Supreme Court of California Justia
Docket No. S014664
People v. Gray

Filed 8/25/05



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S014664

v.

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.

1


I. GUILT PHASE

A. Facts

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

2

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

3

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

basket.

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

4

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

5

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.

6

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

7

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

her legs.

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,

and cigarettes.

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

8

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

Wheeler/Batson error.


1

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
dismissed.

2

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.)

9

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

10

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

11

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].)

c. Discussion

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]

(Cornwell).)

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.”

12

(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

13

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

inference.

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-

3

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.)

14

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

15

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

16

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.

17

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


4

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)

18

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.

5

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
excused.

19

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


6

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
obligations.

20

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.

21

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

22

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.

23

“[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

p. 424.)

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,

24

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).

a. Facts

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


7

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)

25

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.

8

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.

26

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

27

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,”

28

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


9

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.”

29

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

30

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

31

the court was authorized to reconvene the jury to complete its verdict.” (Id. at

p. 773.)

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


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)

32

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.

33

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

34

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.

35

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

36

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

home.”

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

37

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

38

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

39

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

transcript.

3. Alleged Ineffective Assistance of Counsel: Defense Expert

Consultants

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.

a. Facts

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

40

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?

“A. Yes.”

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.

41

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.

b. Discussion

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

42

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

43

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

privilege.

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

44

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,

45

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

constitutionally ineffective.

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

46

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

No. 2.50.

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

47

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.

11

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)

48

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

pp. 266-267.)

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
long time.”

49

transcription of what he had told the police. Counsel did not object to this line of

questioning.

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

Recollection

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.)

50

i. Failure to Object when Prosecutor Referred to Crimes as

“Burglaries”

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

Kit”

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

51

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

52

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.

53

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

taxpayers.

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

54

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,

79.)

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

55

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

jurors’ emotions.

56

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


12

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.)

57

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-

58

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.

59

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


13

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.)

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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.

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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.

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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.)

14

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.”

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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.

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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

severance.

II. PENALTY PHASE

A. Facts

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.

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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

66

money for food and rent. She admitted he had been incarcerated for most of his

life since the age of 16.

B. Discussion

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

go then.”

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.

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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,

68

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

not necessary.

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

69

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

guilt phase.

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

70

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.

71

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

72

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

p. 277.)

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.)


15

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.)

73

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

here.

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

penalty phase.

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

74

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


16

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.”

75

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

76

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

discretion”].)

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,

fn. 17.)

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

17

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.

77

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

penalty judgment.

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

doubt.

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

78

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

mitigating factor.

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


18

Defendant overstates the case in describing lingering doubt as “one of the

primary theories on which [his] penalty phase defense rested.”

19

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.”

79

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

80

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:


20

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-
469.)

21

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.

81

“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


22

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
violence.

82

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

83

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.)

84

(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.)

23

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).

85

(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

punishment].)

(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.

86

III. CONCLUSION

The judgment is affirmed in its entirety.

WERDEGAR, J.



WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.



87



C O P Y


PEOPLE v. GRAY (MARIO LEWIS)

S014664



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.)

BAXTER, J.

1



C O P Y


PEOPLE v. GRAY (MARIO LEWIS)

S014664



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

defendant’s confession].)

1



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.

CHIN, J.

I CONCUR:

BAXTER, J.

2



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gray
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S014664
Date Filed: August 25, 2005
__________________________________________________________________________________

Court:
Superior
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.






1







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
(310) 215-6580

Robert David Breton
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2279


2

Opinion Information
Date:Docket Number:
Thu, 08/25/2005S014664

Parties
1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Robert D. Breton, Deputy Attorney General
300 South Spring Street, Suite 500
Los Angeles, CA

2Gray, Mario Lewis (Appellant)
Represented by Federal Public Defender - La
Vay I. Williams, Deputy Federal Public Defender
321 East Second St.
Los Angeles, CA


Disposition
Aug 25 2005Opinion: Affirmed

Dockets
Mar 14 1990Judgment of death
 
Mar 20 1990Filed certified copy of Judgment of Death Rendered
  3-14-90.
Dec 23 1991Counsel appointment order filed
  Mark A. Borenstein, Esq. (to represent Applt on A.A., Including Any Related Habeas Proceedings.)
Jan 21 1992Application for Extension of Time filed
  By Applt to request correction of Record.
Jan 24 1992Extension of Time application Granted
  To Applt To 3-23-92 To request Corr. of Record.
Mar 23 1992Application for Extension of Time filed
  By Applt to request correction of Record.
Mar 26 1992Extension of Time application Granted
  To Applt To 5-22-92 To request Corr. of Record.
May 21 1992Application for Extension of Time filed
  By Applt to request correction of Record.
May 26 1992Extension of Time application Granted
  To Applt To 7-6-92 To request Corr. of Record.
Jul 2 1992Application for Extension of Time filed
  By Applt to request correction of Record.
Jul 6 1992Extension of Time application Granted
  To Applt To 8-5-92 To request correction of Record. no further Extensions of time Are Contemplated.
Aug 7 1992Received:
  Copy of Applt's request for correction, Augmentation Etc. filed in Los Angeles Supr. Crt. (23 Pp.)
Oct 27 1992Filed:
  Applic. of Applt to Associate Counsel.
Oct 30 1992Compensation awarded counsel
 
Nov 9 1992Order 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 1993Compensation awarded counsel
 
Jun 30 1993Compensation awarded counsel
 
Jun 13 1995Filed:
  Applt's Applic. to withdraw Designation of Leslie E. Wallis as Assoc. Counsel.
Jun 19 1995Received:
  Suppl Proof of Service of Applt's Applic. to withdraw Designation of Leslie E. Wallis as Assoc Counsel.
Aug 25 1995Order 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 1996Compensation awarded counsel
 
Jun 26 1997Record 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 1997Appellant's opening brief letter sent, due:
  8-5-97.
Jul 24 1997Application for Extension of Time filed
  To file Aob.
Aug 11 1997Filed:
  Decl of Mark Borenstein in support of request for Eot.
Aug 14 1997Extension of Time application Granted
  To 10-6-97 To file Aob.
Sep 26 1997Compensation awarded counsel
 
Oct 3 1997Application for Extension of Time filed
  To file Aob.
Oct 9 1997Extension of Time application Granted
  To 12-5-97 To file Aob.
Dec 3 1997Application for Extension of Time filed
  To file Aob.
Dec 5 1997Extension of Time application Granted
  To 1-5-98 To file Aob.
Jan 5 1998Application for Extension of Time filed
  To file Aob.
Jan 8 1998Extension of Time application Granted
  To February 4,1998 To file AOB
Feb 4 1998Application for Extension of Time filed
  To file Aob.
Feb 24 1998Filed:
  Revised Declaration of Work Performed to Date in support of Applt's Application for Fifth Extension of time to file AOB
Feb 26 1998Extension of Time application Granted
  To 4-6-98 To file AOB
Apr 28 1998Application for Extension of Time filed
  By Applt to file AOB
May 4 1998Extension of Time application Granted
  To 5-18-98 To file AOB
May 29 1998Application for Extension of Time filed
  By Applt to file AOB
Jun 4 1998Extension of Time application Granted
  To 6-18-98 To file Aob.
Jun 19 1998Application for Extension of Time filed
  To file Aob.
Jul 6 1998Filed:
  Suppl Decl of Mark Borenstein in support of Applic. for Eot.
Jul 13 1998Extension of Time application Granted
  To 7-20-98 To file AOB
Jul 22 1998Application for Extension of Time filed
  To file Aob.
Jul 28 1998Extension 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 1998Application for Extension of Time filed
  To file Aob.
Aug 25 1998Order 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 1998Application for Extension of Time filed
  To file Aob.
Oct 2 1998Filed:
  Suppl Decl of Mark Borenstein in support of Eot.
Oct 5 1998Extension 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 1998Application for Extension of Time filed
  By Applt to file AOB
Oct 28 1998Extension 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 1998Application for Extension of Time filed
  To file Aob.
Dec 9 1998Extension 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 1998Application for Extension of Time filed
  By Applt to file AOB
Jan 4 1999Extension 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 1999Application for Extension of Time filed
  To file Aob.
Jan 25 1999Extension 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 1999Application for Extension of Time filed
  To file Aob.
Mar 1 1999Extension 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 1999Application for Extension of Time filed
  To file Aob.
May 26 1999Extension of Time application Granted
  To 7-30-99 To file AOB no further Extensions of time Are Contemplated
Jul 15 1999Application for Extension of Time filed
  To file AOB
Jul 16 1999Extension of Time application Granted
  To 8-25-99 To file AOB no further Extensions of time will be Granted.
Aug 17 1999Motion to augment AA record filed
  by appellant
Aug 20 1999Application for Extension of Time filed
  To file Aob.
Aug 25 1999Extension 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 1999Filed:
  Application for Relief from Default to file AOB on 8/30/99. (brief submitted Under Separate Cover)
Aug 31 1999Filed:
  Application for Leave to file AOB in Excess of 280 pages.
Aug 31 1999Request for judicial notice filed (in AA proceeding)
  2 volumes
Sep 1 1999Order filed
  Application for relief from default to file AOB granted. Application for leave to file AOC in excess of 280 pages granted.
Sep 1 1999Appellant's opening brief filed
  (329 Pp.)
Sep 2 1999Filed:
  Supplemental Proof of Service of Aob.
Oct 8 1999Application for Extension of Time filed
  To file Resp's brief.
Oct 15 1999Extension of Time application Granted
  To 11/1/99 To file Resp's brief.
Nov 1 1999Application for Extension of Time filed
  To file Resp's brief.
Nov 4 1999Extension of Time application Granted
  To 12/1/99 To file Resp's brief.
Dec 1 1999Application for Extension of Time filed
  To file Resp's brief.
Dec 6 1999Extension of Time application Granted
  To 1/10/2000 To file Resp's brief.
Jan 7 2000Application for Extension of Time filed
  To file Resp's brief.
Jan 12 2000Extension of Time application Granted
  To 2/9/2000 To file Resp's brief.
Feb 8 2000Application for Extension of Time filed
  To file Resp's brief.
Feb 10 2000Extension of Time application Granted
  To 3/13/2000 To file Resp's brief.
Mar 10 2000Application for Extension of Time filed
  To file Resp's brief.
Mar 16 2000Extension of Time application Granted
  To 4/12/2000 To file Resp's brief.
Apr 10 2000Application for Extension of Time filed
  To file Repondent's brief
Apr 18 2000Extension of Time application Granted
  To 5/12/2000 To file Resp's brief.
May 10 2000Application for Extension of Time filed
  To file Repondent's brief
May 16 2000Extension of Time application Granted
  To 6/12/2000 To file Resp's brief.
Jun 8 2000Application for Extension of Time filed
  To file Resp's brief.
Jun 12 2000Extension of Time application Granted
  To 7/12/2000 To file Resp's brief.
Jul 7 2000Counsel's status report received (confidential)
 
Jul 10 2000Filed:
  Confidental declaration of atty Mark A. Borenstein.
Jul 10 2000Application for Extension of Time filed
  to file Respondent's brief
Jul 13 2000Extension of Time application Granted
  To 8/11/2000 to file resp's brief.
Jul 26 2000Compensation awarded counsel
  Atty Borenstein
Aug 10 2000Application for Extension of Time filed
  To file resp's brief (11th request)
Aug 21 2000Extension of Time application Granted
  To 9/11/2000 to file resp's brief.
Sep 8 2000Application for Extension of Time filed
  To file resp's brief. (12 request)
Sep 13 2000Extension of Time application Granted
  To 10/11/2000 to file resp's brief.
Oct 10 2000Application for Extension of Time filed
  To file resp's brief (13 request)
Oct 20 2000Extension of Time application Granted
  To 11/13/2000 to file resp's brief.
Nov 9 2000Application for Extension of Time filed
  to file Resp's brief (14 request)
Nov 21 2000Extension of Time application Granted
  To 12/13/2000 to file resp's brief. No further ext. of time are contemplated.
Dec 12 2000Application for Extension of Time filed
  To file resp's brief (15th request)
Dec 20 2000Extension of Time application Granted
  To 2/13/2001 to file resp's brief. No further ext. of time will be granted.
Dec 22 2000Change of Address filed for:
  atty Mark Borenstein.
Jan 22 2001Respondent's brief filed
  265 pages
Jan 22 2001Motion to Augment Record filed
  By respondent (18 pages)
Feb 13 2001Application for Extension of Time filed
  To file reply brief (1st request)
Feb 16 2001Extension of Time application Granted
  To 4/23/2001 to file reply brief.
Feb 20 2001Counsel's status report received (confidential)
 
Apr 12 2001Application for Extension of Time filed
  To file Reply Brief. (2nd request)
Apr 16 2001Extension of Time application Granted
  To 6/22/2001 to file Reply Brief.
May 9 2001Counsel's status report received (confidential)
 
Jun 18 2001Application for Extension of Time filed
  To file AOB. (3rd request)
Jun 19 2001Extension of Time application Granted
  To 8/21/2001 to file reply brief.
Jul 18 2001Counsel's status report received (confidential)
 
Aug 7 2001Application for Extension of Time filed
  to file reply brief. (4th request)
Aug 16 2001Extension of Time application Granted
  To 10/22/2001 to file reply brief.
Oct 18 2001Application for Extension of Time filed
  To file reply brief. (5th reply)
Oct 24 2001Extension 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 2001Application for Extension of Time filed
  to file reply brief. (6th request)
Nov 20 2001Extension of time granted
  To 1/22/2002 to file reply brief. No further extensions of time are contemplated.
Dec 28 2001Counsel's status report received (confidential)
 
Jan 17 2002Request for extension of time filed
  To file reply brief. (7th request)
Jan 23 2002Filed:
  supplemental declaration of atty Borenstein in support of applic. for ext. of time to file reply brief.
Feb 19 2002Extension 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 2002Change of Address filed for:
  counsel for appellant, Law Firm of Overland & Borenstein LLP
Mar 21 2002Request for extension of time filed
  To file reply brief. (8th request)
Mar 25 2002Counsel's status report received (confidential)
 
Apr 4 2002Counsel's status report received (confidential)
  (supplemental).
Apr 4 2002Extension 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 2002Counsel's status report received (confidential)
 
May 21 2002Request for extension of time filed
  To file reply brief. (9th request)
May 23 2002Extension 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 2002Request for extension of time filed
  To file reply brief. (10th request)
Jun 13 2002Extension 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 2002Request for extension of time filed
  To file applt.'s reply brief. (11th request)
Jul 22 2002Extension 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 2002Appellant's reply brief filed
  (93 pp.)
Jul 31 2002Counsel's status report received (confidential)
 
Oct 1 2002Counsel's status report received (confidential)
 
Dec 16 2002Counsel's status report received (confidential)
 
Jan 13 2003Compensation awarded counsel
  Atty Gray
Jan 27 2003Related habeas corpus petition filed (concurrent)
  no. S113159.
Feb 18 2003Counsel's status report received (confidential)
 
Apr 28 2003Application filed to:
  for leave to file supplement to reply brief. (6 pp. supplement attached to application)
May 1 2003Order 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 2003Filed:
  Appellant's supplement to the reply brief. (6 pp.)
May 5 2003Filed:
  Respondent's response to supplement to reply brief. [6 pp.]
Jan 12 2005Record 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 2005Oral 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 2005Received:
  letter from Deputy AG Breton, dated 3-7-2005, regarding oral argument letter.
Mar 11 2005Received:
  (via fax) letter dated 3-11-2005, from attorney Mark Borenstein regarding the scheduling of oral argument.
Mar 14 2005Change of contact information filed for:
  Attorney Mark A. Borenstein for appellant Mario Lewis Gray
Mar 15 2005Letter 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 2005Case ordered on calendar
  5/26/05, 1:30pm, S.F.
May 12 2005Filed letter from:
  respondent, dated 5-12-2005, regarding focus issues.
May 12 2005Received:
  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 2005Filed:
  appellant's focus issue letter, dated 5-12-2005.
May 13 2005Argument rescheduled
  to 5/31/05 @ 2pm in LA. (was set for 5/26/05 in SF)
May 20 2005Received:
  letter from appellant, dated 5/20/2005, re additonal authorities for oral argument.
May 27 2005Filed:
  Supplemental proof of service of additional authorities for oral argument.
May 31 2005Cause argued and submitted
 
Jun 24 2005Filed:
  appellant's letter brief. (7 pp. excluding attachments)
Jun 24 2005Received:
  letter brief from appellant, dated 6-23-2005, including request for permission to file.
Jun 24 2005Order 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 2005Request for extension of time filed
  to file response to appellant's letter brief.
Jul 12 2005Extension 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 2005Filed:
  respondent's letter brief, dated 7-18-2005, in response to appellant's letter brief. (7 pp.)
Jul 21 2005Received:
  appellant's request for permission to file letter brief reply to lettter filed by Attorney General on July 18, 2005.
Jul 22 2005Filed:
  appellant's letter brief reply, dated 7-21-2005. (5 pp.)
Aug 25 2005Opinion 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 2005Rehearing petition filed
  by appellant. (3585 words; 16 pp.)
Sep 15 2005Time 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 2005Rehearing denied
 
Oct 26 2005Remittitur issued (AA)
 
Nov 2 2005Received:
  acknowledgment of receipt of remittitur.
Jan 17 2006Received:
  copy of application for extension of time to file Cert. Petn. from U.S.S.C.
Jan 26 2006Received:
  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 2006Received:
  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 2006Received:
  letter from U.S.S.C., dated October 2, 2006, advising petition for writ of certiorari was denied that date.
Apr 10 2007Filed:
  declaration of attorney Mark A. Borenstein (confidential)
Apr 26 2007Compensation awarded counsel
  Atty Borenstein
May 22 2007Order filed (150 day statement)
 
May 31 2007Compensation awarded counsel
  Atty Borenstein
Jun 19 2008Application filed
  by Gray for release of files, records, and any confidential materials (filed by Federal Public Defender, Los Angeles)
Aug 13 2008Order 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 2008Related habeas corpus petition filed (post-judgment)
  by the Federal Public Defender, Los Angeles; case no. S167924.
Jan 2 2009Motion to withdraw as counsel filed
  by attorneys Mark A. Borenstein and Louis E. Kempinsky.
Jan 2 2009Motion for appointment of counsel filed
  by the Federal Public Defender (for the Central District of California).
Jan 21 2009Withdrawal 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.

Briefs
Sep 1 1999Appellant's opening brief filed
 
Jan 22 2001Respondent's brief filed
 
Jul 29 2002Appellant's reply brief filed
 
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