IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
MARIO LEWIS GRAY,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A885549
A jury in Los Angeles County Superior Court convicted Mario Lewis Gray
in 1989 of first degree murder (Pen. Code, § 187; all further statutory references
are to this code unless otherwise indicated), burglary (§ 459), robbery (§ 211),
forcible rape (§ 261, subd. (a)), and forcible sodomy (§ 286, subd. (c)), all
perpetrated against the person or home of victim Ruby Reed. The jury also
sustained four special circumstance allegations in connection with these crimes:
that defendant murdered Reed while engaged in the commission of burglary,
attempted robbery, forcible rape, and forcible sodomy. (§ 190.2, former subd.
(a)(17)(i), (iii), (iv) & (vii), now redesignated subd. (a)(17)(A), (C), (D) & (G).)
In addition, the jury convicted defendant of six unrelated first degree burglaries.
(§ 459.) On February 1, 1990, the jury set the penalty at death under the 1978
death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
I. GUILT PHASE
1. April 23, 1987: Five Burglaries
Michael Barry lived with his wife in a trailer park on Lycoming Street in
the City of Walnut. On the morning of April 23, 1987, around 5:30 or 6:00 a.m.,
he awoke and noticed the window on the door in the laundry room had been
forced open and the door was ajar. He turned on the light and found his wife’s
purse emptied on the floor. Her wallet was missing about $20. Credit cards had
been removed from the wallet but not taken.
Joan Darling lived alone in the same trailer park as Barry. She awoke
around 4:00 a.m. the morning of April 23, 1987, because she heard a tapping
sound. She went to investigate but found nothing and went back to sleep. She
awoke again around 6:00 a.m. and noticed her purse had been emptied out and $40
in cash had been taken. Her credit cards and a ring were not taken. Someone had
pried open the window of her back door. The intruder had left a used cigarette and
a flashlight in her home.
Barbara Hostetler lived with her husband and son in the same trailer park as
Barry and Darling. She did not notice anything amiss when she left for work at
5:30 a.m. on April 23, 1987. Her son left 10 minutes after her. Around 7:00 a.m.,
her husband called her and she returned home, whereupon she noticed someone
had opened the closet in the guest room and had moved things around on the desk.
Her husband’s billfold was open, and papers were strewn about. The screen on the
window in her son’s room had been removed. Her husband testified he awoke
around 6:00 a.m. when his dog began growling as if someone were in the home.
When he went to investigate, he saw no one but found the sliding door wide open.
His wife would not have left that door open. He also found a window screen had
been removed. His billfold had been emptied of $4 or $5, and some change was
also missing, although the thief left his credit cards. Dwight Hostetler, Barbara’s
son, testified he did not remove the screen from the window and that it had been in
place when he left for work early that morning. Police later discovered
defendant’s fingerprints on the removed window screen.
Kathryn Patchin lived in the same trailer park as Barry, Darling, and the
Hostetlers. She awoke around 5:30 a.m. on April 23, 1987, because her pet
cockatiel began speaking. Patchin, believing her daughter had come home from
work early, called out and went into the next room. She noticed the door to the
utility room, which had been open when she went to sleep, was now closed. When
she went to open it, she heard a sound as if someone were falling on her washing
machine. She opened the door just as someone else was closing the door to the
outside. She did not see the intruder. Her credit cards were strewn on top of the
washing machine, although none was missing. Her purse was open and her
attaché case unzipped. She was missing around $30.
Letitia Larson lived on Lycoming Street with her parents, husband, and son
in a home across the street from the trailer park. On April 23, 1987, she got up
around 6:30 a.m. and noticed her husband’s gym bag had been emptied out and the
bag taken. A camera on the table had not been taken. A window in the laundry
room was open, the wood around the window chipped, and the screen torn. The
window had been closed before she went to sleep. The night before, her father,
Eugenio Lozano, had ensured the doors and windows were locked.
2. April 25, 1987: The Crimes Against Ruby Reed
Eighty-seven-year-old Ruby Reed lived alone in a trailer park in El Monte,
which was adjacent to the RTD bus terminal. Her daughter, Margaret Pemberton,
lived in the same trailer park. Pemberton visited her mother every day and last
saw her around 6:00 p.m. on April 24, 1987. Residents in nearby trailers later
reported suspicious circumstances occurring during the early morning hours of
April 25. One testified her dog began making odd growling noises. Another
testified someone had stolen some cigarettes and a cigarette lighter she had left on
an outdoor patio table. Others reported hearing noises, including a woman
screaming for help.
Pemberton returned to her mother’s trailer around 11:00 a.m. on April 25.
No one answered when she rang the bell. Pemberton walked to the back and
found the back door ajar and a window screen pried loose. On entering through
the back door, she found her mother, covered in bedding, lying on the bedroom
floor. Police and emergency personnel were called, but the victim was
pronounced dead at the scene. Her hands and feet had been bound with nylon
stockings, and strips of towels were tied around her head and mouth, attached to
her face with tape. Her nightgown had been pulled to the top of her body, and her
underwear was around one leg. Her false teeth were on the floor. Money was
missing from her home, which had been ransacked, with jewelry boxes and shoe
boxes opened and scattered about. Cigarette ashes were left in the home, although
Reed did not smoke. Candy wrappers were strewn about the home, whereas
Pemberton testified her mother would have placed the wrappers in a wastepaper
Dr. Solomon Riley, a deputy medical examiner, testified that Reed had
suffered blunt trauma to her face, both sides of her head, her neck, and her chest.
Her jaw was broken on both sides of her head, and she had two broken ribs on her
left side and one broken rib on her right side. These injuries were consistent with
her having been kicked, punched, or thrown into a blunt object. She had severe
bruising around her eyes, suggesting she had been hit around the eyes. She had
injuries to her scalp and bleeding on her brain. Her neck had been compressed for
four or five minutes, causing facial swelling and, eventually, death by
asphyxiation. Dr. Riley suggested the assailant had pressed his elbow, knee, or
forearm on the victim’s neck, or had possibly placed a two-by-four piece of wood
on her neck and then pressed on it, breaking the hyoid bone at the base of her
tongue in the process.
In a laundry basket at the crime scene, police found two key pieces of
evidence: (1) a room receipt from the Frontier Hotel in downtown Los Angeles
dated April 24, 1987, bearing the names of “Lewis Gray” and “Gregory Gray” and
signed by one “Lewis Gray”; and (2) an RTD bus transfer. The fingerprint on the
hotel receipt belonged to defendant. Further investigation showed that
defendant—apparently attempting to conceal his identity—had checked out of the
Frontier Hotel at 8:01 a.m. on April 25 (the morning of Reed’s murder), signing
the receipt as “Lewis Gray,” but evidently unwilling actually to leave the hotel, he
had three minutes earlier (at 7:58 a.m.) checked into the same hotel under the
name of “Mario Davis.”
Later in the morning of April 25, after he killed Reed, defendant took a
further step to create a new identity for himself. Evidence showed that on that
morning he took a bus to the University of Southern California Medical Center
and, at 11:20 a.m., sought and received from the hospital an identification card in
the name of “Mario Davis.” An expert testified the handwriting on the hotel
check-out receipt (“Lewis Gray”), on the check-in receipt (“Mario Davis”), and
defendant’s handwriting exemplars were all written by the same person.
Investigation of the bus transfer found in Reed’s home showed it had been
issued from a bus on line 70, which originated in downtown Los Angeles, where
the Frontier Hotel was located, and terminated at the bus station in El Monte. The
transfer was valid only on local El Monte buses. As punched by the bus driver,
the transfer was valid until 4:20 a.m. on April 25, 1987, meaning it was probably
punched around 3:20 a.m. that day. A number 70 bus driven by driver Aemberti
had arrived at the El Monte bus station around 3:15 a.m. on April 25, 1987. The
specific punch Aemberti was using that day matched the punch marks on the bus
transfer found at the crime scene.
Local buses in El Monte ran along Garvey Avenue, near the home of
Cozette Gray, one of defendant’s sisters. Cozette Gray’s home was only 1.7 miles
from Reed’s home.
Elizabeth Kornblum, the prosecution’s serologist, testified she had tested
swabs from the sexual assault kit and detected the presence of spermatozoa in
Reed’s vagina, rectum, and external genitalia. She also found semen present on
the victim’s underwear. Based on chemical and enzymatic markers found in the
semen, two in 10,000 White males could have been the donor, whereas
approximately one in 100 African-American males could have been the donor.
Defendant, who is African-American, was a member of the group of possible
donors. Gerald Burke, a criminalist with the sheriff’s department, testified that
two of three pubic hairs found in the victim’s anal region were consistent with
defendant’s pubic hair and inconsistent with the victim’s hair.
Aaron Cansadillas testified he was a close friend of defendant’s sister
Cozette Gray and had visited her house often in April 1987. It was there he met
defendant. Cansadillas told police that one morning in April 1987, when he was at
Cozette’s house, defendant arrived and said he had broken into a home, that “there
was a lady in there,” and he had to “shut her up.” Cansadillas recanted this
statement at trial and was impeached with his prior statement, in which he also
reported that defendant did not seem upset about the events.
3. April 28, 1987: A Final Burglary and Defendant’s Capture
Kim Meldrum lived in an apartment in Covina. On April 28, 1987, three
days after the crimes against Reed, Meldrum left for work in the early morning,
locking the door behind her. When she returned, she discovered someone had
been in her apartment. Her bank statement and cancelled checks were scattered
around the floor and a screwdriver that did not belong to her was on her stovetop.
The screen for her front window had been removed and was on the ground,
leaning on the wall.
Kim Edwards lived across the courtyard from Meldrum. She awoke when
she heard a gate slam at 4:15 a.m. She went to investigate and saw defendant
walking in the apartment complex. He stopped in front of Meldrum’s apartment
and rang the doorbell several times. Receiving no answer, he began prying the
screen off her front window and then forced the window open. Edwards called the
police, who came and surrounded the apartment. Defendant tried to escape
through the rear of the apartment but retreated back into it when he saw a police
officer. He eventually surrendered to police and gave his name as “Mario Davis.”
When questioned on April 29, defendant denied knowing anything about
the murder or the Frontier Hotel receipt, and he professed not to remember where
he was on the night of April 24-25.
4. The 1983 Crimes Against J.S. and S.B.
Defendant’s 1983 crimes against J.S. and S.B. were admitted to show the
identity and intent of the perpetrator of the crimes against Reed. J.S., 64 years old
at the time of defendant’s capital trial, testified that on February 6, 1983, she was
sleeping in her apartment with her eight-year-old granddaughter, S.B., when she
heard someone open a drawer in her bedroom and smelled cigarette smoke. She
awoke to find defendant in her room. He instructed her not to make any noise,
gesturing in a way that led her to believe he had a weapon. He took her to the next
room, where he tore a towel into three strips which he used to bind her. Once she
was immobilized, defendant kicked her and she fell down. He tore up another
towel and tied a strip around her head, covering her eyes. He then demanded she
give him gold, money, and her wallet. He took $370 from her purse. He also took
some rings, but they were recovered in an alley where defendant had apparently
discarded them. He ransacked her closet, removing and opening shoe boxes,
leaving them strewn about on the floor.
While J.S. was helpless on the floor, she heard defendant turn on the
television and call someone on her telephone. He left the apartment through a
window but soon returned. During this ordeal, defendant would kick J.S. and beat
her with his fists. At some point, he removed his clothing and rubbed his penis on
her neck. He also pushed her nightgown up to her belly. He then sat, naked, on
The noise from these activities awakened S.B. Defendant grabbed her and
began to beat her as well. He then took S.B. back into the bedroom and directed
her to orally copulate him. When she refused, he threatened to hurt her
grandmother. S.B. then orally copulated him for a few seconds before they heard
a sound in the next room.
While defendant was in the bedroom with her granddaughter, J.S., her
hands still tied behind her back, clambered up on the sofa and attempted to escape
through the window defendant had opened from the outside. He emerged from the
bedroom and tried to prevent the escape, grabbing her by the mouth. She bit him
and he let her go, causing her to fall into the alley, breaking her leg. Defendant
then fled with his clothes, leaving behind a raincoat and some screwdrivers, keys,
The ordeal lasted about three hours. Police later found candy wrappers
strewn around the apartment. Police found defendant’s right palm print on a light
bulb at the crime scene. Defendant eventually pleaded guilty to burglary and was
sentenced to six years in prison.1
B. Pretrial Issues
1. Alleged Wheeler Error
Defendant contends the prosecutor violated his state and federal
constitutional rights by using peremptory challenges to excuse two prospective
jurors because they were African-American. (People v. Wheeler (1978) 22 Cal.3d
258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).)2 “ ‘In [Wheeler]
. . . we held that the use of peremptory challenges by a prosecutor to strike
prospective jurors on the basis of group membership violates the right of a
criminal defendant to trial by a jury drawn from a representative cross-section of
the community under article I, section 16, of the California Constitution.
Subsequently, in [Batson, supra,] . . . the United States Supreme Court held that
such a practice violates, inter alia, the defendant’s right to equal protection of the
laws under the Fourteenth Amendment to the United States Constitution.’ ”
(People v. Catlin (2001) 26 Cal.4th 81, 116.) As we explain, we find no
In connection with this 1983 incident, defendant was charged with robbery,
burglary, oral copulation with a child under 14, and lewd conduct with a child
under 14. He pleaded guilty to first degree burglary and was sentenced to the
upper term of six years in state prison. The other charges apparently were
Although defendant did not specifically cite Batson, supra, 476 U.S. 79, or
the federal equal protection clause as a basis of his motion to quash the venire,
these federal issues were properly preserved for appeal. (People v. Yeoman (2003)
31 Cal.4th 93, 117.)
a. Juror R.H.
As is usual in capital cases, the pool of prospective jurors was reduced in
number by excusing jurors for hardship; the remaining jurors then filled out a
lengthy written questionnaire. These remaining jurors were then subjected to an
oral voir dire examination by the court and the attorneys concerning their
impartiality and their views on the death penalty. Following voir dire, the parties
exercised challenges for cause and excused jurors were replaced. Once the panel
was passed for cause, the parties began exercising peremptory challenges in
alternating turns, beginning with the prosecution.
In this final round, when the prosecutor exercised his third peremptory
challenge asking that Juror R.H. be excused, defense counsel made a Wheeler
motion. In support of his motion, defense counsel first noted that defendant is
African-American, the murder victim, Ruby Reed, was White, and the panel of
approximately 100 prospective jurors had eight African-Americans. Counsel
explained: “[E]xcusing [Juror R.H.] then obviously causes one less Black juror to
be on the panel.” Counsel continued, explaining that, from a prosecutorial
perspective, nothing about Juror R.H. was objectionable. The juror was born and
raised in British Guyana, was older (75 years old), a Republican, Catholic, had
worked with the Department of Defense, and held moderate views on the death
penalty. “[He] did not say in his [responses concerning the] death penalty whether
he was for or against [it], but his questioning in front of the court was he was for
the death penalty and he grew up where the death penalty existed which I believe
is British Guyana. I believe his wife’s son is captain of police.” There being no
apparent reason to challenge Juror R.H., counsel argued he had been challenged
because of his race.
Although the trial court made clear it had not yet ruled on whether or not
defendant had made a prima facie showing of group bias, the prosecutor suggested
the juror’s Catholic background was relevant to his decision, noted that the panel
still had an African-American juror, suggested that something in the death-
qualifying process led him to believe Juror R.H. was less than suitable, and
observed that Juror R.H. was just the third juror he had excused with a peremptory
challenge, his first two peremptory challenges having been exercised against a
middle-aged man from Hawaii and a middle-aged White woman. In rebuttal,
defense counsel reiterated that Juror R.H. did not appear to be against the death
penalty and seemed to be a conservative person. The trial court stated it had not
considered the prosecutor’s reasons in determining whether defendant had made a
prima facie showing of group bias and then denied the Wheeler motion, explaining
that it did “not appear to the court the threshold has been reached of [an] invidious
pattern of exclusion of a particular class.” The 12 regular jurors eventually were
chosen; included on the panel was an African-American woman.
b. Juror B.J.
Once the panel of 12 prospective jurors was accepted by both sides,
selection of alternate jurors began. During the selection of the alternate jurors, the
prosecutor exercised his first three peremptory challenges against an apparently
Latina woman and two White jurors. When the prosecutor then challenged Juror
B.J., defense counsel made his second Wheeler motion, explaining Juror B.J. “is
the [fourth] Black prospective juror to be called and the second to be excused by
the prosecution.” The court confirmed this count, noting that two African-
American jurors had been called as regular jurors and two as alternates, and that
the prosecutor had exercised a peremptory challenge against one of the African-
American regular jurors, Juror R.H. Defense counsel opined that Juror B.J. held
moderate views concerning the death penalty, believed that the penalty should be
used more frequently and for people who intentionally kill another, and stated that
she would judge the case on the evidence presented. The trial court denied the
Wheeler motion, citing legal authorities suggesting that a movant fails to establish
a prima facie showing of group bias “especially where another member of a
noncomprisable [sic: cognizable?] group was left on the jury and the trial court
found challenges were reasonable.” Eight alternate jurors were eventually chosen,
including one African-American. Two of the alternate jurors ultimately served.
(See People v. Roldan (2005) 35 Cal.4th 646, 703 [unnecessary to address
Wheeler issue for alternate jurors if no alternates served on the jury].)
The United States Supreme Court recently reiterated the applicable legal
standards. “First, the defendant must make out a prima facie case ‘by showing
that the totality of the relevant facts gives rise to an inference of discriminatory
purpose.’ [Citations.] Second, once the defendant has made out a prima facie
case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by
offering permissible race-neutral justifications for the strikes. [Citations.] Third,
‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . .
whether the opponent of the strike has proved purposeful racial discrimination.’ ”
(Johnson v. California (2005) ___ U.S. ___, ___ [125 S.Ct. 2410, 2416]; see
People v. Cornwell (Aug. 18, 2005, S046176) __ Cal.4th ___, ___ [at p. 13]
In order to make a prima facie showing, “a litigant must raise the issue in a
timely fashion, make as complete a record as feasible, [and] establish that the
persons excluded are members of a cognizable class.” (People v. Boyette (2002)
29 Cal.4th 381, 421-422.) The high court recently explained that “a defendant
satisfies the requirements of Batson’s first step by producing evidence sufficient to
permit the trial judge to draw an inference that discrimination has occurred.”
(Johnson v. California, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 2417].) “An
‘inference’ is generally understood to be a ‘conclusion reached by considering
other facts and deducing a logical consequence from them.’ ” (Id. at p. ___, fn. 4
[125 S.Ct. at p. 2416, fn. 4].)
We explained in People v. Howard (1992) 1 Cal.4th 1132, 1155, that when
a trial court denies a Wheeler motion finding the objector failed to make a prima
facie case of group bias, the reviewing court should consider the entire record of
voir dire of the challenged jurors. (See People v. Davenport (1995) 11 Cal.4th
1171, 1201.) That view is consistent with the high court’s recent reiteration of the
applicable rules, which require the defendant to attempt to demonstrate a prima
facie case of discrimination based on the “totality of the relevant facts.” (Johnson
v. California, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 2416].)
Applying these rules, we conclude the trial court properly found defendant
failed to make a prima facie case of racial bias motivating the prosecutor’s
challenges to Jurors R.H. and B.J. At the outset, defendant contends the trial court
applied the wrong standard. Wheeler states that, in order to make a prima facie
case, an objector must show “a strong likelihood” of bias (Wheeler, supra, 22
Cal.3d at p. 280), and the trial court, from the objector’s evidence, must
“determine whether a reasonable inference [of bias] arises” (id. at p. 281). This
court subsequently held that “Wheeler’s terms ‘strong likelihood’ and ‘reasonable
inference’ state the same standard” (People v. Johnson (2003) 30 Cal.4th 1302,
1313) and that “to state a prima facie case, the objector must show that it is more
likely than not the other party’s peremptory challenges, if unexplained, were based
on impermissible group bias” (id. at p. 1318, italics added). The high court
recently rejected that holding, explaining that “California’s ‘more likely than not’
standard is an inappropriate yardstick by which to measure the sufficiency of a
prima facie case” (Johnson v. California, supra, ___ U.S. at p. ___ [125 S.Ct. at
p. 2416]). Instead, an objector need only present facts that give “ ‘rise to an
inference of discriminatory purpose.’ ” (Ibid.)
The trial court here failed to state what standard it was applying. As in
Cornwell, supra, however, “[r]egardless of the standard employed by the trial
court, . . . we have reviewed the record and, like the United States Supreme Court
in Johnson [v. California], supra, . . . [we] are able to apply the high court’s
standard and resolve the legal question whether the record supports an inference
that the prosecutor excused a juror on the basis of race.” (Cornwell, supra, __
Cal.4th at p. ___ [at p. 22].) We conclude the record does not support such an
That prospective Jurors R.H. and B.J., both African-Americans, belonged
to a cognizable class is not disputed on appeal (People v. Clair (1992) 2 Cal.4th
629, 652),3 nor does either party dispute that the issue was timely raised and the
record is as complete as was feasible. Defendant relies on certain facts that, he
claims, raise an inference of discriminatory intent. He first contends, “[t]he almost
total absence of Black jurors suggests that [Jurors R.H. and B.J.] were improperly
excluded.” Defendant overstates the case. The prosecutor excluded one African-
American juror from the regular jury, but left another on, and struck one African-
American from the panel of alternates, but left another on. As defendant
concedes, the regular jury was composed of nine White jurors, one African-
At trial, the prosecutor argued Wheeler did not apply to juror R.H. because
the juror was born and grew up in British Guyana in South America. The trial
court did not rely on this fact in making its ruling, and respondent does not now
rely on that argument in this court. Rightly so: “In Wheeler, we imposed no
requirement that the defendant establish that systematically excluded black jurors
were of Afro-American, Caribbean, African or Latin American descent.” (People
v. Trevino (1985) 39 Cal.3d 667, 687, overruled on other grounds in People v.
Johnson (1989) 47 Cal.3d 1194, 1219.)
American juror, and two Latino jurors. The panel of eight alternate jurors was
composed of six White jurors, one African-American, and one Latino juror. After
examining “the totality of the relevant facts” (Johnson v. California, supra, ___
U.S. at p. ___ [125 S.Ct. at p. 2416]), we conclude the exclusion of two African-
American jurors and the retention of two failed to raise an inference of racial
discrimination. (People v. Box (2000) 23 Cal.4th 1153, 1188-1189 [that all
excluded jurors were African-American is not necessarily dispositive in
establishing a prima facie case]; People v. Davenport, supra, 11 Cal.4th at p. 1201
[showing that “three of the six challenged prospective jurors had Hispanic
surnames” was “insufficient”].)
Defendant also argues the prosecutor’s decision to excuse two of the six
African-Americans in the venire of itself suggests bias. When the prosecutor
challenged Juror R.H., of course, that juror was only one of three peremptory
challenges the prosecutor had thus far exercised. The trial court did not know
whether the prosecutor would remove additional racial minorities from the jury.
Moreover, as noted above, although the prosecutor eventually challenged and had
removed from the panel a total of two African-Americans, two more remained.
We conclude the removal of two African-American jurors in these circumstances
failed to raise a reasonable inference of racial discrimination. (See People v. Snow
(1987) 44 Cal.3d 216, 225 [that the prosecutor accepted a jury containing
minorities “may be an indication of the prosecutor’s good faith in exercising his
peremptories, and may be an appropriate factor for the trial judge to consider in
ruling on a Wheeler objection, [although] it is not a conclusive factor”].)
Although the trial court, in ruling on defense counsel’s first Wheeler
motion, stated it had not considered the prosecutor’s explanation of his challenge
to Juror R.H., defendant argues the prosecutor’s volunteered reasons were
unsupportable and, by inference, masked a forbidden motive. Defendant observes
that although the prosecutor suggested Juror R.H.’s age (75), Catholic upbringing,
and the fact he was not born in the United States were all relevant factors, he
failed to challenge other jurors having similar characteristics. Defendant also
argues the prosecutor’s reliance on the fact Juror R.H. was raised in a different
country and culture was pretextual because he did not rigorously question the juror
on this topic. Finally, defendant contends that, although the prosecutor seemed
concerned that Juror B.J.’s child care obligations might render her a less than
desirable juror, the prosecutor objected to granting a hardship excusal to certain
White jurors who had similar child care issues.
In raising this argument, defendant would have this court compare Jurors
R.H. and B.J. with other jurors—those who served and those whom the prosecutor
excused—to determine whether the prosecutor’s reasons were applied consistently
to jurors of all races. The United States Supreme Court recently held that an
appellate court should scrutinize a prosecutor’s reasons for exercising his or her
peremptory challenges and determine whether those reasons were applied equally
to other jurors, in order to assess the credibility of the prosecutor’s expressed
motivations. (See Miller-El v. Dretke (2005) ___ U.S. ___ [125 S.Ct. 2317]
(Miller-El).) In Miller-El, the trial court found the defendant had made a prima
facie case of discrimination, thus requiring the prosecutor to state the reasons for
his challenges to specific jurors. After hearing from the prosecutor, the trial court
proclaimed his stated reasons were “ ‘completely credible [and] sufficient’ ” and
denied the motion. (Miller-El, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 2323].)
After conducting a comparative juror analysis, the high court reversed.
Miller-El thus involved a case in the third stage of a Wheeler/Batson
motion, that is, after the trial court has found a prima facie showing of group bias,
the burden has shifted to the prosecution, and the prosecutor has stated his or her
reasons for the challenges in question. Miller-El holds that at this third stage, after
the prosecutor has proffered his or her reasons, an appellate court should compare
those reasons with the prosecutor’s actions with respect to other jurors to
determine whether the reasons given were pretextual. “If a prosecutor’s proffered
reason for striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” (Miller-El, supra, ___
U.S. at p. ___ [125 S.Ct. at p. 2325].) Miller-El thus did not consider whether an
appellate court must conduct a comparative juror analysis in the first instance,
when the objector has failed to make a prima facie showing of discrimination, or
whether an appellate court must conduct a comparative juror analysis for the first
time on appeal, when the objector failed to do so at trial. As we explain, even if
we were to compare the challenged jurors with jurors who were not excused, we
would not find a prima facie showing of group bias existed. (See Cornwell, supra,
__ Cal.4th at pp. ___ [at pp. 19-20]; People v. Ward (2005) 36 Cal.4th 186, 203.)
At the outset, we reiterate that we rely on and defer to our trial courts to
distinguish bona fide reasons from the sham that hide improper motives (People v.
Boyette, supra, 29 Cal.4th at p. 422), and that a party may decide to excuse a
prospective juror for a variety of reasons, finding no single characteristic
dispositive. Here, the prosecutor did not excuse an unusually high percentage of
African-Americans from the venire, nor a particularly high number of African-
Americans as compared to jurors of other races. At the time the prosecutor
excused Juror R.H., he had already excused Juror C.H., who apparently was
Japanese-American, and Juror J.R., who was White, and he had passed on
challenging Juror D.W., an African-American woman who eventually served on
the jury. By the time the prosecutor used a peremptory challenge to excuse Juror
B.J., he had excused a number of non-African-American prospective jurors.
Unlike in Miller-El, supra, ___ U.S. at page ___ [125 S.Ct. at p. 2325], therefore,
here the “bare statistics” of the prosecutor’s use of his peremptory challenges do
not suggest a racial animus.
Although defendant argues the prosecutor’s concern about Juror R.H.’s age
was pretextual, we note it was defense counsel, not the prosecutor, who mentioned
Juror R.H.’s age, speculating that this factor was important to the prosecutor’s
decision to challenge Juror R.H. But even if the prosecutor did rely on Juror
R.H.’s age, the claim of pretext fails. The two non-African-American jurors of
comparable age the prosecutor failed to challenge (Juror J.H., 75 years old, and
Juror L.P., 71 years old) could both have been seen as pro-prosecution despite
their age. Juror J.H. had previously served as a juror in a trial in which the
defendant was charged with a double-murder; J.H. reported that jury had reached a
verdict. Juror L.P. had previously testified in a criminal case and reported that she
had been treated “kindly” by both the trial judge and the prosecutor. Moreover,
Juror L.P. stated in her juror questionnaire that her support for the death penalty
was “strong,” that she agreed “very strongly” with the idea of retributive justice
(“an eye for an eye”), and that “too many murderers [were] lightly sentenced.”
The prosecutor may well have believed that, despite their age, both jurors would
look favorably on his case. In short, the prosecutor’s alleged disparate treatment
of older African-American and non-African-American jurors does not suggest a
prohibited racial motivation.
Defendant also contends the prosecutor’s reliance on Juror R.H.’s
Catholicism4 was pretextual, noting that five other non-African-American
In recounting the prosecutor’s statement in support of his peremptory
challenge of Prospective Juror R.H., we do not mean to suggest our approval, tacit
or otherwise, of a practice of excluding jurors on the basis of religious affiliation.
(footnote continued on next page)
Catholic jurors were not similarly challenged. Assuming without deciding we can
consider the prosecutor’s volunteered reasons when the trial court did not, we find
the prosecutor did not clearly rely on Juror R.H.’s Catholicism. Although the
prosecutor began his voluntary explanation of his decision to strike Juror R.H. by
mentioning Catholicism, when he resumed his recitation after an interruption, he
did not return to the juror’s Catholicism, but instead stated he struck him because
he was born into a different culture in British Guyana.
Even were we to assume that the prosecutor did rely on Juror R.H.’s
Catholicism, a side-by-side comparison of Juror R.H. with the other Catholic
jurors who were not excused,5 reveals clear reasons why the prosecutor may have
preferred not to strike the other jurors. Juror G.F.’s husband was a California
Highway Patrol officer; the prosecutor may have believed she would thus be a
favorable juror for the People. Based on his juror questionnaire, Juror J.P. had a
fear his wife and children would be the victims of sexually based crimes; because
defendant was charged with just such crimes, the prosecutor may have believed
Juror J.P. would be a sympathetic juror. Juror D.G. reported her support for the
death penalty was “strong,” whereas Juror R.H. reported his support was just
“moderate.” Finally, Juror D.P. had previously served as a juror in a murder trial
that reached a verdict, suggesting this juror might look favorably on the
(footnote continued from previous page)
(See People v. Crittenden (1994) 9 Cal.4th 83, 115 [dictum]; Wheeler, supra, 22
Cal.3d at p. 276 [same].) Defendant did not object on this ground, however, and
the trial court properly found no prima facie showing of group bias on the
ground―race―that was presented.
Defendant is incorrect as to one juror. Juror J.T., who reported in his
questionnaire that he was Catholic, was in fact challenged by the prosecutor and
prosecutor’s case. (By contrast, the prosecutor excused Juror C.S., who reported
she had been a juror in a trial involving a charge of attempted murder that had
resulted in a hung jury.)
Defendant also contends the prosecutor’s asserted concern that Juror R.H.
was born in British Guyana was pretextual because the prosecutor failed to
exercise a peremptory challenge against Juror D.G. (who was born in Mexico),
Juror H.F. (who was born in Germany), and Juror J.P (who was born in Puerto
Rico). The record discloses reasons the prosecutor may have decided to retain the
other foreign-born jurors despite their foreign birth. Juror D.G. reported in her
questionnaire that her support for the death penalty was “strong.” Juror J.P., as
noted, ante, had expressed a fear that his loved ones would become victims of sex
crimes. Juror H.F. similarly reported that he feared his 21-year-old daughter
would one day be raped. On this record, the prosecutor’s reliance on Juror R.H.’s
foreign birth does not appear pretextual.
Nor, contrary to defendant’s argument, did the prosecutor engage in mere
desultory or cursory voir dire questioning of Jurors R.H. and B.J. (See People v.
Farnam (2002) 28 Cal.4th 107, 137; Wheeler, supra, 22 Cal.3d at pp. 280-281.)
The prosecutor’s questioning of Juror R.H. was similar to that of other prospective
jurors. Although defendant asserts the prosecutor asked Juror B.J. only one
question,6 this characterization ignores the prosecutor’s lengthy questioning of the
juror earlier in the voir dire process concerning her request for a hardship
The prosecutor asked her: “[T]he last time we were here you voiced some
concerns to us. Are those still concerns to you?” She answered in the affirmative.
We assume the prosecutor was referring to the juror’s concern over her child care
exemption due to her child care obligations, including the care of an autistic
grandchild, and an even longer inquiry into her views on the death penalty, i.e.,
her Hovey voir dire. (See Hovey v. Superior Court (1980) 28 Cal.3d 1.)
Defendant’s claim the prosecutor engaged in only cursory questioning of Jurors
R.H. and B.J. is thus not supported by the record.
Finally, defendant contends the prosecutor could have had no reason to
excuse Juror B.J. except for the fact she had significant child care obligations.
This reason, defendant argues, was pretextual because the prosecutor was
unsympathetic to the hardship claims of other, non-African-American, jurors.
Because the prosecutor was not called upon to provide reasons for his challenge to
Juror B.J., defendant’s argument is mere speculation.
In any event, an examination of the record indicates the prosecutor may
well have exercised a peremptory challenge against Juror B.J. because she
reported that someone close to her had been arrested and sent to jail for stealing a
car. The prosecutor challenged other jurors who had had such experiences with
law enforcement. Juror J.T. reported he had, in the past, been arrested for petty
theft and felt he had been treated unfairly; the prosecutor excused him. Similarly,
Juror C.S. reported an apparent family relation was then facing charges of assault
and battery; the prosecutor excused her. Thus, the record contains plausible and
credible reasons supporting the prosecutor’s action. (See Miller-El, supra, ___
U.S. at p. ___ [125 S.Ct. at p. 2329] [addressing the “plausibility” of the
prosecutor’s reasons]; id. at p. ___ [125 S.Ct. at p. 2339] [noting the prosecutor’s
explanations were “incredible”].) We conclude the trial court correctly found that
defendant failed to make a prima facie case that the prosecutor was motivated by
group bias when he exercised peremptory challenges against Jurors R.H. and B.J.
2. Alleged Witherspoon/Witt Error
Defendant contends the trial court erred by excusing Jurors C.B. and L.T.
due to their alleged views concerning the death penalty, thereby violating his right
to an impartial jury under the Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution. The high court has established the legal standard for
excusing jurors due to their views on the death penalty, first in Witherspoon v.
Illinois (1968) 391 U.S. 510, and then in Wainwright v. Witt (1985) 469 U.S. 412.
In Witt, the Supreme Court explained that a prospective juror may be excused in a
capital case if “the juror’s views would ‘prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.’ ” (Id. at p. 424.) We apply the same standard under the state Constitution.
(People v. Jones (2003) 29 Cal.4th 1229, 1246.)
“There is no requirement that a prospective juror’s bias against the death
penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient
that the trial judge is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law in the case before the
juror.” (People v. Jones, supra, 29 Cal.4th at pp. 1246-1247.) “Assessing the
qualifications of jurors challenged for cause is a matter falling within the broad
discretion of the trial court. [Citation.] The trial court must determine whether the
prospective juror will be ‘unable to faithfully and impartially apply the law in the
case.’ [Citation.] A juror will often give conflicting or confusing answers
regarding his or her impartiality or capacity to serve, and the trial court must
weigh the juror’s responses in deciding whether to remove the juror for cause.
The trial court’s resolution of these factual matters is binding on the appellate
court if supported by substantial evidence. [Citation.] ‘[W]here equivocal or
conflicting responses are elicited regarding a prospective juror’s ability to impose
the death penalty, the trial court’s determination as to his true state of mind is
binding on an appellate court.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 910.)
As is often the case, Jurors C.B. and L.T. gave conflicting and equivocal
responses when, during voir dire, they were asked about their views on capital
punishment. In her jury questionnaire, Juror C.B. reported that she had “strong”
feelings about the death penalty because she did “not believe anyone but God has
the right to decide that question.” When initially questioned by defense counsel,
she agreed that she would “live up to [her] obligation as a juror . . . [and] base
[her] decision on the law and the evidence.” When questioned by the trial judge
and the parties, she initially stated that her views against the death penalty would
“probably not” cause her to vote against the special circumstance allegation
although convinced it was true. When asked whether she “would . . . always vote
for life without possibility of parole and never even consider [voting] for death,”
she replied: “I don’t know. I guess at this point I would say I don’t know because
I have never been in this position before.” Following up, the court rephrased the
question and asked her whether “you are always going to say life without
possibility of parole and never vote for the death penalty?” She replied: “I don’t
think so.” When questioned by the prosecutor, however, she reaffirmed that she
had a “strong feeling” against the death penalty and first stated that she would
have “a lot of trouble” voting for death, before agreeing that she “probably would”
always vote for life over death.
The following colloquy then occurred:
“[THE PROSECUTOR]: . . . you in effect will be saying put this man to
death, that’s what you’ll be saying, and what I need to find out is are your feelings
about the death penalty such that you just could not make that kind of decision?
“[JUROR C.B.]: I’m going to say it is yes, yes.
“[THE PROSECUTOR]: So you feel that because of your moral feelings you
could not vote to impose the death penalty?
“[JUROR C.B.]: Yes.
“[THE PROSECUTOR]: That’s a correct statement?
“[JUROR C.B.]: Yes.”
She was rehabilitated somewhat by defense counsel, agreeing that she
could not definitively make up her mind until she had heard the actual aggravating
and mitigating evidence. The trial court then excused her for cause. In light of her
equivocal answers on voir dire, we defer to the trial court’s implicit determination
regarding Juror C.B.’s state of mind and conclude substantial evidence supports
the court’s ruling the juror’s views on the death penalty would “ ‘prevent or
substantially impair the performance of [her] duties as a juror in accordance with
[her] instructions and [her] oath.’ ” (Wainwright v. Witt, supra, 469 U.S. at
We reach the same conclusion with regards to Juror L.T.; indeed, her
responses on voir dire were less equivocal. She reported on her questionnaire that
she had strong feelings against the death penalty. When asked to explain, she
wrote: “I don’t believe in taking a life.” Her strong anti-capital-punishment
beliefs informed her responses to the trial court’s questions, affirming that she
“could never bring [herself] to vote for the death penalty” and would always vote
for life without possibility of parole. Although she also asserted that “it depends
on the case, too. I mean, what I hear might change my mind,” she averred that she
would “never vote for the death penalty.” Although defense counsel rehabilitated
her somewhat, the overall thrust of her voir dire was that she would never vote to
execute someone. We find substantial evidence to support the trial court’s ruling
to excuse her and conclude the court did not abuse its broad discretion. In sum,
we find neither Juror C.B. nor Juror L.T. was improperly excused for cause, and
no violation of defendant’s right to an impartial jury occurred.
C. Trial Issues
1. Failure to Specify the Degree of the Murder
Defendant contends that because the jury failed to set the degree of the
murder when it initially delivered its verdict, he was convicted of only second
degree murder by operation of section 1157. That section provides in pertinent
part: “Whenever a defendant is convicted of a crime . . . which is distinguished
into degrees, the jury . . . must find the degree of the crime . . . of which he is
guilty. Upon the failure of the jury . . . to so determine, the degree of the crime . . .
of which the defendant is guilty, shall be deemed to be of the lesser degree.”
Because section 1157 precludes a finding of first degree murder, he argues, the
felony-murder special-circumstance findings and the penalty judgment must be
reversed. We disagree. As we explain, appellate review of this issue is precluded
by the doctrine of law of the case. Moreover, assuming the issue were properly
before us, section 1157 is inapplicable under the circumstances of this case, as we
explained in both People v. Bonillas (1989) 48 Cal.3d 757 (Bonillas) and People v.
Mendoza (2000) 23 Cal.4th 896 (Mendoza).
Defendant was charged by information with the crime of murder
undifferentiated by degree, as is usual in such cases. The case was tried on the
theory that defendant had committed murder in the first degree because he killed
the victim in the commission of a burglary, robbery, and rape.7 Accordingly, the
At one point near the end of the guilt phase, the prosecutor asserted that he
intended to request the jury be instructed on the theory of a deliberate and
(footnote continued on next page)
jury was instructed solely on the theory of first degree felony murder. The court
delivered no instructions on the theory of premeditation and deliberation, second
degree murder, manslaughter, or the degree of the murder.8 On Wednesday,
February 22, 1989, at 3:45 p.m., the jury returned the following verdict: “We the
jury in the above-entitled action find the defendant Mario Lewis Gray guilty of
murder in violation of Penal Code section 187(a), a felony, as alleged in Count I of
the information.” The jury was polled and then instructed to return on Friday
morning, i.e., in less than two days. The court admonished the jury “not to discuss
the case with each other or anybody else.”
The next morning, Thursday, February 23, 1989, both the trial court and the
prosecutor raised the jury’s failure to expressly specify the degree of the murder in
the verdict form. The prosecutor suggested that when the jury reconvened the
following day, the court either poll the jurors to determine whether they had found
the degree of the murder or ask them to resume deliberations to determine the
degree. The court granted defense counsel’s request for a recess to research the
law on this issue. When the parties reassembled without the jury later that same
day, defense counsel argued the jury’s verdict of murder without setting the degree
meant defendant was convicted of second degree murder by operation of section
1157. The trial court announced that it intended to ask the jury to renew its
deliberations and render a verdict on the degree of the murder.
(footnote continued from previous page)
premeditated murder. The next day, he explained he had misspoken and that he
intended to rely solely on the theory of felony murder.
Defendant requested an instruction defining homicide as including murder
“and manslaughter,” but it was refused. Defendant did not request instructions on
second degree murder or manslaughter, and the trial court noted that defendant
declined to request CALJIC No. 8.70 regarding the degree of the murder.
Court reconvened on the morning of Friday, February 24, 1989. The trial
court gave the jury amended verdict forms and asked it to “return to the jury room,
deliberate, and render your verdict as to Count 1 using the revised verdict forms.”
After additional deliberation, the jury returned a verdict of first degree murder.
The court then declared a recess, ostensibly for one week, to enable defendant to
seek writ relief from the Court of Appeal. The appellate court stayed the trial
proceedings and then granted writ relief in defendant’s favor, finding he had been
convicted of second degree murder by operation of section 1157. Respondent then
petitioned this court for review. We granted and transferred the case back to the
Court of Appeal with directions to vacate its opinion and reconsider the case in
light of Bonillas, supra, 48 Cal.3d 757. After reconsidering the issue, the Court of
Appeal issued an opinion denying relief. We denied defendant’s petition for
review. The parties then returned to the trial court and proceeded to commence
the long-delayed penalty phase of the trial.
b. Law of the Case
As noted, the Court of Appeal decided 11 years ago that, despite the jury’s
initial omission when rendering its verdict, section 1157 did not compel the
conclusion that defendant was convicted of murder only in the second degree.
Accordingly, defendant is precluded from relitigating the issue by the doctrine of
law of the case. “ ‘The rule of “law of the case” generally precludes multiple
appellate review of the same issue in a single case. The doctrine applies to this
court even though the previous appeal was before a Court of Appeal. . . . “Where
a decision upon appeal has been rendered by a District Court of Appeal and the
case is returned upon a reversal, and a second appeal comes to this court directly
or intermediately, for reasons of policy and convenience, this court generally will
not inquire into the merits of said first decision, but will regard it as the law of the
case.” [Citations.]’ ” (In re Rosenkrantz (2002) 29 Cal.4th 616, 668.)
“The principal reason for the doctrine is judicial economy. ‘Finality is
attributed to an initial appellate ruling so as to avoid the further reversal and
proceedings on remand that would result if the initial ruling were not adhered to in
a later appellate proceeding.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 786
(Stanley); see also People v. Shuey (1975) 13 Cal.3d 835, 841-842.) The law of
the case doctrine applies in criminal cases (Stanley, supra, at p. 786) and to capital
cases before this court even where the prior decision was made by an intermediate
appellate court (id. at p. 787; People v. Martinez (2003) 31 Cal.4th 673, 683).
We will apply the law of the case doctrine where the point of law involved
was necessary to the prior decision and was “ ‘actually presented and determined
by the court.’ ” (People v. Shuey, supra, 13 Cal.3d at p. 842.) The doctrine will
not be applied, however, when such application leads to an unjust result. Because
the law of the case doctrine “is merely one of procedure and does not go to the
jurisdiction of the court [citations], the doctrine will not be adhered to where its
application will result in an unjust decision, e.g., where there has been a ‘manifest
misapplication of existing principles resulting in substantial injustice’ [citation], or
the controlling rules of law have been altered or clarified by a decision intervening
between the first and second appellate determinations. [Citation.] The unjust
decision exception does not apply when there is a mere disagreement with the
prior appellate determination.” (Stanley, supra, 10 Cal.4th at p. 787.)
Defendant does not dispute that the question whether section 1157 applies
to the facts of his case was presented to, and decided by, the Court of Appeal, or
that resolution of the issue was necessary to that court’s decision. He argues,
however, that we should apply the “unjust result” exception to the law of the case
doctrine because (1) the Court of Appeal decision contained “egregious errors,”
and (2) it would be unjust to affirm, in the name of judicial economy, a sentence of
death containing serious flaws.
Defendant’s argument that the Court of Appeal committed “egregious
errors” when it decided the issue is a spare one with no elaboration. Thus, that the
court “adopted as the rationale of its majority opinion the very argument that it had
recognized as insufficient only five months earlier” is easily explained by the fact
that this court vacated the appellate court’s initial opinion and directed it to
reconsider the issue in light of Bonillas, supra, 48 Cal.3d 757. Defendant does not
explain how the Court of Appeal “[f]undamentally misconstrued Penal Code
sections 1161 and 1164,”9 but the court’s reasoning appears congruent with our
own in Bonillas. Although defendant accuses the Court of Appeal of “ignor[ing]
adverse precedent that it could not distinguish, even through mischaracterization,”
defendant does not identify such allegedly adverse precedent. We remind litigants
that an opening brief must support each legal point with “argument and, if
possible, by citation of authority.” (Cal. Rules of Court, rule 14(a)(1)(B); Stanley,
supra, 10 Cal.4th at p. 793.)
Defendant also argues that applying the law of the case doctrine here would
be unjust because his very life should not be subordinated to the institutional
Section 1161 states in pertinent part: “When there is a verdict of
conviction, in which it appears to the Court that the jury have mistaken the law,
the Court may explain the reason for that opinion and direct the jury to reconsider
their verdict . . . .”
Section 1164, subdivision (a) states: “When the verdict given is receivable
by the court, the clerk shall record it in full upon the minutes, and if requested by
any party shall read it to the jury, and inquire of them whether it is their verdict. If
any juror disagrees, the fact shall be entered upon the minutes and the jury again
sent out; but if no disagreement is expressed, the verdict is complete, and the jury
shall, subject to subdivision (b), be discharged from the case.”
interest of judicial economy. This contention is simply a repackaging of the
argument that the doctrine should not apply in capital cases. As noted, we have
rejected that position. (Stanley, supra, 10 Cal.4th at p. 787.)
Assuming the “unjust result” exception does not apply here, defendant also
contends that, because this is a capital case, application of the doctrine would
deprive him of his state constitutional right to a direct appeal to this court (see Cal.
Const., art. VI, § 11 [“The Supreme Court has appellate jurisdiction when
judgment of death has been pronounced”]), as well as deprive him of due process
under the Fifth and Fourteenth Amendments to the United States Constitution.
We reject this argument because it also reiterates, in only slightly different
fashion, the argument that the law of the case doctrine should not apply in capital
cases. (Stanley, supra, 10 Cal.4th at p. 787.) Defendant further argues Stanley
and the cases on which it relied are distinguishable because, unlike those cases, his
life or death depends directly on whether the lower appellate court was correct,
whereas in prior cases, the effect of the legal issue in question on the efficacy of
the death penalty was only indirect. Stanley, however, relied on no such
direct/indirect distinction. The provision in the state Constitution for the
automatic appeal to this court for capital cases presumably reflects the relative
importance of such cases generally, not whether a particular defendant’s life hangs
in the balance on the outcome of any specific legal issue. We reiterate that the
existence of a death sentence is insufficient to avoid application of the law of the
case doctrine, and defendant does not persuade us otherwise.
Failing to distinguish Stanley, supra, 10 Cal.4th 764, defendant argues we
should reconsider that case “since the necessary consequence of that decision is to
deprive [him] of his state and federal constitutional rights.” Although it is true
that automatic review by the state’s highest court provides an important procedural
safeguard in capital cases (see Gregg v. Georgia (1976) 428 U.S. 153, 198), the
rule we reiterate and adhere to today does not undermine the importance of
automatic review. This court was not locked out of the midtrial proceedings that
sought to determine whether the degree of the murder should be reduced by
section 1157. Indeed, we reviewed the matter twice, once on a petition by the
People, and again in response to a petition by defendant. Moreover, if application
of the law of the case doctrine would lead to an unjust result here, we would
decline to apply it. Under the circumstances, the rule set forth in Stanley, supra,
10 Cal.4th at page 787, does not result in the removal of this court’s review of
capital cases in any meaningful sense.
In sum, defendant’s attempt to relitigate this issue is barred by the law of
the case doctrine.
c. Bonillas and Mendoza
Even assuming for argument the law of the case doctrine does not apply,
we find the trial court did not err in resubmitting the question of the degree of the
murder to the jury because the trial court retained control over the jury and
resubmitted the question almost immediately. We addressed this precise issue in
Bonillas, supra, 48 Cal.3d 757, which posed almost identical facts. We explained:
“Where, as here, further proceedings are to take place, the jury has not been
discharged, the jurors have been specifically instructed that they are still jurors in
the case, they have been admonished not to discuss the case with anyone nor to
permit anyone to discuss the case with them, and they have been directed not to
read anything about the case, the jurors have not thrown off their character as
jurors nor entered the outside world freed of the admonitions and obligations
shielding their thought processes from outside influences. Clearly, the jury here
remained within the court’s control [citations], their verdict was incomplete, and
the court was authorized to reconvene the jury to complete its verdict.” (Id. at
Defendant attempts to distinguish Bonillas, but he raises the same
arguments he made before the Court of Appeal in his pretrial writ proceeding.
Thus, he first argues Bonillas was premised on the fact the jury’s verdict contained
an error because it was “incomplete.” Here, by contrast, the information did not
charge him with first degree murder, nor did the instructions specifically require
the jury to make a finding as to degree; hence, his jury’s initial verdict was
“complete” under the instructions given and under the law.
We agree with the Court of Appeal, which observed that although Bonillas
used the terms “incomplete” and “irregular” somewhat loosely, it did not
pronounce a rigid rule excepting from the operation of section 1157 only those
cases where the initial verdict is “incomplete” as measured by what the
instructions asked the jury to decide. In any event, as the appellate court
explained, on the facts of this case, the jury’s verdict was in fact incomplete
because the instructions, read as a whole, fairly asked the jury to return a verdict
as to degree. Thus, the jury was subject to reconvening under Bonillas.
Moreover, even if the verdict was complete under the jury instructions, it was still
incomplete and irregular under the law, justifying the trial court’s decision to
reconvene the jury for further deliberations, so long as the jury had not been
discharged and had been admonished not to discuss the case or read any news
accounts of the case.10
People v. Hendricks (1987) 43 Cal.3d 584, cited by defendant, is
distinguishable. In Hendricks, the trial court called back jurors it had discharged
five months earlier in order to conduct a new sanity phase of the trial. (Id. at
p. 589.) By contrast, the trial court in the instant case had not yet discharged the
(footnote continued on next page)
Even were we to conclude Bonillas could be validly distinguished,
adherence to the rule announced recently in Mendoza, supra, 23 Cal.4th 896,
requires that we reject defendant’s arguments. In that case, we clarified the proper
interpretation of section 1157 in felony-murder cases, explaining that where the
prosecution’s sole theory in a murder case is felony murder, a defendant subject to
such a verdict is “not ‘convicted of a crime . . . which is distinguished into
degrees’ within the plain and commonsense meaning of section 1157.” (Mendoza,
supra, at p. 908.) Accordingly, section 1157 cannot operate in such a case to
reduce the degree of the crime to the lesser degree.
Defendant was prosecuted on the theory that Ruby Reed died while he was
engaged in the commission of several felonies. In closing argument, the
prosecutor, in arguing defendant was guilty of first degree murder, relied only on a
theory of felony murder, and the court instructed the jury on that theory alone. No
instruction was given on premeditation or deliberation. Accordingly, as in
Mendoza, supra, 23 Cal.4th at page 908, defendant was not convicted of a crime
“ ‘distinguished into degrees’ ”; therefore, section 1157 cannot apply to reduce the
degree of the crime.
We reject defendant’s two counterarguments. First, he contends Mendoza’s
interpretation of section 1157 violates his constitutional rights because it permits
imposition of a harsher sentence based on a fact not found by the jury beyond a
reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466.) But Apprendi
and its progeny (see Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531])
have little to do with this issue. Defendant was sentenced to death, the statutory
(footnote continued from previous page)
jurors, had retained control over them, and had pointedly admonished them to
avoid improper influences and not to discuss the case.
maximum penalty for first degree murder (§ 190, subd. (a)), based on the jury’s
finding beyond a reasonable doubt that he was guilty of first degree murder with
special circumstances. Defendant’s Apprendi argument presupposes that
resubmitting the issue of degree to the jury, which occurred in this case, was
somehow improper. Because it was not, Apprendi’s jury requirement was
satisfied, and thus Apprendi does not undermine Mendoza in any way.
Second, defendant contends the retroactive application of Mendoza to his
case violates due process of law under the Fourteenth Amendment to the United
States Constitution. We addressed this issue in Mendoza itself, concluding that
full retroactivity does not violate due process because “our holding ‘neither
expands criminal liability nor enhances punishment for conduct previously
committed.’ ” (Mendoza, supra, 23 Cal.4th at p. 925.)
d. Instruction on the Revised Verdict Form
Before the jury resumed its deliberations on the question of degree, the trial
court charged the jury with this instruction: “The verdict forms originally given
you concerning Count 1 should have specified murder in the first degree instead of
simply murder. [¶] Revised forms of verdicts as to Count 1 will now be given you
specifying murder in the first degree. [¶] Please return to the jury room,
deliberate, and render your verdict as to Count 1 using the revised verdict forms.”
Defendant contends the instruction was erroneous because it “effectively
direct[ed] a verdict for first degree murder” in violation of his Sixth Amendment
right to a jury trial, as well as his due process right to a fair trial. We disagree.
Although to direct a verdict in a criminal case is constitutionally impermissible no
matter how strong the evidence (see People v. Figueroa (1986) 41 Cal.3d 714,
725-726), the trial court’s instruction did not violate this rule. The jury was given
two verdict forms when it retired to renew its deliberations. The first form stated
defendant was “guilty” of “MURDER IN THE FIRST DEGREE.” The jury
returned this form, dated and signed by the jury foreperson. The jury was also
given a form to find defendant not guilty of first degree murder. The jury returned
this form unsigned. Contrary to defendant’s argument, the court’s instruction did
not direct the jury to return a guilty verdict or to find the murder was in the first
degree. Instead, the jury was instructed to “deliberate, and render your verdict as
to Count 1 using the revised verdict forms.” The word “forms” is plural,
suggesting the jury should choose between the two verdict forms, one for guilty,
one for not guilty. Accordingly, we reject the argument that the trial court’s
instruction was the equivalent of a directed verdict. To the extent defendant also
argues his trial attorney was ineffective for failing to object to the instruction, we
reject that argument as well, both because the instruction was unobjectionable and
because counsel objected to the entire procedure of having the jury resume
deliberations, an objection we take to include reinstructing the jury.
In sum, we find no error in submitting to the jury the question of the degree
of the murder two days after it initially returned its guilt phase verdict. We
similarly find the trial court’s instruction to the jury when submitting the question
of degree was not erroneous.
2. Admission of Defendant’s Crimes Against J.S. and S.B.
The prosecutor moved before trial to introduce testimony from J.S. and her
granddaughter, S.B., concerning the crimes defendant committed against them in
1983 when he broke into their apartment late at night, tied up J.S., beat and kicked
her, and sexually molested S.B. The trial court ruled the evidence was admissible
on the issues of identity and intent. Defendant now contends the admission of
evidence of his unadjudicated 1983 crimes (see ante, at p. 9, fn. 1) violated
Evidence Code section 1101, subdivision (b). We disagree.
The rules governing the admissibility of evidence of other crimes are
familiar and well settled. Evidence Code section 1101, subdivision (b) provides in
pertinent part that evidence of other crimes is admissible “when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident . . .) other than his or her disposition to
commit such an act.” “ ‘Evidence of the defendant’s commission of a crime other
than one for which the defendant is then being tried is not admissible to show bad
character or predisposition to criminality but it may be admitted to prove some
material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because
evidence of other crimes may be highly inflammatory, its admissibility should be
scrutinized with great care. [Citation.]’ [Citation.] In cases in which the
prosecution seeks to prove the defendant’s identity as the perpetrator of the
charged offense by evidence he had committed uncharged offenses, admissibility
‘depends upon proof that the charged and uncharged offenses share distinctive
common marks sufficient to raise an inference of identity.’ ” (People v. Medina
(1995) 11 Cal.4th 694, 748.) “A somewhat lesser degree of similarity is required
to show a common plan or scheme and still less similarity is required to show
intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) On appeal, we review a
trial court’s ruling under Evidence Code section 1101 for abuse of discretion.
(People v. Lewis (2001) 25 Cal.4th 610, 637.)” (People v. Roldan, supra, 35
Cal.4th at p. 705.)
“As Evidence Code section 1101, subdivision (b) recognizes, that a
defendant previously committed a similar crime can be circumstantial evidence
tending to prove his identity [and] intent . . . in the present crime. Like other
circumstantial evidence, admissibility depends on the materiality of the fact sought
to be proved, the tendency of the prior crime to prove the material fact, and the
existence vel non of some other rule requiring exclusion. [Citation.] Defendant
placed all issues in dispute by pleading not guilty.” (People v. Roldan, supra, 35
Cal.4th at pp. 705-706.) Accordingly, the identity of the person who robbed,
raped, sodomized, and killed Ruby Reed, and that person’s intent when
committing those crimes, were material facts.
Defendant’s guilt of the crimes against J.S. and S.B. tends to prove these
material facts. “For identity to be established, the uncharged misconduct and the
charged offense must share common features that are sufficiently distinctive so as
to support the inference that the same person committed both acts. [Citation.]
‘The pattern and characteristics of the crimes must be so unusual and distinctive as
to be like a signature.’ ” (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) “The
highly unusual and distinctive nature of both the charged and uncharged offenses
virtually eliminates the possibility that anyone other than the defendant committed
the charged offense.” (People v. Balcom (1994) 7 Cal.4th 414, 425.)
As the prosecutor argued in his written points and authorities in support of
his motion, defendant’s 1983 crimes against J.S. and S.B. were eerily similar to
the present crimes against Ruby Reed. In both crimes (1) the victim was attacked
in her home, (2) the crime occurred in the late evening or early morning, (3) the
victims included older women, (4) the assailant tied the victim’s hands behind her
back, (5) the assailant tied the victim’s ankles together, (6) the assailant wrapped a
towel around the victim’s head, (7) the assailant pulled up the victim’s nightgown,
(8) the assailant beat the victim severely, (9) the assailant engaged in criminal
sexual conduct, (10) the assailant left candy wrappers at the crime scene, (11) the
assailant left personal property at the crime scene, (12) the assailant ransacked the
bedroom, (13) the assailant took money, and (14) the assailant “made himself at
The prosecutor expanded on these similarities in oral argument at the
hearing on the motion. In both the 1983 crimes (against J.S. and S.B.) and the
1987 crimes (against Ruby Reed), the assailant smoked cigarettes and left ashes at
the crime scene. On both occasions, the assailant also left candy wrappers around
the premises. In the 1983 crimes, the victim heard her assailant using her
telephone; in the 1987 crimes, cigarette ashes left by the telephone suggested the
perpetrator had used the telephone. In the 1983 crimes, the assailant watched
television while the victim lay on the floor, bound and helpless; in the 1987 crime,
candy wrappers and ashes found near the chair in which one would sit to watch
television suggested the perpetrator had watched television. In both crimes, shoe
boxes were removed from a bedroom closet, opened, and then thrown on the floor.
In 1983, the assailant pulled victim J.S. by her mouth; in 1987, the victim’s false
teeth were found near her body. We might add that in both crimes the assailant
bound the victim with materials procured at the scene; in neither did he bring rope
with him. In light of the distinctiveness and similarity of the characteristics the
two sets of crimes shared, the trial court did not abuse its discretion in ruling the
jury could legitimately infer from evidence of the 1983 crimes that the same
person had committed the 1987 crimes.
On the issue of intent, defendant argues J.S.’s testimony was inadmissible
because defendant’s 1983 crimes did not involve a homicide and thus were not
probative on whether he harbored the intent to kill when he attacked Reed four
years later. This contention has two answers. First, J.S. testified that when she
first realized defendant was in her room, defendant told her not to make any noise
or he would kill S.B. Similarly, S.B. testified defendant coerced her to orally
copulate him by threatening to harm her grandmother. This proclaimed readiness
to kill during a burglary was probative of defendant’s intent in 1987 when he
committed a similar break-in. Indeed, the prosecutor made this precise point in
closing argument. Second, that no murder occurred during the 1983 crimes may
have been because J.S. attempted to escape and defendant lost control of the
victims, convincing him to flee and avoid capture. That J.S. and S.B. survived
their ordeal does not strongly distinguish defendant’s 1983 crimes from those
committed in 1987 against Reed that resulted in her death. We therefore reject
defendant’s assertion that the evidence of the 1983 crimes gave the jury no basis
from which to infer what he might have intended when he committed a similar
crime in 1987.
To the extent defendant contends his crimes against J.S. should not have
been admitted because they were not probative of his intent to rape and sodomize
Reed, we reject this claim as well, because, assuming error, it was harmless under
any standard. Even should the trial court have excluded the evidence on the issue
of intent to commit rape and sodomy, its admission could not have been
prejudicial because the evidence was already properly admitted on the issues of
identity and intent to kill. Moreover, defendant’s intent to commit rape and
sodomy was shown by ample circumstantial evidence. We reach the same
conclusion with respect to the issue of intent to commit robbery and burglary.
Defendant argues that S.B.’s testimony “was completely irrelevant to either
identity or intent for any charged crime” because her grandmother had already
testified and reported the basic details of the crime, and that S.B.’s testimony
“added only the highly inflammatory detail that [defendant] asked a young girl to
orally copulate him.” This complaint does not so much challenge the ruling under
Evidence Code section 1101, as assert that the evidence was subject to exclusion
under Evidence Code section 352 because it was cumulative and more prejudicial
than probative. The court denied defendant’s section 352 motion to exclude S.B.’s
testimony, and we find no abuse of discretion. (People v. Cox (2003) 30 Cal.4th
916, 955 [applying abuse of discretion standard].) S.B. confirmed her
grandmother’s account of the crime in important respects, including how the
attack turned sexual once the victims were at defendant’s mercy, defendant’s
willingness to hurt her grandmother, and that defendant left personal items in the
apartment. Moreover, S.B.’s testimony was brief, taking up just four pages of
3. Alleged Ineffective Assistance of Counsel: Defense Expert
Defendant next contends his trial attorney was constitutionally ineffective
because he failed to object to testimony and argument suggesting his defense
experts’ forensic testing had confirmed the prosecution experts’ findings and to
the prosecutor’s reliance on that same evidence in closing argument. The
testimony and argument were inadmissible and subject to an objection, he claims,
because they constituted improper comment on the exercise of a recognized
privilege in violation of Evidence Code section 913. In addition, he claims such
comment was inadmissible as violative of his state and federal constitutional rights
to the effective assistance of counsel under the Sixth and Fourteenth Amendments
to the United States Constitution (and state corollaries) by interfering with his
attorney-client relationship and as violative of his federal constitutional right to
due process under the Fifth and Fourteenth Amendments because it tended to
interfere with his ability to prepare and present a defense. We conclude counsel
was not ineffective because he in fact objected to the complained-of testimony on
attorney-client privilege grounds, and his failure to object on other grounds was, if
deficient, harmless because it is not reasonably probable defendant would have
enjoyed a different result had counsel objected.
When the prosecution’s forensic expert witnesses on fingerprint
identification, hair analysis, and serology testified, the prosecutor asked each of
them, largely without objection, whether the evidence they tested was made
available to defense experts. In each instance, the answer was affirmative. For
example, Deputy Sheriff McRoberts testified he processed the Frontier Hotel
receipt for fingerprints. The prosecutor asked him: “Have you shown any of the
evidence to an individual that’s been retained by [defendant] in this case?” The
prosecutor also asked him: “And you provided all of those fingerprints to the
individual that has been retained by [defendant]?” McRoberts answered in the
affirmative to both questions.
During the testimony of the prosecution’s serologist, Elizabeth Kornblum,
the following colloquy occurred:
“Q. [THE PROSECUTOR:] You did indicate that certain of the items
[tested], you keep them in a permanent state; is that correct?
“A. [THE WITNESS:] That’s correct.
“Q. And they’re still available to be examined by anybody that the defense
would want to have look at them; is that correct?”
“A. Yes, it is.
“Q. And then that individual or individuals, after they actually examine
those particular exhibits could come in and either say you are crazy or you’re right
or you’re wrong or whatever they wanted to say?
“A. That’s correct.
“Q. Now, in this particular case, these exhibits were released to a defense
lab; is that correct?
At this point, defense counsel objected on the grounds of relevancy and
attorney-client privilege. The trial court immediately overruled the relevancy
objection. After the prosecutor explained that he was not seeking to elicit any
evidence as to the results defense testing might have obtained, the trial court also
denied the objection based on privilege.
In closing argument, the prosecutor argued the evidence defendant’s
fingerprint was left at the crime scene on the hotel receipt was “uncontradicted”
and that, regarding the hair and blood evidence, both prosecution expert witnesses
(Burke and Kornblum) “testified that the defense actually tested these things for
themselves. [¶] You didn’t hear defense experts coming in here and saying Burke
was wrong or that Kornblum was wrong or that Hannah Woods was wrong when
she made this fingerprint [identification].” Later, concerning Kornblum, the
prosecutor said: “[T]he defense can attack her all they want—but she said all
items were made available to a defense lab, and if the defense went through the
trouble of putting on Dr. Ryan [a defense expert,] you know very well that if the
results the defense had from their lab were in one iota different or unreliable, if
there was a different result than what Liz Kornblum got, we would have heard
what the defense lab did in this case. You know it and I know it. We didn’t hear
from them. [¶] One rational conclusion. They got the same results as Liz
Kornblum.” Defense counsel did not object.
The standard for showing ineffective assistance of counsel is well settled.
“In assessing claims of ineffective assistance of trial counsel, we consider whether
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in
the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v.
Ledesma (1987) 43 Cal.3d 171, 217.) A reviewing court will indulge in a
presumption that counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a matter
of sound trial strategy. Defendant thus bears the burden of establishing
constitutionally inadequate assistance of counsel. (Strickland v. Washington,
supra, at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.) If the record on
appeal sheds no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel must be rejected
unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266.) Otherwise, the claim is more appropriately raised in a petition
for writ of habeas corpus.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
“Failure to object rarely constitutes constitutionally ineffective legal
representation.” (People v. Boyette, supra, 29 Cal.4th at p. 424.)
Defendant relies on four theories for his claim that his defense counsel
should have objected to testimony and argument that suggested defense experts
had confirmed the findings of the prosecution experts. First, he claims the
evidence was inadmissible (and the argument improper) because it constituted
comment on the invocation of his attorney-client privilege in violation of Evidence
Code section 913, subdivision (a). That statute provides: “If in the instant
proceeding or on a prior occasion a privilege is or was exercised not to testify with
respect to any matter, or to refuse to disclose or to prevent another from disclosing
any matter, neither the presiding officer nor counsel may comment thereon, no
presumption shall arise because of the exercise of the privilege, and the trier of
fact may not draw any inference therefrom as to the credibility of the witness or as
to any matter at issue in the proceeding.”
Counsel was not ineffective on this theory because he essentially objected
on this ground. As noted, when the prosecutor asked serologist Kornblum whether
she had made blood and semen samples available for testing by defense experts
and whether such samples were in fact “released to a defense lab,” defense counsel
objected on the ground of attorney-client privilege. Although counsel did not cite
Evidence Code section 913, we deem the objection sufficient to raise the issue.
Having had his objection overruled during Kornblum’s testimony, defense counsel
reasonably may have decided to forgo making a similar objection during the
prosecutor’s closing argument, believing such an objection would have been futile.
Second, defendant contends the admission of Kornblum’s testimony and the
prosecutor’s argument violated Evidence Code section 913 in that it constituted
comment on his invocation of the work-product privilege. Although defense
counsel failed to object on this ground, he was not ineffective for failing to do so
because such evidence and argument did not constitute “comment” on the
“exercise of a privilege.” The comments to section 913 by the Assembly
Committee on the Judiciary explain that the statute “deals only with comment
upon, and the drawing of adverse inferences from, the exercise of a privilege.
Section 913 does not purport to deal with the inferences that may be drawn from,
or the comment that may be made upon, the evidence in the case.” (Assem. Com.
on Judiciary com., 29B pt. 3 West’s Ann. Evid. Code (1995 ed.) foll. § 913, p. 168,
italics added.) Information that forensic evidence was made available to the
defense does not constitute comment on the “exercise of” the work product
Evidence Code section 913 aside, however, defendant contends counsel
was ineffective for failing to object to the prosecutor’s argument on the ground
that such argument violated the work-product privilege. (People v. Coddington
(2000) 23 Cal.4th 529, 605-606, overruled on other grounds in Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Even assuming for argument counsel
should have objected on this ground, counsel’s failure to object did not result in
prejudice. The prosecution’s expert witnesses all testified that a scientific analysis
of blood, semen, fingerprints, footprints, and hair found at the crime scene
implicated defendant as the perpetrator of the crimes. Defendant presented no
evidence to dispute these conclusions, and the jury had no reason to question
them. In the absence of prejudice, counsel could not have been constitutionally
ineffective, even if he should have objected on the ground of work product
privilege. (In re Cox (2003) 30 Cal.4th 974, 1019-1020 [no need to address issue
of deficient performance if no prejudice resulted].)
Defendant contends his trial attorney should have objected on yet two
additional grounds. Defendant contends Kornblum’s testimony that forensic
information was made available to defense experts and prosecutorial argument that
the jury should infer that such experts would have confirmed the prosecution
witnesses’ conclusions violated (1) defendant’s federal and state constitutional
right to the effective assistance of counsel under the Sixth and Fourteenth
Amendments to the United States Constitution and corollary state provisions by
interfering with his attorney-client relationship, and (2) his federal constitutional
right to due process under the Fifth and Fourteenth Amendments because it
interfered with his ability to prepare and present a defense.
The record does not indicate why counsel failed to object on these grounds;
perhaps counsel chose not to contest the forensic evidence vigorously so as to
focus on the testimony of the defense expert, Dr. John Ryan, whose examination
of the evidence led him to conclude that the murder victim died of asphyxiation
because the gag pushed her tongue back so as to occlude her windpipe. If the jury
were to believe this version of events, defense counsel could argue (as he did) that
defendant did not intend to kill the victim, thereby sparing him the death penalty.
But even were we to assume a reasonably diligent advocate would have objected
on these two grounds, defendant fails to persuade us that counsel’s omission
resulted in prejudice. (In re Cox, supra, 30 Cal.4th at pp. 1019-1020.) Absent the
now challenged inference the prosecutor raised in closing argument, the jury was
still apprised that prosecution experts believed that an analysis of the semen,
blood, hair, fingerprints, and shoeprints all inculpated defendant, that no defense
evidence contradicted this forensic evidence, that a hotel receipt found at the crime
scene bore defendant’s fingerprint, that defendant behaved suspiciously at the
hotel, and that he made inculpatory statements to Aaron Cansadillas. There being
no prejudice, defense counsel’s failure to object on the identified grounds was not
4. Alleged Ineffective Assistance of Counsel: Other Claims
We have discussed and rejected defendant’s claim that his trial attorney was
ineffective for failing to prevent the prosecutor from eliciting testimony and
presenting argument concerning defendant’s expert consultants. (See discussion,
ante, at pp. 40-46.) Leaving no stone unturned, defendant also contends his trial
counsel failed in numerous instances large and small to “exercise the degree of
skill ordinarily exercised by reasonably competent defense counsel in a capital
trial” and that the cumulative effect of these multiple transgressions and omissions
resulted in the ineffective assistance of counsel in violation of his constitutional
rights. We reiterate that “[f]ailure to object rarely constitutes constitutionally
ineffective legal representation.” (People v. Boyette, supra, 29 Cal.4th at p. 424.)
We address these claims seriatim.
a. Failure to Object or Limit Alleged Errors
As explained ante, at pages 35-40, the trial court did not err in admitting
J.S.’s and S.B.’s testimony concerning defendant’s crimes against them in 1983.
Concerning their testimony, defendant contends counsel was ineffective for:
(1) failing to distinguish, in his moving papers, “between the differing legal
standards applicable to prior crimes evidence when used for identity and intent”;
(2) failing to argue S.B.’s testimony was “completely irrelevant”; (3) failing to
argue the testimony of J.S. and S.B., even if admissible, was not relevant to
whether he harbored the intent to kill; and (4) failing to propose a modified
version of CALJIC No. 2.50 that could have limited the damaging effect of these
witnesses by clarifying to which of the charged crimes the jury could apply the
other crimes evidence, and explaining the differing rationales for the admission of
the evidence. We disagree.
(1) Regarding the different legal standards for admitting other crimes
evidence for identity and intent, counsel addressed this issue in his oral
presentation to the court, as defendant admits. We perceive no prejudice from
counsel’s failure to make this point in his moving papers; certainly the trial court
did not appear to misunderstand this point, ruling separately as to identity and
intent. (2) As to S.B.’s testimony, we find it quite relevant, corroborating her
grandmother’s testimony generally and cementing defendant’s intent to commit
sexual offenses once the victims were incapacitated. (3) The testimony of both
J.S. and S.B. was also relevant to proving intent to kill, as defendant threatened to
harm both victims if they did not cooperate. His proclaimed readiness to use
violence against these two victims was thus relevant to whether he also would use
violence against Reed. (4) Because we find the testimony of J.S. and S.B. was
properly admitted, the trial court would have had no basis for modifying CALJIC
b. Failure to Seek an Instruction on His Prior Prison Term
Defendant next argues counsel was ineffective for failing to seek an
instruction to inform the jury that he had spent four years in prison for his crimes
against J.S. and S.B. Such an instruction, he claims, would have “obviate[d] the
danger the jury would punish [him] for crimes for which he had already been
punished.” The record is silent as to why counsel failed to seek such an
instruction. Counsel may have been concerned the jury could have believed
defendant spent too little time in prison for his crimes or that he committed the
current crime shortly after being released from prison. Because this is not a case
where there could be no plausible reason for counsel’s omission, we decline to
second-guess his decision. This claim is more appropriately presented in a
petition for a writ of habeas corpus. (People v. Mendoza Tello, supra, 15 Cal.4th
at pp. 266-267.)
c. Failure to Object to Prosecutorial Error
Defendant contends that, for a number of reasons, his trial counsel was
ineffective for failing to object “or otherwise cure the misconduct of the
prosecutor.” These contentions repeat claims raised and addressed elsewhere.
(See post, at pp. 54-62.)
d. Failure to Request Jury Instructions
Defendant contends that, at several points, his trial counsel was ineffective
for failing to request “appropriate jury instructions.” These claims repeat ones
raised and addressed elsewhere. (See post, at pp. 61-62, 80; ante, at p. 35.)
e. Failure to Request Voir Dire Prior to Penalty Phase
Defendant next contends trial counsel was ineffective for failing to ask the
court to question the jury following the protracted delay between the guilt and
penalty phases of the trial, in order to determine whether any of the jurors had
been exposed to prejudicial information outside the courtroom. Even assuming for
argument that counsel was remiss, defendant does not allege any juror was in fact
exposed to such information or that such exposure compromised any juror’s
impartiality.11 Indeed, such information is not part of this appellate record.
We note the jurors were extensively admonished by the trial court at the
end of the guilt phase not to discuss the case, to avoid media reports of the case,
and to inform the court if they were exposed to such information. The jurors were
(footnote continued on next page)
Accordingly, we reject this claim, which is more appropriately raised in a petition
for a writ of habeas corpus. (People v. Mendoza Tello, supra, 15 Cal.4th at
f. Stipulation to Substitution of Jurors
Between the guilt and penalty phases, counsel either stipulated to, or
declined to object to, the substitution of two jurors. Defendant contends counsel
was ineffective for acceding to the substitutions. We disagree. Decisions
concerning the composition of the jury are tactical (People v. Lucas (1995) 12
Cal.4th 415, 480 [“the decision whether to accept a jury as constituted is obviously
tactical”]), and nothing in the record suggests counsel’s decision to accept the two
substitutions falls outside the wide range of acceptable tactical decisions a defense
attorney must make. (People v. Frye (1998) 18 Cal.4th 894, 979-980.) Indeed,
counsel may have been only too happy to have the trial court replace two jurors
who had just voted to convict defendant of the first degree murder and forcible
rape and sodomy of an elderly woman.
g. Failure to Object to Impeachment of Cansadillas
Aaron Cansadillas told police that, while at Cozette Gray’s home, he saw
defendant around the time of the crimes and heard him say: “I went in the house
and there was somebody—there was a lady in there and I had to shut her up.” By
the time of trial, Cansadillas had recanted, and he testified he had lied to police.
The prosecutor then impeached him with his prior statement, having him first
refresh his recollection by reading a transcript of the statement and then reading
parts of it into the record, asking Cansadillas each time whether it was an accurate
(footnote continued from previous page)
also cautioned that the delay between the guilt and penalty phases “may be a fairly
transcription of what he had told the police. Counsel did not object to this line of
Defendant contends counsel was ineffective for failing to object, “allowing
the prosecution repeatedly to reinforce a statement that Cansadillas admitted he
made, but one which he acknowledged was a fabrication.” To the extent
defendant is arguing counsel should have objected to revealing the witness’s prior
inconsistent statement, he is incorrect, for such evidence was properly admitted to
impeach the witness. (Evid. Code, § 770.) To the extent defendant is arguing
counsel should have objected to the prosecutor’s repetition of his questioning
technique, no prejudice resulted from this line of questioning. (In re Cox, supra,
30 Cal.4th at pp. 1019-1020 [no need to address issue of deficient performance if
no prejudice resulted].)
h. Failure to Object to Refreshing Margaret Pemberton’s
During the cross-examination of Margaret Pemberton, Ruby Reed’s
daughter, a dispute arose over whether, on discovering her mother’s body under
the blanket, Pemberton had moved the blanket before calling the police. In order
to clarify the point, defense counsel read portions of her preliminary hearing
testimony aloud and then asked her whether she recalled the exchange. On
redirect, the prosecutor did the same. Defendant now contends the witness’s prior
testimony was not admissible and counsel was thus ineffective for reading it into
the record. He also claims counsel was ineffective for not objecting when the
prosecutor read parts of the transcript into the record. We reject the
ineffectiveness claim, as no conceivable prejudice resulted from this questioning
technique. (In re Cox, supra, 30 Cal.4th at pp. 1019-1020.)
i. Failure to Object when Prosecutor Referred to Crimes as
During the examination of several witnesses, both defense counsel and the
prosecutor referred to some of the break-ins as “burglaries.” Defendant now
contends counsel was ineffective for doing so and for not objecting to the
prosecutor’s use of the term. He analogizes to permitting a lay witness to give
improper opinion evidence on the legal definitions of crimes. (People v. Torres
(1995) 33 Cal.App.4th 37.) We find the use, by both sides, of the word “burglary”
as a shorthand reference meaning a break-in or unauthorized entry was innocuous
in this context; the jury would not have understood the attorneys to be offering
unsolicited testimony on whether the legal elements of a burglary had been
proved. We also find that, even if the practice was erroneous, no conceivable
prejudice could have flowed from it.
j. Failure to Object to Characterization of the “Sexual Assault
During the examination of two prosecution witnesses, both defense counsel
and the prosecutor referred to the box of envelopes, vials, swabs, and the like, used
to collect forensic evidence, as the “sexual assault kit.” Defendant now contends
counsel was ineffective for using that phrase and for not objecting to the
prosecutor’s use of it, claiming the kit merely facilitates the collection of evidence
and does not itself prove a sexual assault occurred. He claims the repetition of the
phrase “reinforced the inflammatory and biased tone . . . that the prosecution
sought to inject into the trial.” This claim is empty. In context, we are confident
the jury understood the sexual assault kit was merely a group of evidence-
gathering tools and that use of the phrase “sexual assault kit” did not itself
constitute evidence of a sexual assault. Moreover, even if error, it was manifestly
harmless: Evidence showed Reed, an 87-year-old woman, was beaten and
strangled and that she had defendant’s semen in her vagina and rectum and on her
underwear. There is no reasonable probability that, had the attorneys not used the
phrase “sexual assault kit,” the jury would have reached a different result.
k. Failure to Object to Pemberton’s Testimony
Margaret Pemberton, Reed’s daughter, testified that her mother would not
have left her home in the state of disarray in which police found it. Specifically,
Pemberton testified her mother would not have left candy wrappers on the floor,
unwrapped candy about the home, cigarette ashes on the counter, or jewelry and
shoe boxes open on the floor. Defendant contends counsel was ineffective for
failing to object to this testimony as improper lay opinion evidence. The evidence
showed that Pemberton, who had lived across the street from her mother for 14
years, was close to the victim and thus qualified to testify as to her mother’s habit
and custom of keeping a tidy home. (Evid. Code, § 1105.) In any event, counsel
no doubt acted reasonably in refraining from objecting so as not to appear
unnecessarily harsh with a sympathetic witness, especially on a topic that was not
much in dispute.
l. Failure to Object to Questions About Prior Testimony
During the redirect testimony of serologist Kornblum, the prosecutor asked
her whether she had testified at the preliminary hearing and at the hearing on
defendant’s pretrial motion to suppress, and whether defense counsel had asked
her the same questions in those hearings. She replied in the affirmative. Later in
the trial, the prosecutor also asked Deputy David Crisp, a handwriting expert,
whether he had testified in a pretrial hearing. He also answered in the affirmative.
Defendant contends his counsel was ineffective for failing to object to both lines
of questioning, arguing evidence of the witnesses’ pretrial testimony was
irrelevant and prejudicial because it suggested their trial testimony bore
heightened reliability due to its repetition. We disagree. The apparent purpose of
these questions was to indicate that defense counsel had had sufficient time to test
the conclusions of these experts. In fact, the prosecutor also asked Kornblum
whether her evidence was “still available to be examined by anybody the defense
would want to have look at [it].” The testimony was thus relevant, and no basis
appears for interposing a defense objection.
m. Failure to Object to Testimony About Proficiency Tests
Kornblum testified she had thrice participated in a proficiency test
administered by the American Association of Blood Banking and had not missed a
single question on any of the tests. Defendant contends counsel was ineffective
for failing to interpose a hearsay objection. We disagree; counsel may well have
desired to avoid having a representative of the testing agency take the stand and
affirm Kornblum’s perfect score for the jury.
n. Cumulative Effect
Finally, defendant contends the cumulative effect of counsel’s unreasonable
omissions and transgressions rendered his trial unfair in violation of his rights
under the Fifth and Fourteenth Amendments to the United States Constitution and
also violated his right to effective legal counsel guaranteed by the Sixth
Amendment to the United States Constitution. We find that, considering the
instances individually, counsel either performed adequately or there was no
prejudice. We have no reason to reach a different conclusion when we consider
these claims in the aggregate.
5. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor was guilty of numerous instances of
misconduct. As we explain, we find these claims were not preserved for appeal.
Assuming for argument they are properly before this court, we reject them.
a. Impeachment of Dr. Ryan
The prosecution’s expert, Dr. Solomon Riley, testified Ruby Reed died
from asphyxiation caused by extreme and prolonged pressure to her neck,
probably caused by her attacker pressing his knee, forearm, or elbow on her neck
for four to five minutes. By contrast, defendant’s expert witness, Dr. John Ryan,
testified that, in his opinion, the evidence, including bruising under the victim’s
tongue, indicated the gag the attacker placed on the victim’s mouth probably
worked its way into her mouth, pushing back her tongue, which in turn occluded
her windpipe causing asphyxiation. Dr. Riley expressly rejected that possibility.
If the jury accepted Dr. Ryan’s interpretation of the evidence, defendant may not
have intended to kill Reed.
The prosecutor vigorously challenged Dr. Ryan on cross-examination. For
example, the prosecutor attempted to impugn Dr. Ryan’s experience in the field by
having him admit he was not a board-certified pathologist and had not conducted
an autopsy of a homicide victim since 1956. In addition, the prosecutor elicited
from Dr. Ryan that he was appointed by the court to assist defendant and was paid
by the county, i.e., the taxpayers. The prosecutor revisited this theme in closing
argument, emphasizing that Dr. Ryan could not say how much he billed the county
for his services in the last year and that his remuneration ultimately came from
Defendant now contends that, with this line of cross-examination and
closing argument, the prosecutor crossed over from vigorous yet permissible
cross-examination to misconduct. Because defendant did not object to any of the
now challenged cross-examination questions or closing argument statements,
however, he failed to preserve the issue for appeal. “ ‘As a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the
impropriety.’ ” (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) “Because we
do not expect the trial court to recognize and correct all possible or arguable
misconduct on its own motion [citations], defendant bears the responsibility to
seek an admonition if he believes the prosecutor has overstepped the bounds of
proper comment, argument, or inquiry.” (People v. Visciotti (1992) 2 Cal.4th 1,
Even had defendant preserved this claim, we would find no misconduct.
“ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct “so egregious that it
infects the trial with such unfairness as to make the conviction a denial of due
process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza
(1992) 3 Cal.4th 806, 820.) Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.” ’ ” ’ ” (Hill, supra, 17 Cal.4th at p. 819.)
Defendant complains the prosecutor “impermissibly appealed to the jury’s
emotions, misinstructed the jury as to the law, and repeatedly exceeded the
permissible bounds of even aggressive cross-examination,” thereby depriving him
of a fair trial. We disagree, because the prosecutor’s challenge to Dr. Ryan’s
professional qualifications was quite routine. Although for a prosecutor
intentionally to elicit inadmissible evidence is misconduct (People v. Smithey
(1999) 20 Cal.4th 936, 960), “a witness testifying as an expert may be cross-
examined to the same extent as any other witness and, in addition, may be fully
cross-examined as to . . . his or her qualifications” (Evid. Code, § 721, subd. (a)).
In challenging Dr. Ryan’s educational and professional qualifications to render a
persuasive expert opinion, the prosecutor did no more than Evidence Code section
721 expressly permits.
Similarly, the prosecutor acted within the bounds of propriety during
closing argument. A prosecutor has wide latitude to challenge a defendant’s
evidence, and so long as the argument is fair comment on the evidence or a
reasonable inference drawn therefrom, it is permissible. (Hill, supra, 17 Cal.4th at
p. 819.) Although defendant argues that the prosecutor’s emphasis on the fact the
county paid Dr. Ryan’s fee was impermissible, we disagree. Evidence Code
section 722, subdivision (b) expressly provides that the “compensation and
expenses paid or to be paid to an expert witness by the party calling him is a
proper subject of inquiry by any adverse party as relevant to the credibility of the
witness and the weight of his testimony.” (See People v. Berryman (1993) 6
Cal.4th 1048, 1071, overruled on other grounds in Hill, supra, at p. 823, fn. 1.)
Defense counsel remained free to argue that the prosecutor, his investigators, and
his expert witnesses were also paid from public coffers.
Nor did the prosecutor, by mentioning that taxpayers ultimately would pay
Dr. Ryan’s compensation, improperly appeal to the jurors’ self-interest. We
recently explained that “[a]n attorney’s appeal in closing argument to the jurors’
self-interest is improper and thus is misconduct because such arguments tend to
undermine the jury’s impartiality.” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th
780, 796.) Nothing in the prosecutor’s argument, however, implied that the jurors
themselves would be financially responsible for Dr. Ryan’s compensation. (Id. at
p. 797.) In addition, inasmuch as it is common knowledge that the trial judge, the
prosecutor, the prosecution expert witnesses, and even appointed defense counsel
were all paid from the public coffers, we cannot conclude the attempt to impeach
Dr. Ryan with the information the public paid his fee played improperly on the
Finally, to the extent defendant claims the prosecutor “misinstructed the
jury as to the law,” we note the trial court instructed the jury that “[i]f anything
concerning the law said by the attorneys in their arguments or at any time during
the trial conflicts with my instruction on the law, you must follow my
instructions.” Absent any contrary indication, we presume the jury followed this
instruction. (See People v. Pinholster (1992) 1 Cal.4th 865, 919.)
In sum, we find defendant forfeited this claim of prosecutorial misconduct
by failing to object on this ground at trial. Further, even had he preserved the
claim by objecting, we find the prosecutor did not act improperly in attempting to
impeach Dr. Ryan’s qualifications. Accordingly, we also reject the claim that
counsel was constitutionally ineffective for failing to object. (See ante, at p. 48.)
b. Intent to Kill
Defendant next contends the prosecutor committed misconduct by
misleading the jury during closing argument on the meaning of intent to kill.12
For a prosecutor to misstate the applicable law is misconduct (People v. Boyette,
supra, 29 Cal.4th at p. 435), but, as with his claim the prosecutor improperly
attacked Dr. Ryan’s qualifications, defendant failed to object, thereby forfeiting
the claim. (Hill, supra, 17 Cal.4th at p. 820.) Even had defendant preserved this
claim, we would find no misconduct. The prosecutor emphasized that defendant,
after binding and gagging the victim, saw she was in severe distress but did not
When defendant killed Reed on April 24, 1987, proof of intent to kill was a
prerequisite to sustain a felony-murder special-circumstance allegation. (Carlos v.
Superior Court (1983) 35 Cal.3d 131.) Carlos was later overruled on this point by
People v. Anderson (1987) 43 Cal.3d 1104, decided on October 13, 1987. Crimes
committed during the window period between Carlos and Anderson are controlled
by Carlos. (People v. Ramos (1997) 15 Cal.4th 1133, 1150; see In re Baert (1988)
205 Cal.App.3d 514.)
come to her aid and simply watched her die. These actions, the prosecutor argued
to the jury, constituted intent to kill.
Defendant strenuously argues the prosecutor incorrectly equated intent to
kill with implied malice. By contrast, respondent characterizes the prosecutor’s
argument differently, contending the prosecutor “argued that [defendant] intended
to kill Ms. Reed and that, even if all he did was stuff gags in her mouth and cover
her with blankets, he did so with the specific intent to kill her, not just with the
intent to increase the probability that she might die or with disregard to her
condition.” Thus, by his actions, defendant “was evidencing his original intent to
kill her and not to leave until he was sure she was dead, not just walking away and
manifesting a disregard for her plight.”
We agree with respondent that the prosecutor never argued defendant could
be found to have acted with the intent to kill merely by his failure to intervene
coupled with his subjective indifference to the consequences of binding and
gagging an elderly woman. Rather, the prosecutor argued the victim’s death was
not incidental or accidental but the predictable outcome of defendant’s course of
conduct. Because it was likely the victim would suffocate, argued the prosecutor,
the jury should infer that when defendant bound, gagged, beat, raped, and
sodomized her, he acted with the intent that she should die. Because we find no
prosecutorial misconduct, we also reject the claim that counsel was
constitutionally ineffective for failing to object. (See ante, at p. 48.)
c. Other Claims of Misconduct
Defendant next contends the prosecutor committed misconduct in a number
of other ways. Most incidents simply involve the prosecutor’s aggressive cross-
examination, highlighting weaknesses in the defense case or attempting to
diminish Dr. Ryan’s professional qualifications. In one incident, while cross-
examining Dr. Ryan, the prosecutor used a piece of paper wrapped around his own
tie to simulate the gag defendant used on the victim. Even before defense counsel
objected, however, the trial court indicated the prosecutor’s questioning was
argumentative. Although the prosecutor argued vehemently at sidebar that his
questioning was permissible, the trial court disagreed. We find no misconduct.
Finally, defendant attempts to equate the prosecutor’s actions in this case to
those in Hill, supra, 17 Cal.4th 800, arguing that “the prosecutor engaged in
precisely the kind of deceptive and reprehensible conduct that this Court has
previously condemned.” We disagree; although the prosecutor here was
aggressive and at times approached the border dividing zealous yet permissible
advocacy from unprofessional conduct, this case is far different from Hill, where
the prosecutor repeatedly misstated the law and the evidence, referred to facts not
in evidence, intimidated a witness, and in general exhibited a sarcastic, rude,
unprofessional and offensive personality. We conclude that even if defendant had
preserved his claims of misconduct, they are meritless. Accordingly, we also find
no violation of either the state or federal Constitution.
6. Alleged Errors Related to the Jury Instructions
a. Failure to Instruct on Theft
Defendant contends the trial court erred when it refused13 to instruct the
jury on theft as a lesser included offense to robbery. “It is well settled that the trial
court is obligated to instruct on necessarily included offenses—even without a
request—when the evidence raises a question as to whether all of the elements of
the charged offense are present and there is evidence that would justify a
conviction of such a lesser offense.” (People v. Ramkeesoon (1985) 39 Cal.3d
346, 351.) In general, “ ‘[d]ue process requires that a lesser included offense
instruction be given only when the evidence warrants such an instruction’ ”
(People v. Kaurish (1990) 52 Cal.3d 648, 696), and the mere speculation the crime
was less than that charged is insufficient to trigger the duty to instruct (People v.
Berryman, supra, 6 Cal.4th at p. 1081).
Contrary to defendant’s assertions, the evidence he committed a robbery
was quite strong. Deadly force obviously was applied to the victim, easily
satisfying the force or fear requirement for robbery. (§ 211.) And ample evidence
showed the intruder had taken the victim’s property. The victim’s daughter,
Margaret Pemberton, testified that her mother accumulated nickels and dimes in
This argument misconstrues the record, for the trial court inquired whether
defendant was requesting an instruction on theft, but defense counsel failed to
request such an instruction. In any event, counsel’s acquiescence does not control
the analysis for this claim. When evidence substantial enough to merit the jury’s
consideration is presented to show a crime may be less than that charged, the trial
court must instruct on the lesser crime. (People v. Barton (1995) 12 Cal.4th 186,
195-196 & fn. 4.) “[N]either the prosecution nor the defense should be allowed,
based on their trial strategy, to preclude the jury from considering guilt of a lesser
offense included in the crime charged.” (Id. at p. 196.) Had defense counsel
affirmatively requested the instruction be omitted, however, defendant would have
forfeited the issue for appeal. (Id. at p. 198.)
jars in her home and all but a single dime of this collection was missing after the
murder. In addition, the victim kept a purse with about $20 in it, money that
Pemberton periodically would replenish so her mother would have a ready supply
of pocket money. After the murder, Pemberton found the purse empty and the
home ransacked. Neither side presented any evidence casting doubt on
Pemberton’s testimony. Defendant, for example, presented a defense of simple
denial, and neither he nor the prosecution presented evidence from which the jury
could have inferred that he took the victim’s property but formed his larcenous
intent only after he killed her. (See, e.g., People v. Ramkeesoon, supra, 39 Cal.3d
at p. 351.) Similarly, neither side presented evidence suggesting he committed the
theft but took no part in the killing. In other words, there was no substantial
evidence worthy of the jury’s consideration that the crime was something less than
robbery. Accordingly, the trial court did not err in failing to instruct the jury on
the lesser included offense of theft, nor was counsel ineffective for failing to
request a theft instruction.
b. Alleged Threats to Cansadillas
As noted, ante, Aaron Cansadillas told police that defendant admitted
breaking into a home, finding a “lady” inside, and having to “shut her up.”
Cansadillas recanted this statement at trial and was impeached with his prior
statement. Cansadillas admitted defendant’s brothers had been in contact with him
about his statement to police and that defendant’s mother told him the family did
not like “snitches.” He denied, however, that any threats had been made. In
closing argument, the prosecutor argued “there is only one rational, logical
interpretation. And that is that [defendant] made that [incriminating] statement” to
Cansadillas, who reported it to the police, but then recanted when it came time to
face defendant in the courtroom.
Defendant contends his defense counsel should have objected to the
prosecutor’s closing argument and requested an instruction limiting the jury’s
consideration of evidence that suggested defendant’s family had threatened
Cansadillas, thereby dissuading him from testifying. “ ‘ “Generally, evidence of
the attempt of third persons to suppress testimony is inadmissible against a
defendant where the effort did not occur in his presence. [Citation.] However, if
the defendant has authorized the attempt of the third person to suppress testimony,
evidence of such conduct is admissible against the defendant.” ’ ” (People v.
Hannon (1977) 19 Cal.3d 588, 599; see People v. Williams (1997) 16 Cal.4th 153,
200 [quoting Hannon with approval].) Cansadillas never testified that defendant’s
family actually had threatened him as a result of his statement to police; he merely
said he had spoken with defendant’s brothers and that defendant’s mother had said
their family did not like “snitches.” Nor did the prosecutor say otherwise in his
closing argument. Under the circumstances, counsel’s failure to object to the
prosecutor’s argument on this ground was reasonable.
In any event, “[e]vidence that a witness is afraid to testify or fears
retaliation for testifying is relevant to the credibility of that witness and is
therefore admissible. [Citations.] An explanation of the basis for the witness’s
fear is likewise relevant to [his] credibility and is well within the discretion of the
trial court.” (People v. Burgener (2003) 29 Cal.4th 833, 869.)
Defendant also claims counsel was constitutionally ineffective for failing to
request an instruction limiting the jury’s consideration of Cansadillas’s testimony,
but we reject the claim for the same reason: Cansadillas never actually said he had
been threatened as a result of his statement to police; hence, no reason existed to
limit the jury’s consideration of his testimony.
7. Denial of Severance
Counts 1 to 5 in the information charged crimes committed against Reed,
including burglary, robbery, sexual assault, and murder. Counts 6 to 11 in the
information charged defendant with burglaries committed in the homes of Barry,
Darling, Hostetler, Patchin, Lozano, and Meldrum, none of whom was personally
injured. Before trial, defendant moved unsuccessfully to sever the counts
concerning the crimes against Reed from the burglary charges against these other
victims. Defendant now claims the trial court prejudicially abused its discretion
by denying the motion. We disagree.
“An accusatory pleading may charge two or more different offenses
connected together in their commission, or two or more different offenses of the
same class of crimes. (§ 954.) Offenses falling within this description, but
charged in separate pleadings, may be consolidated for trial in order to promote
judicial efficiency [citation], and a trial court’s rulings on joinder are reviewed for
abuse of discretion.” (People v. Koontz (2002) 27 Cal.4th 1041, 1074.)14
Defendant concedes the crimes were all of the same class. We note also the
crimes were properly joined because they were “connected together in their
commission”: the break-ins all occurred around the same time, in the same way,
and in the same general area, within “some miles” of each other. Accordingly,
defendant “can predicate error in denying the [severance] motion only on a clear
showing of potential prejudice.” (People v. Kraft (2000) 23 Cal.4th 978, 1030.)
Section 954 provides in pertinent part: “An accusatory pleading may
charge two or more different offenses connected together in their commission, . . .
or two or more different offenses of the same class of crimes or offenses, under
separate counts, . . . provided, that the court in which a case is triable, in the
interests of justice and for good cause shown, may in its discretion order that the
different offenses or counts set forth in the accusatory pleading be tried separately
or divided into two or more groups and each of said groups tried separately.”
Defendant argues four factors undermine confidence in the trial court’s
denial of severance, asserting: (1) the burglaries charged in counts 6 to 11 would
not have been cross-admissible in a separate trial for the crimes against Reed;
(2) certain of the charges were likely to inflame the jury against defendant; (3) the
People joined a strong case (counts 1 through 5) to some weak cases (counts 6 to
11) in order to increase the success of all counts; and (4) the joinder of a death-
penalty-eligible offense with noncapital crimes was prejudicial.
Where two crimes or, as here, two sets of crimes, are tried jointly and the
evidence of one set would not have been admissible in the trial of the other had
they been tried separately, the potential for prejudice is increased. This is because
the jury in a joint trial will be exposed to additional evidence of the defendant’s
criminal behavior, raising the possibility the jury will be swayed by the evidence
of the defendant’s bad character. Where evidence would have been cross-
admissible in separate trials, however, “ ‘any inference of prejudice is dispelled.’ ”
(People v. Memro (1995) 11 Cal.4th 786, 850.)
Here, defendant committed multiple break-ins on the same night. Four of
the break-ins occurred in the same trailer park, within 20 minutes of each other. A
fifth burglary occurred across the street on the same night, and the sixth a few
miles away a few days later. Police found defendant’s fingerprint at the point of
entry of one of the burglaries. Defendant often chose trailer parks (Reed also lived
in a trailer) and entered each trailer in the same way, prying open window screens.
All of the break-ins occurred during the night. Defendant took only money,
leaving credit cards and jewelry. He left evidence at the crime scenes of having
smoked cigarettes during the crime. Faced with these circumstances, the trial
court reasonably concluded the crimes bore sufficiently similar characteristics
such that the evidence of the noncapital burglaries would have been cross-
admissible in a separate capital trial, and vice versa.
Having concluded evidence of the crimes was cross-admissible, we need
not address defendant’s other contentions concerning the trial court’s denial of his
severance motion, for he could not have been prejudiced by the court’s denial. We
conclude the trial court did not abuse its discretion in denying the motion for
II. PENALTY PHASE
1. Aggravating Evidence
Mark Tate testified that on January 6, 1980, he was a deputy sheriff in
Riverside County. On that date, he was escorting a group of county jail inmates,
including defendant, to a recreation yard. He was unarmed. Suddenly one of the
inmates grabbed him from behind in a choke hold and held a shank to his back.
While the inmate held Tate, defendant grabbed the keys from Tate’s belt and
attempted to open a door to the outside. When none of the keys fit the lock, the
inmate holding Tate demanded the key, which Tate surrendered to defendant.
Tate was led to the outer fence and used as a human shield. Defendant opened the
outer gate with the key and fled with two other inmates. They were captured
within two hours.
Kenneth Webb testified that on February 24, 1980, he was a deputy sheriff
in Riverside County working in the county jail. On that day, while he escorted
defendant from the showers, defendant stepped behind him and threatened to stick
him with a sharpened spoon if Webb did not surrender his keys. Webb, unarmed,
threw the keys and then confronted defendant, who ran and tried unsuccessfully to
kick down a door leading to the outside. Defendant was eventually subdued by a
group of deputies.
Mary Handley-Carter testified she was a custodian of records for the
Department of Corrections and possessed documents showing defendant, under
the name of “Mario Timbers,” was convicted of assault with a deadly weapon
(§ 245, subd. (b)) on March 31, 1980. On the same day, “Timbers” was also
convicted of false imprisonment (§ 236). Andrew Lee, a fingerprint technician,
testified he rolled defendant’s fingerprints the day of testimony and they matched
those of “Mario Timbers.”
The parties stipulated to allow the jury to consider the testimony of J.S. and
S.B. as aggravating evidence.
2. Mitigating Evidence
Defendant’s sister (Marie Debra Smith), his aunt (Geneva Henderson), and
his mother (Aurora Gray) all testified for defendant and provided family
background information in mitigation. They all told essentially the same story:
Defendant came from a large family and was a loving, caring child who helped
people when he was young. Smith married when defendant was young and moved
out of the family home, which upset defendant. Around this time, defendant was
stabbed when he tried to protect someone.
When defendant was about 13 years old, the family moved to a housing
project called Nickerson Gardens, and defendant changed and became quieter.
Henderson thought he probably fell in with the wrong crowd. He began sniffing
glue, and his personality changed. He did not have a good role model because his
father moved out of the house when he was a young child. Both Henderson and
Smith testified that they loved defendant very much, though both admitted they
did not know the circumstances of defendant’s crimes.
Defendant’s mother testified that when she began having personal
problems, defendant slept in her living room to calm her fears. He also gave her
money for food and rent. She admitted he had been incarcerated for most of his
life since the age of 16.
1. Denial of a Continuance
Near the end of the extended delay following the guilt phase occasioned by
the writ proceedings in the Court of Appeal and this court, the parties gathered in
the trial court on November 2, 1989, to set a date for the commencement of the
penalty phase. By that time, this court had transferred the writ matter back to the
appellate court, which had ruled in the People’s favor. (Defendant petitioned for
review on November 8, six days after the hearing, and this court denied the
petition on January 4, 1990.) Both sides agreed to the trial court’s proposal to put
the case over to January 29, 1990. The court ordered the parties to return on that
day, adding: “That looks like that is a real good day and [the case will] probably
On January 26, defense counsel filed a motion for a continuance with the
trial court. When the parties and the jury reassembled in court on January 29,
1990, defense counsel explained that he desired a one-week continuance because
he was trailing in a double homicide case and had some problems with some
witnesses he expected to call at the penalty phase. The prosecutor responded: “I
have witnesses on call today because I subpoenaed them. [Defense counsel] could
have done the same thing.” The trial court held an in camera hearing, in which
defense counsel explained that he expected to call defendant’s mother, Aurora
Gray, and his sister, Marie Debra Smith. Mrs. Gray had moved during the prior
six weeks, and counsel had not yet attempted to contact her. Smith had been out
of town the prior week. Counsel had not subpoenaed either witness.
Back in open court, the trial court heard argument from the attorneys.
Defense counsel averred that he was not prepared to proceed because he had been
preparing for another murder trial. The prosecutor vehemently objected to any
delay, arguing that defense counsel long knew of the January 29 date and that he
simply was trying to delay the penalty phase, as evidenced by his last minute
request for a stay in federal court. The prosecutor also noted that he, too, was
simultaneously working on another case, as well as presently participating in a
preliminary hearing involving multiple defendants and witnesses from Italy and
New York. Understanding from the court’s earlier pronouncements that
defendant’s penalty phase would begin on January 29, however, he had made
arrangements to be able to proceed in defendant’s case.
The trial court denied the continuance. The prosecutor then announced that
after presentation of the People’s case, he would not oppose a short continuance
should defense counsel need one to secure the presence of his witnesses.
Defendant now contends the trial court abused its discretion by denying his
motion for a continuance. “The determination of whether a continuance should be
granted rests within the sound discretion of the trial court, although that discretion
may not be exercised so as to deprive the defendant or his attorney of a reasonable
opportunity to prepare.” (People v. Sakarias (2000) 22 Cal.4th 596, 646.)
Applying this standard, we find no abuse of discretion. Defense counsel had many
months to prepare for the penalty phase and was specifically on notice as of the
November 2, 1989, hearing that the penalty phase would most probably begin on
January 29, 1990. Counsel made no complaint of this schedule until shortly
before the January 29 hearing, and his failure to subpoena family members,
coupled with the fact that both defendant’s sister and mother testified on
January 30, speaks loudly in favor of the trial court’s exercise of discretion. We
reject defendant’s reliance on People v. Fontana (1982) 139 Cal.App.3d 326, 333,
a case in which an appellate court found a trial court abused its discretion when it
denied a continuance despite defense counsel’s assertion that he was not prepared
to proceed. Although counsel here also claimed he was unprepared to proceed, the
trial court reasonably concluded that, given the many months counsel had to
prepare and the number and nature of his anticipated witnesses, counsel’s
assessment of the state of his readiness was exaggerated and a continuance was
Having found the trial court did not abuse its discretion, we also find
defendant fails to demonstrate that the denial of a continuance rendered his
attorney’s assistance constitutionally ineffective. As in People v. Sakarias, “[t]he
record demonstrates neither that counsel performed below the standard of a
reasonably competent attorney in arguing the . . . motions, nor that the single
additional step defendant asserts should have been taken was reasonably likely to
affect the result.” (People v. Sakarias, supra, 22 Cal.4th at p. 647.) We likewise
reject defendant’s claim that the denial of a continuance violated his federal
constitutional rights under the Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution.
2. Delay Between Guilt and Penalty Phase
The jury returned its verdict of first degree murder on February 24, 1989.
The jury was then warned that the commencement of the penalty phase might be
delayed. The trial court admonished the jurors not to discuss the case with
anyone, not to speculate on the reason for the delay, to avoid media accounts, and
to inform the court if any of them were exposed to such accounts. The court also
indicated that if the delay was lengthy, one of the alternates might end up on the
jury. While the Court of Appeal and this court were considering defendant’s writ
application in the months following the guilty verdict, the jury returned to court
several more times, each time being told of further delays and being
readmonished. The writ proceedings finally concluded, and the penalty phase
commenced on the afternoon of January 29, 1990, 338 days after the end of the
Defendant contends this 338-day hiatus between the guilt and penalty
phases of his trial violated his constitutional rights and requires reversal of the
penalty judgment. We disagree. At the threshold, we note defendant did not
object to the delay, which was, in fact, instigated at his behest inasmuch as he filed
a petition for a writ of mandate or prohibition with the Court of Appeal, and that
court first issued a stay and then ruled initially in his favor. When asked on
April 17, 1989, whether the court should put the case over until September,
defense counsel replied: “I think that is a good idea.” Counsel’s failure to object
in any way, and indeed his responsibility for instigating the delay, preclude raising
the issue on appeal. (See People v. Johnson (1993) 19 Cal.App.4th 778, 791-794
[failure to object to break in jury deliberations forfeits claim for appeal]; People v.
Harris (1977) 73 Cal.App.3d 76, 83 [same].)
But even were we to assume that defendant had properly preserved the
issue for review, we would reject it on the merits. In arguing the delay requires
reversal, defendant relies heavily on United States v. Hay (9th Cir. 1997) 122 F.3d
1233 (Hay) and People v. Santamaria (1991) 229 Cal.App.3d 269 (Santamaria),
but both cases are distinguishable. In Hay, the defendant was prosecuted for mail
fraud. The trial took longer than expected, and some jurors informed the trial
judge that the trial might overlap with their planned summer vacations. The trial
court accommodated these jurors by continuing the case, at the close of evidence,
for 48 days over the summer. Significantly, the defendant moved unsuccessfully
for a mistrial, thereby preserving the issue for appeal. (Hay, supra, at p. 1235.)
The Ninth Circuit Court of Appeals reversed the conviction, holding the district
court had erred by continuing the trial for such a lengthy period. The federal
appellate court explained that, by the time the district court granted the
continuance, the trial was nearly over, and the parties had stipulated to proceeding
with 11 jurors if necessary. Moreover, the Hay court opined: “[W]e have never
approved a jury separation even close to forty-eight days in a criminal case”
(ibid.), terming the length of the delay “unprecedented” (id. at p. 1236).
We are, of course, not bound by the decisions of lower federal courts
(People v. Avena (1996) 13 Cal.4th 394, 431), but in any event we find Hay differs
from the instant case in important respects. First and foremost, the defendant in
Hay preserved the issue by moving for a mistrial because of the delay, whereas
defendant here not only failed to object, but actively sought the delay by filing a
writ petition that led to the stay of trial. In Hay, moreover, the delay occurred
between the presentation of evidence and submission of the case to the jury for
deliberations. As the Hay court explained: “[T]he jury could not be expected to
adjourn this late in the case for a month and a half without forgetting any of the
relevant evidence.” (Hay, supra, 122 F.3d at p. 1236.) The delay in the instant
case, by contrast, came between the guilt and penalty phases of the trial; the jury
had already returned a guilt verdict but had not yet heard any penalty phase
evidence. Although a trial of a capital offense is a unitary one with two parts
(People v. Cain (1995) 10 Cal.4th 1, 67), as defendant emphasizes, we
nevertheless find Hay distinguishable because it presents a much more egregious
situation: the jury in that case had just been presented with the evidence on which
it would deliberate when the district court abruptly continued the case for more
than a month, whereas in defendant’s case the jury’s penalty decision would turn
largely on evidence the jury had not yet heard or for which the jury had already
rendered a verdict.
Although the presentation of penalty phase evidence had not yet begun,
defendant argues the jury, when determining the appropriate penalty, could
properly consider evidence from the guilt phase. Thus, the jury was properly
instructed to consider both the circumstances of the offense (§ 190.3, factor (a))
and the evidence presented in the “entire trial.” If the jury in Hay, supra, 122 F.3d
1233, could not be expected to recall evidence given 48 days previously,
defendant argues, the jury here could not be expected to recall evidence presented
even further in the past, some of which was over one year old.
We acknowledge the possibility the long delay in this case may have
caused jurors to forget details of the evidence produced at the guilt phase. But that
result is an inevitable consequence of defendant’s midtrial pursuit of appellate
relief. He cannot have it both ways. He sought appellate court intervention
midway through his trial, as was his legal right. Surely the delay inherent in
pursuing that course cannot now become the basis for reversing the judgment. In
any event, any concern we have that the jury may have forgotten evidence
presented in the guilt phase is ameliorated by (1) the fact the jury had already
deliberated on the question of guilt and rendered a verdict, necessarily having
reviewed the evidence in detail at that time, and (2) the trial court’s offer to read
back any testimony the jury wished to hear.
Defendant also relies on Santamaria, supra, 229 Cal.App.3d 269, but we
find that case unpersuasive. In one sense, Santamaria presents an even more
egregious case than in Hay, for the trial court in Santamaria continued the case for
11 days in the middle of jury deliberations, apparently to accommodate the trial
judge’s schedule. (Santamaria, supra, at pp. 274-275.) To be sure, the
Santamaria court emphasized the risk such delay could engender, from faded
memories to juror contamination from outside sources.15 But in deciding to
reverse the conviction, the Santamaria court also stressed the absence of good
cause for the delay: “The record in the present case discloses no administrative
duties, congested calendar, or any other exceptional circumstances to explain the
continuance; instead, the record indicates only that the judge was to be ‘away,’
and that at least two of the days involved were holidays. If there was any
established necessity for the delay, it is not apparent from this record.” (Id. at
In deciding to reverse, the Santamaria court also relied on the availability
of alternatives. “Another factor influencing our assessment of the court’s action is
the existence of an alternative to suspending deliberations. The trial court here
might have utilized the procedure set forth in section 1053, which authorizes the
substitution of one judge for another under certain circumstances in criminal cases.
[Citations.] Although the prosecutor suggested a substituted judge and the record
before us indicates that appellant did not object to the suggestion, the record is
absolutely silent about the court’s reasons for rejecting the section 1053
procedure.” (Santamaria, supra, 229 Cal.App.3d at p. 278, fn. omitted.)
Thus, the court explained: “A long adjournment of deliberations risks
prejudice to the defendant both from the possibility that jurors might discuss the
case with outsiders at this critical point in the proceedings, and from the possibility
that their recollections of the evidence, the arguments, and the court’s instructions
may become dulled or confused. [Citations.] Obviously, the longer the
separation, the greater the risk. A long adjournment of deliberations also disrupts
the very process and pattern of the jury’s orderly examination of the evidence.
The People cite no case in which an interruption of jury deliberations of such
length has been countenanced in a criminal case, and our own independent
research has not uncovered any similar case.” (Santamaria, supra, 229
Cal.App.3d at pp. 277-278.)
Although the delay in the instant case was much longer than in Santamaria,
it occurred at a natural break in the trial, between the guilt and penalty phases, and
not in the middle of deliberations. Moreover, unlike in Santamaria, where the trial
court lacked good cause for the delay and a viable alternative existed, the trial
court here had ample cause for the delay and no alternative: an appellate court had
stayed the trial. The trial court had no choice but to obey the stay order. Under
the circumstances, we find Santamaria distinguishable and thus not persuasive
Defendant contends the potential for juror exposure to prejudicial
information during the long delay was intolerable and requires reversal.
Defendant does not conclude any juror actually received extrajudicial information,
which might constitute misconduct giving rise to a presumption of prejudice. (See
People v. Nesler (1997) 16 Cal.4th 561, 578 (lead opn. of George, C. J.).) Instead,
he contends that in the “media climate” that existed at the time, “it is reasonable to
infer that the jurors in this case were exposed to tremendous improper influences
during the extraordinary separation between the guilt phase and the penalty
phase.” We do not agree that, in the absence of any proof and in the face of the
trial court’s admonitions to the jury, it is “reasonable to infer” the jury’s
impartiality was compromised. The possibility of some exposure to improper
information is a concern, but the possibility of such jury contamination is
unavoidable given that defendant himself exercised his right to seek appellate
relief on the issue of the degree of the murder, thereby delaying the start of the
The situation in this case is analogous to the one in Stanley, supra, 10
Cal.4th at page 836, where the trial was delayed by more than three months
between the guilt and penalty phases while the trial court determined the
defendant’s competence to stand trial. On appeal, the defendant in Stanley argued
the length of the delay justified creation of a rule raising a presumption that the
jurors were exposed to improper information that undermined the jury impartiality
to which he constitutionally was entitled. We declined to create such a rule,
explaining: “During the trial, the trial court admonished the jurors each evening to
avoid discussing the case, forming or expressing any opinion on it, or reading or
listening to anything connected with the case that might appear in the news media.
Just before the hiatus, the court gave a particularly strong admonition. . . . In the
absence of any contrary showing, we presume the jurors followed the
admonition.” (Id. at pp. 836-837, fn. omitted.)
As did the court in Stanley, supra, 10 Cal.4th 764, the trial court here
carefully admonished the jurors not to discuss the case, to avoid improper
influences, not to speculate about the reason for the delay, and to inform the court
if any such improper contact occurred.16 Although defendant argues the trial court
did not rigorously admonish the jury each time it met, sometimes failing to direct
the jury to avoid media coverage, “ ‘[e]rror in failing to give the required
For example, on September 18, 1989, the trial court admonished the jury:
“I have to give you [an] admonishment. You must decide all questions of fact
from the evidence received in this trial and not from any other source. You must
not make any independent investigation of the facts or the law or consider or
discuss facts as to which there is no evidence.
“This means, for example, you must not on your own visit the scene,
conduct experiments or consult reference works for additional information.
“[You] [m]ust not discuss this case with any other person excepting a
fellow juror and must not discuss the case with a fellow juror until the case is
submitted to you for your decision and only then when all jurors are present in the
jury room. [¶] . . . [¶] . . . Now, very unlikely there be anything in the paper, but I
never know. If you run across anything and the headlines warn you that there is
something about it, don’t read it. If there is anything in the radio that comes in on
it, turn it off or get away from it or the television the same. If that happens and
then you let us know what portion you did hear if any.”
admonition does not require reversal unless the defendant calls the trial court’s
attention to the omission at the time of the adjournment, or unless the defendant on
appeal affirmatively points to prejudice resulting from the omission.’ ” (People v.
Heishman (1988) 45 Cal.3d 147, 175.) Defendant failed to object or otherwise
direct the court’s attention to these various omissions and thus failed to preserve
this claim. Were we nevertheless to address the merits of the claim, we would
reject it. The jury was strongly cautioned, both during the guilt phase and during
the delay, to avoid reports of the case in the media, and both sides stipulated that
the jury would be deemed properly admonished at every recess. To give an
abbreviated admonishment after first delivering a full one is permissible. (See
People v. Morales (1989) 48 Cal.3d 527, 565 [addressing § 1122]; People v.
Linden (1959) 52 Cal.2d 1, 29 [same].) Moreover, the jurors could not reasonably
have understood that they were suddenly allowed to read about the case in the
newspaper simply because the trial court failed on one occasion to admonish them
not to. Under the circumstances, the mere possibility the jury may have acquired
or been exposed to some extrajudicial information about the case is an insufficient
basis on which to reverse a judgment.
Defendant also contends that, during the long hiatus in the trial, jurors
might have changed their views about the death penalty, rendering them ineligible
to continue to serve. This possibility exists even in trials with no delay. In any
event, defendant’s assertion that one or more jurors may have altered their views
about capital punishment during the trial delay is pure speculation and will not
support a reversal of the judgment. (Cf. People v. Bradford (1997) 15 Cal.4th
1229, 1355 [assertion that jurors, “having found defendant guilty, no longer could
be impartial” for the penalty phase was mere speculation].)
Defendant contends reversal is required because, when the trial resumed,
the court failed to voir dire the jurors to determine if any of them had been
exposed to improper influences. But defendant did not move to voir dire the jury
when it reconvened,17 nor did he present evidence that any juror had been exposed
to improper influence or information. “Voir dire is not to be reopened on
speculation that good cause to impanel a new jury may thereby be discovered;
rather, a showing of good cause is a prerequisite to reopening.” (People v. Fauber
(1992) 2 Cal.4th 792, 846.) No reason appearing to have examined the jurors
anew, we conclude the trial court did not abuse its discretion in failing sua sponte
to do so. (People v. Bradford, supra, 15 Cal.4th at p. 1353 [“The trial court’s
decision not to . . . re-voir dire the jury is subject to reversal only upon an abuse of
Defendant also contends that because the trial took much longer than was
originally promised, the jurors—finally appearing for the penalty phase after so
many weeks—would have been “unfavorably disposed towards [defendant] since
it was [he] who caused them to live with this criminal trial for an extended period
of time.” But the jury was never told the cause of the delay and was explicitly
admonished not to speculate on the reason. We presume that jurors understand
and follow the court’s instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689,
Finally, defendant argues the prejudicial effect of the delay was
compounded by the replacement at the penalty phase of two guilt phase jurors
with alternate jurors. As noted ante, at page 49, defense counsel stipulated to one
of the replacements and did not object to the other. The alternates were subjected
to the same admonishments as the regular jurors; in fact, the trial court warned the
Defense counsel had an opportunity to move for a renewed voir dire of the
jury when the parties discussed whether to accept the request of certain jurors to
be removed for reasons of hardship that arose during the delay in proceedings.
jurors at the outset of the delay that some alternates might be called into service.
Defendant claims the absence of the new jurors from the guilt phase deliberations
somehow worked to his detriment, but does not explain why this is so. His further
complaint that the penalty phase jury was not instructed to begin deliberations
anew is baseless: Because the alternates were substituted in before presentation of
the penalty phase evidence began, no such instruction was necessary. (People v.
Cunningham (2001) 25 Cal.4th 926, 1030.)
In summary, we conclude the long delay between the close of the guilt
phase and the commencement of the penalty phase does not warrant reversal of the
3. Failure to Instruct on Lingering Doubt
Defendant contends the trial court erred by failing to instruct sua sponte
that a lingering doubt as to guilt can constitute a mitigating circumstance. He
acknowledges that we have held trial courts are under no obligation to so instruct a
capital jury, even on request (People v. Staten (2000) 24 Cal.4th 434, 464; People
v. Hines (1997) 15 Cal.4th 997, 1068), but insists three aspects of his trial justify a
different result. First, he emphasizes that defense counsel specifically relied on
lingering doubt in his penalty phase closing argument. Second, he contends the
addition of two alternate jurors to the penalty phase jury heightened the need for a
lingering doubt instruction. Third, he argues the long delay between the guilt and
penalty phases justifies imposing a duty on the trial court to instruct on lingering
We adhere to our prior decisions on this subject and find unpersuasive
defendant’s attempt to characterize his case as distinguishable from past cases.
First, that defense counsel relied on a lingering doubt defense in closing
argument18 does not undermine our prior decisions in this area. In People v.
Johnson (1992) 3 Cal.4th 1183, 1252, the defendant argued his “right to argue his
possible innocence is ‘but a hollow formality’ if instructions supporting the theory
of the defense are not given.” We disagreed, explaining that such argument by
defense counsel is supported by instructions on “the expanded factor (k)
instruction.” (Ibid.) Defendant’s jury was so instructed: It was told to consider, if
applicable, “any other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime and any sympathetic or other
aspects of defendant’s character or record that the defendant offers as a basis for a
sentence less th[a]n death whether or not related to the offense for which he is on
trial.” This instruction adequately informs the jury that it may consider a lingering
doubt as to guilt (People v. Hines, supra, 15 Cal.4th at p. 1068); that defense
counsel relied on a lingering doubt defense in closing argument did not create a
duty in the trial court to give a more specific instruction on lingering doubt as a
Second, that two alternate jurors were substituted in for the penalty phase
does not alter the analysis. Although a trial court is free to instruct on lingering
doubt in such circumstances (see People v. Cain, supra, 10 Cal.4th at pp. 64-67),19
the trial court was under no legal obligation to do so. Significantly, the alternate
jurors joined the jury at the commencement of the penalty phase, so no issue of
setting aside the deliberations is raised. The penalty phase jury, including the
Defendant overstates the case in describing lingering doubt as “one of the
primary theories on which [his] penalty phase defense rested.”
Defendant misconstrues the holding of People v. Cain, supra, 10 Cal.4th 1,
which—contrary to defendant’s contention—did not “recognize the necessity of
such an instruction.”
alternates, was properly instructed to consider “[t]he circumstances of the crime of
which the defendant was convicted.” (§ 190.3, factor (a).) This instruction
adequately permitted the jury, including the alternates, to consider lingering doubt
as a mitigating factor.
Third, we reject the argument that the long delay between the guilt and
penalty phases of the trial somehow created a heightened duty in the trial court to
instruct on lingering doubt. Defendant argues that none of the cases cited in
support involved such a long delay and that “the jurors . . . inevitably forgot much
of the evidence that had been presented in the guilt phase of the trial.” Because
the jury was instructed to consider “[t]he circumstances of the crime of which the
defendant was convicted,” we assume the jury did just that. A pinpoint instruction
to consider lingering doubt, if such existed in the minds of the jurors, would have
added little to the jury’s decisionmaking.
Defendant also contends the failure to instruct on lingering doubt violated
various of his rights under the United States Constitution. We disagree. (Franklin
v. Lynaugh (1988) 487 U.S. 164, 173-174; People v. Staten, supra, 24 Cal.4th at
p. 464.) In sum, we find the trial court did not err in failing to instruct the jury on
lingering doubt as a mitigating factor and further conclude counsel was not
ineffective for failing to request such an instruction.
4. Cumulative Impact of Delay and Use of Replacement Jurors
Defendant repackages previous arguments to contend that the long delay
between the guilt and penalty phases, the failure to voir dire the jury following the
resumption of the trial, the replacement of two jurors who sat on the guilt phase
jury, the mere possibility (despite the absence of any evidence) that one or more
jurors was exposed to improper information during the delay, and the trial court’s
failure to instruct the jury to begin deliberations anew or how otherwise to
consider the issue of lingering doubt “combined to create a structural defect in the
penalty phase that renders the jury decision unreliable” in violation of defendant’s
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution and article I of the California Constitution. Having found no
error in any of the aforementioned aspects of the trial, we reject the assertion that
their cumulative effect undermined defendant’s constitutional rights. Moreover,
the delay here—occasioned as it was by defendant’s actions—does not even
remotely resemble the type of structural error the high court has held requires
reversal of a judgment in the absence of prejudice.20
5. Factor (b): Implied Use of Force
At the prosecution’s request, the trial court gave CALJIC No. 8.87 (1989
rev.) to direct the jury’s consideration of evidence of defendant’s unadjudicated21
criminal conduct. Thus, the jury was instructed:
“Evidence has been introduced for the purpose of showing that the
defendant Mario Lewis Gray has committed the following criminal acts:
Thus, the high court has explained: “A ‘structural’ error, we explained in
Arizona v. Fulminante [(1991) 499 U.S. 279], is a ‘defect affecting the framework
within which the trial proceeds, rather than simply an error in the trial process
itself,’ [citation]. We have found structural errors only in a very limited class of
cases: See Gideon v. Wainwright, 372 U.S. 335 (1963) (a total deprivation of the
right to counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (lack of an impartial trial
judge); Vasquez v. Hillery, 474 U.S. 254 (1986) (unlawful exclusion of grand
jurors of defendant’s race); McKaskle v. Wiggins, 465 U.S. 168 (1984) (the right
to self-representation at trial); Waller v. Georgia, 467 U.S. 39 (1984) (the right to
a public trial); Sullivan v. Louisiana, 508 U.S. 275 (1993) (erroneous reasonable-
doubt instruction to jury).” (Johnson v. United States (1997) 520 U.S. 461, 468-
As noted ante, at page 9, footnote 1, defendant’s acts against J.S. and S.B.
resulted in his guilty plea to burglary only. Charges of robbery, lewd conduct with
a child under 14, and oral copulation with a child under 14 were then dropped.
“One, the unlawful oral copulation by force or threat upon [S.B.]
“Two, the assault with intent to commit rape upon [J.S.]
“Three, the assault with intent to commit oral copulation upon [J.S.]
“Four, the assault by force likely to produce great bodily injury upon [J.S.]
“And, five, the robbery of [J.S.] which involve the express or implied use of
force or violence or the threat of force and violence.22
“Before a jury may consider any such criminal act as an aggravating
circumstance in this case a juror must be first satisfied beyond a reasonable doubt
that the defendant Mario Lewis Gray did, in fact, commit such criminal act.”
(Italics added.) This instruction is a standard jury instruction and is unchanged to
this day. (See CALJIC No. 8.87 (July 2004 ed.).)
Defendant argues this instruction (hereafter the factor (b) instruction)
improperly directed a verdict as to an “essential element” that required a jury
decision, to wit, whether or not his prior criminal conduct involved the express or
implied use of force or violence. He contends the jury should be prohibited from
considering evidence of other crimes unless it, not the trial court, first determines
the conduct involved force or violence, or the threat of force or violence. Here, he
In the reporter’s transcript, the phrase (“which involve the express or
implied use of force or violence or the threat of force and violence”) is appended
to this sentence concerning the robbery of J.S. and could therefore be considered
to modify this sentence only. In the clerk’s transcript, however, the sentence is set
out as if it modifies all five sentences that describe the crimes. Though this latter
interpretation was probably intended, and would be consistent with the use of the
word “involve” in the plural form, it is nevertheless open to doubt whether the
court’s instruction informed the jury that only the alleged robbery of J.S. involved
force or violence, or whether all five crimes mentioned involved force or violence.
We need not resolve this ambiguity, for, as we explain, post, the trial court did not
err by making a preliminary determination that all five crimes involved force or
argues, “[t]he trial court’s instruction . . . answered that very question for the
jurors.” In so doing, he claims, the factor (b) instruction violated his constitutional
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution by creating what amounts to a mandatory presumption (see
Carella v. California (1989) 491 U.S. 263).
Respondent first contends defendant failed to preserve the constitutional
issue because he failed to object on this ground. If, however, defendant is correct
that the factor (b) instruction directed a verdict on a point essential to his death
penalty judgment, the instruction would have affected a substantial right of his,
and section 1259 would permit him to raise the issue on appeal despite failure to
object. That section provides in pertinent part: “[T]he appellate court may . . .
review any instruction given . . . , even though no objection was made thereto in
the lower court, if the substantial rights of the defendant were affected thereby.”
(§ 1259.) We conclude the issue is properly before this court.
Turning to the merits, we find the factor (b) instruction did not violate
defendant’s constitutional rights. We recently addressed and rejected this precise
issue: “Defendant contends that [the factor (b)] instruction improperly told the
jury that each listed instance of unadjudicated criminal activity actually involved
force or violence, thus ‘removing that issue from the jury’s consideration’ and
constituting ‘a directed verdict on an essential element of the factor (b) finding the
jury was to make.’ We disagree. . . . [T]he jury was provided the definition of
each alleged crime and possible defenses and reminded as well of the
prosecution’s burden to establish the commission of each crime beyond a
reasonable doubt. These instructions ‘properly told the jurors that they could
consider any of the specified unadjudicated criminal acts as factors in aggravation
only if they found beyond a reasonable doubt that defendant had committed the act
or activity, and that it involved the use or attempted use or express or implied
threat to use force or violence.’ (People v. Sapp (2003) 31 Cal.4th 240, 314.) . . .
[T]he characterization of the remaining acts as involving an express or implied use
of force or violence, or the threat thereof, would be a matter properly decided by
the court. [Citation.] ‘CALJIC No. 8.87 is not invalid for failing to submit to the
jury the issue whether the defendant’s acts involved the use, attempted use, or
threat of force or violence.’ ” (People v. Monterroso (2004) 34 Cal.4th 743, 793,
quoting People v. Nakahara (2003) 30 Cal.4th 705, 720.)
Even if the factor (b) instruction was erroneous, there is no reasonable
possibility the error resulted in prejudice. Defendant did not challenge or
undermine the testimony of J.S. or S.B., introduced no evidence suggesting that in
the offenses against them he acted without using force or violence, and stipulated
to permitting the jury to consider their testimony at the penalty phase. Any error
was harmless under any standard.
6. Challenges to the Death Penalty Law
Defendant next raises a number of state and federal constitutional
challenges to the state’s capital sentencing scheme. We have rejected these
contentions previously, and defendant does not convince us to revisit those prior
decisions. Thus, the penalty judgment is not unreliable, invalid, or
unconstitutional because of:
(a) The jury’s consideration of prior unadjudicated criminal conduct.
(People v. Koontz, supra, 27 Cal.4th at p. 1095.)
(b) The failure to instruct the jury it must be unanimous in finding
aggravating factors present. (People v. Weaver, supra, 26 Cal.4th at p. 992.)
(c) The failure to instruct the jury it must find aggravating factors true
beyond a reasonable doubt. (People v. Boyette, supra, 29 Cal.4th at p. 465.)
(d) The failure to delete inapplicable factors. (People v. Maury (2003) 30
Cal.4th 342, 439-440.)
(e) The use of the phrase “whether or not” in factors (d) through (h) and (j)
of section 190.3. (People v. Kraft, supra, 23 Cal.4th at pp. 1078-1079.)
(f) The failure to instruct the jury that some factors were mitigating only.
(People v. Jones (2003) 30 Cal.4th 1084, 1123.)
(g) The failure to instruct the jury on the burden of proof at the penalty
phase. (People v. Smith (2003) 30 Cal.4th 581, 641-642.)
(h) The failure to require the jury to return explicit findings. (People v.
Coddington, supra, 23 Cal.4th at p. 656.)
(i) The prosecutor’s discretion to decide whether or not to charge a murder
as a capital crime. (People v. Weaver, supra, 26 Cal.4th at p. 992.)
(j) The failure to require “comparative appellate review,” what we
normally call intercase proportionality review. (People v. Weaver, supra, 26
Cal.4th at p. 992.)
(k) The failure of the law meaningfully to narrow the class of offenders
eligible for the death penalty. (People v. Weaver, supra, 26 Cal.4th at p. 992.)23
(l) The failure to instruct on the presumption of life over death. (People v.
Maury, supra, 30 Cal.4th at p. 440.)
Defendant argues the ballot arguments in favor of Proposition 7, which
became the 1978 death penalty law, suggested the proposed new capital
punishment law would make “every murderer” eligible for the death penalty,
thereby demonstrating that the framers of the 1978 death penalty law did not
expect the law to satisfy the constitutionally required narrowing function. He
contends we have never addressed the merits of this particular claim. But “it is
clear that the argument was merely hyperbole” (Domino v. Superior Court (1982)
129 Cal.App.3d 1000, 1010) or “political rhetoric” (Carlos v. Superior Court,
supra, 35 Cal.3d at p. 143, fn. 11, overruled on another ground in People v.
Anderson, supra, 43 Cal.3d 1104).
(m) The use of a unitary list of sentencing factors “without designation of
mitigation or aggravation.” (People v. Boyette, supra, 29 Cal.4th at p. 466.)
(n) The use of “vague” and “unclear” sentencing factors. (People v.
Maury, supra, 30 Cal.4th at p. 439 [rejecting claim that sentencing factors are
“vague”]; People v. Navarette (2003) 30 Cal.4th 458, 522 [rejecting claim that
sentencing factors are “unclear”].)
(o) The use of lethal injection as the means of execution. (People v.
Hughes (2002) 27 Cal.4th 287, 406 [lethal injection is not cruel and unusual
(p) The delay between his conviction and decision on appeal. (People v.
Hughes, supra, 27 Cal.4th at p. 406.)
We also find Apprendi v. New Jersey, supra, 530 U.S. 466, and its progeny
(see Ring v. Arizona (2002) 536 U.S. 584) are inapplicable to California’s capital
sentencing scheme. (People v. Griffin (2004) 33 Cal.4th 536, 595.)
7. Cumulative Effect of Alleged Errors
Defendant contends the cumulative effect of the alleged errors by the trial
court, the prosecutor, and defense counsel demonstrates he was denied his
constitutional rights, requiring we reverse the penalty judgment. Having found no
errors, we reject this claim as well.
The judgment is affirmed in its entirety.
GEORGE, C. J.
C O P Y
PEOPLE v. GRAY (MARIO LEWIS)
CONCURRING OPINION BY BAXTER, J.
I concur with the majority and have also signed Justice Chin’s concurring
opinion. To the extent that People v. Coddington (2000) 23 Cal.4th 529, which I
authored, suggests that the work-product rule would bar a prosecutor from
commenting on the defendant’s failure to call defense experts who had examined
forensic evidence relevant to the case, it merits reexamination. (See United States
v. Grammer (9th Cir. 1975) 513 F.2d 673, 676.)
C O P Y
PEOPLE v. GRAY (MARIO LEWIS)
CONCURRING OPINION BY CHIN, J.
I concur, but I would have preferred the majority explore the question
whether one aspect of our decision in People v. Coddington (2000) 23 Cal.4th 529,
605-606, should be reconsidered. Coddington suggested that the work product
privilege (see Code Civ. Proc., former § 2018) would preclude a prosecutor from
even arguing that the defendant’s failure to call defense experts who had
examined forensic evidence at the crime scene logically indicated they had
nothing helpful to contribute.
The majority in the present case, without questioning Coddington’s
analysis, conclude that even if defense counsel should have raised the work
product objection, no prejudice ensued in light of the strong evidence of
defendant’s guilt. (Maj. opn., ante, at pp. 44-45.) I joined the majority in
Coddington, but now I wonder whether its work product analysis was flawed,
being directly inconsistent with the general rule that the prosecutor may comment
on the defense’s failure to call a retained expert or other logical witness to rebut
the People’s case. (See People v. Bolden (2002) 29 Cal.4th 515, 552-553 [jury
could consider failure of retained defense expert to testify]; People v. Wash (1993)
6 Cal.4th 215, 262-263 [prosecutor properly commented on defense failure to call
expert psychiatric testimony to support claim of suicidal depression during
I see nothing in the prosecutor’s argument in either Coddington or the
present case that in any way invaded or infringed the work product or privacy of
the defense team. Indeed, it seems quite reasonable and legitimate for the
prosecutor to observe that although all the forensic evidence linking defendant to
the crimes was passed on to defense experts, none of them was called to contradict
the prosecution experts. In some future case, we should consider disapproving
Coddington on this point.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gray
Original Appeal XXX
Opinion No. S014664
Date Filed: August 25, 2005
County: Los Angeles
Judge: Robert C. Gustaveson
Attorneys for Appellant:
Mark A. Borenstein, under appointment by the Supreme Court; Tuttle & Taylor, John R. Dent, Jeffrey S.
Karr; Overland & Borenstein and Julie M. Ruhlen for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Carol Wendelin Pollack, Marc E. Turchin and Pamela C. Hamanaka, Assistant Attorneys General,
John R. Gorey, Susan D. Martynec, Susan L. Frierson, Keith H. Borjon and Robert David Breton, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Mark A. Borenstein
Overland & Borenstein
6060 Center Drive, 7th Floor
Los Angeles, CA 90045
Robert David Breton
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Robert D. Breton, Deputy Attorney General
300 South Spring Street, Suite 500
Los Angeles, CA
|2||Gray, Mario Lewis (Appellant)|
Represented by Federal Public Defender - La
Vay I. Williams, Deputy Federal Public Defender
321 East Second St.
Los Angeles, CA
|Aug 25 2005||Opinion: Affirmed|
|Mar 14 1990||Judgment of death|
|Mar 20 1990||Filed certified copy of Judgment of Death Rendered|
|Dec 23 1991||Counsel appointment order filed|
Mark A. Borenstein, Esq. (to represent Applt on A.A., Including Any Related Habeas Proceedings.)
|Jan 21 1992||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jan 24 1992||Extension of Time application Granted|
To Applt To 3-23-92 To request Corr. of Record.
|Mar 23 1992||Application for Extension of Time filed|
By Applt to request correction of Record.
|Mar 26 1992||Extension of Time application Granted|
To Applt To 5-22-92 To request Corr. of Record.
|May 21 1992||Application for Extension of Time filed|
By Applt to request correction of Record.
|May 26 1992||Extension of Time application Granted|
To Applt To 7-6-92 To request Corr. of Record.
|Jul 2 1992||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jul 6 1992||Extension of Time application Granted|
To Applt To 8-5-92 To request correction of Record. no further Extensions of time Are Contemplated.
|Aug 7 1992||Received:|
Copy of Applt's request for correction, Augmentation Etc. filed in Los Angeles Supr. Crt. (23 Pp.)
|Oct 27 1992||Filed:|
Applic. of Applt to Associate Counsel.
|Oct 30 1992||Compensation awarded counsel|
|Nov 9 1992||Order filed:|
The application of appellant to associate counsel is granted. Louis E. Kempinsky, Esq. and Leslie E. Wallis, Esq. are hereby appointed as associate counsel to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings.
|Apr 1 1993||Compensation awarded counsel|
|Jun 30 1993||Compensation awarded counsel|
|Jun 13 1995||Filed:|
Applt's Applic. to withdraw Designation of Leslie E. Wallis as Assoc. Counsel.
|Jun 19 1995||Received:|
Suppl Proof of Service of Applt's Applic. to withdraw Designation of Leslie E. Wallis as Assoc Counsel.
|Aug 25 1995||Order filed:|
Appellant's "Application to Withdraw Designation of Leslie E. Wallis as Associate Counsel" is granted. The order filed 11-9-92, is vacated insofar as it appoints Leslie E. Wallis as associate counsel for appellant.
|Apr 22 1996||Compensation awarded counsel|
|Jun 26 1997||Record on appeal filed|
C-18 (4,593 Pp.) and R-49 (7,852 Pp.); Clerk's Transcript includes 3,247 pages of Juror Questionnaires.
|Jun 26 1997||Appellant's opening brief letter sent, due:|
|Jul 24 1997||Application for Extension of Time filed|
To file Aob.
|Aug 11 1997||Filed:|
Decl of Mark Borenstein in support of request for Eot.
|Aug 14 1997||Extension of Time application Granted|
To 10-6-97 To file Aob.
|Sep 26 1997||Compensation awarded counsel|
|Oct 3 1997||Application for Extension of Time filed|
To file Aob.
|Oct 9 1997||Extension of Time application Granted|
To 12-5-97 To file Aob.
|Dec 3 1997||Application for Extension of Time filed|
To file Aob.
|Dec 5 1997||Extension of Time application Granted|
To 1-5-98 To file Aob.
|Jan 5 1998||Application for Extension of Time filed|
To file Aob.
|Jan 8 1998||Extension of Time application Granted|
To February 4,1998 To file AOB
|Feb 4 1998||Application for Extension of Time filed|
To file Aob.
|Feb 24 1998||Filed:|
Revised Declaration of Work Performed to Date in support of Applt's Application for Fifth Extension of time to file AOB
|Feb 26 1998||Extension of Time application Granted|
To 4-6-98 To file AOB
|Apr 28 1998||Application for Extension of Time filed|
By Applt to file AOB
|May 4 1998||Extension of Time application Granted|
To 5-18-98 To file AOB
|May 29 1998||Application for Extension of Time filed|
By Applt to file AOB
|Jun 4 1998||Extension of Time application Granted|
To 6-18-98 To file Aob.
|Jun 19 1998||Application for Extension of Time filed|
To file Aob.
|Jul 6 1998||Filed:|
Suppl Decl of Mark Borenstein in support of Applic. for Eot.
|Jul 13 1998||Extension of Time application Granted|
To 7-20-98 To file AOB
|Jul 22 1998||Application for Extension of Time filed|
To file Aob.
|Jul 28 1998||Extension of Time application Granted|
To 8-19-98 To file Aob. the Court Will not Look Favorably Upon further Application for Ext. of time Absent A Showing of Substantial Progress on The brief.
|Aug 18 1998||Application for Extension of Time filed|
To file Aob.
|Aug 25 1998||Order filed:|
The Applic. of Applt for an Extension of time to file AOB Is granted to & Including 9-18-98. further Extensions of time will be Considered Only If appointed Counsel's Declarations Show Steady, Substantial Progress Towards Completing the Opening brief, & Are Signed by Counsel Himself. the Declarations Shall Itemize the Number of issues briefed to Date, & Shall Set Forth Good Cause for the requested Extension of Time. (See Cal. Rules of Court, Rule 45.5.)
|Sep 22 1998||Application for Extension of Time filed|
To file Aob.
|Oct 2 1998||Filed:|
Suppl Decl of Mark Borenstein in support of Eot.
|Oct 5 1998||Extension of Time application Granted|
To 10-19-98 To file AOB further Extensions of time will be Considered Only If appointed Counsel's Declarations Show Steady, Substantial Progress Towards Completing the Opening brief,and Are Signed by Counsel Himself. the Declarations Shall Itemize the Number of Issues briefed to Date,and Shall Set Forth Good Cause for the requested Extension of Time. (See Cal.Rules of Court, Rule 45.5)
|Oct 19 1998||Application for Extension of Time filed|
By Applt to file AOB
|Oct 28 1998||Extension of Time application Granted|
To 11-19-98 To file AOB further Extensions of time will be Considered Only If appointed Counsel's Declarations Show Steady Substantial Progress Towards Completing the Opening brief and Are Signed by Counsel Himself. the Declarations Shall Itemize the Number of Issues briefed to Date, and Shall Set Forth Good Cause for the requested Extension of Time. (See Cal. Rules of Court, Rule 45.5)
|Nov 23 1998||Application for Extension of Time filed|
To file Aob.
|Dec 9 1998||Extension of Time application Granted|
To 12-21-98 To file Aob. further Extensions of time will be Considered Only If appointed Counsel's Declarations Show Steady, Substantial Progress Towards Completing the AOB and Are Signed by Counsel Himself.the Declarations Shall be Timely filed,and Shall Itemize the Number Of issues briefed to Date,and Shall Set Forth Good Cause for the requested Extension Of Time. (See Cal.Rules Of Court, Rule 45.5)
|Dec 21 1998||Application for Extension of Time filed|
By Applt to file AOB
|Jan 4 1999||Extension of Time application Granted|
To 1-21-99 To Ofile AOB further Extensions of time will be Considered Only If appointed Counsel's Declarations Show Steady Substantial Progress Towards Completing the AOB and Are Signed by Counsel Himself.the Declarations Shall be Timely filed and Shall Itemize the Number Of issues briefed to Date and Shall Set Forth Good Cause for the requested Extension Of time (See Cal.Rules Of Court, Rule 45.5)
|Jan 20 1999||Application for Extension of Time filed|
To file Aob.
|Jan 25 1999||Extension of Time application Granted|
To 2-22-99 To file Aob. further Extensions of time will be Considered Only If appointed Counsel's Declarations Show Steady, Substantial Progress Towards Completing the Opening brief, & Are Signed by Counsel Himself. the Declarations Shall be Timely filed, & Shall Itemize the Number Of Isssues briefed to Date, & Shall Set Forth Good Cause for the requested Extension Of Time. (See Cal. Rules Of Court, Rule 45.5.) Counsel Is Directed, At the time He Submits A Draft of the Opening brief to the Calif. Appellate Project, to So Inform the Court by letter.
|Feb 22 1999||Application for Extension of Time filed|
To file Aob.
|Mar 1 1999||Extension of Time application Granted|
To 3-31-99 To file AOB further Requests for Extension of time will be Considered Only If appointed Counsel, on or before March 31,1999,has submitted to Cap for its Review A Draft of the AOB and So Informed the Court.the Court Notes Counsel's Prior representations Regarding this Matter. in Addition,further Extensions of time will be Considered Only If appointed Counsel's Declarations Show Steady, Substantial Progress Towards Completing the Aob, Are Signed by Counsel Himself,Are Timely filed, Itemize the Number of issues briefed to Date, and Set Forth Good Cause for the requested Extension of Time.(See Cal.Rules of Court, Rule 45.5)
|Mar 18 1999||Application for Extension of Time filed|
To file Aob.
|May 26 1999||Extension of Time application Granted|
To 7-30-99 To file AOB no further Extensions of time Are Contemplated
|Jul 15 1999||Application for Extension of Time filed|
To file AOB
|Jul 16 1999||Extension of Time application Granted|
To 8-25-99 To file AOB no further Extensions of time will be Granted.
|Aug 17 1999||Motion to augment AA record filed|
|Aug 20 1999||Application for Extension of Time filed|
To file Aob.
|Aug 25 1999||Extension of Time application Denied|
The Appl. of Applt for an Extension of time to file AOB Is denied. The Court Will Entertain an Appl. for Relief from Default, Showing Good Cause, Submitted with the AOB no Later Than 8/30/99.
|Aug 31 1999||Filed:|
Application for Relief from Default to file AOB on 8/30/99. (brief submitted Under Separate Cover)
|Aug 31 1999||Filed:|
Application for Leave to file AOB in Excess of 280 pages.
|Aug 31 1999||Request for judicial notice filed (in AA proceeding)|
|Sep 1 1999||Order filed|
Application for relief from default to file AOB granted. Application for leave to file AOC in excess of 280 pages granted.
|Sep 1 1999||Appellant's opening brief filed|
|Sep 2 1999||Filed:|
Supplemental Proof of Service of Aob.
|Oct 8 1999||Application for Extension of Time filed|
To file Resp's brief.
|Oct 15 1999||Extension of Time application Granted|
To 11/1/99 To file Resp's brief.
|Nov 1 1999||Application for Extension of Time filed|
To file Resp's brief.
|Nov 4 1999||Extension of Time application Granted|
To 12/1/99 To file Resp's brief.
|Dec 1 1999||Application for Extension of Time filed|
To file Resp's brief.
|Dec 6 1999||Extension of Time application Granted|
To 1/10/2000 To file Resp's brief.
|Jan 7 2000||Application for Extension of Time filed|
To file Resp's brief.
|Jan 12 2000||Extension of Time application Granted|
To 2/9/2000 To file Resp's brief.
|Feb 8 2000||Application for Extension of Time filed|
To file Resp's brief.
|Feb 10 2000||Extension of Time application Granted|
To 3/13/2000 To file Resp's brief.
|Mar 10 2000||Application for Extension of Time filed|
To file Resp's brief.
|Mar 16 2000||Extension of Time application Granted|
To 4/12/2000 To file Resp's brief.
|Apr 10 2000||Application for Extension of Time filed|
To file Repondent's brief
|Apr 18 2000||Extension of Time application Granted|
To 5/12/2000 To file Resp's brief.
|May 10 2000||Application for Extension of Time filed|
To file Repondent's brief
|May 16 2000||Extension of Time application Granted|
To 6/12/2000 To file Resp's brief.
|Jun 8 2000||Application for Extension of Time filed|
To file Resp's brief.
|Jun 12 2000||Extension of Time application Granted|
To 7/12/2000 To file Resp's brief.
|Jul 7 2000||Counsel's status report received (confidential)|
|Jul 10 2000||Filed:|
Confidental declaration of atty Mark A. Borenstein.
|Jul 10 2000||Application for Extension of Time filed|
to file Respondent's brief
|Jul 13 2000||Extension of Time application Granted|
To 8/11/2000 to file resp's brief.
|Jul 26 2000||Compensation awarded counsel|
|Aug 10 2000||Application for Extension of Time filed|
To file resp's brief (11th request)
|Aug 21 2000||Extension of Time application Granted|
To 9/11/2000 to file resp's brief.
|Sep 8 2000||Application for Extension of Time filed|
To file resp's brief. (12 request)
|Sep 13 2000||Extension of Time application Granted|
To 10/11/2000 to file resp's brief.
|Oct 10 2000||Application for Extension of Time filed|
To file resp's brief (13 request)
|Oct 20 2000||Extension of Time application Granted|
To 11/13/2000 to file resp's brief.
|Nov 9 2000||Application for Extension of Time filed|
to file Resp's brief (14 request)
|Nov 21 2000||Extension of Time application Granted|
To 12/13/2000 to file resp's brief. No further ext. of time are contemplated.
|Dec 12 2000||Application for Extension of Time filed|
To file resp's brief (15th request)
|Dec 20 2000||Extension of Time application Granted|
To 2/13/2001 to file resp's brief. No further ext. of time will be granted.
|Dec 22 2000||Change of Address filed for:|
atty Mark Borenstein.
|Jan 22 2001||Respondent's brief filed|
|Jan 22 2001||Motion to Augment Record filed|
By respondent (18 pages)
|Feb 13 2001||Application for Extension of Time filed|
To file reply brief (1st request)
|Feb 16 2001||Extension of Time application Granted|
To 4/23/2001 to file reply brief.
|Feb 20 2001||Counsel's status report received (confidential)|
|Apr 12 2001||Application for Extension of Time filed|
To file Reply Brief. (2nd request)
|Apr 16 2001||Extension of Time application Granted|
To 6/22/2001 to file Reply Brief.
|May 9 2001||Counsel's status report received (confidential)|
|Jun 18 2001||Application for Extension of Time filed|
To file AOB. (3rd request)
|Jun 19 2001||Extension of Time application Granted|
To 8/21/2001 to file reply brief.
|Jul 18 2001||Counsel's status report received (confidential)|
|Aug 7 2001||Application for Extension of Time filed|
to file reply brief. (4th request)
|Aug 16 2001||Extension of Time application Granted|
To 10/22/2001 to file reply brief.
|Oct 18 2001||Application for Extension of Time filed|
To file reply brief. (5th reply)
|Oct 24 2001||Extension of Time application Granted|
To 11/21/2001 to file reply brief. No further extensions of time are contemplated absent a showing of substantial progress.
|Nov 9 2001||Application for Extension of Time filed|
to file reply brief. (6th request)
|Nov 20 2001||Extension of time granted|
To 1/22/2002 to file reply brief. No further extensions of time are contemplated.
|Dec 28 2001||Counsel's status report received (confidential)|
|Jan 17 2002||Request for extension of time filed|
To file reply brief. (7th request)
|Jan 23 2002||Filed:|
supplemental declaration of atty Borenstein in support of applic. for ext. of time to file reply brief.
|Feb 19 2002||Extension of time granted|
To 3/25/2002 to file reply brief. Counsel anticipates filing the brief by 6/15/2002. Only three further extensions are contemplated.
|Mar 15 2002||Change of Address filed for:|
counsel for appellant, Law Firm of Overland & Borenstein LLP
|Mar 21 2002||Request for extension of time filed|
To file reply brief. (8th request)
|Mar 25 2002||Counsel's status report received (confidential)|
|Apr 4 2002||Counsel's status report received (confidential)|
|Apr 4 2002||Extension of time granted|
To 5/24/2002 to file reply brief. Counsel anticipates filing the brief by 6/15/2002. Only one further extension for 22 additional days is contemplated.
|May 21 2002||Counsel's status report received (confidential)|
|May 21 2002||Request for extension of time filed|
To file reply brief. (9th request)
|May 23 2002||Extension of time granted|
To 6/17/2002 to file applt.'s reply brief. Counsel anticipates filing that brief by 6/17/2002. No further extension is contemplated.
|Jun 11 2002||Request for extension of time filed|
To file reply brief. (10th request)
|Jun 13 2002||Extension of time granted|
to 7-17-2002 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Borenstein's representation that he anticipates filing the brief by 7-17-2002.
|Jul 17 2002||Request for extension of time filed|
To file applt.'s reply brief. (11th request)
|Jul 22 2002||Extension of time granted|
To 7/29/2002 to file applt.'s reply brief. Counsel anticipates filing that brief by 7/29/2002. No further extension will be granted.
|Jul 29 2002||Appellant's reply brief filed|
|Jul 31 2002||Counsel's status report received (confidential)|
|Oct 1 2002||Counsel's status report received (confidential)|
|Dec 16 2002||Counsel's status report received (confidential)|
|Jan 13 2003||Compensation awarded counsel|
|Jan 27 2003||Related habeas corpus petition filed (concurrent)|
|Feb 18 2003||Counsel's status report received (confidential)|
|Apr 28 2003||Application filed to:|
for leave to file supplement to reply brief. (6 pp. supplement attached to application)
|May 1 2003||Order filed|
Appellant's application for leave to file supplement to the reply brief is granted. Any response is to be served and filed on or before May 30, 2003. No extensions of time are contemplated.
|May 1 2003||Filed:|
Appellant's supplement to the reply brief. (6 pp.)
|May 5 2003||Filed:|
Respondent's response to supplement to reply brief. [6 pp.]
|Jan 12 2005||Record augmentation granted in part/denied in part|
Respondent's request to augment the record, filed in this court on January 22, 1999, is granted. The record is augmented to include page 17 of the written juror questionnaire submitted by prospective juror L.T. Appellant's request to augment the record, filed in this court on August 17, 1999, is granted in part and denied in part, as follows: a) The request to augment the appellate record with exhibit A is denied. (See Cal. Rules of Court, rule 34.1(a)(3) [items admitted into evidence, refused or lodged with the trial court are already part of the record]; People v. Brooks (1980) 26 Cal.3d 471, 484 ["Augmentation is not available . . . for the purpose of adding material that was not a proper part of the record in the trial court"].) (b) The request to augment the appellate record with exhibits L and P is denied because these items are already part of the record. (See CT 371, 383.) (c) The request to augment the appellate record with exhibits E through K, exhibits M, N and O, and exhibits Q through DD is granted, subject to the submission to this court, by appellate counsel, of certified copies of these documents. Appellant's request for judicial notice, filed in this court on August 31, 1999, is denied.
|Mar 4 2005||Oral argument letter sent|
advising counsel that court could schedule this case for argument as early as the first May calendar, to be held the week of May 2, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Mar 7 2005||Received:|
letter from Deputy AG Breton, dated 3-7-2005, regarding oral argument letter.
|Mar 11 2005||Received:|
(via fax) letter dated 3-11-2005, from attorney Mark Borenstein regarding the scheduling of oral argument.
|Mar 14 2005||Change of contact information filed for:|
Attorney Mark A. Borenstein for appellant Mario Lewis Gray
|Mar 15 2005||Letter sent to:|
counsel advising them that the court has tentatively scheduled this case for the late May oral argument session (the week of May 23) and that is very likely when the case will be heard.
|May 3 2005||Case ordered on calendar|
5/26/05, 1:30pm, S.F.
|May 12 2005||Filed letter from:|
respondent, dated 5-12-2005, regarding focus issues.
|May 12 2005||Received:|
letter from respondent dated 5-12-2005 requesting that case be given priority and heard first on the afternoon calendar of 5-26-2005.
|May 13 2005||Filed:|
appellant's focus issue letter, dated 5-12-2005.
|May 13 2005||Argument rescheduled|
to 5/31/05 @ 2pm in LA. (was set for 5/26/05 in SF)
|May 20 2005||Received:|
letter from appellant, dated 5/20/2005, re additonal authorities for oral argument.
|May 27 2005||Filed:|
Supplemental proof of service of additional authorities for oral argument.
|May 31 2005||Cause argued and submitted|
|Jun 24 2005||Filed:|
appellant's letter brief. (7 pp. excluding attachments)
|Jun 24 2005||Received:|
letter brief from appellant, dated 6-23-2005, including request for permission to file.
|Jun 24 2005||Order filed|
Appellant's request for permission to file a letter brief in light of the United States Supreme Court's recent decisions in Miller-El v. Dretke (June 13, 2005, No. 03-9659) __ U.S. __ [05 C.D.O.S. 5029] and Johnson v. California (June 13, 2005, No. 04-6964) __ U.S. __ [05 C.D.O.S. 5024] is granted. Any response may be served and filed on or before July 11, 2005.
|Jul 11 2005||Request for extension of time filed|
to file response to appellant's letter brief.
|Jul 12 2005||Extension of time granted|
Good cause appearing, counsel's request for an extension of time in which to file a response to appellant's letter brief is granted to 7-18-2005.
|Jul 18 2005||Filed:|
respondent's letter brief, dated 7-18-2005, in response to appellant's letter brief. (7 pp.)
|Jul 21 2005||Received:|
appellant's request for permission to file letter brief reply to lettter filed by Attorney General on July 18, 2005.
|Jul 22 2005||Filed:|
appellant's letter brief reply, dated 7-21-2005. (5 pp.)
|Aug 25 2005||Opinion filed: Judgment affirmed in full|
Majority Opinion by Werdegar, J. -- joined by George C.J., Kennard, Baxter, Chin & Moreno JJ. Concurring Opinion by Baxter, J. Concurring Opinion by Chin, J. -- joined by Baxter, J.
|Sep 9 2005||Rehearing petition filed|
by appellant. (3585 words; 16 pp.)
|Sep 15 2005||Time extended to consider modification or rehearing|
to 11/23/2005 or the date upon which rehearing is either granted or denied, whichever occurs first.
|Oct 26 2005||Rehearing denied|
|Oct 26 2005||Remittitur issued (AA)|
|Nov 2 2005||Received:|
acknowledgment of receipt of remittitur.
|Jan 17 2006||Received:|
copy of application for extension of time to file Cert. Petn. from U.S.S.C.
|Jan 26 2006||Received:|
letter from U.S.S.C., dated 1-20-2006, advising that the time to file cert petition has been extended to and including 2-23-2006.
|Mar 13 2006||Received:|
letter from U.S.S.C., dated March 8, 2006, advising petition for writ of certiorari filed on February 23, 2006 placed on docket March 8, 2006 as No. 05-9564.
|Oct 13 2006||Received:|
letter from U.S.S.C., dated October 2, 2006, advising petition for writ of certiorari was denied that date.
|Apr 10 2007||Filed:|
declaration of attorney Mark A. Borenstein (confidential)
|Apr 26 2007||Compensation awarded counsel|
|May 22 2007||Order filed (150 day statement)|
|May 31 2007||Compensation awarded counsel|
|Jun 19 2008||Application filed|
by Gray for release of files, records, and any confidential materials (filed by Federal Public Defender, Los Angeles)
|Aug 13 2008||Order filed|
The "Application for Release of Files, Records, and Any Confidential Materials," filed June 19, 2008, is granted in part and denied in part, as follows: Petitioner may review and copy the following sealed materials filed in People v. Mario Lewis Gray, S014664: Pages 487, 488, 488A, 489-494, contained in the manila envelope marked "Confidential - May Not Be Examined Without Court Order - Probation Officer's Report," filed in this court on June 26, 1997; and Pages 70-95, 184-185, 493-498, and 499-509, contained in "Volume III" of the "Clerk's Supplemental I" transcript, filed in this court on June 26, 1997. Unless otherwise ordered by this court, all of these sealed documents are to remain under seal, and counsel for petitioner is ordered not to disclose their contents. If counsel wishes to use these materials for any purpose, or to disclose or describe their contents to petitioner or any other person, counsel must apply to this court for permission to do so. To the extent the parties quote, disclose, or describe these materials in any such application or in any other court papers, those papers must themselves be filed or lodged under seal. Petitioner may review and copy the confidential materials in the record in People v. Mario Lewis Gray, S014664. With respect to any documents in this court's records that are not under seal or otherwise confidential, petitioner's application to copy them is granted. Counsel must supply the personnel and equipment necessary to undertake this examination and copying of the records, which must occur on the premises of the court. Petitioner's application to inspect and copy exhibits admitted at trial, or any other document filed in the superior court, is denied without prejudice because this court's records do not contain these items. Petitioner may apply in the superior court for access to these items. Petitioner's application to access transcripts of in camera proceedings, which appears to implicate a single transcript of an in camera hearing held on January 29, 1990, is denied without prejudice, because this court's records do not contain this item. Petitioner may apply for access to this, and other transcripts of in camera proceedings, if any, in the superior court.
|Oct 29 2008||Related habeas corpus petition filed (post-judgment)|
by the Federal Public Defender, Los Angeles; case no. S167924.
|Jan 2 2009||Motion to withdraw as counsel filed|
by attorneys Mark A. Borenstein and Louis E. Kempinsky.
|Jan 2 2009||Motion for appointment of counsel filed|
by the Federal Public Defender (for the Central District of California).
|Jan 21 2009||Withdrawal of counsel allowed by order|
Good cause appearing, the application of appointed counsel for permission to withdraw as attorneys of record for condemned prisoner Mario Lewis Gray, filed January 2, 2009, is granted. The order appointing Mark A. Borenstein as counsel of record for condemned prisoner Mario Lewis Gray, filed December 23, 1991, and the order appointing Louis E. Kempinsky as associate counsel of record for condemned prisoner Mario Lewis Gray, filed November 9, 1992, are hereby vacated. The Federal Public Defender for the Central District of California is hereby appointed attorney of record for condemned prisoner Mario Lewis Gray. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate.
|Sep 1 1999||Appellant's opening brief filed|
|Jan 22 2001||Respondent's brief filed|
|Jul 29 2002||Appellant's reply brief filed|