Filed 3/18/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S052808
v.
RICHARD CAMERON GAMACHE,
San Bernardino County
Super. Ct. No. FBA 4939
Defendant and Appellant.
A jury convicted defendant Richard Cameron Gamache of first degree
murder with robbery, burglary, and kidnapping special circumstances, as well as
various lesser crimes, for the 1992 abduction and killing of Lee Williams. (Pen.
Code, §§ 187, 189, 190.2, former subd. (a)(i), (ii) & (vii), now subd. (a)(17)(A),
(B) & (G).)1 It thereafter returned a death verdict. On automatic appeal, we
affirm the judgment as to Gamache‟s death sentence, but reverse in part to allow
the trial court to correct error in Gamache‟s determinate sentences for his
noncapital crimes.
FACTUAL AND PROCEDURAL BACKGROUND
In November 1992, Richard Gamache, then 18 years old, was discharged
from the Army. He returned to San Bernardino County, where his estranged wife,
1
All further unlabeled statutory references are to the Penal Code.
Tammy, lived. After he reconciled with his wife, they moved in with a minor
friend, Thomas P., in Yermo while planning what to do next. Tammy Gamache
had studied animal husbandry and loved horses, so the Gamaches decided to
acquire horses and go to Washington to camp in the wilderness. Tammy Gamache
had once lived next door to a Yermo couple, Lee and Peggy Williams, who owned
horses; she told Richard Gamache about them.
GUILT PHASE TRIAL
Prosecution Evidence
Around December 1, 1992, Tammy Gamache talked with a friend, Melanie
Foote, and Foote‟s grandparents about the Gamaches‟ plans to move to
Washington with some horses. She indicated they were planning to buy horses
soon and asked whether they could keep them temporarily at Foote‟s
grandparents‟ ranch. Foote‟s grandmother agreed.
On the afternoon of December 3, Richard Gamache, Andre Ramnanan, and
an acquaintance, Donald Gray, went target shooting in the desert outside Yermo.
Gray testified he overheard Gamache and Ramnanan discussing plans to steal
horses, a horse trailer, and a mobilehome and take them to Washington or Oregon
to live off the land. Gamache and Ramnanan would tie the victims up and shoot
them if they gave them any trouble.
Around 7:30 p.m. on December 3, the Gamaches borrowed the car of
Randy Vojkufka, who was also staying at Thomas P.‟s residence. They drove to
the Foote ranch and confirmed arrangements to drop off horses and a horse trailer
there later that evening, and to pick them up again in two days. They left the
Foote ranch around 10:30 p.m.
After 11:00 p.m., Peggy Williams testified, she was awoken by a knock at
the door of her home. She woke her husband, Lee Williams, and he answered the
2
door. She got up a few minutes later and went to the kitchen. Tammy Gamache
was using the phone; Thomas P. and Andre Ramnanan were standing with Lee.
Richard Gamache came up behind Peggy, put his arm around her neck, and held a
gun to her head. Ramnanan held a gun to Lee‟s head. Lee and Peggy Williams
were made to lie facedown; Richard Gamache ordered Lee to cooperate or he
would kill Peggy. Someone tied Peggy‟s hands behind her back with a shoelace.
Tammy Gamache asked where the horse halters and truck keys were and
left. She later returned, reported she had hooked up the horse trailer, and asked
Lee Williams about the horses‟ care and the location of their blankets and saddles.
Meanwhile, Richard Gamache and Ramnanan plundered the house, taking a
television, videocassette recorder, camcorder, food dehydrator and vacuum sealer,
jewelry, approximately $4,500 in cash, numerous guns, Lee‟s wallet, Peggy‟s
watch, and the couple‟s wedding rings.2 Throughout this process, they were
laughing and having a good time. Richard Gamache asked for the pink slips
(titles) to the Williamses‟ vehicles; Peggy Williams replied they did not yet have
them because they were still making payments.
Richard Gamache and Ramnanan announced it was time to go. Gamache
asked Lee Williams if anyone would miss them and how often people came to the
house. Lee and Peggy Williams were taken barefoot, in their bathrobes, out to
their motor home. Peggy asked if she could get shoes; Richard Gamache told her
she would not need them. Gamache and the others turned out the lights and
locked the doors.
In the motor home, Richard Gamache and Ramnanan bound and gagged the
Williamses. Gamache drove; Ramnanan guarded them with a gun. Tammy
2
Richard Gamache removed Peggy‟s wedding ring and told Tammy
Gamache it was a late wedding present; Tammy laughed.
3
Gamache drove the Williamses‟ truck and horse trailer. When they arrived at
Thomas P.‟s house, where Thomas P. was dropped off, they ungagged and untied
Peggy Williams. The Gamaches dictated bills of sale for the Williamses‟ motor
home, truck, trailer, and car; Peggy wrote them out and signed them. Lee
Williams was also forced to sign them.
Richard Gamache resumed driving the motor home. After some time he
stopped, and he and Ramnanan walked the Williamses from the roadside a short
distance into the desert. Gamache made them lie facedown on the ground. He
said, “Thank you and have a nice day” and shot Lee Williams in the head. He
then shot Peggy Williams in the head. Gamache and Ramnanan questioned
whether she was dead, shined a light in her eyes, and checked her pulse; Gamache
then shot her again. Gamache and Ramnanan walked off and drove away. Peggy
waited to confirm they were gone, unsuccessfully tried to get a response from Lee,
and then walked toward the lights of a truck stop in the distance and called 911
when she got there.
When the police arrived, Peggy Williams described her attackers and
provided license plate numbers for the stolen vehicles. Within an hour, the police
located the motor home in a café parking lot nearby. They broke in and found it
filled with stolen property from the Williamses‟ home. They then waited to see if
anyone would return.
Shortly after 5:00 a.m., now on the morning of December 4, Richard and
Tammy Gamache returned to the motor home in the Williamses‟ truck, having
dropped off the horses and horse gear at the Foote ranch. They were arrested. In
the truck, police found the murder weapon (a .32-caliber handgun), other weapons,
a bag of cash, and the dictated bills of sale for the Williamses‟ vehicles. A search
of Thomas P.‟s residence the same morning turned up more weapons and jewelry,
as well as bloody clothing. Tammy Gamache agreed to help the police find Lee
4
Williams and took them to his body. She then took the police to the Foote ranch
where they recovered the horses, horse trailer, horse equipment, and more guns.
Ramnanan was arrested late on the evening of December 4. Peggy
Williams‟s car was found nearby.
Defense Evidence
Richard Gamache presented no witnesses, relying instead on cross-
examination. In closing argument, he conceded he was guilty of murder,
attempted murder, robbery, and burglary. He argued, however, that the jury
should not convict him of kidnapping for robbery, as the robberies were already
completed before the kidnappings, and that the jury should not find any special
circumstances true, because the kidnappings, robberies, and burglary were all
completed before he decided to shoot the Williamses.
PENALTY PHASE TRIAL
Prosecution Evidence
The prosecution elaborated on the circumstances of the crime with further
testimony from Peggy Williams, a 40-minute tape of Richard and Tammy
Gamache and Andre Ramnanan jointly confessing on December 7 to the details of
the crimes, and two police officers testifying to statements Richard Gamache had
made about the crimes while in police custody.
The prosecution presented victim impact evidence from Peggy Williams.
She described Lee Williams and their happy marriage, and how when he was shot
and died in her arms she lost her “world.” She described the flashbacks, anxiety,
panic, and depression she had experienced since the shootings, and how she
eventually left her job and her home. Peggy Williams‟s psychotherapist, Dr.
Jennifer Reese, testified Williams had made little improvement in the years since
the shootings and likely would never recover completely.
5
The prosecution introduced evidence of two other uncharged crimes by
Richard Gamache in the month before the murder: an incident in which he had
tied up a roommate, accused him of saying Gamache had not paid his rent, and
then waterboarded him; and an incident in which he and Ramnanan had taken over
a pizzeria at closing, robbed the employees, and emptied the cash register. During
the robbery, Gamache held a knife to the throat of one employee and, after taking
the wallet of another employee and noting his name and address, threatened to
hunt him down and kill him if he went to the police.
The prosecution also presented evidence that Gamache had plotted an
escape from prison while awaiting trial.
Defense Evidence
Richard Gamache called his mother, a psychiatrist who had examined his
mother, and several psychiatrists who had examined him. Testimony about his
childhood showed his mother had left his father when Gamache was in utero
because the father‟s beatings had threatened a miscarriage. His mother had had
Gamache when she was 17 years old. She had been abused by a series of other
boyfriends and husbands in addition to Gamache‟s father, had been raped, had
used drugs and become a prostitute, and had repeatedly tried to kill herself.
Gamache and his mother moved frequently. He missed a year of school (fourth
grade) to stay home and take care of his mother, who had had ovarian cancer and a
hysterectomy. By age 10 or 11, Gamache was left alone at home to fend for
himself several days a week. He eventually dropped out of high school, got his
GED, and joined the Army, but was discharged in November 1992 for
psychological reasons. He experienced feelings of anger and hopelessness as a
result.
6
Gamache had a long history of dreams, fantasies, and delusions about
engaging in violent behavior. Dr. Michael Kania testified Gamache had a
borderline personality disorder, also known as a cycloid personality disorder or
unstable personality disorder. He was highly impulsive and subject to rapid mood
swings, with a great deal of underlying anger. Dr. Kania likened Gamache to a
stick of dynamite and concluded he had a very serious mental disorder.
Dr. Lorna Forbes testified Gamache was legally insane at the time he shot
the Williamses. She also concluded he was schizophrenic. Though he admitted
planning to kill the Williamses from the beginning, this was the product of a
delusional mind. Gamache was probably untreatable.
PROCEDURAL HISTORY
Richard Gamache, Tammy Gamache, and Andre Ramnanan were each
charged with first degree murder with three special circumstances, murder during
the commission of a robbery, murder during the commission of a burglary, and
murder during the commission of a kidnapping. (§§ 187, 189, 190.2, former subd.
(a)(i), (ii) & (vii), now subd. (a)(17)(A), (B) & (G).) They were also charged with
attempted murder (§§ 187, 664), two counts of residential robbery (§ 211),
residential burglary (§ 459), two counts of kidnapping for robbery (§ 209, subd.
(b)), and firearm use enhancements (§ 12022.5, subd. (a)). They were tried
jointly. A jury convicted each defendant of first degree murder and found all the
special circumstances true. It also convicted each defendant of all the lesser
offenses, found the firearm use enhancements true for Richard Gamache and
Andre Ramnanan, and found them not true for Tammy Gamache.
At the penalty phase, the jury returned a verdict of death for Richard
Gamache, a verdict of life for Andre Ramnanan, and could not reach a verdict for
Tammy Gamache. The prosecution abandoned further attempts to seek the death
7
penalty against Tammy Gamache, who was sentenced to life in prison without the
possibility of parole.
DISCUSSION
I. GUILT PHASE CLAIMS
A. Denial of Prosecutorial Recusal Motion (§ 1424)
Before trial, Richard Gamache moved to recuse the entire San Bernardino
County District Attorney‟s Office. (§ 1424.) He argued the district attorney‟s
office had a conflict because the surviving victim of the crimes, Peggy Williams,
had been employed in the district attorney‟s office as a typist for 10 years. The
trial court held a series of evidentiary hearings and concluded Gamache had failed
to establish a conflict warranting recusal. We conclude the trial court did not
abuse its discretion.
We recently reiterated the principles governing this claim. “Section 1424
sets out the standard governing motions to recuse a prosecutor: such a motion
„may not be granted unless the evidence shows that a conflict of interest exists that
would render it unlikely that the defendant would receive a fair trial.‟ (Id., subd.
(a)(1).) The statute „articulates a two-part test: “(i) is there a conflict of interest?;
and (ii) is the conflict so severe as to disqualify the district attorney from
acting?” ‟ ” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) Where, as
here, a defendant seeks to recuse not just an individual prosecutor but also an
entire prosecuting office, he must make an “especially persuasive” showing.
(People v. Hamilton (1988) 46 Cal.3d 123, 139.) We review the trial court‟s
decision to deny a recusal motion, even in a capital case such as this one, only for
an abuse of discretion. (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 728-
729.) Accordingly, we must determine whether the trial court‟s findings were
supported by substantial evidence and whether, in turn, those findings support the
decision to deny recusal. (People v. Vasquez (2006) 39 Cal.4th 47, 56.)
8
As to the first prong of section 1424, we agree with Gamache that the
prosecution had a conflict; that is, there was “a reasonable possibility that [the
prosecution‟s] impartial exercise of discretion might be affected . . . .”
(Haraguchi v. Superior Court, supra, 43 Cal.4th at pp. 717-718, fn. 13; see also
People v. Conner (1983) 34 Cal.3d 141, 148 [A conflict exists “whenever the
circumstances of a case evidence a reasonable possibility that the [district
attorney‟s] office may not exercise its discretionary function in an evenhanded
manner.”].) Peggy Williams was employed by the San Bernardino County District
Attorney‟s Office as a transcriber/typist. She had worked for the district
attorney‟s office for 10 years at the time of the crimes. She was a victim in the
case and its most important witness, and remained deeply emotionally affected by
these crimes. Moreover, the murder victim, Lee Williams, was her husband and
thus related to a district attorney‟s office employee.
We have recognized this situation as a paradigmatic conflict. In People v.
Superior Court (Greer) (1977) 19 Cal.3d 255, we considered a special
circumstance murder case in which the victim‟s mother was a discovery clerk for
the district attorney‟s office charged with prosecuting the case. The victim‟s
mother‟s grief was evident to her coworkers; as well, she stood to be a material
witness for the prosecution. (Id. at p. 259.) We concluded that where “[t]he
victim of the homicide was the son of a member of the district attorney‟s staff who
worked in the very office in which the prosecution was being prepared” (id. at
p. 270), it was not an abuse of discretion to find a conflict (id. at p. 269).
Similarly, in People v. Conner, supra, 34 Cal.3d at page 148, we recognized that
where a deputy district attorney was a material witness to a shooting and himself
potentially a victim, having possibly been shot at, these circumstances could pose
a conflict for the district attorney‟s office. As well, in People v. Vasquez, supra,
39 Cal.4th at pages 57-58, we recognized that the fact a district attorney‟s office
9
employed both the defendant‟s mother and his stepfather could give rise to a
conflict. (See also Lewis v. Superior Court (1997) 53 Cal.App.4th 1277, 1283-
1284 [conflict arising from the fact that every district attorney‟s office employee
was necessarily a victim of the charged crimes].) Peggy Williams‟s roles as
employee, victim, relative of a second victim, and witness created at least the
possibility the San Bernardino County District Attorney‟s Office might be
influenced in its discretionary decisionmaking.
However, the possibility that a prosecutor might be influenced does not
alone establish the requisite likelihood or probability that a defendant will be
treated unfairly. The trial court here conducted a two-day hearing. Based on all
the evidence adduced, it concluded Gamache and his codefendants had not shown
a conflict rising to a level that would require recusal. Having reviewed that
evidence, we conclude the trial court did not abuse its discretion because
substantial evidence fully supports that conclusion.
The San Bernardino County District Attorney‟s Office is large, with 500
employees and 122 deputy district attorneys. Because of San Bernardino County‟s
huge geographic spread,3 the district attorney‟s office is divided into three
administratively and operationally separate divisions. The murder occurred in the
area covered by the Desert Division, where Peggy Williams worked, and was
initially handled by prosecutors from that office. On December 7, 1992, Gamache
was charged with first degree murder. On December 8, an amended complaint
was filed adding special circumstance allegations. After the holidays, by
January 7, 1993, the case was reassigned from Barstow in the Desert Division to
3
We may judicially notice, as did the trial court, that San Bernardino County
is the largest county in the continental United States. (Evid. Code, §§ 452, subd.
(h), 459, subd. (a).)
10
San Bernardino in the Central Division, 70 miles away, and all further proceedings
were handled by the Central Division.
We consider first whether the decision to charge Gamache with special
circumstances and to seek the death penalty was likely to have been infected by
the conflict. The record supports the trial court‟s conclusion that it was not, as the
decision maker had no personal relationship with Peggy Williams and based his
decision on input from others with no connection to Peggy Williams.
According to witnesses, District Attorney Dennis Kottmeier made the
decision to retain the case as a special circumstances case and to seek the death
penalty following a February 23, 1993, meeting with his chief deputies and the
assigned prosecutor. Every witness testified that the decision to file special
circumstances and seek death was Kottmeier‟s, and Kottmeier‟s alone. Kottmeier
barely knew Peggy Williams. He had not hired her, had never had social contact
with her, did not know her by name, and would have recognized her face only in
context if he had seen her while visiting the Barstow office where she worked; he
would not have recognized her if he had run into her on the street. He did not
know Lee Williams at all. Kottmeier testified repeatedly that Peggy Williams‟s
status as an employee of the district attorney‟s office played no role in his decision
to seek death for Gamache.
The assigned prosecutor, Raymond Haight, prepared the initial
recommendation to Kottmeier that the prosecution should seek the death penalty.
He did not know Peggy Williams, and her employment status played no role in his
recommendation.
The other attorneys who played advisory roles and consulted with
Kottmeier on the decision to seek the death penalty testified similarly. Chief
Deputies Richard Maxwell, James Hackleman, and Michael Kewin did not know
Peggy or Lee Williams at all. Peggy Williams‟s status as an employee played no
11
role in their discussions with Kottmeier about the case and in the decision to seek
death. Notably, the one chief deputy who did know Peggy Williams, Dennis
Christy,4 immediately recognized his participation in the case could create a
recusal problem, concluded he should have no role in any discretionary decisions,
and took no part in the discussion during the February 1993 staff meeting at which
Kottmeier decided to seek death. The record here thus stands in sharp contrast to
People v. Vasquez, supra, 39 Cal.4th at pages 56-58, where uncontradicted
evidence established that the defendant‟s relationship to employees of the district
attorney‟s office played a role in the handling of the case and where, accordingly,
we found recusal mandated.
Gamache argues it was error not to disregard this testimony because
Kottmeier visited Peggy Williams in the hospital once, on the day she was shot,
and later attended Lee Williams‟s funeral and offered Peggy Williams a word or
two of condolence. Gamache also points out that Kewin, the chief deputy in
charge of administrative services, spoke to the office‟s victim witness personnel
about providing services to Peggy Williams. These actions demonstrate Kottmeier
and Kewin were human and humane; they are not of the sort that would
demonstrate Kottmeier inevitably must have been subconsciously influenced by
Peggy Williams‟s employment status in deciding whether to seek the death
penalty for Gamache. The trial court heard Kottmeier‟s testimony, and that of
each of his deputies, and found the disavowals of any influence credible. It was
entitled to do so.
Further, Gamache argues that Christy, the chief deputy who knew Peggy
Williams well, critically affected the decision to seek the death penalty. The
4
Christy was the chief deputy supervising the Desert Division, where Peggy
Williams worked.
12
record does not support his argument. Gamache and his codefendants were
arrested on Friday, December 4, 1992, and Eric Nakata, the deputy district
attorney initially responsible for the case, filed a felony complaint on Monday,
December 7. Sometime in these first few days, Christy mentioned to Kottmeier a
previous possible death case in which S. Donald Ames, Gamache‟s counsel, had
created procedural difficulties by having his client plead guilty at arraignment,
before any special circumstances had been added. Kottmeier directed Christy to
avoid this possibility by having special circumstances filed immediately, and an
amended complaint charging special circumstances was filed on December 8.
Notably, however, Kottmeier and Christy both testified that this early
addition of special circumstances was purely procedural, to preserve the status quo
and the option of seeking death. Kottmeier reserved judgment until more facts
were known and did not decide to pursue the case as a special circumstance
murder and to seek the death penalty until February 1993, after the preliminary
hearing. Christy and Kottmeier testified, without contradiction, that Christy had
played no role in any of the subsequent substantive discussions that led to
Kottmeier‟s ultimate decision.
There is likewise evidence to support the trial court‟s conclusion that Peggy
Williams‟s employment by the district attorney‟s office would not affect the
subsequent conduct of trial. As noted, the San Bernardino County District
Attorney‟s Office is unusually large and consequently is divided into
administratively and operationally separate divisions. There is little to no
employee mixing between these divisions. Within approximately one month, the
case had been reassigned from the Desert Division in Barstow, where Peggy
Williams worked, to the Central Division in San Bernardino, an office 75 miles
away. Prosecutor Raymond Haight had never worked in Barstow and had never
met Peggy Williams. Indeed, he was part of a career criminal prosecution group
13
that was segregated on its own floor and had its own staff, even apart from the rest
of the San Bernardino office. District Attorney Kottmeier established an ethical
screen so no Desert Division employees would have any role in the case, and no
evidence was advanced that would suggest such screens had not been or could not
be effective. The record thus supports the trial court‟s conclusion that, because of
the prompt steps taken to screen off prosecution of this case from those employees
who might have any connection to Peggy Williams, there was no likelihood the
conflict would lead to unfair treatment of Gamache at trial.
The size of the office and the ability of the San Bernardino County District
Attorney‟s Office to set up effective ethical screens distinguish this case from
those on which Gamache relies. (See People v. Vasquez, supra, 39 Cal.4th at
p. 57 [emphasizing the significance of the size of a prosecutor‟s office in deciding
whether recusal of the entire office is necessary]; In re Charlisse C. (2008) 45
Cal.4th 145, 163 [noting ethical screens may obviate the need to recuse an entire
government law office]; City and County of San Francisco v. Cobra Solutions,
Inc. (2006) 38 Cal.4th 839, 853 [same].) In People v. Superior Court (Greer),
supra, 19 Cal.3d at page 270, we emphasized that the victim‟s mother “worked in
the very office in which the prosecution was being prepared.” In People v.
Conner, supra, 34 Cal.3d at pages 148-149, we found it critical that the felony
division of the district attorney‟s office consisted of only 25 attorneys; one of the
25 was a victim and a witness, and his experiences had been discussed pervasively
throughout the office. And in People v. Choi (2000) 80 Cal.App.4th 476, 483,
recusal was appropriate because no effective ethical wall was in place; though the
district attorney‟s office had in theory set up such a wall, in practice the conflicted
district attorney continued to communicate with others in the office about the
14
case.5 In light of the contrasting facts here, the trial court did not abuse its
discretion when it declined to order recusal.
Gamache also argues that the trial court deprived him of his federal due
process rights by denying recusal. (U.S. Const., 14th Amend.)6 However, we
have explained that section 1424‟s recusal standards are prophylactic in nature and
“serve[] to prevent potential constitutional [due process] violations from
occurring.” (People v. Vasquez, supra, 39 Cal.4th at p. 59.) If recusal was
properly denied under section 1424, ipso facto no due process violation occurred.
B. Imposition of Security Belt and Shackles
Gamache contends the trial court erred by requiring him to wear leg
shackles and an electronic security belt during trial, in violation of his rights to a
fair and reliable capital trial. (U.S. Const., 5th, 6th, 8th & 14th Amends.) We find
no abuse of discretion.
5
Significantly as well, in each of these cases the trial court ordered recusal,
while here it did not. (See People v. Conner, supra, 34 Cal.3d at p. 149; People v.
Superior Court (Greer), supra, 19 Cal.3d at p. 269; People v. Choi, supra, 80
Cal.App.4th at p. 483.) Given the deferential standard of review applicable to
rulings on recusal motions, in many cases the record may contain sufficient
evidence to support either a grant or a denial, and an appellate court may be
precluded from disturbing either ruling.
6
With this and virtually every one of his appellate claims, Gamache has
added a constitutional gloss, asserting that state law error also amounted to a
violation of federal, or state and federal, constitutional rights. In many instances
these constitutional grounds were not identified in the trial court. Except as noted,
however, we will address them on the merits because these claims involved legal
standards no different from the ones the trial court was already called upon to
apply. (People v. Wallace (2008) 44 Cal.4th 1032, 1050, fn. 4; People v. Partida
(2005) 37 Cal.4th 428, 435-437.) To the extent the constitutional gloss involves
no different standards, no separate discussion is required, and we will provide
none. (Wallace, at p. 1050, fn. 4; People v. Boyer (2006) 38 Cal.4th 412, 441,
fn. 17.)
15
“ „[A] defendant cannot be subjected to physical restraints of any kind in
the courtroom while in the jury‟s presence, unless there is a showing of a manifest
need for such restraints.‟ ” (People v. Wallace, supra, 44 Cal.4th at p. 1050.) The
Fifth and Fourteenth Amendments to the federal Constitution bar the use of visible
restraints “unless the trial court has found that the restraints are justified by a state
interest specific to the particular trial.” (People v. Stevens (2009) 47 Cal.4th 625,
633; see also Deck v. Missouri (2005) 544 U.S. 622, 629.)
In deciding whether restraints are justified, the trial court may “take into
account the factors that courts have traditionally relied on in gauging potential
security problems and the risk of escape at trial.” (Deck v. Missouri, supra, 544
U.S. at p. 629.) These factors include evidence establishing that a defendant poses
a safety risk, a flight risk, or is likely to disrupt the proceedings or otherwise
engage in nonconforming behavior. (Id. at pp. 628-629, 633; People v. Stevens,
supra, 47 Cal.4th at p. 633; People v. Seaton (2001) 26 Cal.4th 598, 651; People v.
Duran (1976) 16 Cal.3d 282, 291.) If the record establishes restraints are
necessary, a trial court should select the least obtrusive method that will be
effective under the circumstances. (Duran, at p. 291.) These principles apply
fully to the decision whether to require a defendant to wear an electronic security
belt, also known as a stun belt, notwithstanding that such a belt may not be visible
to the jury. (People v. Mar (2002) 28 Cal.4th 1201, 1219.)7
7
The security belt at issue here is the same one we described in People v.
Mar, supra, 28 Cal.4th at pages 1214-1215, a remote electronically activated
control technology (REACT) belt. The belt is controlled remotely; a security
deputy assigned to monitor a defendant can send an audible warning beep to alert
the defendant to stop any offending conduct. If the defendant fails to do so, the
assigned deputy can deliver a 50,000-volt shock. During ordinary use, the belts
should not be visible to the jury once covered with loose clothing.
(footnote continued on next page)
16
Because a “trial court has broad power to maintain courtroom security and
orderly proceedings” (People v. Hayes (1999) 21 Cal.4th 1211, 1269), we review
decisions regarding the physical restraint of a defendant for abuse of discretion.
(Ibid.; People v. Wallace, supra, 44 Cal.4th at p. 1050; People v. Ayala (2000) 23
Cal.4th 225, 253; People v. Duran, supra, 16 Cal.3d at p. 293, fn. 12.) “No formal
hearing is necessary to fulfill the mandate of Duran; however, the record must
show the court based its determination on facts, not rumor and innuendo.”
(People v. Stevens, supra, 47 Cal.4th at p. 633.) The imposition of restraints
without evidence in the record establishing a threat of violence, escape, or
nonconforming conduct is an abuse of discretion. (Duran, at p. 291.) Thus, we
consider whether the trial court made the findings necessary to impose a particular
security measure — that there was a manifest need, and that the measure chosen
was the least obtrusive that would still be effective — and further whether those
findings were supported by substantial evidence.
On June 22, 1995, the trial court held a pretrial hearing to address security
measures. The People introduced evidence that in July 1994 Gamache‟s cell had
been searched and he had been found with a hacksaw, 42 ounces of toothpaste,8
plans for a homemade silencer, and a written escape plan. The five-step escape
plan, which Gamache admitted writing, involved his (1) getting a saw blade, a
(footnote continued from previous page)
In People v. Mar, supra, 28 Cal.4th at pages 1225-1230, we also laid out a
series of additional considerations for trial courts to take into account in deciding
whether to order use of a stun belt. We expressly counseled that those
considerations were being offered only for guidance in future trials. (Id. at
pp. 1225, 1230.) As the trial here occurred before Mar was decided, we need not
address those additional considerations further.
8
A detective for the sheriff‟s office testified that toothpaste could be used to
saw through bars, presumably after drying and hardening it.
17
lighter, and street clothes; (2) cutting his cell bars and making “didimow”;9
(3) committing a carjacking to get money and a car, and then either (a) going to
“Spink‟s house,” then Ord Mountain (the area where he and Ramnanan had taken
target practice on December 3, 1992) to get a gun, or (b) if there happened to be a
gun in the car already, going directly to Laughlin or Las Vegas, Nevada;
(4) robbing a casino and changing his identity; and (5) buying equipment to “big
hit” Bullhead (an airport outside Laughlin) or “St. Mary‟s” (unknown).
On May 13, 1995, just a month before the hearing, deputies at the jail
where Gamache was being held searched an inmate who was about to be released
and found a sealed letter he was attempting to smuggle out and mail on Gamache‟s
behalf. The letter, to Gamache‟s mother, asked her to get a device to trigger the
stun belt Gamache expected to wear at trial. Gamache believed this would result
in a mistrial. Then Gamache could either escape from the hospital, with the help
of outsiders “eddy and gene,” or escape from court using equipment he would buy
with money he would receive after successfully suing over being inadvertently
shocked.
On May 17, just days later, deputies intercepted a second letter from
Gamache to his mother, again asking her to get a device to trigger his stun belt,
whereby he could obtain a mistrial and sue for “150 thou or so.” Deputies
interpreted both letters as asking Gamache‟s mother to get a device that might
override the stun belt and allow Gamache to escape directly from the courtroom.
The People also presented testimony from the marshal in charge of security
for the courthouse. He testified that security was hampered by the fact the
courthouse had numerous public entrances, but no metal detecting equipment. He
9
When questioned, Gamache explained “didimow” meant “escape.”
18
further testified that Gamache, alone among the three defendants, had been
designated a high-security escape risk.
The trial court made an express finding that the evidence established a
“manifest need to restrain [Gamache] in some fashion during trial in the presence
of the jury.” (See People v. Duran, supra, 16 Cal.3d at pp. 290-291.) It cited the
escape plan and hacksaw found in Gamache‟s cell the previous year, as well as the
two letters sent a month before the hearing, again plotting an escape. In part
because of concerns that Gamache might use the stun belt itself as part of an
escape plan, the court concluded ankle shackles, arranged so the jury would not
see them, were the preferred means of restraint.
On August 7, 1995, at the People‟s request, the trial court held a second
pretrial hearing to address Gamache‟s restraints. The People provided a marshal‟s
report indicating that Gamache had been found with a homemade handcuff key a
few days earlier. The People further indicated Gamache had been found with an
elastic file fastener that he allegedly was seeking to shape into a weapon.
Gamache admitted possession of the fastener, but argued the handcuff key had
been planted in his shoe and, in any event, might not have worked to open his
shackles. As a final point, the People represented that Gamache‟s mother, to
whom his earlier escape letters had been directed, had gone to the Barstow
marshal‟s office and said that if the trial had been in Barstow, she “ „would have
blown up the courthouse and everybody else.‟ ”10 Gamache conceded his mother
had threatened to blow up a courthouse. Based on this, the People feared
Gamache might still have outside help to assist in a potential escape.
10
Pretrial proceedings had been conducted in Barstow, a few miles west of
Yermo, but the trial was held in San Bernardino, 75 miles to the southwest.
19
In light of this additional record, the trial court made an express finding that
use of a stun belt in addition to shackles was now appropriate, provided the stun
belt was “properly concealed from the jury‟s view as much as possible.” Defense
counsel assured the court that they would make arrangements to ensure Gamache
would be dressed in such a fashion as to conceal the belt.
The trial court did not abuse its discretion. It made express findings at both
the June 22 and August 7 hearings that restraints were called for. Those findings
were fully supported by evidence in the record establishing that Gamache was a
genuine escape risk. The court considered in each instance the least obtrusive
means that would suffice to address the perceived security problem Gamache
posed, initially ordering just shackles that could be concealed from the jury. Only
after Gamache and his mother had provided additional evidence that he remained
an escape risk and that restraints impervious to picking with a homemade key
were necessary, did the trial court order the stun belt. Even then, the court
remained cognizant of the possibility for prejudice and took steps to ensure that
the stun belt, like the shackles, would not be visible to the jury.
Before us, Gamache argues that the trial court should have discounted any
possibility of escape as the product of a delusional mind. He further argues that he
was never disruptive or violent in court. As to the first point, the record
establishes his escape plans were not only in his head. The homemade handcuff
key was real, and the trial court was permitted to disbelieve his protestations that
the key was not his. So were the letters he wrote to his mother, asking for help in
escaping. The trial court could credit testimony that indicated the threat of an
escape attempt was genuine and could take into account that Gamache was
devising ever-changing methods: a hacksaw, an electronic device to control his
stun belt, a homemade handcuff key. His letters suggested he had become
20
desperate in the face of the potential punishment he faced. Given time, Gamache
might attempt anything. The trial court was entitled to prepare for that risk.
As to the second point, that he was never disruptive or violent in the
courtroom, the People v. Duran, supra, 16 Cal.3d 282, requirement that the record
establish a threat of violence, escape, or disruption is framed in the disjunctive.
Where the record establishes a threat of escape, a defendant cannot plead no threat
of violence or disruption, and vice versa; the banks he has not robbed do not
excuse the banks he has. If any threat in one of these categories is established, a
trial court is entitled to take appropriate measures, consistent with the requirement
that it choose the least obtrusive restraints necessary. It did so here.
C. Prosecutorial Misconduct: Guilt Phase Closing Argument
Gamache contends various prosecutorial remarks during the guilt phase
closing argument constituted misconduct, thereby violating his rights to due
process and a fair trial. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I,
§§ 7, 15, 17.) We disagree.
Under the federal Constitution, a prosecutor‟s behavior deprives a
defendant of his rights “when it comprises a pattern of conduct „so egregious that
it infects the trial with such unfairness as to make the conviction a denial of due
process.‟ ” (People v. Espinoza (1992) 3 Cal.4th 806, 820; accord, Darden v.
Wainwright (1986) 477 U.S. 168, 181; People v. Wallace, supra, 44 Cal.4th at
p. 1070.) Conduct that falls short of that standard “may still constitute misconduct
under state law if it involves the use of deceptive or reprehensible methods to
persuade the trial court or the jury.” (People v. Panah (2005) 35 Cal.4th 395, 462;
accord, Wallace, at p. 1070.)
“ „ “ „[A] prosecutor is given wide latitude during argument. The argument
may be vigorous as long as it amounts to fair comment on the evidence, which can
21
include reasonable inferences, or deductions to be drawn therefrom. . . .‟
[Citation.] „A prosecutor may “vigorously argue his case and is not limited to
„Chesterfieldian politeness‟ ” [citation], and he may “use appropriate epithets
. . . .” ‟ ” [Citation.]‟ ” (People v. Stanley (2006) 39 Cal.4th 913, 951-952; see
also People v. Jablonski (2006) 37 Cal.4th 774, 835.) “To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the complained-of comments
in an improper or erroneous manner.” (People v. Frye (1998) 18 Cal.4th 894,
970.)
To preserve a claim for appeal under either state or federal law, a defendant
must raise a contemporaneous objection at trial and seek a jury admonition.
(People v. Bonilla (2007) 41 Cal.4th 313, 336.) In the absence of an objection,
any claim is forfeited unless an exception applies. (People v. Avila (2009) 46
Cal.4th 680, 710-711.) In those instances where Gamache concedes he failed to
object, he argues his failure is excused because an objection would have been
futile and an admonition would have failed to cure any harm. However, “[a]
defendant claiming that one of these exceptions applies must find support for his
or her claim in the record. [Citation.] The ritual incantation that an exception
applies is not enough.” (People v. Panah, supra, 35 Cal.4th at p. 462.)
Considering each instance of alleged prosecutorial misconduct, we find several of
the claims forfeited and all of the claims unfounded.
(1) At the beginning of his closing argument, the prosecutor explained he
would be spending most of his time on the case against Tammy Gamache and
Andre Ramnanan because the evidence against Richard Gamache was largely
uncontested, and the jury should not read into this any concession that Richard
Gamache was not central to the crimes. He explained: “As you heard from the
law, he‟s, as the actual shooter — and I think everybody agrees he‟s the actual
22
shooter — he‟s in a slightly different legal position than Andre and Tammy . . . .
So, as I look at it, looking at the facts, he doesn‟t have anywhere to go. So I‟m not
going to talk too much about him, [be]cause I think everybody here expects you to
find him guilty and find the charges true.” (Italics added.)
Gamache argues this last remark would have caused the jury to abdicate its
responsibilities and substitute the expectations of others for its own judgments. As
no objection was made, this argument is forfeited. It is also meritless. The
prosecutor‟s remark was a fair comment on the state of the evidence, which
showed without dispute that Gamache had intentionally robbed, kidnapped, and
then shot the Williamses. There is no reasonable likelihood a jury would have
understood these remarks as expressing anything other than the prosecutor‟s
expectation that the jury would find Richard Gamache an easier case than his
codefendants.
(2) As promised, the prosecutor spent the bulk of his argument
highlighting evidence that showed Andre Ramnanan and Tammy Gamache shared
Richard Gamache‟s intent to shoot and kill the Williamses. He argued they knew
Richard would carry out the shootings and they wanted him to: “And I think
really what happened was — Richard was the shooter, because I think Andre and
Tammy knew he had some propensities along those lines, and they let him do the
dirty work. He didn‟t mind doing the dirty work. But I submit to you if he hadn‟t,
they would have done it, but that was his job in this conspiracy, and they expected
him to do it.”
Gamache argues there was no evidence in the record to show he had
“propensities along those lines.” The argument is preserved, as Gamache objected
in the trial court. However, the prosecutor‟s argument was not misconduct, nor
did it prejudice Gamache in any way. It went to whether Gamache‟s codefendants
had reason to know Gamache would intentionally shoot the Williamses — an issue
23
contested by his codefendants — but it had no bearing on any contested guilt
phase issue, as Gamache conceded he intentionally shot the Williamses.
(3) At the start of his rebuttal closing argument, the prosecutor expressed
his disbelief at the arguments of Gamache‟s counsel: “As to Richard Gamache,
the argument made by [defense counsel]. I was flabbergasted that he argued you
shouldn‟t find the special circumstance[s] true, because, after all, the killing had
nothing to do with the robbery, and the burglary and the kidnapping.” He went on
to explain in detail why, in his view, the evidence supported the conclusion that
Gamache had committed an intentional murder in the course of robbery, burglary,
and kidnapping, and why the jury therefore should find the corresponding special
circumstances true.
Gamache takes umbrage at the use of the word “flabbergasted,” but has
forfeited any claim by failing to object at trial. Nor does the prosecutor‟s word
choice carry him outside the wide latitude afforded counsel at argument; the
prosecutor did not ask the jury to decide the case based on his own personal
opinions of the merits of Gamache‟s arguments, but rather on the evidence in the
record that might refute them.
(4) Later in his rebuttal, when discussing evidence that for Gamache the
murder had been intertwined with — not independent of — the other crimes, the
prosecutor read from a transcript of Peggy Williams‟s earlier trial testimony about
the burglary: “ „Q. Tell us what Richard said. [¶] A. They asked [Lee] his name
— Richard asked him his name. [¶] Q. And what did Lee say? [¶] A. He said,
“Lee Williams.” Asked him where Lee worked, and Lee said, “Southern
California Edison.” And the response to that, I don‟t know if it was the same
person that asked Lee where he worked that came back with the response, but the
response was “I should [blow] your fucking head off right now because I had a
friend that just broke into Edison and was caught.” ‟ [¶] Of course the interesting
24
part of that sentence is the words „right now‟ as opposed to, what, maybe an hour
later or so. That takes care of Richard.”
Gamache objects that the prosecutor insinuated it was Gamache who said,
“I should [blow] your fucking head off right now because I had a friend that just
broke into Edison and was caught,” when no evidence in the record supported that
conclusion. This claim is preserved, as Gamache‟s codefendant objected and the
trial court overruled the objection before Gamache had a chance to join;
accordingly, it would have been futile to make the same objection that had just
been rejected. However, the claim is without merit: the prosecutor read aloud the
portion of the transcript where Peggy Williams indicated she did not know who
the speaker was, counsel for Gamache‟s codefendant pointed out there was no
evidence who the speaker was, and the trial court denied the objection with the
understanding the jury was necessarily aware Peggy Williams had been uncertain
who the speaker was. Nothing in the prosecutor‟s remarks was likely to prevent
the jury from deciding for itself to whom, if anyone, these remarks should be
attributed.
(5) Turning to the evidence supporting Tammy Gamache‟s intent, the
prosecutor conceded: “Tammy did, in fact, lead them to the body. I don‟t quite
view the interpretation that way — same way [defense counsel] does [that Tammy
Gamache did not want Lee Williams to die]. [I] [f]ind it curious that she knew
exactly where to take the police, and — well, there are all sorts of other things I
could go into, but that, that shows her knowledge of the shooting to be a far
greater level than he would have you believe, I think.” (Italics added.)
Gamache argues the prosecutor was implying he was privy to evidence
outside the record that would further support defendants‟ guilt. No objection was
made; the argument is forfeited. Moreover, in context, it is clear the prosecutor
was alluding to other evidence in the record that would also establish Tammy
25
Gamache was a full participant in the charged crimes; the remark had nothing to
do with Richard Gamache. There is no reasonable likelihood the jury would have
understood the comment in any other way.11
Whether considered individually or collectively, we conclude Gamache has
not shown the prosecutor‟s remarks in his guilt phase closing argument constituted
misconduct.
D. Inference of Guilt from Possession of Stolen Property
(CALJIC No. 2.15)
The trial court instructed the jury with a version of CALJIC No. 2.15,
covering the inferences to be drawn from possession of recently stolen property,
which had been modified to include the various crimes with which the three
codefendants were charged.12 Gamache contends this instruction was flawed in
11
Gamache also mixes in with his guilt-phase closing argument claims an
objection to one remark the prosecutor made to a panel of prospective jurors
during voir dire. Underlining the jury‟s responsibility to follow the court‟s
instruction not to consult outside sources, the prosecutor had noted: “You can tell
a lot of money has been spent on this case just to get it this far. And to have to do
it all over again is a catastrophe.” Gamache forfeited the claim by not objecting in
the trial court. In any event, the claim is meritless; Gamache has not shown any
reasonable likelihood the jurors would have remembered this remark and used it as
a basis to disregard the countless subsequent instructions they received governing
the manner in which they were to decide the case.
12
The instruction provided: “If you find that a defendant was in conscious
possession of recently stolen property, the fact of such possession is not by itself
sufficient to permit an inference that the defendants are guilty of the crime of
murder, robbery, burglary, and kidnapping for robbery. Before guilt may be
inferred, there must be corroborating evidence tending to prove defendant‟s guilt.
However, this corroborating evidence need only be slight, and need not by itself
be sufficient to warrant an inference of guilt. [¶] As corroboration, you may
consider the attributes of possession — time, place, and manner, that the defendant
had an opportunity to commit the crime charged; the defendant‟s conduct; his false
or contradictory statements, if any; and/or other statements that he or she may
have made with reference to [the] property; or a false account of how he or she
(footnote continued on next page)
26
two ways: (1) It allowed inferences to be drawn (that Gamache had committed
special circumstance murder, kidnapping, robbery, and burglary) that were in no
way rationally connected to the provable facts (that Gamache possessed stolen
property); and (2) it lessened the prosecution‟s burden of proof, incorrectly
permitting the jury to find him guilty of murder, robbery, burglary, and kidnapping
for robbery based on only slight corroborating evidence above and beyond his
possession of stolen property.13 Accordingly, he contends his federal due process
rights were violated. (U.S. Const., 14th Amend.) While we agree the trial court
partially erred in how it worded its instruction, that error was manifestly harmless.
CALJIC No. 2.15 is an instruction generally favorable to defendants; its
purpose is to emphasize that possession of stolen property, alone, is insufficient to
sustain a conviction for a theft-related crime. (People v. Yeoman (2003) 31
Cal.4th 93, 131; People v. Mendoza (2000) 24 Cal.4th 130, 176-177; People v.
Johnson (1993) 6 Cal.4th 1, 37; cf. People v. Najera (2008) 43 Cal.4th 1132,
1135-1136 [defendant argued he was prejudiced because the trial court had a duty
to give CALJIC No. 2.15 sua sponte in all theft-related cases and failed to do so].)
In the presence of at least some corroborating evidence, it permits — but does not
require — jurors to infer from possession of stolen property guilt of a related
offense such as robbery or burglary. We have held the instruction satisfies the due
(footnote continued from previous page)
acquired possession of the stolen property; or any other evidence which tends to
connect the defendant with the crime charged.”
13
The People contend Gamache forfeited this argument by failing to object at
trial. Section 1259 permits appellate review of claimed errors to the extent they
“affected the substantial rights of the defendant.” Accordingly, to the extent this
claim of instructional error is meritorious and contributed to Gamache‟s
conviction and death sentence, we will review it. (See People v. Bonilla, supra,
41 Cal.4th at p. 329, fn. 4; People v. Prieto (2003) 30 Cal.4th 226, 247.)
27
process requirement for permissive inferences, at least for theft-related offenses:
the conclusion it suggests is “ „one that reason and common sense justify in light
of the proven facts before the jury.‟ ” (Yeoman, at p. 131; see also People v.
Parson (2008) 44 Cal.4th 332, 356.) Accordingly, we have repeatedly upheld the
giving of the instruction in such cases (Parson, at pp. 355-357 [instruction is
appropriate for robbery, burglary, and other theft charges]; People v. Prieto, supra,
30 Cal.4th at pp. 248-249 [instruction is appropriate for use in theft cases];
Yeoman, at pp. 131-132 [instruction is appropriate in robbery case]), and Gamache
offers us no reason to reconsider that conclusion.
On the other hand, we have also cautioned that the instruction is
inappropriate for non-theft-related crimes, and instructing that possession of stolen
property may create an inference that a defendant is guilty of murder, as was done
here, is error. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101; People v.
Prieto, supra, 30 Cal.4th at pp. 248-249.) The People concede as much.14
As for Gamache‟s second argument, that CALJIC No. 2.15 impermissibly
alters the burden of proof, we have previously rejected it. The instruction does not
establish an unconstitutional mandatory presumption in favor of guilt (People v.
Yeoman, supra, 31 Cal.4th at p. 131) or otherwise shift or lower the prosecution‟s
burden of establishing guilt beyond a reasonable doubt (People v. Parson, supra,
44 Cal.4th at pp. 355-356; People v. Prieto, supra, 30 Cal.4th at p. 248).
Gamache offers no persuasive reason to reconsider these conclusions.
14
Gamache also argues it was error to allow the jury to infer that any of the
special circumstances were true based on his possession of stolen property. The
instruction did not do so; the inference it permitted extended only to the
conclusions that defendants were “guilty of the crime of murder, robbery,
burglary, and kidnapping for robbery.” Accordingly, there was no error in
connection with the jury‟s special circumstance findings.
28
Though Gamache argues that error in giving CALJIC No. 2.15 is either
structural or subject to harmless error analysis under Chapman v. California
(1967) 386 U.S. 18, it is well established the People v. Watson (1956) 46 Cal.2d
818, 836, test applies. (People v. Parson, supra, 44 Cal.4th at pp. 357-358; People
v. Coffman and Marlow, supra, 34 Cal.4th at p. 101; People v. Prieto, supra, 30
Cal.4th at p. 249.) Under that test — whether it is reasonably probable Gamache
would have obtained a more favorable result had the instruction not been given —
the error here in extending CALJIC No. 2.15 to the murder charge was clearly
harmless. Copious evidence, aside from Gamache‟s being caught with the
Williamses‟ property hours after Lee Williams‟s death, established he had
intentionally shot and killed Lee Williams. Most prominently, Peggy Williams
testified Gamache had done so, and codefendant Andre Ramnanan introduced
Gamache‟s admission that he had shot Lee Williams. Indeed, counsel during
closing argument conceded that Gamache was guilty of murder.
II. SANITY PHASE CLAIM: WITHDRAWAL OF NOT GUILTY BY
REASON OF INSANITY PLEA
On July 25, 1995, Gamache entered a plea of not guilty by reason of
insanity. On September 25, he withdrew that plea. He now argues (1) the plea
withdrawal was not knowing and intelligent, and (2) the trial court breached a sua
sponte duty to conduct further inquiry before accepting the withdrawal, thereby
violating his due process rights (U.S. Const., 14th Amend.). Accordingly, he
argues, the plea should be reinstated and he should receive a new sanity phase
trial.
The standards for accepting withdrawal of a not guilty by reason of insanity
plea are settled. If the trial court has no doubt about a defendant‟s present
competence, and if the experts who have examined the defendant are unanimous
in finding him or her sane at the time of the crime, a trial court may freely accept a
29
defendant‟s withdrawal of an insanity plea. (People v. Bloom (1989) 48 Cal.3d
1194, 1213-1214; People v. Guerra (1985) 40 Cal.3d 377, 384; People v.
Redmond (1971) 16 Cal.App.3d 931, 939; cf. People v. Merkouris (1956) 46
Cal.2d 540, 553-555 [abuse of discretion to accept withdrawal of an insanity plea
where experts are split on sanity].) No Boykin-Tahl advisements15 concerning the
rights being relinquished are required. (Bloom, at p. 1214; Guerra, at p. 384.) In
the absence of doubt about a defendant‟s competence, a trial court has no sua
sponte duty to inquire further into the reasoning behind the defendant‟s decision.
Here, the trial court had received the written reports of three different
experts, Drs. James Hawkins, Michael Kania, and Harvey Oshrin. All three
examined Gamache and concluded he was sane. The trial court expressed no
doubts about Gamache‟s competence on the record. Gamache‟s lead counsel
offered that both he and cocounsel had consulted with Gamache concerning the
contents of the psychological and psychiatric evaluations in the case, and in light
of the fact all examining experts had concluded he was sane, Gamache intended to
withdraw his not guilty by reason of insanity plea. A colloquy followed in which
Gamache confirmed on the record that he had consulted with counsel, personally
joined with both his counsel in asking the court to withdraw his plea, and
understood he was surrendering the possibility of avoiding a penalty phase trial
were he to be found insane by a jury. In the absence of any ground for doubt
about Gamache‟s sanity, the trial court was required to do no more before
accepting Gamache‟s withdrawal of his plea.
Gamache argues there was error in the acceptance of his plea withdrawal
because one month later, a fourth expert, Dr. Lorna Forbes, issued an opinion
15
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
30
concluding Gamache was in fact legally insane. From this, Gamache reasons his
trial counsel must have lied to him about every examining expert finding him sane,
and rendered incompetent representation in counseling him about withdrawal of
his plea.
To the extent Gamache frames acceptance of his plea withdrawal as trial
court error, nothing in the record up to and including the September 25, 1995,
hearing at which Gamache withdrew his plea put Gamache‟s sanity in doubt.
Presented with expert unanimity, the trial court was under no obligation to inquire
whether there were still other defense experts who might at some point in the
future reach a different conclusion.16 To the extent he frames the plea withdrawal
as a consequence of defense counsel error — and, notwithstanding accusations of
incompetent representation, Gamache apparently disavows a formal ineffective
assistance of counsel claim — the record is inadequate for us to resolve such a
claim in Gamache‟s favor on direct appeal. We do not know what defense counsel
did or did not know about Dr. Forbes‟s views as of the September 25 hearing, nor
what Dr. Forbes‟s initial views, if any, may have been, nor what tactical
considerations may have played into the decision to advise Gamache to forgo a
sanity phase trial. As the burden is on Gamache to affirmatively demonstrate
error, in the absence of evidence his claim must fail. (People v. Ledesma (2006)
39 Cal.4th 641, 746; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
16
Gamache highlights that later in the September 25 hearing, after he had
withdrawn his plea, defense counsel mentioned, in the course of discovery
discussions, another expert who might eventually testify but whose report likely
would not be completed for several weeks. The trial court was under no
obligation to inquire whether the expert might eventually opine about Gamache‟s
sanity and whether, in light of that, and notwithstanding the immediately
preceding colloquy, Gamache wished to proceed with the sanity phase trial
scheduled to commence the very next day.
31
III. PENALTY PHASE AND SENTENCING CLAIMS
A. Impact of Cumulative Guilt Phase Error on the Penalty Phase
Gamache contends that if we do not conclude any individual guilt phase
error mandates guilt phase reversal, the cumulative effect of the guilt phase errors
nevertheless rendered the penalty phase trial unreliable. We disagree. We have
identified only a single guilt phase error, in the wording of CALJIC No. 2.15 as
given. As we have explained, that error had no impact on the guilt verdict. Nor
has Gamache shown how it possibly could have affected the penalty phase verdict.
(See, e.g., People v. Martinez (2010) 47 Cal.4th 911, 959-960.)
B. Denial of Severance Motion/Redaction of Gamache’s Statements
During the penalty phase, Gamache‟s codefendants, Andre Ramnanan and
Tammy Gamache, objected to the introduction of unredacted out-of-court
statements Richard Gamache had made to mental health experts on the ground
those statements tended to incriminate them. In the alternative, they sought
severance.17 (See Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v.
Aranda (1965) 63 Cal.2d 518 (Aranda).) “Bruton and its progeny provide that if
the prosecutor in a joint trial seeks to admit a nontestifying codefendant‟s
extrajudicial statement, either the statement must be redacted to avoid implicating
the defendant or the court must sever the trials.” (People v. Hoyos (2007) 41
Cal.4th 872, 895.) The trial court granted redaction and denied severance.
Gamache raises an Aranda-Bruton issue, but with a twist: he argues that by
redacting his out-of-court statements to protect his codefendants‟ Aranda-Bruton
rights, the trial court denied him his right to have his unredacted statements
admitted, and the redactions painted Gamache in a much more unfavorable light
17
Gamache eventually joined the severance motions.
32
by creating the impression that he was the ringleader and more culpable than his
codefendants. The trial court, Gamache argues, should have granted severance or,
at a minimum, refused redaction. We review the trial court‟s denial of severance
for an abuse of discretion based on the record available to the trial court at the
time. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 998.)
We recently addressed a claim identical to the one Gamache raises here: an
assertion that redaction under Bruton and Aranda violated the rights of the
speaking defendant by exaggerating his own culpability. (See People v. Lewis
(2008) 43 Cal.4th 415, 456-460.) Describing the trial court‟s duty to ensure the
rights of the speaking defendant, we explained: “Severance may be necessary
when a defendant‟s confession cannot be redacted to protect a codefendant‟s rights
without prejudicing the defendant. (Aranda, supra, 63 Cal.2d at p. 530.) A
defendant is prejudiced in this context when the editing of his statement distorts
his role or makes an exculpatory statement inculpatory. (People v. Douglas
(1991) 234 Cal.App.3d 273, 285-287 . . . .) [¶] Ordinarily, in ruling on a
severance motion, a trial court should review both the unredacted and the redacted
statements to determine whether the redactions so distort the original statement as
to result in prejudice to the defendant.” (Id. at p. 457.)
Tammy Gamache and Andre Ramnanan objected to statements by Richard
Gamache reflected in the psychiatric reports of defense experts Drs. Michael
Kania and Lorna Forbes. The trial court reviewed these reports and evaluated
whether any inculpatory statements (1) reflected matters already known to the jury
through other evidence, (2) were prejudicial, and (3) could be redacted without
distorting the bases for the experts‟ opinions. Gamache now takes issue with five
redactions to Dr. Forbes‟s report, arguing that they effectively minimized his
codefendants‟ culpability and exaggerated his own. We conclude the trial court
did not abuse its discretion in making the redactions and instructing Dr. Forbes to
33
limit her testimony accordingly, nor in concluding that a joint penalty trial could
still proceed.
(1) The trial court redacted “and Andre” from the sentence: “Richard went
on to discuss how he and Andre planned to kill his wife.” Richard Gamache‟s
implication of Andre Ramnanan in any plot to kill Tammy Gamache was plainly
inadmissible under Aranda-Bruton. Gamache was not prejudiced by the deletion;
Dr. Forbes testified about his statements to her solely as the basis for her opinions,
not for the truth of the matters asserted therein, so Gamache would not have been
able to argue that his out-of-court statement showed Ramnanan shared culpability
for an inchoate crime unrelated to the Williams murder. Nor was Gamache
prejudiced by the trial court‟s refusal to simply delete the entire sentence; as
counsel and the trial court noted, Forbes‟s report contained numerous other
references to Gamache‟s stated intent to kill Tammy, as well as to an incident
where Gamache had rolled his truck at high speed while Tammy was a passenger,
breaking her back and causing her to accuse him of trying to kill her.
(2) The trial court redacted “and Andre” from a second statement about
another unrelated inchoate crime: “He went on to tell me how he and Andre had
planned to kill two days prior „a whole family, the Lowes, some people in the
occult (?cult?).‟ ” Again, the reference to Andre Ramnanan was inadmissible
under Aranda-Bruton; again, Gamache was not prejudiced because he was not
entitled to rely on the statement for the truth of the matter asserted.
(3) The trial court deleted the statements: “The horses were her (Tammy)
idea. (Later he denies this.)” Gamache‟s out-of-court inculpation of Tammy
Gamache was inadmissible under Aranda-Bruton; Gamache was not prejudiced by
its omission because, inter alia, the trial court also omitted his renouncing of the
statement and because the jury had already heard copious evidence that Tammy
was the one of the three who was interested in riding horses.
34
(4) The trial court deleted the statement: “[H]e acknowledged that she
[Tammy Gamache] very much participated in the theft, homicide, kidnapping,
etc.” Again, the statement was plainly inadmissible under Aranda-Bruton.
Gamache was not prejudiced by its omission because he could not have used it for
the truth of the matter asserted to argue Tammy Gamache‟s culpability; moreover,
the jury had already heard (and believed, given that it returned a first degree
murder conviction with special circumstances against her) copious evidence that
Tammy Gamache had fully participated in the Williams murder and related
crimes.
(5) The trial court advised Dr. Forbes that she should not refer to her
statement in her report that “It was planned to shoot them (victims of the incident
now under litigation) from the beginning,” but could say that “Richard said he
planned to shoot them” from the beginning, if that was in fact what Richard had
said. As with the other statements, Gamache‟s implication of his codefendants in
the Williams shootings was inadmissible under Aranda-Bruton, and the trial court
was obligated to redact or revise it if it chose to proceed with a joint trial. Both
the original and modified statements acknowledged Gamache‟s understanding that
the plan was always to shoot the Williamses. Moreover, as with the other redacted
statements, the statement here was inadmissible for the truth of the matter asserted.
Given that the jury was instructed to, and obligated to, give individualized
sentencing determinations to each defendant, any prejudice from the jury‟s being
prevented from hearing statements that might raise Gamache‟s codefendants‟
culpability without significantly changing his own was minimal at most.18
18
Gamache also objects to the failure to redact from one of Ramnanan‟s
expert‟s reports the statement “Richard came out [of the Williams residence] with
her [Tammy].” The statement could not possibly have prejudiced Gamache in any
(footnote continued on next page)
35
Considering any cumulative prejudice from these redactions, we conclude
the trial court did not abuse its discretion by refusing severance. Section 1098
establishes a clear legislative preference for joint trials where, as here, multiple
defendants are charged with the same crimes against the same victims. (People v.
Tafoya (2007) 42 Cal.4th 147, 162; People v. Box (2000) 23 Cal.4th 1153, 1195.)
A trial court retains discretion to order severance “ „ “in the face of an
incriminating confession, prejudicial association with codefendants, likely
confusion resulting from evidence on multiple counts, conflicting defenses, or the
possibility that at a separate trial a codefendant would give exonerating
testimony.” ‟ ” (Box, at p. 1195.) Gamache‟s objection is none of these; rather, it
is that the redactions required under Aranda-Bruton prevented him from getting in,
by way of his experts, his out-of-court statements incriminating his codefendants
and thereby prevented him from (impermissibly, we note) using these statements
for the truth of the matter asserted to argue his codefendants‟ greater culpability.
Indeed, in response to the redactions, Gamache‟s counsel threatened to have
Gamache take the stand himself to incriminate his codefendants. Gamache was
not entitled to use his experts‟ reports in this fashion, and the trial court was not
required to accommodate this strategy by declining redaction or ordering
severance.
Finally, Gamache argues that even if the denial of severance was not error
at the time, reversal is still required because proceeding with a joint trial “caused
such „ “gross unfairness” ‟ as to violate [his] due process rights.” (People v. Lewis
(footnote continued from previous page)
way; as the trial court pointed out at the time, the jury was fully aware that the
various codefendants left and reentered the Williams residence on several
occasions, and no material issue hinged on this accepted fact.
36
and Oliver, supra, 39 Cal.4th at p. 998; see U.S. Const., 14th Amend.) Aside from
the redactions already discussed, the only gross unfairness he identifies is the
opportunity the joint trial afforded his codefendants to blame him. This is a
common concomitant of a joint trial; it is the reverse of the opportunity severed
trials afford former codefendants to put forward an “empty chair” defense, in
which all blame is heaped on the absent accomplice. What Gamache posits, in
essence, is a constitutional right to separate penalty phase trials in all cases. We
have never recognized such a right, and we decline to do so here. (Cf. People v.
Carasi (2008) 44 Cal.4th 1263, 1311 [no per se right to have penalty phase trials
severed where defendants are of the opposite sex].)
C. Introduction of Gamache’s Statements
Gamache moved pretrial to suppress all statements he made to the police
while in custody December 4-7, 1992, based on alleged violations of Miranda v.
Arizona (1966) 384 U.S. 436 and Edwards v. Arizona (1981) 451 U.S. 477
(hereafter sometimes Miranda and Edwards). The trial court held a seven-day
evidentiary hearing and denied the motion in part, concluding that a December 7
videotaped police interview of Richard Gamache, Tammy Gamache, and Andre
Ramnanan — the only statements by defendants the prosecution sought to use in
its case-in-chief — was admissible. The court expressly reserved judgment on all
other statements by Richard Gamache.
After the case was transferred from Barstow to San Bernardino for trial, the
new trial judge reconsidered the suppression motion based on the record
previously made. The trial court concluded Gamache had invoked his right to
counsel on the morning of December 4, and on that basis many of Gamache‟s
subsequent statements on December 4 were inadmissible. However, the court also
found that Gamache, in the late afternoon of December 4, had voluntarily
37
reinitiated contact with the police, demonstrated a willingness to talk about the
case, and expressly waived his right to counsel; on that basis, the court ruled
Gamache‟s statements from that point forward were admissible. Subsequently,
after an Evidence Code section 402 hearing, the trial court also ruled admissible
statements Gamache had made on December 5 to Deputy Sheriff Richard Ells
while being booked.
The prosecution did not rely on any of Gamache‟s admissions during the
guilt phase, but during the penalty phase introduced one statement by Gamache to
the police from a December 4 joint interview, Gamache‟s December 5 statements
to Deputy Ells, and a videotape of the December 7 joint interview of Richard
Gamache, Tammy Gamache, and Andre Ramnanan. Gamache argues reliance on
this evidence violated his privilege against self-incrimination. (U.S. Const., 5th &
14th Amends.; Cal. Const., art. I, §§ 7, 15.) We conclude the trial court did not err
in admitting any of the statements.
1. Factual Background
Gamache was arrested on the morning of December 4, 1992. Detective
Tom Bradford began questioning him shortly after 9:00 a.m. He read Gamache
his Miranda rights; Gamache waived them. Gamache denied any wrongdoing,
saying the motor vehicles had been sold to him and his wife by a couple desperate
for money. Twenty minutes into the interview, Bradford asked if Gamache would
take a polygraph test; after some discussion, Gamache said: “OK, I do think
before I take the polygraph I would like to talk to an attorney and just make
sure. . . . I‟d like to know what is going on before I answer any more questions.”
Detective Bradford ended questioning, and he and Sergeant Brian English
walked Gamache back to his jail cell. On the way, Gamache asked after his wife.
Sergeant English replied that she was okay and sleeping; Detective Bradford told
38
Gamache his wife was going to jail for murder, and she and Andre had given him
up. Detective Bradford testified this statement was untrue but was not intended to
elicit a response. When they arrived at the jail booking area several minutes later,
Detective Bradford provided Gamache with his business card, telling Gamache it
was in case he changed his mind and wanted to talk to him. Gamache replied:
“Fuck Andre and them. I was trying to protect them, but fuck them. Let‟s go back
and talk. Sir, can we go back and talk?” Detective Bradford said, “You already
told me you wanted an attorney present” or words to that effect. Gamache replied,
“I changed my mind, let‟s go” or “No. I want to talk to you right now.”
Detective Bradford returned Gamache to the interview room and continued
the interview until approximately 10:10 a.m. Gamache confessed to robbing the
Williamses and taking them out into the desert, but insisted Ramnanan was the
shooter. Shortly before noon, Detective Kathy Caldwell, a polygraph examiner,
interviewed Gamache; during the interview, he confessed to being the shooter. He
was subsequently interviewed further by Sergeant English.
Gamache was then returned to his jail cell. Around 4:00 p.m., he
summoned Detective Bradford and asked after his wife. He insisted she did not
know anyone would be killed. He agreed to a joint interview with her. At 4:30
p.m., Richard Gamache, Tammy Gamache, and Thomas P. were jointly
interviewed on camera; Detective Bradford advised them of their Miranda rights,
which each waived. Richard Gamache confessed to shooting the Williamses and
described the crimes in detail. That evening, Gamache was again advised of his
Miranda rights, again waived them, and performed a reenactment of the crimes.
The next day, Gamache was booked by Deputy Ells. While fingerprinting
Gamache, Ells asked whether he had been in the military and, finding he had,
whether he had liked it. Gamache replied that he had enjoyed it and then said,
“The only thing I love is guns and pussy and I have the best of both.” He added:
39
“I fucked up. I knew better. I should have used a .45.” Ells asked what had
happened; Gamache continued: “I shot her once. I saw her eyes flutter. I shot her
again in the back of the head. I know the skull is thicker back there.” Asked how
he felt, Gamache said, “I almost got an erection.” Ells asked about Lee Williams;
Gamache replied: “I knew he was dead. I shot him and the blood came out of his
head like you turned on a faucet.”
On the morning of December 7, Richard Gamache, Tammy Gamache, and
Andre Ramnanan appeared together for a joint interview on camera. At both the
beginning and the end of the interview, Detective Bradford reminded them that
they had previously been advised of their rights; they confirmed they understood
those rights and still wanted to talk. The Gamaches and Ramnanan again
confessed and described the crimes in detail.
2. Miranda and Its Progeny
Miranda v. Arizona, supra, 384 U.S. 436, and its progeny protect the
privilege against self-incrimination by precluding suspects from being subjected to
custodial interrogation unless and until they have knowingly and voluntarily
waived their rights to remain silent, to have an attorney present, and, if indigent, to
have counsel appointed. (People v. Davis (2009) 46 Cal.4th 539, 585; see
Dickerson v. United States (2000) 530 U.S. 428, 435.) “If a suspect indicates „in
any manner and at any stage of the process,‟ prior to or during questioning, that he
or she wishes to consult with an attorney, the defendant may not be interrogated.”
(People v. Crittenden (1994) 9 Cal.4th 83, 128, italics omitted, quoting Miranda v.
Arizona, at pp. 444-445.) Once the right to counsel has been invoked, further
questioning is forbidden until counsel has been provided, “unless the suspect
personally „initiates further communication, exchanges, or conversations‟ with the
authorities.” (People v. Cunningham (2001) 25 Cal.4th 926, 992, quoting
40
Edwards v. Arizona, supra, 451 U.S. at pp. 484-485; see also McNeil v. Wisconsin
(1991) 501 U.S. 171, 176-177; People v. Storm (2002) 28 Cal.4th 1007, 1021-
1022; cf. Maryland v. Shatzer (Feb. 24, 2010, No. 08-680) ___ U.S. ___
<http://www.supremecourtus.gov/opinions/09pdf/08-680.pdf> [as of Mar. 18,
2010].)
“ „An accused “initiates” ‟ further communication, exchanges, or
conversations of the requisite nature „when he speaks words or engages in conduct
that can be “fairly said to represent a desire” on his part “to open up a more
generalized discussion relating directly or indirectly to the investigation.” ‟ ”
(People v. San Nicolas (2004) 34 Cal.4th 614, 642; accord, People v. Waidla
(2000) 22 Cal.4th 690, 727.) “ „[W]here reinterrogation follows, the burden
remains upon the prosecution to show that subsequent events indicated a waiver of
the Fifth Amendment right to have counsel present during the interrogation.‟ ”
(People v. Sims (1993) 5 Cal.4th 405, 440; accord, People v. Bradford (1997) 15
Cal.4th 1229, 1311.) Thus, the People must show both that the defendant
reinitiated discussions and that he knowingly and intelligently waived the right he
had invoked. (People v. Davis, supra, 46 Cal.4th at p. 596.) If instead the police
reinitiate discussion without a break in custody, any further statements by the
defendant are presumed involuntary and rendered inadmissible. (McNeil v.
Wisconsin, supra, 501 U.S. at p. 177; People v. Storm, supra, 28 Cal.4th at
pp. 1021-1022.)
In reviewing the trial court‟s denial of a suppression motion on Miranda-
Edwards grounds, “it is well established that we accept the trial court‟s resolution
of disputed facts and inferences, and its evaluations of credibility, if supported by
substantial evidence. We independently determine from the undisputed facts and
the facts properly found by the trial court whether the challenged statement was
illegally obtained.” (People v. Cunningham, supra, 25 Cal.4th at p. 992.) To the
41
extent mixed questions of fact and law are present, they are reviewed de novo if
predominantly legal and for substantial evidence if predominantly factual.
(People v. San Nicolas, supra, 34 Cal.4th at p. 642; People v. Waidla, supra, 22
Cal.4th at p. 730.) The question whether it was the defendant or the police who
reinitiated communications of the requisite nature, after the defendant‟s invocation
of the right to counsel, is predominantly factual. (People v. Mickey (1991) 54
Cal.3d 612, 649.) Accordingly, we review it for substantial evidence. (Waidla, at
p. 731.)
3. Admissibility of the December 4 Statement and
the December 7 Videotape
Twenty minutes into his first interview with Detective Bradford on the
morning of December 4, 1992, Gamache unequivocally asked to speak to an
attorney before answering further questions. (“I do think before I take the
polygraph I would like to talk to an attorney and just make sure. . . . I‟d like to
know what is going on before I answer any more questions.”) Under Edwards v.
Arizona, supra, 451 U.S. 477, therefore, the police were barred from asking
Gamache further questions until counsel was present or until Gamache reinitiated
discussions. As Gamache never received counsel during this initial questioning
period, the critical question is whether, and if so when, he reinitiated discussions
with the police. The trial court found (1) Gamache‟s summoning of Detective
Bradford around 4:00 p.m. on December 4 and (2) his unprompted discussion of
his wife‟s involvement or lack thereof in the shooting showed a clear willingness
and intention to talk about this case sufficient to satisfy the dictates of Edwards. It
further found that shortly thereafter, at the beginning of his videotaped interview
with his wife and Thomas P., Gamache knowingly and voluntarily waived his
right to counsel.
42
These findings are supported by substantial evidence. The record is
undisputed that Gamache asked to see Detective Bradford on the afternoon of
December 4 — that he, and not the police, initiated contact. Gamache had been
repeatedly advised of his right to counsel over the course of the day; nothing about
his decision to contact Bradford suggested it was the product of state pressure.
Accordingly, “[t]he totality of circumstances show his decision to summon the
investigators was not the result of coercion.” (People v. Sapp (2003) 31 Cal.4th
240, 268 [finding no Edwards violation where, after initially invoking the right to
counsel, defendant thereafter unilaterally summoned investigators from his cell to
talk about the case]; see also People v. Mattson (1990) 50 Cal.3d 826, 859-862 [no
Edwards violation where undisputed evidence shows it was defendant who asked
to speak to the police].)
The record is also undisputed that Gamache, without prompting, raised the
subject of his wife‟s involvement in the case, assuring Detective Bradford that she
did not know anyone was going to be killed. This statement “can be „fairly said to
represent a desire‟ on his part „to open up a more generalized discussion relating
directly or indirectly to the investigation.‟ ” (People v. Mickey, supra, 54 Cal.3d
at p. 648.) In People v. Thompson (1990) 50 Cal.3d 134, 163-164, we concluded a
defendant who raised the subject of his girlfriend (who was then incarcerated as a
suspected accessory after the fact) in the hopes of having her released could be
readvised of his rights and asked about his crimes; so too here. Indeed, even a
comment by a defendant that is as general as “What can I do to help you?” may, in
context, be read as evincing a desire to discuss the case. (People v. Waidla, supra,
22 Cal.4th at p. 731; see also People v. Mattson, supra, 50 Cal.3d at pp. 861-862
[defendant‟s question about his car, which was connected with his offenses, was
enough to establish a desire for conversation directly or indirectly related to the
case].)
43
Gamache argues this case is akin to People v. Boyer (1989) 48 Cal.3d 247,
but Boyer is plainly distinguishable. There, after the defendant had clearly
invoked his right to counsel, the police investigator called the defendant back into
the interrogation room and “launched into a monologue on the status of the
investigation,” including an assertion that a new witness had directly contradicted
some of the defendant‟s previous statements. (Id. at p. 274.) These remarks were
clearly a renewed interrogation (see Rhode Island v. Innis (1980) 446 U.S. 291,
301 [interrogation includes remarks police should know are reasonably likely to
elicit an incriminating response]) initiated by the police, not the defendant; in the
face of them, the defendant crumbled and confessed. This case, where Gamache
contacted Detective Bradford, and where Gamache, unsolicited, raised the subject
of his wife‟s involvement, and where only then did the investigator inquire further
about the case, bears no resemblance.
Finally, the record is undisputed that Gamache thereafter expressly waived
his right to counsel at approximately 4:30 p.m., at the beginning of the
December 4 interview with his wife and Thomas P. While Gamache argues this
and subsequent waivers were not knowing, voluntary, and intelligent, the record
supports the opposite conclusion. Gamache had his rights explained to him on
numerous occasions; he recognized their value, invoking his right to counsel on at
least one occasion. He demonstrated some sophistication about the legal process,
immediately pointing out when Detective Bradford suggested a polygraph that any
results would be inadmissible. His articulateness and demeanor during his
videotaped interrogations suggest someone who had his wits about him. Contrary
to Gamache‟s contention, neither Gamache‟s age nor the length of his
incarceration (a matter of hours on December 4; a few days by December 7)
renders any of his waivers involuntary. The record establishes a knowing,
voluntary, and intelligent waiver of his rights. Accordingly, Gamache‟s
44
statements after this point — including his statements to police in the December 4
joint interview and those on the December 7 interview tape — were admissible.19
4. Admissibility of the Statements to Deputy Ells
That Gamache was in custody while being booked and fingerprinted by
Deputy Ells is undisputed. However, his statements to Ells were not the product
of an interrogation. Accordingly, they were admissible.
“ „Interrogation‟ consists of express questioning, or words or actions on the
part of the police that „are reasonably likely to elicit an incriminating response
from the suspect.‟ ” (People v. Cunningham, supra, 25 Cal.4th at p. 993, quoting
Rhode Island v. Innis, supra, 446 U.S. at p. 301.) “Interrogation thus refers to
questioning initiated by the police or its functional equivalent, not voluntary
conversation. [Citation.] „ “Volunteered statements of any kind are not barred by
the Fifth Amendment . . . .” ‟ ” (People v. Thornton (2007) 41 Cal.4th 391, 432,
quoting Miranda v. Arizona, supra, 384 U.S. at p. 478.) Consequently, the police
“may speak to a suspect in custody as long as the speech would not reasonably be
construed as calling for an incriminating response.” (People v. Clark (1993)
5 Cal.4th 950, 985.)
Under these rules, small talk is permitted. Thus, we have concluded that a
detective who told a defendant during booking that he “looked „like a traffic
ticket‟ ” and asked “ „Is it just a warrant?‟ ” was not engaged in an impermissible
custodial interrogation. (People v. Bradford (1997) 14 Cal.4th 1005, 1034.)
Deputy Ells‟s remarks were even more innocuous; objectively, there was no
reason to suspect that inquiring about Gamache‟s military service would lead
19
Gamache again acknowledged waiving his rights at the beginning of the
December 7 joint interview.
45
Gamache to volunteer his regret about failing to kill Peggy Williams or the other
inflammatory remarks that followed. Deputy Ells‟s subsequent “ „neutral
inquir[ies]‟ ” did not convert Gamache‟s volunteered admissions into the product
of interrogation. (People v. Ray (1996) 13 Cal.4th 313, 338.) The trial court did
not err in admitting them.
D. Prosecutorial Misconduct: Penalty Phase Closing Argument
Gamache argues the prosecutor committed numerous instances of
misconduct in his penalty phase closing argument, depriving him of his rights to
due process and a fair trial, inter alia. (U.S. Const., 5th, 6th, 8th & 14th Amends.;
Cal. Const., art. I, §§ 7, 15, 16.) We apply the same substantive standards as for
Gamache‟s guilt-phase prosecutorial misconduct claim. (People v. Guerra (2006)
37 Cal.4th 1067, 1153; People v. Valdez (2004) 32 Cal.4th 73, 132; see ante,
pt. I.C.)
Preliminarily, Gamache never objected to any of the prosecutor‟s closing
argument. Notwithstanding his “ritual incantation” (People v. Panah, supra, 35
Cal.4th at p. 462) that a jury admonition would have made no difference, Gamache
identifies nothing in the record to suggest this would have been so. Accordingly,
these claims are forfeited.
Each also fails on its merits:
(1) The prosecutor told the jury: “Well, and [defense counsel] kind of took
issue when I used the expression[,] you‟re the conscience of the community in
your decision. [¶] Well, in a way the people who urge the comparative filth
argument on you are acknowledging that because they‟re saying, there is a
standard in our community about how serious a murder should be before it
deserves the death penalty. [¶] And you are the people that are going to set that
standard, and you are the conscience of the community in setting that standard.”
46
Gamache objects to characterizing the jury as the “conscience of the
community” on the ground it would likely cause the jury to substitute what they
perceived to be the community‟s views for their own. We have on numerous
occasions considered this turn of phrase and rejected the contention that it invites
jurors to abrogate their personal responsibility to render an appropriate verdict in
light of the facts and the law. Jurors are the conscience of the community: “[A]
jury that must choose between life imprisonment and capital punishment can do
little more—and must do nothing less—than express the conscience of the
community on the ultimate question of life or death.” (Witherspoon v. Illinois
(1968) 391 U.S. 510, 519, fn. omitted.) It is not error to tell them so in closing
argument. (People v. Zambrano (2007) 41 Cal.4th 1082, 1178; People v.
Ledesma, supra, 39 Cal.4th at p. 741; People v. Lucero (2000) 23 Cal.4th 692,
733-734; People v. Jones (1997) 15 Cal.4th 119, 185-186.)
(2) The prosecutor asked the jury, in considering whether to exercise
mercy toward Gamache and his codefendants, to consider whether they afforded
the Williamses any mercy: “And sympathy and mercy, they can, we all know it,
I think everybody knows it, they can be some of the most wonderful and beautiful
things in the universe. It‟s what makes us human. It‟s [what] make[s] us less than
animals [sic]. [¶] But mercy is also, it‟s not garbage to be thrown around the road
rampant. It has to be used appropriately in situations that are appropriate for
people that are appropriate. You just use it randomly [and] it‟s meaningless.
[¶] So when you‟re considering whether to give sympathy or mercy to Richard, to
Tammy, to Andre, I want you to think about how they in the same situation pretty
much acted towards their victims. [¶] . . . [¶] Look at these people and decide
whether they‟re worthy of your mercy, considering how they‟ve acted towards
other people.”
47
Gamache argues this was misconduct because it appealed to the jurors to
act out their passions and prejudices, rather than exercising guided discretion. Not
so. The prosecutor‟s argument called for the jury to keep firmly in mind the
circumstances of the crimes (§ 190.3, factor (a)) when deciding whether to grant
Gamache and the other defendants mercy. We have repeatedly approved
prosecutors arguing that a defendant is not entitled to mercy, and in particular
arguing that whether the defendant was merciful during the crimes should affect
the jury‟s decision. (People v. Rogers (2009) 46 Cal.4th 1136, 1181; People v.
Kennedy (2005) 36 Cal.4th 595, 636; People v. Vieira (2005) 35 Cal.4th 264, 296;
People v. Benavides (2005) 35 Cal.4th 69, 107-109; People v. Hughes (2002) 27
Cal.4th 287, 395; People v. Ochoa (1998) 19 Cal.4th 353, 464-465.) We do so
again today.
(3) The prosecutor addressed Gamache‟s mental health defense thusly: “In
a nutshell[,] you heard enough cross-examination and examination, psychiatrists
just have a different perspective than people in your position, I think. [¶] To
psychiatrists[,] the subtle motivations that go on in people‟s minds are really
critical and that‟s what dictates whether they‟re mentally ill and whether that
should be considered legally. [¶] Under the law the important concept is
impairment, and we talk[ed] about that with a number of the mental health experts.
[¶] It really doesn‟t matter what‟s wrong with you if it wasn‟t impairing your
thinking at a given point in time. [¶] And I think everybody in this room realizes
there is a lot wrong with Richard Gamache, but in terms of, for instance, during
the crimes in this case he knew perfectly well what he was doing, intended to kill
him and did it for perfectly logical reasons. [¶] If his subtle motivations were
problems he had with his mother or somebody else, or the Army, that‟s fine for
psychiatrists; but whether that should weigh very heavily in your decision,
whether that‟s a serious factor in mitigation, that‟s something for you to decide.
48
[¶] By the way, now that you‟ve been through this trial the expression „psycho
babble‟ will never mean the same thing to any of you, I‟m sure.”
Gamache takes issue with this argument, contending it unfairly injected the
prosecutor‟s personal opinions into the case, was not based on any evidence,
implied that the prosecutor‟s skepticism of the defense experts‟ testimony was
based on a secret source of knowledge, and was unduly disrespectful. Considering
this argument as a whole, we find nothing in it exceeding counsel‟s wide latitude
in closing argument. The prosecution is permitted to question whether a
defendant‟s mitigating evidence should carry much weight. (People v. Salcido
(2008) 44 Cal.4th 93, 159.) This principle extends to mental health evidence; a
prosecutor is entitled to argue, as the prosecutor did here, that notwithstanding any
expert testimony about mental illness, the defendant was not in fact significantly
impaired during the crimes he committed. (People v. Jones, supra, 15 Cal.4th at
pp. 186-187.) The jury had considerable lay testimony it could consider on this
question, including Peggy Williams‟s description of Gamache‟s actions and
Gamache‟s own confession just days later; thus, the prosecutor‟s closing argument
neither rested on matters outside the record, nor implied secret evidence to which
only he was privy, nor injected personal opinion.20
20
Additionally, Gamache takes issue with the prosecutor‟s cross-examination
of Gamache‟s defense experts, describing his treatment of Dr. Forbes as
“argumentative and obnoxious” and criticizing the examination of Dr. Kania for
focusing on Gamache‟s answers to the Minnesota Multiphasic Personality
Inventory (MMPI) in an effort to portray Gamache as a liar. The prosecution was
entitled to explore the basis for any expert‟s opinion (Evid. Code, § 721, subd.
(a)(3)); in Dr. Kania‟s case, this included Gamache‟s answers to the MMPI.
People v. Visciotti (1992) 2 Cal.4th 1, 80-81, relied on by Gamache, is inapposite;
there, we held it was misconduct to cross-examine a defense expert about, and
thereby introduce the contents of, a study that had not been a basis for the expert‟s
opinion. Nothing in this prosecutor‟s examination of these experts involved
(footnote continued on next page)
49
Considering the various claims of misconduct individually and
cumulatively, we find that nothing in the prosecutor‟s penalty phase closing
argument deprived Gamache of any of his state or federal constitutional rights.
E. Ineffective Assistance of Counsel During the Penalty Phase
Closing Argument
Gamache contends his defense counsel rendered ineffective assistance of
counsel during the penalty phase closing argument. (U.S. Const., 6th & 14th
Amends.; Cal. Const., art. I, § 15.) We apply settled standards: “In assessing
claims of ineffective assistance of trial counsel, we consider whether counsel‟s
representation fell below an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice to a reasonable
probability, that is, a probability sufficient to undermine confidence in the
outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694 . . . ; People v.
Ledesma (1987) 43 Cal.3d 171, 217 . . . .) A reviewing court will indulge in a
presumption that counsel‟s performance fell within the wide range of professional
competence and that counsel‟s actions and inactions can be explained as a matter
of sound trial strategy. Defendant thus bears the burden of establishing
constitutionally inadequate assistance of counsel. (Strickland v. Washington,
supra, at p. 687 . . . ; In re Andrews (2002) 28 Cal.4th 1234, 1253 . . . .) If the
record on appeal sheds no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel must be rejected
unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. (People v. Mendoza Tello[, supra,]
(footnote continued from previous page)
reprehensible tactics or rendered Gamache‟s penalty phase trial fundamentally
unfair.
50
15 Cal.4th [at p.] 266 . . . .)” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
These standards apply with particular force at closing argument because, as we
have recognized, “[t]he decision of how to argue to the jury after the presentation
of evidence is inherently tactical . . . .” (People v. Freeman (1994) 8 Cal.4th 450,
498.)
Defense counsel‟s closing argument reveals a two-part strategy: to convey
to the jury that this case was not the worst of the worst, based both on the more
extreme facts of other well-known cases and on the mitigating evidence
(principally the uncontradicted mental health expert testimony) here; and to
underline that life without the possibility of parole, especially for someone as
young as Gamache, was itself a harsh punishment fully commensurate with the
gravity of the crimes. Throughout his argument, counsel took steps to encourage
juror acceptance of his arguments by candidly admitting the severity of
Gamache‟s actions, thereby presenting himself as someone who was not blind to
what Gamache had done, and portraying himself as someone who did not
reflexively oppose death in all cases or view every excuse as sufficient to
minimize one‟s culpability. This was a reasonable tactical approach; it was
important that counsel present himself not as a lawyer who would say anything for
his client, but rather as a credible source who, like the jury, was principally
concerned with a just result — and who could credibly explain how choosing a life
verdict would in fact be just.
Gamache contends defense counsel argued as if he were the prosecutor. In
support of this claim, Gamache highlights, inter alia, that counsel expressed his
unusual nervousness at the start of his argument; that, after describing in detail the
crimes of various notorious serial killers, defense counsel conceded anyone, even
he, would have voted for death in those cases; that he did not condone Gamache‟s
actions, actions that had “effectively killed Peggy” Williams; that he would not
51
argue Gamache lacked the intent to kill; that evidence of other crimes was just
“frosting on the cake,” and Gamache‟s conduct in December 1992 was enough to
“bury him”; and, Gamache contends, he failed to argue that the evidence in
aggravation was not so substantial in comparison to the mitigating evidence as to
warrant death.
Neither the record nor the law supports Gamache‟s characterization of this
argument as ineffective. Defense counsel emphasized his own nervousness,
notwithstanding his long history of representing capital defendants, as a way of
underlining for the jury the seriousness of his task and theirs: “So, if there‟s a
tremor in my voice[,] I‟m not afraid of you; I am concerned about my
responsibilities, and I hope that you-all will be just as concerned with your
responsibilities in this case.” Defense counsel‟s description of the actions of serial
killers like Ted Bundy and Richard Ramirez, the “Night Stalker,” and his assertion
that anyone, even he, would have found death appropriate in such cases, could be
viewed as a way of establishing credibility with a jury composed of jurors willing
to impose the death penalty in at least some cases, and fit within the larger
apparent strategy of portraying Gamache‟s actions as not among the worst of the
worst. Defense counsel‟s frank acknowledgement of the seriousness of
Gamache‟s actions was likewise tactically justifiable; it might well have harmed
counsel‟s credibility to argue to a jury that had already convicted Gamache of
special-circumstance first degree murder that Gamache lacked the intent to kill or
that the impact of his conduct was not substantial. We have repeatedly recognized
that sensible concessions are an acceptable and often necessary tactic. (E.g.,
People v. Hart (1999) 20 Cal.4th 546, 631 [Concessions are appropriate where the
“surviving victim had testified in graphic detail regarding defendant‟s involvement
in the charged offenses.”]; People v. Bolin (1998) 18 Cal.4th 297, 334
[overwhelming evidence of defendant‟s guilt, including eyewitness testimony,
52
rendered concessions a “reasonable trial tactic”]; People v. Lucas (1995) 12
Cal.4th 415, 446-447 [admission defendant was at the scene was a competent
tactical choice given the state of the evidence]; People v. McPeters (1992) 2
Cal.4th 1148, 1186-1187 [same]; People v. Jackson (1980) 28 Cal.3d 264, 293
[“ „[G]ood trial tactics demanded complete candor‟ with the jury.”].)
Having made tactically justifiable concessions, defense counsel did in fact
argue that the prosecution‟s aggravating evidence, aside from the circumstances of
the Williams shootings, was trivial and the mitigating evidence, especially the
uncontradicted mental health testimony about Gamache‟s schizophrenia and
severe mental disorder, was more than sufficient to warrant a life verdict. He
stressed both the credibility of the experts and the prosecution‟s failure to present
anyone to rebut them. He further emphasized to the jury that the weighing process
was not a simple mathematical exercise in which 10 aggravating factors would
inevitably outweigh one mitigating factor: “If you consider that factor in
mitigation important enough to outweigh the factors in aggravation, no matter how
aggravated they may be, that one factor in mitigation is enough to support your
particular verdict of life without the possibility of parole. You don‟t need any
more than that.”
Gamache takes issue as well with defense counsel‟s treatment of two areas
of mitigating evidence: his age and his difficult childhood. Counsel raised
Gamache‟s age as a mitigating factor: “Another [mitigating factor], the age of the
defendant at the time of the crime, that would be [section 190.3, factor] (i). And
he was 18 years old. I‟ve always wondered about that as a defense attorney
because, you know, I guess if you‟re [18] years old you intend to kill somebody,
what the hell difference does it make how young you are? [¶] But it‟s an area in
mitigation and Richard Gamache was 18 years old at the time that this all went
down.” He then touched on Gamache‟s childhood: “Well, Richard Gamache, and
53
even [the prosecutor] admitted that in his opening remarks to you, of all the three
defendants he suffered a horrible, horrible childhood. [¶] His mother was a
prostitute, narcotics addict. He was not raised, he was dragged up. I submit if
[child protective services] had made the kind of inspection in that house that they
should have made years ago Richard Gamache, a nice looking young man, would
not have developed a mental defect or mental disorder that drove him to what he
did in December of ‟92. [¶] His mother shares some of that blame, and I‟m not the
kind of an attorney who says, hey, if your parents are bad that should inure to the
benefit of the defendant. But by all, all standards and criteria his mother was not a
mother.”
Not every attorney would have chosen to address these mitigating
circumstances in this fashion. But the decision to soft-pedal some aspects of the
mitigating evidence, such as Gamache‟s age, and strongly emphasize others, such
as the uncontradicted expert testimony about Gamache‟s mental illness, could
reasonably have been the product of a tactical decision to bolster credibility with
the jury by not appearing to argue that every permissible mitigating factor would
suffice of itself to excuse Gamache‟s conduct. Counsel could decide to try to
convey that if he argued Gamache‟s mental illness warranted sparing Gamache‟s
life, it was because he really believed Gamache‟s mental illness warranted sparing
his life, and not because he was the sort to argue that anything, such as age alone,
was enough to excuse extreme conduct.
Finally, Gamache contends defense counsel‟s treatment of the mental
health and catchall mitigating factors (§ 190.3, factors (d), (h), (k)) was too brief
and superficial, and his discussion of the absence of prior felony convictions as a
mitigating factor (id., factor (c)) was wholly absent. As to the former, we have
reviewed the transcript and conclude counsel‟s discussion was not so lacking as to
fall below the constitutional minimum. (See People v. Cudjo (1993) 6 Cal.4th
54
585, 634-635 [“The effectiveness of an advocate‟s oral presentation is difficult to
judge accurately from a written transcript, and the length of an argument is not a
sound measure of its quality.”]; People v. Lewis (2001) 25 Cal.4th 610, 675;
People v. Padilla (1995) 11 Cal.4th 891, 949; People v. Mayfield (1993) 5 Cal.4th
142, 186-187.) As to the latter, there are sound tactical reasons why counsel might
choose not to dwell on the absence of prior felony convictions; given the
prosecution‟s evidence that Gamache had participated in a violent takeover
robbery of a pizzeria just weeks before the Williams shootings, the absence of any
convictions could be seen as a simple artifact of Gamache‟s having turned 18
years old less than one year earlier, and touting those months without a conviction
might come at the price of credibility with the jury.
In sum, while defense counsel‟s closing argument is not immune from
criticism, it falls within the “wide range of reasonable professional assistance”
(Strickland v. Washington, supra, 466 U.S. at p. 689) that is constitutionally
tolerable.
F. Introduction of an Extrinsic Videotape into the Jury Room
During Penalty Deliberations
1. Erroneous Introduction of the December 4 Videotape
In the weeks following the jury‟s return of its verdicts, it came to the
attention of counsel and the trial court that, during the penalty phase deliberations,
the jury had viewed a videotape never admitted into evidence. The tape showed a
police interview of Richard Gamache, Tammy Gamache, and their juvenile
coparticipant, Thomas P., on the afternoon of December 4, the day of the murders
and arrests. Based on the jury‟s viewing of this extrinsic evidence, Gamache
moved for a new trial. (§ 1181, subds. 2, 3 [new trial may be based on receipt of
extrinsic evidence or juror misconduct].) The trial court denied the motion,
concluding there had been no misconduct and the viewing of the videotape was
55
not prejudicial. Gamache renews his claim of error before us, arguing he was
deprived of his rights to confrontation, counsel, an impartial jury, and due process.
(U.S. Const., 5th, 6th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.)
The trial court‟s evidentiary hearing revealed the following. During the
penalty phase, three videotapes were admitted into evidence: a tape of a
December 7 police interview of Richard Gamache, Tammy Gamache, and Andre
Ramnanan; a tape made by Tammy Gamache‟s mother; and a tape showing
alleged misconduct by Andre Ramnanan in prison. Counsel had consented to have
these tapes made available to the jury during deliberations. Court staff supplied
the jury with a television and a videotape player, as well as three videotapes.
Unfortunately, the third tape provided was not the Ramnanan tape, but the
December 4 tape of Richard and Tammy Gamache and Thomas P. Like the
admitted exhibits, the December 4 tape had been marked with a court exhibit tag
during pretrial motions; unlike them, it had not been admitted during trial.21
The jury watched the December 4 tape in its entirety twice on the first or
second day of its five days of deliberations, before any verdicts had been reached.
Sometime later, it reached a verdict for Richard Gamache. After reaching a
verdict for Richard Gamache, but before deciding on either codefendant, the jury
fast-forwarded through the tape to replay two short segments to confirm a juror‟s
21
The only reason the tape was not admitted is that codefendant Andre
Ramnanan had been absent when the tape was made, having not yet been arrested.
Accordingly, while everything on the tape could be used as an admission or
adoptive admission against Richard and Tammy Gamache, Aranda-Bruton
considerations would have required the prosecution to sever Ramnanan‟s trial at
the penalty phase if it wanted to use the tape. (Bruton, supra, 391 U.S. 123;
Aranda, supra, 63 Cal.2d 518; see also ante, pt. III.B.)
56
recollection as to what was on the tape. Thereafter, the jury reached a verdict for
Andre Ramnanan and deadlocked with respect to Tammy Gamache.
At one point in its deliberations, the jury asked to see the Ramnanan
misconduct tape, the one omitted by court personnel. A bailiff assured them the
Ramnanan misconduct was on one of the three tapes in the jury room. The trial
court instructed them to fast-forward through the tapes they had received because
the Ramnanan misconduct was on one of them.
2. Standard for Evaluating Prejudice
We review independently the trial court‟s denial of a new trial motion
based on alleged juror misconduct. (People v. Ault (2004) 33 Cal.4th 1250, 1261-
1262.) However, we will “ „accept the trial court‟s credibility determinations and
findings on questions of historical fact if supported by substantial evidence.‟ ” (Id.
at p. 1263.)
Introduction of the December 4 videotape into the jury room was
undisputably error; the jury should not have been allowed to consider extrinsic
evidence in reaching its verdict. (See Turner v. Louisiana (1965) 379 U.S. 466,
472 [“The requirement that a jury‟s verdict „must be based upon the evidence
developed at the trial‟ goes to the fundamental integrity of all that is embraced in
the constitutional concept of trial by jury.”]; People v. Nesler (1997) 16 Cal.4th
561, 578 (lead opn. of George, C. J.).) The only issue, then, is whether the error
was sufficiently prejudicial to warrant a new trial.
Preliminarily, we consider Gamache‟s argument that the error was
structural and therefore reversible per se. Error that occurs during the presentation
of the case to the jury is generally trial error; an error that erroneously adds to or
subtracts from the record before the jury can “be quantitatively assessed in the
context of the other evidence presented in order to determine whether its
57
admission was harmless beyond a reasonable doubt.” (Arizona v. Fulminante
(1991) 499 U.S. 279, 308; see also People v. Allen (2008) 44 Cal.4th 843, 870-
871.) A court in such circumstances can meaningfully ask “whether the guilty
verdict actually rendered in this trial was surely unattributable to the error.”
(Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) In contrast, structural errors not
susceptible to harmless error analysis are those that go to the very construction of
the trial mechanism — a biased judge, total absence of counsel, the failure of a
jury to reach any verdict on an essential element. (See Arizona v. Fulminante, at
pp. 309-310; Sullivan v. Louisiana, at pp. 280-281.)
Manifestly, the error here was trial error. The jury inadvertently had access
to never admitted evidence. This situation is no different than if the same
evidence had been proffered at trial and a valid objection to its admittance was
erroneously overruled. (People v. Cooper (1991) 53 Cal.3d 771, 836 [“The
situation [where a jury innocently considers evidence it was inadvertently given] is
the same as any in which the court erroneously admits evidence.”].) We
meaningfully may ask whether, in light of all the other evidence properly
admitted, the verdict this jury reached would have been the same absent exposure
to the December 4 videotape.
U.S. v. Noushfar (9th Cir. 1996) 78 F.3d 1442, amended (9th Cir. 1998)
140 F.3d 1244, on which Gamache places principal reliance, does not persuade us
otherwise. In Noushfar, as here, the jury was allowed during deliberations to play
14 tapes never played in open court, in violation of federal rules guaranteeing the
defendant a right to be present during the playing of any such tapes. (78 F.3d at
p. 1444; Fed. Rules Crim.Proc., rule 43(a), 18 U.S.C.) The Ninth Circuit
concluded the trial court‟s approval of this procedure over objection amounted to
“a „complete abdication of judicial control over the process‟ ” (78 F.3d at p. 1445)
and constituted structural error. However, the same court has subsequently limited
58
Noushfar to its facts — specifically, that 14 tapes were involved, and the trial
judge acquiesced in the error. (Eslaminia v. White (9th Cir. 1998) 136 F.3d 1234,
1237, fn. 1.) In Eslaminia, the Ninth Circuit considered a single tape in the jury
room that contained admitted evidence on one side and, unbeknownst to all,
unadmitted evidence on the other side — a situation far more analogous to the one
here — and concluded the jury‟s consideration of the unadmitted portion of the
tape was trial error subject to harmless error analysis: “[J]ury consideration of
taped comments by a non-testifying party raises discrete evidentiary issues that the
court may clearly identify and analyze, and is similar to other commonly-
recognized trial errors.” (Ibid.) With that analysis we agree.
We consider next whether the jury‟s consideration of the December 4
videotape resulted from any misconduct. Juror misconduct gives rise to a
presumption of prejudice (People v. Leonard (2007) 40 Cal.4th 1370, 1425); the
prosecution must rebut the presumption by demonstrating “there is no substantial
likelihood that any juror was improperly influenced to the defendant‟s detriment”
(People v. Clair (1992) 2 Cal.4th 629, 668; see People v. Marshall (1990) 50
Cal.3d 907, 949). In contrast, in the absence of misconduct, the burden remains
with the defendant to demonstrate prejudice under the usual standard for ordinary
trial error. (Clair, at p. 668; People v. Cooper, supra, 53 Cal.3d at p. 836.)
We have consistently pardoned jurors for considering extrinsic evidence
that finds its way into the jury room through party or court error. In People v.
Cooper, supra, 53 Cal.3d 771, a transcript never intended for the jury‟s eyes was
inadvertently marked as an exhibit, admitted, and sent to the jury room. The
jury‟s consideration of the exhibit was only ordinary error: “When, as in this case,
a jury innocently considers evidence it was inadvertently given, there is no
misconduct.” (Id. at p. 836.) In People v. Clair, supra, 2 Cal.4th 629, a court
clerk inadvertently supplied jurors with an unredacted audiotape and transcript of
59
statements by the defendant to the police; portions of the conversation had been
excluded by the court as irrelevant and unduly prejudicial. (Id. at p. 665.) Relying
on Cooper, we again characterized consideration of this material as ordinary error,
not misconduct. (Clair, at pp. 667-668.) And in People v. Jackson (1996) 13
Cal.4th 1164, 1213, a clerical error may again have resulted in the jury‟s receiving
an unredacted transcript of the defendant‟s statements; even if so, the court‟s error
did not equate to juror misconduct. (See also People v. Jordan (2003) 108
Cal.App.4th 349, 364 [court‟s inadvertent submission of parole information to the
jury was ordinary error]; People v. Rose (1996) 46 Cal.App.4th 257, 264
[inadvertent receipt of a police report during deliberations was ordinary error].)
In contrast, we have found juror misconduct where a juror actively or
passively obtains information about a case from outside sources. (E.g., People v.
Ramos (2004) 34 Cal.4th 494, 518-520 [consideration of outside newspaper
articles during trial]; People v. Danks (2004) 32 Cal.4th 269, 306-307
[conversation with pastor about the case]; People v. Nesler, supra, 16 Cal.4th at
pp. 579-580 [overhearing information about the case in a bar and revealing it to
fellow jurors].) As we have explained, even though “inadvertent exposure to out-
of-court information is not blameworthy conduct, as might be suggested by the
term „misconduct,‟ it nevertheless gives rise to a presumption of prejudice,
because it poses the risk that one or more jurors may be influenced by material
that the defendant has had no opportunity to confront, cross-examine, or rebut.”
(Nesler, at p. 579.) As Nesler itself stressed, however, that presumption extends
only to cases that involve the inadvertent receipt of outside information, and not to
those where the court itself inadvertently furnished extrinsic information.
Here, the trial court found the jury‟s exposure to the December 4 videotape
was accidental and solely the result of court staff error: “The jury got [the tape]
through no fault of their own.” (The court speculated the December 4 tape might
60
have been mistakenly slipped into the wrong videotape sleeve.) Accordingly, the
court concluded there had been no juror misconduct: instead, “[i]t was
inadvertence, mistake, and it was innocent . . . the jury was given this information,
was told this was the evidence, the three tapes that they had were the evidence in
the case, and therefore viewed it.”
Gamache argues there was in fact misconduct. The jury had been
instructed not to consider outside evidence (CALJIC No. 1.03) and should have
recognized the December 4 tape was something they had not seen in the course of
trial. Indeed, the jury foreperson testified he could not recall having seen the tape
during trial. In these circumstances, Gamache argues, failing to stop the tape and
advise the court and instead proceeding to view it multiple times was misconduct.
We disagree. The placement of the December 4 tape in the jury room
suggested to the jurors it was something they were supposed to have; subsequent
statements by the bailiff that they were supposed to have three videotapes and by
the trial court that they were supposed to have videotapes would likely have
cemented that belief. The jurors were not lawyers, nor were they privy to any
stipulations the parties might have made about what could or could not be taken
into the jury room. They thus had little reason to think the December 4 videotape
was “outside” evidence they should not consider. Under People v. Cooper, supra,
53 Cal.3d 771, and its progeny, this was ordinary error. Accordingly, no
presumption of prejudice applies. As the error occurred at the penalty phase of a
capital trial, we ask “whether there is a reasonable possibility the error affected the
verdict.” (People v. Gonzalez (2006) 38 Cal.4th 932, 960-961.)22
22
As we reiterated in People v. Gonzalez, supra, 38 Cal.4th at page 961, this
standard is effectively identical to the Chapman standard for federal constitutional
(footnote continued on next page)
61
3. Harmless Error Analysis
We have reviewed in detail the December 4 videotape, comparing it with
both the December 7 videotape — which was properly admitted and also provided
to the jury in the jury room — and the entirety of the other evidence in the record.
Preliminarily, we agree with the trial court that both the general subject matter and
Gamache‟s demeanor were essentially the same on both the December 4 and the
December 7 tapes. Each revealed Gamache as largely without emotion,
indifferent to his actions, and frustrated or regretful only at failing to kill Peggy
Williams and thereafter being caught. The ground covered by police questioning
during the two interviews largely overlapped, though inevitably certain material
was unique to each. Comparing those statements that appeared only on the
December 4 tape with the rest of the admitted evidence, we find little that was new
and nothing that would have changed the outcome of the trial. Accordingly, we
conclude the error in making the December 4 videotape available to the jury did
not prejudice Gamache; there is no reasonable possibility the outcome would have
been different absent the error. (People v. Gonzalez, supra, 38 Cal.4th at pp. 960-
961.)
Gamache identifies seven portions of the December 4 tape he argues were
new and prejudicial:
(1) Thomas P. was asked about a conversation he overheard between
Ramnanan and Gamache before they left to go to the Williamses‟, a conversation
about killing their victims. Thomas P. said he thought they were joking — a
remark that benefited Gamache. Before he could further describe the
(footnote continued from previous page)
error (Chapman v. California, supra, 386 U.S. 18). Thus, our harmless error
discussion covers both state and federal claims of error.
62
conversation, however, Gamache interrupted and described it for him. Ramnanan
and Gamache had been discussing their hopes that nothing would go wrong and
there would be no accidents; Gamache had said it would “really break my heart” if
there was an accident, and explained that he had been making a joke, as he often
did, even about things that might seem “psychotic . . . sadistic, masochistic,
whatever.”
The trial court found no prejudice because the jury had already heard from
two different sources evidence of Gamache‟s statements that indicated the
shootings had always been planned. First, Donald Gray, an acquaintance of
Ramnanan‟s, testified to overhearing a conversation between Gamache and
Ramnanan while the three of them were taking target practice in the desert outside
Yermo on the afternoon of December 3. According to Gray, Gamache and
Ramnanan discussed stealing a trailer and said, “if the guy gave them any
problems they were going to shoot them.” Second, on the December 7 videotape,
Gamache made statements that similarly confirmed planning, explaining his
choice of gun: “The .38 was empty. There were no bullets in it. I was going to
shoot them with the .38. I looked in it and there were no bullets in it. I stuck it in
my coat pocket. I got the .32. I wanted to shoot the .38 cause I have hollow
points for it.”
We agree with the trial court. Moreover, the evidence that Gamache had
always planned to kill the Williamses, whether they resisted or not, was
overwhelming. Gamache and the others never consistently tried to hide their
identities from the Williamses, as they would have had they ever intended to let
them live. They turned off the lights and locked the house upon leaving the
Williams residence (a pointless gesture that would not have delayed discovery of
the crimes if they expected anyone to show up alive hours later), brought the
Williamses only 1.4 miles out a desert road, and walked them less than 200 feet
63
off the road with guns in their pockets and nothing with which to tie the
Williamses up. These were not the actions of someone who shot the Williamses
impulsively.
(2) Gamache described his actions between shooting Peggy Williams for
the first and second times; while Peggy Williams lay on the ground, he shot her
from behind, took her pulse, felt nothing, moved to the front of her to avoid hitting
Ramnanan with a ricochet, and shot her again. As the trial court recognized,
Gamache had described these actions in similar terms during the December 7
interview: after he shot her once, he “[l]ooked at her eyes. Her eyes were still
fluttering which showed me she still had brain activity and I shot her again and
there was no REM. I went to take her pulse and I couldn‟t get a pulse on her. . . .
If she wasn‟t dead, [with] two bullets in her head, I didn‟t think she would get up
and walk away and talk to anybody. That‟s for goddamn sure. So we got up and
left.” Gamache told Deputy Ells during booking: “I shot her once. I saw her eyes
flutter. I shot her again in the back of the head. I know the skull is thicker back
there.” Peggy Williams herself described Gamache and Ramnanan discussing
whether she was dead or alive after she had been shot once, then checking her
pulse, shining a light in her eyes, shooting her again, and walking away. The new
fact that Gamache had changed angles before shooting Peggy Williams a second
time would not have made any difference. Gamache does not persuasively argue
otherwise.
(3) Asked if anyone had put a gun in Peggy Williams‟s mouth, Gamache
said, “No, I don‟t think so.” When asked whether that meant it could have
happened, Gamache replied: “It could have. I don‟t know.” We agree with the
trial court‟s estimation that this equivocal denial concerning what might have
happened during the crimes would have been accorded little, if any, aggravating
weight by the jury and would not have affected the outcome.
64
(4) Gamache was asked if he, Tammy Gamache, and Ramnanan had
worked out a story to tell in the event of their arrest. He replied: “Nope. Because
it was clean. After they were shot we figured, well, oops!” He foresaw no
problems because if she “had two bullets to her head that would make sure she
was dead.” Asked if he thought Peggy Williams was dead when they left, he said:
“I should have used [the] .45. . . . I thought she was dead before I left. [If I had
used it,] chances are [I] wouldn‟t be here right now.”
Again, as the trial court recognized, these remarks were cumulative of other
penalty phase evidence that showed Gamache regretted only his choice of weapon
and not his decision to shoot the Williamses. Deputy Ells testified that when he
was booking Gamache on December 5, Gamache told him: “I fucked up. I knew
better. I should have used a .45.” On the December 7 videotape, Gamache
explained: “I know .32‟s will bounce off window shields of cars. But I was so
tired I just didn‟t feel like going back for that .45. I know that .45 would of
fucking made a major hole and only taken one shot. But I was so tired I wasn‟t
registering [in] my mind what I was doing. It wasn‟t a perceived thought. It
wasn‟t planned ahead to do it. But after I had done it I knew I should have used
the .45. Just for good measure.”
(5) At the close of the interview, the investigating officer sought to confirm
for the record that Gamache had not been coerced to talk through threats or
intimidation. Gamache said he had not and then explained his decision to confess:
“I . . . started to do a little thinking and I realized, fuck it, I‟m going to fry
anyway.” This statement was not cumulative, but neither was it prejudicial.
Given all the evidence, there was no reasonable possibility any juror who felt
Gamache deserved a life sentence would have changed his or her mind simply
65
because Gamache, in an offhand remark, indicated he thought he might well get a
death sentence.23
(6) After the interview had concluded, Gamache offered an unsolicited
remark to no one in particular: “If I figured, if I had any idea I was about to be
arrested, I‟d have started shooting.” He elaborated: “See, I figure if I‟m going to
die, fuck, I‟m going to take one or two with me.” Evidence in the record showed
Gamache wanted to be shot by the police. Dr. Kania testified that Gamache
fantasized about dying on the field of honor, with one last rush of excitement,
rather than continuing to live, feeling hopeless and empty. That he would have
initiated a police shootout given the opportunity, then, would have come as no
surprise to the jury. To the extent these statements presented new information,
however, they were not prejudicial. Overwhelming evidence of Gamache‟s
callousness toward human life was introduced during the penalty phase.
Gamache‟s statements that he would have treated police officers seeking to arrest
him the same way he treated the Williamses did not materially alter the profile the
penalty phase evidence painted for the jury. Accordingly, there is no reasonable
possibility exclusion of these statements would have made a difference in the
outcome.
(7) Asked why he shot the Williamses, Gamache explained: “I don‟t think
there was a reason. I think it was just lack of control. I didn‟t think about control.
That split second. Either that or I got an adrenaline rush and my dick got hard.
I can‟t tell.” While Gamache argues that he was prejudiced by the introduction of
his statement about his arousal, the statement was cumulative: The jury had
23
Contrary to Gamache‟s current characterization of this remark, a reasonable
juror would not have interpreted it as indicating Gamache thought he deserved
death, only that that might be a likely outcome.
66
already heard similar evidence establishing that Gamache was, or repeatedly joked
about being, aroused by guns and by the Williams shootings. Detective Bradford
testified to this exact statement by Gamache during the December 4 interview,
telling the jury Gamache had said, matter of factly, “I don‟t know if I got an
adrenaline rush or my dick got hard.” Deputy Ells testified that when he booked
Gamache on December 5, Gamache told him, “I almost got an erection” during the
shootings. Dr. Forbes testified about Gamache having an erection in connection
with the shootings. Dr. Forbes also testified Gamache believed he had been
discharged from the military for writing that he got an erection when he got his M-
16 rifle.
Considering the impact of these various remarks individually and
collectively, in light of the other evidence already in the record, we conclude there
is no reasonable possibility Gamache would have received a more favorable
outcome had the December 4 videotape not been erroneously placed in the jury
room.
G. Denial of Automatic Application for Modification of the
Death Sentence
Gamache challenges the trial court‟s denial of his automatic application for
modification of the jury‟s verdict. He contends the court deprived him of his due
process and Eighth Amendment rights by (1) failing to independently review the
evidence and penalty factors supporting the jury‟s findings, (2) overvaluing
aggravating factors and undervaluing mitigating factors, (3) preparing a written
tentative ruling in advance of the hearing on the application, and (4) soliciting no
defense briefing. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15,
16, 17.) Gamache has forfeited these claims by failing to object
contemporaneously. (People v. Mungia (2008) 44 Cal.4th 1101, 1141; People v.
Wallace, supra, 44 Cal.4th at p. 1096.) In any event, we find no error.
67
Every death verdict triggers an automatic application for modification of
the sentence. (§ 190.4, subd. (e).) The trial court is obligated to review the
evidence, independently reweigh any aggravating and mitigating circumstances,
and determine whether the weight of the evidence supports the verdict. (Ibid.;
People v. Wallace, supra, 44 Cal.4th at p. 1096; People v. Alfaro (2007) 41
Cal.4th 1277, 1334.) In ruling on the application, the trial court must set forth
reasons on the record and direct that they be entered in the clerk‟s minutes.
(§ 190.4, subd. (e).) On appeal, we review the trial court‟s ruling independently,
but it is not our role to redetermine the penalty in the first instance. (Wallace, at
p. 1096; People v. Geier (2007) 41 Cal.4th 555, 616.)
Here, the trial court‟s four-page, single-spaced statement of reasons belies
Gamache‟s assertion that the court failed to independently review the evidence
and consider fully any relevant aggravating and mitigating factors. The trial court
expressly acknowledged its awareness of its obligations to “reweigh the evidence
of aggravating and mitigating factors, and to determine whether, in the court‟s
independent judgment, the weight of the evidence supports the verdict” and
“assess the credibility of witnesses, determine the probative force of the testimony
and weigh the evidence, including reviewing all the designated factors under Penal
Code section 190.3.” The trial court then did just that; it reviewed at length the
circumstances of the crime, as supported by the weight of the evidence, and
Gamache‟s prior unlawful conduct. It considered against those aggravating
factors Gamache‟s age, his difficult family history, his absence of prior felony
convictions, and the expert defense testimony calling into doubt Gamache‟s sanity
and ability to form the intent to kill. Weighing these factors, the court concluded
the aggravating evidence substantially outweighed the mitigating evidence and the
jury‟s verdict was warranted. The record leaves no doubt that the trial court here
conscientiously carried out its obligations under section 190.4, subdivision (e).
68
Contrary to Gamache‟s contentions, the trial court did not “ignore” the relevant
mitigating factors; it simply did not find them dispositive. While section 190.4
and the state and federal Constitutions guarantee a defendant the right to have
mitigating evidence considered, trial courts can and must sustain a jury‟s death
verdict where, in their estimation, the evidence in aggravation so warrants.
(People v. Wallace, supra, 44 Cal.4th at p. 1097 [trial court is not required to find
the mitigating evidence does in fact mitigate]; People v. Alfaro, supra, 41 Cal.4th
at p. 1334 [same]; People v. Steele (2002) 27 Cal.4th 1230, 1267-1268 [same].)
As for Gamache‟s further procedural complaints about the denial of the
motion, we have rejected each in the past, and Gamache presents no compelling
reason for us to reconsider those conclusions. The trial court‟s preparation of a
written tentative ruling in advance of the modification hearing was not error; as we
have explained, a trial court may “study[] the merits of a motion in advance of the
hearing and reach[] a tentative conclusion as to how the motion should be
resolved.” (People v. Hayes (1990) 52 Cal.3d 577, 645.) Reducing that
conclusion to writing is entirely acceptable: “To do so does not mean that the
court is unalterably bound by the writing or that it will not amend or even discard
the writing if counsel‟s arguments persuade the court that its tentative views were
incorrect.” (Ibid.; accord, People v. Medina (1995) 11 Cal.4th 694, 783.) Nor was
the trial court required to demand argument or briefing in support of a
modification motion. (People v. Diaz (1992) 3 Cal.4th 495, 575-576.)
H. Constitutionality of the Death Penalty for 18 Year Olds
Gamache contends imposition of the death penalty for crimes committed as
an 18 year old violates “Fundamental Notions of Justice.” We disagree. Neither
the Eighth Amendment and equal protection clause of the federal Constitution nor
the corresponding provisions of the California Constitution prohibit per se death as
69
punishment for crimes committed when 18 years of age. (See U.S. Const., 8th &
14th Amends.; Cal. Const., art. I, §§ 7, 17.)
We previously have rejected the argument that a death penalty scheme that
treats differently those who are 18 years of age and older, and those younger than
18, violates equal protection. (People v. Williams (1988) 45 Cal.3d 1268, 1331;
People v. Turville (1959) 51 Cal.2d 620, 638.) Indeed, the United States Supreme
Court has concluded the federal Constitution draws precisely this line, prohibiting
the death penalty for those younger than 18 years of age, but not for those 18 years
of age and older. (Roper v. Simmons (2005) 543 U.S. 551, 574 [“The age of 18 is
the point where society draws the line for many purposes between childhood and
adulthood. It is, we conclude, the age at which the line for death eligibility ought
to rest.”].)
Nor does consideration of “evolving standards of decency” (Trop v. Dulles
(1958) 356 U.S. 86, 101 (plur. opn. of Warren, C. J.)) under the Eighth
Amendment to the federal Constitution lead us to a different conclusion. When
the United States Supreme Court recently considered this issue, it identified an
emergent national consensus that execution of individuals for crimes committed
when younger than 18 years of age was cruel and unusual. (Roper v. Simmons,
supra, 543 U.S. at pp. 564-567.) It identified no comparable consensus for crimes
committed by those age 18 or older. (See id. at pp. 579-581 [documenting that no
state with a death penalty had a minimum age higher than 18].) Accordingly, we
cannot say evolving standards of decency require abolition of the death penalty for
crimes committed by 18 year olds.24
24
Gamache also argues the death penalty is morally wrong and, thus, under
evolving standards of decency is unconstitutional as to all defendants. However,
the United States Supreme Court has established that “capital punishment is
(footnote continued on next page)
70
This is not to say that age is not a relevant factor; under our death penalty
scheme, a jury may consider a defendant‟s age as part of the matrix of factors that
may lead it to choose life without the possibility of parole instead of death.
(§ 190.3, factor (i).) The jury here was afforded that opportunity, but nevertheless
chose death. Neither the federal nor the state Constitution prohibits that verdict.
I. Constitutionality of California’s Death Penalty
Finally, Gamache raises a series of challenges to the constitutionality of
California‟s death penalty. We have rejected each challenge before. As Gamache
offers no compelling arguments in favor of reconsidering any of these rulings, we
do so again.
“California homicide law and the special circumstances listed in section
190.2 adequately narrow the class of murderers eligible for the death penalty . . . .”
(People v. Demetrulias (2006) 39 Cal.4th 1, 43; see People v. Stevens (2007) 41
Cal.4th 182, 211; People v. Chatman (2006) 38 Cal.4th 344, 410.) Specifically,
the felony-murder special circumstance (§ 190.2, subd. (a)(17)) is not overbroad
and adequately narrows the pool of those eligible for death. (People v. Kraft
(2000) 23 Cal.4th 978, 1078.)
Section 190.3, factor (a), which permits the jury to consider the
circumstances of the crime in deciding whether to impose the death penalty, does
not license the arbitrary and capricious imposition of the death penalty. (Tuilaepa
v. California (1994) 512 U.S. 967, 975-976; People v. Cruz (2008) 44 Cal.4th 636,
(footnote continued from previous page)
constitutional” even under contemporary standards. (Baze v. Rees (2008) 553 U.S.
35, ___ [128 S.Ct. 1520, 1529] (plur. opn. of Roberts, C. J.); id. at p. ___ [128
S.Ct. at p. 1552] (conc. opn. of Scalia, J.) [“[T]he death penalty is a permissible
legislative choice.”]; id. at p. ___ [128 S.Ct. at p. 1556] (conc. opn. of Thomas, J.)
[“[T]he Constitution permits capital punishment in principle . . . .”].)
71
680; People v. Watson (2008) 43 Cal.4th 652, 703; People v. Guerra, supra, 37
Cal.4th at p. 1165; People v. Smith (2005) 35 Cal.4th 334, 373.)
California‟s grant of discretion to prosecutors to decide in which cases to
seek the death penalty is constitutional. (People v. Rundle (2008) 43 Cal.4th 76,
199; People v. Tafoya, supra, 42 Cal.4th at p. 198; People v. Crittenden, supra,
9 Cal.4th at p. 152.)
The trial court did not err when it gave CALJIC No. 8.85, an instruction we
have repeatedly upheld, instead of Gamache‟s proposed alternative. Contrary to
Gamache‟s argument, the trial court was not constitutionally required to instruct
the jury that section 190.3‟s mitigating factors could be considered only as
mitigating factors and that the absence of evidence supporting any one of them
should not be viewed as an aggravating factor. (E.g., People v. Cruz, supra, 44
Cal.4th at p. 681; People v. Gray (2005) 37 Cal.4th 168, 236; People v. Panah,
supra, 35 Cal.4th at pp. 499-500.) Nor did the use of the word “extreme” in
section 190.3, factor (d) prevent the jury from considering relevant mitigating
evidence. (Cruz, at p. 681; People v. Bonilla, supra, 41 Cal.4th at p. 360; People
v. Smith (2003) 30 Cal.4th 581, 642.)
Nothing in the state or federal Constitution requires that the penalty jury
(1) issue written findings, (2) unanimously agree on any particular aggravating
circumstances, or (3) find true any particular aggravating circumstances beyond a
reasonable doubt. (E.g., People v. Cruz, supra, 44 Cal.4th at p. 681; People v.
Watson, supra, 43 Cal.4th at p. 703; People v. Demetrulias, supra, 39 Cal.4th at
pp. 40, 43.) The trial court is not required to instruct the penalty jury on a
“ „presumption of life.‟ ” (People v. Kipp (2001) 26 Cal.4th 1100, 1137; see also
People v. Arias (1996) 13 Cal.4th 92, 190.) Nor is the trial court required to
instruct the penalty jury on any burden of proof; in California, at the penalty
phase, there is no burden of proof, only a normative judgment for the jury. (E.g.,
72
Demetrulias, at p. 40; People v. Moon (2005) 37 Cal.4th 1, 43-44; People v. Stitely
(2005) 35 Cal.4th 514, 573.) Nor was any burden of proof instruction needed to
establish a tie-breaking mechanism here; the jury was instructed to return a
sentence of death only if it concluded “that the aggravating circumstances are so
substantial in comparison with the mitigating circumstances that it warrants death
instead of life without parole.”
Neither the state nor the federal Constitution requires comparison of
Gamache‟s sentence with the sentences of others. First, intercase proportionality
review, also known as comparative proportionality review, is not required to
render California‟s sentencing scheme constitutional. (E.g., People v. Cruz, supra,
44 Cal.4th at p. 681; People v. Watson, supra, 43 Cal.4th at p. 704; People v.
Demetrulias, supra, 39 Cal.4th at p. 44.) Second, the equal protection clause does
not require California to include in its capital sentencing scheme the same
disparate sentence review previously provided noncapital convicts under the
Determinate Sentencing Act. (People v. Bonilla, supra, 41 Cal.4th at p. 360;
People v. Boyette (2002) 29 Cal.4th 381, 466, fn. 22.) Third, intracase
proportionality review is not constitutionally compelled; the sentence an
accomplice receives has little bearing on the individualized consideration of a
capital defendant‟s penalty. (People v. McDermott (2002) 28 Cal.4th 946, 1005;
People v. Bemore (2000) 22 Cal.4th 809, 857.)
Gamache contends that violations of his state and federal constitutional
rights are violations of international law. His premise fails; his sentence was
arrived at in compliance with the state and federal Constitutions and relevant
statutory requirements, and thus also complies with international law. (People v.
Tafoya, supra, 42 Cal.4th at p. 199; People v. Carey (2007) 41 Cal.4th 109, 135.)
Finally, lengthy confinement under a sentence of death does not constitute
cruel and unusual punishment and violates neither the state and federal
73
Constitutions nor international law. (People v. Bennett (2009) 45 Cal.4th 577,
630; People v. Dunkle (2005) 36 Cal.4th 861, 942; People v. Panah, supra, 35
Cal.4th at p. 500; People v. Jones (2003) 29 Cal.4th 1229, 1267; People v.
Anderson (2001) 25 Cal.4th 543, 606; People v. Massie (1998) 19 Cal.4th 550,
574; People v. Frye, supra, 18 Cal.4th at pp. 1030-1031.)
J. Cumulative Prejudice from Errors
Gamache contends that even if we do not conclude any individual error
mandates reversal, the cumulative effect of the guilt and penalty phase errors
requires reversal of the penalty verdict. We disagree. We have identified only one
error during the guilt phase, the erroneous phrasing of CALJIC No. 2.15, and one
error during the penalty phase, the inadvertent introduction of the December 4
videotape into the jury room. Each error was harmless. Considered together, their
cumulative effect was likewise harmless, and Gamache was not denied a fair
penalty phase trial.
K. Non-death-penalty Sentencing Errors
1. Calculation of determinate sentence
In addition to the death sentence and three life sentences for murder,
attempted murder, and kidnapping for purposes of robbery, Gamache received
consecutive determinate sentences for two counts of robbery, one count of
burglary, and gun use enhancements on each count. Both sides agree the trial
court erred in calculating the determinate portion of Gamache‟s sentence.
First, the trial court sentenced Gamache to the upper term of six years, with
an additional five-year gun use enhancement, on both count three (§§ 211 [first
degree residential robbery], 12022.5, subd. (a) [gun use]) and count five (§§ 459
[first degree residential burglary], 12022.5, subd. (a) [gun use]). Under the
Determinate Sentencing Act, however, the trial court should have imposed the full
74
term for only one of these violent felonies, and instead imposed one-third the
middle term (one year four months) and one-third the enhancement (one year eight
months) on the second felony. (See § 1170.1.) Thus, both sides agree, the trial
court should have sentenced Gamache to a total of three years, not 11 years, on the
subordinate of these two felonies.
Second, when sentencing Gamache for gun use enhancements in
connection with the three life sentence counts (counts two, six, and seven), the
trial court imposed only one-third the middle term, or one year four months. But
as the People point out, and Gamache concedes, the statutory limits that require
additional enhancements be limited to one-third the designated term apply only to
crimes for which a determinate sentence is imposed; they do not apply to
enhancements attached to indeterminate terms. (People v. Felix (2000) 22 Cal.4th
651, 656.) Thus, on counts two, six, and seven, the trial court should have
selected from the full lower, middle, or upper term, rather than one-third the
middle term. As we cannot determine how the trial court would have exercised its
sentencing discretion on these enhancements had it properly understood that it had
discretion, we will remand to allow the trial court to exercise its discretion in the
first instance. (See, e.g., People v. Oates (2004) 32 Cal.4th 1048, 1068-1069.)
2. Restitution
Gamache contends the trial court erred by imposing a $10,000 victim
restitution fine without taking adequate consideration of his ability to pay. (See
§ 1202.4.) We find no error.
First, Gamache forfeited this claim by failing to object at his sentencing
hearing. We reject Gamache‟s contention that any forfeiture should be excused so
that he may benefit from the ameliorative statutory amendments that occurred
while his case was on appeal. (See People v. Vieira, supra, 35 Cal.4th at pp. 305-
75
306.) Unlike in Vieira, Gamache‟s claim does not depend on any subsequent
amendments; the law at the time of both his 1992 crime and 1996 sentencing
called for the trial court to consider his ability to pay in setting a restitution fine,
and Gamache could have objected at the time if he believed inadequate
consideration was being given to this factor. (See Gov. Code, former § 13967,
subd. (a), as amended by Stats. 1992, ch. 682, § 4, p. 2922 [restitution fine
“subject to the defendant‟s ability to pay”]; Pen. Code, § 1202.4, subd. (d) [trial
court shall consider “defendant‟s inability to pay”].)
Second, Gamache‟s claim fails on the merits. He points to no evidence in
the record supporting his inability to pay, beyond the bare fact of his impending
incarceration. Nor does he identify anything in the record indicating the trial court
breached its duty to consider his ability to pay; as the trial court was not obligated
to make express findings concerning his ability to pay, the absence of any findings
does not demonstrate it failed to consider this factor. Thus, we cannot say on this
record that the trial court abused its discretion.
76
DISPOSITION
We conclude the trial court‟s judgment should be affirmed as to Richard
Gamache‟s conviction for special circumstance murder (count one) and
corresponding sentence of death, as well as his convictions for attempted murder
(count two), robbery (counts three and four), burglary (count five), and kidnapping
for robbery (counts six and seven). It should be reversed as to the determinate
portions of Gamache‟s sentence on counts two, three, five, six, and seven and this
case remanded to permit the trial court to exercise its discretion and correct the
judgment in accordance with the views expressed in this opinion.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
77
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gamache
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S052808
Date Filed: March 18, 2010
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: James A. Edwards
__________________________________________________________________________________
Attorneys for Appellant:
Richard Jay Moller, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood, Holly D. Wilkens and Kristine
A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard Jay Moller
So‟Hum Law Center of Richard Jay Moller
P.O. Box 1669
Redway, CA 95560-1669
(707) 923-9199
Kristine A. Gutierrez
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2028
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Docket Number: | Category: | Status: |
| Thu, 03/18/2010 | S052808 | Automatic Appeal | opinion issued |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Kristine Gutierrez, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Gamache, Richard Cameron (Appellant) San Quentin State Prison Represented by Richard Jay Moller Attorney at Law P.O. Box 1669 Redway, CA |
| Disposition | |
| Mar 18 2010 | Opinion: Affirmed in part/reversed in part |
| Dockets | |
| Apr 2 1996 | Judgment of death |
| Apr 8 1996 | Filed certified copy of Judgment of Death Rendered 4-2-96. |
| Aug 21 2000 | Counsel appointment order filed Atty Richard Jay Moller appointed for direct appeal |
| Sep 1 2000 | Received letter from: San Bernardino Superiour Court; dated 8/28/2000; re advising record was mailed to applt counsel same date. |
| Oct 20 2000 | Counsel's status report received (confidential) from atty Moller. |
| Oct 20 2000 | Application for Extension of Time filed By applt to request corr. of the record. (1st request) |
| Oct 31 2000 | Extension of Time application Granted To 1/30/2001 to applt to request corr. of the record. |
| Nov 1 2000 | Compensation awarded counsel Atty Moller |
| Dec 15 2000 | Counsel's status report received (confidential) from atty Moller. |
| Jan 30 2001 | Application for Extension of Time filed By applt to request corr. of the record. (2nd request) |
| Feb 5 2001 | Extension of Time application Granted To 4/2/2001 to applt to request corr. of the record. |
| Feb 20 2001 | Counsel's status report received (confidential) from atty Moller. |
| Feb 28 2001 | Compensation awarded counsel Atty Moller |
| Mar 23 2001 | Application for Extension of Time filed by applt. to request corr. of the record. (3rd request) |
| Mar 27 2001 | Extension of Time application Granted To 6/1/2001 by applt. to request corr. of the record. (No further extentions of time contemplated) |
| Apr 5 2001 | Counsel's status report received (confidential) from atty Moller. |
| Apr 19 2001 | Compensation awarded counsel Atty Moller |
| Jun 11 2001 | Received copy of appellant's record correction motion applt's motion to correct and augment the record. (23 pp.) |
| Jun 14 2001 | Compensation awarded counsel Atty Moller |
| Jun 15 2001 | Filed: Amended proof of service of copy of applt.'s motion to correct and augment the record. |
| Aug 15 2001 | Compensation awarded counsel Atty Moller |
| Aug 16 2001 | Counsel's status report received (confidential) from atty Moller. |
| Oct 19 2001 | Counsel's status report received (confidential) from atty Moller. |
| Nov 19 2001 | Counsel's status report received (confidential) (supplemental) from atty Moller. |
| Dec 13 2001 | Counsel's status report received (confidential) from atty Moller. |
| Mar 22 2002 | Counsel's status report received (confidential) from atty Moller. |
| Apr 4 2002 | Compensation awarded counsel Atty Moller |
| Apr 29 2002 | Counsel's status report received (confidential) from atty Moller. |
| Jun 12 2002 | Compensation awarded counsel Atty Moller |
| Jul 9 2002 | Counsel's status report received (confidential) from atty Moller. |
| Sep 9 2002 | Counsel's status report received (confidential) from atty Moller. |
| Nov 12 2002 | Counsel's status report received (confidential) from atty Moller. |
| Nov 21 2002 | Record on appeal filed Clerk's transcript-45 volumes (13064 pp.) and reporter's transcript-39 volumes (7297 pp.) including material under seal. Clerk's transcript includes 9308 pp. of juror questionnaires. |
| Nov 21 2002 | Appellant's opening brief letter sent, due: December 31, 2002. |
| Dec 26 2002 | Counsel's status report received (confidential) from atty Moller. |
| Dec 26 2002 | Request for extension of time filed To file appellant's opening brief. (1st request) |
| Jan 6 2003 | Extension of time granted To 3/3/2003 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 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. |
| Jan 15 2003 | Request Denied Appellant Richard Cameron Gamache's application requesting the immediate appointment of habeas corpus/executive clemency counsel, filed by the court on December 26, 2002, is denied. Habeas corpus/executive clemency counsel will be appointed in due course. (People v. Holt (1997) 15 Cal.4th 619, 708-709, and People v. Horton (1995) 11 Cal.4th 1068, 1141.) |
| Feb 13 2003 | Compensation awarded counsel Atty Moller |
| Feb 21 2003 | Counsel's status report received (confidential) from atty Moller. |
| Feb 21 2003 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Feb 27 2003 | Extension of time granted to 5/2/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 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 cousnel of record, of this schedule, and to take all steps necessary to meet it. |
| Apr 25 2003 | Counsel's status report received (confidential) from atty Moller. |
| Apr 25 2003 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Apr 30 2003 | Extension of time granted to 7/1/1002 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any asisting attorney or entity of any separate counsel of record, of this scheulde, and to take all steps necessary to meet it. |
| May 6 2003 | Compensation awarded counsel Atty Moller |
| Jun 25 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Jun 25 2003 | Counsel's status report received (confidential) from atty Moller. |
| Jun 27 2003 | Extension of time granted to 9/2/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 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 sepearate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Aug 1 2003 | Compensation awarded counsel Atty Moller |
| Aug 26 2003 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Aug 26 2003 | Counsel's status report received (confidential) from atty Moller. |
| Aug 29 2003 | Extension of time granted to 11-3-2003 to file AOB. 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. |
| Oct 24 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Oct 24 2003 | Counsel's status report received (confidential) from atty Moller. |
| Oct 30 2003 | Extension of time granted to 1/2/2004 to file appellant's opening brief. After that date, only three further extensions totaling 150 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he antiticipates filing that brief by 6/2/2004. |
| Dec 26 2003 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Dec 26 2003 | Counsel's status report received (confidential) from atty Moller. |
| Dec 31 2003 | Extension of time granted to 3/2/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by June 2, 2004. |
| Feb 25 2004 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Feb 25 2004 | Counsel's status report received (confidential) from atty Moller. |
| Mar 1 2004 | Extension of time granted to 5/3/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 6/2/2004. |
| Apr 26 2004 | Counsel's status report received (confidential) from atty Moller. |
| Apr 26 2004 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Apr 28 2004 | Extension of time granted to 6/2/2004 to file appellant's opening brief. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 6/2/2004. After that date, no further extension will be granted. |
| May 25 2004 | Application to file over-length brief filed by appellant to file opening brief. (122,687 word brief submitted under separate cover) |
| May 26 2004 | Order filed Appellant's application for leave to file opening brief in excess of word count limit is granted. |
| May 26 2004 | Appellant's opening brief filed (122,687 words - 431 pp.) |
| Jun 9 2004 | Compensation awarded counsel Atty Moller |
| Jun 18 2004 | Request for extension of time filed to file respondent's brief. (1st request) |
| Jun 21 2004 | Extension of time granted to 8/24/2004 to file respondent's brief. |
| Aug 19 2004 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Aug 26 2004 | Extension of time granted to 10/25/2004 to file respondent's brief. After that date, only two further extensions totaling about 70 additional days will be granted. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by 1/5/2005. |
| Oct 20 2004 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Oct 25 2004 | Extension of time granted to 12/23/2004 to file respondent's brief. After that date, only one further extension totaling about 15 additional days will be granted. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by 1/5/2005. |
| Dec 21 2004 | Request for extension of time filed to file respondent's brief. (4th request) |
| Dec 29 2004 | Extension of time granted to 2/22/2005 to file respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by 2/21/2005. |
| Feb 17 2005 | Request for extension of time filed to file respondent's brief. (5th request) |
| Feb 24 2005 | Extension of time granted to 3/8/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by 3/8/2005. After that date, no further extension will be granted. |
| Mar 3 2005 | Respondent's brief filed (64,988 words; 198 pp.) |
| Mar 23 2005 | Counsel's status report received (confidential) from atty Moller. |
| Mar 23 2005 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Mar 24 2005 | Extension of time granted to 5/23/2005 to file appellant's reply brief. |
| May 24 2005 | Counsel's status report received (confidential) |
| May 24 2005 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| May 26 2005 | Extension of time granted to 7/22/2005 to file appellant's reply brief. After that date, only three further extensions totaling about 160 additional days are contemplated. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 1/2/2006. |
| Jul 25 2005 | Counsel's status report received (confidential) from atty Moller. |
| Jul 25 2005 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Jul 26 2005 | Extension of time granted to 9/23/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 1/2/2006 |
| Sep 23 2005 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Sep 23 2005 | Counsel's status report received (confidential) from atty Moller. |
| Sep 29 2005 | Extension of time granted to 11/23/2005 to file appellant's reply brief. After that date, only one further extension totaling about 50 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 1/2/2006. |
| Nov 28 2005 | Request for extension of time filed to file reply brief. (5th request) |
| Dec 1 2005 | Extension of time granted to 1/3/2006 to file the reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Richard Moller's representation that he anticipates filing that brief by January 2, 2006. |
| Dec 22 2005 | Filed: application for permission to file appellant's supplemental brief. (Brief received under seperate cover) |
| Dec 22 2005 | Appellant's reply brief filed (38,247 words; 135 pp.) |
| Dec 30 2005 | Compensation awarded counsel atty Moller |
| Jan 3 2006 | Order filed Appellant's "Application for Permission to File Supplemental Brief" is granted. Any response must be filed on or before February 2, 2006. |
| Jan 3 2006 | Supplemental brief filed appellant's supplemental brief. (1,168 words; 5 pp.) |
| Feb 2 2006 | Request for extension of time filed to file supplemental respondent's brief. (1st request) |
| Feb 3 2006 | Extension of time granted to March 6, 2006 to file the supplemental respondent's brief. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by March 6, 2006. After that date, no further extension will be granted. |
| Mar 3 2006 | Request for extension of time filed to file supplemental respondent's brief. (2nd request) |
| Mar 8 2006 | Extension of time granted to March 20, 2006 to file the supplemental respondent's brief. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by March 20, 2006. After that date, no further extension will be granted. |
| Mar 14 2006 | Supplemental brief filed respondent's supplemental brief. (1871 words; 8 pp.) |
| Aug 27 2009 | Exhibit(s) lodged people's pretrial exhibit 8 and trial exhibit 253-(previously marked as pretrial exhibit 9) |
| Nov 6 2009 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the January calendar, to be held the week of January 4, 2010, 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. |
| Nov 19 2009 | Received: letter from attorney Richard Moller, dated November 16, 2009 regarding the scheduling of oral argument. |
| Dec 2 2009 | Case ordered on calendar to be argued on January 6, 2010, at 1:30 p.m., in San Francisco. |
| Dec 10 2009 | Filed: appellant's focus issues letter, dated December 3, 2009, and requesting 45 minutes for oral argument. |
| Dec 10 2009 | Received: appellant's additional authorities letter, dated December 3, 2009 |
| Dec 11 2009 | Filed: respondent's focus issues letter, dated December 10, 2009. |
| Dec 14 2009 | Received: appearance sheet from Richard Jay Moller, indicating 45 minutes for oral argument for appellant. |
| Dec 14 2009 | Received: appearance sheet from Deputy Attorney General Kristine Gutierrez, indicating 30 minutes for oral argument for respondent. |
| Dec 23 2009 | Argument rescheduled to be argued on Thursday, January 7, 2010, at 1:30 p.m., in San Francisco |
| Dec 29 2009 | Received: respondent's additional authorities letter, dated December 28, 2009. |
| Jan 7 2010 | Cause argued and submitted |
| Jan 22 2010 | Compensation awarded counsel Atty Moller |
| Mar 16 2010 | Notice of forthcoming opinion posted To be filed on Thursday, March 18, 2010 @ 10 a.m. |
| Mar 18 2010 | Opinion filed: Affirmed in part, reversed in part We conclude the trial court's judgment should be affirmed as to Richard Gamache's conviction for special circumstance murder (count one) and corresponding sentence of death, as well as his convictions for attempted murder (count two), robbery (counts three and four), burglary (count five), and kidnapping for robbery (counts six and seven). It should be reversed as to the determinate portions of Gamache's sentence on counts two, three, five, six, and seven and this case remanded to permit the trial court to exercise its discretion and correct the judgment in accordance with the views expressed in this opinion. Opinion by Werdegar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Moreno and Corrigan, JJ. |
| Briefs | |
| May 26 2004 | Appellant's opening brief filed |
| Mar 3 2005 | Respondent's brief filed |
| Dec 22 2005 | Appellant's reply brief filed |
