he shot at the second car, that he did not

realize it was a deputy until he saw his boots sticking out from under the door, and

that he did not know the deputy was still there even after the dump truck departed.

These statements could have been helpful to defendant, but only marginally so,

inasmuch as they were duplicative of his trial testimony.

One piece of new information elicited during the interrogation was his

admission that he thought he was shooting at his wife when he ―shot at these

guys.‖ He added, ―I just, just blew it. The wrong person died. Poor officer, was

just doing his job.‖ But this account—i.e., that he intended to shoot, but believed

he was shooting at his wife—differed markedly from the version defendant

provided at trial, which was that he did not aim at anyone and did not intend to

46

shoot anyone. Thus, admission of these statements might have been important,

but only in crippling defendant‘s credibility. (See People v. Jones (2003) 29

Cal.4th 1229, 1255.)

Moreover, there was much in the remainder of the interrogation that was

damaging as well, and some of it could be found only in the interrogation. When

asked why he had covered the windows with plywood and set out the gas cans,

defendant said, ―I knew she was going to call the cops.‖ Then, when asked why

he opened fire before saying anything to the people outside, defendant said,

―Because I knew they were going to take me to jail.‖ Defendant conceded he fired

the first shot, estimated he had fired seven shots altogether, and admitted that he

had shot at more than one person. He added that he aimed at the doors because the

officers were ―crouched behind the doors.‖ Defendant said he stopped firing

because his gun was empty, but he crawled down the hallway to get another one.

Even worse for defendant, had the interrogation been read in its entirety, it

would have undermined defendant‘s testimony in surrebuttal that his statement to

Special Agent Fox as to the identity of the man standing outside the vehicle was a

reference to what he knew at the time of the interrogation, not at the time the

officers arrived at his house, and that he had been unaware these were sheriff‘s

department vehicles. During the interrogation, defendant said he had believed, at

that earlier point, that the cars had come to take him to jail, and that one of the

passengers was his wife and the other passenger might be ―some kind of

negotiator or what.‖ As for the drivers of the two cars, defendant said he knew

that they were sheriffs:

―[Special Agent] Eicher: We got two beige cars driving in. You got people

getting out of them wearing uniforms that are waving to you, ‗hey, come over here

and talk to us.‘

47

―Ervine: Only one guy stood up, the rest of them were crouched behind the

doors.

―Eicher: OK. But the guy that stood up, who did you think that was?

―Ervine: He was a sheriff.

―Eicher: Was there any doubt in your mind?

―Ervine: No.

―Eicher: Who did you think the other people were?

―Ervine: Well, I knew there was a sheriff in the driver‘s seat of the other

car too. . . . I mean. It stands to reason a sheriff is going to be driving a sheriff’s

car.‖ (Italics added.)

Had defendant‘s statements at the interrogation been presented in full to the

jury, it would have increased the amount of evidence for the jury to consider. But

the mix of evidence would quite likely have tipped even more favorably to the

People, providing still more evidence that defendant, as he put it during the

interrogation, was ―guilty,‖ did not have ―any excuse for shooting that Sheriff,‖

and believed he deserved the death penalty. Defendant could not have suffered

prejudice from the exclusion of these statements. We therefore do not consider

whether the rule of completeness or any hearsay exception applies.

E. Sufficiency of the Evidence of Attempted Murder

Defendant was convicted of the willful, deliberate and premeditated

attempted murder of Commander Freitas, Deputy Mahan, and Deputy Aldridge.

The record showed that defendant shot at Freitas and Mahan and that one of the

bullets even grazed Mahan‘s head. Defendant argues, however, that there was no

evidence he aimed or shot at Aldridge and that the attempted murder conviction as

to Aldridge should be reversed for insufficient evidence.

48

Attempted murder requires the specific intent to kill and the commission of

a direct but ineffectual act toward accomplishing the intended killing. (People v.

Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) Defendant argues that the

evidence of intent was inadequate in that ―there was no evidence that [he] aimed

or shot at Aldridge, or even knew that he was present‖ and, further, that ―only a

shot fired at Aldridge would constitute the direct movement toward the

commission of the attempted murder.‖ He is wrong. (People v. Dillon (1983) 34

Cal.3d 441, 455 [―the law of attempts would be largely without function if it could

not be invoked until the trigger was pulled‖].)

The record at trial supports the inference that defendant expected the peace

officers to come to his house, that he did not want to be arrested, and that he

prepared an elaborate ambush, placing gas cans inside and outside the house and

choosing a sniper location above the officers, to prevent being arrested. This plan,

of course, would require the killing of all officers who were present. (People v.

Stone (2009) 46 Cal.4th 131, 140 [―a person who intends to kill can be guilty of

attempted murder even if the person has no specific target in mind‖].) Defendant

was outnumbered, so he focused on those officers—Griffith, Freitas, and Mahan—

who were shooting at him.15 Defendant was injured before he could fully execute

his plan, but his strategy of shooting at Freitas and Mahan constituted not only

attempted murder as to those two officers but also a direct but ineffectual act

toward killing Aldridge, since the elimination of the threat from Freitas and

Mahan would have facilitated the task of killing Aldridge. (People v. Smith

(2005) 37 Cal.4th 733, 741 [shooter‘s abandonment of efforts ― ‗ ―out of necessity

15

Aldridge did not fire a shot because he was unable to get a clear view of

defendant.

49

or fear does not compel the conclusion that he lacked the animus to kill in the first

instance‖ ‘ ‖].) Moreover, it would be absurd to assert that defendant was unaware

Aldridge was present, since each patrol vehicle had two car doors open and the

second patrol vehicle obviously did not drive itself to defendant‘s gate. The

record thus supported the conclusion that defendant intended to kill Aldridge

along with the other officers and had undertaken a direct but ineffectual act toward

accomplishing the intended killing by firing first at the officers who posed the

most immediate threat. (See People v. Superior Court (Decker), supra, 41 Cal.4th

at pp. 8-9.)

F. Asserted Instructional Error as to Attempted Murder

Defendant launches several attacks on the instructions the court gave the

jury concerning attempted murder and on the court‘s response to a jury question

about the law of attempted murder. None of them has merit.

The court instructed the jury on attempted murder in accordance with

CALJIC No. 8.66 (Attempt to Commit Murder), as follows:

―Defendant is accused in Counts Two, Three, and Four of the Information

of having committed the crime of attempt to commit murder, in violation of

Sections 664 and 187 of the Penal Code.

―Every person who attempts to murder another human being is guilty of

violation of Section 664 and 187 of the Penal Code.

―Murder is the unlawful killing of a human being with malice aforethought.

―In order to prove such crime each of the following elements must be

proved: One, a direct but ineffectual act was done by one person toward killing

another human being;

―And two, the person committing such act harbored express malice

aforethought, namely, a specific intent to kill unlawfully another human being.

50

―In determining whether or not such an act was done, it is necessary to

distinguish between mere preparation on the one hand and the actual

commencement of the doing of the criminal deed on the other. [¶] Mere

preparation which may consist of planning the killing or of devising, obtaining or

arranging the means for its commission is not sufficient to constitute an attempt.

[¶] However, acts of a person who intends to kill another person will constitute an

attempt where those acts clearly indicate a certain unambiguous intent to kill. [¶]

Such acts must be an immediate step in the present execution of the killing, the

progress of which would be completed unless interrupted by some circumstances

not intended in the original design.‖ (Italics added.)

Focusing on the italicized words, defendant argues that this instruction

allowed the jury to convict him of all three counts of attempted murder even if it

concluded that he had the specific intent to kill only one of the victims and had

committed a direct but ineffectual act toward killing only one of the victims. We

do not find it reasonably likely the jury interpreted the instructions in the manner

defendant imagines. (People v. Osband (1996) 13 Cal.4th 622, 679.) The jury

was told that defendant was charged with three separate counts of attempted

murder and was given a separate verdict form, naming each victim, for each

attempted murder count, requiring it to make an individual determination whether

defendant had committed the crime against each victim. Moreover, the words

―another human being‖ and ―another person‖ in the instructions refer consistently

to each alleged victim and are obviously intended to distinguish between the

victim and defendant, since defendant is also referred to as a ―person‖ in the

instructions. Indeed, defendant does not point to anything in the record or in the

argument of counsel to support his strained interpretation.

Defendant then points out, correctly, that the court failed to instruct the jury

on the requirement of a union of an act and a wrongful intent with respect to the

51

attempted murder, inasmuch as the version of CALJIC No. 3.31 (concurrence of

act and intent) read to the jury was limited to the crime of murder and the lesser

offense of manslaughter. However, CALJIC No. 8.67 (attempt to commit

murder—willful, deliberate, and premeditated), which applied to the allegation

attached to each attempted murder count, directed the jury to determine whether

the attempted murder ―was preceded and accompanied by a clear, deliberate intent

to kill,‖ and the jury found each such allegation true. (Italics added.) Defendant

concedes that this instruction articulated a requirement that there be a concurrence

of act and intent similar to that described in CALJIC No. 3.31, but asserts that the

instruction nonetheless cannot be considered because it likewise was ―erroneously

limited to count one, the murder count.‖ But the court, prior to dismissing the jury

for deliberations, corrected its error and amended the instruction to include the

attempted murder counts. Hence, the jury could not have been misled.

Defendant also declares the instructions deficient for omitting a unanimity

instruction. In his view, the jurors should have been required unanimously to

agree concerning the act or event that established each count of attempted murder.

But a unanimity instruction is not required ―when the acts alleged are so closely

connected as to form part of one transaction‖ and ―the defendant offers essentially

the same defense to each of the acts, and there is no reasonable basis for the jury to

distinguish between them.‖ (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)

Here, the record does not reveal any differing defenses to the various shots he

fired at the officers, and defendant does not identify any, either.

Defendant‘s final challenge relates to the court‘s response to a jury question

concerning attempted murder. On the second day of deliberations, the jury sent

the following request concerning the attempted murder of Aldridge: ―If the jury

agrees that it was the defendant‘s intention to kill all of the officers at the front

gate but was prevented from doing so by the circumstances that: A) His intended

52

victim was hiding or not seen by the defendant[,] B) There is no direct evidence of

shots fired at Deputy Aldridge[,] C) The assault was interrupted by the fact that

the defendant was shot at and hit. If any or all of the above stated circumstances

are true, has an attempted murder been committed?‖ The court responded with a

question of its own: ―Before it can accurately answer the jury‘s question, the

Court must determine what the jury means by the term ‗the officers at the front

gate.‘ Does the jury mean thereby that defendant intended to kill all officers at the

front gate, however many there might be? Or, does it mean that the defendant

intended to kill only the officers at the front gate whom he saw?‖ The jury then

submitted this clarification: ―The jury agrees that Mr. Ervine intended to kill all

officers at the front gate, however many there might be. If Mr. Ervine never

actually laid eyes on Deputy Aldridge, because the deputy was in hiding, and if

there is no direct evidence of shots fired at Deputy Aldridge ([i.e.] bullet holes in

his door, Aldridge stating that he saw Ervine aiming at him, etc.), is it attempted

murder?‖ After conferring with counsel, the court instructed the jury as follows:

―Given a finding by the jury that the defendant intended to kill all officers at the

front gate, however many there might be, then it may find an attempt to murder

each officer if the jury finds a direct but ineffectual act done towards carrying out

that original intent.‖

Defendant contends the instruction was erroneous in that it substituted a

finding that ―defendant intended to kill all persons in an open location‖ for the

statutory requirement that defendant ―had the specific intent to kill each alleged

victim.‖ Defendant misapprehends the law. As we recently explained in People v.

Stone, supra, 46 Cal.4th 131, the intent required for attempted murder can be

satisfied not only by the intent to kill a particular person, but also by ―a

generalized intent to kill someone.‖ (Id. at p. 136.) Indeed, ―a person who intends

to kill can be guilty of attempted murder even if the person has no specific target

53

in mind.‖ (Id. at p. 140.) The jury‘s question reflected a belief that defendant

intended to kill all of the officers at the front gate, however many there might be,

which is sufficient evidence of intent under Stone for the attempted murder of

Freitas, Mahan, and Aldridge. The court then instructed the jury, correctly, that a

direct but ineffectual intent towards carrying out that plan could establish

attempted murder. We perceive no error.

G. Asserted Overlap Between the Special Circumstance of Murder to

Avoid Arrest and the Special Circumstance of Murder of a Peace
Officer


Defendant contends that the special circumstance of murder to avoid arrest

(§ 190.2, subd. (a)(5)) must be stricken because it overlaps with the special

circumstance of murder of a peace officer in the performance of his duties (id.,

subd. (a)(7)). He asserts that this result is compelled by People v. Bigelow (1984)

37 Cal.3d 731 (Bigelow). We disagree.

In Bigelow, the defendant had been convicted of murder with a financial

gain special circumstance (§ 190.2, subd. (a)(1)) and a robbery-murder special

circumstance (id., subd. (a)(17)(A)). Because ―the obvious motive of robbery is

financial gain‖ (People v. Montiel (1993) 5 Cal.4th 877, 926, fn. 20), we perceived

a need to ―construe special circumstance provisions to minimize those cases in

which multiple circumstances will apply to the same conduct, thereby reducing the

risk that multiple findings on special circumstances will prejudice the defendant.‖

(Bigelow, supra, 37 Cal.3d at p. 751.) We therefore adopted a limiting

construction of murder for financial gain where both of these special

circumstances are charged ―under which the financial gain special circumstance

applies only when the victim‘s death is the consideration for, or an essential

prerequisite to, the financial gain sought by the defendant.‖ (Ibid.)

54

Bigelow then considered the scope of the special circumstance of murder to

avoid an arrest. We observed that the prosecutor‘s broad reading would allow a

―claim that the victim was killed not only to prevent him from testifying in court

but also to prevent him from reporting the crime to the police, and the result would

be to extend the avoiding arrest circumstance to virtually all felony murders.‖

(Bigelow, supra, 37 Cal.3d at p. 752, fn. 13.) In order to avoid ―a reading which

would cause that circumstance to overlap extensively with felony murder,‖ we

declared that the special circumstance of avoiding arrest ―should be limited to

cases in which the arrest is imminent.‖ (Id. at p. 752.)16

Although we sought to reduce the risk of overlap in Bigelow, we did not

purport to entirely eliminate any possibility of overlapping special circumstances.

(See People v. Silverbrand (1990) 220 Cal.App.3d 1621, 1630.) In People v.

Melton (1988) 44 Cal.3d 713, we addressed a defendant‘s argument that the

burglary-murder and robbery-murder special circumstances were overlapping, in

that they describe essentially the same conduct with a single criminal intent and

thus would artificially inflate the number of special circumstances the jury might

consider at the penalty phase. (Id. at p. 765.) We rejected this challenge to the

special circumstances, noting that the jury would have been entitled to consider

that the robber-murderer also committed a burglary to gain access to the victim

even if the burglary-murder special circumstance had not been alleged, and that it

was ―constitutionally legitimate for the state to determine that a death-eligible

murderer is more culpable, and thus more deserving of death, if he not only robbed

the victim but committed an additional and separate felonious act, burglary, in

order to facilitate the robbery and murder. Robbery involves an assaultive

16

Defendant does not contend that his arrest here was not imminent.

55

invasion of personal integrity; burglary a separate invasion of the sanctity of the

home. Society may deem the violation of each of these distinct interests

separately relevant to the seriousness of a capital crime.‖ (Id. at p. 767.) In

reaching our conclusion, we explicitly rejected the defendant‘s attempt to graft the

sentencing rules derived from section 654 onto the death penalty scheme.

(Melton, supra, 44 Cal.3d at pp. 767-768.) Thus, although defendant purports to

find an impropriety ―[w]here two (or more) special circumstances are alleged

based on the same course of conduct,‖ our post-Bigelow cases have explicitly

upheld findings of ―multiple special circumstances arising out of the same course

of conduct.‖ (People v. Andrews (1989) 49 Cal.3d 200, 224.)

Accordingly, we do not read Bigelow to prevent the imposition of both the

special circumstances here—and, indeed, defendant concedes that we have never

before questioned the validity of these special circumstances when imposed

together. (E.g., People v. Cummings (1993) 4 Cal.4th 1233, 1255; People v.

Daniels (1991) 52 Cal.3d 815, 837.) Unlike the overlap between the robbery-

murder special circumstance and the financial-gain special circumstance, where

the latter is invariably the motive for the former—or the overlap between

―virtually all‖ felony-murder special circumstances and a broad reading of the

avoiding-arrest special circumstance (Bigelow, supra, 37 Cal.3d at p. 752, fn.

13)—the special circumstances at issue here can (and often do) apply

independently. The special circumstance of murder to avoid arrest may apply

even if the victim is not a peace officer (e.g., People v. Vorise (1999) 72

Cal.App.4th 312, 322 [victim was killed after his wife said she was going to call

the police]), and the special circumstance of murder of a peace officer in the

performance of his duties may apply even if the officer was not attempting to

effect an arrest. (E.g., People v. Gonzalez (1990) 51 Cal.3d 1179, 1218 [peace

officer was killed while executing a search warrant].) Indeed, the record here

56

supports a finding that Deputy Griffith was murdered while he was engaged in the

investigation of a domestic violence report, which was also a lawful part of his

duties, and the jury was instructed on that theory.

Moreover, as with the robbery-murder and burglary-murder special

circumstances, these special circumstances protect distinct societal interests. The

special circumstance of murder to avoid arrest protects society‘s interest in ― ‗the

due apprehension of criminals.‘ ‖ (United States v. Watson (1976) 423 U.S. 411,

419.) The special circumstance of murder of a peace officer protects peace

officers, on whom we depend ―to help ensure safe and peaceable communities.‖

(People v. Brown (2004) 33 Cal.4th 382, 400.) This state has reasonably deemed

the violation of each of these distinct interests to be separately relevant to the

seriousness of a capital crime. We therefore reject defendant‘s contention that the

special circumstance of murdering ―a peace officer in the performance of his

duties . . . necessarily subsumed the special circumstance of murder to avoid

arrest.‖

IV. PENALTY PHASE ISSUES

A. Admissibility of Victim Impact Testimony

Sheriff Jarrell, who had hired Deputy Griffith, testified at the penalty phase

about the effect of Griffith‘s murder on the members of the Lassen County

Sheriff‘s Department. Defendant contends the evidence was inadmissible under

Penal Code section 190.3, factor (a) and violated his state and federal rights to due

process and a reliable penalty determination.

― ‗Unless it invites a purely irrational response from the jury, the

devastating effect of a capital crime on loved ones and the community is relevant

and admissible as a circumstance of the crime under section 190.3, factor (a).‘

(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056–1057.) ‗The federal

57

Constitution bars victim impact evidence only if it is ―so unduly prejudicial‖ as to

render the trial ―fundamentally unfair.‖ ‘ (Id. at p. 1056, quoting Payne v.

Tennessee (1991) 501 U.S. 808, 825 (Payne).)‖ (People v. Cruz (2008) 44 Cal.4th

636, 682.) Neither standard was violated here.

Sheriff Jarrell testified that all of the members of his ―very close‖ and

cohesive department, along with their families, were struck with grief at the loss of

Deputy Griffith, and that two counselors were brought in to provide them some

comfort. The peace officers struggled with the ―abrupt‖ realization of their own

vulnerability, which caused many to have doubts about their abilities. Deputy

Aldridge, in particular, quit because he wanted ―to be able to see his kids grow

up.‖ The remaining officers have increased their requests for backup when

responding to domestic violence calls. The dispatchers, too, were upset, and the

one who sent Deputy Griffith to respond to the call still ―has difficulty dealing

with that reality.‖ Sheriff Jarrell also recalled his own feelings of anger,

helplessness, and desire for retribution.

Defendant complains that Sheriff Jarrell‘s testimony went beyond Payne‘s

―limited definition of who is a victim and what testimony is permissible in

describing the impact or harm of a crime,‖ but his complaint lacks legal support.

As we have previously observed, victim impact evidence is not limited to the

effect of the victim‘s death on family members (People v. Pollock (2004) 32

Cal.4th 1153, 1183), but may include its effects on the victim‘s friends,

coworkers, and the community. (People v. Huggins (2006) 38 Cal.4th 175, 222,

238-239 [testimony from friends and coworkers mourning the loss of the victim

and describing the erection of a bronze statue of the victim by the community was

relevant to the circumstances of the crime]; accord, McClain v. State (Ga. 1996)

477 S.E.2d 814, 824 [―the trial court has discretion to question witnesses regarding

the effect of the victim‘s death on the community‖].) Nor are victim impact

58

witnesses limited to expressions of grief, for our case law permits a showing of

―the specific harm caused by the defendant‖ (People v. Edwards, supra, 54 Cal.3d

at p. 835), which encompasses the spectrum of human responses, including anger

and aggressiveness (People v. Gutierrez (2009) 45 Cal.4th 789, 802), fear (People

v. Wilson (2005) 36 Cal.4th 309, 357), and an inability to work (Gutierrez, supra,

45 Cal.4th at p. 802). Nor does the admissibility of such evidence render section

190.3, factor (a) unconstitutionally vague. (Wilson, supra, 36 Cal.4th at p. 358.)

In fact, the federal courts have permitted testimony very similar to Sheriff

Jarrell‘s. In U.S. v. Battle (11th Cir. 1999) 173 F.3d 1343, for example, the

Eleventh Circuit upheld the trial court‘s decision allowing three prison guards to

testify about the effect of a fellow officer‘s death on the staff and the inmates. The

court reasoned that the witnesses‘ testimony was ―about harm to the Atlanta prison

staff—how the murder of a coworker and the resulting sentence for his killer

would affect them.‖ (Id. at p. 1349.) Their testimony, like the sheriff‘s testimony

here, was neither inflammatory nor emotionally charged, and consisted of short,

matter-of-fact descriptions of the effect of the crime. (Id. at p. 1348.) In Battle, as

in this case, no one described the defendant ―as a beast who must be killed‖ or

conveyed hatred toward the defendant or the viciousness of his crimes. (Id. at p.

1349.) ―[I]n short, no [witness] could have been said to have inflamed the jury.‖

(Ibid.) Similarly, here, the testimony was not unduly prejudicial.

U.S. v. Wilson (E.D.N.Y. 2006) 493 F.Supp.2d 364 offers additional

authority for our conclusion. There, the district court allowed testimony from

fellow New York Police Department (NYPD) officers to demonstrate ― ‗the

chilling effect‘ ‖ of defendant‘s crimes on NYPD undercover detectives, including

evidence that some officers ―were ‗refusing to go out on the street, do these

operations because of the danger, how some even retired from undercover work.‘ ‖

(Id. at p. 395; accord, U.S. v. Cheever (D.Kan. 2006) 423 F.Supp.2d 1181, 1210-

59

1211 [permitting officers of the Greenwood County Sheriff‘s Department to testify

about the impact of the Sheriff‘s death on the department].)17

We also find no error with respect to the prosecutor‘s remark during closing

argument that ―[w]hat you have here is a case where the defendant has literally

ripped apart the fabric of society in Lassen County in particular.‖ Not only did

defendant forfeit any claim by failing to object to this remark at trial (People v.

Brown, supra, 33 Cal.4th at pp. 398-399), but the prosecutor‘s remark was a fair

comment on the evidence. (Id. at pp. 399-400.)

We do agree with defendant, though, that it was inappropriate for the

prosecutor to ask Sheriff Jarrell whether it was ―acceptable‖ to him ―to allow the

system and a jury [to] decide the appropriateness of the level of responsibility for

this crime,‖ inasmuch as the Eighth Amendment, even after Payne, still bars the

admission of a victim‘s ―opinions about the crime, the defendant, and the

appropriate sentence.‖ (Payne v. Tennessee, supra, 501 U.S. at p. 830, fn. 2.)

Defendant was not prejudiced by the sheriff‘s response, however, which expressed

his belief that ―society‘s representatives would hold Mr. Ervine appropriately

accountable for his conduct.‖ (See People v. Lewis and Oliver, supra, 39 Cal.4th

at p. 1058.)

17

Defendant‘s reliance on Lambert v. State (Ind. 1996) 675 N.E.2d 1060,

which disallowed testimony from fellow police officers about the effect of the
victim‘s death on them, is misplaced. Lambert found error in the admission of
such testimony on the ground that it was not relevant to the sole statutory
aggravating circumstance under Indiana law. (Id. at p. 1064.) Indiana law, unlike
California‘s, does not include the circumstances of the crime as an aggravating
factor. (Compare Pen. Code, § 190.3, factor (a) with Ind. Code Ann. § 35-50-2-
9(b); see Prowell v. State (Ind. 1997) 687 N.E.2d 563, 567-568.)

60

B. Exclusion of Expert Testimony Concerning the Conditions of

Confinement in Prison

Defendant offered the testimony of Edward George, a former employee of

the Department of Corrections and Rehabilitation, to testify as an expert as to the

conditions of confinement should defendant be sentenced to a term of life

imprisonment without the possibility of parole and provide a ―thumbnail sketch of

what a daily regimen would amount to.‖ The defense proposed to have George

testify that prisoners under those conditions ―generally are not disciplinary

problems‖ and ―usually lead exemplary lives within the confines of the prison.‖

The defense did not propose to have George opine as to defendant’s behavior in

particular, although George had met with defendant and was ―familiar with this

case.‖ The trial court excluded the testimony as irrelevant, and defendant now

claims that ruling violated section 190.3 as well as his rights under the Fifth, Sixth,

and Fourteenth Amendments to the federal Constitution and parallel provisions of

the California Constitution.

―We have previously held that evidence of the conditions of confinement

that a defendant will experience if sentenced to life imprisonment without parole is

irrelevant to the jury‘s penalty determination because it does not relate to the

defendant‘s character, culpability, or the circumstances of the offense. (People v.

Daniels (1991) 52 Cal.3d 815, 876-878; People v. Thompson (1988) 45 Cal.3d 86,

138-139.) Its admission is not required either by the federal Constitution or by

Penal Code section 190.3.‖ (People v. Quartermain (1997) 16 Cal.4th 600, 632.)

The same prohibition does not apply, however, to evidence of defendant‘s

probable future conduct in prison. (E.g., Skipper v. South Carolina (1986) 476

U.S. 1, 5 [―evidence that the defendant would not pose a danger if spared (but

incarcerated) must be considered potentially mitigating‖]; accord, People v. Fudge

61

(1994) 7 Cal.4th 1075, 1117 [error to exclude evidence that defendant would lead

a productive and nonviolent life in prison].)

In this case, the testimony proffered by the defense fell into the former

category, not the latter. Indeed, even after the parties discussed the distinction

between evidence of the rigors of confinement and evidence of a defendant‘s past

behavior as an inmate or future suitability as a life prisoner, defense counsel

reiterated that he did ―not intend to ask Mr. George his opinion concerning Mr.

Ervine‘s future behavior within the prison.‖ We note as well that the defense

offered no other evidence to predict defendant‘s behavior in prison. (Cf. People v.

Garceau (1993) 6 Cal.4th 140, 204 [evidence that the defendant had been ― ‗a

model prisoner‘ ‖ and had successfully adjusted to prison life].)

Defendant contends that the George testimony was nonetheless admissible

because general evidence of the conditions of confinement would tend to support

the argument that defendant, in particular, would ―adjust peacefully to prison life.‖

But such an inference would be completely speculative. (People v. Jones (2003)

29 Cal.4th 1229, 1261.) Evidence that inmates under a sentence of life

imprisonment without the possibility of parole are confined in a secure setting

does not in itself tend to show that a particular defendant ―would be unlikely to

engage in violence.‖ (Ibid.; see also People v. Daniels, supra, 52 Cal.3d at p. 878

[―evidence of the manner of execution or confinement does not relate to the

character or record of the defendant‖]; cf. Skipper v. South Carolina, supra, 476

U.S. at p. 4 [―the only question before us is whether the exclusion from the

sentencing hearing of the testimony petitioner proffered regarding his good

behavior during the over seven months he spent in jail awaiting trial deprived

petitioner of his right to place before the sentencer relevant evidence in mitigation

of punishment‖].)

62

C. Asserted Error in the Instructions Concerning Future

Dangerousness

During closing argument, the prosecutor alluded to defendant‘s likely

behavior if incarcerated: ―You may also want to be aware of any argument that,

well, the lenient gift, punishment of life without [the possibility of parole] is easier

and okay because it will be adequate to protect society by locking this defendant

up. [¶] Well, first of all, that‘s a fallacious argument, too. Number one, it avoids

doing justice, the job that you‘re here to do, that is, determining the appropriate

penalty. [¶] Number two, that argument asks you to speculate about what he‘ll do

locked up in prison, and none of us know that. [¶] We do know what he does to

cops when he, when he doesn‘t want ‘em to arrest him, but we shouldn‘t be

speculating on that when we make decisions like this.‖ In the defense argument,

apparently in response to this point, counsel noted for the jury ―that there‘s been

no evidence . . . offered by the prosecution that [defendant] would pose any type

of a management problem in prison. There‘s no evidence to that effect at all.‖

After the jury had been excused, the prosecutor complained that this portion

of the defense argument had highlighted the prosecution‘s failure to present

evidence the defense knew the prosecution was not permitted to present (see

People v. Boyette (2002) 29 Cal.4th 381, 446): ―[T]his business about he argued

that the DA didn‘t put on any evidence about him not being a management

problem in prison. He knows full well, I am not allowed by law to put on an

expert to do that. [¶] It‘s almost like he takes everything that would be

prejudicial, reversible error in a death case, as reported in the cases, and says,

‗Well, the DA didn‘t do that and he should have.‘ ‖ The prosecutor proposed the

jury be instructed that ―[i]f there was any argument or insinuation that the

prosecutor should have put on an expert or evidence concerning the defendant‘s

future violence, I am instructing you that the prosecutor is not permitted to do so

63

under the law, and you‘re to draw no inference from that.‖ Defense counsel said

he had no objection to the admonition. The court recessed to consider this

proposed instruction, as well as another concerning the defense‘s attempt to

invoke intercase proportionality (see part IV.E., post) and returned with the

following language to address both issues: ―If during argument any assertion or

insinuation was made that you should compare defendant‘s conduct in this case

with other cases, or that there was a failure of proof regarding the defendant‘s

propensity to violence if in prison, you will disregard such entirely. Neither is an

appropriate consideration for the jury in selecting the penalty, and no evidence

was introduced in such regards because both are irrelevant.‖ Once, again, defense

counsel said he had no objection to the admonition, and it was included in the

instructions given to the jury.

Defendant now claims the instruction erroneously removed the issues of

future dangerousness (or lack thereof) and his ability to adjust to life in prison

from the jury‘s consideration, thereby depriving him of his rights under the Fifth,

Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and parallel

provisions of the state Constitution. The claim lacks merit.

―The law is settled: expert testimony that a capital defendant will pose a

danger in the future if his life is spared is inadmissible (People v. Murtishaw

(1981) 29 Cal.3d 733, 773-775), but ‗prosecutorial argument regarding

defendant‘s future dangerousness is permissible when based on evidence of the

defendant‘s conduct rather than expert opinion.‘ ‖ (People v. Boyette, supra, 29

Cal.4th at p. 446.) In this case, the prosecutor did not offer expert testimony

concerning defendant‘s future dangerousness but did, in accordance with our case

law (People v. Ray (1996) 13 Cal.4th 313, 353), argue that defendant‘s violent

behavior towards his wife and towards the sheriff‘s deputies indicated that prison

would not be suitable for him. The defense argued, again in accordance with our

64

case law (People v. Harris (2005) 37 Cal.4th 310, 357-358), that the murder was

an aberration committed because of ―the forces operat[ing] on [defendant] the

night that this happened‖ and his ―lack of criminal history,‖ and that defendant

thus would adjust well to prison. The defense stepped over the line, though, when

it also pointed out that the People had failed to introduce evidence ―that

[defendant] would pose any type of management problem in prison,‖ since we

barred the People from introducing just that type of evidence in Murtishaw.18

It is arguable that the court‘s instruction failed to preserve the distinction

above. Although the instruction correctly cautioned the jury to disregard ―any

assertion or insinuation . . . that there was a failure of proof regarding the

defendant‘s propensity to violence if in prison‖ and informed them that the

absence of proof was not ―an appropriate consideration for the jury in selecting the

penalty,‖ the final clause of the instruction may have confused the issue. That

clause provided that ―no evidence was introduced in such regards because both are

irrelevant.‖ If the jury interpreted this clause to mean that ―no evidence was

introduced regarding the defendant‘s propensity to violence if in prison because

the defendant‘s propensity for violence in prison is irrelevant,‖ then it would have

failed to consider a relevant consideration in selecting the penalty.

Even if there were a reasonable likelihood the jury interpreted the

instruction in this manner, though, there is no reasonable possibility it affected the

18

Defendant reasons that since the People may comment, in a given case, on

the lack of evidence that the defendant could be rehabilitated (People v. Garceau,
supra, 6 Cal.4th at p. 205) or that the defendant suffered from a mental disorder
(People v. Zambrano (2007) 41 Cal.4th 1082, 1170-1171), it necessarily follows
that the defense argument here was proper. But he ignores the critical distinction
that a defendant is free to introduce evidence that he could be rehabilitated or
suffered from a mental disorder. (See Pen. Code, § 190.3, factors (h), (k).) When
a defendant fails to do so, it is worthy of comment.

65

verdict. The issue concerning defendant‘s future dangerousness was not a

significant part of the argument, and it did not strongly favor either side. Although

defendant had no prior criminal record, the current crimes were highly aggravated

and tended to show that defendant would act violently against peace officers in the

future. Thus, even if the jurors erroneously believed they could not consider

defendant‘s propensity for violence in prison as a factor for or against a particular

penalty, there was no reasonable possibility of prejudice. (See People v. Harris,

supra, 37 Cal.4th at pp. 357-358; People v. Clair (1992) 2 Cal.4th 629, 681, fn.

12.)

D. Asserted Error in Failing to Instruct on the Meaning of Life

Imprisonment Without the Possibility of Parole

Defendant requested an instruction providing that ―[a] sentence of life

without the possibility of parole means that [defendant] will remain in a state

prison for the rest of his life and will not be paroled at any time.‖ The trial court

refused the request but added that it would ―consider further instructions in the

event of an inquiry from the jury on the issue.‖ No such inquiry was made,

however, and the jury was instructed, in accordance with CALJIC No. 8.84, that it

was their task to determine whether defendant was to be sentenced to ―death or

confinement in the state prison for life without possibility of parole.‖ We have

repeatedly deemed this pattern instruction an adequate definition of the alternative

sentence to death, and have likewise rejected defense efforts to rely on

contemporary opinion surveys, not part of the current record or subject to cross-

examination, suggesting that many jurors do not understand that life without the

possibility of parole actually means no possibility of parole. (People v. Lindberg

(2008) 45 Cal.4th 1, 53; People v. Abilez (2007) 41 Cal.4th 472, 527-528; People

v. Boyer, supra, 38 Cal.4th at p. 487.)

66

E. Asserted Error in Instructing the Jury Not to Compare

Defendant’s Conduct to That in Other Capital Cases

Both the prosecutor and defense counsel occasionally referred to generic

murder scenarios presenting different fact patterns in an effort to highlight the

aggravating or mitigating circumstances of defendant‘s crime. The prosecutor‘s

discussion of the sentencing factors pointed out that this murder was not like ―a

stickup in a store and [a] store employee grabs for the gun and the robber shoots

him‖ but was instead ―a calculated murder of a cop‖ (see § 190.3, factor (a)); that

this scenario was not ―your Patty Hearst type of thing where somebody kidnaps

you and psychologically abuses you or at gunpoint forces you to go do a crime‖

(see § 190.3, factor (g)); that defendant was not ―a person who as a result of a

mental problem can‘t appreciate the fact that he‘s killing somebody‖ (see § 190.3,

factor (h)); and that defendant was not a ―16-year-old kid with no life experience

who does one wild and crazy thing in his life‖ but ―a 45-year-old man who‘s

made adult decisions, and has made a real calculated plan to kill folks‖ (see

§ 190.3, factor (i)). Defense counsel similarly remarked that this was not a crime

―that was committed during the course of a serious underlying felony, for

example, robbery‖ or for financial gain (see § 190.3, factor (a)), nor was it a

senseless murder of a store clerk to fuel a drug habit (see ibid.), but ―arose

tragically from a domestic dispute.‖ These remarks were fair comment on the

evidence. (People v. Hinton (2006) 37 Cal.4th 839, 906.)

When defense counsel stated that ―[t]his case is not about someone driven

by lust, that rapes and sodomizes 14 boys down in southern California and throws

their bodies on the freeway,‖ though, the prosecutor objected to counsel‘s

transparent reference to William Bonin, the so-called ―Freeway Killer,‖ who had

been convicted of murdering 14 boys and young men, some of whom he had

sodomized, and who had been executed amid widespread publicity less than two

67

weeks earlier. (See People v. Bonin (1989) 47 Cal.3d 808; People v. Bonin (1986)

46 Cal.3d 659.) The prosecutor declared that the reference to the Bonin case was

impermissible and proposed the jury be instructed that ―If there was any argument

or insinuation that you are to engage in a comparison of the facts and

circumstances of this case to any other notorious murder case, you are not to do

so, it would be improper. You are to decide this case upon the facts presented in

this case alone.‖

The court agreed that the reference to William Bonin was ―plainly

inappropriate‖ and worried about ―the jury going in there and arguing, well, it‘s

not as bad as [Bonin]. He didn‘t kill fourteen.‖ Defense counsel apologized to the

court, admitting that ―I made my bed,‖ and submitted the matter. The court

recessed to consider the prosecutor‘s proposed instruction as well as another

proposed instruction concerning a defense attack on the People‘s failure to present

evidence of future dangerousness (see part IV.C., ante) and returned with the

following language, which was read to the jury without objection: ―If during

argument any assertion or insinuation was made that you should compare

defendant‘s conduct in this case with other cases, . . . you will disregard such

entirely. [That is not] an appropriate consideration for the jury in selecting the

penalty, and no evidence was introduced in such regards because [it is] irrelevant.‖

Defendant now claims that the court‘s instruction nullified his ability to

argue that his crime was not within that group of highly aggravated cases

deserving of the death penalty. We disagree. The instruction did not limit the

jury‘s ability to compare defendant‘s crime to the various generic or hypothetical

scenarios invoked by the People or defendant except to the extent defendant had

attempted to compare his circumstances to Bonin‘s. Inasmuch as we have

regularly upheld a trial court‘s discretion to control the scope of oral argument ―by

refusing to allow defense counsel to compare the subject crime to other well-

68

known murders‖ (People v. Hughes (2002) 27 Cal.4th 287, 400), no error

occurred.

Defendant contends that People v. Rodriguez (1986) 42 Cal.3d 730

authorizes his argument, but the case does not help him. In Rodriguez, we

observed that ―the purpose of ‗aggravating‘ and ‗mitigating‘ factors is to assess the

seriousness of a capital crime in relation to others of the same general character,‖

in that (for example) the absence of a mitigating element ―may weigh against a

finding that the instant offense is less serious than ‗normal‘ ‖ (id. at p. 788), but

we did not indicate that the jury ought to use the sentencing factors to compare the

seriousness of other crimes committed by specific defendants and the sentences

they received. Rather, as we have explained, ―the question of the punishment

meted out to persons other than the defendant is generally not relevant to the

penalty determination.‖ (People v. Lucas (1995) 12 Cal.4th 415, 497-498; see also

People v. Hinton, supra, 37 Cal.4th at p. 907 [―The prosecutor nowhere asked the

jury to consider the punishment meted out to persons other than defendant‖];

People v. Sanders (1995) 11 Cal.4th 475, 554-555.) Counsel in this case was

barred from making that specific improper argument, but was still able to make his

central point that there had been murders involving ―more shocking, heinous, cruel

or callous facts than those present here.‖ (People v. Marshall (1996) 13 Cal.4th

799, 854.)

Defendant points out that he made no explicit reference to the punishment

any other defendant had received. It is true that defendant did not utter Bonin‘s

name, but his description of these notorious murders was sufficient in that setting,

less than two weeks after Bonin‘s execution, to alert the jurors to the recent events.

Indeed, defense counsel never questioned the prosecutor and the court‘s claim that

he had made a comparison to the Bonin case, but apologized and admitted, ―I

made my bed.‖

69

Finally, defendant argues that the court‘s instruction swept too broadly and

precluded the jury from comparing the seriousness of his crime to others of the

same general character. But, as set forth above, the instruction was concerned

with comparing defendant‘s crime to other ―cases‖—not to other types of murders

generally, which was the bulk of defendant‘s argument to the jury. The court‘s

instruction certainly extended no further than the admonition in People v. Roybal

(1998) 19 Cal.4th 481, which instructed the jury ―that they ‗may not attempt to

compare this crime, this murder, with any other murder.‘ ‖ (Id. at p. 529.)

Accordingly, here, as in Roybal, ―[t]he jurors were not instructed that they should

not consider the defendant‘s central point‖ of his argument in mitigation. (Ibid.;

see also People v. Benavides (2005) 35 Cal.4th 69, 110 [approving an instruction

that ― ‗you are not to go back and to consider what other jurors may or may not

have done in any particular case at any particular time because you were not

there‘ ‖].)

F. Asserted Error in Rejecting the Defense Instruction on Mercy

The defense requested the jury be instructed that ―[a]t the penalty phase,

you may consider sympathy, pity, compassion, or mercy for the defendant that has

been raised by any aspect of the offense or of the defendant‘s background or

character in determining the appropriate punishment. [¶] . . . [¶] You may decide

that a sentence of life without possibility of parole is appropriate for the defendant

based upon the sympathy, pity, compassion or mercy you felt as a result of the

evidence adduced during the penalty phase.‖ The court gave the instruction to the

jury, minus the word ―mercy‖ in each of the sentences above, leaving the jury to

consider sympathy, pity, and compassion. The court also made ―an order in

limine, that I don‘t think mercy should be argued by either side.‖ Defendant

complains that the court‘s failure to include the word ―mercy‖ in its instructions,

70

and its ruling barring reference to ―mercy‖ in argument by either side violated his

rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution and parallel provisions of the state Constitution.

As defendant concedes, we have repeatedly rejected the claim that omission

of ―mercy‖ from the jury instructions constitutes error. The jury here was

instructed pursuant to CALJIC No. 8.85 (Penalty Trial—Factors for

Consideration), which directs the jury to consider ―any other circumstance which

extenuates the gravity of the crime even though it is not a legal excuse for the

crime, and any sympathetic or other aspect of the defendant‘s character or record

that the Defendant offers as a basis for a sentence less than death, whether or not

related to the offense for which he is on trial.‖ As we have previously explained,

CALJIC No. 8.85 adequately instructs the jury concerning the circumstances that

may be considered in mitigation, including sympathy and mercy. (People v.

Burney (2009) 47 Cal.4th 203, 261.) We therefore ―must assume the jury already

understood it could consider mercy and compassion.‖ (People v. Brown, supra, 31

Cal.4th at p. 570.)

Moreover, the jury also was told that it ―may consider sympathy, pity, or

compassion for the defendant that has been raised by any aspect of the offense or

of the defendant‘s background or character in determining the appropriate

punishment‖ and that it ―may decide that a sentence of life without possibility of

parole is appropriate for the defendant based upon the sympathy, pity, or

compassion you felt as a result of the evidence adduced during the penalty phase.‖

Inasmuch as ―mercy‖ and ―compassion‖ are synonymous in this context (see

Oxford English Dict. Online (draft rev. June 2009) <http://dictionary.oed.com> as

of Dec. 7, 2009 [mercy]), there is no reasonable likelihood the jury was misled as

to its ability to grant defendant mercy.

71

For similar reasons, the trial court did not err in directing the parties to refer

to sympathy, pity, or compassion instead of mercy in argument. This ruling was

not, as defendant asserts, one that prevented him from requesting leniency; it

merely guided the language he was to use in requesting leniency, replacing the

word ―mercy‖ with a synonym that did not connote an emotional response to the

mitigating evidence instead of a reasoned moral response. (People v. Avila (2009)

46 Cal.4th 680, 722-723; People v. McPeters (1992) 2 Cal.4th 1148, 1195 [―The

unadorned use of the word ‗mercy‘ implies an arbitrary or capricious exercise of

power rather than reasoned discretion based on particular facts and

circumstances‖]; cf. People v. Ochoa (1998) 19 Cal.4th 353, 459 [omission of

―pity‖ was not error where ―sympathy‖ was ―essentially synonymous‖]; see

generally Saffle v. Parks (1990) 494 U.S. 484, 492-493.) The defense closing

argument emphasized the jury‘s ―enormous discretion‖ to select the appropriate

penalty and urged the jury to exercise it ―and to temper justice with compassion,‖

which is ―an admirable virtue.‖ No aspect of defendant‘s background he now

identifies—his ―quiet upbringing,‖ his mother‘s death while he was a teenager, his

service in Vietnam, his role as caregiver for his father until his death, his wife‘s

betrayal, and the testimony of his friends and neighbors—would have weighed

more heavily had the jury been explicitly instructed as to mercy in addition to

compassion.

Finally, we discern no misconduct in the prosecution‘s closing argument.

The prosecutor never told the jury it could not consider mercy.19 Nor did the

19

The trial court stated that it would reverse its ruling and include ―mercy‖ in

the instruction ―[i]f the prosecutor argues it.‖ Defendant thus forfeited this aspect
of his claim by failing to interpose any objection to the prosecutor‘s argument
below. (People v. Rogers, supra, 46 Cal.4th at p. 1181.)

72

prosecutor tell the jury, contrary to the instructions, that it could not extend

sympathy, pity, or compassion to defendant. Rather, he simply told the jury that,

on this record, defendant was undeserving of their sympathy, pity, or compassion.

This was not error. (People v. Rogers, supra, 46 Cal.4th at p. 1181.)

G. Asserted Error in Omitting Instructions on General Evidentiary

Principles

Prior to opening statements at the penalty phase, the court instructed the

jury with the basic principles governing their sentencing function and directed

them to ―disregard any jury instruction given to you in the guilt determination of

this trial which conflicts with these princip[les].‖ At the instructional conference

after the close of evidence, the court advised the parties that it would supply the

jury with the entire written set of the guilt phase instructions. The court then

instructed the jury in the language of CALJIC No. 8.84.1, which provides in

pertinent part, ―You will now be instructed as to all the law that applies to the

penalty phase of this trial. . . . You must accept and follow the law that I shall state

to you. Disregard all other instructions given to you in other phases of this trial.‖

Contrary to the recommendation in the Use Note to CALJIC No. 8.84.1, though,

the trial court did not orally reinstruct the jury with applicable instructions

regarding the evaluation of evidence.

Defendant now asserts that the death penalty must be reversed because the

trial court failed to reinstruct the jury orally regarding circumstantial evidence;

prior consistent or inconsistent statements; the assessment of testimony and

admissions; the significance of statements of counsel and objections sustained; and

the jurors‘ duty to deliberate, to give their individual opinions, and to accept the

law as instructed. (CALJIC Nos. 1.00, 1.02, 2.00, 2.01, 2.02, 2.13, 2.20, 2.21.1,

2.21.2, 2.22, 2.27, 17.40, 17.41.) The error, he claims, violated state law (see

People v. Moon (2005) 37 Cal.4th 1, 37) as well as the Sixth, Eighth and

73

Fourteenth Amendments to the federal Constitution and parallel provisions of the

state Constitution.

We note first that the assumption underlying defendant‘s argument—i.e.,

that the jury was unaware that it should apply the written instructions it had been

given from the guilt phase—is dubious. The isolated sentence in CALJIC No.

8.84.1 directing the jury to ―[d]isregard all other instructions given to you in other

phases of this trial‖ must be read in conjunction with the court‘s earlier instruction

to ―disregard any jury instruction given to you in the guilt determination of this

trial which conflicts with these princip[les]‖ and the court‘s subsequent instruction

with respect to section 190.3, factor (b) that the elements of assault with a deadly

weapon ―have been previously described to you, in your earlier set of instructions

which you will have in the juryroom.‖ (Italics added.) Considering the penalty

phase instructions as a whole (People v. Mayfield, supra, 14 Cal.4th at p. 777),

combined with the fact the jury was supplied with a written set of the guilt phase

instructions, we do not see a reasonable likelihood the jury failed to understand

that it was to apply those earlier written instructions to the extent they were not

inconsistent with the new instructions the court was providing. (People v. Harris

(2008) 43 Cal.4th 1269, 1320 [―the jury was given the guilt phase instructions in

written form, and would reasonably have understood that they could therefore

consider them‖]; cf. People v. Moon, supra, 37 Cal.4th at p. 36 [finding error

where the court failed to reinstruct the jury, the written copies of the guilt phase

instructions were retrieved from the jury, and the jury was told ― ‗not to refer to

the instructions previously given to you any further‘ ‖].)

We note as well that defendant forfeited any claim with respect to the

failure to reinstruct in particular on the respective duties of the judge and jury and

the concluding instructions ―by failing to request such instructions at trial.‖

(People v. Wilson (2008) 43 Cal.4th 1, 30.)

74

But even if his entire claim had been preserved, and even if the jury

misunderstood its duty to apply the appropriate guilt phase instructions, defendant

was not prejudiced. Defendant does not explain how the absence of these

instructions could have affected the jury‘s evaluation of the evidence adversely to

him (People v. Brasure (2008) 42 Cal.4th 1037, 1073-1074), and the jury would

have independently applied many of the points made in the instructions, which the

jury had already heard at the guilt phase, as a matter of ―common sense‖ or

―logic.‖ (People v. Harris, supra, 43 Cal.4th at p. 1320; see also People v. Lewis,

supra, 43 Cal.4th at pp. 535-536 & fn. 30.)

H. Asserted Error in the Instructions Concerning the Uncharged

Offense of Assault with a Deadly Weapon

―[T]here is no sua sponte duty at the penalty phase to instruct on the

elements of ‗other crimes‘ introduced in aggravation.‖ (People v. Montiel, supra,

5 Cal.4th at p. 942.) However, ―when such instructions are given, they should be

accurate and complete.‖ (Ibid.)

In this case, both parties asked the court to refer the jury to the instructions

concerning assault with a deadly weapon that had been provided at the guilt phase.

The court agreed to do so and instructed the jury at the penalty phase as follows:

―Evidence has been introduced for the purpose of showing that the Defendant has

committed the following criminal act: Assault with a deadly weapon upon the

person of Julie Ervine which involved the express or implied use of force or

violence or the threat of force or violence. [¶] Before a juror may consider any

such criminal act, the elements of which have been previously described to you, in

your earlier set of instructions which you will have in the juryroom, as an

aggravating circumstance in this case, a juror must first be satisfied beyond a

reasonable doubt that the Defendant did in fact commit such criminal act.‖

75

Defendant now claims that the guilt phase instructions on assault with a

deadly weapon ―misstated and omitted elements of the offense.‖ Yet the only

element even mentioned by defendant in his briefing—and the only element

contested by defendant at trial20—was intent. Defendant does not identify any

specific defect in the instruction, but we observe that the jury was instructed that

assault with a deadly weapon required ―the general intent to willfully commit a

battery, an act which has the direct, natural, and probable consequences, if

successfully completed of causing injury to another. An intent to frighten or mere

reckless conduct is insufficient.‖ (See People v. Williams (2002) 26 Cal.4th 779,

782.) Accordingly, the jury would not have considered the uncharged offense of

assault with a deadly weapon as an aggravating circumstance until it had first

rejected defendant‘s claim that the discharge of the weapon was an accident and

accepted Julie‘s testimony that defendant‘s conduct was intentional.

I. Asserted Prosecutorial Misconduct

Defendant assigns error to a number of statements by the prosecutor during

closing argument. These statements, he claims, constituted misconduct (and

thereby violated his right to due process, a fair trial, and an individualized and

reliable penalty determination under the Fifth, Sixth, Eighth, and Fourteenth

Amendments of the federal Constitution and corollary provisions of the California

Constitution).

A prosecutor‘s conduct violates the federal Constitution when it ―infects

the trial with such unfairness as to make the conviction a denial of due process.‖

20

Defendant testified at the guilt phase that the gun discharged by accident;

Julie Ervine testified at the penalty phase that he shot the gun on purpose.
Otherwise, as he concedes, ―both testified that [he] pointed the gun at his wife, and
that the gun discharged into a stuffed animal.‖

76

(People v. Morales (2001) 25 Cal.4th 34, 44; accord, Darden v. Wainwright

(1986) 477 U.S. 168, 181.) In other words, the misconduct must be ―of sufficient

significance to result in the denial of the defendant‘s right to a fair trial.‖ (United

States v. Agurs (1976) 427 U.S. 97, 108.) A prosecutor‘s conduct that does not

render a criminal trial fundamentally unfair violates California law only if it

involves the use of deceptive or reprehensible methods to attempt to persuade

either the court or the jury. (People v. Farnam (2002) 28 Cal.4th 107, 167.)

Even when misconduct has been established, ―it ‗must bear a reasonable

possibility of influencing the penalty verdict. [Citations.] In evaluating a claim of

prosecutorial misconduct based upon a prosecutor‘s comments to the jury, we

decide whether there is a reasonable possibility that the jury construed or applied

the prosecutor‘s comments in an objectionable manner.‘ ‖ (People v. Valdez

(2004) 32 Cal.4th 73, 132-133.) At the same time, we bear in mind that

prosecutors ―have wide latitude to discuss and draw inferences from the evidence

at trial,‖ and whether ―the inferences the prosecutor draws are reasonable is for the

jury to decide.‖ (People v. Dennis (1998) 17 Cal.4th 468, 522.)

A defendant must timely object and request a curative instruction in order

to preserve a claim of prosecutorial misconduct. (People v. Valdez, supra, 32

Cal.4th at p. 132.) Defendant did not interpose a contemporaneous objection and

request for a curative admonition as to any the claims below, but he asks to be

relieved of that obligation because, prior to argument, he filed a motion to restrict

the scope of the prosecutor‘s penalty argument. The motion was supported by a

memorandum of points and authorities, which listed at length broad categories of

impermissible argument, supplied a generic curative admonition for any improper

argument, and asked the court to ―order the prosecutor to refrain from making any

of the improper penalty arguments discussed above.‖ One ostensible purpose for

77

the motion was so defendant could ―preserve the issue of prosecutorial misconduct

for appellate review by objecting, in advance, to any such misconduct.‖

The trial court viewed the motion as an attempt ―to avoid the potential for

waiver of objection on the event of the want of objection during the course of the

argument. And I can understand that because objections during the penalty phase

argument could be taken for ill by a jury.‖ The defense would still have the

opportunity once the People‘s argument had finished (and before beginning its

own argument) to alert the court to the objectionable argument and to request an

appropriate admonition. We need not pass on the validity of such a scheme

because defendant never alerted the court to any perceived misconduct nor

requested any curative admonition arising from the People‘s argument. Defendant

argues instead that his lengthy preargument motion was sufficient to preserve his

claim as to any misconduct, on the theory that he was entitled to assume that the

court‘s silence during the People‘s argument indicated ―that the court concluded

that there was no misconduct, and that any request or further objection would have

been futile.‖

We emphatically reject defendant‘s unprecedented effort to transfer the

duties of defense counsel to the court. If, as defendant contends, the court agreed

―that no adverse consequence would come from his foregoing [sic] making oral

objections in the middle of argument,‖ then defendant nonetheless had the

opportunity to identify the offending remarks as soon as the People‘s argument

had finished—and most certainly prior to the beginning of jury deliberations. To

excuse defendant‘s failure to make a prompt postargument objection by insisting

that the task of identifying improper argument and requesting a curative

admonition had by then transferred entirely from defense counsel to the court by

virtue of the preargument motion would permit a defendant to surrender the

conduct of the entire defense prior to trial simply by pointing out the casebooks in

78

the courtroom. We see no indication that the trial court here purported to shoulder

such a responsibility on its own, nor would such a role be consistent with our

system of justice.

Thus, by failing to make contemporaneous objection to any of the

following comments by the prosecutor, where the record supports no contention

that to do so would have been futile, defendant failed to preserve his claims of

prosecutorial misconduct during penalty phase argument. (People v. Frye (1998)

18 Cal.4th 894, 970.) Even if the claims had been preserved, none would entitle

defendant to relief.

Defendant claims first that the prosecutor improperly compared the jury‘s

oath to that taken by peace officers such as Deputy Griffith, since a jury and a

peace officer have different duties. But the comparison was mainly to highlight

the gravity of the oath, and the prosecutor emphasized that the jurors‘ duty was to

―do justice.‖ The comments cannot fairly be read to create an improper alliance

between the jurors and the fallen deputy or to suggest that imposing a life sentence

would be a violation of their oaths. (See Com. v. Carson (Pa. 2006) 913 A.2d 220,

268-269.) As to defendant‘s claim that the prosecutor improperly injected his

personal belief that ―justice‖ required a verdict of death, we note at the outset that

defendant fails to identify any specific statement of such a belief. Moreover, it is

not error for ―the whole thrust‖ of the People‘s argument to propose ―that ‗doing‘

justice in this case meant death, not life‖ or to ―never argue[] that life was an

appropriate sentence.‖ Indeed, ―it is not misconduct for a prosecutor in the

penalty phase of a capital case to express in argument a personal opinion that

death is the appropriate punishment, provided the opinion is grounded in the facts

in evidence‖ (People v. Mayfield, supra, 14 Cal.4th at p. 804) or in ― ‗ ―common

knowledge or . . . drawn from common experience, history, or literature.‖ ‘ ‖

(People v. Brown, supra, 33 Cal.4th at p. 400.) Finally, the prosecutor‘s use of

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―we‖ or ―us‖ as a generic reference to the community was not misconduct. (Id. at

pp. 399-400; accord, U.S. v. Abu Ali (4th Cir. 2008) 528 F.3d 210, 243.)

Defendant claims next that the prosecutor improperly attempted to appeal

to the jury‘s passions and fears by making an ―uncompromising suggestion‖ that

the jurors‘ lives would be in danger if defendant were not executed. But the

prosecutor‘s references to peace officers as ―the people whose job it is to keep

people like us secure‖ and who are needed ―if we‘re gonna have a civilized

society‖ were not inflammatory or prejudicial (see People v. Ledesma (2006) 39

Cal.4th 641, 741), nor did the prosecutor step over the line by remarking that ―it‘s

troubling for us that death can result from just a, by a callous act like this man did

to Larry Griffith. That‘s unsettling for us.‖ And, as defendant concedes, our prior

cases have allowed the prosecutor to urge the jury to accord the defendant the

same leniency the defendant granted his victim, and he offers no basis to

reconsider those decisions. (E.g., People v. Hinton, supra, 37 Cal.4th at p. 908;

People v. Benavides, supra, 35 Cal.4th at p. 109.)

As to the claim that the prosecutor encouraged improper double-counting,

defendant reiterates his claim, rejected above (see part III.G., ante) that the jury

should not have been allowed to consider the special circumstance of murder to

avoid arrest in addition to the special circumstance of murder of a peace officer in

the line of duty. Because the jury could properly have considered both special

circumstances, it was not misconduct for the prosecutor to encourage them to do

so. Defendant also claims that the prosecutor improperly urged the jury to double-

count the assault against his wife both as a prior violent crime under section 190.3,

factor (b) and as a circumstance of the murder under factor (a) when he referred to

Julie as a victim of the capital crime. But it is plain from the argument that the

prosecutor‘s reference to Julie, along with references to Deputy Griffith‘s wife,

Sheriff Jarrell, and the surviving deputies, was to remind the jury of the impact of

80

the murder on these witnesses, since Julie had testified that she begged the

deputies ―not to go over there‖ because she ―was afraid for their lives.‖ There was

no attempt to double-count the assault.

Nor do we find any effort by the prosecutor to mislead the jury as to the

mitigating value of defendant‘s criminal history. (People v. Osband, supra, 13

Cal.4th at p. 709.) The prosecutor told the jury that the defendant‘s lack of felony

convictions ―is a mitigating factor that you should consider on the subject of

punishment‖ and ―that should work to the defendant‘s benefit in your analysis.‖

The prosecutor then argued that the factor was of little weight in this case, given

defendant‘s current crimes, but never suggested that defendant‘s prior criminal

history was not a mitigating factor: ―For what it‘s worth, at this point in time now

he‘s got four felony convictions after this trial, but for what it‘s worth, you give

him the benefit of the doubt on factor (c), and you may consider that as some

mitigation in this case.‖

Defendant next challenges the prosecutor‘s remarks that defendant was ―his

own Judge, jury, and executioner‖ and that Deputy Griffith received ―no due

process‖ and did not have the benefit of ―two lawyers comin‘ into this courtroom

with a Judge to make sure everything‘s right, give you appropriate instructions,

have a jury decide it.‖ Defendant contends that ―[t]his argument improperly

commented on [his] constitutional right to counsel, to a fair trial, and to be

present.‖ We disagree, since the argument ―did not urge the jury to return a death

verdict because defendant exercised his constitutional rights and did not suggest

that defendant should be given a greater penalty because he had a trial.‖ (People

v. Jackson (1989) 49 Cal.3d 1170, 1207; see also People v. Yeoman (2003) 31

Cal.4th 93, 144-145; accord, People v. Ward (Ill.App.Ct. 2007) 862 N.E.2d 1102,

1142 [―Courts have typically not found prosecutorial references to a defendant as

taking on the role of judge and jury to be erroneous‖].)

81

Finally, we reject defendant‘s claim that the prosecutor acted improperly in

excluding the evidence that defendant was remorseful and believed the death

penalty was appropriate (see part III.B., ante) and then arguing to the jury that

defendant had failed to take ―full responsibility‖ for his crime. A review of the

argument reveals that the prosecutor never contended that defendant was not

remorseful. Rather, the prosecutor sought to remind the jury that defendant had

never admitted the obvious fact that defendant knew at the time that the people he

was shooting at were peace officers: ―Ask yourself, does he really truly deserve

our sympathy? [¶] I mean, if he thought that he was going to be macho enough

and man enough to kill in cold blood, calculatedly to take another human being‘s

life, you know, to become the Judge, the jury and that executioner, then he ought

to be man enough to accept full responsibility and the penalty that the law says

that he ought to get. He ought to be man enough to do that. [¶] The trouble is he

wasn‘t and he isn‘t though. That‘s part of the trouble here because you remember

the evidence in the case? [¶] He knew they were gonna come and get him. He

knew he was gonna do his standoff with ‘em there. He was gonna kill ‘em all.‖

This was fair comment on defendant‘s refusal to admit ―full responsibility‖ for

what he did. Furthermore, the jury could not have been misled, since it did hear

evidence from defendant that he was remorseful and had wished he could trade

places with Deputy Griffith.

J. Constitutionality of the Death Penalty Statute

Defendant contends that various features of California's death penalty

statute violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution and parallel provisions of the state Constitution. We have repeatedly

rejected such claims in prior decisions, and defendant‘s argument offers no

grounds for reconsidering these holdings.

82

Thus, we reject defendant‘s claim that the use of the word ―extreme‖ in

section 190.3, factor (d) prevented jury consideration of relevant mitigating

evidence (People v. Stanley (2006) 39 Cal.4th 913, 963); that the instructions were

deficient in failing to identify which factors were aggravating and which were

mitigating (People v. Catlin (2001) 26 Cal.4th 81, 178) or that certain factors

could only be mitigating (People v. Morrison (2004) 34 Cal.4th 698, 730); that

factor (a) of section 190.3 is unconstitutionally vague and permits arbitrary and

capricious application of the death penalty (Tuilaepa v. California (1994) 512 U.S.

967, 987-988; accord, People v. Hinton, supra, 37 Cal.4th at p. 913); that factor

(b) of section 190.3 and the reliance on unadjudicated conduct render the death

penalty arbitrary and unreliable (Tuilaepa v. California, supra, 512 U.S. at pp.

976-977); accord, People v. Elliot (2005) 37 Cal.4th 453, 488); that the

instructions were deficient in failing to inform the jury that the mitigating

circumstances need not be found unanimously or demonstrated by any particular

standard of proof (People v. Rogers (2006) 39 Cal.4th 826, 897); that CALJIC No.

8.88 misstates the nature and scope of the jury‘s sentencing discretion (People v.

Friend (2009) 47 Cal.4th 1, 90; People v. Cornwell (2005) 37 Cal.4th 50, 103;

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 123); that the jury needed to

reach unanimous agreement on the aggravating circumstances (People v. Bolden

(2002) 29 Cal.4th 515, 566); and that the jury should have been instructed as to the

burden or standard of proof in selecting the penalty to be imposed (People v.

Stanley, supra, 39 Cal.4th at p. 964). ― ‗Nothing in Cunningham v. California

(2007) 549 U.S. 270, Apprendi v. New Jersey [(2000)] 530 U.S. 466, or Ring v.

Arizona [(2002)] 536 U.S. 584, affects our conclusions in these regards.‘ ‖

(People v. Curl (2009) 46 Cal.4th 339, 362.)

We also reject defendant‘s claim that the instructions were defective in

failing to create a presumption in favor of a life sentence (People v. Vieira (2005)

83

35 Cal.4th 264, 301); that the jury was required to make express findings as to the

presence of aggravating circumstances or the absence of mitigating circumstances

(People v. Bunyard (2009) 45 Cal.4th 836, 861); that section 190.3 is

unconstitutional for failing to require intercase proportionality review or disparate

sentence review (People v. Romero (2008) 44 Cal.4th 386, 429); that the death

penalty law deprives capital defendants of equal protection (People v. Hinton,

supra, 37 Cal.4th at p. 913); and that defendant‘s sentence violates international

law (People v. Boyer, supra, 38 Cal.4th at p. 489).

K. Asserted Error in CALJIC No. 8.85 and Failure to Give Clarifying

Instructions Proposed by the Defense

The jury was instructed in accordance with CALJIC No. 8.85, which

instructed the jury to consider, take account of, and be guided by, inter alia, ―the

circumstances of the crime of which the Defendant was convicted in the present

proceeding and the existence of any special circumstances found to be true.‖ This

language closely tracks factor (a) of section 190.3, and we have repeatedly upheld

it against the claim that it permits the jury to double-count the circumstances of the

crime that are also special circumstances (e.g., People v. Gutierrez, supra, 45

Cal.4th at p. 831), since the possibility the jury would believe it could weigh each

special circumstance twice on the penalty scale is ―remote.‖ (People v.

Monterroso (2004) 34 Cal.4th 743, 790.) The prosecutor‘s argument—which

tracked the language of the instruction and discussed the special circumstances

without ever suggesting the jury double-count them—does not change the

calculus. (Ibid.)

Defendant did ask for, and the trial court refused, this instruction clarifying

the jury‘s task: ―You must not consider as an aggravating factor the existence of

any special circumstance if you have already considered the facts of the special

circumstance as a circumstance of the crime for which the defendant has been

84

convicted. In other words, do not consider the same factors more than once in

determine [sic] the presence of aggravating factors.‖ (See People v. Monterroso,

supra, 34 Cal.4th at pp. 789-790.) Because the prosecution argument did not

transgress those parameters, though, the absence of the instruction could not have

misled the jury. (People v. Chatman (2006) 38 Cal.4th 344, 409.)

Finally, we find no error in the trial court‘s refusal to give defendant‘s other

proposed instruction, which read as follows: ―You may not treat the verdict and

finding of first degree murder committed under [a] special circumstance[s], in and

of themselves, as constituting an aggravating factor. For, under the law, first

degree murder committed with a special circumstance may be punished by either

death or life imprisonment without possibility of parole. [¶] Thus, the verdict and

finding which qualifies a particular crime for either of these punishments may not

be taken, in and of themselves, as justifying one penalty over the other. You may,

however, examine the evidence presented in the guilt and penalty phases of this

trial to determine how the underlying facts of the crime bear on aggravation or

mitigation.‖ As we recently explained, ―this instruction was unnecessary,‖ since

the instructions already given adequately conveyed to the jury that it was required

to consider the facts underlying the convictions and special circumstance findings,

not the mere existence of the convictions and findings. (People v. Farley (2009)

46 Cal.4th 1053, 1132; see also People v. Lenart (2004) 32 Cal.4th 1107, 1132.)

And the ―proposed instruction was misleading to the extent it contradicted

instructions directing the jury to consider the circumstances of the crime and the

existence of any special circumstance.‖ (Farley, supra, 46 Cal.4th at p. 1132; see

also Lenart, supra, 32 Cal.4th at p. 1133.)

85

L. Assertedly Improper Consideration of the Special Circumstance of

Murder to Avoid Arrest

Defendant also complains that the jury should not have been permitted to

rely on the existence of the special circumstance of murder to avoid arrest as an

aggravating factor in addition to the special circumstance of murder of a peace

officer in the line of duty. The premise for his argument is that the former

―overlapped with and duplicated‖ the latter. Because we rejected that premise in

part III.G., ante, it follows that this argument fails as well.

M. Cumulative Error

Defendant argues that the cumulative effect of the errors at his penalty trial

requires reversal of his sentence of death. We disagree. The few nonprejudicial

individual errors we have found are no more compelling when considered in

combination, and defendant does not explain how these errors would reinforce a

compelling theory of prejudice or undermine the prosecution‘s case against him.

Their cumulative effect does not warrant reversal of the judgment.


DISPOSITION

The judgment is affirmed.

BAXTER, J.

WE CONCUR:


GEORGE, C. J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


86

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Ervine
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S054372
Date Filed: December 7, 2009
__________________________________________________________________________________

Court:
Superior
County: Lassen
Judge: James T. Ford

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek State Public Defender, under appointment by the Supreme Court, and Douglas Ward,
Deputy State Public Defender, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Charles A. French, Patrick J. Whalen and Laura Wetzel Simpton,
Deputy Attorneys General, for Plaintiff and Respondent.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Douglas Ward
Deputy State Public Defender
221 Main Street, Suite 1000
San Francisco, CA 94105
(415) 904-5600

Laura Wetzel Simpton
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 322-3674


Automatic appeal from a judgment of death.

Opinion Information
Date:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 12/07/2009S054372Automatic Appealsubmitted/opinion due

ERVINE (DENNIS) ON H.C. (S162212)


Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
Laura Wetzel Simpton, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Ervine, Dennis Newton (Appellant)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Jeannie Sternberg, Staff Attorney
303 Second Street, Suite 400 South
San Francisco, CA

3Ervine, Dennis Newton (Appellant)
San Quentin State Prison
Represented by Office of the State Public Defender-Sf
Douglas Ward, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA


Dockets
May 31 1996Judgment of death
  Note: change of venue from Lassen County.
Jun 20 1996Filed certified copy of Judgment of Death Rendered
  5-31-96.
Jun 24 1996Application for Extension of Time filed
  By Court Reporter Susan Nelson to Complete R.T.
Jun 26 1996Extension of Time application Granted
  To Court Reporter To 7-10-96 To Complete R.T.
Jul 8 1996Application for Extension of Time filed
  By Court Reporter Evelyn Steiner to Complete R.T.
Jul 9 1996Extension of Time application Granted
  To Court Reporter To 7-30-96 To Complete R.T.
Aug 8 1996Application for Extension of Time filed
  By Court Reporter Evelyn Steiner to Complete R.T.
Aug 12 1996Extension of Time application Granted
  To Court Reporter To 8-19-96 To Complete R.T.
Jan 9 2001Order appointing State Public Defender filed
  appointing the State Public Defender to represent applt for the direct appeal.
Jan 9 2001Order filed appointing H.C. Resource Center
  to represent applt for habeas corpus/executive clemency proceedings related to the automatic appeal.
Mar 2 2001Received:
  notice from superior court that record was transmitted to appellant's counsel on 2-13-2001.
Mar 7 2001Counsel's status report received (confidential)
  from HCRC.
Mar 12 2001Counsel's status report received (confidential)
  from State P.D.
May 9 2001Counsel's status report received (confidential)
  from HCRC.
Jul 6 2001Counsel's status report received (confidential)
  from HCRC.
Jul 9 2001Counsel's status report received (confidential)
  from State P.D.
Jul 9 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (1st request)
Jul 16 2001Filed:
  Amended declaration of service of request for extension of time to request corr. of the record.
Jul 17 2001Extension of Time application Granted
  To 8/17/2001 to applt. to request corr. of the record.
Aug 20 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (2nd request)
Aug 23 2001Extension of Time application Granted
  To 10/16/2001 to request corr. of the record.
Sep 6 2001Counsel's status report received (confidential)
  from HCRC.
Sep 10 2001Counsel's status report received (confidential)
  from State P.D.
Oct 11 2001Application for Extension of Time filed
  by applt. to request corr. of the record. (3rd request)
Oct 17 2001Extension of Time application Granted
  To 12/17/2001 to applt. to request corr. of the record.
Nov 2 2001Counsel's status report received (confidential)
  from HCRC.
Nov 2 2001Counsel's status report received (confidential)
  from HCRC.
Nov 14 2001Counsel's status report received (confidential)
  from State P.D.
Dec 14 2001Request for extension of time filed
  by applt. to request corr. of the record. (4th request)
Dec 17 2001Counsel's status report received (confidential)
  from HCRC.
Dec 21 2001Extension of time granted
  To 2/15/2002 to applt. to request corr. of the record. Only two further extensions totaling 89 additional days are contemplated.
Jan 7 2002Counsel's status report received (confidential)
  from HCRC.
Jan 11 2002Counsel's status report received (confidential)
  from State P.D.
Feb 13 2002Request for extension of time filed
  By applt. to request correction of the record. (5th request)
Feb 20 2002Extension of time granted
  To 4/16/2002 to applt. to request correction of the record. Dep. State PD Ward anticipates filing the request by 5/15/2002. Only one further extension for 29 additional days is contemplated.
Mar 6 2002Counsel's status report received (confidential)
  from HCRC.
Mar 12 2002Counsel's status report received (confidential)
  from State P.D.
Apr 17 2002Request for extension of time filed
  By applt. to request correction of the record. (6th request)
Apr 22 2002Extension of time granted
  To 6/17/2002 to applt. to request correction of the record. Dep. State Public Defender Ward anticipates filing the request in the superior court by 6/15/2002. No further extension will be granted.
May 6 2002Counsel's status report received (confidential)
  from HCRC.
May 13 2002Counsel's status report received (confidential)
  from State P.D.
Jun 13 2002Request for extension of time filed
  to file applt's request for correction of the record. (7th request)
Jun 21 2002Extension of time granted
  to 7-1-2002 to request correction of the record. After that date, no further extension will be granted. The extension is granted based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing the request for correction of the record by 7-1-2002. Counsel for applt is ordered to serve a copy of the record correction motion on this court upon its filing in the superior court.
Jul 2 2002Counsel's status report received (confidential)
  from HCRC.
Jul 2 2002Received copy of appellant's record correction motion
  Motion to complete and correct the record. (49 pp.)
Jul 2 2002Received:
  Sealed and ex-parte motion to seal confidential items in the record.
Jul 12 2002Counsel's status report received (confidential)
  from State P.D.
Sep 9 2002Counsel's status report received (confidential)
  from HCRC.
Sep 12 2002Counsel's status report received (confidential)
  from State P.D.
Nov 7 2002Counsel's status report received (confidential)
  from HCRC.
Nov 12 2002Counsel's status report received (confidential)
  from State P.D.
Jan 8 2003Counsel's status report received (confidential)
  from HCRC.
Jan 13 2003Counsel's status report received (confidential)
  from State P.D.
Mar 11 2003Counsel's status report received (confidential)
  from State P.D.
Mar 11 2003Counsel's status report received (confidential)
  from HCRC.
May 8 2003Counsel's status report received (confidential)
  from HCRC.
May 13 2003Counsel's status report received (confidential)
  from State P.D.
Jul 8 2003Counsel's status report received (confidential)
  from HCRC.
Jul 16 2003Counsel's status report received (confidential)
  from State P.D.
Sep 9 2003Counsel's status report received (confidential)
  from HCRC.
Sep 15 2003Counsel's status report received (confidential)
  from State P.D.
Nov 10 2003Counsel's status report received (confidential)
  from HCRC.
Nov 19 2003Counsel's status report received (confidential)
  from State P.D.
Jan 14 2004Counsel's status report received (confidential)
  from State P.D.
Jan 14 2004Counsel's status report received (confidential)
  from HCRC.
Mar 9 2004Counsel's status report received (confidential)
  from HCRC.
Mar 18 2004Counsel's status report received (confidential)
  from State P.D.
May 7 2004Counsel's status report received (confidential)
  from HCRC.
May 19 2004Counsel's status report received (confidential)
  from State P.D.
Jul 9 2004Counsel's status report received (confidential)
  from HCRC.
Jul 20 2004Counsel's status report received (confidential)
  from State P.D.
Sep 10 2004Counsel's status report received (confidential)
  from HCRC.
Sep 21 2004Counsel's status report received (confidential)
  from State P.D.
Oct 18 2004Record on appeal filed
  Clerk's transcript 14 volumes (3,528 pages) and Report's transcript 16 volumes (2,869 pages), including material under seal; ASCII disks. Clerk's transcript includes 2,486 pp of juror questionnaires.
Oct 18 2004Appellant's opening brief letter sent, due:
  November 29, 2004
Nov 9 2004Counsel's status report received (confidential)
  from HCRC.
Nov 18 2004Counsel's status report received (confidential)
  from State P.D.
Nov 24 2004Request for extension of time filed
  to file appellant's opening brief. (1st request)
Dec 1 2004Extension of time granted
  to January 28, 2005 to file appellant's opening brief.
Jan 6 2005Counsel's status report received (confidential)
  from HCRC.
Jan 24 2005Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Jan 24 2005Counsel's status report received (confidential)
  from State P.D.
Jan 24 2005Extension of time granted
  to 3/29/2005 to file appellant's opening brief.
Mar 11 2005Counsel's status report received (confidential)
  from HCRC.
Mar 22 2005Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Mar 23 2005Extension of time granted
  to 5/31/2005 to file appellant's opening brief.
Mar 28 2005Counsel's status report received (confidential)
  from State P.D.
May 9 2005Counsel's status report received (confidential)
  from HCRC.
May 24 2005Counsel's status report received (confidential)
  from State P.D.
May 24 2005Request for extension of time filed
  to file appellant's opening brief. (4th request)
May 26 2005Extension of time granted
  to 8/1/2005 to file appellant's opening brief.
Jul 8 2005Counsel's status report received (confidential)
  from HCRC.
Jul 26 2005Request for extension of time filed
  to file appellant's opening brief. (5th request)
Jul 26 2005Counsel's status report received (confidential)
  from State P.D.
Aug 1 2005Extension of time granted
  to 10/3/2005 to file appellant's opening brief. After that date, only three further extensions totaling about 150 additonal days will be granted. Extension is granted based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing that brief by 3/1/2006.
Sep 9 2005Counsel's status report received (confidential)
  from HCRC.
Sep 26 2005Request for extension of time filed
  to file appellant's opening brief. (6th request)
Sep 26 2005Counsel's status report received (confidential)
  from State P.D.
Sep 29 2005Extension of time granted
  to 12/2/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing that brief by 3/1/2006.
Nov 9 2005Counsel's status report received (confidential)
  from HCRC.
Nov 28 2005Counsel's status report received (confidential)
  from State P.D.
Nov 28 2005Request for extension of time filed
  to file appellant's opening brief. (7th request)
Dec 2 2005Extension of time granted
  to 1/31/2006 to file the appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing that brief by 3/1/2006.
Jan 10 2006Counsel's status report received (confidential)
  from HCRC.
Jan 25 2006Request for extension of time filed
  to file appellant's opening brief. (8th request)
Jan 27 2006Extension of time granted
  to 4/3/2006 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing that brief by 5/1/2006.
Jan 30 2006Counsel's status report received (confidential)
  from State P.D.
Feb 27 2006Counsel's status report received (confidential)
  from State P.D.
Mar 8 2006Counsel's status report received (confidential)
  from HCRC.
Mar 27 2006Request for extension of time filed
  to file appellant's opening brief. (9th request)
Mar 27 2006Counsel's status report received (confidential)
  from State P.D.
Mar 30 2006Extension of time granted
  June 2, 2006 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing that brief by June 2, 2006. After that date, no further extension will be granted.
May 10 2006Counsel's status report received (confidential)
  from HCRC.
Jun 2 2006Appellant's opening brief filed
  (90,129 words; 274 pp.)
Jun 19 2006Request for extension of time filed
  to file respondent's brief. (1st request)
Jun 19 2006Extension of time granted
  to August 31, 2006 to file respondent's brief.
Jul 10 2006Counsel's status report received (confidential)
  from HCRC.
Aug 18 2006Request for extension of time filed
  to file respondent's brief. (2nd request)
Aug 24 2006Extension of time granted
  to October 30, 2006 to file respondent's brief.
Sep 11 2006Counsel's status report received (confidential)
  from HCRC.
Oct 16 2006Request for extension of time filed
  to file respondent's brief. (3rd request)
Oct 18 2006Extension of time granted
  to December 29, 2006 to file respondent's brief. After that date, only one further extensions totaling about 33 additional days is contemplated. Extension is granted based upon Deputy Attorney General Laura Wetzel Simpton's representation that she anticipates filing that brief by January 31, 2007.
Nov 13 2006Counsel's status report received (confidential)
  from HCRC.
Dec 6 2006Request for extension of time filed
  to file appellant's reply brief. (4th request)
Dec 12 2006Extension of time granted
  to February 27, 2007 to file respondent's brief. Extension is granted based upon Deputy Attorney General Laura Wetzel Simpton's representation that she anticipates filing that brief by February 27, 2007. After that date, no further extension is contemplated.
Feb 14 2007Respondent's brief filed
  (75,478 words; 254 pp.)
Feb 14 2007Note:
  appellant's reply brief due: March 6, 2007 (see Cal Rules of Court, rule 8.360(c)(3))
Feb 21 2007Filed:
  "Amended Declaration of Service" of respondent's brief.
Mar 7 2007Request for extension of time filed
  to file appellant's reply brief. (1st request)
Mar 8 2007Filed:
  "Second Amended Declaration of Service by U.S. Mail" of respondent's brief.
Mar 9 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief is extended to and including May 7, 2007.
Mar 9 2007Counsel's status report received (confidential)
  from HCRC.
May 1 2007Request for extension of time filed
  to file appellant's reply brief. (2nd request)
May 9 2007Counsel's status report received (confidential)
  from HCRC.
May 10 2007Extension of time granted
  to July 6, 2007 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing that brief by September 6, 2007.
Jun 29 2007Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jul 3 2007Extension of time granted
  to September 6, 2007 to file the appellant's reply brief. After that date, only one further extension totaling about 32 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing that brief by October 8, 2007.
Jul 9 2007Counsel's status report received (confidential)
  from HCRC.
Aug 28 2007Request for extension of time filed
  to file appellant's reply brief. (4th request)
Aug 29 2007Extension of time granted
  Good cause appearing, and based upon Deputy State Public Defender Douglas Ward's representation that he anticipates filing the appellant's reply brief by October 6, 2007, counsel's request for an extension of time in which to file that brief is granted to October 9, 2007. After that date, no further extension is contemplated.
Aug 31 2007Change of contact information filed for:
  HCRC.
Sep 14 2007Counsel's status report received (confidential)
  from HCRC.
Oct 9 2007Appellant's reply brief filed
  (39,074 words, 139 pp)
Oct 16 2007Filed letter from:
  respondent, requesting oral argument be heard in Sacramento.
Nov 13 2007Counsel's status report received (confidential)
  from HCRC.
Jan 9 2008Counsel's status report received (confidential)
  from HCRC.
Mar 10 2008Counsel's status report received (confidential)
  from HCRC.
Apr 1 2008Related habeas corpus petition filed (concurrent)
  No. S162212
Aug 20 2009Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the October calendar, to be held the week of October 5, 2009, in Los Angeles. 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.
Sep 10 2009Case ordered on calendar
  to be argued Tuesday, October 6, 2009, at 9:00 a.m., in Los Angeles
Sep 14 2009Received:
  appearance sheet from Deputy Attorney General Laura Wetzel Simpton, indicating 45 minutes for oral argument for respondent.
Sep 14 2009Filed:
  respondent's focus issues letter, dated September 14, 2009.
Sep 22 2009Filed:
  appellant's focus issues letter, dated September 21, 2009.
Sep 25 2009Filed:
  Declaration of Service of appellant's focus issue letter on appellant.
Oct 6 2009Cause argued and submitted
 
Oct 15 2009Filed:
  1st supplemental clerk's transcript on appeal; including material under seal, pursuant to trial court order of September 30, 2009. (3 vols; 417pp.)
Dec 4 2009Notice of forthcoming opinion posted
  To be filed Monday, December 7, 2009 @ 10 a.m.

Briefs
Jun 2 2006Appellant's opening brief filed
 
Feb 14 2007Respondent's brief filed
 
Oct 9 2007Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website