Supreme Court of California Justia
Citation 46 Cal. 4th 1053, 210 P.3d 361, 96 Cal. Rptr. 3d 191

People v. Farley

Filed 7/2/09 (reposted same date to correct participating concurring justices)



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S024833

v.

RICHARD WADE FARLEY,

Santa Clara County

Defendant and Appellant.

Super. Ct. No. 123146



A jury convicted defendant Richard Wade Farley of the first degree murders

of Joseph Silva, Wayne Williams, Glenda Moritz, Ronald Reed, Helen Lamparter,

Ronald Doney, and Lawrence Kane (Pen. Code,1 §§ 187, 189), the attempted

murders of Greg Scott, Richard Townsley, Randell Hemingway, William Drake,

and Karen Mackey (§§ 187, 664), assault with a firearm upon Laura Black (§ 245,

subd. (a)(2),), second degree burglary (§§ 459, former § 460, subd. (2), now § 460,

subd. (b)), and felony vandalism (former § 594, subd. (b)(1)). The jury found true

the special circumstance allegations that six of the murders were committed while

defendant was engaged in the commission or attempted commission of a burglary

(§ 190.2, subd. (a)(17)(vii), now § 190.2, subd. (a)(17)(G)), and that defendant

was convicted of at least one crime of first degree murder and one or more crimes

of first or second degree murder. (§ 190.2, subd. (a)(3)). The jury also found true


1

All further undesignated statutory references are to the Penal Code.

1


the allegations that all five counts of attempted murder were willful, deliberate,

and premeditated (§ 664, subd. (f)), the allegations pertaining to all counts of

murder and attempted murder that defendant personally used a firearm

(§§ 1203.06, 12022.5, subd. (a)), and the allegations regarding defendant‘s

personal infliction of great bodily injury on Scott, Townsley (§§ 12022.7,

1203.075), and Black (§ 12022.7). Following the penalty phase of the trial, the

jury returned a verdict of death. The trial court denied defendant‘s motion for a

new trial (§ 1181), and the automatic application for modification of the verdict

(§ 190.4, subd. (e)). The court entered a judgment of death and also imposed

sentence on the noncapital offenses. This appeal is automatic. (Cal. Const., art.

VI, § 11; § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.

I. FACTUAL BACKGROUND

A. Guilt phase evidence

1. Prosecution evidence

a. Summary

In 1984, while employed at Electromagnetic Systems Laboratory (ESL) in

Sunnyvale as a computer technician, defendant became obsessed with coemployee

Laura Black. His unwelcome pursuit of Black, and his belligerent and threatening

responses to ESL‘s attempts to stop his harassment of her, led to his termination

from ESL in 1986. He continued stalking and harassing Black, and threatened

violence against others. In 1988, Black obtained a temporary restraining order

(TRO) against defendant. During the approximately two-week period between the

issuance of the TRO and the date scheduled for a hearing regarding a permanent

injunction, defendant purchased a semiautomatic shotgun and large amounts of

ammunition, visited shooting ranges to practice, and put his affairs in order. On

February 16, 1988, the day before the scheduled court hearing, he went to the ESL

2

facility where he had worked, shot and killed seven people, and wounded four

others, including Black. At trial, defendant conceded responsibility for the seven

deaths, but claimed the shootings were not premeditated, and that defendant ―did

not go to ESL to injure people or to destroy anything.‖

b. Events prior to February 16, 1988

Laura Black testified concerning defendant‘s efforts to establish a personal

relationship with her. She recalled that they met in the spring of 1984. Soon

thereafter, defendant invited her to socialize with him, but she declined.

Defendant continued to extend social invitations to her without success, to call her

on the telephone, to leave her gifts, and to attend her aerobics classes and company

softball games. Black testified that she changed her residence three times between

July 1985 and February 1988, but defendant obtained her new address each time,

and surreptitiously obtained a key to one of these residences. Between the fall of

1984 and February 1988, she received approximately 150 to 200 letters from

defendant, including two letters he sent to her parents‘ home in Virginia where she

was visiting in December 1984. She had not provided him with her parents‘

address.

Various employees of ESL attempted to stop defendant‘s harassment of

Black, and defendant reacted either defiantly or by threatening to commit violent

acts. Jean Tuffley, who was employed in ESL‘s human resources department,

testified that she met with defendant in October 1985 regarding Black‘s

complaints of harassment. Defendant agreed at the meeting to cease sending

letters and gifts to Black, following Black home, and using her computer terminal,

but in December 1985 he again wrote to Black, threatening to visit her and her

roommate. Tuffley testified that she and defendant‘s supervisor, Charles

3

Lindauer, met with defendant in December 1985 and January 1986, and ESL

issued defendant a written warning after each meeting.

After the January 1986 meeting with Tuffley and Lindauer, defendant

confronted Black at her residence‘s parking lot. Black testified that defendant

mentioned guns, told her he no longer was going to ask Black what to do and said

he was going to tell her what to do. Black further testified that the weekend after

this encounter, she received a letter from defendant stating he would not kill her,

but referencing ―a whole range of options, each getting worse and worse.‖ The

letter warned, ―I do own guns and I‘m good with them,‖ and asked her not to

―push‖ him. It indicated that if neither of them yielded, ―pretty soon I crack under

the pressure and run amok destroying everything in my path until the police catch

me and kill me.‖ It also stated, ―You know I‘m serious when I show you a letter

like this.‖

In mid-February 1986, Tuffley testified, defendant stopped by her office and

told her that ESL had no right to control his relationships with other individuals.

Tuffley responded that sexual harassment is illegal, and that if defendant did not

leave Black alone, his conduct would lead to his termination. Tuffley testified that

defendant calmly said, ―if we terminated him . . . he‘d have nothing to live for, and

that he had guns and he wasn‘t afraid to use them, and . . . it would be over for him

and he‘d take people with him.‖ Tuffley asked, ―Rich, are you saying that you

would kill me?‖ Defendant said, ―Yes, but I would take others too.‖ Tuffley

spoke to her supervisor, John Allen about her meeting with defendant and her fear

of what he might do. Thereafter, Tuffley explained, she did not interact with

defendant; instead, Allen communicated directly with defendant.

In late February or March 1986, Evor Vattuone, an ESL laboratory manager,

met with defendant at defendant‘s request. Vattuone testified that defendant was

concerned about the possibility that Black would obtain a restraining order.

4

Vattuone told defendant he understood defendant had been bothering Black, and it

would be good if defendant stopped. Defendant told Vattuone he had every right

to see Black anywhere, and described following Black home, driving by her home,

and attending her softball games. Vattuone told defendant this conduct was

jeopardizing his job, and that Black was on ―the verge of getting a restraining

order.‖ Defendant said he would be very upset if he received a restraining order,

and did not know how he would respond. Vattuone testified that he asked

defendant what he meant, and defendant said, ―he had guns and he wasn‘t afraid to

use them.‖ Vattuone understood that defendant was telling him he was ready to

use guns, and he was going to get his own way ―no matter what.‖

In March or April of 1986, Lloyd Bass, defendant‘s supervisor at ESL, told

Dennis Elliott, defendant‘s former supervisor at ESL, that Bass had a problem

with defendant leaving his work area and ―chasing some girl.‖ Elliott testified that

Bass asked him to speak to defendant. A few days later, Elliott told defendant he

had learned that the human relations department was involved in a situation in

which defendant was ― ‗hassling‘ a girl over at [ESL building] M-5 during

working hours.‖ Elliott told defendant that ―it could cost him his job, it could cost

him his clearances . . . . He needed to be at his duty station and he should just do

his job.‖ Elliott testified that defendant was ―really angry‖ and claimed, ―I don‘t

care. They can‘t hurt me. I‘m not afraid of them.‖

On May 2, 1986, ESL terminated defendant‘s employment, effective

immediately. Following his termination, defendant continued to write and place

telephone calls to Black and to attend Black‘s softball games and aerobic classes,

and he frequently was seen in or near the ESL parking lot. At the end of the

summer or early fall of 1986, defendant began dating Mei Chang, but he continued

to harass Black. On July 10, 1987, he wrote to Black, warning her not to obtain a

restraining order. His letter stated, ―It might not really occur to you how far I‘m

5

willing to go to upset you if I decide that‘s what I‘m forced to do.‖ In early

October 1987, he wrote to Black, ―I‘ve nothing else to lose now but my life, so

don‘t try pushing me any further.‖

In November 1987, Thomas Burch, a longtime friend who had worked with

defendant at ESL, spoke with him. Burch testified that defendant was upset and

worried, but not depressed. Defendant told Burch that he owed the Internal

Revenue Service (IRS) between $25,000 and $30,000 and that the IRS was about

to attach his wages.2 He also said that if the IRS was not willing to ―give him

some slack, that he didn‘t have anything or he didn‘t have much to live for.‖

Defendant brought up the shooting massacre at a McDonald‘s restaurant in San

Ysidro, and said, ―I wonder what they would do or what they would think if I did

something like that.‖ Burch interpreted ―they‖ to mean ESL, and did not take

defendant seriously.

That same month, defendant wrote to Black, warning, ―This is going to

escalate,‖ because, he believed, she thought he was ―a joke.‖ He advised her not

to show his letters to anyone, because they might ―do something stupid which

would make me do something stupid and it would spiral beyond any hope of

recovery.‖ In December 1987, he asked in a letter to Black, ―[D]o you believe I

can make you pay attention to me?‖

That same month, the topic of ―shoot[ing] up‖ ESL was discussed during a

conversation defendant had at a delicatessen with Gerald Hirst and homicide

victim Lawrence Kane. Hirst believed he was being forced to resign from ESL,

and the three men discussed ESL‘s management practices. Hirst testified that

defendant inquired whether ―his girlfriend‖ Black was still at ESL and where her


2

In October 1987, defendant began working at Covalent Systems (Covalent).

6

office was located, and Kane provided him with directions. The conversation

returned to ESL‘s management, and Hirst said, ―What‘s it going to take to wake

them up, some madman to come in there to shoot the computers, shoot the place

up?‖ Hirst testified that as he left the table to get more coffee, he heard defendant

say, ―I might do it.‖ When Hirst returned, Kane asked him whether the glass in

the ESL Mardex security doors was bulletproof. Hirst said he did not think so.

Defendant said, ―Then double-aught buck would take care of that glass, wouldn‘t

it?‖ Hirst agreed. According to Hirst, the three of them ―fantasized and laughed

and joked, about how funny it might be to go in [to] the company and shoot up the

equipment.‖ Hirst was interested in investigating job opportunities at defendant‘s

current employer, and gave defendant directions to his office at ESL.3

In January 1988, ESL employee Robert Peterson confronted defendant, who

was parked outside of ESL, and asked him to stop harassing Black. Peterson

testified that he told defendant something to the effect, ―If you continue doing this,

you may have to go to jail.‖ Defendant responded that Peterson was ―only making

things worse.‖ On January 23, 1988, approximately three weeks before the

attacks, Black received a letter from defendant describing his encounter with

Peterson and instructing her, ―You‘d better tell him to mind his own business. . . .

[¶] He doesn‘t have any idea what he‘s getting into. You‘d better tell him, I‘d

better never see any police around me.‖

On February 2 or 3, 1988, Black obtained a TRO against defendant. The

hearing regarding a permanent injunction was scheduled for February 17, 1988,


3

Hirst left his employment at ESL on January 8, 1988. On February 16,

1988, the day the crimes were committed, his office was occupied by homicide
victim Wayne Williams, whose body was found inside the office. Williams shared
the office with homicide victim Kane.

7

the day after the crimes were committed. Black also sought $1,000 in attorney

fees. Black‘s attorney, Mary Bird, and Bird‘s receptionist and office manager,

Ruth Day, testified that on or about February 9, defendant delivered a letter to

Bird, claiming that, contrary to the declaration supporting the TRO, he had a

relationship with Black. He claimed to possess proof of this relationship, such as

photographs of Black and defendant on dates, a garage door opener to Black‘s

house, and hotel and credit card receipts. On February 10, 1988, Bird prepared a

notice in lieu of subpoena, requiring defendant to bring these items to court on

February 17.

In the meantime, defendant visited Bighorn Sporting Goods and asked Frank

Janik, the store manager, to see something with ―high-capacity fire power.‖ Janik

further testified that approximately one week later, on February 11, defendant

returned to the store and purchased a Benelli riot configuration semiautomatic

shotgun and ammunition. He paid by check, which later was returned for

insufficient funds. According to Janik, defendant was ―very calm‖ when he

purchased the weapon. The same day, according to David Walker of Target

Masters West, defendant rented a shooting lane at the shooting range, requested

six silhouette or ―man-shaped‖ targets, and purchased 13 boxes of shotgun and

pistol ammunition. Walker further testified that the next day, defendant purchased

1,000 rounds of .357 magnum handgun ammunition, one box of nine-millimeter

hollow-point handgun ammunition, and three boxes of .380 hollow-point handgun

ammunition.

Approximately one week before the commission of the crimes, defendant

spoke to Carolyn Gagnon, a secretary for Father Rewak, the president of Santa

Clara University, where Black was enrolled. Gagnon testified that defendant

provided his name, and insisted upon seeing Father Rewak. Gagnon told

defendant that Father Rewak was not in, and asked him whether he wished to

8

leave a message. Defendant declined, stating it did not matter anyway, because

Father Rewak was always going to remember his name. Gagnon testified that

defendant was cocky when he said this, and displayed a sarcastic smile.

Anthony Thurman of Homes Away From Home testified that on

February 12, four days before the commission of the crimes, defendant visited the

business and discussed renting a motor home. Defendant returned that afternoon

to fill out rental forms. Catherine Mary Evangelista, the personnel supervisor for

defendant‘s employer, Covalent, testified that, also on February 12, defendant

eliminated Black as a beneficiary of two life insurance policies, and made Mei

Chang the sole beneficiary. Defendant was adamant the change had to be

completed that day.

Chang testified that very shortly before defendant was arrested, she and

defendant rented a storage locker in Chang‘s name. Defendant and a friend,

Jerome Kaercher, moved some of defendant‘s belongings to a storage locker on

either February 14 or 15. Kaercher testified that defendant ―seemed extremely

happy.‖ That same weekend, defendant moved belongings from the home of Lora

Glaser, a former rental property that he had vacated in October 1987. Glaser

testified that defendant seemed ―upbeat, busy, productive, like he was getting

something done.‖

On February 15, defendant was seen by off-duty Santa Clara County Deputy

Sheriff Larry Imas at the Santa Clara County public shooting range, where Imas

was employed on a part-time basis. Imas testified that defendant asked to

purchase .22-250 ammunition, but there was none in stock. The same day,

defendant completed the paperwork for the motor home he had rented, and took

possession of it. Thurman testified that defendant did not behave out of the

ordinary on this last visit to Homes Away From Home. He also testified that

defendant‘s check for the rental subsequently was returned for insufficient funds.

9

San Jose State University Professor John Avila, Jr., testified that on the evening of

February 15, defendant told him that he was going to Southern California and

would not be in class on Wednesday, February 17.

c. Events on February 16, 1988

On Tuesday February 16, 1988, at approximately 8:00 a.m., defendant

entered the accounting department of Covalent and asked for his paycheck. Linda

Emerson, the accounting manager, testified she told defendant the checks would

be available at 10:00 a.m. When defendant was asked why he needed his check at

8:00 in the morning, he replied that ―he had to go buy a gun.‖ Early in the

afternoon, defendant visited the Santa Clara County public shooting range. Imas

testified that he mentioned to the range owner and the supplier that defendant had

been looking for .22-250 ammunition, and defendant showed them he had since

acquired several boxes of the ammunition.4

At about 2:50 p.m., defendant arrived in the Coachman motor home at ESL‘s

offices in Sunnyvale. He walked to ESL‘s two-story M-5 building with a shotgun

in his hands, rifles strapped over his body, and approximately four bandoliers of

ammunition strapped to his body. He shot and killed ESL employee Lawrence

Kane in the parking lot. He then fired at Randell Hemingway, who safely ducked

behind his car door. Defendant shattered glass in the Mardex security doors to

M-5 by firing one of his weapons. Inside the building, he shot and killed six

persons and wounded four others, including Black. The precise sequence of

events is unclear, but the evidence established that defendant generally walked

slowly and deliberately through the building, shooting his victims at various


4

According to Janik, on or shortly before February 16, defendant visited

Bighorn Sporting Goods for a third time and purchased more ammunition for a
shotgun and a rifle.

10

locations in the facility. In addition to committing these assaults, defendant fired

at computer equipment and parts of the building.5

The first report of the incident to a 911 operator was received at 2:53 p.m. At

approximately 3:15 p.m., a man identifying himself as Richard Farley placed a call

on an inside emergency telephone line. He told Robert Mancebo, an ESL security

hardware repairperson, ―I‘m the one who has been wasting all these people.‖

Mancebo testified that defendant also said he was calling ―to let us know why he

was doing it, and that he wanted a recorder‖ so there would be a permanent record.

Defendant said he was ―doing it . . . because of Laura Black and because of her

lawyer and what they were doing.‖ Mancebo asked if defendant was going to kill

anyone else, and he said no, he was ―just shooting up equipment.‖ Defendant

terminated the call, but placed a second call on ESL‘s emergency telephone line a

few minutes later. He wanted to talk to the police, but no officers were in the

security room at that time. Mancebo and defendant had one or two more separate

telephone conversations. During the last call, Mancebo could think of nothing else

to say, so he handed the telephone to ESL security officer Devin Matlock.

Defendant told Matlock that he had told Black he would do something like this if

her attorney obtained a restraining order. Defendant also said he had a high-

powered rifle, and that Matlock should keep people 300 yards from the building.

Matlock testified defendant did not sound depressed or agitated, but seemed as if

he was anticipating that something interesting would be happening.

At approximately 3:20 p.m., facilities engineering manager John Kitching

received a call on an ESL emergency telephone line from a man who identified


5

ESL was paid $1,600,000 on its insurance claim, which included, among

various items, equipment damage of $336,790, physical plant damage of $68,355,
and associated internal costs to ESL of $40,929.

11

himself as ―Rich.‖ The caller said, ―Tell Mei Chang I‘m sorry. I just got Laura.‖

He also said, ―I‘ve got plenty of ammunition. It will all be over at 5 o‘clock.‖

At approximately 3:30 p.m., Captain Albert Scott of the Sunnyvale

Department of Public Safety spoke to defendant. Defendant seemed to him to be a

―little bit excited.‖ When Scott asked defendant whether he had killed anyone,

defendant said he had shot three or four individuals on the top floor but did not

know how many were dead. Defendant also said that Black had gone too far and

that he had ―done this‖ to make a point. He said she had belittled him, and he was

getting even. At one point, Scott asked whether defendant would surrender his

guns and come down, and defendant said, ―No, I‘m not ready yet. I want to gloat

a little bit.‖

At approximately 3:35 p.m., a caller who identified himself as ―Rich‖ told

ESL telephone installer Robert Costanzo, who was assisting in answering the

telephones, that he had an assault rifle, a shotgun, and some handguns, and enough

ammunition — if he fired continuously — to last for two hours. According to

Costanzo, the caller was very clear and calm.

During one of defendant‘s telephone conversations on the afternoon of

February 16, Linda Walden, defendant‘s longtime friend and former landlady,

who also worked at ESL, was hiding under the desk at which defendant was

standing. Defendant pulled out the chair, and said, ―Oh, there‘s someone here.

You can come out now. Oh, it‘s Linda.‖ When she emerged, he calmly told her

she could leave. Christine Hansen, who was hiding nearby, assumed it was the

police evacuating the building. She left her hiding place and encountered

defendant. She asked, ―Can I go, too?‖ Defendant said, ―Yes, you can go.‖

Hansen testified that defendant‘s tone was ―regular,‖ and he was not angry or

crying.

12

Lieutenant Ruben Grijalva of the Sunnyvale Department of Public Safety, an

expert in hostage negotiations, negotiated by telephone with defendant from

approximately 3:30 p.m. until he agreed to surrender at approximately 8:30 p.m.

Defendant terminated the telephone communication with Grijalva several times to

prevent the police from tracing the call. The initial portion of the negotiations was

not recorded, but Grijalva took notes. According to Grijalva, in the initial

conversations defendant was ―quite excited,‖ but his voice was not incoherent or

slurred. After approximately 30 to 45 minutes, ―his demeanor was much more

calm, much more deliberate . . . .‖

Defendant asked Grijalva to tell Black that her attorney and Bob Peterson

had given her bad advice, and that ―he was sorry that they weren‘t there, too.‖

Defendant told Grijalva that he was due to appear in court the next day, that Black

had filed a lawsuit against him, and that all he wanted to do was date her.

According to defendant, ―Had she gone out with him one time, none of this would

have happened.‖ He said he had gone to the second floor and shot Black, and he

wanted her to live and to remember what had occurred. He said ―he knew what he

had done was wrong and that he had to die because of it.‖ He constantly spoke of

killing himself, or having the police kill him, but expressed fear the police only

would wound him, and ―he didn‘t want to suffer.‖

Grijalva testified defendant ―indicated that he was real good with guns‖ and

―had several pistols and a high powered rifle and a shotgun with him.‖ When

defendant mentioned target shooting, Grijalva inquired whether he was interested

in hunting. Defendant replied, ―I‘d rather kill people than animals. It‘s not

sporting to shoot animals.‖ When Grijalva asked how many individuals had been

shot, defendant said there were ―three or four lying around the first floor and that

everybody on the second floor was dead.‖ Defendant said he was ―not crazy and

that he knew what he had done but he had to do it, he had to make a point.‖ He

13

told Grijalva that he almost changed his mind when he arrived at the parking lot,

but that ―it had to be done and he didn‘t want Laura Black to think that he was a

wimp.‖ He told Grijalva he had thought about doing this when he first received a

notice to appear in court.

Defendant asked Grijalva to tell his mother and father he was sorry. He

stated he was not sorry he had shot these victims; the only thing he was sorry

about was shooting Black, because he wanted her to live and remember what had

happened. He also was sorry that ―Chuck‖ (Lindauer), who had terminated

defendant‘s employment, was not there.

Defendant told Grijalva that he did not plan to leave ESL alive, and had

changed the beneficiary on his life insurance from Black to Mei Chang.

Defendant said he had rented the motor home with a bad check and ―thought that

was kind of funny.‖ He also told Grijalva that he had brought approximately

1,000 rounds of ammunition and gasoline in the motor home ―to blow up ESL,‖

but that when he arrived, he could not carry everything.

At approximately 4:30 p.m., defendant agreed to allow officers to enter the

first floor of building M-5 to rescue injured individuals. At some point thereafter,

Grijalva‘s negotiating team obtained a tape recorder and recorded the remainder of

the negotiations until defendant surrendered. This recording was played for the

jury. Defendant declared, ―[T]here‘s no more reason to harm anybody. I‘ve run

out of enthusiasm for things really.‖ Defendant stated that he ―shot up a lot of

terminals; I guess it‘s better than shooting people, . . . ‘cause it punishes ESL at

the same time. . . . I need to get back at somebody, basically.‖

Defendant said that he told Peterson ―he would just cause a lot of trouble . . .

and cause Laura to do things . . . she would regret; and this kind of stuff ‘cause I

tried telling her that, you know, I wouldn‘t take this. She got me fired and, . . . I

wasn‘t going to let her do anything more to me, really.‖ Defendant told Grijalva,

14

―I never really wanted to hurt her. I just wanted her to know that I was serious

and, as I say, if we just could‘ve talked, and we hadn‘t got this court thing and she

didn‘t try to sue me for $1,000 — and then this last letter, you know, that says

bring all this stuff: it was just the final straw; I just had it.‖

Grijalva inquired, ―So when you got up today, did you decide today that you

wanted to hurt her?‖ Defendant responded, ―I didn‘t decide that I wanted to hurt

her until I got that letter in the mail that said, you know, now you‘re going to bring

this evidence and now we‘re really going to, you know — I took it as a real threat,

where I was [in] real serious trouble now. So until 10 o‘clock this . . . morning

time, I really hadn‘t given any thought to hurting her.‖

Grijalva asked, ―When you came down here this afternoon, . . . did you have

anybody in mind that you wanted to shoot or just because they were a threat to

you?‖ Defendant said, ―They were a threat to me; I wanted to destroy a lot of

equipment at ESL. . . . I came down to destroy, do as much damage to ESL

equipment as I could.‖ Grijalva asked, ―And you didn‘t intend or plan on shooting

any persons?‖ Defendant said, ―Yeah, some people popped out from around

corners and stuff like that, um, and I just shot.‖ Grijalva continued, ―Was there

anything in particular that you wanted to destroy here at ESL?‖ Defendant

responded, ―No, I just want Laura to know I was serious. . . . I wanted to do as

much damage to their computer equipment and just cause them a lot of money

loss.‖ He later noted, ―I‘m tired of shooting equipment and I‘m tired of shooting

terminals. They just explode, spread glass on me. It‘s not any fun anymore.‖

Grijalva asked defendant about the victims, inquiring, ―Other than Laura, do

you know any of the people you shot today?‖ Defendant responded, ―No.‖

Grijalva asked, ―So you don‘t even know them personally?‖ Defendant

confirmed, ―I don‘t know them personally, no. In fact, I have no idea who half of

them were. . . . [¶] . . . [¶] I have to tell you, though, that if I‘d recognized

15

Peterson, I think I would have shot him, realistically. Because I was pissed at him.

I mean, him and [Black‘s attorney], . . . if they had come into my sights, I would

have got them.‖ Defendant described how he ―went up to Laura‘s office, yeah,

and then she tried to shove the door thing, so I fired around . . . through the door.

And then . . . she fell against it.‖

Defendant asked whether Black had survived. When Grijalva said he did not

know, defendant responded, ―I hope she‘s doing good. . . . [I]f the slug did catch

her, or the whatever it was that I hit her with, she can‘t regret it if she doesn‘t live.

And that was . . . my feelings at the time.‖ During his conversations with Grijalva,

defendant never expressed any remorse for the seven individuals killed.

At approximately 8:30 p.m., defendant surrendered to the police after

requesting and receiving the promise of a sandwich and a soft drink. Toxicology

analysis of his blood did not show the presence of either alcohol or drugs.

Inside M-5, the police discovered a Benelli riot configuration semiautomatic

shotgun, a rifle with a scope, a pump-action shotgun, a Sentinel revolver, a Smith

& Wesson .357 magnum revolver, a Browning semiautomatic pistol, a Smith &

Wesson pistol, a smoke bomb, a leather glove, a belt with pouches filled with

ammunition, other bags containing more than 200 rounds of ammunition, and a

vest containing more than 800 rounds of ammunition, wooden matches, a foot-

long buck knife and sheath, and ear protectors. A search of the motor home found

in the ESL parking lot disclosed four gallons of gasoline, a loaded semiautomatic

pistol, and more than 2,000 rounds of ammunition. A search of defendant‘s

residence revealed a Mossberg 12-gauge shotgun barrel, a Ruger .22-caliber

carbine, a gun clip, a gas mask, ammunition and empty boxes of ammunition, a

reloading press, three cans of gunpowder, and gun-cleaning equipment. Various

documents — including the TRO, the notice in lieu of subpoena, and the motor

16

home rental agreement, were on the dining room table. Defendant‘s will was in

plain view on top of a computer terminal.

On February 23, 1988, defendant said to another prisoner, ―I think they

should be lenient since it‘s my first offense.‖ After the other prisoner made a

comment, defendant replied, ―If I did it again, then they should throw the book at

me.‖ The tone was conversational, and not joking or agitated.

In March 1988, defendant wrote to Black, ―When I go to the gas chamber,

I‘ll smile for the cameras and you‘ll know that you‘ll have won in the end.‖ In

April 1988, he wrote to Chrysler Credit Corporation, ―I‘m in jail and will no

longer be able to make payments. [¶] I would like the previous bank to know, its

harassing letters and failure to allow me to purchase the car were contributing

factors to the death of seven innocent people.‖ It was signed, ―Rich Farley [¶]

mass murderer.‖

On March 11, 1989, defendant wrote to his friend Tom Burch, ―I‘m glad

Laura‘s ok. . . . I hope she understands if I‘d really wanted to hurt her – she

wouldn‘t be here today.‖

2. Defense Evidence

a. Defendant’s testimony

Defendant was born on July 25, 1948 at Lackland Air Force Base in Texas.

His father was an aircraft mechanic in the Air Force, and his mother was a

homemaker. The family moved frequently before settling in Petaluma when he

was seven or eight years of age. He graduated from high school and attended one

year of junior college. He then enlisted in the Navy in 1967, and served for 10

years. He worked in cryptologic technician maintenance, which involved working

with classified electronic systems, and traveled extensively.

17

In October 1977, upon his discharge from the Navy, he began working for

ESL. Initially he was employed at the Sunnyvale facility, and then worked as a

field service engineer for five years in Australia. He returned to the Sunnyvale

facility in 1984. In the middle of July 1984, defendant met Laura Black and ―fell

instantly in love with her.‖ Approximately one month later, Black agreed to go to

lunch with defendant and his friend Burch. That lunch was defendant‘s and

Black‘s sole social outing.

Defendant described the steps he took to surreptitiously learn Black‘s

birthday, home address, academic background, residence address, the addresses of

her relatives, and her schedule, and how he obtained copies of her office, desk, and

residence keys. At the time defendant was obtaining information about Black, he

did not believe his actions were wrong. He explained that the environments in

which he had worked fostered an attitude that gathering information was not

wrong. In the Navy and at ESL, he was granted security clearances, and his access

to information gave him a feeling of power. His work in the Navy and in

Australia involved spying, and he saw no difference between the government‘s

authority to spy and his ability to spy, so ―long as . . . I didn‘t harm anybody.‖ He

developed a sense that, with secret information, ―I can, in essence, get away with

things that normal people wouldn‘t be able to get away with. . . . In other words,

we go into like a[n] elite society.‖

Defendant testified concerning his attempts to socialize with Black, and her

rejection of him. He testified he made his letters more threatening so that Black

would speak to him, but ―[a]s I read the letters now, they seem much more

intimidating and much more threatening than what I really intended them to be at

the time that I wrote them.‖

Defendant contradicted the testimony of many other witnesses. He denied

telling human resources employee Jean Tuffley that if he was terminated he would

18

have nothing to live for, that he had guns and knew how to use them, or that he

would take people with him. He claimed he did not threaten Tuffley and others.

He asserted he did not tell laboratory manager Evor Vattuone that he had guns and

was not afraid to use them. According to defendant, he and Vattuone had spoken

about defendant‘s losing his job, not about restraining orders. He denied that he

and Dennis Elliott discussed Laura Black, and denied that Elliott told him that he

could lose his job and his clearances. He asserted he was not angry when ESL

terminated him, did not know Gerald Hirst, and did not make a reference to the

San Ysidro McDonald‘s massacre when speaking with Tom Burch. He also

claimed he was not angry when he received the TRO, although he was annoyed by

the request for $1,000 and by the term in the restraining order prohibiting him

from going to the fitness center to which Black and defendant belonged. He

denied speaking to Carolyn Gagnon or attempting to see the president of Santa

Clara University. He also asserted he did not attempt to get his paycheck early on

February 16 and did not tell Linda Emerson, the accounting manager, that he

needed his check so he could buy a gun.

Defendant also testified concerning some of his activities in the days

preceding the commission of the crimes. He sold his Suburban truck on Thursday

February 11, placing a sale advertisement the Monday or Tuesday prior to that

date. He claimed he did not visit Big Horn Sporting Good Store until February 11

and went there to look at paintball shooters.6 He purchased the Benelli shotgun

because ―it happened to be there‖ and because he liked and wanted it. He

explained that he moved two guns from a former residence the weekend before


6

Mei Chang testified that she accompanied defendant to a paintball event

about January 1988, and that he expressed interest in participating.

19

committing the crimes, because he wanted to display his gun collection to Black.

He stated he bought the ammunition vest a day or so before committing the

crimes.

Defendant testified he went to ESL on February 16 to convince Black not to

proceed with her legal action against him. He stated he also planned to intimidate

Black into entering the motor home and to take photographs of her to demonstrate

at the court hearing that he and Black had a personal relationship. He also wanted

to show his sizeable gun collection to Black in order to convince her not to appear

in court the next day. Defendant agreed with the prosecutor that he wanted Black

to believe he would kill persons at ESL if she went through with obtaining the

restraining order. Defendant added, however, that his planned demonstration was

―just all bluff.‖ He claimed that if none of his plans worked, he planned to kill

himself in front of Black.

Defendant testified that after he arrived at ESL, he loaded ammunition in an

ammunition vest ―to keep myself busy.‖ He stated that he put holstered guns, clip

boxes, ammunition pouches, and a knife on his belt because he was bored.

Consequently, he testified, he was wearing his ―.380 in front, the ammo pouch in

front, .357 magnum to my right side, the .22 magnum behind it, a large buck knife

behind that, numerous clips around the other side, and my vest, my nine

millimeter, my two shotguns, and I tied a cord around the .22-250 and just draped

it over me.‖ He recalled that he then put on his left leather glove and earplugs. At

this point he did not believe he could go through with talking to Black or taking

photographs of her, because that was ―not the kind of behavior that I had ever

done before,‖ and he agreed with the prosecutor that ―it was tougher to take the

pictures than to kill myself.‖ He testified that he decided instead to go to Black‘s

office and commit suicide in front of her. He claimed that, other than shooting the

20

front door to gain entrance to ESL‘s facility, he did not intend to do any damage to

ESL or to shoot anyone but himself.

Defendant had a vague recollection of the ensuing events. He recalled that in

the parking lot, he saw ―somebody behind me with his arm raised, and I remember

the gun going off once or twice.‖ He remembered shooting through the Mardex

doors. He testified that someone rushed by him and then turned around to come

back at him, and he recalled firing repeatedly and the person disappearing. He

next remembered being on the landing and becoming aware of someone at the

bottom of the stairs. Defendant recalled shooting, adding: ―The only thing I‘m

thinking is to get to Laura‘s office. These people pop up and I just shoot.‖

Defendant next remembered being at Black‘s office. He recalled that her

back was to him, and she turned around smiling, but the smile disappeared ―as

soon as she saw me.‖ Defendant testified he was stunned by the smile, and as he

looked at the smile, the gun went off. He ―distinctly remember[ed] not having any

idea how the thing went off.‖ He testified that the door closed in his face.

Defendant‘s recall of the ensuing events was fragmented and lacked

chronological order. He testified that at some point he watched an armed person

walking down the hallway, who apparently was himself. He remembered shooting

a door lock, but was not aware of anyone being behind the door. He remembered

seeing Linda Walden, his former landlady. He testified that he told her to come

out from under the desk, and that she asked whether there was something she

could do for him. He told her ―no, to get out,‖ which she did. He recalled that

another woman asked whether she also could go, and ―I told her she could.‖ He

testified that he felt he had to move from telephone to telephone because he did

not want his calls traced to his location.

Defendant testified he did not know any of the victims except Black. He did

not remember shooting any equipment, but did remember seeing that the

21

equipment was damaged. There was, however, no doubt in his mind at trial that

he shot the individuals killed on February 16, 1988, and damaged the equipment.

Defendant did not recall many of the unrecorded statements he made while

he was inside the M-5 building. With respect to his recorded statement, defendant

testified that he repeatedly lied to Grijalva regarding why he went to ESL, in order

to avoid being placed in a mental institution. He expressed confusion concerning

why he made some incriminating remarks during the recorded statement and gave

benign explanations for others. He testified he was not angry at ESL and never

wanted to hurt Black.

b. Expert testimony

Dr. Charles Raymond Marmar, a psychiatrist and associate professor at the

University of California at San Francisco Medical Center, testified for the defense

as an expert on the role of stress in dissociative disorders. He did not examine or

test defendant, and expressed no opinion regarding defendant‘s mental state.

Marmar testified that ―peritraumatic trans disassociation‖ refers to disassociation

occurring at the time a stressful or traumatic event is taking place. He explained

that such dissociative experiences have some or all of the following features:

(1) blanking out, or feeling unconnected with the experience, (2) going on ―auto-

pilot,‖ rather than performing ―consciously decided willful acts;‖ (3) experiencing

an altered sense of the passage of time; (4) depersonalizing the experience so that

it appears to be happening to someone else; (5) feeling outside one‘s own body

and watching oneself from the outside; (6) perceiving a visual change in one‘s

own body or the physical world; (7) experiencing confusion about what is

happening to other individuals and to oneself, for example thinking when a family

member is injured that oneself is the person injured; (8) experiencing

psychological amnesia, or not remembering all or parts of the experience; and

22

(9) not feeling physical pain from an injury at the time of the trauma. According

to Marmar, ―[T]he single most important factor that leads people to disassociation

is a highly stressful or traumatic life experience.‖ He explained that ―the person is

faced with catastrophic consequences to themselves and others at the time of the

event and . . . [the person‘s] mind cannot comprehend and fully accept what‘s

happening to them.‖ He testified that a decision to kill oneself can result in such

disassociation. He further testified that although struggling with a combination of

chronic financial, emotional, and legal stresses generally would not result in

disassociation, such struggles might ―weaken the person and leave them

vulnerable to disassociation.‖ According to Marmar, a person in a dissociative

state may not appear bizarre or psychotic, but may seem merely spaced out, a little

confused, or highly preoccupied. Marmar explained that the veracity of a person‘s

reported experience of disassociation may be evaluated through interviews with

family and friends, as well as through various tests.

3. Rebuttal Evidence

Mark McGinnis testified that on February 11, 1988, he purchased a 1984

Suburban diesel truck from defendant. According to McGinnis, the asking price

of $5,000 was ―about twenty-five percent of its value.‖ McGinnis looked at the

truck, which needed the transmission repaired, and purchased it for $4,500.

McGinnis testified that defendant was nervous and fidgety. McGinnis drove the

truck for more than two years in conjunction with his business, and then sold it for

$9,000.

Richard Newbold testified that he worked with Jean Tuffley for at least five

or six years. At some point in the one to three months before Newbold left ESL in

mid-April 1986, Tuffley told Newbold that defendant had threatened to kill her.

23

Newbold described Tuffley as ―very distraught.‖ According to Newbold, Tuffley

was ―a pretty level-headed person,‖ and he had not seen her like that previously.

Peri Vattuone was married to Evor Vattuone. She testified that at some point

in early 1986, Evor came home from work upset. He said he had just had a long

conversation with defendant, who had said things that scared him. Peri testified

that one such statement was that defendant possessed guns and knew how to use

them, or something to that effect.

B. Penalty Phase

1. Prosecution evidence

The prosecution did not present any additional evidence.

2. Defense evidence

a. From relatives and friends

Mina Belle Farley, defendant‘s mother, testified that she married defendant‘s

father in 1947, and they remained married at the time of trial. Defendant‘s father

was an airplane mechanic in the Air Force. They had six children, of whom

defendant was the eldest. The family moved frequently, but when defendant was

about seven years of age, they settled in Petaluma. His mother described him as a

very quiet boy who required little attention from his parents. In high school he

was quiet, and did not smoke, drink, or use drugs. His mother testified that he

spent much of his time studying, and also played table tennis and chess, enjoyed

photography, and baked. His high school grades were ―very good,‖ and he

graduated 61st out of 520 high school students.

Mina Farley testified that defendant‘s father spent long periods of time away

from the family while he was in the Air Force, but when he was home, he would

spend time with the children. She stated that he retired from the Air Force in

1960, and then worked as a school custodian, spending little time with defendant

24

because of his work schedule. According to her, there was much love in the

house, but the family displayed little outward affection.

Mina Farley testified that she did not see defendant often after he joined the

Navy. In 1973, she and her husband moved to Texas, where they resided at the

time of trial. She recalled that defendant visited them in Texas twice between

1973 and 1988, and that the most recent occasion on which she had seen defendant

prior to February 16, 1988, was in 1986 or 1987, while she was visiting her

daughter.

Defendant‘s mother also recalled that when defendant was 10 years of age,

he helped care for his younger siblings while she was in the hospital and his father

was stationed in Japan. She testified that defendant did not have a bad temper, nor

did she ever see him act violently toward his siblings. She stated she was shocked

when she heard about the ESL shootings, ―[b]ecause that wasn‘t Rick.‖ She

testified she loved him and was proud of the fact that he tried to obtain an

education, did not ―run around,‖ and did not smoke, consume alcohol, or use

illegal drugs.

Gregory Farley, defendant‘s brother, testified that defendant was nonviolent

while growing up. He recalled that when defendant was about 10 years of age,

and Gregory was six years of age, Gregory, who could not swim, fell into a

swimming pool and defendant rescued him. He also recalled that defendant

helped him learn to drive, and sold him a vehicle at a very low price. Defendant‘s

brother described defendant as someone from whom he could seek advice,

although he could not recall any specific occasion on which he had done so.

Defendant‘s brother had resided in Germany since 1972, and at the time defendant

was arrested he had not seen defendant in 16 years. The brother also stated they

never wrote to each other or spoke by telephone. He agreed that he ―probably‖ did

25

not know defendant at all as an adult, and that the person he knew as a child was

―totally different‖ from a person who would commit these crimes.

Lois Eaquinto resided on the same street in Petaluma as defendant when he

was growing up, and was close to his mother. She testified that defendant‘s home

was well-kept. She stated that defendant‘s brothers, but not defendant, joined her

boys in attending church services. She also stated that defendant‘s father was

absent in the military much of the time, and she could not recall ever having had a

conversation with him. According to Eaquinto, when defendant‘s father was

home ―everything revolved around him,‖ and defendant and his brothers did not

play with Eaquinto‘s boys during those periods. Eaquinto witnessed little

interaction between defendant and his parents, and little reaction by the parents to

their children‘s accomplishments. She also testified that defendant sometimes was

―real rough‖ with his brothers, sitting on them and twisting their arms and stepping

on their fingers.

Lois‘s son, Francis Eaquinto, was the same age as defendant, and they played

and attended school together. Francis testified that defendant was the smarter of

the two, was more interested in math and science, and was conscientious about his

schoolwork. He recalled that defendant‘s father was strict, but Francis felt

welcome at defendant‘s house when the father was home. Francis had not seen

defendant since graduating from high school.

George Duisman grew up on the same street as defendant, and was

defendant‘s best friend when they were teenagers. He testified they played table

tennis, chess, and bridge, and enjoyed chemistry and math. According to

Duisman, defendant did well in school and was not violent.

Thomas Vail met defendant when defendant was a teenager. Vail testified

that defendant was well-mannered and had a curious mind. He stated that

defendant and Duisman studied bridge, and that defendant was not violent.

26

Dianne Mahan had at least one class with defendant in high school. She

testified that they were not friends socially, and that defendant was quiet and

studious.

In defendant‘s senior year of high school, Paula Stonitsch taught his class in

American Institutions. Stonitsch testified that although he received a ―C‖ in her

class, he was a very good student.

b. Defendant’s service in the Navy

Joseph Armas, an expert in the interpretation of military service records and

performance evaluations, testified regarding defendant‘s military record.

According to Armas, several tests were administered to defendant during his first

three weeks in the Navy. He performed well on the General Classification Test

and on tests for mechanical abilities, ―electric selection,‖ clerical abilities,

arithmetic, sonar, and programming aptitude, but did not do well on the foreign

language aptitude test. Defendant volunteered for submarine duty, and after

taking extensive psychological and agility tests, was recommended for that duty.

He graduated first in his class of six at Naval Submarine School, but did not

remain in the submarine program, apparently withdrawing voluntarily. Defendant

received high evaluations during his two enlistment periods (1968 to 1971 and

1971 to 1977) and was honorably discharged at the conclusion of each enlistment

period.

Kent Wells, a Navy personnel security specialist, testified concerning

defendant‘s work in the military and at ESL. After finishing basic training,

defendant was trained to be a ―cryptologic technician‖ — a person who maintains

electronic equipment. Wells testified that there were three levels of security

clearance, the lowest being ―confidential,‖ the middle being ―secret,‖ and the

highest being ―top-secret.‖ Because the Navy‘s cryptologic function was a highly

27

classified mission, the Office of Naval Intelligence investigated all cryptologic

technicians to determine whether they could be granted not only top-secret

clearance, but also access to very sensitive ―compartmented‖ information that

others with top-secret clearance could access on only a ―need to know‖ basis. The

security clearances received by defendant could be granted only to individuals

who were found to be trustworthy, reliable, of unquestioned character, and loyal to

the government of the United States. The investigation was repeated every five

years to check for intervening disqualifying information. Defendant was granted

top-secret clearance and access to sensitive compartmented information in

November 1968, and throughout his naval career he performed work that required

top-security clearances.

Wells further testified that at the time defendant served in the Naval Security

Group, the Group‘s national defense mission was to collect certain intelligence

information about adversaries and to disseminate that information to the military

and to various intelligence agencies. Defendant contributed to the security of the

United States by maintaining the Naval Security Group‘s equipment, thereby

enabling the gathering of information. Wells agreed with defense counsel that, in

this context, defendant was ―vital to the national defense,‖ testifying that much of

defendant‘s work still was classified at the time of trial. Defendant also

maintained equipment that assisted in search and rescue missions for aircraft or

ships in distress, and thereby helped to save lives as well as ships and aircraft.

c. Defendant’s work at ESL

Defendant began working at ESL in approximately November 1977, and

received a top-secret security clearance from the Department of Defense in March

1978. No background investigation was performed, because defendant had left the

28

Navy so recently, and no subsequent investigation occurred because of funding

shortages.

Richard Rose, a Department of Defense contracting officer, testified

regarding defendant‘s work at ESL. ESL specialized in building direction-finding

equipment and signal-processing systems for the United States government.

Defendant worked in three areas — testing, repair, and preventative and corrective

maintenance. From November 1977 through June 1979, defendant was involved

in a project concerning the research and development of direction-finding

equipment and its installation on ground vehicles and aircraft. The equipment

enabled a military commander to determine the location of enemy communication

or radar transmitters, and thereby learn the location and strength of enemy forces.

From June 1979 through June 1984, defendant was assigned to the Joint

Defense Space Research Facility in Australia. Rose testified that this facility,

which was shared by the United States and Australian governments, provided

―valuable contributions to the verification of arms control and disarmament

agreements.‖ Defendant and others provided round-the-clock maintenance of the

electronic equipment, including diagnostic and repair functions. According to

Rose, defendant‘s contribution ―could be considered essential in that he was

maintaining equipment that was of a significant value to the defense of the United

States.‖ Rose also testified that according to the Secretary of Defense, all of the

projects on which defendant worked were ―vital to the national defense,‖ and

disclosure of any of this classified information could, according to the Secretary,

result in ― ‗exceptionally grave harm to the national defense and public relations of

the United States.‘ ‖ Defendant‘s four ESL performance evaluations for this work

were 99 percent, 96 percent, 96.5 percent, and 98 percent.

29

From June 1984 until his termination by ESL in May 1986, defendant‘s work

involved feasibility studies for the United States National Security Agency. This

project analyzed equipment that might be developed, and how it would function.

d. Other mitigating evidence

Brian Messing, a systems engineer for ESL, worked with defendant in

Australia. Messing testified that he considered defendant the best technician at the

facility, because he was conscientious about his tasks. According to Messing,

defendant took an active interest in his assignments, and ―would go out of his way

to learn something else about the system.‖ Messing testified that defendant

assisted Messing on an occasion when Messing‘s vehicle ran out of gasoline at

night on an isolated stretch of road. Other drivers had passed him by without

stopping. Defendant gave him a ride back to the ESL site to obtain gasoline, and

then drove him back to his vehicle. Messing also stated that during a conversation

on another occasion in Australia, defendant mentioned he owned several guns and

a crossbow.

Alcina Sousa knew defendant at San Jose State University. She testified that

he always would offer to look at and comment upon computer programs she had

written. She also would see him in the hallways helping other students or just

being friendly. He did not seem violent to Sousa, but instead very calm. He told

Sousa about an incident in which he pulled someone‘s vehicle out of the snow

with his truck. After defendant‘s arrest, Sousa visited him in jail. She testified

that much of their conversation was about her life.

Stanley Hilberg shared a home with defendant from September 1986 to the

end of January 1987. He testified that defendant was congenial and very

responsible. He also testified that defendant had a shotgun in his room.

30

Joseph Nielsen, who was 71 years of age, resided on the same street as

defendant in late 1987 and early 1988. Nielsen had spoken to defendant on

several occasions, and testified he seemed like a very nice young man.

Lynn Clay and Gregory Debord testified that defendant performed well when

he was employed at Covalent. Defendant‘s responsibilities were undertaken in a

timely manner, and he provided needed expertise. Clay testified that defendant

was patient and responsive when dealing with customers. Debord noted that

defendant seemed able to control himself.

Department of Corrections assistant director Robert Conroy and Santa Clara

County Deputy Sheriff James Teichner testified that while in jail, defendant was

courteous and respectful to officers. Conroy further testified that defendant was

allowed to use a calculator and a typewriter, which were special privileges.

Defendant wrote Conroy a thank you note for providing these materials — unusual

action for an inmate to take. Teichner, Deputy Sheriff Jeffrey Hunter,

Correctional Officer James Darnell, and Correctional Officer Libby Reynolds

testified that defendant did not cause any problems for officers when he was

transported from jail to court.

Darnell further testified that while in jail, defendant was selected to be a

trustee. This role required an ability to work independently. During the three

months Darnell was assigned to defendant‘s housing unit, defendant did a ―great

job‖ working as a trustee.

Reynolds and Judith Pelite, a teacher who provided jail educational services,

testified that defendant studied mathematics. Pelite, Reynolds, Hunter, and inmate

Wayne Nichols testified that defendant tutored other inmates in mathematics.

Nichols further testified that defendant was patient and encouraging.

31

3. Rebuttal Evidence

The prosecution presented evidence of defendant‘s misconduct while in jail.

During a May 1990 search of defendant‘s jail cell, scrubbing pads, used to polish

the floors, were found hidden in a paper bag. An infraction report was written. In

June 1988, during a search of defendant‘s cell, a razor blade, two towels, a bag of

sugar, 13 books, and 10 magazines were found. It was determined that defendant

had committed a minor infraction, and as a penalty he lost use of the sun deck. In

March 1989, while defendant was serving as a trustee, he turned off the juice

machine to save juice for the trustees, despite having been instructed by an officer

to leave it on. He turned the machine on again when ordered to do so, but became

agitated. He raised his voice and confronted the officer in front of the other

inmates.

II. DISCUSSION

A. Pretrial Issues

1. Change of venue motions

Defendant contends the trial court erroneously denied his two motions for

change of venue7 in violation of his rights under the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution. We disagree.


7

As to this, and almost every other appellate claim, defendant contends the

alleged error infringed his constitutional rights. In those instances in which he did
not present constitutional theories below, it appears either that (1) the appellate
claim is one that required no objection to preserve it, or (2) the new arguments are
based upon factual or legal standards no different from those the trial court was
asked to apply but raise the additional legal consequence of violating the
Constitution. ―To that extent, defendant‘s new constitutional arguments are not
forfeited on appeal.‖ (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) No
separate constitutional discussion is required, or provided, when rejection of a
claim on the merits necessarily leads to rejection of any constitutional theory or
―gloss‖ raised for the first time on appeal. (Ibid.)

32

a. Factual Background

On July 17, 1989, two years before trial, defendant filed a motion for a

change of venue. At the hearing on the motion, held before Judge John Flaherty,

defendant produced expert testimony, newspaper articles, and television news

reports. On August 21, 1989, the trial court denied the motion without prejudice

to its renewal after voir dire. The trial court expressed the view that ―this is an

extremely close case,‖ and stated that its decision to deny the motion was based in

part ―on the applicability of the Hovey voir dire. . . . I‘m satisfied that by the use

of that . . . extensive voir dire procedure, that the defendant here can receive a fair

trial in this county.‖ (See Hovey v. Superior Court (1980) 28 Cal.3d 1.)

Almost two years later, on June 13, 1991, after jury voir dire, defendant filed

a second motion for a change of venue. The hearing on the second motion was

held before Judge Joseph Biafore, the trial judge, on June 26, 1991, the day before

the parties were scheduled to exercise peremptory challenges. The court

considered the moving papers, the hearing transcript, and the exhibits from the

first motion for a change of venue, as well as written and oral arguments and

additional exhibits, including newspaper articles, television news reports, and

summaries of voir dire responses, received prior to and at the hearing on the

second motion for a change of venue. At the conclusion of the hearing, the court

announced it would defer ruling on the motion until 12 jurors were chosen, to

allow the court to ―take a good hard look at those particular people seated in terms

of analyzing whether or not the Defendant would, in fact, receive a fair trial from

those persons.‖

Following the selection of 12 jurors, but before they were sworn and before

alternates were selected, the court heard further argument, and then denied the

motion. The court found that the gravity of the offense, and the nature and extent

of the publicity, weighed in favor of granting the motion, but also noted that

33

during voir dire, prospective jurors indicated there was ―a spate of media

exposure,‖ followed by a decline in news reports. ―[M]any of them indicated

there was actually nothing they heard about this case until the time for jury

selection. . . . [I]n the intervening time, there was not a great mass of media

exposure. This case did not generate the type of hysteria that counsel for the

defense was talking about.‖ The court also found that the status of the victims and

defendant, who were not well-known in the community, weighed against granting

the motion. The ―most salient factor,‖ the court found, was the size of the

community. The population of Santa Clara County was large, approaching 1.5

million persons. With respect to the jurors selected, the court had ―no doubt that

these people will follow the law as instructed by the court.‖ The jurors ―exhibited

to the court that they can set aside whatever opinions, impressions that they may

have derived from the media and judge . . . this case fairly and squarely on the

evidence presented in this courtroom.‖ The court found no reasonable likelihood

defendant could not receive a fair trial ―in this community.‖

b. Analysis

―A trial court must order a change of venue for trial of a criminal case to

another county on motion of the defendant ‗when it appears that there is a

reasonable likelihood that a fair and impartial trial cannot be held in the county.‘

(§ 1033, subd. (a).)‖ (People v. Hayes (1999) 21 Cal.4th 1211, 1250.) We

consider the correctness of the trial court‘s ruling at the time it was made. (People

v. Zambrano (2007) 41 Cal.4th 1082, 1127 (Zambrano), disapproved on different

grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).) ― ‗We

will sustain the court‘s determination of the relevant facts where supported by

substantial evidence. We independently review the court‘s ultimate determination

of the reasonable likelihood of an unfair trial.‘ ‖ (People v. Hart (1999) 20 Cal.4th

34

546, 598 (Hart).) ―Both the trial court‘s initial venue determination and our

independent evaluation are based on a consideration of five factors: ‗(1) nature

and gravity of the offense; (2) nature and extent of the media coverage; (3) size of

the community; (4) community status of the defendant; and (5) prominence of the

victim.‘ ‖ (People v. Leonard (2007) 40 Cal.4th 1370, 1394 (Leonard).) ―On

appeal, a defendant challenging a trial court‘s denial of a motion for change of

venue must show both error and prejudice: that is, that at the time of the motion it

was reasonably likely that a fair trial could not be had in the county, and that it

was reasonably likely that a fair trial was not had. [Citations.]‖ (People v. Davis

(2009) 46 Cal.4th 539, 578).)

We begin with defendant‘s initial motion, which was made before jury voir

dire took place. The first factor of the analysis — the nature and gravity of the

offense — weighed in favor of a change of venue for the trial of these seven

senseless murders. The same could be said, however, of most capital crimes, and

we have concluded that this factor is not dispositive. (People v. Sanders (1995) 11

Cal.4th 475, 506; People v. Pride (1992) 3 Cal.4th 195, 224.) Indeed, on

numerous occasions we have upheld the denial of change of venue motions in

cases involving multiple murders. (See, e.g., Leonard, supra, 40 Cal.4th at

pp. 1395, 1397 [six counts of murder]; People v. Ramirez (2006) 39 Cal.4th 398,

407, 434-435 (Ramirez) [13 counts of murder]; People v. Welch (1999) 20 Cal.4th

701, 721, 744-745 [six counts of murder].)

We next consider the nature and extent of the media coverage, the factor

upon which defendant primarily relies. Defendant presented evidence of

numerous newspaper articles and television news stories that discussed or

mentioned the events, including film of persons being rescued from the ESL

building during the siege, pictures of an injured Laura Black, and segments of

defendant‘s recorded statements to Lieutenant Grijalva. He complains that some

35

reports portrayed him as having committed various criminal acts rather than

referring to him as a ―suspect‖ or as an ―alleged‖ criminal. He also complains that

the media ―consistently portrayed [him] as an obsessed, dangerous man.‖

The media coverage, which decreased over time, was largely factual. (See

Murphy v. Florida (1975) 421 U.S. 794, 800, fn. 4 [the court has ―distinguished

largely factual publicity from that which is invidious or inflammatory‖]; id. at

p. 802; Beck v. Washington (1962) 369 U.S. 541, 556 [the court noted that ―[e]ven

the occasional front-page items were straight news stories rather than invidious

articles which would tend to arouse ill will and vindictiveness‖]; Hart, supra, 20

Cal.4th at p. 599 [noting that the trial court found the reporting to be neutral, not

inflammatory, and insufficient to sway public opinion].) Even in a case in which

the trial court described the media coverage as ― ‗saturation,‘ ‖ we found no error

in the denial of a motion for a change of venue, noting, among other factors, that

the ―defendant did not show that the media coverage was unfair or slanted against

him or revealed incriminating facts that were not introduced at trial.‖ (Ramirez,

supra, 39 Cal.4th at pp. 434-435.)

Defendant asserts, however, that even noninflammatory journalism may

warrant a change of venue if the facts are sensational. We have acknowledged

that press coverage need not be inflammatory to justify a change of venue (People

v. Tidwell (1970) 3 Cal.3d 62, 69-70), but the cases upon which defendant relies

involved additional factors that weighed in favor of a change of venue. In Tidwell,

two of the victims were prominent members of a small community, the defendants

were strangers to that community, and some of the jurors selected to serve knew

one or more of the victims or witnesses. (Id. at pp. 64-65, 67, 69-75.) Similarly,

the change of venue ordered in Corona v. Superior Court (1972) 24 Cal.App.3d

872, was motivated by a concern that jurors in a small community, in which the

defendant was charged with the murder of 25 migratory farm workers, would be

36

―vulnerable to claims of insensitivity toward migratory farm workers,‖ and

conscious ―of the community‘s reputation for peace and security.‖ (Id. at pp. 875-

876, 883.) As explained below, such circumstances were absent in the present

case.

The remaining three factors — the size of the community, and the status of

defendant and of his victims in the community — weighed against a change of

venue. Santa Clara County, with a population of almost 1.5 million persons, was a

large community. (People v. Dennis (1998) 17 Cal.4th 468, 523 [noting that Santa

Clara County in 1988 was the fourth most populous county in the state].) Neither

defendant nor his victims were prominent members of this community. Contrary

to defendant‘s contention, the circumstance that defendant, his victims, and many

qualified jurors worked in the ―high tech‖ industry did not affect the status of the

participants for purposes of the change of venue motion; the terror engendered by

defendant‘s attack stemmed not from its occurrence in a technology company, but

from the circumstance that it happened in the middle of the work day in an office

setting. Some degree of juror identification with the victims would occur in any

venue. (See People v. Webb (1993) 6 Cal.4th 494, 515 [―Any sympathetic

features of the case would be apparent wherever it was tried‖].) For the same

reason, defendant‘s contention that jurors would perceive him as ―a ‗changeling,‘

who had turned on and murdered his own kind,‖ does not establish that a change

of venue was warranted.

For these reasons, we conclude the trial court did not err in denying

defendant‘s first motion for a change of venue.

As noted above, the court deferred its ruling on defendant‘s second motion

for a change of venue until after jury selection. (See Maine v. Superior Court

(1968) 68 Cal.2d 375, 380 [it has long been the practice ―to permit the trial court

to defer its final ruling on a motion for a change of venue until the jury is

37

empaneled‖].) By this point in the proceedings, the trial court had heard on voir

dire from the jurors selected that they would decide the case based solely upon the

evidence and argument presented in court, and the trial court expressly credited

those assertions. (See Leonard, supra, 40 Cal.4th at p. 1396 [―jurors selected to

try this case bear out the trial court‘s conclusion that an unbiased jury could be

found‖].) In addition, none of the sitting jurors or alternates had been challenged

for cause. (Beck v. Washington, supra, 369 U.S. at pp. 557-558 [the circumstance

that the defendant did not challenge for cause any of the jurors selected ―is strong

evidence that he was convinced the jurors were not biased‖].) Nor did defendant

exhaust his peremptory challenges, ―thus indicating that ‗the jurors were fair, and

that the defense itself so concluded.‘ ‖ (People v. Panah (2005) 35 Cal.4th 395,

448; see also Zambrano, supra, 41 Cal.4th at pp. 1127-1128 [the court cited the

circumstance that the defendant did not challenge any of the sitting jurors for

cause or exhaust available peremptory challenges, in support of its conclusion that

hindsight demonstrated that retention of the case did not ―produce an unfair

trial‖].)8


8

Defendant contends he justified his failure to exhaust peremptory

challenges by stating in the trial court that although he had eight challenges
remaining, the venire included more than eight prospective jurors against whom he
had made unsuccessful challenges for cause. He asserts that because it was
―futile . . . to try to eliminate all those who had been exposed to prejudicial
publicity, he instead tried, in vain, to eliminate those . . . who had expressed an
opinion that [defendant] was guilty.‖ Nothing in these circumstances alters the
principle that ―a party‘s failure to exercise available peremptory challenges
indicates relative satisfaction with the unchallenged jurors.‖ (People v. Morris
(1991) 53 Cal.3d 152, 185, disapproved on other grounds in People v. Stansbury
(1995) 9 Cal.4th 824, 830, fn. 1.) As noted, defendant fails to identify any sitting
juror he challenged for cause. Nor has he shown that ―exhausting his remaining
peremptories would necessarily have resulted in the seating of a juror who ought
to have been removed for cause.‖ (People v. Price (1991) 1 Cal.4th 324, 401.)

38

Defendant relies upon the circumstance that numerous jurors were excused

for bias against the defense.9 The number of excusals may have been more than

would occur in an ordinary criminal trial, ―but it by no means suggests a

community with sentiment so poisoned against [the defendant] as to impeach the

indifference of jurors who displayed no animus of their own.‖ (Murphy v.

Florida, supra, 421 U.S. at p. 803.)

Defendant also relies upon the circumstance that three years after his

commission of the crimes, many prospective jurors still had a recollection of the

murders. ―The relevant question is not whether the community remembered the

case, but whether the jurors at [the defendant‘s] trial had such fixed opinions that

they could not judge impartially the guilt of the defendant.‖ (Patton v. Yount

(1984) 467 U.S. 1025, 1035; see Ramirez, supra, 39 Cal.4th at pp. 434-435

[―Although only one member of the jury indicated . . . he had never heard of the

case, they all stated they had not ‗formed any opinion as to the guilt or innocence

of [the defendant] . . .‘ and could be fair‖].) ―We must distinguish between mere

familiarity with [the defendant] or his past and an actual predisposition against

him.‖ (Murphy v. Florida, supra, 421 U.S. at p. 800, fn. 4.) Defendant asserts

without citation to the record that four jurors believed he was ―guilty,‖ but our

review of the voir dire indicates all jurors demonstrated a willingness to set aside

any preconceived notions and make their decision solely upon the evidence

presented. (See Beck v. Washington, supra, 369 U.S. at p. 557 [― ‗It is sufficient if


9

Defendant asserts 83 prospective jurors were excused for bias against the

defense. Below, defense counsel represented that 65 of the 240 prospective jurors
who were questioned were excused on the ground that they were biased against
the defense. The larger figure apparently includes jurors who were excused
pursuant to defense challenge both for bias against the defense and under
Wainwright v. Witt (1985) 469 U.S. 412 (Witt).

39

the juror can lay aside his impression or opinion and render a verdict based on the

evidence presented in court‘ ‖].)

Defendant further contends, however, that jurors‘ assertions that they could

be impartial should not be credited. ―In exceptional cases, ‗ ―adverse pretrial

publicity can create such a presumption of prejudice in a community that the

jurors‘ claims that they can be impartial should not be believed,‖ [citation] . . . .‘

[Citation.] ‗The category of cases where prejudice has been presumed in the face

of juror attestation to the contrary is extremely narrow. Indeed, the few cases in

which the [high] Court has presumed prejudice can only be termed extraordinary,

[citation], and it is well-settled that pretrial publicity itself — ―even pervasive,

adverse publicity — does not inevitably lead to an unfair trial‖ [citation].‘

[Citation.] This prejudice is presumed only in extraordinary cases

not in every

case in which pervasive publicity has reached most members of the venire.‖

(People v. Prince (2007) 40 Cal.4th 1179, 1216 (Prince).)

In Prince, supra, 40 Cal.4th 1179, we reviewed some of the extraordinary

cases in which the high court has presumed prejudice from pretrial publicity. ―In

one case . . . the critical feature was that a local television station in a relatively

small community on several occasions broadcast the entire spectacle of the

defendant‘s jailhouse confession. [Citation.]‖ (Id. at p. 1217.) In a second case,

― ‗[t]he trial . . . had been conducted in a circus atmosphere, due in large part to the

intrusions of the press, which was allowed to sit within the bar of the court and to

overrun it with television equipment. Similarly, [in a third case, prejudice] arose

from a trial infected not only by a background of extremely inflammatory

publicity but also by a courthouse given over to accommodate the public appetite

for carnival. The proceedings in these cases were entirely lacking in the solemnity

and sobriety to which a defendant is entitled in a system that subscribes to any

notion of fairness and rejects the verdict of a mob. They cannot be made to stand

40

for the proposition that juror exposure to . . . news accounts of the crime with

which he is charged alone presumptively deprives the defendant of due process.‘

[Citation.] The reviewing court instead must look for ‗indications in the totality of

the circumstances that [the defendant‘s] trial was not fundamentally fair.‘

[Citation.]‖ (Id. at pp. 1217-1218.)

The present case does not fall ―within the limited class of cases in which

prejudice would be presumed under the United States Constitution.‖ (Prince,

supra, 40 Cal.4th at p. 1217.) The publicity adduced at the second change of

venue motion, as at the first, was largely factual and noninflammatory. Nor is

there evidence in the record that the jury selection process lacked solemnity.

(Murphy v. Florida, supra, 421 U.S. at p. 799.) Moreover, the seated jurors, who

were questioned on voir dire individually, either recalled nothing of the case or

remembered few details. The trial court, which observed the jurors‘ demeanor,

expressly found they had demonstrated an ability to set aside any preconceived

impressions derived from the media. Thus, no extraordinary circumstances are

presented.

We conclude the trial court did not err in denying the second motion for

change of venue.

2. Excusing prospective jurors for cause due to their views

concerning the death penalty

Defendant contends the trial court erroneously excused two prospective

jurors for cause based upon their views concerning the death penalty. We

disagree.

a. Factual background

(1) Excusal of Prospective Juror A.S.

In Prospective Juror A.S.‘s questionnaire, she stated she ―Will Consider‖ the

death penalty, and drew an arrow pointing toward the ―Oppose‖ and ―Strongly

41

Oppose‖ responses. She believed that the ―penalty should be exercised with great

caution. One must be absolutely convinced of the guilt of the accused. He or she

must have committed a crime for which they could never be forgiven and which

demonstrates a disregard for human life.‖ During voir dire by the court, she stated

that ―choos[ing] the death penalty would be very difficult for me. . . . [T]he

circumstances would have to be very aggravating.‖ She also stated she would be

capable of performing the weighing process required to determine the appropriate

penalty; she would listen to all of the evidence and arguments before choosing a

penalty; she could make a choice between the penalties, and she would not

automatically choose one penalty over another.

When the defense asked whether she could vote for death if she concluded

the death penalty was the appropriate punishment, A.S. responded, ―I think so.‖

When the prosecutor inquired concerning the hesitancy reflected in her response,

she agreed that although she could impose the death penalty on an intellectual

level, ―emotionally and spiritually‖ it was more difficult. She explained the basis

of her inclination against the death penalty: ―I don‘t think it‘s right to kill other

people. And that doesn‘t mean that‘s not justified in very, very unusual cases, but

I would not . . . take that lightly. Seems like a very grave issue.‖ She stated she

could vote to send a man to his death, but when pressed by the prosecutor to

confirm that she could vote for the death penalty, she responded, ―I‘m not sure I

could.‖ The prosecutor asked, ―In other words, you don‘t know whether, if you

got to that stage emotionally, then you could actually do it even though

intellectually you believed it to be the appropriate decision?‖ A.S. agreed, ―That‘s

true.‖

The prosecutor challenged A.S. for cause under Witt, supra, 469 U.S. 412.

Over defense objection, the trial court sustained the challenge, stating, ―I believe

that the juror was setting the signals early in the voir dire, and she exhibited some

42

difficulty even going through the weighing process, when she had volunteered the

concerns about the death penalty as it would affect her ability to go though the

weighing process, but we got through that. But I think under these circumstances,

that [the prosecutor‘s] challenge should be granted because I believe that this

juror‘s views would prevent or substantially impair the performance of her duties

as a juror in accordance with [the] instructions.‖

(2) Excusal of Prospective Juror R.R.

In Prospective Juror R.R.‘s questionnaire, he circled the ―Strongly Oppose‖

response when asked his view concerning the death penalty. In response to a

question regarding the circumstances under which the death penalty was

inappropriate, he wrote, ―all.‖ During voir dire, he confirmed he was morally,

philosophically, and intellectually opposed to the death penalty, but also indicated

he understood that if the aggravating circumstances substantially outweighed the

mitigating circumstances, he would be required to vote for death. The prosecutor

then clarified that the law never would require a juror to vote for death. Following

this clarification, R.R. stated he ―[a]bsolutely‖ always would vote for life

imprisonment without the possibility of parole, and if the aggravating evidence

substantially outweighed the mitigating evidence, he ―would vote for life‖ in

―[e]very instance.‖

The prosecutor challenged Prospective Juror R.R. for cause under Witt,

supra, 469 U.S. 412. Over defense objection, the trial court sustained the

challenge, stating, ―I think it‘s abundantly clear after listening to this juror that

when he finally realizes he has a freedom of choice after hearing the evidence, and

that there is not going to be any directive as to which way he should vote, and the

onus is on him and the choice is clearly his, he has indicated in every instance he

43

would vote for life no matter what the evidence is. If given a choice, he would

have to vote for life in prison without the possibility of parole.‖

b. Analysis

―The trial court may excuse for cause a prospective juror whose views on the

death penalty would prevent or substantially impair the performance of that juror‘s

duties‖ in accordance with the court‘s instructions and the juror‘s oath. (People

v. Smith (2003) 30 Cal.4th 581, 601; see Witt, supra, 469 U.S. at p. 424.) ―The

standard of review of the court‘s ruling regarding the prospective juror‘s views on

the death penalty is essentially the same as the standard regarding other claims of

bias. If the prospective juror‘s statements are conflicting or equivocal, the court‘s

determination of the actual state of mind is binding. If the statements are

consistent, the court‘s ruling will be upheld if supported by substantial evidence.‖

(People v. Horning (2004) 34 Cal.4th 871, 896-897.) ―Deference to the trial court

is appropriate because it is in a position to assess the demeanor of the venire, and

of the individuals who compose it, a factor of critical importance in assessing the

attitude and qualifications of potential jurors.‖ (Uttecht v. Brown (2007) 551 U.S.

1, 9.)

A.S.‘s statements with respect to her ability to follow the law concerning

imposition of the death penalty were equivocal. Although her questionnaire and

initial voir dire indicated she could weigh the relevant factors and consider either

penalty, her subsequent responses reflected significant hesitation regarding her

emotional ability to impose the death penalty. The trial court was in a position,

which we are not, to view her demeanor as she responded, and its determination of

her state of mind is binding. Substantial evidence supports its ruling that A.S.‘s

views concerning the death penalty would prevent or substantially impair her

performance as a juror.

44

Contrary to defendant‘s claim, R.R. did not make it ―clear that while he was

reluctant to impose a death penalty, he would follow the law.‖ Rather, R.R.

struggled with the idea that he would be compelled to impose the death penalty if

the aggravating circumstances substantially outweighed the mitigating

circumstances. After he was informed he would have a choice concerning the

appropriate penalty under those circumstances, he stated he always would vote for

life imprisonment without the possibility of parole, regardless of the evidence.

Nor, contrary to defendant‘s claim, does the record indicate the court and the

prosecutor ― ‗tricked‘ [R.R.] into disqualifying himself by misrepresenting that a

juror could properly take the position that aggravation would never outweigh

mitigation enough to warrant a death penalty, and then disqualif[ying] [R.R.]

because he took that position.‖ Rather, the prosecutor simply corrected R.R.‘s

apparent belief that under certain circumstances, a juror would be required to

impose the death penalty, and the court properly excused R.R. based upon R.R.‘s

disclosure that he never would impose the penalty of death.

3. Prosecution challenges for cause

Defendant claims the trial court erroneously permitted the prosecutor to

challenge four prospective jurors on the ground they were biased against the

defense as a result of pretrial publicity. He contends that the prosecutor had no

standing to make the challenges, and that the trial court erred in excusing the

prospective jurors for cause. He also asserts that sustaining the challenges

impaired his right to counsel under the Sixth, Eighth, and Fourteenth

Amendments, and deprived him of a number of peremptory challenges equal to

that allotted to the prosecution.

45

a. Factual background

(1) Excusal of Prospective Juror L.R.

On his juror questionnaire, Prospective Juror L.R. wrote ―Yes,‖ when asked

whether he thought defendant was guilty of the charges. He also stated that he

opposed the death penalty. On voir dire, the trial court asked L.R. whether he

―would be able to set aside your previous impressions and opinions and judge this

matter solely on the evidence produced in this courtroom and on the arguments of

the attorneys and on the body of law that the Court will instruct you?‖ L.R. found

the question ―very difficult to answer,‖ and stated that ―I really don‘t know how I

would behave as a juror since I have never been a juror.‖ The court explained that

he was not being asked to forget his opinions and impressions; rather, he would be

called upon to set them aside and decide the case based upon what he heard in the

courtroom. L.R. said he did not know whether he could do so.

The prosecutor challenged L.R. for cause under People v. Bittaker (1989) 48

Cal.3d 1046, 1090 (Bittaker), ―because he has not affirmatively said that he can set

aside his opinions and deal only with the facts in the case as they are presented in

the Court.‖ Defense counsel asserted the prosecutor lacked standing to challenge

a prospective juror for cause on this basis. In response to further questioning by

the court, L.R. iterated that he did not know whether he could base his decision

solely on the evidence presented in court, and stated he did not know whether he

would be a fair and impartial juror.

The trial court sustained the prosecutor‘s challenge, finding that ―this juror

cannot be fair and impartial. This juror is equivocating to the point where I have

absolutely no idea what his state of mind is. He has indicated to me that he cannot

base his decision in this case solely on the evidence produced in this courtroom,

and that he has been so impressed and influenced by the pretrial publicity that he

cannot be fair and impartial. I‘m making that finding.‖ Defense counsel again

46

opposed the challenge ―for the reasons . . .stated before,‖ and also argued that ―the

attitudes expressed by [L.R.] . . . are not necessarily indicative of his state of mind,

but more indicative of a desire not to serve. I don‘t think that creates a situation

where the Court can legitimately make a finding that he cannot be a fair and

impartial juror.‖ The court stated, ―I don‘t think he can be fair and impartial in

this case. I have a duty to get fair and impartial jurors; he‘s not one of them.‖

(2) Excusal of Prospective Juror C.S.

On her juror questionnaire, when asked whether defendant was guilty of the

charges, Prospective Juror C.S. wrote ―Yes — at least some of the charges — the

murder charges, but I don‘t know if it‘s first degree.‖ On voir dire, she repeatedly

stated she did not know whether she could set aside her impressions and opinions

about the case and base her decision upon the evidence presented in court. She

stated her work in policy analysis did not involve ―arbitrarily setting aside‖

information, and therefore she did not know whether she could set aside what she

had heard out of court.

The prosecutor challenged C.S. for cause under Bittaker, supra, 48 Cal.3d

1046, because she could not make an affirmative declaration that she could set

aside the views she derived from pretrial publicity. Defense counsel objected,

contending that the prosecutor lacked standing, and that C.S. in fact could set aside

what she might know about the case and her conclusions about the case. ―My

sense of listening to her and watching her is that the ambivalence that she has

expressed doesn‘t have to do with her inability to go through the mental or

intellectual exercise of setting things aside; it has to do more with the emotional

level or the responsibility of making a decision involving someone else‘s life.‖

The trial court sustained the challenge. ―With regard to this juror, the Court

cannot get a clear indication of her state of mind based on her ambivalent and

47

ambiguous answers. I don‘t think that she can be fair and impartial. She said that

she cannot set aside her opinions of the Defendant‘s guilt. When I asked her if she

would make every effort to set aside those opinions, she said she didn‘t know, she

didn‘t know whether she could do it. Under those circumstances, her opinion is

that the Defendant is guilty, and she would have a very difficult time setting aside

those opinions, and so the Court will grant the challenge based upon her inability

to be fair and impartial in this case.‖

(3) Excusal of Prospective Juror D.M.

On her juror questionnaire, Prospective Juror D.M. wrote in capital letters

and underlined ―Yes,‖ when asked whether she thought defendant was guilty of

the charges. In response to the question, ―[H]ave you formed any opinions about

this case,‖ she wrote, ―Right now, my vote is for the [d]eath sentence.‖ On voir

dire, she stated she understood the law required that she presume defendant

innocent, but she had difficulty applying the presumption of innocence to

defendant. She stated that she had heard about the case in media reports, and she

would find defendant guilty beyond a reasonable doubt, based upon what she had

heard in the press, without any evidence being presented. D.M. also noted she had

changed her mind concerning the death penalty, and ―would not be able to at any

time be responsible for putting anybody to the death sentence.‖ At the conclusion

of the court‘s questioning, D.M. confirmed she would presume defendant guilty

unless the contrary was proved.

The prosecutor challenged D.M. under Bittaker, noting: ―She has an opinion

about guilt. She has opinions about penalty . . . She‘s unfair to both sides . . . .‖

Defense counsel objected that the prosecutor did not have standing to make a

challenge for cause under Bittaker. The trial court sustained the challenge, stating:

―Counsel has the right to raise the issue of whether a juror can be fair and

48

impartial, and this juror . . . exhibits the presumption of guilt as to the defendant. I

don‘t see it any way that she is fair and impartial.‖

(4) Excusal of Prospective Juror D.R.

On her juror questionnaire, in response to the question of whether defendant

was guilty of the charges, Prospective Juror D.R. wrote, ―Yeah — probably he did

it — but why, what drove him to it, will he or could he be driven to it again?‖ She

also stated she could not ―handle knowing I was responsible for sending someone

to the chair,‖ or ―responsibility for the death penalty.‖ She disclosed that her

fiancé was in prison for murder, and expressed the opinion that her fiancé would

not be there if ―he weren‘t poor, undereducated and Black.‖ On voir dire, D.R.

stated she did not know whether she would follow the law as instructed by the

court. She stated that her recollection of the details of the case was ―hazy,‖ but if

something presented in court conflicted with something she recalled from media

reports, she would question what had been presented in court. Defense counsel

asked, ―If the court were to tell you that it‘s your responsibility as a juror to decide

this case solely on the evidence presented here in court would you follow that

instruction?‖ D.R. answered, ―No.‖

The prosecutor challenged D.R. under Bittaker, supra, 48 Cal.3d 1046.

Defense counsel asserted that the prosecutor did not have standing to make this

challenge, and also argued that D.R.‘s ―hazy‖ recollections ―would not in any way

impinge on her ability to listen to the evidence.‖ The prosecutor ―note[d] once

again, that a fair trial is the providence of the court and everyone who knows what

her opinions are like, they could impinge on the prosecution in terms of what

magnificent little details she‘d dredge up during the course of the trial.‖

The trial court sustained the challenge. ―This juror has come in, expressed

that attitude that defendant is guilty. . . . She has said that she . . . doesn‘t believe

49

people tell the truth in court. She has said she cannot follow the court‘s

instructions, follow the evidence in court. She said she would take whatever she

remembers over what she sees in court. She has said she doesn‘t believe in the

court system. She thinks that too many people make deals, and she trusts her

perceptions far more than what is told to her. . . . It‘s abundantly clear to me that

she is just totally unqualified to be a juror. I couldn‘t for the life of me understand

why the defense persists in thinking that she above all the other people we‘ve ever

interviewed in this case, is going to be able to set aside whatever miniscule

specific facts that she might have pertaining to this case and be a fair and impartial

juror. She just flat out can‘t be. I think it would be a travesty of justice to let her

remain on this case.‖

b. Analysis

We held in Bittaker, supra, 48 Cal.3d at page 1090, that a prospective juror

who ―has an opinion based upon‖ media reports, ―is qualified only if he

affirmatively declares that he can and will act impartially. A declaration that he

will try to be impartial, but doubts that he can succeed, is insufficient.‖ (Italics

omitted.)10 Defendant describes the issue in the present case as ―whether the


10

Our decision in Bittaker interpreted former section 1076, which provided in

relevant part: ―No person shall be disqualified as a juror by reason of having
formed or expressed an opinion upon the matter or cause to be submitted to the
jury, founded upon public rumor, or statements in public journals, circulars, or
other literature, or common notoriety if upon his or her declaration, under oath or
otherwise, it appears to the court that he or she can and will, notwithstanding that
opinion, act impartially and fairly upon the matters to be submitted to him or her.‖
(Quoted in Bittaker, supra, 48 Cal.3d at pp. 1088-1089.)

By the time of trial in the present case, section 1076 had been repealed, and

juror challenges for cause were governed by Code of Civil Procedure sections 225
through 230. The bases for disqualifying a prospective juror for cause under these
provisions are ―[g]eneral disqualification,‖ ―[i]mplied bias,‖ and ―[a]ctual bias.‖

(footnote continued on next page)

50

prosecutor can make a Bittaker challenge to a juror on the ground that the juror

has an opinion adverse to the defendant.‖ The prosecutor‘s challenges and the

trial court‘s rulings were not based, however, solely upon the ground that the

prospective jurors held opinions adverse to defendant. Rather, the Bittaker

challenges and the court‘s rulings were based upon these individuals‘ inability to

set aside what they knew or believed concerning the case and to decide the issues

based upon the evidence and pursuant to the court‘s instructions. Although

particular opinions and beliefs expressed by these prospective jurors during voir

dire revealed bias against defendant with respect to the issue of guilt, their answers

also established they could not declare that they would decide the issues fairly and

impartially based upon the evidence presented in court. Clearly, the prosecution‘s

case could be harmed by jurors who would decide issues based upon rumors or

information received outside of court, and who would not follow the court‘s

instructions. Therefore, the premise of defendant‘s claim that the prosecutor

lacked standing to challenge these prospective jurors — namely, that the

prosecutor was not aggrieved by the prospective jurors‘ beliefs and attitudes — is

mistaken.

Defendant‘s claim that the trial court erred in excusing the prospective jurors

for cause also fails. ―On review of a trial court‘s ruling, if the prospective juror‘s


(footnote continued from previous page)

(Code Civ. Proc., § 225, subd. (b)(1).) Among the grounds for general
disqualification is ―[t]he existence of any incapacity which satisfies the court that
the challenged person is incapable of performing the duties of a juror in the
particular action without prejudice to the substantial rights of the challenging
party.‖ (Id., § 228, subd. (b).) Among the grounds for finding implied bias is
―[h]aving an unqualified opinion or belief as to the merits of the action founded
upon knowledge of its material facts or of some of them.‖ (Id., § 229, subd. (e).)

51

statements are equivocal or conflicting, that court‘s determination of the person‘s

state of mind is binding. If there is no inconsistency, the reviewing court will

uphold the court‘s ruling if substantial evidence supports it.‖ (People v. Hillhouse

(2002) 27 Cal.4th 469, 488 (Hillhouse).) As noted above, L.R. and C.S. each

repeatedly responded that they could not say whether they could set aside their

impressions and opinions and decide the case based solely upon the evidence;

D.M. stated she would decide based upon what she heard and saw in the press,

unless the contrary was proven, and D.R. stated she would not follow an

instruction that she decide the case solely upon the evidence presented in court.

Thus, substantial evidence supports the trial court‘s findings that these jurors were

not fair and impartial, and to the extent any of these jurors‘ responses were

equivocal, the trial court‘s determination is binding.

Defendant contends the trial court‘s decision to excuse these jurors because

they were biased against defendant interfered with defendant‘s right to have his

counsel make tactical decisions, in violation of his right to counsel, and deprived

him of a number of peremptory challenges equal to those allotted the prosecution.

This claim is forfeited. In the trial court, defendant never conceded that these

prospective jurors were biased with respect to the issue of guilt, or asserted that

they nonetheless were desirable to defendant because of their stated views in other

areas. Thus, People v. Partida (2005) 37 Cal.4th 428, upon which defendant

relies, is inapplicable. Partida held that constitutional arguments raised for the

first time on appeal are not forfeited if they do not invoke reasons different from

those the trial court was asked to apply, but merely assert that the trial court‘s act

or omission, to the extent erroneous for the reasons actually presented to that

court, ―had the additional legal consequence of violating‖ the Constitution. (Id. at

p. 435.) Here, the trial court never had the opportunity to consider whether

52

defendant had the right to retain prospective jurors concededly biased with respect

to the issue of guilt, but acceptable to the defense for other tactical reasons.

Moreover, as we have noted, these jurors properly were excused for reasons

other than bias against defendant. Contrary to defendant‘s assertion, a trial court‘s

proper grant of a prosecutor‘s challenge for cause neither confers upon the

prosecution a greater number of peremptory challenges than the number to which

it is entitled by statute, nor violates a defendant‘s right to counsel. Indeed, outside

the context of challenges based upon juror views concerning the death penalty, a

―[d]efendant has a right to jurors who are qualified and competent, not to any

particular juror.‖ (People v. Holt (1997) 15 Cal.4th 619, 656.)

4. Defense challenges for cause

Defendant contends the trial court erred in denying a defense challenge to

Prospective Juror E.D. for cause, in violation of his rights under the Sixth, Eighth,

and Fourteenth Amendments to the United States Constitution.11 Following the

court‘s refusal to excuse E.D., defendant used a peremptory challenge to excuse

her.

This claim is not preserved for appeal. Defendant exercised only 12

peremptory challenges, leaving him with eight remaining when he accepted the

jury. (Code Civ. Proc., § 231, subd. (a).) ― ‗To preserve a claim of error in the

denial of a challenge for cause, the defense must exhaust its peremptory

11

Defendant asserts the ―court erred in denying defense challenges for cause,‖

noting that the trial court denied 20 defense challenges, but he addresses only one
denial of a defense challenge for cause, for the asserted reason that ―the erroneous
denial of even one challenge for cause was reversible error because it in effect
deprived him of a peremptory challenge.‖ Defendant states that, ―[b]ecause the
issue . . . is one of principle rather than numbers, [defendant] will discuss in detail
only one of the jurors in question, [Prospective Juror E.D.]‖ We therefore limit
our analysis to this prospective juror.

53

challenges . . . .‘ ‖ (Hillhouse, supra, 27 Cal.4th at p. 487.) Defendant contends

his failure to exhaust available peremptory challenges was justified by his

assertion in the trial court that, although he had eight challenges remaining, the

venire included more than eight prospective jurors against whom he had made

unsuccessful challenges for cause. We have rejected this contention above. (See

ante, p. 38, fn. 8.)

Defendant asserts that this rule — that a defendant must exhaust all

peremptory challenges before claiming on appeal that jurors should have been

dismissed for cause — forces a defendant to choose between (1) accepting a

biased jury or (2) exercising all peremptory challenges and risking a jury panel

that is more unfavorable to the defendant than the panel presently seated. Without

citation to authority, he ―proposes a different, and more reasonable, method of

determining whether a jury is unfair.‖ Defendant‘s proposed method would

require the court to consider (1) whether the jurors selected appear, from their

backgrounds and answers in voir dire, to be ―highly unfavorable‖ from the

defense‘s viewpoint, (2) whether the ―highly unfavorable‖ jurors are balanced by

the presence of jurors favorable to the defense, and (3) whether the defense, but

not the prosecution, was forced to employ peremptory challenges to remove jurors

whom the court should have removed for cause. Defendant‘s test would require

appellate courts to engage in a highly subjective evaluation of the relative

―favorability‖ of jury panels. We decline to adopt defendant‘s proposed test.

We also reject defendant‘s contention that the assertedly erroneous denial of

the challenge for cause to Prospective Juror E.D. is ―reversible error because it in

effect deprived him of a peremptory challenge.‖ ―So long as the jury that sits is

impartial, the fact that the defendant had to use a peremptory challenge to achieve

that result does not mean the Sixth Amendment was violated.‖ (Ross v. Oklahoma

(1988) 487 U.S. 81, 88; id. at pp. 89-91 [the court also rejected a challenge under

54

the 14th Amend.]); see People v. Richardson (2008) 43 Cal.4th 959, 987-988

[―where defendant did not exhaust all his peremptory challenges, he cannot even

begin to demonstrate that his right to an impartial jury was impaired‖]; People

v. Ashmus (1991) 54 Cal.3d 932, 966 [―That an allegedly biased juror might have

sat had he or she not been removed by peremptory challenge does not implicate

the right to a fair and impartial jury in any substantial way‖], abrogated on other

grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117.)

B. Guilt Phase Issues

1. Denial of suppression motions

Defendant contends the trial court violated his rights under the Fourth,

Fifth, Eighth, and Fourteenth Amendments to the United States Constitution by

erroneously denying several motions to suppress.

a. Residence and vehicle search

(1) Factual background

On February 16, at approximately 6:10 p.m., Sunnyvale Department of

Public Safety Detectives Davis and Messier, joined by five San Jose Police

Department officers, forced entry into defendant‘s residence to search for victims.

Davis and at least one other officer looked in rooms, under beds, and in closets,

but did not open any cabinets or drawers. Davis observed in plain view a rifle

standing against a dresser, a gas mask on top of a different dresser, and gun

cleaning equipment on the coffee table. Due to earlier confusion concerning

defendant‘s current address, Davis briefly looked at documents on a table to

determine whether there was mail addressed to defendant. Approximately five to

15 minutes elapsed during the search, after which all but one San Jose officer left.

Nothing was seized. Between approximately 6:30 and 6:45 p.m., Davis informed

55

Sunnyvale Department of Public Safety Detective Piatanesi that no victims had

been found.

At approximately 8:00 p.m., Piatanesi called Davis and instructed him and

Messier to search the residence for explosives and garage door openers. They

searched for these items for approximately 15 to 20 minutes, this time opening

cabinets and drawers. No such items were found, and nothing was seized. At

approximately 8:30 p.m., defendant was taken into custody at ESL.

The next day — February 17, 1988 — law enforcement officers sought and

obtained warrants to search defendant‘s residence and his vehicle parked in front

of the house. The affidavit in support of the warrants represented that law

enforcement authorities sought evidence regarding firearms; body armor;

incendiary, explosive, or detonation devices; ammunition; photographs of

defendant, Laura Black, or ESL; documents to or from Black or ESL; medical

documents related to defendant; documents related to defendant‘s employment at

ESL and Covalent; and evidence of ownership and occupancy of, and possessory

right to, the vehicle and the residence. The affidavit stated the following: utility

records reflected that service at the residence was in defendant‘s name;

defendant‘s former roommate identified defendant‘s vehicle in front of the house;

defendant was a disgruntled former employee who had entered ESL and shot and

killed seven individuals on February 16; an ESL employee identified defendant as

the person who had entered the building with a shotgun; Laura Black stated

defendant shot her at ESL on February 16, 1988, and had been harassing her for

four years; on February 2, 1988, Black had obtained a temporary restraining order

against defendant; an officer at the scene of the shooting had jumped inside the

open motor home for cover and there observed a rifle with a scope, a large pile of

empty ammunition boxes, and four gallons of inflammable liquid; Home Away

From Home Rentals confirmed defendant had rented the motor home; and during

56

the warrantless search of defendant‘s residence on February 16, a gas mask, a rifle,

and gun cleaning equipment were observed in plain view.

Defendant moved to suppress all evidence seized from his house and his

vehicle. The trial court denied the motion.

(2) Analysis

Defendant contends the two warrantless entries on February 16 were invalid,

the search warrants were tainted by evidence obtained illegally in the warrantless

searches, and the warrants lacked probable cause and sufficient particularity. We

need not decide whether the warrantless searches were justified because (1) even

assuming that the first warrantless search was invalid and excising from the search

warrant affidavit the evidence observed during the first search, the affidavit

nonetheless provided probable cause to support issuance of the warrants, and

(2) the second warrantless search disclosed no additional evidence.

Probable cause to search exists when, based upon the totality of the

circumstances described in the affidavit, ―there is a fair probability that contraband

or evidence of a crime will be found in a particular place.‖ (Illinois v. Gates

(1983) 462 U.S. 213, 238; People v. Kraft (2000) 23 Cal.4th 978, 1040-1041

(Kraft); § 1525.) Excising from the search warrant affidavit the evidence observed

during the first warrantless search (the gas mask, rifle, and gun cleaning

equipment), the affidavit alleged that defendant was a disgruntled former

employee who on February 16 had entered ESL and shot and killed seven

individuals, had harassed ESL employee Laura Black for four years and then shot

her at ESL after the recent issuance of a temporary restraining order, and

possessed a rifle with a scope, numerous empty boxes of ammunition, and

inflammable liquid in the motor home he had rented and driven to ESL the day of

the shooting. (People v. Weiss (1999) 20 Cal.4th 1073, 1081.) These

57

circumstances demonstrated a fair probability that evidence relevant to

defendant‘s commission of the crimes existed in defendant‘s house and vehicle.

(Illinois v. Gates, supra, 462 U.S. at p. 238; see People v. Gonzalez (1990) 51

Cal.3d 1179, 1206 (Gonzalez) [the court acknowledged case law ― ‗recogniz[ing]

that from the nature of the crimes and the items sought, a magistrate can

reasonably conclude that a suspect‘s residence is a logical place to look for

specific incriminating items‘ ‖].)

We also reject defendant‘s contention that the categories of the search

warrants lacked sufficient particularity and allowed the searching officers

―almost‖ unfettered discretion. ―A search warrant must ‗particularly describ[e] the

place to be searched.‘ (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13; see also

Pen. Code, § 1525.) ‗The manifest purpose of this particularity requirement was

to prevent general searches. By limiting the authorization to search to the specific

areas and things for which there is probable cause to search, the requirement

ensures that the search will be carefully tailored to its justifications, and will not

take on the character of the wide-ranging exploratory searches the Framers

intended to prohibit.‘ (Maryland v. Garrison (1987) 480 U.S. 79, 84.)‖ (People v.

Amador (2000) 24 Cal.4th 387, 392.) ―Whether the description in a warrant of

property to be seized is sufficiently definite is a question of law subject to

independent review by the appellate court.‖ (Kraft, supra, 23 Cal.4th at p. 1041.)

Here, the warrants sought evidence of defendant‘s possession and ownership

of weapons and explosives, photographs and documents related to Black and ESL,

documents concerning his employment at Covalent, proof of ownership and of a

possessory right to the residence and the vehicle, and his medical and psychiatric

records. Such description was sufficiently definite to allow the officer conducting

the search to identify the property to be seized, and to prevent a wide-ranging

exploratory search.

58

b. Storage locker search

On February 25, 1988, Detective Piatanesi obtained a search warrant for the

storage locker rented in Mei Chang‘s name the weekend before the commission of

the crimes.12 The supporting affidavit sets forth the same information as was

provided in support of the warrant to search defendant‘s residence and vehicle. In

addition, the affidavit noted that Mei Chang had rented the storage locker on

February 13, three days before the shootings, at defendant‘s request — because he

had credit problems and needed the space to store computers, books, and tools.

The affidavit further observed that Chang was with defendant when the locker was

rented, but not when he moved property into it.

In the course of searching the storage locker, Piatanesi observed an IBM

computer among the locker‘s contents. On March 18, 1988, he obtained a second

warrant to search the locker, authorizing seizure of the computer observed during

the first search of the locker, ―including all software and hardware.‖

Defendant contends the first warrant to search the storage locker lacked

probable cause and sufficient particularity, and because of these defects, the

second warrant authorizing seizure of the computer was based upon tainted

evidence. As to the first search warrant, in light of the circumstance that any items

stored in the locker were placed there sometime during the three days preceding

the shootings, a magistrate reasonably could conclude there was probable cause to

believe incriminating evidence would be found in the storage locker. (See


12

The storage locker warrant identified the same evidence as that itemized in

the warrants authorizing the search of defendant‘s residence and vehicle —
defendant‘s firearms, ammunition, explosives, documents regarding and
photographs of Black and ESL, employment at ESL and Covalent, and medical
records — except the evidence respecting ownership and control of the storage
locker apart from the residence and the vehicle.

59

Gonzalez, supra, 51 Cal.3d at p. 1206.) Because the search authorized by the

warrant was virtually identical to the search authorized with respect to defendant‘s

residence and vehicle, the warrant was sufficiently particular in describing the

objects of the search, for the same reasons as stated above. Moreover, defendant

has not identified any item seized that was admitted at trial. Accordingly, even if

we were to assume ―some provision of the warrant was overbroad, defendant has

not shown that any evidence should have been suppressed.‖ (People v. Carpenter

(1999) 21 Cal.4th 1016, 1043-1044 (Carpenter).)

Because we conclude the first search of the storage locker was proper, we

reject defendant‘s contention that the second search warrant was tainted by the

first assertedly unconstitutional search of the storage locker. His additional

contention — that documents from the telephone company, Pacific Bell, which

were not identified in the warrant and were unrelated to the computer, improperly

were seized in the second search — also fails. The documents from Pacific Bell

were seized pursuant to a search warrant directed to Pacific Bell, and the return to

that separate warrant apparently was attached inadvertently to the return to the

second storage locker search warrant. Piatanesi testified that diskettes,13 not

documents from Pacific Bell, were seized in connection with the second search of

the locker.

c. Seizure of personnel records

On February 17, 1988, warrants were issued to search for documents and

correspondence at ESL and Covalent relating to defendant, and to search his

Covalent work area. The warrants were based upon the same affidavit that led to

the issuance of warrants to search defendant‘s residence and vehicle. In addition

13

The computer no longer was in the storage locker at the time of the second

search.

60

to the information noted above, the affidavit stated that complaints regarding

harassment are kept in personnel files, and based upon Detective Piatanesi‘s

training and experience, individuals keep personal effects in their work areas.

(See ante, pp. 56-57.)

Defendant contends the affidavit in support of the warrants did not set forth

facts adequate to establish probable cause to believe relevant evidence might be

found at ESL and Covalent. We disagree. As noted, the facts enumerated in the

affidavit indicated that on February 16 defendant killed seven individuals and shot

Black at ESL because he was a disgruntled former employee and a rejected suitor

of Black, he was subject to a recent temporary restraining order to stay away from

Black, and he had driven a motor home filled with gallons of inflammable liquid,

ammunition, and a pistol to ESL on the day of the shooting. In view of the nature

of the crimes and the items sought, a magistrate reasonably could conclude

defendant‘s employment files and work area were logical places to search for

incriminating items. (Gonzalez, supra, 51 Cal.3d at p. 1206.)

Defendant further contends the warrants lacked sufficient particularity,

because they sought ―[a]ny and all documents and correspondence relating to

[defendant].‖ Again, we disagree. ―[I]n a complex case resting upon the piecing

together of ‗many bits of evidence,‘ the warrant properly may be more generalized

than would be the case in a more simplified case resting upon more direct

evidence.‖ (People v. Bradford (1997) 15 Cal.4th 1229, 1291.) In any event,

defendant has not identified any item seized pursuant to these warrants that was

admitted at trial. ―Accordingly, even if we were to assume these warrants were

overbroad, defendant has not shown that any evidence should have been

suppressed.‖ (Carpenter, supra, 21 Cal.4th at pp. 1043-1044.) Defendant

speculates that evidence found during the search, even if not admitted at trial, may

61

have been used to obtain evidence to counter the defense case in mitigation, but he

fails to demonstrate any factual basis for this claim.

d. School and medical records search

Defendant contends warrants to obtain his school and medical records from

the high school and several colleges he attended were overbroad. As he notes,

however, no medical records were produced in response to the warrants, and the

school transcripts that were produced were not introduced by the prosecution at

trial. Hence there was no evidence admitted that should have been suppressed.

(Carpenter, supra, 21 Cal.4th at pp. 1043-1044.) Defendant speculates that

evidence found during the search, even if not admitted at trial, may have been used

to obtain evidence to counter the defense case in mitigation, but he fails to

demonstrate any factual basis for this claim.

2. Evidentiary rulings

Defendant claims that certain evidentiary rulings were erroneous and

violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution.

a. Letters to Laura Black

Defendant wrote Black approximately 150 to 200 letters. During the

prosecution‘s direct examination of Black, 20 of these letters were admitted into

evidence. The letters included the threatening comments noted above, and also

showed defendant importuning Black to socialize with him, his obsessive need to

know her whereabouts, his desire to buy a house with her, and information

regarding his relationship with Mei Chang, his college classes, his work at

Covalent and another company, his roommate, the foreclosure on his house, and

his obligation to pay $30,000 to the IRS. The letters also included statements such

as that defendant cared for Black and ―tried never to really threaten you,‖ ―I

62

wouldn‘t hurt you and I think you realized that,‖ and ―Jean,‖ presumably Jean

Tuffley, ―should have sent us both to a marriage counselor to find out why we

fight like an[] old married couple.‖

During defendant‘s cross-examination of Black, he sought to question her

concerning 13 other letters he wrote to her. He asserted those letters were

admissible under Evidence Code section 356,14 because they were necessary to

understand other documents admitted into evidence. The trial court admitted two

of the 13 letters and excluded the remaining 11 letters as hearsay, stating that,

although the latter letters pertained to the same general subjects as the letters

proffered by the prosecution, they were ―separate and distinct statements‖ from the

letters proffered by the prosecution.

During defendant‘s testimony on direct examination, he again sought

admission of the 11 letters, arguing they were necessary to understand defendant‘s

state of mind and corroborated his testimony regarding his state of mind. He also

argued they were admissible under Evidence Code section 356 to show the

evolution and context of the letters. The trial court sustained the prosecutor‘s

objection, ruling the letters were hearsay.

Near the conclusion of defendant‘s testimony on direct examination,

defendant sought to introduce six additional letters. The court admitted two of

these letters. The two letters, and the two previously proffered by defendant and

admitted by the court, noted that over the prior period of nearly three years,


14

Evidence Code section 356 provides: ―Where part of an act, declaration,

conversation, or writing is given in evidence by one party, the whole on the same
subject may be inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation, or writing is
given in evidence, any other act, declaration, conversation, or writing which is
necessary to make it understood may also be given in evidence.‖

63

defendant had ―never hurt you or your property,‖ referred to Black as the ―love of

my life,‖ profusely apologized for past behavior, and asked Black to buy a house

with him, enumerating 16 discussion points (such as what would happen if one

person missed a monthly payment) for working ―out an agreement that both of us

can live by.‖

Defendant contends that all of the letters were admissible under Evidence

Code section 356 during his testimony, because the letters presented ―the true

tenor of the correspondence‖ by showing ―not only [defendant‘s] obsessive need

for Black, but also his attempts to understand her, his concern with how she was

feeling, and his attempts to control his behavior.‖ He asserts, ―[I]f it is

unreasonable to introduce . . . all 150 letters — then at least a representative

portion should be shown to the jury.‖

The trial court did not abuse its discretion in concluding that the proffered

letters were not ―necessary‖ to the jury‘s understanding of the letters introduced by

the prosecution. (Evid. Code, § 356.) Rather, the letters proffered by the

prosecution were ―independently comprehensible‖ on the relevant topics of

defendant‘s premeditation and intent to kill. (People v. Barrick (1982) 33 Cal.3d

115, 131, fn. 4 [postarrest statement not necessary to understand prearrest

statement].)15 Therefore Evidence Code section 356 did not provide a basis for

the admission of these letters.


15

The cases upon which defendant relies are distinguishable. In Hinton v.

Welch (1918) 179 Cal. 463, 466, numerous letters written by the plaintiff were
introduced against her. In contrast, defendant here sought to introduce his own
out-of-court statements during his direct testimony. (See Evid. Code, § 1220.)
Likewise, admission of the reply to one of the plaintiff‘s letters asserting a
property interest falls within the language of Evidence Code section 356. (Hinton,
at pp. 465-466.) In People v. Snyder (1958) 50 Cal.2d 190, 192, we held that in
defending a charge that the defendant had committed perjury in his testimony

(footnote continued on next page)

64

Defendant also contends the letters were admissible to establish his state of

mind. (See People v. Green (1980) 27 Cal.3d 1, 23, fn. 9, disapproved on other

grounds in People v. Martinez (1999) 20 Cal.4th 225, 239, and People v. Hall

(1986) 41 Cal.3d 826, 834, fn. 3 [victim‘s out-of-court statement was not hearsay

when offered as circumstantial evidence of the victim‘s state of mind rather than

to prove the truth of the statement]; Evid. Code, § 1250, subd. (a)(1) [evidence of

a statement of the declarant‘s then-existing state of mind is not made inadmissible

by the hearsay rule when offered to prove the declarant‘s state of mind].)

Defendant testified, describing his various states of mind not only during the years

he pursued Black and sent her numerous letters, but also when he received the

TRO, as he thereafter prepared to confront Black, and as he undertook his assault

upon the ESL facility. Moreover, the letters that were admitted established the

facts he claims would have been adduced by the excluded letters, that is,

defendant‘s purported love and concern for Black, his obsessive need for and

delusion regarding her, and his attempts to control his behavior. Therefore, to the

extent the letters he proffered establish the depth of his delusion, and thereby

suggest ―the destruction of the psychic reality [he] had constructed and maintained

in his mind for four years‖ and explain his state of mind during his rampage, their

exclusion was harmless. It is not reasonably probable a result more favorable to

defendant would have been reached had the letters been admitted to establish his


(footnote continued from previous page)

before the grand jury, the defendant was permitted to introduce portions of the
grand jury testimony that tended to explain the testimony upon which the
prosecutor relied in proving the perjury charge, and to demonstrate that the
defendant had not testified falsely. (Id. at pp. 193-195.) Hence Snyder is not
authority for the admission of letters different from those upon which the
prosecution relied.

65

state of mind. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Although

defendant makes no persuasive argument supporting his contention that the

exclusion of the letters constitutes a violation of his right to present a defense, we

observe that, in light of the extensive evidence presented relating to defendant‘s

state of mind, exclusion of the proffered letters also was harmless beyond a

reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.)16

b. Impeachment of Gerald Hirst

As noted above, Gerald Hirst testified that when he, Lawrence Kane, and

defendant met approximately two months prior to defendant‘s commission of the

crimes, they discussed how to get through ESL‘s security doors and fantasized

about shooting ESL‘s equipment. During their conversation, defendant learned

where Black‘s and Hirst‘s offices were located. (See ante, pp. 6-7.)

The trial court ruled in limine that defendant would not be allowed to

impeach Hirst with evidence establishing that in 1986, Hirst had suffered a

misdemeanor conviction for child molestation, or with the conduct underlying that

conviction. The court did not state the basis for its ruling.

Even assuming the trial court erred in precluding impeachment of Hirst with

evidence of his act of child molestation, defendant fails to demonstrate, as he

must, that the ―cross-examination would have produced ‗a significantly different

impression of [the witness‘s] credibility.‘ ‖ (People v. Frye (1998) 18 Cal.4th

894, 946 (Frye), disapproved on other grounds in Doolin, supra, 45 Cal.4th at

p. 421, fn. 22.) The accuracy and veracity of Hirst‘s testimony was undermined

by other evidence: he was completely deaf in one ear; he was depressed and in


16

Defendant further asserts the letters would have personalized him at the

penalty phase. This purpose was irrelevant at the guilt phase, and defendant did
not seek admission of the letters at the penalty phase.

66

therapy at the time of the conversation with defendant; he refused to allow the

police to record interviews with him; and his earlier statements to the police that

his conversation with defendant occurred at the time Hirst left ESL in

January 1988, and that he knew Black, were inconsistent with his trial testimony

that the conversation occurred in December 1987, and that he did not know Black.

Moreover, and contrary to defendant‘s contention, Hirst‘s testimony was not

―the single most important evidence of premeditation offered by the prosecution.‖

Rather, aside from this testimony, there was overwhelming evidence of

premeditation with respect to all of the killings, including the murder of Lawrence

Kane. During the two years preceding commission of the crimes, defendant told

several individuals at ESL that he possessed guns and either knew how or was not

afraid to use them. Although he discussed shooting ESL equipment with Hirst,

during that same time period he mentioned the shooting massacre at the San

Ysidro McDonald‘s to a different witness, Burch, and wondered what ESL would

do if he committed such a massacre there. Days before the shooting spree,

defendant sold his truck for much less than it was worth, rented a storage locker,

purchased a new Benelli shotgun by tendering a bad check, purchased large

amounts of ammunition, practiced shooting ―man-shaped‖ targets, rented a motor

home that allowed him to prepare for his assault without observation, and changed

his life insurance beneficiary. His will was left on top of his computer terminal.

Finally, on February 16, 1988, defendant entered ESL during work hours, heavily

armed.

c. Evidence of defendant’s interest in flame guns

During the direct testimony of Mei Chang, defense counsel sought to

preclude reference to an incident that occurred the weekend preceding commission

of the crimes, when defendant expressed interest in a flame gun. The court

67

overruled the objection, finding the evidence relevant and not unduly prejudicial

under Evidence Code section 352.

Chang testified that on the night of Valentine‘s Day, she and defendant

watched the movie ―Rambo.‖ The prosecutor inquired whether defendant told

Chang ―to pay any special attention to some parts of the movie?‖ Chang identified

―[t]he firing,‖ and explained, ―in the movie lots of fire guns, fires.‖ The

prosecutor asked, ―Did he say anything about any particular kind of gun?‖ Chang

responded, ―I think that‘s the one he was using, the one with a lot of fire out. A

fire gun.‖

We reject defendant‘s contention that the evidence was irrelevant and

inflammatory. The evidence was relevant because it demonstrated defendant‘s

continuing interest in firearms during a period immediately preceding defendant‘s

charged criminal conduct. When contrasted with defendant‘s murderous assault

two days later, the evidence cannot be characterized as unduly inflammatory. The

trial court did not abuse its discretion in admitting this evidence. (People

v. Barnett (1998) 17 Cal.4th 1044, 1118 (Barnett) [applying abuse of discretion

standard of review].) Nor did its admission violate defendant‘s right to a

fundamentally fair trial.

d. Conversation between Dennis Elliott and defendant

As noted above, Dennis Elliott, who previously had supervised defendant at

ESL, described at trial a conversation he had with defendant in March or April

1986. Elliott had reported to defendant what Elliott had heard concerning

defendant‘s conduct toward ―some girl,‖ and had urged defendant to stop

harassing her at work. Defendant had responded by expressing anger and

defiance.

68

Prior to Elliott‘s testimony regarding his conversation with defendant,

defendant objected that neither what Elliott had heard from other persons, nor his

conversation with defendant years before the charged crimes, was relevant to

defendant‘s state of mind on February 16, 1988, and that the testimony was unduly

prejudicial under Evidence Code section 352. The trial court overruled this

objection, stating that testimony concerning what Elliott had heard about

defendant ―chasing some girl‖ was being offered solely to explain why Elliott

spoke to defendant. Although the record is somewhat ambiguous, it appears the

court also ruled that the testimony of the conversation between defendant and

Elliott was relevant and not unduly prejudicial or time consuming under section

352.

Defendant contends that what Elliott heard from others about defendant

―chasing some girl‖ was hearsay. He also contends that Elliott‘s conversation

with defendant was irrelevant because it occurred two years before the murders

and did not imply ―any threat to kill anyone or to damage ESL property.‖

Defendant did not make a hearsay objection below, nor did he argue that the

conversation was irrelevant because it did not threaten violence or damage.

Therefore, these claims are forfeited and, moreover, are without merit, as are his

remaining relevance claims. As the trial court observed, testimony regarding what

Elliott heard was not hearsay because it was not offered for its truth. It was

relevant to explain why Elliott had a conversation with defendant. Defendant‘s

defiant response to Elliott‘s advice that he just do his job and avoid ―hassling‖ a

female coworker was relevant to defendant‘s state of mind, and to the prosecutor‘s

theory that defendant acted on February 16 in retaliation for perceived wrongs by

ESL and Laura Black. In addition, the prosecution properly was permitted to

demonstrate the circumstances that led over time to defendant‘s termination, and

ultimately to his attack on ESL.

69

e. Jean Tuffley’s testimony

Before trial, and again shortly before Tuffley testified, defendant moved to

exclude evidence of the February 1986 conversation between Tuffley and

defendant in which, according to Tuffley, defendant said, ―if we terminated him,

that his life would be over, he‘d have nothing to live for, and that he had guns and

he wasn‘t afraid to use them, and that if we terminated him, it would be over for

him and he‘d take people with him.‖ Tuffley asked, ―Rich, are you saying that

you would kill me?‖ According to Tuffley, defendant said, ― ‗Yes, but I would

take others, too.‘ ‖ Defendant asserted that the conversation was so remote in time

that it was irrelevant and immaterial, that it was improper character evidence

under Evidence Code section 1101, and that under Evidence Code section 352 its

minimal probative value was outweighed by its prejudicial impact. Defendant also

objected to Tuffley‘s testimony that defendant‘s comments put her in fear, and led

to ESL‘s assigning a different human resources person to deal with defendant, on

the ground Tuffley‘s state of mind was irrelevant. The trial court denied the

defense motions and overruled the objection.

Defendant claims that his mental state at the time of this conversation with

Tuffley was irrelevant because he ―did not kill or attempt to kill Tuffley,‖ and ―did

not kill anyone when he was terminated.‖ Although defendant did not kill

Tuffley, who was not present at M-5 on the afternoon of February 16, 1988, his

threats to her anticipate the scenario ultimately played out in the crimes that later

were committed. Hence the statements were powerful evidence of long-standing

motive and intent. They demonstrated that defendant‘s 1988 assault on ESL was

not a spontaneous occurrence, but a planned attack and the culmination of a

grudge he nursed for at least two years.

Defendant also claims Tuffley‘s testimony that defendant‘s comment made

her fearful and led to ESL‘s transferring responsibility over defendant from

70

Tuffley to her superior, Allen, should have been excluded because Tuffley‘s state

of mind was not at issue ―and the balance of the testimony is hearsay.‖ We

disagree. Tuffley‘s fear demonstrated she perceived the threat as serious.

Likewise, the circumstance that the personnel matter was transferred to someone

else dispelled any inference that Tuffley did nothing about the problem and thus

apparently did not believe defendant‘s threat was genuine. Finally, contrary to

defendant‘s contention, testimony that someone else assumed responsibility for

defendant‘s personnel matters was not an out-of-court statement and hence was

not hearsay. We conclude the trial court did not abuse its discretion in admitting

Tuffley‘s testimony. (See Barnett, supra, 17 Cal.4th at p. 1118.) We therefore

reject defendant‘s contention that its admission violated his rights to due process

and a reliable verdict.

f. Evor Vattuone’s testimony

Before Evor Vattuone testified, defendant sought to exclude reference to

Vattuone‘s conversation with defendant in late February or March 1986, in which

defendant told Vattuone that if defendant were to be served with a restraining

order, he would be very upset and did not know how he would respond, and that

―he had guns and he wasn‘t afraid to use them.‖ Defendant contended the

conversation was irrelevant because it occurred almost two years before defendant

was served with the TRO, constituted improper character evidence under Evidence

Code section 1101, and was unduly prejudicial Evidence Code section 352. The

trial court found the evidence was relevant and was not character evidence, and

that its probative value outweighed any prejudicial effect.

Defendant contends this testimony should have been excluded because in his

conversation with Vattuone defendant did not threaten to kill anyone; rather he

said he did not know how he would respond. Defendant also contends his state of

71

mind in 1986, and particularly his uncertainty concerning how he would respond

to a restraining order, was irrelevant. Defendant did not, however, state only that

he did not know how he would react; he said he had guns and was not afraid to use

them. This statement reasonably may be construed as a threat. Moreover,

according to Vattuone, when defendant said he did not know what he would do, he

did not seem perplexed, but serious and deliberate. Defendant‘s statements to both

Tuffley and Vattuone indicate he planned to shoot individuals at ESL if his access

to Black was limited. Far from irrelevant, his statements constituted evidence

establishing that he already was contemplating his eventual assault two years prior

to the ultimate event. We find no abuse of discretion and no infringement upon

defendant‘s right to due process and a reliable verdict.

g. Lieutenant Dow’s testimony that Black felt threatened

Sunnyvale Department of Public Safety Lieutenant Chris Dow, called by the

defense, testified that he interviewed Black twice in March 1988 following the

shootings. Black told Dow that she decided not to seek a restraining order after

she was told ESL would not pay for it. On June 1, 1988, after reviewing a copy of

Dow‘s report, Black amended this statement to say that an additional reason she

did not obtain a restraining order was that she did not have the time to do so.

Defense counsel asked Dow, ―Did she tell you . . . on June 1st . . . that the reason

she didn‘t get a restraining order was because she was afraid of [defendant]?‖

Dow answered, ―No.‖ Defense counsel asked, ―Did she tell you on June 1st . . .

that the reason[] she didn‘t get the restraining order was because she was

concerned with what [defendant] might do?‖ Dow answered, ―No.‖

On cross-examination, the prosecutor inquired whether Black told Dow,

during ―either of the taped conversations‖ about the restraining order, ―that she

also didn‘t get a restraining order because she figured it wasn‘t against the law for

72

the Defendant to be on a public street?‖ Dow responded, ―Yes.‖ The prosecutor

asked, ―Did you ever ask her specifically whether she didn‘t get a TRO or

restraining order because she was afraid of the Defendant?‖ Dow responded,

―No.‖ The prosecutor then asked, ―Did Miss Black, in the course of those

conversations, tell you that the Defendant had threatened her?‖ Defendant

objected that the question was beyond the scope of the direct examination, which,

he claimed, was limited to Dow‘s conversation with Black on June 1. The

objection was overruled, and Dow answered, ―Yes.‖

Defendant contends his objection should have been sustained under Evidence

Code section 773, because the direct examination was ―limited to the concerns that

influenced Black‘s initial decision not to get a restraining order. They did not

open up the content of all of her conversations with Dow.‖ ―Cross-examination

. . . ‗may be directed to the eliciting of any matter which may tend to overcome or

qualify the effect of the testimony given . . . on direct examination.‘ [Citation.]

The cross-examination is not ‗confined to a mere categorical review of the

matters, dates or times mentioned in the direct examination.‘ ‖ (People v.

McClellan (1969) 71 Cal.2d 793, 811.) Defendant‘s questioning of Dow may

have left the jury with the impression that Black was not frightened by defendant.

The prosecutor properly was allowed to question Dow concerning other statements

made by Black that tended to establish she was frightened by defendant. (See

People v. Farnam (2002) 28 Cal.4th 107, 187-188 [the prosecutor was entitled to

ask the defendant questions on cross-examination to rebut impressions left by the

defendant‘s testimony].) Thus, the trial court did not abuse its discretion in

allowing cross-examination of Dow concerning Black‘s statements to Dow

regarding threats made by defendant against Black. (See People v. Lancaster

(2007) 41 Cal.4th 50, 102 [― ‗It is settled that the trial court is given wide

discretion in controlling the scope of relevant cross-examination‘ ‖].)

73

h. Alleged pattern of inconsistent determinations

Defendant contends the trial court‘s evidentiary rulings reveal a pattern of

inconsistent determinations that compromised the fairness of the trial and unfairly

favored the prosecution. This essentially is a claim of judicial bias, which

defendant forfeited by failing to assert it below. (People v. Samuels (2005) 36

Cal.4th 96, 114; see People v. Chatman (2006) 38 Cal.4th 344, 362-363.) It also

is without merit. We have rejected all of defendant‘s claims of evidentiary error

except for assumed error in the exclusion of evidence of Hirst‘s prior

misdemeanor conviction, and in the exclusion of defendant‘s letters as evidence of

his state of mind. Although defendant summarily cites many additional examples

in his supplemental opening brief which, he claims, illustrate that the trial court

made erroneous and inconsistent rulings, he provides no analysis to establish that

the trial court abused its discretion in connection with any of these rulings. ―[A]

trial court‘s numerous rulings against a party — even when erroneous — do not

establish a charge of judicial bias, especially when they are subject to review.‖

(People v. Guerra (2006) 37 Cal.4th 1067, 1112.) Defendant fails to demonstrate

any judicial misconduct or bias, let alone misconduct or bias that was so

prejudicial that it deprived defendant of ― ‗ ―a fair, as opposed to a perfect,

trial.‖ ‘ ‖ (Ibid.)

i. Cumulative error

Defendant contends the trial court‘s errors on the evidentiary rulings were

individually and cumulatively prejudicial because they deprived him ―of his right

to present probative evidence or exclude prejudicial evidence,‖ and constituted ―an

invidious and pervasive pattern of biased rulings.‖ As noted, we have assumed

error only in the exclusion of evidence related to Hirst‘s prior misdemeanor

conviction, and in the exclusion of defendant‘s letters as evidence of his state of

mind. Hirst was impeached through other testimony, and the issues to which

74

Hirst‘s testimony and the excluded letters were relevant were established by other

overwhelming evidence. Defendant was not prejudiced under any standard by

these two evidentiary rulings. Nor, once again, has any bias been demonstrated.


3. Alleged instructional error


a. Felony-murder and felony-murder special-circumstance

instructions based upon burglary allegations

The prosecution proceeded on two theories of first degree murder: (1) all of

the homicides were willful, deliberate, and premeditated, and (2) the homicides

perpetrated within the M-5 building were committed in the course of a burglary.

(§ 189.)17 The trial court instructed the jury on two theories of burglary: ―Every

person who enters any building with a specific intent to commit assault with a

firearm upon the person of Laura Black in violation of Penal Code Section

245(a)(2) or with the specific intent to commit malicious damage of property of a


17

Section 189 provides in relevant part: ―All murder which is perpetrated by

means of a destructive device or explosive, a weapon of mass destruction,
knowing use of ammunition designed primarily to penetrate metal or armor,
poison, lying in wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or which is committed in the perpetration of, or attempt to
perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any
murder which is perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree. All other kinds of murders are of the
second degree.‖


Although section 189 refers to ―[a]ll murder‖ that is ―committed in the

perpetration of, or attempt to perpetrate‖ certain felonies, this language has long
been broadly interpreted to mean ―any killing in the perpetration of or attempt to
perpetrate‖ an enumerated crime. (People v. Coefield (1951) 37 Cal.2d 865, 868;
People v. Denman (1918) 179 Cal. 497, 498-499 [―one who kills another in the
perpetration or attempt to perpetrate‖ the crimes enumerated in section 189 is
guilty of first degree murder under the provisions of that statute, ―regardless of any
question whether the killing was intentional or unintentional‖].)

75

value in excess of five thousand dollars in violation of [former] Penal Code

Section 594(b)(1), each a felony, is guilty of the crime of burglary in violation of

Penal Code section 459.‖ (Italics added; see also § 459 [any person who enters a

defined structure with the intent to commit any felony is guilty of burglary].) The

court also gave an instruction based upon the felony-murder rule: ―The unlawful

killing of a human being . . . which occurs during the commission or attempted

commission . . . of the crime of burglary is murder of the first degree when the

perpetrator had the specific intent to commit such crime.‖ The court further

explained that ―[a] homicide is committed in the perpetration of a burglary if the

killing and the burglary are parts of one continuous transaction,‖ but ―[t]here is no

requirement that the homicide occur while committing or while engaged in the

burglary or that the killing be a part of the burglary other than that the two acts be

part of one continuous transaction.‖ Finally, the court instructed the jurors that

they could find true the special circumstance allegation that defendant committed

a murder while engaged in the commission or attempted commission of a burglary

if defendant committed a murder while committing or attempting to commit a

burglary, and did so to carry out or advance the commission of the burglary or to

facilitate his escape or avoid detection. The court‘s instructions made clear that

the special circumstance allegation was not established if the burglary or

attempted burglary was merely incidental to the commission of the murder.18

Defendant claims that neither burglary theory supports a finding that the

homicides committed within building M-5 constituted felony murder. First,

defendant asserts, the charge of burglary with the intent to commit property


18

As to Lawrence Kane, who was killed before defendant entered the

building, the prosecution proceeded solely on a theory of willful, deliberate, and
premeditated murder.

76

damage in excess of $5,000 could be either a felony or a misdemeanor under

former section 594, subdivision (b)(1), depending upon the sentence imposed by

the court. Therefore, defendant contends, he could not have entered ESL‘s facility

with the intent to commit a felony, and thus could not be found guilty of burglary.

Second, defendant asserts, the burglary premised upon entry with intent to assault

Black would have ―merged‖ with the death of Black, had she been killed, and

would not have constituted a felony — independent of the killing itself — upon

which to base a theory of felony murder. (People v. Wilson (1969) 1 Cal.3d 431

(Wilson).) Therefore, he contends, his entry with the intent to assault Black cannot

serve as the basis for the felony murder of six other victims who were killed inside

the ESL facility, nor can it support a special circumstance finding that the murders

occurred while defendant was engaged in committing a burglary. Defendant

claims the giving of the foregoing instructions violated his rights under the Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution.

Defendant‘s first challenge to the felony-murder instruction is that a violation

of former section 594, subdivision (b)(1) ―is not a felony but a wobbler, whose

ultimate classification will depend on the judge‘s sentence.‖19 Consequently, he

contends, a burglary count based upon an entry with intent to violate former

19

At the time of defendant‘s crimes, section 594 provided in relevant

part:


―(a) Every person who maliciously (1) defaces with paint or any other

liquid, (2) damages, or (3) destroys any real or personal property not his own, in
cases otherwise than those specified by state law, is guilty of vandalism.


―(b)(1) If the amount of defacement, damage or destruction is five

thousand dollars ($5,000) or more, vandalism is punishable by imprisonment in
the state prison, or in a county jail not exceeding one year, or by a fine of not more
than ten thousand dollars ($10,000), or by both that fine and imprisonment.‖
(Stats. 1985, ch. 781, § 1, p. 2520.)

77

section 594, subdivision (b)(1) is not a felony burglary. A felony, however, is

defined as ―a crime which is punishable with death or by imprisonment in the state

prison.‖ (§ 17, subd. (a), italics added.) Former section 594, subdivision (b)(1)

provided that ―[i]f the amount of defacement, damage or destruction is five

thousand dollars ($5,000) or more, vandalism is punishable in the state

prison . . . .‖ That a judge ultimately may impose a sentence other than state

prison, making the crime a misdemeanor, does not remove former section 594,

subdivision (b)(1) from the class of crimes that may form the basis for a burglary

conviction. (See § 17, subd. (b)(1); see also People v. Rathert (2000) 24 Cal.4th

200, 202, 208 [the defendant was convicted of burglary predicated upon felony

false personation, which crime is a ―wobbler‖].) The instructions required the

jury, in order to find defendant guilty of burglary, to find that he entered with the

intent to cause property damage in excess of $5,000. Such conduct is punishable

by imprisonment in state prison. That is sufficient to establish the commission of

a felony supporting the giving of the burglary instruction.20

Defendant‘s second challenge to the felony-murder instruction is that the

entry with the intent to assault Black merged with the six homicides committed

inside ESL‘s facility. His theory finds its roots in People v. Ireland (1969) 70

Cal.2d 522, 539 (Ireland), in which the defendant was found guilty of the second

degree murder of his wife, whom he fatally assaulted with a firearm. We

concluded that the jury instructions may have been understood to direct the jury to


20

We also reject defendant‘s further contention that the court‘s instructions

concerning vandalism as a predicate crime for burglary were erroneous because
―the relevant criminal intent under section 594‖ is not intent to cause property
damage of at least $5,000, but only to deface, damage, or destroy property. If, by
requiring the jury to find an intent to cause property damage in excess of $5,000,
the instruction required more than the statute, this inured to defendant‘s benefit.

78

―find defendant guilty of second degree murder if it found only that the homicide

was committed in the perpetration of the crime of assault with a deadly weapon‖

(id. at p. 539), and we held that it was error to instruct the jury concerning felony

murder in these circumstances. Our opinion in Ireland explained that use of the

felony-murder rule in cases in which the defendant is charged with assaulting and

killing the victim ―would effectively preclude the jury from considering the issue

of malice aforethought in all cases wherein homicide has been committed as a

result of a felonious assault — a category which includes the great majority of all

homicides. This kind of bootstrapping finds support neither in logic nor in law.‖

(Ibid.)

In Wilson, supra, 1 Cal.3d 431, we extended Ireland‘s merger doctrine to

first degree felony murder based upon a burglary committed with the intent to

assault the murder victim. The first degree felony-murder rule is set forth in

section 189: ―All murder which is . . . committed in the perpetration of, or attempt

to perpetrate, [certain enumerated felonies, including] burglary, . . . is murder of

the first degree.‖ In Wilson, the instructions authorized the jury to find the

defendant guilty of first degree murder if ―he entered [his wife‘s] bathroom with

an intent to commit an assault with a deadly weapon and thereby committed a

burglary, in the course of which he killed his wife.‖ (Id. at p. 439.) We observed

that ―the only basis for finding a felonious entry is the intent to commit an assault

with a deadly weapon,‖ and concluded that, ―[w]hen, as here, the entry would be

nonfelonious but for the intent to commit the assault, and the assault is an integral

part of the homicide and is included in fact in the offense charged, utilization of

the felony-murder rule extends that doctrine ‗beyond any rational function that it is

designed to serve.‘ ‖ (Id. at p. 440.) Therefore, we held that ―an instruction on

first degree felony murder is improper when the underlying felony is burglary

79

based upon an intention to assault the victim of the homicide with a deadly

weapon.‖ (Id. at p. 442, italics added.)

Defendant proposes that the merger rule established in Wilson be extended

further to prohibit application of the felony-murder rule when the burglary charge

is based upon an intention to assault someone other than the victim of the

homicide. Defendant relies upon People v. Sears (1970) 2 Cal.3d 180 (Sears), in

which the defendant entered his estranged wife‘s home and assaulted her and her

daughter, killing the daughter. The jury instructions, together with the trial court‘s

answer to a question from the jury, ―could reasonably be understood to mean that

if defendant entered with intent to assault his wife and stepdaughter he was guilty

of burglary and that the first degree felony-murder rule was applicable.‖ (Id. at

p. 188, italics added (lead opn. of Peters, J.).) Therefore, under the principles

enunciated in Ireland, supra, 70 Cal.2d 522, and Wilson, supra, 1 Cal.3d 431,

Justice Peters‘s lead opinion, in which Chief Justice Traynor and Justice Tobriner

concurred, held that the merger doctrine precluded reliance upon the felony-

murder rule to find the defendant guilty of first degree murder. In his concurring

opinion, in which Justices Burke and Sims (assigned) concurred, Justice Sullivan

stated that he ―agree[d] generally . . . that the court‘s instructions on the first

degree felony-murder rule in this case were erroneous . . . . However, I do not

agree with, and do not join in, the additional views of the [lead opinion], relating

to the felony-murder rule.‖ (Id. at p. 191 (conc. opn. of Sullivan, J.).)21

Defendant relies upon the ―additional views‖ of the lead opinion, to which

Justice Sullivan‘s concurring opinion referred. (Sears, supra, 2 Cal.3d at p. 191

(conc. opn. of Sullivan, J.).) Those additional views related to the Attorney


21

Justice McComb summarily dissented. (Sears, supra, 2 Cal.3d at p. 191.)

80

General‘s theory that the evidence also supported the conclusion that the

defendant entered with the intent to assault his wife but not his stepdaughter, and

―that the felony-murder rule is applicable on the theory that the burglary based on

the intent to assault the wife was independent of and collateral to the killing of the

stepdaughter.‖ (Id. at p. 188 (lead opn. of Peters, J.).) The lead opinion responded

that ―the instructions given to the jury did not posit the applicability of the felony-

murder rule upon any such theory.‖ (Id. at p. 189.) Nonetheless, the lead opinion

expressed the view that ―[i]t would be anomalous to place the person who intends

to attack one person and in the course of the assault kills another inadvertently or

in the heat of battle in a worse position than the person who from the outset

intended to attack both persons and killed one or both.‖ (Ibid.)

As our summary reflects, a majority of the justices in Sears agreed only that

the actual instruction and the court‘s answer to a jury inquiry — which reasonably

could be understood to signify that ―if defendant entered with intent to assault his

wife and stepdaughter he was guilty of burglary and . . . the first degree felony-

murder rule was applicable‖ (id. at p. 188 (lead opn. of Peters, J.), italics

added) — were inconsistent with the merger doctrine. (Ibid.) Furthermore, the

additional views expressed in response to the Attorney General‘s theory are dicta

in the lead opinion itself. Thus, the lead opinion and the concurring opinion in

Sears establish only that if the jury in the present case had been instructed that

defendant entered ESL‘s facility with the intent to assault all of his homicide

victims, the merger doctrine would have precluded reliance upon the felony-

murder rule to find the defendant guilty of first degree murder.

Following our opinion in Sears, supra, 2 Cal.3d 180, we have assumed that

the felony-murder rule applies to a burglary in which there was an intent to assault

an individual other than the homicide victim. (See People v. Gutierrez (2002) 28

Cal.4th 1083 (Gutierrez.) In Gutierrez, the defendant forced his way into his

81

estranged wife‘s home, and while his accomplice held a gun to the wife in the

living room, the defendant forced his way into the bathroom and killed his wife‘s

boyfriend. The jury was instructed on first degree felony murder based upon

burglary committed by the defendant with the intent to commit five target felonies,

including assault with a deadly weapon upon his wife. We upheld the defendant‘s

first degree murder conviction, observing: ―Notably, [the killing of the boyfriend]

was not alleged as a target offense of the burglary . . . . Had the independent target

offenses not been alleged in connection with the burglary charge, the merger

doctrine might have applied. (See People v. Wilson (1969) 1 Cal.3d 431, 439-

442.)‖ (Gutierrez, supra, 28 Cal.4th at p. 1140, fn. 7.) Similarly, in the present

case, the assaults upon victims other than Black were not alleged as target offenses

of the burglary. Rather, only the target offenses of intent to assault Black and to

vandalize were alleged in connection with the burglary charge. Therefore, the

target offenses alleged by the prosecutor did not merge with the killings of the six

individuals inside the M-5 building, and there was no error in the instruction on

felony murder.22

22

Although we conclude that both theories of felony murder were valid, we

note that the record reflects the jury also must have concluded the homicides were
willful, deliberate, and premeditated. The prosecution argued that if the jury
found that when defendant ―went to ESL that day [he] had it in mind that he would
kill anyone who even marginally became an obstacle during his mission[,] . . .
[t]hat would be willful, deliberate and premeditated murder as to those persons he
killed while he was on his mission.‖ The prosecution made essentially the same
argument in connection with the attempted murder counts — if defendant ―went
into that building intending to shoot everybody he could see, intending to kill
everybody he could see, then that would be willful, deliberate and premeditated
attempted murder on each of those persons that he went after.‖ The jury
specifically found that all five counts of attempted murder were willful, deliberate,
and premeditated. Other than Black, for whom attempted murder was not
charged, defendant knew none of the individuals he shot, and nothing in the record
indicates that the circumstances of any of the murders were different from the

(footnote continued on next page)

82

Although our jurisprudence, including the decision in Wilson, supra, 1 Cal.3d

431, supports the conclusion that defendant‘s entry with intent to assault Black did

not merge with the six homicides committed within the ESL facility, we

acknowledge that our past decisions applying the merger doctrine to first degree

felony murder premised upon burglary have resulted in questionable distinctions.

As illustrated by Sears, supra, 2 Cal.3d 180, whether a defendant may be

convicted of felony murder may depend upon whether the prosecutor chooses to

allege and prove that the defendant entered with the intent to assault only one


(footnote continued from previous page)

circumstances of the attempted murders in any way that could affect whether the
murders were willful, deliberate, and premeditated. Indeed, the murder of Ronald
Doney and the attempted murder of Richard Townsley occurred at the same time.
The jury also specifically found that the murder of Lawrence Kane, who was shot
outside ESL, was willful, premeditated, and deliberate. Thus, there is no logical
basis upon which to conclude that the jury could have found that the murder of
Kane and the attempted murders of five other individuals were willful, deliberate,
and premeditated, but that the other homicides were not. Therefore, even if the
jury had been improperly instructed regarding felony murder, ―other aspects of the
verdict or the evidence leave no reasonable doubt that the jury made the findings
necessary for‖ premeditated murder, and hence any error was harmless beyond a
reasonable doubt. (People v. Chun (2009) 45 Cal.4th 1172, 1205 (Chun); see
Hedgpeth v. Pulido (2008) 555 U.S. ___ [129 S.Ct. 530] (per curiam) [when the
jury was instructed on both a valid and an invalid theory of guilt, the conviction
will not be set aside if the invalid instruction was harmless].)


Similarly, although our conclusion defeats defendant‘s challenge to the

burglary-murder special circumstance, we note that there is no reasonable
possibility that the jury‘s findings on the burglary-murder special circumstance
affected the penalty determination. (People v. Morgan (2007) 42 Cal.4th 593, 628
(Morgan); see Brown v. Sanders (2006) 546 U.S. 212, 223-224.) The jury would
have heard the same evidence regarding the killings, in proof of the prosecutor‘s
theory of premeditated murder and the multiple-murder special circumstance, as it
heard regarding the burglary-murder special circumstance. (People v. Bonilla
(2007) 41 Cal.4th 313, 334 [second special circumstance ―was superfluous for
purposes of death eligibility and did not alter the universe of facts and
circumstances to which the jury could accord . . . weight‖].)

83

victim, or also intended to assault another person, the homicide victim. As

illustrated by Gutierrez, supra, 28 Cal.4th 1083, a defendant who enters with the

intent only to assault the homicide victim may not be convicted of felony murder,

but a defendant who also harbors an intent to commit a less serious felony may be

found guilty of felony murder in connection with the intended assault.

In addition to these analytical anomalies, we note that our recent opinion in

Chun, supra, 45 Cal.4th 1172, which analyzed the basis of the second degree

felony-murder rule, has highlighted the difference between the sources of the

second degree felony-murder rule — the context in which the merger doctrine

developed — and the first degree felony-murder rule. In Chun, we recognized that

the second degree felony-murder rule reflects a judicial interpretation of section

188‘s definition of implied malice. Consequently, the merger doctrine developed

as a judicial interpretation of section 188. This clarification raises the question of

whether Wilson‘s application of the merger doctrine in the context of first degree

felony murder is an appropriate ―interpretation‖ of section 189‘s definition of first

degree felony murder. For the reasons set forth below, we conclude that Wilson,

supra, 1 Cal.3d 431, erred in extending the merger doctrine to first degree felony

murder. 23


23

Our holding in Wilson, supra, 1 Cal.3d at p. 440, was rejected by New

York (People v. Miller (N.Y. 1973) 297 N.E.2d 85, 87, fn. 3 (Miller)), and
subsequently was rejected by numerous other jurisdictions, rendering it a minority
rule. (See People v. Lewis (Colo. Ct. App. 1989) 791 P. 2d 1152, 1153 [court
observed a ―majority of jurisdictions hold that a burglary charge premised on an
underlying crime of assault may sustain a finding of felony murder,‖ and expressly
declined to follow Wilson]; Blango v. United States (D.C. 1977) 373 A.2d 885,
888-889 [court expressly agreed with Miller‘s reasoning, and rejected the holding
of Wilson]; State v. Foy (Kan. 1978) 582 P.2d 281, 289 [court expressly concluded
Miller’s reasoning is persuasive, rejected Wilson, and held that the ―merger
doctrine does not apply in felony-murder cases where an aggravated burglary is

(footnote continued on next page)

84

―The [felony-murder] rule has two applications: first degree felony murder

and second degree felony murder. . . . First degree felony murder is a killing

during the course of a felony specified in section 189, such as rape, burglary, or

robbery. Second degree felony murder is ‗an unlawful killing in the course of the

commission of a felony that is inherently dangerous to human life but is not

included among the felonies enumerated in section 189 . . . .‘ [Citation.]‖ (Chun,

supra, 45 Cal.4th at p. 1182.) The source of the second degree felony-murder rule

has been questioned over the years, with some members of this court expressing

concern that the rule lacked a statutory basis. (Id. at pp. 1182-1183.) We resolved

the issue in Chun, in which we explained that the second degree felony-murder

rule ―is simply another interpretation of section 188‘s ‗abandoned and malignant


(footnote continued from previous page)

based upon an aggravated assault‖]; Finke v. State (Md. Ct. Spec. App. 1983) 468
A.2d 353, 369 [rejecting Wilson on the ground that Maryland felony-murder
statute expressly includes ―murder committed in the perpetration of daytime
housebreaking,‖ and such burglary ―includes breaking a dwelling house ‗with
intent to commit murder or felony therein‘ ‖]; Commonwealth v. Claudio (Mass.
1994) 634 N.E.2d 902, 905-907 [court observed that Wilson was the ―minority
view,‖ and concluded that Miller and other cases following the majority view were
―better reasoned‖]; Smith v. State (Miss. 1986) 499 So.2d 750, 753-754 [court
declined to adopt the merger doctrine after discussing Wilson and observing that
Miller ―aptly states this Court‘s view regarding the application of our felony-
murder statute‖]; State v. Contreras (Nev. 2002) 46 P.3d 661, 662-664 [court
discussed Wilson and Miller, and held the merger doctrine did not apply to ―felony
murder when the underlying felony is burglary, regardless of the intent of the
burglary‖]; State v. Reams (Or. 1981) 636 P.2d 913, 919-920 [court discussed
Miller and Wilson, and expressly rejected Wilson’s ―logic‖ as applied to Oregon‘s
felony-murder and burglary statutes].

85

heart‘ language‖ (id. at p. 1184) and, therefore, is based upon statute.24 (Chun, at

p. 1188.)

Chun‘s identification of the statutory basis of the second degree felony-

murder rule focuses our inquiry upon the statutory basis of the first degree felony-

murder rule. Section 189 provides in relevant part that ―[a]ll murder . . . which is

committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking,

robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable

under Section 206, 286, 288, 288a, or 289, . . . is murder of the first degree.‖ As

we recently reiterated, ― ‗It is the duty of this court in construing a statute to

ascertain and give effect to the intent of the Legislature.‘ ‖ (Richardson v.

Superior Court (2008) 43 Cal.4th 1040, 1048.) ―We begin with the language of

the statute, affording the words their ordinary and usual meaning and viewing

them in their statutory context.‖ (Alcala v. Superior Court (2008) 43 Cal.4th

1205, 1216.)

We find no ambiguity in the language of section 189. It provides that a

killing committed in the perpetration of or attempt to perpetrate the enumerated

felonies, including burglary, is first degree murder. Burglary has been a

delineated felony supporting first degree felony murder since section 189 was

enacted in 1872,25 and indeed since the crime of murder was divided into first and

second degree in 1856. (Stats. 1856, ch. 139, § 21, p. 219; see Chun, supra, 45

Cal.4th at p. 1185.) In enacting section 189, the Legislature did not limit the


24

Section 188 states that malice, which is an element of murder (§ 187), ―is

implied, when no considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.‖

25

The Penal Code enacted in 1872 was ―not published as part of the Statutes

of 1871-1872,‖ and was not given a chapter number. (Kleps, The Revision and
Codification of Cal. Statutes 1849-1953
(1954) 42 Cal. L.Rev. 766, 775.)

86

definition of burglary, or exclude burglaries based upon an intent to assault.

Rather, section 189 applies the felony-murder rule to all burglaries. Under section

459, also enacted in 1872, burglary is committed when the defendant ―enters any

[defined structure] with intent to commit grand or petit larceny or any felony,‖

including assault. (§ 459,26 italics added; People v. Seaton (2001) 26 Cal.4th 598,

646 [―intent to unlawfully kill or to commit felonious assault‖ will sustain a

burglary conviction].) Thus, nothing in the language of section 189 supports the

application of the merger doctrine to its terms.

We repeatedly have observed that ― ‗ ―the power to define crimes and fix

penalties is vested exclusively in the legislative branch.‖ (Keeler v. Superior

Court [(1970)] 2 Cal.3d 619, 631; [citations].) ‘ ‖ (Chun, supra, 45 Cal.3d at p.

1183.) The courts may not expand the Legislature‘s definition of a crime (Keeler

v. Superior Court, supra, 2 Cal.3d at p. 632), nor may they narrow a clear and

specific definition. In the context of second degree felony murder, courts must

interpret section 188‘s reference to an ― ‗abandoned and malignant heart.‘ ‖

(Chun, supra, 45 Cal.4th at p. 1181.) In the context of first degree felony murder,

however, there is no need for interpretation of the Legislature‘s clear language.

Thus, the differences between the statutory bases for first and second degree

felony murder support the conclusion that although this court properly may limit

the breadth of second degree felony murder in a manner consistent with its

interpretation of the Legislature‘s intent, there is no room for interpretation when


26

As enacted in 1872, section 459 provided: ―Every person who, in the

night-time, forcibly breaks and enters, or without force enters through any open
door, window, or other aperture, any house, room, apartment, or tenement, or any
tent, vessel, water craft, or railroad car, with intent to commit grand or petit
larceny, or any felony, is guilty of burglary.‖

87

the Legislature has defined first degree felony murder to include any killing

―committed in the perpetration of, or attempt to perpetrate, . . . burglary.‖ (§ 189.)

Because the power to define crimes lies exclusively with the Legislature, our

decision in Wilson, supra, 1 Cal.3d 431, erred in narrowing the Legislature‘s clear

and specific definition of first degree murder. In Wilson, we expressed the view

that ―[w]here a person enters a building with the intent to assault his victim with a

deadly weapon, he is not deterred by the felony-murder rule.‖ (Id. at p. 440.)

Although we recognized that crimes committed inside structures entail greater

risks to the occupants, we concluded that ―this rationale does not justify

application of the felony-murder rule to the case at bar. Where the intended felony

of the burglar is an assault with a deadly weapon, the likelihood of homicide from

the lethal weapon is not significantly increased by the site of the assault.‖ (Id. at

pp. 440-441.) Finally, we concluded that the burglary statute ―includes within its

definition numerous structures other than dwellings as to which there can be no

conceivable basis for distinguishing between an assault with a deadly weapon

outdoors and a burglary in which the felonious intent is solely to assault with a

deadly weapon.‖27 (Wilson, at p. 441, fn. omitted.)

We disagree with Wilson‘s view that applying the felony-murder rule to a

killing committed in the course of a burglary, with an intent to assault, serves no

purpose. First, a person who enters a building with the intent to assault, rather

than to kill (in which case the felony-murder rule would be unnecessary), may be


27

Wilson noted that the burglary statute includes ―any ‗shop, warehouse,

store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, trailer
coach . . . , vehicle . . . , aircraft . . . , mine or any underground portion thereof
. . . .‘ (Pen. Code, § 459.)‖ (Wilson, supra, 1 Cal.3d at p. 441, fn. 3.) As noted
above, the statute included a broad array of structures when it was enacted in
1872. (See ante, fn. 26.)

88

deterred by the circumstance that if the victim of the assault dies, the burglar ―will

be deemed guilty of first degree murder.‖ (People v. Burton (1971) 6 Cal.3d 375,

388.) Second, the circumstance that the degree to which the peril is heightened

may vary, depending upon the particular structure in which the assault occurs,

does not negate the purpose of deterring assaults and the heightened risks entailed

by assaults that are committed within structures. Individuals within any type of

structure are in greater peril from those entering the structure with the intent to

commit an assault, than are individuals in a public location who are the target of

an assault. (Miller, supra, 297 N.E.2d at p. 87.) Victims attacked in seclusion

have fewer means to escape, and there is a diminished likelihood that the crimes

committed against them will be observed or discovered. These risks are present

regardless of whether the burglary and assault occur in a home, a tent, or a trailer

coach. (See ante, fn. 27.) For these reasons, we reject Wilson‘s conclusion that no

purpose is served by applying the felony-murder doctrine to a burglary premised

upon an intent to assault.

Defendant contends, however, that the Legislature‘s failure to amend section

189 in response to Wilson, despite having amended the statute in other respects,

demonstrates that this body is not ―troubled by this Court‘s merger jurisprudence.‖

―[W]e frequently have expressed reluctance to draw conclusions concerning

legislative intent from legislative silence or inaction.‖ (People v. Cruz (1996) 13

Cal.4th 764, 784.) Here, although the Legislature has not ―affirmatively

disapproved‖ this court‘s analysis in Wilson, neither has defendant established that

the Legislature has either ―expressly or impliedly endorsed it.‖ (People v. Escobar

(1992) 3 Cal.4th 740, 751.) As we observed in People v. King (1993) 5 Cal.4th

59, 77, when this court has created a rule, we can reexamine it. The circumstance

that we have misconstrued the statutory scheme in the aftermath of our 1969

89

decision in Wilson does not justify continuing to ignore the Legislature‘s apparent

intent in enacting section 189.

Defendant also contends that by applying the merger doctrine to second

degree, but not first degree, murder, this court is ―sanctioning more severe

punishment[] for less culpable conduct.‖ As a preliminary matter, we reject

defendant‘s premise that the insidiousness of an entry committed with the intent to

commit an assault does not merit more severe punishment than a simple assault.

In any event, as explained above, it is for the Legislature, not this court, to

determine penalty. ―This court has reiterated numerous times that ‗The purpose of

the felony-murder rule is to deter felons from killing negligently or accidentally by

holding them strictly responsible for killings they commit.‘ (People v.

Washington (1965) 62 Cal.2d 777, 781.) The Legislature has said in effect that

this deterrent purpose outweighs the normal legislative policy of examining the

individual state of mind of each person causing an unlawful killing to determine

whether the killing was with or without malice, deliberate or accidental, and

calibrating our treatment of the person accordingly. Once a person perpetrates or

attempts to perpetrate one of the enumerated felonies, then in the judgment of the

Legislature, he is no longer entitled to such fine judicial calibration, but will be

deemed guilty of first degree murder for any homicide committed in the course

thereof.‖ (Burton, supra, 6 Cal.3d at p. 388.) Policy concerns regarding the

inclusion of burglary in the first degree felony-murder statute remain within the

Legislature‘s domain, and do not authorize this court to limit the plain language of

the statute. Therefore, we overrule our decision in People v. Wilson, supra, 1

Cal.3d 431.

Because, due to ex post facto concerns, an unforeseeable judicial

enlargement of a criminal statute may not be applied retroactively, our overruling

of Wilson does not apply retroactively to defendant‘s case. (People v. Blakeley

90

(2000) 23 Cal.4th 82, 91-92 [conclusion, contrary to Court of Appeal opinions,

that a killing in imperfect self-defense is voluntary, not involuntary, manslaughter,

is prospective only, due to ex post facto concerns]; People v. Morante (1999) 20

Cal.4th 403, 430-432 [similar conclusion regarding an expansive reinterpretation

of Penal Code section 182]; People v. Martinez, supra, 20 Cal.4th at pp. 238-241

[overruling of People v. Caudillo (1978) 21 Cal.3d 562 (regarding the asportation

element of kidnapping) is prospective only, for similar reasons]; People v. Davis

(1994) 7 Cal.4th 797, 811-812 [holding, contrary to Court of Appeal opinions, that

viability of a fetus is not an element of fetal murder, is prospective only, for

similar reasons]; People v. King, supra, 5 Cal.4th at pp. 79-80 [overruling of In re

Culbreth (1976) 17 Cal.3d 330 regarding firearm use enhancement is prospective

only, for similar reasons]; see also Rogers v. Tennessee (2001) 532 U.S. 451, 462;

Bouie v. City of Columbia (1964) 378 U.S. 347, 353.) Wilson, supra, 1 Cal.3d

431, was decided in 1969. Defendant committed his crimes in 1988, at which time

it was unforeseeable that we would overrule Wilson. Accordingly, today‘s

overruling is prospective only. Of course, in light of the conclusion we reach

under our jurisprudence governing at the time of the crimes — that the burglary

committed with the intent to assault Black did not merge with the homicides —

there was no error in instructing the jury concerning felony murder premised upon

that burglary.

b. Instructions on reasonable doubt and circumstantial evidence

Defendant asserts that the trial court‘s instructions concerning reasonable

doubt violated his rights under the Eighth and Fourteenth Amendments to the

United States Constitution. The trial court instructed the jury in the language of

91

former CALJIC 2.90.28 The high court upheld the language of this instruction in

Victor v. Nebraska (1994) 511 U.S. 1, 13, 15, 17, and we have held that it was not

error to give the instruction. (People v. Freeman (1994) 8 Cal.4th 450, 503

(Freeman).) Defendant provides no persuasive reason to revisit these conclusions.

Defendant further contends that the instruction concerning reasonable doubt

was improper when given in conjunction with the instruction that if ―one

interpretation of [the] evidence appears to you to be reasonable, and the other

interpretation to be unreasonable, you must accept the reasonable interpretation

and reject the unreasonable.‖ A similar instruction was given with regard to the

existence of required specific intent. We repeatedly have rejected claims that

these instructions allow a finding of guilt based upon a degree of proof less than

reasonable doubt, establish ― ‗an impermissible mandatory presumption‘ ‖ of guilt,

or impose upon defendant a burden of proof. (Morgan, supra, 42 Cal.4th at

p. 620; People v. Nakahara (2003) 30 Cal.4th 705, 713-714.) ―The plain meaning

of these instructions merely informs the jury to reject unreasonable interpretations

of the evidence and to give the defendant the benefit of any reasonable doubt.‖

(People v. Jennings (1991) 53 Cal.3d 334, 386.)

c. Requested defense instructions

Defendant contends the trial court‘s denial of certain instructions he

requested violated his rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution.


28

The jury was instructed: ―Reasonable doubt is defined as follows: It is not

a mere possible doubt, because everything relating to human affairs and depending
on moral evidence is open to some possible or imaginary doubt. It is that state of
the case which after the entire comparison and consideration of all the evidence
leaves the minds of the jurors in that condition that they cannot say they feel an
abiding conviction to a moral certainty of the truth of the charge.‖

92

Defendant requested the following instruction: ―If you find that a witness

has testified falsely, this fact may afford an inference that the witness is concealing

the truth, but it does not, by itself, warrant an inference that the truth is the direct

opposite of the rejected testimony.‖ This instruction was properly rejected as

argumentative and duplicative of other given instructions.29 (People v. Gurule

(2002) 28 Cal.4th 557, 659 (Gurule).)

Defendant requested a modified instruction concerning reasonable doubt.

We have cautioned ―against trial court experimentation‖ with this instruction, and

as noted earlier, we have upheld the validity of the instruction given by the court.

(Freeman, supra, 8 Cal.4th at p. 504.) Defendant‘s proposed instruction was

duplicative of instructions that were given, and thus was properly refused.

(Gurule, supra, 28 Cal.4th at p. 659.)

Defendant also requested an instruction providing: ―An abiding conviction is

a belief with staying power. Even absolute positivism, if it wanes after some

undetermined and undeterminable time, is insufficient. Therefore, not just any

kind of conviction will dispel a reasonable doubt, it must be the abiding kind

only.‖ We previously have held that this language is not required. (People

v. Turner (1994) 8 Cal.4th 137, 203 (Turner), overruled on other grounds in

People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)


29

The jury was instructed in the language of CALJIC No. 2.21.2, which

provides: ―A witness, who is willfully false in one material part of his or her
testimony is to be distrusted in others. You may reject the whole testimony of a
witness who willfully has testified falsely as to a material point unless, from all the
evidence, you believe the probability of truth favors his or her testimony in other
particulars.‖

93

Defendant requested additional instructions defining ―deliberate‖ and

―premeditate,‖ and three instructions that elaborated on the concept of

premeditation. The jury was instructed in the language of CALJIC No. 8.20. That

was sufficient. (People v. Moon (2005) 37 Cal.4th 1, 31-32; Gurule, supra, 28

Cal.4th at p. 659.)

4. Alleged cumulative error

Defendant asserts that even if the errors alleged above are not in themselves

reversible, their cumulative effect requires reversal. We disagree. As explained

above, defendant was not prejudiced by the exclusion of evidence intended to

impeach Hirst, by the exclusion of defendant‘s letters as evidence of his state of

mind, or by any flaws in the felony-murder instructions. The few errors that may

have occurred during defendant‘s trial were harmless under any standard, whether

considered individually or collectively. Defendant ―has merely shown that his

‗ ― trial was not perfect — few are.‖ ‘ ‖ (People v. Cooper (1991) 53 Cal.3d 771,

839.)

C. Penalty Phase Issues

1. Data concerning past employment

Defendant contends the trial court erred in denying him access to data

concerning his past employment, and in prohibiting him from introducing

evidence on that subject, in violation of the Eighth Amendment to the United

States Constitution, and that the error mandates reversal of the penalty imposed.30

a. Factual background

Because defendant had access to classified information during his

employment in the Navy and at ESL, the federal government expressed concern

30

Defendant also filed a motion for new trial raising this issue.

94

before and during trial that defendant would disclose confidential information at

trial. At a hearing held before defendant testified at the guilt phase of the trial,

Robin Ball, an attorney from the United States Department of Justice, sought to

assert a privilege on behalf of the federal government, proposing that, at

defendant‘s trial, he be permitted either to rise and object, or signal the court or the

prosecutor that he wished to assert a claim of privilege. The trial court rejected the

view that the federal government had standing to intervene in these proceedings,

and could not conceive of any scenario in which Ball would be permitted to raise

an objection before a capital case jury, but the court was not opposed to an

arrangement between the prosecutor and Ball by which Ball might communicate

concerns to the prosecutor. The following day, although the prosecutor also

questioned the assertion that the federal government had standing to object, he

informed the court and defense counsel that ―[t]here will however be some

mechanism where . . . Mr. Ball can communicate with me at appropriate times. I

will make any objections that the prosecution feels necessary.‖ He subsequently

added, ―I‘m not nor do I intend to be an agent for the U.S. Government. My

interests are prosecuting murder.‖

During defendant‘s guilt phase testimony, the trial court sustained several

objections by the prosecution on the ground of relevancy. Defendant claims error

with respect to four questions he was asked but was not allowed to answer.

First, defendant testified that following his return from Australia, he ―found a

position working for a subset of a piece of equipment that we had deployed over in

Australia.‖ Defense counsel asked him to explain what he meant by ―a subset of

the equipment that had been deployed.‖ The prosecutor objected on relevancy

grounds, which the trial court sustained. At a sidebar conference, defense counsel

asked whether the objection had been made in response to a signal from the

representative of the federal government, and the prosecutor stated he had ―no

95

idea,‖ and had objected because the question was irrelevant. Defense counsel

stated he was attempting to elicit testimony (1) to counter prosecution testimony

regarding the ESL location where defendant was assigned, as opposed to the

location where he in fact was seen working (and by implication, stalking Black),

and (2) to elucidate defendant‘s ―industry jargon‖ so that the jury understood

―what it is he was working on.‖ The trial court suggested counsel simply ask

defendant where that piece of equipment was located.

Second, when defendant testified that he was assigned to a different project,

defense counsel asked him to identify the new project. The prosecutor‘s objection

on the ground of relevancy was sustained. At sidebar, defense counsel again

inquired whether the prosecutor‘s objection was prompted by a signal from Ball.

After colloquy between counsel and the court, the prosecutor said, ―When I make

a relevancy objection, I mean that the matter is irrelevant. Pure and simple.‖

After further argument, the court again stated that ―[t]he relevancy is where he was

working.‖

Third, defendant testified that he did not believe the actions he took to gather

information about Black were wrong, because his Navy career and his work at

ESL fostered an attitude that gathering information surreptitiously was not wrong

and that information was power. Defense counsel asked, ―What are you referring

to in terms of what you did in the military and ESL that fostered these attitudes?‖

The prosecutor objected that the information was irrelevant. At a sidebar

conference, defense counsel suggested Ball had signaled the prosecutor. The

prosecutor stated, ―I received no signal. I made a relevance objection.‖ After

further discussion between the court and counsel, the court asked defendant for an

offer of proof regarding what defendant ―is going to testify to.‖ After consultation

with defendant, defense counsel stated defendant would testify that his work

involved the use of ―electronic methods to monitor electronic signals generated by

96

foreign powers,‖ and he ―intend[ed] to ask [defendant] about that information,

about where it was coming from, and why this work contributed to his attitudes,

what it was about that that contributed to his attitudes . . . .‖ After further

argument by counsel, the court sustained the objection, noting that defendant

already had testified that his military and work environment, in which he

possessed security clearances that allowed him to obtain information, had led to

his ―feeling of power from getting information.‖ The trial court explained that it

―fail[ed] to see what he did specifically in the Navy or at ESL insofar as particular

projects that he worked on, or particular discussion about monitoring electronic

signals of foreign powers or as well as any agencies that he worked for, how that

has anything at all to do with this.‖ The court added that ―even if it had some

marginal relevance under 352, this is a complete waste of time, confusion of the

issues, and the probative value of this information is negligible.‖

Fourth, after defendant testified further about the attitudes fostered by being

involved in spying, and about his ―elite‖ feeling from having access to classified

information, defense counsel asked about the type of information gathered in the

Australian facility where defendant worked. The trial court sustained the

prosecutor‘s relevancy objection, and added that the testimony had ―no probative

value‖ and was time consuming. The court stated: ―I think you have beat to death

the issue of spying equals power equals information equals power, that this

Defendant has established those attitudes from his work in the military and at ESL,

and that he has already described his attitudes about that and that the fact that

normal people don‘t have this information, that he‘s elitist because he had all this

information because of his super secret clearance. Enough is enough.‖

Before the defense completed its direct examination of defendant, it was

afforded a hearing regarding Ball‘s signals to the prosecutor. Ball testified that he

would wave to Lieutenant Dow if a question or answer raised privileged matters.

97

With respect to two questions, Ball stated he had waved to Dow, but the

prosecutor already had stood up to object in each instance. With respect to

another question, Ball said he waved to Dow and Dow touched the prosecutor‘s

arm. Lieutenant Dow testified that the prosecutor stated that he was ―already

aware‖ and was about to object. Thus, the prosecutor did not in fact make any

objections at the prompting of the federal representative.

The confidential nature of defendant‘s work in the Navy and at ESL also

resulted in limitations upon the testimony of Kent Wells, the Navy personnel

security specialist, during the penalty phase. The trial court ruled in limine that it

could not order Wells to disclose classified information, because doing so could

subject him to criminal prosecution. It also concluded the confidential information

defendant sought from Wells was not necessary, because the defense was ―making

[its] point before the [j]ury with other evidence.‖

Defendant requested that Wells testify outside the presence of the jury, be

ordered to answer questions involving confidential information, and thereby be

forced to invoke a privilege. The trial court agreed. As relevant here, Wells

refused to disclose what information was gathered by the national security

function with which defendant was involved, but agreed that defendant, as a

member of the team, ―helped gather information which was essential to national

security, search and rescue and navigational assistance.‖ The trial court found

―[t]he gathering function itself . . . to be irrelevant.‖ Wells also testified that

knowing the location of ships, planes, and other kinds of objects is important in

defending the United States against its enemies, and that defendant thereby

contributed to the country‘s national security, but he refused to explain ―[w]hat

type of enemy movements, activities, were being monitored that was of assistance

to the United States in its defense.‖ The trial court concluded that the ―type of

enemy movements‖ was irrelevant. Finally, Wells testified that in the course of

98

repairing and maintaining the equipment, defendant may have been exposed to

information stored in computers, but declined to disclose whether the equipment

contained specific information about submarine activities of enemy fleets. The

trial court found this information to be irrelevant, and also found that the inquiry

would result in an undue consumption of time and would confuse the jury. (Evid.

Code, § 352.)

b. Discussion

Defendant contends the trial court‘s rulings give rise to several related

questions: (1) In a capital case, does the defendant have a constitutional right to

obtain and present mitigating evidence even if it is protected by a national security

privilege? (2) If the defendant is denied the right to present such mitigating

evidence, can the state nonetheless seek the death penalty on the theory that it is

not the state, but the federal government, that is withholding the evidence? (3) In

a capital case, can the court exclude details of a defendant‘s employment as

irrelevant?

Defendant does not argue there was error either in the trial court‘s rulings

concerning the discovery of classified information or his motion to bar the death

penalty, or in the federal court‘s grant of summary judgment with respect to

defendant‘s Freedom of Information Act complaint. His argument focuses instead

upon the trial court‘s rulings concerning relevance and the exclusion of evidence

under Evidence Code section 352 during defendant‘s and Wells‘s testimony, and

the ―signaling‖ system between the prosecutor and Ball, representing the United

States Government. Moreover, as defendant acknowledges, during the

presentation of evidence there were no objections or rulings on the basis of

national security. Therefore, the first two issues identified by defendant are not

presented.

99

We turn to the third issue — whether a court, in a capital case, may exclude

details of a defendant‘s employment as irrelevant. ―The Eighth and Fourteenth

Amendments require that the sentencer in a capital case not be precluded from

considering any relevant mitigating evidence, that is, evidence regarding ‗any

aspect of a defendant‘s character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death.‘ ‖

(Frye, supra, 18 Cal.4th at p. 1015.) ―Nonetheless, the trial court still

‗ ―determines relevancy in the first instance and retains discretion to exclude

evidence whose probative value is substantially outweighed by the probability that

its admission will create substantial danger of confusing the issues or misleading

the jury.‖ ‘ ‖ (People v. Williams (2006) 40 Cal.4th 287, 320; see Romano v.

Oklahoma (1994) 512 U.S. 1, 12 [―The Eighth Amendment does not establish a

federal code of evidence to supersede state evidentiary rules in capital sentencing

proceedings‖]; Lockett v. Ohio (1978) 438 U.S. 586, 604, fn. 12 [―Nothing in this

opinion limits the traditional authority of a court to exclude, as irrelevant, evidence

not bearing on the defendant‘s character, prior record, or the circumstances of his

offense‖].) ―The meaning of relevance is no different in the context of mitigating

evidence introduced in a capital sentencing proceeding‖ from what it is in any

other context. (McKoy v. North Carolina (1990) 494 U.S. 433, 440.) Thus,

― ‗[r]elevant mitigating evidence is evidence which tends logically to prove or

disprove some fact or circumstance which a fact-finder could reasonably deem to

have mitigating value.‘ ‖ (Ibid.; see Evid. Code, § 210.)

Defendant contends that the ―trial court‘s repeated relevancy rulings favoring

the prosecution were nothing more than a subterfuge,‖ and that the court‘s

―implicit goal was to avoid having to rule on an assertion of a national security

privilege.‖ He also contends Evidence Code section 352, upon which the court

100

relied in several of its rulings, was inapplicable because the information sought

was not prejudicial, and would have taken little time to present.

We first consider the rulings made during defendant‘s testimony. Defendant

testified only at the guilt phase. Thus the challenged trial court rulings regarding

his testimony are examined not in the context of his attempt to adduce penalty

phase mitigating evidence, as defendant contends, but rather as evidence proffered

in defense of the charged offenses. Defendant‘s testimony regarding his work

assignments was relevant to counter the implication that he left his assigned work

area in order to stalk Black. Therefore, evidence establishing that he was assigned

to work in areas where Black was assigned was relevant, but the precise project

upon which defendant was working, or a more detailed description of the

equipment used, was not. Similarly, evidence indicating that defendant felt

entitled to invade the privacy of others because of his military and ESL experience

arguably was relevant to his state of mind, but the content of the classified

information that he helped gather was not. The court‘s rulings concerning

relevance and the exclusion of evidence under Evidence Code section 352 were

well within the court‘s broad discretion and do not demonstrate, contrary to

defendant‘s assertion, that the ―trial court was acting in concert with the

prosecution and the United States Attorney‘s office . . . to ensure‖ that the basis

for the exclusion was not national security.

With respect to the signaling system set up between the prosecutor and Ball,

defendant contends that the state ―actively collaborat[ed] with the federal

government to withhold mitigating evidence from the jury.‖ He claims the

signaling system deprived him of his Sixth, Eighth, and Fourteenth Amendment

rights, because it masked the true basis for the objections, that is, national security,

and thereby denied him the opportunity to seek meaningful appellate review of the

real basis ―for the exclusion of this critical evidence.‖ Once again, these events

101

occurred during the guilt phase, at a time when defendant was not proffering

mitigating evidence. In addition, the record indicates the signals did not lead to

any objections; rather, the prosecutor was objecting or preparing to object when

the signals were received.

Nor did the trial court‘s challenged rulings regarding Wells‘s testimony,

during the penalty phase, improperly limit the admission of mitigating evidence.

The evidence presented fully informed the jury that defendant received a top-

security clearance requiring that he be trustworthy, reliable, of unquestioned

character, and loyal to the United States; he worked on a high frequency direction-

finding network that assisted in search and rescue missions for aircraft or ships in

distress; enemy location was one aspect of the information defendant would

gather; the Secretary of Defense characterized all of the projects that defendant

worked on as vital to the national defense; and much of his work remained

classified at the time of trial. The precise information gathered, the type of enemy

movements monitored, and whether the equipment contained information about

the submarine activities of enemy fleets, was tangential and had no bearing upon

defendant‘s character or record, or the circumstances of his crimes.

2. Alleged improper limitation upon closing argument

Defendant contends the trial court erred by prohibiting defense counsel from

arguing that defendant‘s crimes were less serious than those of other capital

defendants, in violation of his rights under the Eighth and Fourteenth Amendments

to the United States Constitution.31 No error appears.


31

As we previously have observed, a claim that defense counsel‘s argument

improperly was limited invokes an aspect of the right to counsel. (People
v. Marshall (1996) 13 Cal.4th 799, 854 (Marshall).) Hence, it is grounded in the
Sixth, not the Eighth, Amendment.

102

During closing argument, defense counsel stated, ―We need to look at this

case and compare this case with other special circumstance killings . . . .‖ At a

sidebar conference, defense counsel repeatedly asserted he did not ―intend to

comment on what case got what penalty.‖ Rather, counsel sought to argue that

―this is not . . . the worst of the worst . . . , there are far worse cases,‖ by referring

to such defendants as Richard Ramirez, David Carpenter, and Ramon Salcido, and

discussing the circumstances of their crimes.

The court ruled that counsel would ―not be permitted to engage in a

comparative analysis of other death penalty cases or other murder cases . . . .‖

Counsel was not allowed to mention ―specific cases, specific names, specific

penalties,‖ but he was permitted to say that ―this is not a child torture case or

something like that.‖ Following the sidebar conference, defense counsel argued to

the jury that defendant, whose crimes involved a single incident brought on by

severe emotional and personal stress and who did not kill as many individuals as

he might have or seize hostages, was less deserving of the death penalty than a

person who kills with the thought of avoiding capture, tortures victims, acts for

mercenary reasons, or kills on multiple occasions over a long period of time.

Defendant now contends ―[t]he fact that a particular defendant‘s crime is less

aggravated than the crimes of others who have received the death penalty — or

especially that it is less aggravated than the crimes of persons who did not receive

the death penalty — is nonetheless a proper consideration for the sentencing body

in deciding what sentence to impose.‖ As set forth above, however, trial counsel

repeatedly stated he did not seek to refer to the penalty imposed in any particular

case. Therefore, this claim is forfeited.

Defendant‘s claim also is without merit. On numerous occasions, we have

upheld a trial court‘s refusal ―to allow defense counsel to compare the subject

crime to other well-known murders‖ (People v. Hughes (2002) 27 Cal.4th 287,

103

400), or to note the penalty imposed in such cases (People v. Sakarias (2000) 22

Cal.4th 596, 640), while allowing argument that there ―were other murderers

worse than he‖ (People v. Benavides (2005) 35 Cal.4th 69, 110). ―[M]eaningful

comparisons with other well-publicized crimes cannot be made solely on the basis

of the circumstances of the crime . . . without consideration of the other

aggravating and mitigating circumstances.‖ (People v. Roybal (1998) 19 Cal.4th

481, 529; Marshall, supra, 13 Cal.4th at pp. 854-855.) Here, counsel‘s central

point was that defendant‘s murders were not ―the worst of the worst.‖ He was not

precluded from making such an argument, and ably did so.

3. Alleged instructional error

Defendant contends the trial court erred in refusing to give three proposed

instructions concerning aggravating and mitigating circumstances. We disagree.

The first and second paragraphs of the first proposed instruction defined

aggravating and mitigating circumstances, and therefore were duplicative of

CALJIC No 8.88, which was given here, and which likewise defines aggravating

and mitigating circumstances. Hence the trial court properly declined to give this

portion of the proposed instruction. (Gurule, supra, 28 Cal.4th at p. 659.)

The third paragraph of the first proposed instruction provided: ―The fact that

[defendant] has been found guilty beyond a reasonable doubt of the crime of

murder in the first degree is not itself an aggravating circumstance.‖ We

previously have rejected a claim that a trial court erred in refusing to give a

substantially similar instruction. (People v. Coleman (1989) 48 Cal.3d 112, 152-

153 (Coleman).) We observed: ―The request was properly denied since the

requested instruction was unnecessary and possibly misleading. There appeared

no need to tell the jury that the murder conviction in the abstract, as distinct from

the circumstances of the murder, is not an aggravating factor since no one had

104

suggested otherwise. More seriously, the requested instruction might have been

understood as a contradiction of the instruction properly given, that the jury should

consider the statutory aggravating and mitigating factors, including the

‗circumstances of the crime of which the defendant was convicted in the present

proceeding‘ (§ 190.3, factor (a).‖ (Id. at pp. 152-153.)

Defendant‘s second proposed instruction provided: ―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 [the] 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 with defendant‘s first proposed instruction, this instruction was

unnecessary and possibly misleading. The trial court instructed the jury to

―consider, take into account and be guided by the applicable factors of aggravating

and mitigating circumstances,‖ and explained that ―[a]n aggravating factor is any

fact, condition or event attending the commission of a crime which increases its

guilt or enormity, or adds to its injurious consequences which is above and beyond

the elements of the crime itself.‖ The court also instructed the jury that it could

consider ―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,‖ but the jury could not consider both the existence of a special circumstance

and the facts underlying the special circumstance. ―In other words, do not

consider the same factors more than once in determining the presence of

105

aggravating factors.‖ Also, like defendant‘s proposed instruction, an instruction

given by the court explained that the penalty for a defendant who has been found

guilty of murder in the first degree in a case in which a special circumstance has

been found true is death or life imprisonment without the possibility of parole.

These instructions 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. Defendant‘s 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. (See Coleman, supra, 48 Cal.3d at pp. 152-153.)

The third proposed instruction provided: ―In deciding whether you should

sentence the defendant to life imprisonment without the possibility of parole, or to

death, you cannot consider as an aggravating factor any fact which was used by

you in finding him guilty of murder in the first degree or which was used by you

in establishing the existence of any special circumstances which you have found to

be true unless that fact establishes something in addition to an element of the

crime of murder in the first degree. The fact that you have found [defendant]

guilty beyond a reasonable doubt of the crime of murder in the first degree is not

itself an aggravating circumstance.‖ This instruction properly was refused,

because it was erroneous and misleading. (Coleman, supra, 48 Cal.3d at pp. 152-

153.) As noted above, the jury properly was instructed pursuant to section 190.3,

factor (a), that it could consider ―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.‖ Moreover, as noted above, the jury was

instructed not to ―double-count.‖

106

4. Constitutionality of death penalty statute

Defendant makes numerous claims that the death penalty statute violates the

United States Constitution. For the reasons set forth below, we conclude there is

no merit in these contentions.

Section 190.2, which sets forth the circumstances in which the penalty of

death may be imposed, is not impermissibly broad in violation of the Eighth

Amendment. (People v. Zamudio (2008) 43 Cal.4th 327, 373.)

Section 190.3, factor (a), which allows the jury to consider, in choosing the

appropriate penalty, ―[t]he 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 pursuant to Section 190.1,‖ does not violate the Eighth or

Fourteenth Amendments to the United States Constitution merely because those

circumstances differ from case to case, or because factor (a) does not guide the

jury in weighing these circumstances. (Tuilaepa v. California (1994) 512 U.S.

967, 975-976, 978-979; People v. Stevens (2007) 41 Cal.4th 182, 211 (Stevens).)

The absence of a requirement that the state prove beyond a reasonable doubt

that aggravating factors are true (except for other, unadjudicated crimes), that

aggravating factors outweigh mitigating factors, and that death is the appropriate

punishment, does not render the death penalty statute unconstitutional under the

Fifth, Sixth, Eighth, or Fourteenth Amendments. (People v. Cox (2003) 30 Cal.4th

916, 971 (Cox), disapproved on other grounds in Doolin, supra, 45 Cal.4th at

p. 421, fn. 22.) ―Nor is there merit to defendant‘s alternative claim that a

preponderance of the evidence standard of proof is compelled for the findings that

an aggravating factor exists, that the aggravating factors outweigh the mitigating

factors, and that death is the appropriate sentence,‖ or that the jury should be

instructed that there is no burden of proof. (Stevens, supra, 41 Cal.4th at p. 212.)

The jury was instructed that ―[t]o return a judgment of death, each of you must be

107

persuaded that the aggravating circumstances are so substantial in comparison

with the mitigating circumstances that it warrants death instead of life without

parole.‖ That is sufficient. (Tuilaepa v. California, supra, 512 U.S. at p. 979;

Stevens, at p. 212). ―Unlike the guilt determination, ‗the sentencing function is

inherently moral and normative, not factual‘ [citation] and, hence, not susceptible

to a burden-of-proof quantification.‖ (People v. Hawthorne (1992) 4 Cal.4th 43,

79.) 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 this regard. (Stevens, supra, at p. 212; Cox, supra, at pp. 971-972.)

The absence of any requirement that the jury make written findings with

respect to which aggravating evidence is true, and that the findings be unanimous,

does not deny due process or violate the Eighth Amendment right to meaningful

review. (Stevens, supra, 41 Cal.4th at p. 212.)

Contrary to defendant‘s arguments, the use of the words ―extreme‖ in section

190.3, factors (d) and (g), and ―substantial‖ in factor (g), does not render these

factors unconstitutionally vague, arbitrary, or capricious, nor does it act as a

barrier to the consideration of mitigating evidence or violate the Fifth, Sixth,

Eighth, or Fourteenth Amendments. (Stevens, supra, 41 Cal.4th at p. 213.) The

instructions in this case concerning section 190.3, factor (k), which were

consistent with our guidance in People v. Easley (1983) 34 Cal.3d 858, 878,

footnote 10, allowed consideration of ―[a]ny 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.‖ (See Ayers v. Belmontes (2006) 549 U.S. 7,

15; Boyde v. California (1990) 494 U.S. 370, 381-382.)

108

The failure to require intercase proportionality review by either the trial court

or on appeal does not violate the Fifth, Sixth, Eighth, or Fourteenth Amendment.

(Pulley v. Harris (1984) 465 U.S. 37, 50-51; Cox, supra, 30 Cal.4th at p. 970.)

Nor does the circumstance that intercase proportionality review is conducted in

noncapital cases cause the death penalty statute to violate defendant‘s right to

equal protection and due process. (Turner, supra, 8 Cal.4th at p. 209; People v.

Cox (1991) 53 Cal.3d 618, 690-691, disapproved on other grounds in Doolin,

supra, 45 Cal.4th at p. 421, fn. 22.) ―[C]apital and noncapital defendants are not

similarly situated and therefore may be treated differently without violating

constitutional guarantees of equal protection of the laws or due process of law

. . . .‖ (People v. Manriquez (2005) 37 Cal.4th 547, 590.)

5. Cumulative error

Defendant contends that cumulative error committed at both the guilt and

penalty phases requires reversal. We have found no error at the penalty phase. As

explained above, defendant was not prejudiced by the exclusion of evidence

intended to impeach Hirst, by the exclusion of defendant‘s letters as evidence of

his state of mind, or by any flaws in the felony-murder instructions. The few

errors that may have occurred during defendant‘s trial were harmless under any

standard, whether considered individually or collectively.

III. DISPOSITION

The judgment is affirmed in its entirety.

GEORGE, C. J.

WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
NICHOLSON, J.*

* Associate Justice, Court of Appeal, Third Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

109

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Farley
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S024833
Date Filed: July 2, 2009
__________________________________________________________________________________

Court:
Superior
County: Santa Clara
Judge: Joseph F. Biafore, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Ezra Hendon, under appointment by the Supreme Court, and David L. Saine for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General,
Ronald S. Matthias, Nanette Winaker and Michael E. Banister, Deputy Attorneys General, for Plaintiff and
Respondent.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Ezra Hendon
1442A Walnut Street, No. 248
Berkeley, CA 94709
(510) 525-1596

Michael E. Banister
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5971


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 07/02/200946 Cal. 4th 1053, 210 P.3d 361, 96 Cal. Rptr. 3d 191S024833AAutomatic Appealclosed; remittitur issued

Parties
1The People (Respondent)
Represented by Attorney General - San Francisco Office
Michael E. Banister, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Farley, Richard Wade (Appellant)
Represented by California Appellate Project - Sf
Michael Millman, Executive Director
101 Second Street, Suite 600
San Francisco, CA

3Farley, Richard Wade (Appellant)
Represented by Ezra Hendon
Attorney at Law
1442-A Walnut Street, Suite 248
Berkeley, CA

4Farley, Richard Wade (Appellant)
Represented by Eric Stephen Multhaup
Attorney at Law
20 Sunnyside Avenue, Suite A
Mill Valley, CA


Disposition
Jul 2 2009Opinion: Affirmed

Dockets
Jan 17 1992Judgment of death
Jan 23 1992Filed certified copy of Judgment of Death Rendered
January 17, 1992.
Jan 30 1992Received:
appellant's application for appointment of counsel (IFP form)
Mar 15 1995Order filed:
Appointing Michael A. Willemsen, Esq. to represent Applt on His A.A., Including Any Related Habeas Proceedings.
Mar 16 1995Compensation awarded counsel
Apr 10 1995Application for Extension of Time filed
By Applt to request correction of Record.
Apr 13 1995Extension of Time application Granted
To Applt To 6-19-95 To request Corr. of Record.
May 3 1995Motion filed
By Applt for appointment of Associate Counsel.
May 8 1995Order filed:
Granting Applt's motion for appointment of Assoc. Counsel. David L. Saine, Esq., Is appointed as Assoc. Counsel to represent Applt on His A.A., Including Any Related Habeas Proceedings.
Jun 16 1995Application for Extension of Time filed
By Applt to request correction of Record.
Jun 19 1995Extension of Time application Granted
To Applt To 8-18-95 To request Corr. of Record.
Aug 16 1995Application for Extension of Time filed
By Applt to request correction of the Record.
Aug 17 1995Extension of Time application Granted
To Applt To 10-17-95 To request Corr. of Record.
Oct 13 1995Application for Extension of Time filed
By Applt to request Record correction
Oct 17 1995Extension of Time application Granted
To Applt To 12-18-95 To request Corr. of Record.
Dec 22 1995Application for Extension of Time filed
By Applt to request correction of Record.
Jan 2 1996Filed:
Declaration of Michael Willemsen in support of motion for Ext. of time to request corrections to the Record.
Jan 3 1996Extension of Time application Granted
To Applt To 2-16-96 To request Corr. of Record.
Feb 14 1996Application for Extension of Time filed
By Applt to request correction of Record.
Feb 16 1996Extension of Time application Granted
To April 16,1996 To request correction of the Record on Appeal.Counsel for Applt Is Ordered To Notify the Clerk of this Court in Writing as Soon As the Act to which the Court has granted an Extention of time has been Completed.
Apr 12 1996Application for Extension of Time filed
By Applt to request correction of the Record.
Apr 23 1996Extension of Time application Granted
To Applt To 6-17-96 To request Corr. of Record.
Jun 18 1996Application for Extension of Time filed
By Applt to request correction of the Record.
Jun 19 1996Extension of Time application Granted
To Applt To 8-16-96 To request Corr. of Record. no further Extensions of time Are Contemplated.
Jun 20 1996Filed:
(Suppl) Proof of Service of request for Eot to request Corr. of the Record.
Jul 30 1996Application for Extension of Time filed
By Applt to request correction of the Record.
Aug 5 1996Extension of Time application Granted
To Applt To 10-15-96 To request Corr. of Record. no further Extensions of time will be Granted.
Oct 16 1996Application for Extension of Time filed
To request Record correction
Oct 18 1996Extension of Time application Granted
To November 4,1996 To request Record correction. no further Extensions of time will be Granted.
Nov 8 1996Received:
Copy of Applt's motion to Augment & correct Record (filed in Supr. Ct. on 11-6-96.) (2 Vols.)
Jul 2 1998Compensation awarded counsel
Jan 7 1999Record on appeal filed
C-40 (10,877 Pp.) and R-148 (17,231 Pp.) (Includes Material Under Seal). Clerk's Transcript includes 7,204 pages of Juror Questionnaires.
Jan 7 1999Appellant's opening brief letter sent, due:
2-16-99.
Feb 17 1999Received:
Applic. for Ext of time to file Aob. (Note: Decl not Under Penalty of Perjury; Counsel Notified to Submit New Applic.)
Mar 2 1999Application for Extension of Time filed
To file Aob.
Mar 3 1999Extension of Time application Granted
To 3-18-99 To file AOB
Apr 2 1999Application for Extension of Time filed
To file Aob.
Apr 5 1999Extension of Time application Granted
To 4-19-99 To file AOB
Apr 16 1999Application for Extension of Time filed
To file Aob.
Apr 19 1999Extension of Time application Granted
To 5-19-99 To file AOB
May 19 1999Application for Extension of Time filed
To file Aob.
May 20 1999Extension of Time application Granted
To 6-18-99 To file AOB
Jun 18 1999Application for Extension of Time filed
To file Aob.
Jun 18 1999Change of Address filed for:
Attorney General
Jun 18 1999Extension of Time application Granted
To 7-19-99 To file reply brief
Jun 29 1999Order filed:
The Order filed on June 18,1999, Is Amended to Read as Follows: on Application of Applt and Good Cause appearing,it Is Ordered that The time to Serve and file AOB Is extended to and Including 7-19-99
Jul 7 1999Change of Address filed for:
Attorney David L. Saine
Jul 9 1999Filed:
Suppl Proof of Service of Notice of change of Address.
Aug 3 1999Application for Extension of Time filed
To file Aob.
Aug 11 1999Extension of Time application Granted
To 8/18/99 To file AOB
Aug 19 1999Application for Extension of Time filed
To file Aob.
Aug 20 1999Extension of Time application Granted
To 9/17/99 To file Aob.
Sep 21 1999Application for Extension of Time filed
To file Aob.
Sep 27 1999Filed:
Supplemental Decl in support of request for Eot.
Sep 28 1999Extension of Time application Granted
To 11/16/99 To file Aob.
Nov 17 1999Application for Extension of Time filed
To file Aob.
Dec 2 1999Extension of Time application Granted
To 1/18/2000 To file Aob.
Dec 3 1999Filed:
Confidential Declaration of Atty Michael Willemsen
Dec 13 1999Compensation awarded counsel
Atty Willemsen
Jan 19 2000Application for Extension of Time filed
To file Aob.
Jan 26 2000Extension of Time application Granted
To 3/20/2000 To file Aob.
Feb 17 2000Habeas funds request filed (confidential)
Mar 20 2000Application for Extension of Time filed
To file Aob.
Mar 28 2000Extension of Time application Granted
To 5/19/2000 To file Aob.
Apr 5 2000Change of Address filed for:
Atty Michael Willemsen
May 22 2000Application for Extension of Time filed
To file Aob.
Jun 15 2000Filed:
Declaration of Michael Willemsen in support of request for Ext. of Time.
Jun 15 2000Change of Address filed for:
Atty Michael Willemsen
Jun 29 2000Filed:
Declaration of Atty Michael Willemsen.
Jul 3 2000Extension of Time application Granted
To 7/17/2000 to file AOB.
Jul 17 2000Application for Extension of Time filed
To file AOB.
Jul 17 2000Counsel's status report received (confidential)
Jul 20 2000Extension of Time application Granted
To 9/15/2000 to file AOB.
Sep 13 2000Order filed:
(confidential)
Sep 25 2000Application for Extension of Time filed
To file AOB. (14th request)
Sep 25 2000Counsel's status report received (confidential)
Sep 29 2000Extension of Time application Granted
Based on counsel's declaration of 6/27/2000, that he "expect[s] to complete the AOB by 12/1/2000," the time for filing AOB is extended to and including 11/14/2000.
Nov 17 2000Counsel's status report received (confidential)
Nov 17 2000Application for Extension of Time filed
To file AOB. (15th request)
Nov 21 2000Extension of Time application Granted
To 1/16/2001 to file AOB.
Nov 28 2000Filed:
Resp's request to postpone filing of AOB until after review, acceptance and/or mod. of brief by new appellate counsel.
Nov 30 2000Motion to withdraw as counsel filed
by atty Michael Willemsen
Nov 30 2000Order filed:
"Respondent's Request to Postpone Filing of AOB Until After Review, Acceptance and/or Modification of Brief by New Appellate Counsel" is denied. If new counsel is appointed, he or she may seek leave to modify or supplement the opening brief upon a showing of good cause. Kennard, J., did not participate.
Dec 28 2000Motion to withdraw as counsel filed
By atty Michael Willemsen
Dec 28 2000Filed:
Declaration of atty David L. Saine
Jan 2 2001Order filed:
Good cause appearing the applic. and supplemental applic. of appointed lead counsel for permission to withdraw as atty of record for applt Farley, filed 11-20-2000, and 12-28-2000, respectively, are granted. The order appointing Michael Willemsen as lead counsel of record for applt Farley, filed 3-15-1995, is hereby vacated. Pending further order of this court, associate counsel of record David L. Saine is hereby designated as lead atty of record for applt Farley for the direct appeal and related state habeas corpus/ executive clemency proceedings in the above automatic appeal now pending in this court. Based upon appointed counsel David L. Saine's representation that he plans to have an AOB "ready for filing by 2-28-2001," time is hereby extended until that date for filing of the AOB. No further extension of time is contemplated. Kennard, J., did not participate.
Feb 27 2001Application for Extension of Time filed
To file AOB. (16th request)
Feb 27 2001Counsel's status report received (confidential)
Mar 13 2001Extension of Time application Granted
To 4/30/2001 to file AOB. No further ext. of time contemplated.
Apr 27 2001Counsel's status report received (confidential)
from atty Saine.
Apr 27 2001Application for Extension of Time filed
To file AOB. (17th request)
May 22 2001Extension of Time application Granted
To 6/29/2001 to file AOB. No further extensions of time are contemplated.
Jun 26 2001Extension of Time application Granted
to 8-29-2001 to file AOB. No further extensions of time will be granted.
Jun 28 2001Application for Extension of Time filed
by appellant to file AOB
Jun 28 2001Counsel's status report received (confidential)
from atty Saine
Jul 2 2001Extension of Time application Granted
to 8-29-2001 to file AOB. No further extensions of time will be granted.
Aug 27 2001Application for Extension of Time filed
To file AOB. (19th request)
Sep 4 2001Extension of Time application Granted
To 9/28/2001 to file AOB. No further extensions of time will be granted.
Sep 27 2001Application for Extension of Time filed
to file AOB. (20th request)
Oct 1 2001Filed:
Proof of service.
Oct 10 2001Extension of Time application Granted
To 10/29/2001 to file AOB. No further extensions of time will be granted.
Oct 26 2001Counsel's status report received (confidential)
from atty Saine.
Oct 26 2001Application for Extension of Time filed
To file AOB. (21st request)
Oct 31 2001Extension of Time application Granted
To 11/28/2001 to file AOB, in order to permit incorporation of final editing suggestions by CAP. Any brief submitted for filing after that date shall be accompanied by an application for relief from default.
Nov 27 2001Extension of time granted
To file AOB. (22nd request)
Nov 28 2001Extension of time denied
to file AOB.
Dec 10 2001Application for relief from default filed
to file AOB. (314 pp. AOB submitted under separate cover)
Dec 20 2001Application to file over-length brief filed
to file AOB.
Dec 21 2001Order filed
Applt.'s application for relief from default and application to file over-length brief are granted.
Dec 21 2001Appellant's opening brief filed
(314 pp.)
Jan 2 2002Counsel's status report received (confidential)
from atty Saine.
Jan 8 2002Compensation awarded counsel
Atty Saine
Jan 17 2002Request for extension of time filed
to file resp's brief. (1st request)
Jan 22 2002Extension of time granted
to 3-25-2002 to file resp's brief.
Mar 18 2002Request for extension of time filed
To file resp.'s brief. (2nd request)
Mar 21 2002Extension of time granted
To 5/28/2002 to file resp.'s brief. Dep. Atty. General Banister anticipates filing the brief by 10/30/2002. Only three further extensions totaling 155 additional days are contemplated.
May 23 2002Request for extension of time filed
To file resp.'s brief. (3rd request)
May 30 2002Extension of time granted
To 7/29/2002 to file resp.'s brief. Dep. Atty. Gen. Banister anticipates filng the brief by 10/30/2002. Only two further extensions totaling 93 additional days are contemplated.
Jul 23 2002Request for extension of time filed
To file resp.'s brief. (4th request)
Jul 29 2002Extension of time granted
To 9/27/2002 to file resp.'s brief. Dep. Atty. General Banister anticiaptes filing that brief by 10/30/2002. One further extension for 33 additional days is contemplated.
Sep 26 2002Application to file over-length brief filed
To file respondent's brief. (297 pp. brief submitted under separate cover)
Sep 26 2002Order filed
Responden'ts application to file oversized respondent's brief is granted.
Sep 26 2002Respondent's brief filed
(297 pp.)
Oct 11 2002Request for extension of time filed
To file appellant's reply brief. (1st request)
Oct 17 2002Extension of time granted
To 12/16/2002 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Dec 12 2002Counsel's status report received (confidential)
Dec 12 2002Request for extension of time filed
To file appellant's reply brief. (2nd request)
Dec 16 2002Extension of time granted
To 2/14/2003 to file appellant's reo;y brief. After that date, only one further extension totaling about 30 additional dyas is contemplated. Extension is granted based upon counsel David L. Saine's representation that he anticipates filing that brief by 3/20/2003.
Feb 13 2003Request for extension of time filed
to file appellant's reply brief. (3rd request)
Feb 18 2003Extension of time granted
to 4/15/2003 to file appellant's reply brief. Extension is granted based upon counsel David L. Saine's representation that he anticipates filing that brief by 4/15/2003. After that date, no further extension is contemplated.
Apr 14 2003Request for extension of time filed
to file appellant's reply brief. (4th request)
Apr 21 2003Extension of time granted
to 5/15/2003 to file appellant's reply brief. Extension is granted based upon counsel David L. Saine's representation that he anticipates filing that brief by 5/15/2003. After that date, no further extension is contemplated.
May 15 2003Request for extension of time filed
to file appellant's reply brief. (5th request)
May 16 2003Extension of time granted
to 6/13/2003 to file appellant's reply brief. Extension is granted based upon counsel David L. Saine's representation that he anticipates filing that brief by 6/13/2003. After that date, no further extension will be granted.
Jun 13 2003Request for extension of time filed
to file appellant's reply brief. (6th request)
Jun 17 2003Extension of time granted
to 7/14/2003 to file appellant's reply brief. Extension is granted based upon counsel David L. Saine's representation that he anticipates filing that brief by 7/14/2003. After that date, no further extension will be granted.
Jul 14 2003Request for extension of time filed
to file reply brief. (7th request)
Jul 17 2003Extension of time granted
to 7-29-2003 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel David L. Saine's representation that he anticipates filing the brief by 7-29-2003.
Jul 28 2003Filed:
Motion of David L. Saine to be relieved as habeas corpus counsel.
Jul 29 2003Appellant's reply brief filed
(82 pp.)
Aug 13 2003Counsel appointment order filed
Good cause appearing, the application of appointed counsel for permission to withdraw as habeas corpus/executive clemency attorney of record for appellant Richard Wade Farley, filed July 28, 2003, is granted. The order designating David L. Saine as appointed lead attorney of record for appellant Richard Wade Farley, filed January 2, 2001, is hereby vacated with respect to the habeas corpus/ executive clemency proceedings related to the above automatic appeal now pending in this court. Mr. Saine shall remain as counsel of record for appellant's pending automatic appeal, and shall continue to be responsible for all appellate duties specified in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Richard Wade Farley. David L. Saine is directed to deliver to Executive Director Michael G. Millman, within 30 days from the filing of this order, all habeas corpus investigation work product, trial files, investigation reports and related materials that he has obtained from appellant's trial counsel, paralegals, experts and investigators, or from any other source. Kennard, J., was recused and did not participate.
Aug 21 2003Counsel's status report received (confidential)
from atty Saine.
Aug 22 2003Compensation awarded counsel
Atty Saine
Sep 24 2003Compensation awarded counsel
Atty Saine
Feb 1 2005Motion to withdraw as counsel filed
by attorney David L.Saine, to be relieved as direct appeal counsel.
Feb 4 2005Filed:
Supplemental declaration of service of atty Saine's motion to withdraw as direct appeal counsel.
Apr 27 2005Withdrawal of counsel allowed by order
Good cause appearing, the application of appointed counsel for permission to withdraw as appellate counsel of record for appellant Richard Wade Farley, filed February 1, 2005, is granted. The order designating appointed counsel David L. Saine as lead attorney of record for appellant Richard Wade Farley, filed January 2, 2001, is hereby vacated. Ezra Hendon is hereby appointed as appellate counsel of record for appellant Richard Wade Farley in the above automatic appeal now pending in this court. Saine is directed to deliver to Hendon, within 30 days from the filing of this order, his copy of the record on appeal in People v. Farley, all trial files and appellate work product, and all related materials that he has obtained from appellant's trial counsel, paralegals, experts and investigators, or from any other source. Kennard, J., was recused and did not participate.
Jun 29 2005Compensation awarded counsel
Atty Hendon
Oct 12 2005Compensation awarded counsel
Atty Hendon
Jan 5 2006Compensation awarded counsel
Atty Hendon
Apr 4 2006Counsel's status report received (confidential)
from atty Hendon.
Apr 12 2006Compensation awarded counsel
atty Hendon
Sep 6 2006Counsel's status report received (confidential)
from attorney Ezra Hendon.
Sep 20 2006Compensation awarded counsel
attorney Hendon.
Dec 5 2006Counsel's status report received (confidential)
from atty Hendon.
Dec 20 2006Compensation awarded counsel
Atty Hendon
Feb 22 2007Counsel's status report received (confidential)
from atty Herndon.
Apr 11 2007Compensation awarded counsel
Atty Hendon
May 10 2007Filed:
Appellant's application for leave to file supplemental brief. "Appellant's Supplemental Brief" received under seperate cover. (6,748 words; 27 pp.)
May 15 2007Filed:
Appellant's application for leave to file oversize supplemental brief and declaration of Ezra Hendon in support thereof.
May 18 2007Order filed
Appellant's "Application for Leave to File Supplemental Brief" and "Application for Leave to File Oversize Supplemental Brief" are granted. Any response to the supplemental brief must be served and filed within 30 days of this order. Any reply by appellant must be served and filed within 30 days of the filing of the response.
May 18 2007Supplemental brief filed
by appellant. (6,748 words; 27 pp.)
Jun 12 2007Filed:
Motion and Declaration of Good Cause to File Oversized Respondent's Supplemental Brief. Note: Respondent's Supplemental Brief "received" under seperate cover. (6,338 words; 21 pp.)
Jun 19 2007Order filed
Respondent's motion to file oversized respondent's supplemental brief is granted.
Jun 19 2007Supplemental brief filed
by respondent. (6,338 words; 21 pp.)
Jul 12 2007Counsel's status report received (confidential)
from atty Hendon.
Jul 12 2007Request for extension of time filed
to file supplemental reply brief. (1st request)
Jul 17 2007Extension of time granted
to September 17, 2007 to file the appellant's supplemental reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Ezra Hendon's representation that she anticipates filing that brief by early September 2007.
Aug 8 2007Compensation awarded counsel
Kennard, J., was recused and did not participate. Atty Hendon
Sep 12 2007Request for extension of time filed
to file supplemental reply brief. (2nd request)
Sep 17 2007Extension of time granted
Good cause appearing, and based upon counsel Ezra Hendon's representation that she anticipates filing the appellant's supplemental reply brief by October 17, 2007, counsel's request for an extension of time in which to file that brief is granted to October 17, 2007. After that date, no further extension will be granted.
Oct 17 2007Application to file over-length brief filed
to file supplemental reply brief (3,851 words) (15 pp)
Oct 25 2007Order filed
Appellant's "Application for Leave to File Oversize Supplemental Reply Brief" is granted.
Oct 25 2007Supplemental reply brief filed (AA)
by atty Hendon.
Nov 8 2007Order filed
The order filed on July 17, 2007 is amended to read as follows: Good cause appearing, and based upon counsel Ezra Hendon's representation that he anticipates filing the appellant's supplemental reply brief after early September 2007, counsel's request for an extension of time in which to file that brief is granted to September 17, 2007. After that date, no further extension is contemplated.
Nov 8 2007Order filed
The order filed on September 17, 2007 is amended to read as follows: Good cause appearing, and based upon counsel Ezra Hendon's representation that he anticipates filing the appellant's supplemental reply brief by October 17, 2007, counsel's request for an extension of time in which to file that brief is granted to October 17, 2007. After that date, no further extension will be granted.
Nov 28 2007Compensation awarded counsel
Atty Hendon
Jan 14 2008Change of contact information filed for:
Ezra Hendon.
Feb 27 2008Exhibit(s) lodged
from superior court: People's-H1-H21, XX, YY, ZZ, AAA, BBB, CCC, DDD, EEE, FFF, GGG, HHH, III, JJJ, KKK, LLL, MMM, NNN, 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18. Defense-A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, 1 R, S, T, U, V1-V16, W, X , Y, Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JJ, KK, LL, MM, NN, OO, PP, QQ, UU, VV, WW, 86A-86U.
Apr 23 2008Letter sent to:
counsel regarding missing pages in the court's record.
Apr 23 2008Filed:
letter from respondent, dated April 23, 2008, with copies of missing RT pages attached.
Apr 24 2008Filed:
letter from appellant, dated April 23, 2008, with copies of missing RT pages attached.
May 30 2008Exhibit(s) lodged
from superior court. People's: 1, 2, 3, 4A, 4B, 5, 6, 7, 10, 11A, 11B, 15, 16, 16A, 39, 40, 42, 42A-42Q, 88A, 88B, 141A, 142, 143, 147, 150A-150C, 170, 171A, 171B. Defense: I, YY, ZZ.
Jan 16 2009Justice pro tempore assigned
Nicholson, J.P.T.
Jan 21 2009Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 2, 2009, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 11 2009Case ordered on calendar
to be argued on Tuesday, April 7, 2009, at 9:00 a.m., in Los Angeles
Mar 17 2009Received:
appearance sheet from Deputy Attorney General Michael E. Banister, indicating 30 minutes for oral argument for respondent.
Mar 17 2009Received:
appearance sheet from Ezra Hendon, indicating 30 minutes for oral argument for appellant.
Mar 17 2009Filed:
appellant's focus issues letter, dated March 17, 2009.
Mar 19 2009Compensation awarded counsel
Atty Hendon
Mar 19 2009Filed:
copy of appellant's focus issues letter, dated March 17, 2009 and certificate of service on appellant Farley.
Mar 30 2009Filed:
respondent's focus issue letter, dated March 30, 2009.
Apr 2 2009Compensation awarded counsel
Atty Hendon
Apr 7 2009Cause argued and submitted
Apr 8 2009Supplemental briefing ordered
To assist the court in resolving the issues in this case, the parties are requested to address: (1) whether People v. Wilson (1969) 1 Cal.3d 431 (Wilson), was correct in extending the merger doctrine of People v. Ireland (1969) 70 Cal.2d 522, to first degree felony murder; (2) if Wilson is overruled, whether any such ruling should be retroactive; and (3) the effect, if any, of People v. Chun (March 30, 2009, S157601) 2009 Cal. LEXIS 3184, on the issues in this case. Simultaneous supplemental letter briefs are to be served and filed on or before April 23, 2009, in the San Francisco office of the clerk. Each party may serve and file a reply supplemental letter brief on or before April 30, 2009, in the San Francisco office of the clerk.
Apr 8 2009Received:
(via e-mail) letter from attorney Ezra Hendon, dated April 8, 2009, requesting that the court extend time to file supplemental letter briefs ordered this date.
Apr 9 2009Order filed
At the request of counsel for appellant, the time to serve and file the simultaneous supplemental letter briefs requested on April 8, 2009 is extended to and including May 13, 2009, and the time to serve and file any reply supplemental letter briefs is extended to and including May 18, 2009.
Apr 16 2009Note:
received original of letter received via e-mail from attorney Ezra Hendon on April 8, 2009.
May 13 2009Letter brief filed
(14 pp.)
May 13 2009Letter brief filed
(16 pp.)
May 18 2009Letter brief filed
(8 pp.) reply supplemental letter brief
May 18 2009Letter brief filed
reply supplemental letter brief (4 pp.)
May 28 2009Compensation awarded counsel
Atty Hendon
Jun 24 2009Compensation awarded counsel
Jul 1 2009Notice of forthcoming opinion posted
Jul 2 2009Opinion filed: Judgment affirmed in full
opinion by George, C.J. -----joined by Baxter, Werdegar, Chin, Moreno, Corrigan, JJ., and Nicholson JPT
Jul 8 2009Counsel appointment order filed
On the court's own motion, the order appointing Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, to serve as interim habeas corpus/executive clemency counsel of record for appellant Richard Wade Farley, filed August 13, 2003, is hereby vacated. Eric S. Multhaup is hereby appointed to represent appellant Richard Wade Farley for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus/executive clemency counsel David L. Saine's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Richard Wade Farley, and this court's delay in appointing replacement habeas corpus/executive clemency counsel. Kennard, J., was recused and did not participate.
Jul 9 2009Compensation awarded counsel
Atty Multhaup
Jul 16 2009Rehearing petition filed
(2,964 words; 11 pp.)
Jul 20 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 30, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 19 2009Rehearing denied
Kennard, J., was recused and did not participate.
Aug 19 2009Remittitur issued
Aug 24 2009Received:
acknowledgment receipt for remittitur from superior court.

Briefs
Dec 21 2001Appellant's opening brief filed
(314 pp.)
Sep 26 2002Respondent's brief filed
(297 pp.)
Jul 29 2003Appellant's reply brief filed
(82 pp.)
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