IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
KENNETH EARL GAY,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A392702
After a joint trial before separate juries in the Los Angeles County Superior
Court, Raynard Paul Cummings and defendant Kenneth Earl Gay were convicted
of the June 2, 1983, murder of Paul Verna, a Los Angeles police officer. The
juries found that Officer Verna was intentionally killed while engaged in the
performance of his duties (Pen. Code, § 190.2, subd. (a)(7)), that the murder was
committed for the purpose of preventing a lawful arrest (id., § 190.2, subd. (a)(5)),
and that a principal was armed (id., § 12022, subd. (a)) and that each principal
personally used a firearm in the commission of the murder (id., §§ 12022.5, subd.
(a), 1203.06, subd. (a)(1)). Each jury returned a penalty verdict of death.
On direct appeal, we reversed Gay’s convictions for robbery, attempted
robbery, and conspiracy to commit robbery because of instructional error but
otherwise affirmed the judgments against both Gay and Cummings, including the
death judgments. (People v. Cummings (1993) 4 Cal.4th 1233.) While that appeal
was pending, defendant Gay filed a petition for writ of habeas corpus. After
issuing an order to show cause on the claim of ineffective assistance of counsel at
the penalty phase and ordering a reference to resolve disputed questions of fact,
we determined that defendant had not received constitutionally adequate
representation, granted the petition, and remanded for a new penalty trial. (In re
Gay (1998) 19 Cal.4th 771.)
Upon retrial, the jury again returned a verdict of death, and the trial court
entered judgment accordingly. This appeal is automatic. (Pen. Code, § 1239,
subd. (b).) We find that the trial court erred at the penalty retrial in barring
defendant from offering significant mitigating evidence concerning the
circumstances of the murder—in particular, evidence that Raynard Cummings
fired all of the shots—and in instructing the jury not only that a prior jury had
found defendant guilty of murdering Officer Verna by personal use of a firearm,
but also that it had been “conclusively proved by the jury in the first case that this
defendant did, in fact, shoot and kill Officer Verna” and that the jury was to
“disregard any statements . . . and . . . any evidence to the contrary during the
trial.” Having carefully reviewed the record, we conclude that the errors were
prejudicial and that the judgment of death should again be reversed and the cause
remanded for a second retrial on the issue of penalty. (See People v. Terry (1964)
61 Cal.2d 137, 142-147, overruled on other grounds in People v. Laino (2004) 32
Cal.4th 878, 893.)
Officer Paul Verna was shot and killed by defendant and Raynard
Cummings after Verna had stopped the car in which they were passengers for a
traffic infraction in the Lake View Terrace district of the San Fernando Valley
region of Los Angeles. The prosecution’s theory was that defendant and Raynard
Cummings, passing one gun between them, shot and killed Verna so as to avoid
arrest for a series of robberies that the two men, along with Pamela Cummings
(who was then Raynard’s wife) and Robin Anderson (who was then defendant’s
wife), had committed in Los Angeles County in the weeks preceding the traffic
Evidence Concerning the Robberies Preceding the Murder
The two couples began socializing early in 1983. Pamela Cummings, who
had met Raynard Cummings in high school and subsequently wrote letters to him
while he was in prison in Delaware, became his girlfriend upon his release on
parole in February 1983. Robin Anderson met defendant in March 1983, after his
release on parole, and was introduced to Pamela and Raynard a short time later.
The two couples had a double wedding in Las Vegas on May 12, 1983.
Neither defendant nor Raynard Cummings had a job. Their preferred
pastime was engaging in robberies, unusually brutal ones. Pamela often drove
them, in Robin’s green car, to the targeted business and acted as a lookout, and
Robin sometimes accompanied them. They regularly used a particular seating
arrangement in the car to avoid drawing attention to the fact that the Cummingses
were a mixed-race couple. Defendant, who had a light complexion (his mother
was White and his father was Black), sat in front with Pamela, who was White;
Raynard, who was Black and was noticeably darker than defendant, sat in the
The prosecution introduced evidence of four such robberies.
The first one occurred at Kenn Cleaners in Granada Hills. After closing
time on the evening of April 25, 1983, Raynard Cummings entered the shop with a
gun in his hand and ordered owner Hagop Parunyan and another employee, Lisa
Pina, to get on the ground and count to a thousand. Raynard took the money from
the cash register, hit Parunyan in the neck with the gun for not counting slowly
enough, and left. Meanwhile, another man outside the cleaners had stuck a gun
behind the ear of Parunyan’s brother-in-law, Shahan Somounjian, forced him
down to the ground, and stole his wallet. The man then used the gun to beat
Somounjian about the head several times, breaking Somounjian’s finger as
Somounjian attempted to use his hands to protect himself. Somounjian could not
identify his assailant, but a witness, Todd Husk, who spotted a woman waiting
inside a car and two men exiting the area near the cleaners, identified defendant as
one of those men. Husk’s friend, Troy Gann, identified the other man as Raynard
Cummings. Pamela Cummings confirmed that defendant and Raynard had
committed the robbery at the cleaners. Raynard had taken $200 to $300 from the
cash register, and defendant had hit a man over the head with a gun. Pamela had
acted as a lookout.
On the evening of May 13, 1983, defendant and Raynard Cummings
entered a recreational vehicle repair shop in Reseda. The shop was closed and the
owner, Richard Hallberg, was alone. Defendant demanded money from Hallberg
at gunpoint and hit him repeatedly over the head with a revolver. So did Raynard.
They hit Hallberg so hard the gun broke. Defendant stole a buck knife and about
$1,600. Hallberg suffered injuries to his face, ear, and hands. He identified
defendant in court but not in any lineups. Pamela confirmed that defendant and
Raynard committed this robbery.
On May 20, 1983, Raynard Cummings entered Desire Florists in
Chatsworth. He approached Carmen Rodriguez, the owner, and forced her into
her office with a knife. When defendant walked in, he told Rodriguez not to look
at him and struck her in the head with a gun. Defendant threatened to kill her if
she did not open the safe, but Rodriguez was having trouble remembering the
combination because of the blow to her head. She begged for more time,
explained there was nothing in the safe, and asked the men to take her jewelry and
the money from the cash register. Before leaving, Raynard instructed defendant to
shoot Rodriguez. Defendant ordered Rodriguez to get on the floor and said, “I
hate to do this to you.” Rodriguez begged him not to kill her. Defendant beat her
with his fists and with the handle of the gun before leaving the store. Rodriguez
suffered a concussion and received stitches over several parts of her head as well
as her finger. She also experienced deficiencies in her memory that caused her to
close her shop. Brett Sincock, who owned a nearby store in the shopping center,
saw the two men leave Desire Florists and get into the green car driven by Pamela
Cummings. Pamela testified that defendant and Raynard thought it was “funny”
that Rodriguez had attempted to resist.
On May 21, 1983, all four participated in a robbery at Artistic Mirror &
Bath in Tarzana. Pamela Cummings and Robin Anderson entered the store first,
around 5:00 p.m., asked what time the store closed, and left without buying
anything. They were casing the store, looking for security buttons and cameras.
Half an hour later, around closing time, defendant came to the back door of the
store and asked for “Epsom salts.” Jeremy Glick, an owner of the store, said he
had “bath salts” and let defendant inside. Defendant ordered Joyce Glick,
Jeremy’s mother and a co-owner, to the ground by placing a gun to the back of her
neck. Then Raynard Cummings entered the store, held a switchblade against
Jeremy’s neck, and forced him to the floor, too. After telling the Glicks several
times they would be killed if they said or did anything, the men went through
Joyce’s purse, where she had put the day’s receipts, and removed the money.
Defendant also took some jewelry from her person. Before the men left,
defendant told the Glicks to stay face down and count backwards from a hundred.
Pamela testified that defendant gave her a ring he had stolen during this episode,
although she had testified at the prior trial that Raynard had given her the ring.
Evidence Concerning the Murder of Officer Verna
On June 2, 1983, Officer Verna of the Los Angeles Police Department was
part of a motorcycle team assigned to traffic enforcement in the northeast quadrant
of the San Fernando Valley. Verna told Sergeant James Leiphardt that he was
going to enforce the stop sign at Gladstone Avenue and Van Nuys Boulevard.
Verna said he had grown up in that neighborhood and that his parents had moved
away only two years earlier. The last thing Leiphardt said to Verna was “Be
Nine-year-old Martina Ruelas saw Officer Verna that evening. She lived
on Hoyt Street near Gladstone Avenue. Sometimes Verna would stop to chat, and
she liked him. Around 5:30 p.m., he told her he was going to stop and issue a
ticket to a car coming down Gladstone from Van Nuys toward Hoyt Street. He
instructed Martina to stay where she was, inside the fence surrounding her home.
Verna turned on his red lights. The gray-and-black two-door Oldsmobile Cutlass
turned onto Hoyt Street and stopped.
The Cutlass was driven by Pamela Cummings. As usual, defendant was in
the passenger seat and Raynard Cummings was in the back seat. The car was
stolen and had stolen license plates. A week earlier in North Hollywood, Raynard,
acting alone, followed Linda Smith into her house after she had parked the car,
pointed a gun at her head, and took her car keys. Pamela subsequently “swapped”
license plates with another Cutlass in a mall parking lot. At the time of the stop,
the three were on their way to purchase some marijuana in the area. When Pamela
saw the officer, defendant told her to relax, it was just a ticket.
Despite defendant’s words, Pamela got out of the car to meet Officer Verna
because she was “afraid.” They were in a stolen car with a gun1 under the front
passenger seat, and Pamela did not have her driver’s license. Verna asked her for
her identification and registration. When she said that she did not have the
Earlier in the day, Raynard had used the gun to threaten his sister-in-law’s
boyfriend. Raynard had the gun in his possession most of the time.
registration, Verna went up to the car and peered inside. He came back to her and
asked who was in the car. Pamela answered that her husband was in back, and her
cousin was in front. When the officer went back to the car and bent down to talk
to the men, Pamela saw a gun barrel come around the headrest and then heard a
shot. Verna grabbed his shoulder and turned towards her. Pamela testified that
she could not see who was holding the gun, but the parties stipulated at the retrial
that Raynard Cummings had fired the first shot.
Pamela testified she saw defendant slide across the front seat and exit the
car through the driver’s side. He shot the officer in the back and angrily said,
“Take this, you motherfucker.” Officer Verna fell to his knees and seemed to be
reaching for his gun, but his holster was empty. Defendant stood over the officer,
fired a couple more times, and threw the gun down at the officer in an angry
manner. Defendant yelled at Pamela to get into the car. She did so and slid over
to the passenger side. Defendant got back in the car and drove down Hoyt Street,
away from Gladstone Avenue. When they realized that they had left the murder
weapon as well as Pamela’s identification, defendant turned around. Pamela
testified that defendant picked up one or both guns and possibly her check-cashing
card, which she had offered to the officer as identification. Defendant got back in
the car and continued down Hoyt Street to Gladstone Avenue.
Pamela testified that only seconds elapsed between the first and second
shots. Defendant was about three-to-five feet from Verna when he fired the
second shot, which went into Verna’s back, as did the next two. The last two
shots were fired when Verna was on the ground.
A number of people witnessed the shooting. Some of them testified at the
Robert Thompson was on a ladder, scraping old paint off the trim of his
Hoyt Street home, when he heard a police siren and saw a gray car come around
the corner from Gladstone Avenue and stop. Thompson saw two White people in
front (a woman and a man) and a Black man in the back. The woman, later
identified by Thompson as Pamela Cummings, promptly got out of the car and
talked to the officer. She came back to talk to the front passenger, apparently
about the vehicle’s registration, and gestured to the officer to signal that she did
not have it. After the officer reached in to remove the car keys, Thompson
resumed work on the house. Suddenly, he heard a sound that was unlike the echo
caused by his work on the gutter. He turned around and saw the officer backing
away from the driver’s side of the car, holding his chest. The man in the back seat
was pointing a gun at the officer with an arm extended out of the car.
Thompson quickly got down off the ladder and sought cover under the
yucca trees in his front yard. He saw the front seat passenger, who he had initially
thought to be White but who appeared on further inspection to be of mixed race,
standing up and pointing a .22-caliber revolver at the officer. Smoke was coming
from the weapon as the officer fell. The passenger then stood over the officer, feet
straddling the officer’s waist, and pointed the gun at the officer’s chest and fired.
Thompson went into his house to call the police.
On the night of the murder, Thompson told police that the Black man in the
back seat, wearing a brown short-sleeved shirt, forced open the car door,
continued to fire while exiting, and fired the last round at point-blank range.
Thompson did not identify defendant in a lineup four days after the murder and
instead identified two Black males with dark complexions.2 Before the grand jury,
Thompson testified that he did recognize defendant at the lineup—although
defendant had new scratches on his face (apparently sustained during his arrest)
and had shaved off his mustache—but explained that he had been unwilling to
make an identification because he did not want to be a witness.
Thompson said again that the medium-complexioned Black man in the back seat
got out of the car with the gun and fired at the officer. Thompson did not publicly
identify defendant as the passenger or the shooter until the preliminary hearing,
almost three months after the murder. Thompson also identified Pamela
Cummings as the driver and Raynard Cummings as the back-seat passenger. In an
interview with defense counsel prior to this retrial, Thompson returned to his
original statement that it was Raynard Cummings who had exited the car and fired
the shots. At the retrial, Thompson said he lied to defense counsel because he did
not want to talk to them. Thompson also said that he considered defendant to be a
“medium” shade of Black, although he had thought defendant was White before
he exited the car. Thompson testified that the murder had been haunting him for
17 years, that the case had changed him into a person he did not want to be, and
that this part of his life had been “ruined” by defendant and Raynard Cummings.
In the house next door to Thompson’s, Marsha Holt testified that she was in
a bedroom, talking to her mother, Celeste Holt, when she saw the officer follow
the car to a stop. The woman who was driving (later identified as Pamela
Cummings) got out of the car and, according to Marsha Holt, so did the tall, light-
skinned, mixed-race front passenger (later identified as defendant). The officer,
the driver, and the front passenger were talking, so Marsha Holt looked back at her
mother, and told her what was happening. Suddenly, Marsha heard a gunshot.
After a gap of two to 30 seconds, she heard more gunshots, one after another, and
the officer fell straight back. The officer reached for his gun and pulled it out of
his holster, but it dropped out of his hand and fell onto the street. Pamela jumped
back in the car, made a U-turn at the corner, and came back. Meanwhile,
defendant picked up the officer’s weapon and hopped in the car on the passenger
side. He pointed the gun at Marsha Holt and her cousin, Gail Beasley, as though
to warn them not to say anything.
Marsha Holt said she saw defendant get out of the passenger side of the car
and fire two shots, but she heard four or five shots in all. She also said that
defendant got out of the car before any shots were fired. She did not identify
anyone in a lineup as the shooter because defendant had shaved in the meantime
and had acquired a scar, but she realized it was him “later on.” She identified
defendant’s photograph before the grand jury and at the preliminary hearing and
identified Pamela Cummings and defendant in person at the preliminary hearing
and at both trials. She did not see the face of the man in the back seat, but she was
acquainted with Raynard Cummings, since his mother and her mother were good
Gail Beasley testified she had been in the kitchen of the same house, which
has a window looking onto the street, when the Cutlass was pulled over. Beasley
testified that the shooting began when the driver got back in the car after talking
with the officer. The front passenger (defendant), who was slim and had a light
complexion and a mustache, came around the front of the car and was shooting at
the officer. Beasley went inside the house and called 911. She told the police the
shooter was a light-skinned Black male, six feet tall, 170 pounds, with a thin
mustache and a short Jheri curl, and that he wore jeans or dark pants and a
burgundy or burnt orange short-sleeved shirt. Beasley felt intimidated by being
called a “snitch” by some people in the neighborhood and did not identify anyone
at the police lineup four nights later, but did subsequently tell a detective that
defendant was the shooter, although he had a scar on his face at the lineup that had
Dr. Paul Michel, an expert concerning visibility conditions at crime scenes,
testified that the line of sight and field of view from the bedroom was very limited
and that obstacles would have further confounded Marsha Holt’s view. He
testified that the effect of these conditions was to increase the ambiguity perceived
by the person making the observation.
not been there earlier. She identified defendant’s photograph before the grand jury
and identified defendant in person at the preliminary hearing and at both trials.
Beasley’s recollection differed in some ways from Marsha Holt’s. Holt
testified that she encountered Beasley after observing the shooting, on the way out
of the house. Beasley, however, testified that she went to the bedroom where Holt
and her mother were and informed them that an officer had been shot. Holt and
her mother responded, “What? What’s happening?,” and gave the impression that
they did not know what was going on.
Three members of the Martin family, who lived across the street from
Robert Thompson, also testified for the prosecution.
Hans Martin, who was 15 years old at the time, observed that Officer Verna
had made a traffic stop as he and his family returned from the supermarket. Hans
was in the kitchen when he heard gunfire. His brother Oscar, then 12 years old,
came in and announced that the officer had been shot. Hans ran to the front of the
house and saw defendant get out of the car, now heading in the opposite direction,
and remove the officer’s gun from his holster. Defendant got back in the car,
which drove off.
Sabrina Martin Medina, who was 14 at the time, also saw defendant
retrieve a weapon, but she said the gun was a few feet away from the officer.
Rosa Martin, the children’s mother, was also inside the house when she
heard gunfire and went to investigate after Oscar announced that the officer had
been shot. She too saw defendant pick up a gun from the street. Before defendant
got back in the car, he pointed the weapon at their house as though to say, “I know
who you are and I know where you live.” Rosa used the officer’s two-way radio
to call for help. While waiting at the police station, she described the man who
retrieved the gun as White. Oscar, however, said the man was Black, with a dark
complexion like their neighbor’s.
A police department field identification card dated June 2, 1983, recovered
from the scene bore Pamela Cummings’s name. Officer Verna’s gun holster was
Meanwhile, defendant and the Cummingses drove to Raynard’s aunt’s
house. Defendant took off his gray long-sleeved dress shirt; he had a white T-shirt
on underneath. Pamela changed clothes, too. Each man had taken a gun out of the
car. Defendant called Robin, his wife, to ask her to pick him up. Pamela and
Raynard went to Raynard’s mother’s house.
When defendant called Robin, he said that something had happened and he
seemed very excited. When she picked him up, he seemed very nervous. He
started to tell her what happened, then stopped. Later on, Pamela and Raynard
Cummings came by the apartment. Raynard was jumpy and nervous. According
to Pamela’s testimony, Raynard and defendant each claimed credit for and
reenacted the shooting. Raynard held out a gun and said, “I got him good. Pow,
pow, pow.” Defendant did the same thing with his hand. Robin, however,
testified that only Raynard reenacted the shooting and took credit for it; defendant
denied any involvement. Raynard explained that he would rather have killed a cop
than have a cop kill him. Robin also testified that Raynard seemed concerned that
she not call anyone and had Pamela follow her even when she stepped outside for
a cigarette. Pamela denied keeping watch over Robin or being concerned that
Robin would contact the police.
At some point, Robin drove Pamela to the Motel 6 where the Cummingses
had been staying so that Pamela could pick up some of her clothes. On the way
back to the apartment, Pamela asked Robin to pull the car over. Pamela called the
police from a pay phone and, without identifying herself, said she had been in the
car when the shooting of the officer occurred, along with defendant and one
Milton Cook. Pamela did not know Milton Cook personally, but defendant knew
him, and Pamela said they all had agreed to implicate him if they were ever
arrested. Cook, who was tall and dark-complexioned, was similar in height and
skin tone to Raynard Cummings.
Early the next morning, defendant and Raynard left in Robin’s car. Later
that day, Raynard called Pamela to say that they were in San Diego and instructed
Pamela and Robin to meet them there. The women got on a bus in North
Hollywood and headed south. Robin had a phone number they were to call once
they arrived. The police, meanwhile, had commenced surveillance of Pamela and
Robin that morning. Two Los Angeles Police Department detectives boarded the
bus in plain clothes at a stop in downtown Los Angeles and sat four seats behind
them. The detectives followed the women after they got off the bus in Oceanside,
used a pay phone in the bus terminal, walked to a residential area, and then hid in
some bushes for 15 to 20 minutes. When Pamela and Robin emerged from the
bushes—they were worried about being followed—they got into Robin’s car and
proceeded in a southerly direction. Defendant and Raynard Cummings were
crouched down in the back seat. The women stopped once at a convenience store
to ask directions to Phoenix.
Robin’s intent in going to Oceanside had been to get defendant away from
Raynard and have him turn himself in to the police. Once she got in the car,
however, she realized her plan was naïve.
While Pamela was driving on the highway, she saw an occupant in the car
behind them pass a walkie-talkie to another occupant. She was about to explain
what she had seen when a helicopter lit up the sky and police cars converged on
them and forced the car to a stop. Pamela and Robin were ordered out of the car;
to the surprise of the officers, defendant and Raynard were in the back of the car.
Defendant was lying down on the rear floorboard; Raynard was stretched out on
the back seat. Verna’s service revolver was found on the floorboard, where
defendant had been. Defendant also had a buck knife in his jacket; the knife had
been taken from Richard Hallberg during the robbery in Reseda. The arresting
officers noticed that defendant had an abrasion on his left cheek; he did not have it
when Pamela and Robin got in the car.
Following her arrest for murder, Pamela made two statements to police
placing defendant and Milton Cook at the scene. She claimed that Cook shot the
officer. At the retrial, Pamela conceded that she falsely implicated Cook in order
to protect Raynard, since Cook was similar in height and skin tone to her husband.
Cook had no involvement in this crime, however. The district attorney eventually
agreed to drop the murder charge against Pamela in exchange for her cooperation.
She then pleaded guilty to the lesser offense of being an accessory to murder and
to a couple of robberies and was not sentenced until after she testified at the first
trial. Robin, too, was convicted of being an accessory to murder and was
convicted also of one count of robbery.
The parties stipulated that Raynard Cummings fired the first shot, that two
of Raynard’s fingerprints were recovered from the inside grip of Officer Verna’s
service revolver, and that there was no latch or locking mechanism obstructing the
free movement of the back of the driver’s seat in the Cutlass that Pamela
Cummings was driving on the day of the murder. Pamela Cummings testified also
that the front seat had been moved forward so that she could reach the steering
The autopsy noted seven entrance wounds, but one was a reentry wound.
Only two of the bullets entered Officer Verna’s body from the front; the remainder
entered from the back. Two of the entry holes had gunpowder residue consistent
with a shot fired at close range. At least one of the wounds indicated that Verna’s
body was on the ground when the gun was fired. All six bullets that struck Verna
were fired from the same gun.
Victim Impact Evidence
Paul Verna’s parents, John and Edith Verna, testified about his life. When
Paul was growing up, the family lived on Gladstone Avenue, about three blocks
from where he was killed. Paul was active in scouting and became an Eagle
Scout. He also was a motorcycle enthusiast. After he graduated high school, he
joined the Air Force and then the Los Angeles Police Department. A few years
later, he joined the fire department. But he missed being a police officer and, after
a year, rejoined the police department. He was awarded the Medal of Valor in
1982, the police department’s highest honor for heroism and bravery, for entering
a burning building to rescue a couple of youngsters. He remained close to his
parents and to his sister, Susan Blandford. In fact, he had been at his parents’
home just hours before the murder to talk about a family fishing trip and to tell his
mother about a Father’s Day present he wanted to give John—a wrecked
motorcycle he had rebuilt.
Paul Verna married Sandy Jackson in 1971. They had two children, Bryce
Bryce Verna, Paul’s elder son, was only nine and a half years old when his
father was killed. Bryce testified about the experience of discovering that his
father had been killed and of growing up without his father. Bryce, like his father,
joined the Air Force; afterwards, he, too, became a police officer. Bryce has seen
many things in the department dedicated to his father.
Ryan Verna was only four years old when his father was killed. He was in
the process of becoming a police officer and was scheduled to graduate shortly
after the retrial. Ryan often was told that he looked like his father, which was
difficult for him to hear because he had so few memories of his father.
Bryce Yokomizo met Paul Verna when they each were six or seven years
old, and they became lifelong friends. Yokomizo’s family spent many happy
times with the Verna family, and Verna even named his son Bryce to honor
Other Evidence in Aggravation
Rosie Lampignano Wright dated defendant for a few months when she was
in high school. She broke up with him and knew he would be angry. One
morning in May 1976, when he called her over to talk and she refused to go, he hit
her two or three times in the face with his fist. She suffered a swollen lip and
some cuts and bruises on her arms from the bushes he had thrown her into after
Defendant was convicted of burglary in 1976.
In 1978, defendant dated and for a time lived with Jodi Lavalle, but got into
an argument with her and her father when her father came to help her move out.
Defendant threatened to kill Jodi and burn down her parents’ home. In the middle
of the night on April 26, 1978, while Jodi was sleeping on the couch in the living
room of her parents’ home, defendant threw a Molotov cocktail through the living
room window. It landed at the base of the couch and started a fire. Jodi suffered
first degree burns “just about everywhere” and second and third degree burns on
her feet and hands as well as scarring on her lips and chin and above her eye. Her
father suffered blistering on his feet. Defendant was convicted of arson.
On September 13, 1982, defendant, then a convicted felon, was found in
unlawful possession of a loaded firearm after police received a tip from an
informant that defendant was planning to rob a bank.
On March 12, 1984, when Pamela Cummings walked past defendant’s
holding cell, he threatened her, saying, “You bitch. I don’t care if I have to sniff
gas. I am going to get you. I don’t care how long it takes. You won’t be able to
hide. I am going to kill you.”
On April 27, 1984, while defendant was in the hallway between cells at the
county jail, he lit a torch he had devised out of a tightly rolled newspaper with
toilet paper at the end and shoved it into another inmate’s face.
In 1988, after defendant and Robin were divorced and defendant had
remarried, defendant called Robin and told her he was going to send her a letter
containing a “special message” that could be read when it was held up to a light.
(Certain words had been typed over repeatedly.) The letter frightened Robin and
she turned it over to her former parole officer. It read: “I plan to escape. Can you
help? I really need an over and under two-shot Derringer. [¶] I tell you how.
You can get me a package, canned goods. I hope to be happy with you and the
children. [¶] I must use Jan [his new wife] as long as I am here. My heart isn’t in
it, but I will deal with it. [¶] Say bye-bye if you understand.”
Defense Evidence Concerning the Circumstances of the Crime
At the penalty retrial, the defense was allowed to offer testimony
concerning the circumstances of the murder only from eyewitnesses who had
testified at the first trial.
Rose Marie Perez, who was a passenger in a car driving on Gladstone
Avenue, looked down Hoyt Street and saw Officer Verna falling to the ground.
The stopped car’s passenger door was open, and defendant was coming around the
car towards the officer. There did not appear to be anything in defendant’s hands,
although there might have been something Perez did not see.
Shequita Chamberlain, who was 15 or 16 at the time of the murder, was a
passenger in another car on Gladstone Avenue. She heard a sound like a
firecracker and saw Officer Verna start to fall. There was a tall, medium-dark-
complexioned Black male alongside the stopped car, wearing a dark short-sleeved
shirt. He may have had a mustache. She told the driver to turn around, and they
went to Hoyt Street to assist the officer. Chamberlain did not identify anyone at a
lineup at the police station a few days after the murder. The man she saw could
not have been defendant, inasmuch as defendant’s complexion was too light, but
she did testify that the man she saw had a complexion similar to Raynard’s.
The defense presented the prior trial testimony of Oscar Martin, who was
12 years old at the time of the murder and was living with his family on Hoyt
Street. Oscar saw Officer Verna preparing to issue a ticket. As Oscar watched
from the living room window, a man he later identified as Raynard Cummings got
out of the back seat on the driver’s side and shot the officer four times. Raynard
got back in the car and drove off. Oscar ran to the kitchen to tell his mother and
did not return to the window. Oscar did not recognize anyone at the lineup. He
initially marked (and then erased) defendant’s number in the lineup, but he was
copying from his mother’s card because he did not know what to do. At the police
station, when his mother said that the man she saw was White, he tried to explain
to her that he had seen the events from the beginning and that the shooter was
Black, but she would not listen. No one else in the family saw the shots fired.
The burn mark he saw on the shooter’s face was like the one on Raynard’s face
and unlike the mark on defendant’s face. Oscar did not see Raynard pass the gun
to anyone else or see anyone else with a gun.
Marsha Holt’s mother, Celeste Holt, whose prior grand jury testimony was
read to the jury, was in the back of the house and did not hear the gunshots. But
her niece, Gail Beasley, told her about the shooting, so she went to the front of the
house and looked outside. Celeste saw a man with a gun and a police officer on
the ground. The man with the gun had light skin, similar to defendant’s skin tone,
and had a Jheri curl and a white shirt. He got in the passenger side of the car,
which drove off. She did not see the man’s face. Mackey Como testified she was
out back, moving furniture, when she heard that an officer had been shot. Because
Como was a licensed vocational nurse, she went outside to attend to the officer.
After the ambulance took the body away, Mary Cummings, an acquaintance and
the mother of Raynard Cummings, walked into the yard and spoke with Como for
a few minutes.
Former Los Angeles Police Officer Eric Lindquist testified that he
interviewed Robert Thompson two or three hours after the shooting. Thompson
said that the rear passenger, a medium-to-dark-complexioned Black male, six feet
two or six feet three, with a thin build and wearing baggy jeans and a brown short-
sleeved shirt, exited the back seat of the car with a gun and was firing it as he
approached Officer Verna. Thompson also saw this man bend over as though
grabbing something from Verna’s waistband. Thompson then left to call the
Deborah Cantu, Pamela Cummings’s sister, testified that she received a
phone call from Pamela around 8:00 p.m. on the evening of the murder. Pamela
was crying and scared and said she and defendant had offered a ride to a man
named Milton Cook and were later stopped by the police. Pamela said she got out
of the car to talk to the officer, but the officer went back to the car to see whether
the passengers had any identification. Defendant said he did, but Cook pulled out
a gun and shot the officer. Defendant was so scared he jumped out onto the
ground; Pamela was so scared she ran back to retrieve her identification card.
Daniel Rose, a supervising investigator for the Los Angeles County Public
Defender, interviewed Thompson a few months before the retrial. Thompson
reiterated that after hearing the gunshot, he saw a dark-complexioned Black male
exit the vehicle through the door on the driver’s side, holding a smoking gun, and
that the man continued firing shots at the officer. He never saw the front
passenger, who appeared to be White, exit the vehicle. Thompson said he might
be confused as to the names of the people involved, but not as to what they did.
Milton kept firing, emptying the gun, and then grabbed the officer’s weapon.
Pamela said that Milton was a tall Black male with a medium complexion; she
hoped no one would mistake him for Raynard, who (she said) had been at his
mother’s house the whole time. Cantu did not learn that her sister was lying until
after Cook was released from custody.
Dr. Vincent Guinn, an expert in the detection of gunshot residue, estimated
the firing distance for each entry wound. He testified that the distance between the
gun and wound No. 6, which the parties stipulated was caused by the first shot,
was between four and 11 feet. The distance for wound No. 3 was around two and
one-half feet; for wound No. 1, a little over two feet; for wound No. 2, a little over
a foot; and for wound No. 4 and wound No. 5, one foot.
Dr. William Sherry, senior deputy medical examiner for the County of Los
Angeles and an expert in the field of medical examination and evaluation of
autopsy reports, testified that all but one of the gunshot wounds were fatal. He
also identified which wounds were to the front of the body and which to the back
and also opined on the trajectory of the bullet causing each wound.
Dr. Martin Fackler, a consultant in wound ballistics, described the likely
sequence of the bullet wounds. He testified that if wound No. 6 was first, it was
followed by either wound No. 1 or No. 3, and then by Nos. 2, 4, and 5. Because
Verna was likely standing when Nos. 1 and 3 occurred and because No. 2 severed
Verna’s spinal cord, Dr. Fackler opined that Verna was still standing at the time
the bullet causing wound No. 2 was fired. The last two bullets, causing wounds
No. 4 and No. 5, must have been fired when Verna was already on the ground.
Other Defense Evidence
In 1995, Rosie Lampignano Wright told a defense investigator that the
1976 assault was the only time defendant ever laid a hand on her. Wright was
shocked by the news that defendant was involved in Officer Verna’s murder; it
seemed totally out of character for him.
LaTwon Weaver, who met defendant when both were imprisoned on death
row at San Quentin, testified that defendant had been a friend and brother to him,
that defendant had given up his limited phone time to allow Weaver to talk to his
family, and that he and defendant were both Christians who believed in God.
LaTwon’s father, the Reverend Ray Weaver, had spent time with defendant in
prison at prayer sessions and believed that defendant was sincere in his religious
Mark Margulies, who knew defendant in elementary school, rekindled their
friendship when he learned defendant was in prison. Based on their monthly visits
when defendant was at San Quentin, Margulies found that defendant was like a
brother and that defendant acted as an uncle to Margulies’s kids. The two had a
common bond in reading the Bible. Defendant told Margulies that the other man
in the car shot Officer Verna.
Margulies, who is a cameraman in television and movies, discovered that
defendant is a writer and that defendant had written a script, never produced, for
the television show Nash Bridges. Defendant then wrote a screenplay called A
Children’s Story, which was submitted to the Writer’s Workshop, an affiliate of
the American Film Institute, and won an award. The actor Ed Asner, who had
never met or spoken with defendant but who was the emcee at the awards
ceremony, was highly impressed with the screenplay, which was a story about
physically and mentally challenged children learning to trust, depend on, and
survive with each other on a camping trip under adverse conditions.
Lou Margulies, Mark’s wife, was initially skeptical about her husband’s
contacts with defendant, but testified that defendant had undergone an evolution in
prison and that his was a life worth saving.
Gregory Hadley, an electrical engineer, met defendant through his friends
the Margulieses, because he had been looking for someone to write a screenplay
based on an idea he had. In less than a month defendant prepared a screenplay
that was 90 percent of what Hadley was looking for. Hadley met monthly with
defendant over an 18-month period and found that defendant had a bright, active,
and creative mind. Defendant expressed remorse for the robberies, but said he did
not commit all of them.
Paul Harris, minister of the Church of the Nazarene in Novato (where
defendant’s current wife attends church), met defendant at San Quentin and found
him to be thoughtful, intelligent, and creative, with a hunger for life. Harris
believed defendant could have a positive impact on people.
Dr. Stephen Horwitz, a psychiatrist who worked part time at the parole
department, had interviewed defendant in 1983 about the arson at the Lavalle
residence. Defendant admitted his culpability but appeared to have no remorse.
Indeed, defendant said that the informant who had recently reported him for a
parole violation was the same informant who had reported the arson. Defendant
wanted to kill this man. According to Dr. Horwitz, defendant claimed “this was
the proper action to take for someone who had done him wrong.” Defendant also
claimed he had committed a series of arsons beginning at age 18 or 19, generally
for purposes of revenge. Defendant showed no remorse for these actions, either.
The Reverend Earl Smith, a chaplain at San Quentin, believed that
defendant had sincerely embraced religion and said defendant was considered a
leader in his lay prison ministry. Defendant has consistently denied shooting
Defendant contends the trial court violated his right to present a defense
under state and federal law, his right to introduce relevant mitigating evidence
under state and federal law, his right to a fair and reliable penalty trial under state
and federal law, and the state and federal prohibition on ex post facto laws, by
preventing him from introducing testimony from eyewitnesses to the murder and
other evidence designed to show that he did not shoot Officer Verna. Under the
authority of People v. Terry, supra, 61 Cal.2d 137, 141-147, we conclude that the
trial court’s evidentiary rulings violated Penal Code section 190.3 and that the
error, exacerbated by the trial court’s admonition to the jury that defendant had
been “conclusively proven” to be the shooter and to disregard any statement or
evidence to the contrary, was prejudicial.
A. Proceedings on Retrial
Prior to the penalty retrial, after the parties had stipulated that Raynard
Cummings was unavailable as a witness, a dispute arose as to the admissibility of
four of Raynard’s out-of-court statements admitting that he had been the sole
shooter: (1) on July 27, 1984, Raynard said to Deputy Sheriff Michael McMullen,
“Hey man I’m no ghost. The only ghost I know is Verna. I put six in him. He
took six of mine. Hope to see you all in the street, and I will put six in you like I
did Verna”; (2) on October 2, 1984, he said to Deputy Sheriff William McGuiness,
“Yeah, well, I put two in the front of the motherfucker, and he wouldn’t have got
three in the back if he hadn’t turned and ran. Coward punk-ass motherfucker”; (3)
in June 1983, he told fellow inmate Gilbert Gutierrez that “[a]s the officer started
[to] back up, he said he then came out of the car through the driver’s side and he
fired two more times at the officer, striking him in the back. He said at that point
he went up to the officer and the officer fell on his face and he turned over and he
shot him again. He emptied out the gun, told him, ‘there’s your fucking I.D.’ ”;
and (4) on unspecified occasions, he frequently bragged to fellow inmate Ricardo
Phillips about shooting the officer “and laughed about what a dumb idea that the
prosecution came up with regarding the passing of the gun.” Although the People
had themselves offered the first and third statements at the original trial (see
People v. Cummings, supra, 4 Cal.4th at pp. 1264-1265), the People objected at
the retrial that all four of Raynard’s statements were irrelevant. The People relied
on In re Gay, supra, 19 Cal.4th 771, where we observed that certain evidence
impeaching a prosecution witness (Marsha Holt) who had testified at the guilt
phase trial would not have been admissible for the first time at the penalty phase
trial before the same jury. (Id. at pp. 813-814.) Defendant argued that,
notwithstanding In re Gay, the rule concerning the admissibility of penalty phase
evidence is “[a]bsolutely” different where, as here, there is a penalty retrial before
a jury that did not hear the guilt phase evidence, citing People v. Terry, supra, 61
Cal.2d 137. Defendant further explained that Raynard’s statements were offered
to support a penalty phase defense of lingering doubt, not as evidence of
reasonable doubt and not as an attempt to relitigate the prior jury’s verdict.
The trial court, while expressing “no doubt” that Raynard Cummings’s
statements qualified as declarations against interest (Evid. Code, § 1230),
nonetheless excluded the statements as irrelevant. The court agreed “that a
defendant in a penalty phase retrial is entitled to present evidence to the jury that
would establish some residual doubt, what you call lingering doubt. But that’s an
abstract concept. [¶] I think what you have to look at are the particular facts of a
case. [¶] In this case, the only theory upon which the jury could have found
defendant Gay guilty was on a theory that he, personally using a firearm, shot the
officer. . . . [¶] There is just no way to reconcile the proffered evidence that Gay
is not the shooter with the jury’s factual finding and guilt finding of Gay in the
first trial. There is just no way to do it.”
The trial court relied on the same rationale to exclude testimony from
Kathy Pezdek, an expert on eyewitness identification. The defense had proffered
her testimony to assist the jury in understanding the inconsistencies in the
identifications made by Robert Thompson and other prosecution witnesses. The
trial court further excluded the evidence under Evidence Code section 352 because
it would involve an undue consumption of time and confuse the issues.
In opening statement, the district attorney identified “the circumstances of
the murder” as one of the three primary factors in aggravation. Defense counsel
agreed that the circumstances of the murder were important and stated his intent
“to demonstrate exactly the way in which Officer Verna was murdered” and his
belief that the evidence would show that defendant could not have shot and did not
shoot Officer Verna. Immediately following the defense opening statement, the
court declared that the defense had violated its prior ruling barring any challenge
to the findings made by the jury at the earlier trial and announced its intent to
instruct the jury to disregard any allegation that defendant was not the shooter and
direct the jury instead to “conclusively assume and presume and accept the fact
that your client did shoot and kill the officer.” In open court, the trial judge told
the jury that it was taking judicial notice of the verdict form in the prior trial—
meaning that “it’s conclusively proven” and is “a fact that cannot be disputed”—
and read the verdict form. Over defense objection, the court then instructed the
jury as follows: “Now, further, any statement by the defense that you just heard in
the opening statement to the effect that Kenneth Earl Gay did not personally shoot
Officer Verna, you will disregard it. [¶] It’s been conclusively proved by the jury
in the first case that this defendant did, in fact, shoot and kill Officer Verna. [¶]
So you will disregard any statements they made in opening statement, and you will
not be hearing any evidence to the contrary during the trial.” The defense moved
for a mistrial, protesting that this instruction foreclosed the defense from arguing
lingering doubt, but the motion was denied. The defense renewed its mistrial
motion three more times, but it was denied on each occasion.
As the trial proceeded, the prosecution announced that, despite the trial
court’s ruling, it would not object to testimony that defendant was not the shooter,
provided that such testimony came from witnesses who had testified at the guilt
phase of the prior trial. Thus, the People did not object to testimony from Rose
Marie Perez, Shequita Chamberlain, Oscar Martin, Celeste Holt, or former Police
Officer Eric Lindquist. The People did, however, object to—and the trial court
excluded—testimony from eyewitnesses Irma Esparza, Walter Roberts, and Inijio
“Choppy” Rodriguez, as well as additional testimony from Martina Ruelas, on the
ground that the sole purpose for offering such testimony was to show that
someone else was the shooter, which was not a relevant issue at the retrial.
The defense made offers of proof for each of the witnesses the trial court
Irma Esparza, who was 14 years old at the time of the murder, would have
testified that she was in front of her house on Hoyt Street, watching her brother
and his friends play football, when she heard a gunshot. She saw a tall Black male
standing over the officer, who was on the ground. The complexion of the man she
saw resembled Raynard Cummings’s complexion and did not resemble
defendant’s; she did not consider defendant to be Black. During an interview with
police the day after the shooting, Esparza said that a dark-skinned Black male shot
the officer and that a light-skinned passenger retrieved the gun.
Esparza’s brother, Inijio “Choppy” Rodriguez, who was playing football at
the time at the time of the murder, would have testified that he observed the traffic
stop and then heard what he thought were fireworks coming from the area of the
stopped car. He saw the officer on the ground and a medium-dark-complexioned
Black male and a woman outside the vehicle.
Walter Roberts, who was 10 or 11 years old at the time and was also
playing football, would have testified that he heard gunfire and saw a medium-
dark-complexioned Black male exit the vehicle from the driver’s side and fire two
rounds into the officer, who was on the ground. A woman retrieved a gun from
the officer’s holster and went back into the car.
Martina Ruelas, who saw the traffic stop from the front yard of her home at
Hoyt Street and Gladstone Avenue and who testified for the prosecution at the
retrial, also would have described the shooter as a medium-complexioned Black
The defense also proposed to call Dr. Kenneth Solomon, an expert in crime
and accident reconstruction and biomechanics, to testify concerning the speed and
ease of exit out of the driver’s side door for a person who was in the rear seat (like
Raynard Cummings) and for a person who was in the front passenger seat (like
defendant). Dr. Solomon was of the opinion that although defendant could not
have performed the shooting as described by the eyewitnesses, Raynard could
easily have exited the vehicle in the time that elapsed between the first and second
shots. The trial court excluded this testimony as irrelevant and as not a proper
subject for expert testimony.
Finally, the defense made an offer of proof of the defendant’s testimony.
Defendant would have testified that Raynard Cummings fired all six shots and that
he himself did no more than open the passenger door and take a few steps to the
rear of the car. Although the People had objected prior to the retrial that defendant
could not testify inconsistently with the prior jury’s verdict, the People ultimately
withdrew their objection. The defense chose not to put defendant on the stand,
however, because of the court’s prior instruction to the jury that defendant’s role
as the shooter had been “conclusively proved,” the court’s admonition to the jury
to disregard any statement that defendant was not the shooter, and the court’s
statement that the jurors would not be hearing any evidence that defendant was not
the shooter. Although the trial court told counsel it would “revisit” the
instructions already given if defendant were to testify, the court refused to
announce, in advance, what changes might be made: “I’m not saying how I would
reconsider them, but I would reconsider them.” When defense counsel asked
whether the court would also revisit its rulings excluding testimony from the
eyewitnesses who could corroborate defendant’s account, the court said, “I’m not
saying I will; I’m not saying I won’t.” In light of the uncertainty as to whether the
jury would be permitted to consider defendant’s testimony and, if so, whether the
jury would be able to hear from corroborating witnesses, defendant, following
counsel’s recommendation, declined to take the stand.
Following closing argument, the jury was instructed on lingering doubt as
follows: “It is appropriate for a juror to consider in mitigation any lingering doubt
he or she may have concerning defendant’s guilt. Lingering or residual doubt is
defined as that state of mind between beyond a reasonable doubt and beyond all
B. Evidence That Defendant Was Not the Shooter Was Admissible at
the Penalty Retrial Under Penal Code Section 190.3 as a Circumstance of the
Defendant contends that the evidence suggesting he was not the shooter
was relevant and admissible at his penalty retrial as a “matter relevant to . . .
mitigation, and sentence,” such as “the nature and circumstances of the present
offense.” (Pen. Code, § 190.3.) He contends further that the jury, in determining
the appropriate penalty, could properly have considered the excluded evidence
under section 190.3, factor (a), which provides for consideration of “[t]he
circumstances of the crime of which the defendant was convicted in the present
proceeding”; section 190.3, factor (j), which provides for consideration of
“[w]hether or not the defendant was an accomplice to the offense and his
participation in the commission of the offense was relatively minor”; and section
190.3, factor (k), which provides for consideration of “[a]ny other circumstance
which extenuates the gravity of the crime even though it is not a legal excuse for
The trial court was under the impression that a defendant at a penalty retrial
could not present evidence that was inconsistent with the verdict reached in the
guilt phase. In light of the jury’s finding that defendant here personally used a
firearm in the commission of the murder, the court reasoned that the jury
necessarily found that defendant was the shooter. Accordingly, the court
concluded that any evidence to the contrary was irrelevant and inadmissible at this
penalty retrial. This was error.
The controlling authority is People v. Terry, supra, 61 Cal.2d 137, which
(like the present case) involved an appeal from a penalty retrial. Terry had been
convicted in the prior trial of first degree murder on a theory that the killing
occurred “in the commission of a robbery or to prevent an arrest for such an
offense, with intent to so evade arrest.” (People v. Terry (1962) 57 Cal.2d 538,
564.) At the penalty retrial, Terry sought, unsuccessfully, to offer evidence that he
had not been at the scene of the robberies and was innocent of them. He was also
barred from offering evidence that the discharge of the gun that resulted in the
death of the officer was an accident. Terry would have testified that the shooting
occurred when the officer demanded to know what was wrapped up in a sweater in
his hands and lunged at Terry, “precipitating as a reflex action defendant’s
discharge of the gun.” (People v. Terry, supra, 61 Cal.2d at p. 140.)
In reversing the judgment and ordering a third penalty trial, we declared
that the text of Penal Code former section 190.1, which sanctioned “the
presentation of evidence as to ‘the circumstances surrounding the crime . . . and of
any facts in . . . mitigation of the penalty,’ ” encompassed evidence relating to a
“defendant’s version of such circumstances surrounding the crime or of his
contentions as to the principal events of the instant case in mitigation of the
penalty.” (People v. Terry, supra, 61 Cal.2d at p. 146 (Terry).) Our decision,
which was the first in which we recognized the theory of lingering doubt as a
mitigating factor (see People v. Johnson (1992) 3 Cal.4th 1183, 1259 (conc. opn.
of Mosk, J.)), further explained: “Indeed, the nature of the jury’s function in
fixing punishment underscores the importance of permitting to the defendant the
opportunity of presenting his claim of innocence. The jury’s task, like the
historian’s, must be to discover and evaluate events that have faded into the past,
and no human mind can perform that function with certainty. Judges and juries
must time and again reach decisions that are not free from doubt; only the most
fatuous would claim the adjudication of guilt to be infallible. The lingering doubts
of jurors in the guilt phase may well cast their shadows into the penalty phase and
in some measure affect the nature of the punishment.” (Terry, supra, 61 Cal.2d at
p. 146.) “If the same jury determines both guilt and penalty, the introduction of
evidence as to defendant’s asserted innocence is unnecessary on the penalty phase
because the jury will have heard that evidence in the guilt phase. If, however,
such evidence is excluded from the penalty phase, the second jury necessarily will
deliberate in some ignorance of the total issue. [¶] . . . [¶] The purpose of the
penalty trial is to bring within its ambit factors such as these.” (Ibid.)
The People attempt to distinguish Terry, but their efforts are unconvincing.
The People claim first that “[u]nder the current death penalty law, a trial court has
discretion to exclude irrelevant evidence at the penalty phase.” But the same was
true under former versions of Penal Code section 190.1. (See, e.g., People v. Hill
(1967) 66 Cal.2d 536, 569.) In fact, Terry noted three restrictions on the subject
matter of a penalty trial under the statute then in effect: the evidence “must not be
incompetent” (Terry, supra, 61 Cal.2d at p. 144, fn. omitted), the evidence “must
not be irrelevant” (ibid.) or lack “ ‘probative value’ ” (id. at p. 145, fn. 5), and the
evidence “must not be directed solely to an attack upon the legality of the prior
adjudication.” (Id. at p. 145.)
The People point out, correctly, that the prior death penalty law, including
Penal Code former section 190.1, was declared unconstitutional in 1972 (People v.
Anderson (1972) 6 Cal.3d 628) and was eventually replaced by the current
statutory scheme, which provides constitutionally adequate guidance for the
sentencer’s discretion. (People v. Cox (1991) 53 Cal.3d 618, 678.) But even
though Penal Code former section 190.1 was repealed, section 190.3 repeats the
substance of the former section insofar as the admissibility of this type of
mitigating evidence is concerned. As stated above, Terry relied on the portion of
Penal Code former section 190.1 that authorized the admission of evidence as to
“ ‘the circumstances surrounding the crime . . . and of any facts in . . . mitigation
of the penalty.’ ” (Terry, supra, 61 Cal.2d at p. 146.) Current Penal Code section
190.3 similarly authorizes the admission of evidence “as to any matter relevant to .
. . mitigation, and sentence including, but not limited to, the nature and
circumstances of the present offense” (Pen. Code, § 190.3), and a defendant may
rely on such evidence to “urge his possible innocence to the jury as a factor in
mitigation.” (People v. Johnson, supra, 3 Cal.4th at p. 1252; see also People v.
Blair (2005) 36 Cal.4th 686, 749 [“The ‘circumstances of the crime’ as used in
section 190.3, factor (a), ‘does not mean merely the immediate temporal and
spatial circumstances of the crime. Rather it extends to “[t]hat which surrounds
materially, morally, or logically” the crime’ ”].) Indeed, we have observed that
the “rationale” of Terry, which “Justice Tobriner eloquently expressed” (and
which is quoted, ante, at p. 30), “obtains to this day.” (People v. Cox, supra, 53
Cal.3d at p. 677; see also People v. Hawkins (1995) 10 Cal.4th 920, 966-967
[“residual doubt about a defendant’s guilt is something that juries may consider at
the penalty phase under California law, and a trial court errs if it excludes
evidence material to this issue,” citing Terry]; People v. Johnson, supra, 3 Cal.4th
at p. 1259 (conc. opn. of Mosk, J.) [“In the almost 30 years that have passed since
we decided Terry, we have firmly adhered to its teaching”].)
The People contend next that to the extent Terry concluded that evidence of
innocence was one of the “circumstances” of the offense, it has been repudiated by
subsequent United States Supreme Court decisions. It is true, as we have
previously observed, that “[a] capital defendant has no federal constitutional right
to have the jury consider lingering doubt in choosing the appropriate penalty.”
(People v. Stitely (2005) 35 Cal.4th 514, 566; see also Oregon v. Guzek (2006) 546
U.S. 517, 525-526.) But Terry did not purport to base its holding or analysis on
any constitutional right, state or federal; rather, it was our death penalty statute
that authorized the admission of evidence of innocence at a penalty retrial—and,
although the statute has since been revised, the rule “obtains to this day.” (People
v. Cox, supra, 53 Cal.3d at p. 677.)
The various state cases cited by the People likewise do not undermine
Terry. In People v. Zapien (1993) 4 Cal.4th 929, the defendant attempted to
introduce evidence of a plea bargain offered by the prosecution but rejected by the
defendant and evidence of prosecutorial misconduct in interviewing a potential
witness who was not called to testify. (Id. at p. 989.) We upheld the trial court’s
determination that the proffered evidence was not relevant to any issue,
emphasizing that a defendant has no right to “introduce evidence, not otherwise
admissible at the penalty phase, for the purpose of creating a doubt as to the
defendant’s guilt.” (Ibid., italics added; see also People v. Blair, supra, 36 Cal.4th
at p. 750.) In People v. Miller (1990) 50 Cal.3d 954, we upheld the exclusion of
statements made by the attempted murder victim under hypnosis several months
after the crime. (Id. at p. 1005.) The trial court had already determined that the
statements were unreliable and hence inadmissible at the guilt phase—a ruling that
Miller did not challenge—and made the same ruling at the penalty phase. (Ibid.)
We distinguished Terry on the ground that the penalty phase jury there “had not
been present at the guilt phase of the trial” and was “not allowed to consider
evidence which had been admissible at the guilt phase.” (Id. at p. 1006, fn. 21; see
also People v. Nye (1969) 71 Cal.2d 356, 370.) And in People v. Champion
(1995) 9 Cal.4th 879, we upheld the exclusion of hearsay evidence that Champion
was not guilty of the murders. (Id. at p. 938.) Each of these cases illustrates the
well-settled principle, recognized in Terry itself, that evidence that is incompetent
or irrelevant is not admissible at the penalty phase. (Terry, supra, 61 Cal.2d at pp.
144-145; see also People v. Blair, supra, 36 Cal.4th at p. 750 [“evidence proffered
on the issue of lingering doubt may be excluded because the evidence in question
is otherwise inadmissible as hearsay or is unreliable”].) None calls into question
what “ ‘is certainly the rule that if the evidence would have been admissible on the
trial of the guilt issue, it is admissible on the trial aimed at fixing the penalty.’ ”
(Terry, supra, 61 Cal.2d at p. 143, fn. 1; see also People v. Blair, supra, 36 Cal.4th
at p. 749.)
Finally, the People claim that we impliedly overruled Terry in In re Gay,
supra, 19 Cal.4th 771. In re Gay addressed a challenge to the competency of
counsel at the original penalty phase trial. In the course of our analysis, we
addressed and rejected defendant’s claim that counsel had been deficient in failing
to offer testimony from Don Anderson, who “ ‘might have testified in the penalty
phase portion of Petitioner’s trial that witness Marsha Holt stated to him that she
had not, in fact, seen the murder as she had earlier testified to in the guilt portion
of the trial.’ ” (Id. at p. 813.) We found that Anderson’s testimony would not
have been admissible at the penalty phase and, in particular, that “the defendant
may not retry the guilt phase of the trial in an effort to create such a [lingering]
doubt.” (Id. at p. 814.) In re Gay, then, involved the admissibility of evidence at a
penalty phase trial before the same jury that determined guilt. It did not consider
the scope of admissible evidence when, as here and in Terry, there is a retrial of
the penalty. (Cf. People v. Miller, supra, 50 Cal.3d at p. 1006, fn. 21.)5
Our holding that evidence of the circumstances of the offense, including
evidence creating a lingering doubt as to the defendant’s guilt of the offense, is
admissible at a penalty retrial under Penal Code section 190.3 is in accord with
other jurisdictions that, like California, have recognized the legitimacy of a
lingering-doubt defense at the penalty phase of a capital trial.
In Blankenship v. State (Ga. 1983) 308 S.E.2d 369, for example, the
Georgia Supreme Court reversed a judgment of death and remanded for a third
penalty trial because the trial court had excluded evidence that a third party may
have accompanied the defendant to the victim’s apartment and that the third party
was responsible for the rape and beating that resulted in the victim’s death. The
trial court, like the trial court here, “reasoned that since the defendant had been
convicted of rape and murder by a previous jury, the circumstances of the offense
and whether someone else had been involved were matters irrelevant to this jury’s
decision.” (Id. at p. 371.) The Georgia Supreme Court disagreed: “When the
sentencing phase of a death penalty case is retried by a jury other than the one
Our broad statement in In re Gay that “[e]vidence intended to create a
reasonable doubt as to the defendant’s guilt is not relevant to the circumstances of
the offense or the defendant’s character and record” (In re Gay, supra, 19 Cal.4th
at p. 814), which was not supported by citation to any authority, seems to be in
tension with other of our decisions concerning lingering doubt. Because defendant
does not challenge the correctness of this dicta as applied to a penalty phase trial
before the same jury that determined guilt—and because this case does not present
such a scenario—we have no cause to resolve the tension here.
which determined guilt, evidence presented by the defense, as well as evidence
presented by the state, may not be excluded on the ground that it would only ‘go to
the guilt or innocence of the defendant.’ In essence, although the resentencing
trial will have no effect on any previous convictions, the parties are entitled to
offer evidence relating to circumstances of the crime.” (Ibid.; see also Alderman
v. State (Ga. 1985) 327 S.E.2d 168, 173 [“When a case is retried as to sentence,
both the state and the defendant are entitled to offer evidence on the issue of guilt
or innocence, not because the validity of the conviction is at issue, but because the
jury needs to examine the circumstances of the offense (as well as any aspect of
the defendant’s character or prior record) in order to decide intelligently the
question of punishment”].) Indeed, “[i]t may have particular importance where, as
here, the case is being retried as to sentence and the jury is hearing for the first
time, at the sentencing phase of the trial, evidence relating to the circumstances of
the offense.” (Romine v. State (Ga. 1986) 350 S.E.2d 446, 453.)
In State v. Stewart (1986) 288 S.C. 232 [341 S.E.2d 789], the South
Carolina Supreme Court reversed a death judgment and remanded for a third
penalty trial because the trial court had excluded evidence of the defendant’s alibi
as inconsistent with the jury’s verdict of guilt. The South Carolina Supreme Court
declared that “[i]n a resentencing hearing, each side has the right to put into
evidence anything that is properly put into evidence during the guilt or sentencing
phase of the previous trial.” (Id., 288 S.C. at p. 235.) “The bifurcated structure of
a capital proceeding should not be used to prevent guilt phase evidence from being
considered in the penalty phase. Since the state’s evidence of guilt is admissible at
the resentencing hearing, basic fairness requires that the appellant’s evidence of
innocence be admitted as well.” (Id. at pp. 235-236; cf. People v. Blair, supra, 36
Cal.4th at pp. 749-751.)
Similarly, in State v. Teague (Tenn. 1995) 897 S.W.2d 248 (Teague), the
Tennessee Supreme Court accepted an interlocutory appeal during a third penalty
trial concerning an evidentiary ruling that would have barred the defendant from
introducing evidence of his innocence of the murder of which he had been
convicted. (Id. at pp. 249-250.) The court reviewed our decision in Terry as well
as decisions from the Supreme Courts of Georgia and South Carolina and held that
a defendant had the right at a penalty retrial to present “evidence relating to the
circumstances of the crime or the aggravating or mitigating circumstances,
including evidence which may mitigate his culpability. Evidence otherwise
admissible under the pleadings and applicable rules of evidence, is not rendered
inadmissible because it may show that the defendant did not kill the victim, so
long as it is probative on the issue of the defendant’s punishment.” (Teague,
supra, 897 S.W.2d at p. 256; see also State v. Hartman (Tenn. 2001) 42 S.W.3d
Teague, like Terry, cautioned that a defendant may not “relitigate” the guilt
verdict. (Compare Teague, supra, 897 S.W.2d at p. 252 with Terry, supra, 61
Cal.2d at p. 145.) But, as both opinions make plain, this means simply that a
defendant may not contest “the legality of the prior adjudication” (Terry, supra, at
p. 145), such that “evidence related only to the legal issue of guilt or innocence . . .
and . . . not . . . to the circumstances of the crime or aggravating or mitigating
circumstances . . . was not admissible.” (Teague, supra, 897 S.W.2d at p. 252;
accord, People v. Haskett (1982) 30 Cal.3d 841, 866.) “[T]hat the defendant
cannot relitigate the issue of guilt or innocence does not preclude the admission
of evidence relating to the circumstances of the crime or the aggravating or
mitigating circumstances, including evidence which may mitigate a defendant’s
culpability by showing that he actually did not kill the victim. The test for
admissibility is not whether the evidence tends to prove the defendant did not
commit the crime, but, whether it relates to the circumstances of the crime or the
aggravating or mitigating circumstances.” (Teague, supra, 897 S.W.2d at p. 252.)
Because Raynard Cummings’s admissions that he was the only shooter and the
corroborating testimony of the eyewitnesses proffered by defendant related to the
circumstances of the crime, we find that the trial court abused its discretion in
excluding this evidence as irrelevant at the penalty retrial.
C. The Exclusion of the Evidence Was Prejudicial
Error in admitting or excluding evidence at the penalty phase of a capital
trial is reversible if there is a reasonable possibility it affected the verdict. (People
v. Lancaster (2007) 41 Cal.4th 50, 94; People v. Guerra (2006) 37 Cal.4th 1067,
1144-1145.) Under the particular circumstances of this case, we find that the error
There can be no dispute that the identity of the shooter was the heart of
defendant’s penalty phase defense. Although the trial court’s evidentiary rulings
did not entirely preclude defendant from advancing this defense, those rulings
surely crippled it. The defense was allowed to present only four eyewitnesses, two
of whom—Rose Marie Perez and Shequita Chamberlain—were not even on Hoyt
Street when the shooting began. They were passengers in cars on Gladstone
Avenue.6 A third witness, Celeste Holt, said she saw a man with a gun who
resembled defendant get into the car after the shooting had stopped. Because her
grand jury testimony was simply read to the jury, neither side was able to examine
her about her observations. But her testimony did little to advance the defense
theory, as the defense never disputed that defendant had gotten out of the car to
retrieve a weapon after the shooting.
Chamberlain, furthermore, had been diagnosed with an anxiety disorder
that affected her short-term and long-term memory.
In short, the trial court’s rulings effectively limited the defense to a single
eyewitness who had been present on Hoyt Street from the beginning of the
incident, Oscar Martin (whose prior trial testimony was read to the jury), and
excluded the defense from presenting testimony from the four other
eyewitnesses—Irma Esparza, Inijio “Choppy” Rodriguez, Walter Roberts, and
Martina Ruelas—who were also present and who would have described the
shooter’s complexion as inconsistent with defendant’s but consistent with Raynard
Cummings’s. Esparza, in particular, would have testified that the man with
Raynard’s complexion shot the officer and that a lighter-skinned male
subsequently retrieved the gun, which could have explained why Rosa, Sabrina,
and Hans Martin (who looked outside only after the shooting had ended) identified
defendant as the man they saw and why Oscar Martin (who was the only Martin to
see the shooting) identified Raynard Cummings as the shooter. These additional
witnesses would have substantially bolstered the defense theory of lingering
Moreover, although the defense was permitted to offer isolated pieces of a
circumstantial theory that Pamela Cummings was lying to cover up her husband’s
involvement and was attempting to shift the blame to defendant instead—i.e., that
she told her sister, Deborah Cantu, as well as the police, that Milton Cook, who
resembled Raynard, was the shooter, and that Robin Anderson denied seeing
defendant reenact the shooting or claim responsibility for it, as Pamela had
claimed—the defense was precluded from presenting the far more powerful
evidence that Raynard himself, on at least four occasions, had admitted firing all
of the shots.
We need not decide whether the evidentiary rulings alone were prejudicial
here, though, because the error was compounded by the trial court’s instruction to
the jury, following opening statement, that defendant’s responsibility for the
shooting had been conclusively proven and that there would be no evidence
presented in this case to the contrary. In opening statement, the defense position
was that defendant had not been the shooter, that the jury was entitled to consider
what role (if any) defendant had in the murder, but that the defense was not
attacking the conviction. The opening statement made reference to several
witnesses who subsequently were not permitted to testify about the murder,
including Martina Ruelas, Inijio “Choppy” Rodriguez, Walter Roberts, and Dr.
Kenneth Solomon, and concluded with the contention that “we believe the
evidence in this case will clearly show that Kenny Gay could not have and did not
shoot Officer Verna.” Following a recess and before the jury reconvened, the
prosecution objected to the defense opening statement to the extent it was
inconsistent with the verdict of guilt and urged the court to admonish the jury that
they should disregard the opening statement and that they would not be hearing
evidence that defendant was not the shooter. Over a defense objection, the court
declared that it was “going to tell the jury to disregard any statement by you that
Mr. Gay is not the shooter. They are to conclusively assume and presume and
accept the fact that your client did shoot and kill the officer.”
When the proceedings resumed, the court instructed the jury accordingly.
The court began by taking judicial notice of (and reading) the verdict and
explained that “when I take judicial notice of something, it means it’s conclusively
proven. It’s a fact that cannot be disputed.” This, of course, was no more than a
reiteration of its preinstruction to the jury.7 Over defense objection, however, the
“In 1985 in this courthouse, another jury found the defendant, Kenneth Earl
Gay, guilty of the crime of murder of the first degree. This same jury also found
that the defendant, in committing the crime of murder of the first degree,
personally used a firearm in the commission of the murder, and also that a
principal in that murder was armed with a firearm, and the jury also found to be
(footnote continued on next page)
court additionally directed the jury as follows: “Now, further, any statement by
the defense attorneys that you just heard in the opening statement to the effect that
Kenneth Earl Gay did not personally shoot Officer Verna, you will disregard it.
[¶] It’s been conclusively proved by the jury in the first case that this defendant
did, in fact, shoot and kill Officer Verna. [¶] So you will disregard any statements
they made in the opening statement, and you will not be hearing any evidence to
the contrary during the trial.”
Although the trial court instructed the jury at the close of evidence that “[i]t
is appropriate for a juror to consider in mitigation any lingering doubt he or she
may have concerning defendant’s guilt” and then defined lingering doubt, the
court refused to withdraw its earlier, inconsistent instruction on the issue.
“Language that merely contradicts and does not explain a constitutionally infirm
instruction will not suffice to absolve the infirmity.” (Francis v. Franklin (1985)
471 U.S. 307, 322.) Nor does anything in the record suggest that the jury
understood how to weigh the evidence that was admitted. The People in closing
argument repeatedly relied on the earlier erroneous instruction, which was printed
on a poster displayed to the jury and made part of the People’s plea for the penalty
of death. The prosecutor even quoted the offending portion in his summation.
The jury exhibited its confusion over the instructions by interrupting
deliberations to request an explanation of the instruction on lingering doubt,
underlining in particular the phrase “consider in mitigation any lingering doubt.”
The trial court’s response, once again, was inadequate: “There’s really no other
(footnote continued from previous page)
true the two special circumstances that were referred to during your jury selection
process. [¶] You must accept the findings of the jury as to guilt and these other
way to explain that. It should be fairly clear on its face. But you may want to look
at all of the instructions given so far. And there is a definition of reasonable doubt
that’s contained elsewhere in the instructions.” Because the court’s response did
no more than refer the jury to each of the contradictory instructions—the one that
“should be fairly clear on its face” and the one that was part of “all of the
instructions given so far”—we, as a reviewing court, have “no way of knowing
which of the two irreconcilable instructions the jurors applied in reaching their
verdict.” (Francis v. Franklin, supra, 471 U.S at p. 322, fn. omitted; see generally
Bollenbach v. United States (1946) 326 U.S. 607, 612-613 [“When a jury makes
explicit its difficulties a trial judge should clear them away with concrete
accuracy”].) Indeed, the court had previously told the jury that all the instructions,
whenever given, were of equal importance. It is discomforting, though, that,
following this inadequate reinstruction, the jury reached a verdict the very next
The combination of the evidentiary and instructional errors presents an
intolerable risk that the jury did not consider all or a substantial portion of the
penalty phase defense, which was lingering doubt. The defense could have had
particular potency in this case, given the absence of physical evidence linking
defendant to the shooting and the inconsistent physical and clothing descriptions
given by the prosecution eyewitnesses. (See People v. Cummings, supra, 4
Cal.4th at p. 1259 [“Their versions of the events and identification of the shooter
or shooters varied greatly”].) Robert Thompson, for example, told police in the
first few hours after the murder that the passenger in the rear seat had fired all the
shots and that this man had a medium-to-dark complexion and was wearing a
brown short-sleeved shirt and baggy jeans.8 Thompson gave the same account to
the grand jury and to defense counsel a few months before the penalty retrial. Gail
Beasley’s description shortly after the murder of the shirt worn by the shooter—
that it was burnt orange or red—was likewise consistent with Raynard
Cummings’s clothing and inconsistent with defendant’s. Marsha Holt, who said
she was in the bedroom talking to her mother when the shooting began, described
the shooter as wearing a long-sleeved white shirt, but her account of the events
was impeached by her mother’s denial of being in the bedroom at the time as well
as by her mother’s testimony that she had been unaware of the shooting until Gail
Beasley told her about it, by the testimony of the defense expert that Marsha’s line
of sight and field of view were limited, by Beasley’s testimony that neither Marsha
nor Celeste appeared to know that an officer had been shot, and by Marsha’s
inability to identify defendant in a lineup a few days after the murder. The
remaining eyewitness to the shooting, Pamela Cummings, had an obvious interest
in protecting her ex-husband.9
The People are certainly correct that the other aggravating evidence in this
case was significant. The series of robberies defendant and Raynard Cummings
committed and the arson defendant committed on his own were unusually—and
unnecessarily—brutal and cruel, and there was scant evidence in defendant’s
social history to excuse or mitigate these heinous crimes. The prosecution also
vividly presented the effect of this crime on Officer Verna’s family and friends.
But it is our firm belief that, notwithstanding this aggravating evidence, there is a
reasonable possibility the jury would have selected the lesser but still serious
Raynard Cummings was wearing a burgundy short-sleeved pullover shirt.
Defendant was wearing a long-sleeved, light-gray dress shirt.
The Cummingses were no longer married at the time of the retrial.
penalty of life imprisonment without the possibility of parole had it been allowed
to hear and consider the compelling defense of lingering doubt in full. (Cf. In re
Gay, supra, 19 Cal.4th at p. 830.) As other courts have noted, “residual doubt is
perhaps the most effective strategy to employ at sentencing.” (Chandler v. United
States (11th Cir. 2000) 218 F.3d 1305, 1320, fn. 28; accord, Williams v. Woodford
(9th Cir. 2002) 384 F.3d 567, 624; see also Garvey, Aggravation and Mitigation in
Capital Cases: What Do Jurors Think? (1998) 98 Colum. L.Rev. 1538, 1563.)
The jury’s request for clarification of the instructions on the issue of residual
doubt, combined with the jury’s previous request for the court to read back the
eyewitness and expert testimony relating to the circumstances of the murder,
strongly indicate that the jury was focused on defendant’s role in the murder.
Evidence indicating that defendant was not the actual shooter would have been
important to the jury in assessing the appropriate penalty. (See In re Hardy (2007)
41 Cal.4th 977, 1032-1035.) Had the jury been allowed to hear—and consider—
the four statements in which Raynard Cummings claimed to be the sole shooter,
the testimony of the four defense eyewitnesses excluding defendant as the shooter,
and the testimony that defendant nonetheless was the man who came out of the car
to retrieve a weapon from the ground (thus offering an explanation why the
prosecution eyewitnesses had been able to recognize him), there is a reasonable
possibility the jury would have selected a different penalty. (See Terry, supra, 61
Cal.2d at p. 147; People v. Humphrey (1996) 13 Cal.4th 1073, 1089-1090 [finding
prejudice where the prosecutor’s argument and the jury’s request for clarification
indicated the subject of the misinstruction was critical to their deliberations];
People v. Roder (1983) 33 Cal.3d 491, 505 [same]; cf. People v. DeSantis (1992)
2 Cal.4th 1198, 1238-1240 [no error where the rulings and comments by the court
and by the prosecutor “merely reminded the jury that it was not to redetermine
guilt,” the rulings and comments “did not remove the question of lingering doubt
from the jury,” and the defendant “was able virtually to retry the guilt phase case
under the guise of introducing evidence of the circumstances of the crime to the
D. Other Penalty Phase Issues
Defendant raises numerous other claims of error relating to the penalty
phase and to the validity of his death sentence. We need not reach these claims,
however, given our finding of the prejudicial evidentiary and instructional error
above. (People v. Cash (2002) 28 Cal.4th 703, 741.)
The trial court also excluded (1) testimony from Dr. Pezdek, the defense
expert on eyewitness identification, as irrelevant and an undue consumption of
time; (2) a computer-animated recreation of the shooting, proffered by defendant,
as irrelevant; and (3) testimony from Dr. Solomon, the defense expert on crime
and accident reconstruction, as irrelevant and (at least in part) as not the proper
subject for expert testimony. Because these rulings rested in substantial part on
the trial court’s mistaken understanding of what type of evidence was relevant at
the penalty retrial, we leave it to the trial court to reconsider these rulings under
the correct standard of relevance at retrial, should the defense attempt again to
offer this evidence.
The judgment of death is reversed.
KENNARD, ACTING C. J.
* Presiding Justice of the Court of Appeal, First Appellate District, Division
One, assigned by the Acting Chief Justice pursuant to Article VI, section 6 of the
CONCURRING OPINION BY WERDEGAR, J.
I concur fully in the majority opinion, which I have signed. I write
separately to emphasize that the rationale of our decision is logically inconsistent
with remarks this court made in In re Gay (1998) 19 Cal.4th 771 on the
irrelevance of lingering doubt evidence. Today’s decision thus effectively
overrules In re Gay on this point.
The evidence defendant offered at the penalty retrial in this case to raise
doubts as to whether he personally shot the victim was excluded partly on the
basis of this court’s statements in In re Gay that lingering doubt evidence is “not
relevant to the circumstances of the crime” and constitutes a prohibited attempt to
“retry the guilt phase of the trial.” (In re Gay, supra, 19 Cal.4th at p. 814.) As the
majority explains, however, lingering doubt evidence is in fact relevant to “the
nature and circumstances of the present offense” within the meaning of Penal
Code section 190.3 and “the circumstances of the crime” within the meaning of
that section’s factor (a). (Maj. opn., ante, at pp. 31-32, 34.) If evidence going to
the degree or nature of the defendant’s criminal participation is not otherwise
barred — if it would have been admissible in the guilt trial — it is also admissible
in the penalty trial. (Id. at p. 33.)1
The In re Gay court’s second rationale, that lingering doubt evidence
represents an improper attempt to “retry” the guilt phase, is easily rebutted.
Because of differing standards of proof at the two trial phases, no inconsistency
(footnote continued on next page)
The majority acknowledges the “tension” between In re Gay’s statement of
irrelevance and our repeated holdings of relevance, but finds it unnecessary to
resolve that tension because In re Gay concerned the penalty phase of a unitary
trial, while this case involves admission of lingering doubt evidence in a penalty
retrial. (Maj. opn., ante, at p. 34, fn. 5.) The distinction is, of course, factually
valid, but it should not mislead future courts into believing that In re Gay’s
statement retains any logical force or authority.
Whether in the penalty phase of a unitary trial or in a penalty retrial, Penal
Code section 190.3 provides the applicable substantive law. We hold today, as we
have in past decisions, that lingering doubt evidence is relevant under that statute.
(Maj. opn., ante, at p. 34.) Our holding today, although made in the context of a
penalty retrial, logically applies as well to an ordinary penalty phase. What is
relevant in one is equally relevant in the other. No logical room remains for In re
Gay’s contrary statement.
Of course, in an ordinary penalty phase, tried before the same jury that
recently heard and decided guilt, the defense is far less likely to offer lingering
doubt evidence, and the court might legitimately exclude some offered evidence as
cumulative and wasteful of court time. (Evid. Code, § 352.) The same is not true
(footnote continued from previous page)
arises when a jury considers lingering doubt evidence at the penalty phase. That
the same or a different jury found the defendant guilty beyond a reasonable doubt
at the guilt trial does not logically preclude the penalty jury from entertaining
residual doubt as to the nature or extent of the defendant’s guilt. The trial court
below was simply incorrect in holding “[t]here is just no way to reconcile”
defendant’s proffered lingering doubt evidence with the previous guilt jury’s
finding (made on a beyond-a-reasonable-doubt standard) that he personally used a
firearm in the murder.
in a penalty retrial. We referred to this difference in People v. Terry when we
observed that introduction of lingering doubt evidence at a penalty phase would be
“unnecessary . . . because the jury will have heard that evidence in the guilt
phase,” while a retrial jury, without the evidence, would “deliberate in some
ignorance of the total issue.” (People v. Terry (1964) 61 Cal.2d 137, 146, italics
added.) But this difference in the two procedural circumstances does not affect the
relevance of lingering doubt evidence; under Penal Code section 190.3, such
evidence is as relevant in an ordinary penalty phase as in a penalty retrial.
The majority explicitly distinguishes, rather than overrules, the court’s
statement in In re Gay, supra, 19 Cal.4th at page 814, regarding the irrelevance of
lingering doubt evidence. But the rationale of our decision leaves no doubt that
the statement is incorrect. Future courts should not follow it.
KENNARD, ACTING C. J.
Presiding Justice of the Court of Appeal, First Appellate District, Division
One, assigned by the Acting Chief Justice pursuant to article VI, section 6 of the
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gay
Original Appeal XXX
Opinion No. S093765
Date Filed: March 20, 2008
County: Los Angeles
Judge: L. Jeffrey Wiatt
Attorneys for Appellant:
Therene Powell, under appointment by the Supreme Court; Lynn S. Coffin and Michael J. Hersek, State
Public Defenders, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Lance E. Winters,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
1030 E. El Camino Real, #271
Sunnyvale, CA 94087
Lance E. Winters
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 03/20/2008||42 Cal. 4th 1195 original opinion||S093765||Automatic Appeal||closed; remittitur issued|| |
PEOPLE v. CUMMINGS & GAY (S004699)
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Lance Winters, Deputy Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA
|2||Gay, Kenneth Earl (Appellant)|
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Michael Laurence, Executive Director
303 Second Street, Suite 400 South
San Francisco, CA
|3||Gay, Kenneth Earl (Appellant)|
San Quentin State Prison
Represented by Therene Powell
Attorney at Law
1030 E. El Camino Real, Suite 271
|Mar 20 2008||Opinion: Reversed|
|Dec 4 2000||Judgment of death|
|Dec 19 2000||Penal Code sections 190.6 et seq. apply to this case|
|Dec 19 2000||Filed certified copy of Judgment of Death Rendered|
|Dec 28 2000||Filed:|
Application for appointment of counsel (IFP form)
|Feb 28 2001||Record certified for completeness|
|Apr 30 2001||Order appointing State Public Defender filed|
State Public Defender appointed to represent applt for the direct appeal.
|May 8 2001||Date trial court delivered record to appellant's counsel|
7,828 pp. record.
|May 18 2001||Letter sent to:|
counsel advising that the court was notified that the 7,828 pp. record on appeal, certified for completeness, was mailed to applt's counsel on 5-8-2001. Pursuant to California Rules of Court, rule 39.57(b), AOB will be due on or before 12-10-2001.
|Jul 13 2001||Counsel's status report received (confidential)|
from State P.D.
|Aug 31 2001||Note:|
Motion by appellant (in S100357) for immediate stay of the proceedings to certify the record as correct, set for 9-5-2001, and for an order directing the superior court to grant applt a continuance to file a motion to correct, augment and/or settle the record and to vacate its orders with regard to record correction.
|Sep 4 2001||Note:|
order filed re: applt's motion filed on 8-31-2001 in S100357. (The court deemed the motion a petition for mandate, prohibition, and/or other appropriate relief, with a request for an associated stay of trial court proceedings, and denied the petition and stay request. George, C.J., was recused and did not participate.)
|Sep 5 2001||Record certified for accuracy|
|Sep 12 2001||Counsel's status report received (confidential)|
from State P.D.
|Oct 30 2001||Appellant's opening brief letter sent, due:|
Dec. 10, 2001.
|Oct 30 2001||Record on appeal filed|
C-15 (3078 pp.) and R-37 (5036) - including material under seal. CT contains 1307 pp. of juror questionnaires.
|Nov 16 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 30 2001||Request for extension of time filed|
To file AOB. (1st request)
|Dec 3 2001||Extension of time granted|
To 2/8/2002 to file AOB.
|Dec 12 2001||Motion to correct AA record filed|
Motion by appellant "to correct, augment and settle the record on appeal".
|Dec 14 2001||Filed:|
"Exhibits to applt.'s motion to correct, augment and settle the record on appeal."
|Jan 15 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 15 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 17 2002||Record correction granted|
Appellant's "Motion to Correct, Augment and Settle the Record on Appeal" is granted in part and denied in part. To the extent that it seeks corrections and/or additional materials, including settled statements, in the superior court, the motion is granted: The superior court is directed to conduct a hearing on the corrections and/or additional materials, including settled statements, requested in the motion; to order such corrections and/or additional materials, including settled statements, as may be required for a complete and accurate record on appeal; and to certify the record on appeal with such corrections and/or additional materials, including settled statements, as may be ordered, as accurate, on or before April 17, 2002. The clerk of this court is directed to transmit the record on appeal, filed in this court on October 30, 2001, to the superior court. The clerk of the superior court is directed to transmit the record on appeal, certified as accurate with such corrections and/or additional materials, including settled statements, as may be ordered, to this court within 10 days of certification of the record for accuracy. In all other respects, the motion is denied. George, C. J., was recused and did not participate.
|Jan 17 2002||Note:|
record returned to superior court, pursuant to court's order of this date.
|Feb 1 2002||Request for extension of time filed|
To file A0B. (2nd request)
|Feb 5 2002||Extension of time granted|
To 4/9/2002 to file AOB.
|Mar 18 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 28 2002||Received:|
receipt for record on appeal transmitted to superior court on 1-17-2002.
|Apr 2 2002||Request for extension of time filed|
To file AOB. (3rd request)
|Apr 4 2002||Extension of time granted|
To 6/10/2002 to file AOB.
|May 17 2002||Counsel's status report received (confidential)|
from State P.D.
|May 21 2002||Filed:|
Supplemental record on appeal pursuant to this court's order of 1/17/2002; C-3 (567 pp.) and R-3 (105 pp.), including material under seal. Clerk's transcript includes 300 pp. of juror hardship questionnaires.
|May 22 2002||Motion to correct AA record filed|
Appellant's motion to correct the record on appeal.
|May 30 2002||Opposition filed|
by respondent to applt's motion to correct the record on appeal.
|Jun 4 2002||Filed:|
Applt.'s reply to resp.'s opposition to motion to correct the record on appeal.
|Jun 7 2002||Request for extension of time filed|
To file AOB. (4th request)
|Jun 11 2002||Extension of time granted|
To 8/8/2002 to file AOB.
|Jun 19 2002||Record correction granted|
Appellant's Motion to Correct the Record on Appeal, filed May 22, 2002, is granted in part and denied in part. The motion is granted in the following respects: 1. The clerk of this court is hereby directed to make the following changes by interlineation: a. Page 72, lines 27-28: "that. I think . . . ." is corrected to "that. [para.] The Court: I think . . . ."; b. Page 1244, line 17: the speaker "Mr. Lessum:" is corrected to "Mr. Lezin:"; c. Page 2728, line 15: "page 465" is corrected to "page 475"; d. Page 3585, line 15: "Q. In other words, . . . ." is corrected to delete the "Q."; e. Page 3992, line 7: "side" is corrected to "size"; f. Page 4867, line 16: "attempt" is corrected to "contempt." 2. The Superior Court of Los Angeles County is hereby directed (1) to conduct appropriate proceedings to determine which prison records relating to Raynard Cummings the superior court reviewed in camera on June 16, 2000 (see R.T. 393-396); (2) to cause such records to be copied; (3) to cause such copies to become part of a supplemental clerk's transcript; and (4) to cause such transcript to be prepared, delivered, and transmitted under seal as specified in rules 35 and 39.50 of the California Rules of Court. (See Cal. Rules of Court, rule 33.5(b)(2).) In all other respects, the motion is denied. George, C.J., was recused and did not participate. Kennard, J., was absent and did not participate
|Jun 20 2002||Order filed|
The order filed on June 19, 2002, is hereby amended as follows: Appellant's Motion to Correct the Record on Appeal, filed May 22, 2002, is granted in part and denied in part. The motion is granted in the following respects: 1. The clerk of this court is hereby directed to make the following changes by interlineation: a. Page 72, lines 27-28: "that. I think . . . ." is corrected to "that.  The Court: I think . . . ."; b. Page 1244, line 17: the speaker "Mr. Lessum:" is corrected to "Mr. Lezin:"; c. Page 2728, line 15: "page 465" is corrected to "page 475"; d. Page 3585, line 15: "Q. In other words, . . . ." is corrected to delete the "Q."; e. Page 3992, line 7: "side" is corrected to "size"; f. Page 4867, line 18: "attempt" is corrected to "contempt." 2. The Superior Court of Los Angeles County is hereby directed (1) to conduct appropriate proceedings to determine which prison records relating to Raynard Cummings the superior court reviewed in camera on June 16, 2000 (see R.T. 393-396); (2) to cause such records to be copied; (3) to cause such copies to become part of a supplemental clerk's transcript; and (4) to cause such transcript to be prepared, delivered, and transmitted under seal as specified in rules 35 and 39.50 of the California Rules of Court. (See Cal. Rules of Court, rule 33.5(b)(2).) In all other respects, the motion is denied. George, C.J., was recused and did not participate. Kennard, J., was absent and did not participate.
|Jul 16 2002||Counsel's status report received (confidential)|
from State P.D.
|Jul 26 2002||Filed:|
Two volumes of clerk's transcript. (confidential material under seal) (552 pp.) (Prepared pursuant to this court's order of 6-19-2002, as amended on 6-20-2002.)
|Aug 5 2002||Request for extension of time filed|
To file appellant's opening brief. (5th request)
|Aug 8 2002||Extension of time granted|
To 10/7/2002 to file appellant's opening brief. After that date, only two further extensions totaling 116 additional days are contemplated. Extension is based upon the represnetation of Deputy State Public Defender Therene Powell that she anticipates filing that brief by 1/31/2003.
|Sep 16 2002||Counsel's status report received (confidential)|
from State P.D.
|Oct 1 2002||Request for extension of time filed|
To file appellant's opening brief. (6th request)
|Oct 7 2002||Extension of time granted|
To 12/2/2002 to file appellant's opening brief. After that date, only one further extension totaling 55 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 1/31/2003.
|Nov 21 2002||Counsel's status report received (confidential)|
from State P.D.
|Dec 2 2002||Request for extension of time filed|
To file appellant's opening brief. (7th request)
|Dec 6 2002||Extension of time granted|
To 1/31/2003 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Therene Powell's representation that she anticiaptes filing that brief by 3/20/2003.
|Dec 31 2002||Order appointing Habeas Corpus Resource Center filed|
Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Kenneth Earl Gay for habeas corpus/executive clemency proceedings related to the above automataic appeal now pending in this court.
|Jan 17 2003||Counsel's status report received (confidential)|
from State P.D.
|Jan 27 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Jan 30 2003||Extension of time granted|
to 4-1-2003 to file AOB. Extension granted based upon Deputy State P.D. Therene Powell's representation that she anticipates filing AOB by 3-31-2003. After that date, no further extension will be granted.
|Mar 4 2003||Counsel's status report received (confidential)|
|Mar 18 2003||Counsel's status report received (confidential)|
from State P.D.
|Mar 27 2003||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Apr 1 2003||Received:|
Reporter's ASCII disks of trial. (22 disks)
|Apr 3 2003||Extension of time granted|
to 4/11/2003 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 4/11/2003. After that date, no further extension will be granted.
|Apr 11 2003||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|Apr 16 2003||Filed:|
Supplemental declaration in support of application for extension of time to file appellant's opening brief.
|Apr 21 2003||Extension of time granted|
to 4/23/2003 to file appellant's opening brief. Extension is granted based upon Assistant State Public Defender Andrew S. Love's representation that he anticipates filing that brief by 4/23/2003. After that date, no further extension will be granted.
|Apr 23 2003||Application to file over-length brief filed|
(377 pp. appellant's opening brief submitted under separate cover)
|Apr 25 2003||Order filed|
Appellant's application to file opening brief longer than 280 pages is granted.
|Apr 25 2003||Appellant's opening brief filed|
|Apr 28 2003||Respondent's brief letter sent; due:|
8-25-2003. (Calif. Rules of Court, rule 39.57(c))
|May 5 2003||Counsel's status report received (confidential)|
|Jul 7 2003||Counsel's status report received (confidential)|
|Aug 19 2003||Application to file over-length brief filed|
by respondent. (brief submitted under separate cover)
|Aug 25 2003||Order filed|
granting respondent's application for leave to file respondent's brief in excess of 280 pages.
|Aug 25 2003||Respondent's brief filed|
|Sep 11 2003||Counsel's status report received (confidential)|
|Oct 17 2003||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Oct 21 2003||Extension of time granted|
to 12/23/2003 to file appellant's reply brief.
|Dec 18 2003||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Dec 26 2003||Extension of time granted|
to 2/23/2004 to file appellant's reply brief. After that date, only two further extensions totaling 105 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 6/8/2004.
|Jan 28 2004||Counsel's status report received (confidential)|
|Feb 19 2004||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Feb 26 2004||Extension of time granted|
to 4/23/2004 to file appellant's reply brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 6/8/2004.
|Mar 3 2004||Counsel's status report received (confidential)|
|Mar 5 2004||Counsel's status report received (confidential)|
(supplemental) from HCRC.
|Apr 22 2004||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Apr 27 2004||Extension of time granted|
to 6/22/2004 to file the appellant's reply brief. After that date, only one further extension totaling about 25 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 7/15/2004.
|Jun 17 2004||Request for extension of time filed|
to file reply brief. (5th request)
|Jun 22 2004||Extension of time granted|
to 7/15/2004 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 7/15/2004. After that date, no further extension will be granted.
|Jun 23 2004||Counsel's status report received (confidential)|
|Jul 15 2004||Appellant's reply brief filed|
(30, 558 words - 108 pp.)
|Dec 22 2004||Counsel's status report received (confidential)|
|Jan 11 2005||Related habeas corpus petition filed (concurrent)|
|Sep 26 2005||Motion for appointment of counsel filed|
by attorney Therene Powell.
|Sep 27 2005||Motion to withdraw as counsel filed|
by the State Public Defender.
|Oct 12 2005||Withdrawal of counsel allowed by order|
Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant Kenneth Earl Gay, filed September 27, 2005, is granted. The order appointing the State Public Defender as counsel of record for appellant Kenneth Earl Gay, filed April 30, 2001, is hereby vacated. Therene Powell is hereby appointed as counsel of record to represent appellant Kenneth Earl Gay for the direct appeal in the above automatic appeal now pending in this court. George, C.J., was recused and did not participate.
|Nov 8 2007||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the January 2008 calendar, to be held the week of January 7, 2008, 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.
|Dec 11 2007||Motion to consolidate filed (AA)|
appellant's motion to consolidate the appeal with habeas corpus petitions (nos. S130263 and S130598) and to stay all proceedings arising from the penalty-phase retrial until appellant's challenges to his conviction have been resolved.
|Dec 26 2007||Opposition filed|
by respondent to consolidate appeal with habeas corpus petitions.
|Jan 3 2008||Case ordered on calendar|
to be argued on Tuesday, February 5, 2008, at 2:00 p.m., in Sacramento
|Jan 7 2008||Filed:|
by appellant. "Reply to the Respondent's Opposition to Motion to Consolidate the Proceedings on Appeal with Petitioner's Habeas Corpus Petitions and to Stay All Proceedings Arising from the Penalty-Phase Retrial until Appellant's Challenges to His Conviction Have Been Resolved."
|Jan 11 2008||Filed:|
respondent's focus issues letter dated January 11, 2008.
|Jan 14 2008||Received:|
appearance sheet from Deputy Attorney General Lance Winters, indicating 45 minutes for oral argument for respondent.
|Jan 15 2008||Request for Extended Media coverage Filed|
The California Channel by James Gualtieri, operations manager
|Jan 15 2008||Received:|
appearance sheet from Attorney Therene Powell, indicating 45 minutes for oral argument for appellant.
|Jan 15 2008||Filed:|
appellant's focus issues letter dated January 10, 2008.
|Jan 18 2008||Filed:|
Respondent's supplemental authorities for consideration at oral argument.
|Jan 22 2008||Request for Extended Media coverage Granted|
The request for extended media coverage, filed by The California Channel on January 15, 2008, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
|Jan 22 2008||Request for judicial notice filed (AA)|
|Jan 23 2008||Motion to consolidate denied|
The "Motion to Consolidate the Proceedings on Appeal with Petitioner's Habeas Corpus Petitions and to Stay all Proceedings Arising from the Penalty Phase Retrial until Appellant's Challenges to his Conviction Have Been Resolved," filed on December 11, 2007, is denied. George, C.J., was recused and did not participate.
|Jan 25 2008||Exhibit(s) lodged|
People's 2, 12, 303 & 312 (photos) and Defendent's 535 (video tape)
|Jan 28 2008||Received:|
Appellant's list of supplemental authorities for consideration at oral argument.
|Feb 5 2008||Cause argued and submitted|
|Feb 14 2008||Exhibit(s) lodged|
People's 1. (photo)
|Feb 15 2008||Order filed|
The appellant's request for judicial notice filed on January 22, 2008, is granted.
|Mar 19 2008||Notice of forthcoming opinion posted|
|Mar 20 2008||Opinion filed: Judgment reversed|
opinion by Baxter, J. -----joined by Kennard, Acting C.J., Werdegar, Chin, Moreno, Corrigan and Marchiano (C/A 1/1 assigned), JJ. Concurring Opinion by Werdegar, J. -----joined by Kennard, Acting C.J. and Marchiano (C/A 1/1 assigned), J.
|Mar 24 2008||Received:|
pro se "Motion presenting extraordinary case which requires emergency relief. Petitioner is factually/actually innocence (sic) of the murder of Los Angeles Police Officer Paul Verna."
|Mar 24 2008||Note:|
pro se motion returned, unfiled, to Kenneth Gay. Because he is represented by counsel, he is not entitled to submit this document himself. (See, e.g., In re Barnett (2003) 31 Cal.4th 466, 469.)
|Apr 17 2008||Application to stay issuance of remittitur filed|
by appellant, "Request for Emergency Stay of Proceedings." (11 pp.) (note: proof of service is defective; counsel advised to submit corrected proof of service.)
|Apr 21 2008||Application to stay issuance of remittitur denied|
The "Motion to Stay Issuance of the Remittitur or, in the Alternative, to Stay the Impending Penalty Retrial, Until Appellant's Challenges to his Conviction Have Been Resolved," filed on April 17, 2008, is denied.
|Apr 22 2008||Filed:|
by appellant (Corrected) Certificate of Service for "Request for Emergency Stay of Proceedings."
|Apr 22 2008||Remittitur issued (AA)|
|Apr 24 2008||Exhibit(s) returned|
to Superior Court People's exhibit no. 1, 2, 12, and 303. Defendant's exhibit no. 535.
|Apr 28 2008||Received:|
receipt for remittitur.
|May 14 2008||Received:|
acknowledgment of receipt of exhibits from Los Angeles superior court.
|Apr 25 2003||Appellant's opening brief filed|
|Aug 25 2003||Respondent's brief filed|
|Jul 15 2004||Appellant's reply brief filed|