Filed 7/19/04
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S029174
v.
County of Fresno
DONALD GRIFFIN,
Super. Ct. No. 252758-8
)
Defendant and Appellant.
Defendant Donald Griffin appeals from a judgment of the Fresno County Superior
Court imposing a sentence of death (Pen. Code, § 190 et seq.).1 His appeal is automatic.
(§ 1239, subd. (b).)
At the guilt phase of his initial trial, a jury found defendant guilty of the murder of
Janice Kelly Wilson (Kelly), his 12-year-old stepdaughter, finding that he committed the
murder under the special circumstances of felony-murder rape, felony-murder sodomy,
and felony-murder lewd conduct, and also that he personally used a deadly or dangerous
weapon, a knife. The jury also found defendant guilty of rape, sodomy, and lewd or
lascivious conduct against Kelly. At the penalty phase, the jury fixed the punishment for
the murder at death. The trial court rendered judgment, sentencing defendant to death for
the murder, and staying imposition of sentence as to the rape, sodomy, and lewd conduct
offenses.
1
All further unspecified section references are to the Penal Code.
In
People v. Griffin (1988) 46 Cal.3d 1011 (Griffin I), we affirmed the judgment
as to defendant’s guilt of these offenses and the related special-circumstance and
personal-use findings, but reversed the sentence of death because the trial court
committed error under People v. Ramos (1984) 37 Cal.3d 136, by giving the so-called
Briggs Instruction. That instruction informed the jury that the Governor could commute
a sentence of life imprisonment without possibility of parole to a lesser sentence that
would include the possibility of parole, but did not inform the jury that the Governor
similarly could commute a sentence of death as well. We remanded defendant’s case for
a new trial on the issue of punishment.
On remand, upon retrial of the penalty phase, a new jury again fixed defendant’s
punishment at death. The trial court rendered judgment, again sentencing defendant to
death for the murder and staying imposition of sentence as to the rape, sodomy, and lewd
conduct offenses.
For the reasons set forth below, we affirm the judgment.
I. FACTS
In
Griffin I, we summarized the evidence presented at the guilt phase of the initial
trial as follows:
“Defendant conceded that he had killed his stepdaughter, 12-year-old Kelly . . . ,
but denied any sexual assault. The prosecution evidence was that defendant stopped by
his wife’s workplace in Kerman, California, about 7 p.m. on December 13, 1979, along
with Kelly. He said they were going to his parents’ house nearby, and they left. A few
minutes after 10 p.m. he returned, saying that he had allowed Kelly to leave his parents’
house for home in the company of a little girl wearing horn-rimmed glasses, but that
Kelly had never returned home. He made several expeditions in search of Kelly during
the evening and repeated this story of her disappearance. He reported to the police that
2
Kelly was missing, that she had left in the company of a little Mexican girl wearing
glasses. He said to several witnesses that if anyone had hurt Kelly, he would kill them.
“When the police received a radio report that an injured person had been found on
a nearby rural road, they asked defendant to follow them to the police station. An officer
coming on duty saw defendant in a cell latrine, on his tiptoes, straddling a washbasin,
with his hands in front of him. The officer could not see what defendant was doing, as
his back was facing the officer. When defendant turned around, he asked for paper
towels, and dried his hands. The officer saw that defendant had a buck knife in a holster
at his waist. Defendant went out again to search for Kelly. He returned to the police
station later that night, wearing clean pants and a different jacket. An officer observed
some spots of blood on his boots, and defendant said that they were oil spots and tried to
wipe them off. The officer asked where defendant’s knife was, and he said he had lost it
during his search for Kelly.
“. . . [Kelly’s] body was discovered that night on the side of a rural road. The
blouse and sweater were pulled up partially over her face, the back of her bra was torn,
the left shoulder strap had been torn loose, and one of the cups had been cut with a knife.
The left leg was bent at an awkward angle, and the underwear and pants were pulled
down below the hips. The left leg of the underwear was cut through. The pants were
torn and had also been cut near the zipper. There were stab wounds in the neck and
abdominal incisions from the pubic bone to the breast bone, exposing the internal organs.
There was a large pool of blood nearby, and a bloody partial footprint. An officer
returning from the scene thought that the print matched defendant’s boots. An officer
went out into the police parking lot and shone a light into the truck defendant had been
driving all evening; there was blood on the floorboard on the driver’s side and another
bloody footprint which looked like the one at the scene and looked like it could have
been made by defendant’s boots. Later analysis of the blood in the truck showed that it
was . . . [Kelly’s] unique blood.
3
“After defendant’s arrest, he said, ‘I think I need a psychiatrist.’ Then on his way
from the crime lab to booking, he said to an officer, ‘Do you think I’ll get 10 years for
this?’ When an officer took defendant out of his cell after the arrest, defendant said, ‘Go
ahead man, it’s all right, why don’t you just go ahead and kill me. It’s all right, just go
ahead and kill me.’ To the officer transporting him from Kerman to Fresno, defendant
said, ‘Give me your shotgun so I can blow my head off. I’m a fool.’
“Dr. [Thomas] Nelson performed the autopsy and testified that the cause of death
was strangulation and severing of the carotid artery. The abdominal incision occurred
after death. It was his opinion that there had also been a rape and an act of sodomy. The
hymen was partly torn and there was a little bleeding near the tear. There was also a
small bruise near the opening of the vagina and a bruise of an inch and a quarter to an
inch and a half near the tear in the hymen. This testimony was impeached with prior
inconsistent statements; in his autopsy report Dr. Nelson had not mentioned any bleeding
near the tear in the hymen, and had described the bruise near the tear as much smaller.
He explained that the shape of the bruise had become clearer after the tissue had been
fixed in formaldehyde.
“Dr. Nelson also testified that the anus was quite dilated, and he thought it had
been stretched so far that it could not close. This testimony was impeached with his prior
inconsistent statements; in his autopsy report he said the anus was somewhat ‘prominent.’
He explained at trial that this was a nicer word than dilated. At the preliminary hearing
he said that the anus was somewhat dilated. He explained that he was not very precise in
his speech. The doctor also testified that he took a fluid sample from the anus which
showed no sperm, but which in his opinion showed the presence of prostatic acid
phosphatase.
“Acid phosphatase is an enzyme which occurs in the body in both sexes, but it
occurs at higher levels in the male prostate gland and is contained in seminal emissions.
Dr. Nelson removed 0.1 milliliters of fluid from the anus. His technician, . . . [Joyce]
4
Gordon, diluted this with 0.2 milliliters of saline solution, and divided the sample in half.
The first test on one-half of the sample showed 14.5 sigma units of acid phosphatase.
The test on the other half, involving a chemical reaction with tartrate buffer, showed that
of the total, 8.1 sigma units of the acid phosphatase was prostatic acid phosphatase.
“The defense experts testified that in the absence of sperm or physical injury to the
anus, they would not use any level of acid phosphatase to express an opinion that there
had been an act of sodomy. They also disputed the accuracy and reliability of the tartrate
buffer test to identify acid phosphatase as prostatic acid phosphatase; one expert went so
far as to say that the tartrate buffer test was worthless and that prostatic acid phosphatase
could not be distinguished from any other acid phosphatase except electrophoretically.
There was also a great deal of controversy among the experts on the conversion factor
between sigma units and international units, and about dilution factors. One defense
expert, using his conversion factor and dilution factor, found an amount of acid
phosphatase which was below the minimum amount which the scientific literature said
showed the presence of prostatic acid phosphatase. However, another of the defense
experts agreed with the prosecution’s dilution factors and used an even higher conversion
factor, coming to a total well above the minimum which the literature said indicated the
presence of prostatic acid phosphatase. He maintained, however, that high levels of the
substance should not be used to support an opinion that there had been an act of sodomy
in the absence of sperm or physical injury to the anus. The defense experts also testified
that sperm breaks down faster than acid phosphatase, so with the levels of acid
phosphatase found here, they would certainly expect to find sperm if there had been any
seminal emission.
“The defense pathologist, Dr. [Paul] Herrmann, said that there was insufficient
evidence to show either rape or sodomy, that the injuries which Dr. Nelson had described
in his autopsy report were not indicative of rape, that dilation of the anus could be simply
muscle relaxation after death and before rigor mortis, and that in a child of this age, he
5
would expect much more injury if there had been a rape or act of sodomy. He thought
that the injuries to the vagina could have been caused by a tampon (though the mother
testified in rebuttal that the child had not started menstruating yet) or by a finger. He also
thought that Dr. Nelson had erred in considering changes in tissue after fixation in
formaldehyde, as the formaldehyde distorts the appearance of the tissue.” (Griffin I,
supra, 46 Cal.3d at pp. 1017–1020.)
In
Griffin I, we summarized the evidence presented at the penalty phase of the
initial trial as follows:
“Defendant was 30 years old at the time of the offense and had no prior
convictions. There was no evidence of any prior misconduct; in fact, the prosecution
presented no evidence at the penalty phase of trial.
“In mitigation, . . . defendant called his parents and other family members who
described defendant’s family background. Defendant had little schooling and had been
placed in classes for slow learners. He left school at age 15 or 16 and started working as
a laborer and security guard. He was considered cooperative and hardworking.
Defendant was a loving stepfather to . . . [Kelly] for seven years. However, at the time of
the offense defendant’s relationship with his wife had seriously deteriorated, in part due
to financial difficulties. Defendant had been laid off a day or two before the offense.
“The evidence presented at the penalty phase of trial showed that there was no
indication of any violence in defendant’s nature, and no sign before the offense of the
coming explosion. His friends and family were shocked, believing him incapable of such
an act. There was also testimony that after the offense, defendant was extremely
remorseful, asking that his own life be taken.” (Griffin I, supra, 46 Cal.3d at pp. 1031–
1032.)
At the penalty phase retrial, the People, in their case in aggravation, presented
evidence similar to that introduced at the guilt phase of the initial trial. This evidence
related circumstances of the crimes against Kelly, including expert testimony tending to
6
establish the commission of rape and sodomy and specifically the crucial issue of
penetration, as well as evidence of defendant’s consumption of alcohol and possibly
drugs, although not to the point of intoxication.
The People presented additional evidence, not introduced at the initial trial,
relating to the crimes against Kelly, including evidence disclosing the following three
matters. First, the owner of a slaughterhouse testified that some years prior to the crimes
in question, defendant was employed at that establishment, and that sheep were
slaughtered in a manner similar to the way Kelly’s body was mutilated. Second, a police
officer testified that some months preceding the commission of the crimes, defendant
struck up a conversation with the officer, and the two men discussed how crimes —
including rape — were investigated. Third, two of Kelly’s friends and classmates
testified that on the day the crimes were committed, Kelly acted unusual at school, and
told one of them that defendant had been fondling her for some time and that she
intended to confront him if he continued to do so.
The People also presented evidence of other violent criminal activity committed
by defendant, which also had not been introduced at the initial trial. This evidence
revealed the following. First, a few years prior to the commission of the crimes against
Kelly, John Hogan, who was the father-in-law of defendant’s sister and the property
manager of a house that defendant had rented and was in the process of vacating,
approached defendant in front of the house, cursing him and telling him he still owed rent
and would have to pay for damage he had caused to the premises. When defendant paid
no attention, Hogan touched his shoulder. In response, defendant sprang up, pulled out a
knife with a folding blade, flicked the blade open, and took a step toward Hogan.
Defendant’s sister stepped between the men, with her face to defendant and her back to
Hogan. As Hogan continued to curse defendant, saying, “[W]ell, come on, come on,”
defendant repeatedly told his sister, “[G]et him away or I’ll cut his throat” or “I’ll kill
him.” After she told defendant to put his knife away and leave, he did so. Second,
7
perhaps a year or two preceding the commission of the present crimes, defendant had
engaged in lewd conduct on two separate occasions with four- or five-year-old Lisa B.,
his wife’s niece by marriage. Once, defendant touched Lisa with his fingers in the area
of her vagina; on the other occasion, he penetrated her vagina with his fingers and then
flicked open a knife with a folding blade. Each time, he threatened harm to others if Lisa
revealed what he had done.
In his case in mitigation, defendant presented evidence similar to what he had
presented at the guilt phase of the initial trial relating to the rape, sodomy, and lewd
conduct offenses that preceded his murder of Kelly, including expert evidence offered to
raise a lingering doubt as to the element of penetration required for the commission of
rape and sodomy.
Defendant also presented evidence bearing on his background and character.
Some of this testimony, given by lay witnesses, was much like the evidence he presented
at the penalty phase of his initial trial, describing his minimal schooling and placement in
classes for slow learners, his departure from school in his early to middle teens in order to
perform manual and essentially unskilled labor, his reputation as cooperative and
hardworking, his loving care for Kelly, his seriously deteriorating relationship with his
wife, and his financial difficulties during the period leading up to the commission of the
crimes against Kelly, the loss of his job a day or two before the crimes were committed,
and the remorse he subsequently expressed.
Additional testimony related to defendant’s background and character was given
by expert witnesses, and was substantial and far different from his evidence at the penalty
phase of his initial trial. This evidence was to the following effect: Defendant suffered
physical abuse as a child and youth under his father’s harsh discipline. In addition,
defendant repeatedly suffered severe and violent sexual abuse within an extended and
pervasively aberrant family, which comprised the Sextons and the McDonalds as well as
the Griffins, especially at the hands of his uncles Lonnie and Charles Sexton and even
8
from his own father. This abuse had various adverse consequences, including the
translation of his experiences as a victim into an inclination to victimize others.
Defendant was borderline mentally retarded and suffered from severe neuropsychological
defects, profound learning disabilities, and a speech impediment. Defendant committed
the crimes against Kelly during a “psychotic experience.” According to defendant, after
getting into his truck with Kelly, “he had an extremely weird experience in which he felt
that he was being threatened by what looked like some sort of a monster that was trying
to get at him”; “at that point he drew his knife and tried to defend himself against this
weird monster that was taking over and then passed out”; and “sometime thereafter he
came to and saw the body and got out of there.” Lastly, according to expert testimony
presented, defendant had performed well in prison and could be expected to continue to
do so.
In rebuttal, the People presented evidence to show that defendant was not
borderline mentally retarded and did not commit the crimes against Kelly during a
psychotic experience. An expert witness testified that defendant was not psychotic when
he committed the crimes and was not mentally retarded, and that the qualifying term
“borderline” was psychiatrically “inappropriate.” This expert witness further testified
that when observed by several individuals shortly before and shortly after the
commission of the crimes, defendant was behaving normally, whereas a “person who’s
suffering [from] a psychosis has a significant” and “usually quite obvious” “impairment”
of appreciable duration. This witness added: “[T]hat theory that there was a monster is
just ridiculous. There’s no psychiatric disorder . . . that comes on in a half hour and goes
in a half hour. There’s also the inconsistency if he thought he were protecting himself
from a monster with his knife, why would he have had sex with the monster, raped the
monster, sodomized the monster before killing the monster.” The expert witness
concluded that defendant acted in a rational manner, intending to commit the crimes
without being detected and to avoid suspicion thereafter.
9
Finally, in surrebuttal, defendant presented evidence concerning the poor grades
he received in school, the resulting angry reaction from his father including spankings
and insults, and defendant’s inability to complete job applications.
As noted above, at the conclusion of the penalty phase retrial the jury again fixed
the punishment at death.
II. CLAIMS
Defendant raises several claims in an attempt to establish error requiring reversal
of the judgment. As will appear, we conclude that the judgment must be affirmed.
A. Denial of Wheeler Motion
After 12 jurors and two of four alternate jurors were selected and sworn for the
penalty phase retrial, and in the midst of the selection of the two remaining alternate
jurors, defendant moved, in his counsel’s words, “for a mistrial . . . , under what is known
as a Wheeler Motion,” which the trial court understood as a motion based on People v.
Wheeler (1978) 22 Cal.3d 258 to dismiss all of the jurors and alternate jurors and to
quash the remaining venire. In Wheeler, we held that a prosecutor’s use of peremptory
challenges to strike prospective jurors on the basis of membership in a cognizable group,
including African-Americans, violates the right of a defendant under article I, section 16
of the California Constitution to trial by a jury drawn from a representative cross-section
of the community. (People v. Wheeler, supra, 22 Cal.3d at pp. 276–277, & 280, fn. 26.)
Defendant, who is European-American, asserted that the prosecutor struck, in his
counsel’s words, “every prospective black juror that has been called. And I have counted
five” — the last being Prospective Alternate Juror G. R.2 The trial court denied the
2
As indicated in part II.C, one of the 12 sworn jurors was excused for cause after
completion of the selection of the four alternate jurors.
10
motion, determining that it was “not timely” and additionally that there was no “prima
faci[e] showing as to . . . the people that were excused.”
At this point, the following colloquy ensued between the trial court and
defendant’s counsel. Counsel stated, “Your Honor, could I put on the record the last
alternate who was excused was black. Mr. [G. R.]” The court responded, “I don’t know.
Was he? [¶] He appeared to be of minority [sic]. I can’t say that he was black. I don’t
know. Was he? In your opinion?” Counsel replied, “Well, perhaps I should have
inquired, but, yes, he certainly appeared to be black to me.”
Selection of the alternate jurors then proceeded. After the two remaining alternate
jurors were selected and sworn, the prosecutor volunteered a comment apparently
disputing the number of African-Americans whom he had peremptorily challenged, and
articulating a reason explaining his peremptory challenge of Prospective Alternate
Juror G. R.: “And with respect to — assuming that [defense counsel] was correct in his
opinion that Mr. [G. R.] was black, there were comments made by Mr. [G. R.] in his juror
questionnaire about the responsibility of persons who are using drugs or otherwise
intoxicated which are closely related to the issues or some of the issues, which I believe
will be raised in this case. And [I] would have excused anyone with those attitudes.”
The trial court did not respond to the prosecutor’s comment, but instead “point[ed] out
for the record” — without contradiction or objection by defense counsel — “that Mr.
[G. R.] was asleep during most of the voir dire. He was in the back row and I asked the
bailiff to wake him up.”3
3
Subsequently, just prior to the hearing on defendant’s automatic application to
modify the verdict of death, the People made a motion seeking what they styled
“augmentation of [the] trial record” in order, in pertinent part, to allow the prosecutor to
articulate reasons for his peremptory challenges against prospective jurors or alternate
jurors whom he believed were African-Americans. Defense counsel opposed the motion,
arguing that the “record should stand on its own.” The trial court denied the motion.
11
Defendant now contends that the trial court erred by denying his Wheeler motion.4
Under
Wheeler, there is a presumption that a prosecutor who employs a
peremptory challenge against a prospective juror who is a member of a cognizable group
does so for a purpose other than to discriminate. (People v. Wheeler, supra, 22 Cal.3d at
p. 278.) If a defendant believes that the prosecutor is using a peremptory challenge for a
discriminatory purpose, the defendant “must raise the point in timely fashion.” (Id. at
p. 280.) At the threshold, the defendant must establish a “prima facie case of
[purposeful] discrimination.” (Ibid.) “First, . . . [the defendant] should make as complete
a record of the circumstances as is feasible.” (Ibid.) “Second, [the defendant] must
establish that the persons excluded are members of a cognizable group . . . .” (Ibid.)
“Third, from all the circumstances of the case [the defendant] must show a strong
likelihood” (ibid.) — or, stated in other terms, must raise a “reasonable inference” (id. at
4
In the course of proceedings to prepare the record on appeal, defendant applied for
permission to prepare a settled statement essentially for the purpose of identifying which
of the prospective jurors or alternate jurors whom the prosecutor peremptorily challenged
were African-Americans and also to identify whether a certain prospective juror whom
the prosecutor challenged for cause was African-American. We denied the application.
Defendant claims that to the extent the record on appeal is inadequate to support
his claim of error as a result of our denial of his application for permission to prepare a
settled statement, he has been denied meaningful appellate review in violation of the
cruel and unusual punishment clause of the Eighth Amendment to the United States
Constitution and also the due process clause of the Fourteenth Amendment to the United
States Constitution (see People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8). We
disagree. A settled statement operates to make up for the absence of a reporter’s
transcript of oral proceedings (see Cal. Rules of Court, rules 7 & 36(b); see generally
Marks v. Superior Court (2002) 27 Cal.4th 176, 192–197), and not to supply what was
omitted from those proceedings (see People v. Tuilaepa (1992) 4 Cal.4th 569, 585, affd.
sub nom. Tuilaepa v. California (1993) 512 U.S. 967 [stating that the “settlement . . .
process does not allow parties to create proceedings . . . which they neglected to [create]
earlier”]). If the record on appeal is inadequate, it is defendant who is responsible,
inasmuch as he failed to include in the oral proceedings at trial the information that he
improperly sought to insert through a settled statement.
12
p. 281; accord, People v. Johnson (2003) 30 Cal.4th 1302, 1306, 1312–1318, cert.
granted sub nom. Johnson v. California (2003) ___ U.S. ___ [124 S.Ct. 817], cert.
dismissed (2004) ___ U.S. ___ [124 S.Ct. 1833]) — “that such persons are being
challenged because of their group association rather than because of any specific bias”
(People v. Wheeler, supra, 22 Cal.3d at p. 280). In order to demonstrate such a “strong
likelihood,” or raise such a “reasonable inference,” the defendant “must show that it is
more likely than not the [prosecutor’s] peremptory challenges, if unexplained, were based
on impermissible group bias” or purposeful discrimination. (People v. Johnson, supra,
30 Cal.4th at p. 1306; accord, id. at p. 1318.) If the defendant succeeds in establishing a
prima facie case of such discrimination, the prosecutor must articulate neutral reasons
explaining the peremptory challenges in question. (People v. Wheeler, supra, 22 Cal.3d
at pp. 281–282.) Ultimately, the defendant must prove purposeful discrimination. (See
id. at pp. 278–282 [placing the “burden of proof” on the defendant].) If the defendant
succeeds in proving such discrimination, the trial court must dismiss any jurors thus far
selected and sworn, and quash any remaining venire. (Id. at p. 282.)
We conclude that the trial court did not err by denying defendant’s Wheeler
motion. We need not consider whether it erred in determining that the motion was
untimely because, in any event, the trial court did not err in determining that defendant
failed to establish a prima facie case of purposeful discrimination.
When a trial court denies a Wheeler motion with a finding that the defendant
failed to establish a prima face case of purposeful discrimination, we review the record
on appeal to determine whether there is substantial evidence to support the ruling. (See,
e.g., People v. Farnam (2002) 28 Cal.4th 107, 135; People v. Jenkins (2000) 22 Cal.4th
900, 993–994; People v. Crittenden (1994) 9 Cal.4th 83, 116–117.)5 The record includes
5
Some of our decisions, including People v. Davenport (1995) 11 Cal.4th 1171,
1201, and People v. Turner (1994) 8 Cal.4th 137, 167, have implied that a finding that a
(footnote continued on next page)
13
voir dire (see, e.g., People v. Farnam, supra, 28 Cal.4th at p. 135; People v. Jenkins,
supra, 22 Cal.4th at p. 993; People v. Crittenden, supra, 9 Cal.4th at p. 116) as well as
any juror questionnaires (see People v. Boyette (2002) 29 Cal.4th 381, 419–423). We
sustain the ruling when the record discloses grounds upon which the prosecutor properly
might have exercised the peremptory challenges against the prospective jurors in
question. (E.g., People v. Farnam, supra, 28 Cal.4th at p. 135; People v. Crittenden,
supra, 9 Cal.4th at p. 117.)
During voir dire, Prospective Alternate Juror G. R. stated that he never had served
as a juror, had lived in Fresno approximately 14 years, worked as a track man for the San
Joaquin Valley Railroad making repairs, was unmarried, and spent his leisure time
playing basketball, and also implied that he could choose either death or life
imprisonment with possibility of parole as the penalty for defendant, depending on the
evidence to be presented at trial.
In his juror questionnaire, this prospective juror disclosed further information,
including the following: G. R. was 19 years of age, was a recent high school graduate,
and was the father of a 10-month-old daughter. Expressing a desire to become a highway
patrol officer, G. R. stated that relatives and friends had been arrested for, charged with,
or incarcerated for, the sale of drugs, and also stated that he had witnessed various
crimes, including theft, the sale of drugs, and a shooting. As for his general attitudes
regarding the use of drugs and alcohol, G. R. expressed beliefs that included the
following: “[T]hey should stop selling alcohol because all it does it cause [sic]
problems”; alcohol use affects individuals by “mak[ing] them do crazy things” and by
(footnote continued from previous page)
defendant failed to establish a prima facie case of purposeful discrimination is subject to
review for abuse of discretion. Subsequent decisions, including those cited in the text,
clarify that such a finding is examined for substantial evidence.
14
causing them to “forget what happen [sic] the day before”; similarly, drug use affects
individuals by “mak[ing] them do crazy things and hurt people” and by “caus[ing]” them
“to do other crimes just to get some more”; drug users are more likely than others to be
guilty of crimes with which they are charged, “[b]ecause they dont [sic] remember if they
did it or not”; and “I don’t like [drug use] because I have family members on it,” adding
that a drug user is a “person looking for an excuse.” G. R. also made various other
comments, expressing a belief that violent crime had increased recently because “[t]here
are more crazy people because of drug users and gangs,” and that the penalty of death is
imposed “[r]andomly,” whereas the penalty of life imprisonment without possibility of
parole is “no good if they will never get out why live.”
Having reviewed the record on appeal, we find substantial evidence to support the
trial court’s finding that defendant failed to establish a prima face case of purposeful
discrimination. The record discloses grounds upon which the prosecutor properly might
have made his peremptory challenge against G. R. First, he apparently had substantial
acquaintance with persons engaged in criminal activity. Second, he held a negative view
of the nature of the penalty of life imprisonment without possibility of parole as “no
good,” and a similarly negative view of the administration of the penalty of death as
random. Third, his comments on various points suggested that he may have been lacking
in attention, in conformity with the trial court’s observation — uncontradicted and
unobjected to by defense counsel — that G. R. was “asleep during most of the voir
dire.”6 The foregoing constitutes substantial evidence supporting the trial court’s finding
that defendant failed to make a prima face case of purposeful discrimination.7
6
Defendant apparently claims that under People v. DeSantis (1992) 2 Cal.4th 1198,
1233–1234, the trial court erred by failing to conduct any inquiry into whether
Prospective Alternate Juror G. R. was asleep. In DeSantis, we concluded that the trial
court did not err when it conducted a “self-directed inquiry” into whether certain jurors
had fallen asleep. (Id. at p. 1234.) The trial court here conducted just such an inquiry
(footnote continued on next page)
15
Defendant also contends that the trial court erred by denying his Wheeler motion
insofar as the motion also implicated Batson v. Kentucky (1986) 476 U.S. 79. In Batson,
which followed Wheeler by some eight years, the United States Supreme Court held that
a prosecutor’s use of a peremptory challenge to strike a prospective juror on the basis of
membership in a cognizable group, including African-Americans, violates a defendant’s
right to equal protection of the laws under the Fourteenth Amendment to the United
States Constitution. (Batson v. Kentucky, supra, 476 U.S. at pp. 84–89.) Batson requires
of defendant substantially the same prima face case of purposeful discrimination as is
(footnote continued from previous page)
when it noticed that G. R. was “asleep during most of the voir dire” and then “asked the
bailiff to wake him up.” The trial court was not required to do more.
7
Our conclusion that there is substantial evidence to support the trial court’s finding
that defendant failed to establish a prima face case of purposeful discrimination would be
no different were we to review the record on appeal relating to the three — not four, as
claimed by defendant — other prospective jurors struck by the prosecutor’s peremptory
challenges, and the additional prospective juror struck by the prosecutor’s challenge for
cause, who defendant now represents may have been African-Americans: C. F., J. H.,
W. M., and V. P.
J. H., W. M., and V. P. were struck by peremptory challenge. V. P. made it plain
that if she were sworn as a juror, she likely would not vote to impose the death penalty in
this case. W. M. did so as well, and also expressed opposition to the death penalty
generally. By contrast, J. H. indicated her rather strong support for the death penalty in
the abstract, but at the same time stated that if she were a juror she probably could not
vote to impose that punishment.
C. F. was struck pursuant to a challenge for cause. As discussed hereafter (post,
pp. 20-21), C. F. was a warden at a state prison at which women condemned to death
were incarcerated pending execution of sentence. C. F. stated that she would experience
a personal and professional conflict of interest if she were to serve as a juror in a capital
case at the same time as she participated in the administration of the death penalty. She
indicated that she desired not to serve as a juror. In light of her statement, the prosecutor
challenged her for cause, and the trial court excused her.
In view of the foregoing, it is clear that with respect to the excusal of these four
prospective jurors, there is substantial evidence supporting the trial court’s finding that
defendant failed to establish a prima face case of purposeful discrimination.
16
required by Wheeler. (See People v. Yeoman (2003) 31 Cal.4th 93, 115–118; see also
People v. Johnson, supra, 30 Cal.4th 1302, 1313-1314.) Because defendant failed to
satisfy Wheeler, he likewise failed to satisfy Batson. (See People v. Yeoman, supra, 31
Cal.4th at pp. 115–118.)8
B. Excusal of Prospective Jurors for Cause Related to Capital Punishment
Defendant contends the trial court erred under the impartial-jury guaranties of the
Sixth Amendment to the United States Constitution and article I, section 16 of the
California Constitution by excusing four prospective jurors at the penalty phase retrial
because of their views on capital punishment. As we shall explain, we conclude that this
claim lacks merit.
In
Witherspoon v. Illinois (1968) 391 U.S. 510, the United States Supreme Court
held that a prospective juror cannot be excused for cause based on his or her views on
capital punishment without violating a defendant’s right to an impartial jury under the
Sixth Amendment, unless, as pertinent here, the prospective juror made it “unmistakably
clear” that he or she would “automatically vote against the imposition of capital
punishment without regard to any evidence that might be developed at the trial of the
case . . . .” (Id. at p. 522, fn. 21.) In Wainwright v. Witt (1985) 469 U.S. 412, however,
the court revisited Witherspoon and declared that the proper standard was “whether the
[prospective] 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.) In
People v. Ghent (1987) 43 Cal.3d 739, 767, we adopted the Witt standard as the test for
determining whether a defendant’s right to an impartial jury under article I, section 16 of
8
Defendant claims that the trial court’s asserted error in denying his Wheeler
motion resulted in a judgment of death violative of the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. But, as we have concluded, the trial
court’s ruling was not erroneous.
17
the state Constitution was violated by an excusal for cause based on a prospective juror’s
views on capital punishment.
On the People’s challenge, the trial court excused Prospective Jurors E. B., M. C.,
J. D., and C. F. for cause based on their views concerning capital punishment. The trial
court found that each held views that would substantially impair the performance of her
duties as a juror in accordance with her instructions and her oath.
Substantial evidence is the standard of review applicable to a finding on the
potential effect of a prospective juror’s views related to capital punishment. (E.g., People
v. Memro (1995) 11 Cal.4th 786, 817–818; People v. Gordon (1990) 50 Cal.3d 1223,
1262.) The standard is the same for the threshold finding regarding the nature of such
views: “Such a finding, we have stated, is generally ‘binding’ ‘if the prospective juror’s
responses are equivocal . . . or conflicting . . . .’ ” (People v. Ashmus (1991) 54 Cal.3d
932, 962; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1147; People v. Kaurish (1990)
52 Cal.3d 648, 675; see also People v. Clark (1993) 5 Cal.4th 950, 1025.) As we
explained in People v. Cain (1995) 10 Cal.4th 1, 60: “[W]e pay due deference to the trial
court, which was in a position to actually observe and listen to the prospective jurors.
Voir dire sometimes fails to elicit an unmistakably clear answer from the juror, and there
will be times when ‘the trial judge is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law. . . . [T]his is why
deference must be paid to the trial judge who sees and hears the juror.’ ” (Quoting
Wainwright v. Witt, supra, 469 U.S. 412, 426.)
In this case, substantial evidence supports the trial court’s findings that each of the
prospective jurors in question held views concerning capital punishment that
substantially impaired her ability to perform her duties.
Prospective Juror E. B. stated, alternately, that she could, and could not, vote to
impose the death penalty. Although she stated that earlier in her life she strongly had
supported the death penalty, she admitted that she presently entertained mixed feelings
18
and was at a crossroads in her thinking, further revealing that she believed that it was
wrong to impose the death penalty and that life imprisonment without possibility of
parole was sufficient punishment. She added that she had been much affected by the
recent deaths of her father and her mother, which occurred on the same day; that she had
been unsettled by the execution of Robert Alton Harris, placing herself in his place in the
gas chamber in her thoughts; and, lastly, that she had been unable even to have a gravely
ill dog put down just three weeks earlier. The trial court reasonably could find
substantial impairment in her reactions to each of these very different events.
Prospective Juror M. C. indicated that she would not want to take responsibility
for voting for the death penalty and, upon further questioning, stated and reiterated that
she did not know whether she ever could vote to impose the death penalty, regardless of
the state of the evidence in a case.9 In similar fashion, Prospective Juror J. D., although
stating that she supported the death penalty generally, also stated she did not know
9
The relevant passage of M. C.’s voir dire reads as follows:
“Q [Prosecutor]: You can’t answer that question about whether you believe there
should either be such a death penalty?
A: I don’t know. I don’t feel like I should make that decision if there should be.
Q: Okay. Well, bearing that in mind, do you think then that you should make the
decision about whether someone gets the death penalty or not?
A: No.
Q: Okay. Why do you think that you should not?
A: I wouldn’t want to take that responsibility.
Q: And feeling that way as you’ve described in these last few answers in a real
case, do you think that you could ever impose the death penalty on another human being?
A: I guess. I really — I can’t say definite yes or no.
Q: Please, if I’m not making myself clear, I’m not asking you how you would
vote in this case because you couldn’t know. You haven’t heard the evidence.
A: I know, it’s if I could do anybody.
Q: Exactly. And your best response is you don’t know.
A: I’m being honest.
Q: And it’s okay for you to feel that way. It’s fine.
A: Okay.”
19
whether she actually could vote to impose the death penalty — even in a case in which
she had concluded that the defendant deserved the death penalty.10 With respect to each
of these prospective jurors, the trial court, having had the opportunity to observe the
demeanor of each and to assess the degree of reluctance and apprehension expressed by
each prospective juror in responding to questioning, reasonably could find that each
prospective juror’s views on the death penalty would substantially impair her ability to
perform the duties of a juror in accordance with the trial court’s instructions.
Lastly, Prospective Juror C. F. was the warden of a state prison at which women
condemned to death are incarcerated pending execution. C. F. stated that in light of her
professional responsibilities as warden and the potential adverse effect on conditions in
her institution that might result if it became known she had voted to impose the death
penalty, she would have difficulty imposing that punishment and did not know whether
her employment would affect her choice of penalty.11 The trial court, having heard
10
The relevant passage of J. D.’s voir dire reads:
“Q [Prosecutor]: [L]et’s assume . . . [y]ou’ve heard the evidence and it’s just the
kind of case you think [the death penalty is] deserved in. Because of your belief that hey,
I can’t be a person to make this decision, would you be able to? Would you be able to
impose the death penalty?
A: I don’t know.
Q: Even if it was a case that you thought deserves it you still might have a
problem?
A: Yes.
Q: And that’s the best you can tell us now, I don’t know.
A: I’m sorry.
Q: I’m not giving you a hard time.
A: I honestly do not know if I could impose that. I might be able to when I heard
the evidence but I might not.”
11
The relevant passages of C. F.’s voir dire read as follows:
“Q [The Court]: Do you feel that you could listen to the evidence in this case,
evidence as to mitigation, evidence of aggravation, and listen to the court’s instructions
before you make up your mind as to what you feel the appropriate punishment should be?
(footnote continued on next page)
20
C. F.’s responses and observed her demeanor, reasonably could find that her position and
responsibilities as warden would substantially impair her ability to perform the duties of a
juror.
Defendant, maintaining substantial evidence does not exist to support the trial
court’s excusal of any of the prospective jurors in question, focuses on equivocal and
conflicting responses by each of the four women in her juror questionnaire and on voir
dire. As already explained, however, the trial court had the opportunity to observe the
demeanor and to assess the degree of uncertainty and reluctance of each prospective juror
and resolved any equivocal and conflicting responses in a manner that caused the court to
(footnote continued from previous page)
A: I would have some difficulty with it, Sir.
Q: In what way?
A: As a Warden of a State prison, I am struggling with a — not only a personal
and professional kind of conflict. I currently house the condemned row for women at my
prison and as a result, my position has always remained that I am charged by the State to
carry out whatever the penalties are. And I struggle then with the potential of being
responsible for not only carrying it out, but imposing it. [¶] . . . [¶]
Q [Prosecutor]: [Ms. C. F.], you told us a little bit about a conflict you feel
between being a juror in a capital case and your employment. Do you think that that
conflict would impact upon your choosing between the two possible sentences in a case
like this?
A: I would hope not, but I could not honestly tell you that today. [¶] . . . [¶]
Q [The Court]: Let me ask a couple questions if I may [Ms. C. F.]. If you sat on
this jury, do you feel that the inmates in your institution would find out that you had sat
on a death penalty case?
A: Yes
Q: Do you feel there is a possibility of an uprise in your institution if they found
out that you voted for the death penalty?
A: Not an uprise but I believe it would cause problems. An uprise is a very
serious word for a prisoner.
Q: Well, yes, it is. Do you feel that whatever took place in the institution as a
result of you sitting on a jury and possibly casting a vote for the death penalty, that that
would cause you personal problems at your institution?
A: Yes.”
21
conclude that each of these jurors’ views or employment would substantially impair the
juror’s ability to make a penalty determination in accordance with the court’s
instructions. On this record, we have no reason or basis for second-guessing that finding.
Contrary to defendant’s suggestion, the fact that at some point each of these prospective
jurors may have stated or implied that she would perform her duties as a juror did not
prevent the trial court from finding, on the entire record, that each nevertheless held
views or had employment responsibilities that substantially impaired her ability to serve.
Defendant also argues that the trial court failed to apply the appropriate standard
in excusing the prospective jurors in question. The record does not support this assertion.
With regard to one of the prospective jurors, the trial court expressly invoked the
requisite standard. As for the others, the court did so by implication. Defendant’s point
seems to be that the trial court must have failed to apply the appropriate standard because
substantial evidence does not exist to support its excusal of any of these prospective
jurors. But as we have explained, substantial evidence supports the trial court’s action in
excusing each of the jurors in question.12
C. Failure to Reopen Jury Selection
Moments after the 12 regular jurors were selected and sworn at the penalty phase
retrial, and prior to the selection of any of the four alternate jurors, one of the 12 jurors,
E. L., who the record reflects was “hysterical” and “in tears,” asked to be discharged
because her son had been arrested, adding, “I have too many things on my mind. I can’t
even think.” The trial court, outside the presence of the other jurors and prospective
12
We reject defendant’s claim that the trial court’s asserted error in excusing the
prospective jurors in question for cause violated his rights both under the cruel and
unusual punishment clause of the Eighth Amendment to the United States Constitution
and the due process clause of the Fourteenth Amendment, as well as under the analogous
clauses of article I, sections 1, 7, and 15 of the California Constitution. As we have
concluded, the trial court’s excusals were not erroneous.
22
alternate jurors, questioned E. L. concerning her situation. E. L., who remained
distraught, responded that her son had been arrested for seven armed robberies four days
earlier, apparently after the conclusion of the last court session. When the trial court
asked why she had failed to bring the fact to its attention earlier that day, E. L. replied, “I
didn’t even know I could say anything about it. I just can’t do this.” The trial court
addressed the prosecutor and defense counsel: “I suspect that what we should do is to —
if you stipulate that she can be excused, we’ll seat the alternates and then select an
alternate to replace her at this point in time. The jury has been sworn in.”
After asking Juror E. L. to leave the courtroom, the trial court engaged in colloquy
with the prosecutor and defense counsel. The prosecutor stated that “[t]he jury’s been
sworn and in a hypertechnical sense, jeopardy is attached and/or at least there’s an
argument to be made for that.” The trial court asked the prosecutor, “Well, would you
stipulate she could be excused and we could then seat her [replacement] and there would
be no challenges to the other eleven but only as to this one seat?” The prosecutor
responded with his view that “defendant personally [should] be part” of any such
stipulation. Defense counsel interjected that defendant could not do so. The trial court
replied, “Well, all [the prosecutor] is suggesting is that . . . whatever procedure we use
. . . your client personally agree as to what procedure we’re going to go through.” “If
there’s a stipulation that [E. L.] . . . be excused, we re-seat a new juror to take this juror’s
place before we start selecting the alternates. That your client stipulate to it . . . . That’s
all [the prosecutor] is suggesting.” Defense counsel asked for an opportunity to research
the question, and the trial court ordered a recess for that purpose.
Following the recess, defendant moved for a mistrial. Defense counsel stated:
“Jeopardy has attached, the jury was sworn. The defense is also at a significant
disadvantage. We have used sixteen peremptory challenges. We have had twenty-six to
use. If . . . juror [Ms. E. L.] . . . had said that five seconds before, we would still have
those ten peremptories to use plus the ones on the alternates, and we feel that this is a
23
significant disadvantage to the defense . . . .” The trial court inquired: “Well, aside from
the mistrial, would you stipulate to excusing this juror at this time and reopening and
proceeding to select a person to sit in [her place] . . . ?” Defense counsel responded:
“Your Honor, not giving up any issues on the mistrial issue, which I think is preserved at
this point, is the court saying would we agree to — would we feel we are not in so much
of a disadvantage —” The trial court interrupted: “No, I’m asking if you want to
stipulate to this procedure, the procedure you suggested. Now if you stipulate to it then
you are giving up your advantage and your objection.” Defense counsel replied: “No.”
Invited by the trial court to comment on the procedure to be followed, the
prosecutor expressed his position that the trial court should select and swear the intended
four alternate jurors, and then should turn to considering whether to discharge Juror E. L.
and, if she were discharged, replacing her with one of the alternate jurors. In response,
defense counsel stated: “Your Honor, for the record, the defense would like to indicate
that I believe this decision has already been made by the court. That they are going to
excuse that juror . . . .” The trial court cited its authority in section 233 (mistakenly
transcribed or referenced as section 234) of the Code of Civil Procedure to put an
alternate juror in the place of a juror who has been discharged. Defense counsel
responded: “The difference I see we have before us, your Honor, is we don’t have any
alternates.” The trial court replied: “I understand that and we’re in the process of
obtaining the alternates. And the court is therefore going to proceed to select the
alternates and then we’ll seat the alternates, seat one of the alternates to replace juror
[E. L.] . . . . We’ll select four alternates. Each . . . side will have one peremptory per
alternate, that means four peremptories.”
The prosecutor requested clarification: “If I understood your comments correctly
a few moments ago when you were speaking with the defense here on the record, that
you were making available or offering to them the procedure whereby we reopen jury
selection so that they could proceed with whatever the peremptories were that were
24
remaining if they opted to avail themselves to that procedure that was available to them?”
The trial court responded: “Well, it was except they declined it and still insisted on the
mistrial.” The prosecutor stated: “Right. I understand. That’s what I thought had
occurred there.” Defense counsel made no statement.
The trial court continued: “And then the procedure after we seat the alternates,
first alternate will replace juror [E. L.] . . . if we get to that point and juror [E. L.] . . . is
excused. Then if . . . another juror wishes to be excused during the course of the trial,
alternate number 2 will replace and then alternate number 3, and then alternate number 4.
Any objection to that procedure?” Defense counsel and the prosecutor each answered,
“No.”
Thereupon, in open court the four alternate jurors were selected and sworn.
Immediately thereafter, the trial court conducted a hearing in chambers as to whether to
discharge Juror E. L. The trial court questioned E. L. as previously, concerning her son’s
recent arrest, and E. L. continued to indicate she was too distraught to serve as a juror.
The trial court then asked the prosecutor and defense counsel whether they would
stipulate to E. L.’s discharge. Defense counsel answered: “Your Honor, the Defense
can’t do that at this time.” The trial court responded: “All right, . . . then we’ll keep
[Ms. E. L.] on as a juror. Is that what you want?” Defense counsel replied: “No. I think
it’s the Court’s decision.” Upon further questioning by the trial court and the prosecutor,
E. L. responded, “I can’t do this right now. I am very emotional” and “I don’t know if I
could [do it]” even weeks later. The trial court discharged E. L. as unable to perform her
duty, noting later its “opinion that she could not pay attention to the evidence based on
her emotional state,” and replaced her with an alternate juror. The trial court then
admonished the jury and the remaining three alternate jurors, and excused them for the
day.
Defendant again moved for a mistrial. Defense counsel stated: “We had asked for
a mistrial earlier, but that was before [Ms. E. L.] had been excused. [¶] We would ask
25
for a mistrial now, because we did not stipulate or agree to have [Ms. E. L.] be excused
and the jury was sworn and then the alternates were picked right after the jury was sworn.
[¶] This is on the record already. [¶] [Ms. E. L.] indicated a problem with serving as a
juror and we are still of the same mind, we feel that a mistrial should be granted and
should be granted at this time in this case.” The trial court denied the motion.
Subsequently, after the jury returned its penalty determination and just prior to the
hearing on defendant’s automatic application to modify the verdict of death, defendant
moved for a new trial, in pertinent part effectively renewing his mistrial motions. The
trial court denied the new trial motion, stating as to the mistrial motions that the court
“stands by its ruling[s].”
On appeal, defendant does not contend the trial court erred by discharging
Juror E. L.. Instead, defendant claims that the trial court erred by failing to reopen jury
selection completely, in order to allow him to exercise his remaining peremptory
challenges against jurors already sworn.
The legal principles applicable to the claim before us are set out in our decisions in
In re Mendes (1979) 23 Cal.3d 847, People v. Armendariz (1984) 37 Cal.3d 573, and
People v. Caro (1988) 46 Cal.3d 1035.
In
Mendes, we held that jeopardy does not attach for purposes of the double
jeopardy clause of either the Fifth Amendment to the United States Constitution or
article I, section 15 of the California Constitution until empanelment of the jury is
complete, which entails selecting and swearing in not only the 12 regular jurors but also
any alternate jurors. (In re Mendes, supra, 23 Cal.3d at pp. 852–854.) We further held
that discharge of a regular juror before empanelment of the jury has been completed —
with the selection and swearing in of the alternate jurors — does not amount to discharge
of the jury for double jeopardy purposes. (Id. at pp. 852–856.)
In
Mendes, we also concluded that when the trial court discharges a regular juror
prior to the selection and swearing in of any alternate jurors, the court possesses authority
26
to reopen jury selection completely to allow each of the parties to exercise any
peremptory challenges remaining against any of the remaining regular jurors already
sworn. (In re Mendes, supra, 23 Cal.3d at p. 855.) In reaching this conclusion, we
observed that inasmuch as the “composition of the 12-member panel [would] . . .
change,” there could be a “valid reason” for the trial court to allow the parties to exercise
their remaining peremptory challenges against remaining regular jurors already sworn in
order to “satisfy themselves to the best of their ability with the final composition of the
jury.” (Ibid.)
Next,
in
Armendariz, we considered a claim by the defendant that, following the
trial court’s discharge of two regular jurors prior to the selection and swearing in of the
alternate jurors, the trial court erred by denying the defendant’s motion to completely
reopen jury selection to allow him to exercise his remaining peremptory challenges
against the remaining regular jurors already sworn. Applying the abuse-of-discretion
standard (People v. Armendariz, supra, 37 Cal.3d at p. 581), we found that the trial court
in that case was unaware of its authority to reopen jury selection, and that had it been
aware of that authority, it could not reasonably have denied the defendant’s motion (id. at
pp. 581–583). On that ground, we reversed the judgment rendered against the defendant
and remanded the matter for a new trial.
Thereafter,
in
Caro, we considered a claim by the defendant that the trial court
erred by failing to reopen jury selection completely to allow him to exercise his
remaining peremptory challenges against the remaining regular jurors already sworn,
following discharge of a regular juror prior to the selection and swearing of the alternate
jurors. In light of the procedural posture of that case, however, we rejected defendant’s
argument, concluding that a trial court does not have a duty to reopen jury selection sua
sponte, that is, on its own initiative in the absence of a request by the defendant (People
v. Caro, supra, 46 Cal.3d at p. 1046). We therefore held that a defendant “may not be
heard to complain” of any such omission on appeal unless he or she requested such action
27
by the trial court (id. at p. 1047). Because the defendant in Caro had not asked the trial
court to reopen jury selection, we concluded he could not complain on appeal of the trial
court’s failure to do so.
Applying the principles set forth above in Mendes, Armendariz, and Caro, we
reject defendant’s claim that the trial court in this case erred by failing to reopen jury
selection completely in order to allow him to exercise his remaining peremptory
challenges against the remaining regular jurors already sworn, following the discharge of
Juror E. L. and prior to the selection and swearing in of the alternate jurors. As in Caro,
defendant did not seek any such action from the trial court. What defendant in fact did
seek, twice, was a mistrial — under what defendant now concedes was the erroneous
belief that jeopardy had attached. In support of a mistrial, defense counsel cited the
assertedly “significant disadvantage to the defense” flowing from the circumstance that
had the 12 regular jurors not been selected and sworn, the defense would have had 10
remaining peremptory challenges for use against any prospective jurors called to voir dire
for Juror E. L.’s seat as a regular juror, in addition to the four peremptory challenges
available for use against any prospective jurors summoned to voir dire as potential
alternate jurors. When the trial court inquired of defense counsel whether they were
willing to stipulate to the procedure that the trial court believed they had suggested —
that is, to reopen jury selection — defense counsel responded in the negative. Any
uncertainty in this regard was dispelled later when, in response to the prosecutor’s
request for clarification, the trial court stated — without contradiction by defense
counsel — that defense counsel had “declined” what the prosecutor described as the
“procedure whereby we reopen jury selection so that they could proceed with whatever
the peremptories were that were remaining.” Thus, not only did defendant not seek to
reopen jury selection, he in fact actively opposed such action, and his two motions for
mistrial were not the equivalent of a request that the trial court do otherwise.
28
In support of his claim, defendant argues that the trial court was unaware of its
authority to reopen jury selection completely in order to allow each of the parties to
exercise remaining peremptory challenges against remaining regular jurors already
sworn. The argument, however, does not establish that the trial court erred in failing to
take such a course. Although the trial court provided an opportunity for counsel to
research this issue, defense counsel did not even cite Mendes, Armendariz, or Caro.
More importantly, under Caro, which had been decided some years earlier, the trial court
did not have a sua sponte duty to reopen jury selection. Defendant did not request such
action, and the trial court was not under any obligation to act on its own initiative.
Defendant alternatively argues that the trial court improperly required him to
withdraw his first motion for mistrial as a condition of the court’s exercising its authority
to reopen jury selection completely so as to allow each of the parties to exercise its
remaining peremptory challenges against the remaining regular jurors already sworn.
Defendant relies upon the trial court’s inquiry: “Well, aside from the mistrial, would you
stipulate to excusing . . . juror [E. L.] at this time and reopening and proceeding to select
a person to sit in [her place] . . . ?” (Italics added.) Contrary to defendant’s assertion, we
do not discern in the italicized phrase the imposition of any condition on defendant,
improper or otherwise, but only an attempt to clarify whether defendant would accept the
procedure proposed as an acceptable resolution short of mistrial.
Defendant finally argues that the trial court should not have continued the hearing
on whether to discharge Juror E. L. until after the four alternate jurors were selected and
sworn, having done so assertedly to avoid any discharge of the jury that might have been
required by Code of Civil Procedure section 233.13 But the trial court’s action in
13
Code of Civil Procedure section 233 provides: “If, before the jury has returned its
verdict to the court, a juror becomes sick or, upon other good cause shown to the court, is
found to be unable to perform his or her duty, the court may order the juror to be
discharged. If any alternate jurors have been selected as provided by law, one of them
(footnote continued on next page)
29
continuing the hearing has no bearing on the resolution of the matter before us, inasmuch
as under Caro the trial court did not have a sua sponte duty to reopen jury selection.14
D. Denial of Motion for Order Recusing the District Attorney’s Office for Conflict
of Interest
Prior to the penalty phase retrial, defendant moved under section 1424 for an order
recusing the district attorney’s office based on an asserted conflict of interest arising out
of that office’s employment of Noemi Yolanda Summi. The People opposed the motion.
The trial court conducted an evidentiary hearing on defendant’s motion. Summi
testified at the hearing as follows: She currently was employed in the district attorney’s
office as an investigator with the civil section of the juvenile division in what she
described as an extra-help, temporary position, having begun work there about seven
months earlier. Her office was situated in a building located miles from the building in
which the prosecutor’s office was situated. Previously, she was self-employed as a
private investigator; about three years earlier, she had been hired to work as an
investigator for defense counsel representing defendant’s brother Elzie Griffin when
(footnote continued from previous page)
shall then be designated by the court to take the place of the juror so discharged. If after
all alternate jurors have been made regular jurors or if there is no alternate juror, a juror
becomes sick or otherwise unable to perform the juror’s duty and has been discharged by
the court as provided in this section, the jury shall be discharged and a new jury then or
afterwards impaneled, and the cause may again be tried. Alternatively, with the consent
of all parties, the trial may proceed with only the remaining jurors, or another juror may
be sworn and the trial begin anew.”
14
Defendant claims that the trial court’s asserted error in failing to reopen jury
selection completely so as to allow him to exercise his remaining peremptory challenges
against jurors already sworn violated his rights under the due process clauses of the Fifth
and Fourteenth Amendments to the United States Constitution, the impartial jury clause
of the Sixth Amendment, and the cruel and unusual punishment clause of the Eighth
Amendment, as well as his rights under the analogous clauses of article I, sections 7, 15,
16, and 17 of the California Constitution. But as we have concluded, the trial court’s
action was not erroneous.
30
Elzie was charged with murder (with one or more special-circumstance allegations)
unrelated to the charges against defendant. She worked in that capacity for a year or so,
during which time she also collaborated with an investigator who worked for defense
counsel representing defendant. Along with six or seven other persons, she once
attended a team meeting relating to defendant’s case, but never engaged in any
discussions about defendant’s case with any person other than counsel representing
defendant and the agents of those counsel. Since the beginning of her employment in the
district attorney’s office, she never had been approached by anyone in that office with
any questions about defendant’s case and she never had occasion to do any work
whatsoever for that office with respect to defendant’s case. Indeed, she believed that no
one in the district attorney’s office knew about her indirect involvement in defendant’s
case or her direct involvement in defendant’s brother Elzie’s case.
Following Summi’s testimony, defense counsel presented argument, conceding
that “it is apparent that there is no actual conflict in that . . . Miss Summi has not talked to
. . . [the prosecutor] or anyone on his team or to anyone about the case,” but adding that
“[j]ust because Miss Summi has not spoken to anyone so there is no actual conflict, it
doesn’t mean there isn’t an apparent conflict or appearance of impropriety.”
The trial court denied defendant’s motion to recuse the district attorney’s office,
stating: “I agree there is no actual conflict and any apparent conflict is simply that. It’s
clear from Miss Summi’s testimony she has not spoken to anyone in the District
Attorney’s office concerning her former services on . . . [defendant’s] case. In fact, her
thinking is no one in the District Attorney’s office is even aware of the fact that she
worked on that case.” The trial court then admonished Summi, “specifically ordering
[her] to not discuss this case at all with anyone from the District Attorney’s office or
anyone at all that is involved in this case, directly or indirectly involved in the
prosecution of [defendant].”
31
In
People v. Superior Court (Greer) (1977) 19 Cal.3d 255, (Greer) we held that a
trial court has general statutory authority to order recusal of a member of a district
attorney’s office, and inferentially the office itself, for a conflict of interest. (Id. at
pp. 261–265; see generally People v. Eubanks (1996) 14 Cal.4th 580, 590–594.) In
Greer, we further held that the applicable standard for the trial court’s exercise of such
authority is whether there exists a conflict of interest that “might prejudice [the conflicted
person or entity] . . . against the accused and thereby affect, or appear to affect, [its] . . .
ability to impartially perform [its] . . . discretionary functions.” (Greer, supra, 19 Cal.3d.
at p. 269; see generally People v. Eubanks, supra, 14 Cal.4th at pp. 590–591.)
After our decision in Greer, the Legislature added section 1424 to the Penal Code.
That statute sets forth the procedure for a defendant to seek an order from the trial court
recusing a member of the district attorney’s office, or the office as a whole, for a conflict
of interest. (See People v. Millwee (1998) 18 Cal.4th 96, 123, fn. 7; People v. Eubanks,
supra, 14 Cal.4th at p. 591.) The statute also makes a substantive change (see People v.
Millwee, supra, 18 Cal.4th at p. 123, fn. 7; People v. Eubanks, supra, 14 Cal.4th at
p. 591), replacing the standard set forth in Greer with a standard that, in its present form,
provides that a trial court may not order recusal “unless the evidence shows that a conflict
of interest exists that would render it unlikely that the defendant would receive a fair
trial” (§ 1424, subd. (a)(1)). (See, e.g., People v. Eubanks, supra, 14 Cal.4th at p. 591;
People v. Conner (1983) 34 Cal.3d 141, 147.) A conflict of interest exists “whenever the
circumstances of a case evidence a reasonable possibility that the . . . [conflicted person
or entity] may not exercise its discretionary function in an evenhanded manner.” (People
v. Conner, supra, 34 Cal.3d at p. 148; accord, People v. Snow (2003) 30 Cal.4th 43, 86;
Hambarian v. Superior Court (2002) 27 Cal.4th 826, 833; People v. Millwee, supra, 18
Cal.4th at p. 123; People v. Eubanks, supra, 14 Cal.4th at p. 592.) Whether characterized
as “actual” or merely “apparent,” a conflict requires recusal only if it is “so grave as to
render it unlikely that [the] defendant will receive fair treatment during all portions of the
32
criminal proceedings.” (People v. Conner, supra, 34 Cal.3d at p. 148; accord, People v.
Snow, supra, 30 Cal.4th at p. 86; Hambarian v. Superior Court, supra, 27 Cal.4th at
p. 833; People v. Millwee, supra, 18 Cal.4th at p. 123; People v. Eubanks, supra, 14
Cal.4th at p. 592.)
On appeal, a trial court’s ruling on a motion for an order recusing a member of the
district attorney’s office, or the office as a whole, for a conflict of interest is reviewed for
abuse of discretion, and its findings as to any underlying facts are reviewed for
substantial evidence. (People v. Eubanks, supra, 14 Cal.4th at p. 594.)
In the present case, we conclude that the trial court did not err by denying
defendant’s motion. In light of the facts set out in Summi’s testimony, the trial court’s
denial of defendant’s motion was supported by substantial evidence and did not amount
to an abuse of discretion. The court reasonably determined, in effect, that there was no
conflict of interest that would have rendered it unlikely that defendant would receive a
fair trial. There was no showing as to what confidential information Summi might have
obtained about defendant’s case while working as an investigator on defendant’s brother
Elzie’s case, other than what related to their “common upbringing.” The evidence further
established that Summi had not disclosed any such confidential information to anyone in
the district attorney’s office, and in light of the trial court’s order there was no reasonable
basis to believe she would do so in the future. Furthermore, although defendant argues
that the trial court applied an erroneous standard in denying his motion, the record does
not support that assertion. Both defendant and the People cited the proper standard to the
trial court, and it is reasonable to conclude that the trial court applied that standard, even
if it did not quote it exactly. In stating “there is no actual conflict and any apparent
conflict is simply that,” the trial court merely was responding to defense counsel, who
had been first to use that language. Moreover, in context, the trial court’s words imply its
33
view that “any apparent conflict” arising out of the district attorney’s employment of
Summi would not render it unlikely that defendant would receive a fair trial.15
E. Granting of Motion to Permit the Presence of the Victim’s Mother and Sister
Prior to opening statements at the penalty phase retrial, defendant made a motion,
apparently under section 777 of the Evidence Code, to exclude from the courtroom any
witness not then testifying, in order to prevent such witness from hearing the testimony of
others. The trial court granted the motion.
The People then made a motion of their own to permit the presence of Marvene
Nordin, Kelly’s mother, and Tamara Wilson, Kelly’s sister, pursuant to former
section 1102.6. Former section 1102.6 provided in pertinent part that a “victim shall be
entitled to be present and seated at the trial,” unless the trial court “finds that the presence
of the victim would pose a substantial risk of influencing or affecting the content of any
testimony.” (Former § 1102.6, subd. (a), as enacted by Stats. 1986, ch. 1273, § 2, p. 4448
and repealed by Stats. 1995, ch. 332, § 2, p. 1824; hereafter former section 1102.6.)
Former section 1102.6 also defined “victim” as “(1) the alleged victim of the offense and
one member of the victim’s immediate family and (2) in the event that victim is unable to
attend the trial, up to two members of the victim’s immediate family who are actual or
potential witnesses.” (Former § 1102.6, subd. (e).) Nordin and Wilson were “victims”
within the meaning of former section 1102.6, because Kelly was unable to attend and
they were members of her family who were expected to be called as witnesses.
Defendant opposed the motion; defense counsel, invoking experience with other trials,
stated: “I would object strongly to having witnesses in the courtroom, reacting and
15
Because we conclude that the trial court did not err in denying defendant’s motion
for an order recusing the district attorney’s office for a conflict of interest, we reject as
well defendant’s claim that the trial court’s asserted error violated his rights under the
United States Constitution, specifically the cruel and unusual punishment clause of the
Eighth Amendment and the due process clause of the Fourteenth Amendment.
34
letting the jury see their reactions.” Noting that no witnesses then were present, the trial
court took the motion under submission and stated it would make a ruling at a later time.
Pending such a ruling, the trial court excluded from the courtroom any witness not then
testifying.
In their case in aggravation, the People called Nordin, Kelly’s mother, as their first
witness. Nordin testified concerning such matters as her first marriage, the birth of her
children, including Kelly, and her marriage to defendant and their life together, including
observations that he appeared not to use drugs, but did consume alcohol — at least on
one occasion to the point of intoxication. Nordin also testified about events that occurred
on the night the crimes were committed against Kelly, including further observations that
defendant was uncharacteristically upset, with tears in his eyes, and although smelling of
alcohol did not act as though he was intoxicated or under the influence of drugs.
Later the same day, the People called Wilson, Kelly’s sister, as a witness. Wilson
also testified about events on the night in question, including observations that defendant
was uncharacteristically upset and, although smelling of alcohol, did not act as though he
were intoxicated.
The next day, the trial court returned to the People’s motion to permit the presence
of Nordin and Wilson as victims under former section 1102.6.
In arguing in favor of the motion, the prosecutor relied upon the language of
former section 1102.6, which provides that a “victim shall be entitled to be present and
seated at the trial” (former § 1102.6, subd. (a)). Although conceding that Nordin and
Wilson might testify again in rebuttal, the prosecutor also noted that the two women
already had testified, in conformity with the spirit of a separate requirement of former
section 1102.6, namely that on the granting of a motion of this sort, the “victim shall
testify first” “if the defendant . . . object[s] to the order of the victim’s testimony” (former
§ 1102.6, subd. (b)).
35
In opposition, defense counsel relied upon the language of former section 1102.6
that withdrew a victim’s entitlement to be present in the event the trial court “finds that
the presence of the victim would pose a substantial risk of influencing or affecting the
content of any testimony.” (Former § 1102.6, subd. (a).) Defense counsel likened the
question to one of undue prejudice under section 352 of the Evidence Code: “[I]t’s like a
352 issue would be brought to the case by having these people sit in court.”
One of defense counsel’s concerns related to the possibility of further testimony
by Nordin or Wilson: “In a case like this, it would be our contention that to have two of
the key witnesses present in court for all the testimony and probably being called in
rebuttal later after having listened to everything in court, it’s very, very prejudicial to our
client and would overweigh any other considerations.”
Another of defense counsel’s concerns related to any reaction by Nordin or
Wilson to evidence such as crime scene and autopsy photographs — an issue that the trial
court had raised. For his part, the prosecutor had given his assurance that he would
caution at least Nordin about the nature of the evidence. Defense counsel nevertheless
was unsatisfied: “And I was personally present in another trial where the audience was
admonished not to react and they did again and again after being admonished . . . . And
the jury’s attention was constantly brought to the audience and the reactions from the
different evidence that came in which was very gruesome. And once it’s done, it’s too
late is the problem. And it doesn’t — in my opinion, if . . . [the prosecutor] talks to them,
if the court admonishes them, it doesn’t mean it’s not going to happen.”
Thereupon, the trial court granted the motion to permit the presence of Nordin and
Wilson, but directed the prosecutor to “caution” them against “any emotional outbreak”
and to instruct the two witnesses that “[t]hey will be given one opportunity only.”
After the People completed their case in aggravation, defendant began his case in
mitigation. Among defendant’s witnesses was Nell Riley, Ph.D., a clinical psychologist
with a specialty in neuropsychology, who testified that defendant was borderline
36
mentally retarded and suffered from a speech impediment. Dr. Riley also testified that
defendant was not malingering when he performed poorly during the testing to which she
subjected him. Another of defendant’s witnesses, Harry Kormos, M.D., a psychiatrist,
also testified that defendant was borderline mentally retarded. Dr. Kormos testified
additionally that defendant was laboring under substantial stress at the time of the
murder. In support, Dr. Kormos related various statements defendant had made to him
indicating that Nordin put pressure on defendant to move up from lower paying
employment that he enjoyed to higher paying employment for which he was unsuited;
that she and her children ridiculed him as stupid; and that she had threatened separation.
Another of defendant’s witnesses, James Chiminillo, taught defendant reading and
mathematics while he was incarcerated on Death Row. Chiminillo testified that
defendant started out at a first grade, eighth month, level in reading and at a third grade,
fourth month, level in mathematics, and that although he worked hard, he did not make
substantial progress. On cross-examination, Chiminillo was presented with an
inmate/parolee appeal form, signed with defendant’s name, that purportedly bore
defendant’s handwriting and that suggested by its contents that defendant functioned at a
higher level than defendant revealed to Dr. Riley and therefore may have been
malingering when he performed poorly during the tests she administered to him.
Chiminillo, however, testified that he could not identify the handwriting as defendant’s.
After defendant completed his case in mitigation, the People presented rebuttal.
Among other witnesses, the People called Nordin. Nordin denied defendant’s statement
that she put pressure on him to move up to higher paying employment; she denied his
statement that she or any of her children ridiculed him; and she denied his statement that
she had threatened separation. Nordin also testified that defendant did not appear to be
mentally retarded and could speak without impediment. In addition, Nordin identified
handwriting on the inmate/parolee appeal form as defendant’s. The People also called
Wilson. Like Nordin, Wilson denied that she or any of the other members of Nordin’s
37
family ridiculed defendant, testified that he did not appear to be mentally retarded, and
identified handwriting on the inmate/parolee appeal form as defendant’s.
Defendant now contends that the trial court erred by granting the People’s motion
to permit the presence of Nordin and Wilson as victims under former section 1102.6.
The question of the appropriate standard of review for a trial court’s ruling on a
motion to permit the presence of a victim under former section 1102.6 has not been
addressed in any reported decision. In resolving this question, we look to the standard of
review for a ruling on a motion to exclude witnesses, as to which a ruling on a motion to
permit the presence of a victim operates as an exception. A ruling on a motion to exclude
witnesses is reviewed for abuse of discretion. (See, e.g., People v. Lariscy (1939) 14
Cal.2d 30, 32; People v. Cooks (1983) 141 Cal.App.3d 224, 330.) We believe that the
same standard should apply to a ruling on a motion to permit the presence of a victim. In
making any determination as to who may attend or not attend a trial or any portion of a
trial, a trial court exercises its authority over the course and conduct of the proceedings.
(See § 1044.) The exercise of that authority in the making of such determinations
generally is subject to review for abuse of discretion. (See People v. Halbert (1926) 78
Cal.App. 598, 613.) We see no reason to exempt from that rule a trial court’s
determination allowing the presence of a victim.
Applying the abuse-of-discretion standard, we find no error in the trial court’s
granting of the People’s motion to permit the presence of Nordin and Wilson as victims
under former section 1102.6. In light of the circumstances, the trial court reasonably
determined that the presence of Nordin and Wilson would not pose a “substantial risk of
influencing or affecting the content of any testimony.” (Former § 1102.6, subd. (a).)
Nothing before the trial court at the time it made its ruling suggested that Nordin’s or
Wilson’s presence posed a substantial risk that either woman would craft or shape her
own testimony, or cause any other witness to do so, as a result of her presence. In
arguing against the motion on this point, defense counsel asserted only that such a risk
38
existed, but an assertion of this sort is insufficient to support a claim that the trial court
abused its discretion (see People v. Bradford (1997) 15 Cal.4th 1229, 132). Further,
although we review the trial court’s ruling on the basis of the record of the proceedings
before it at the time the ruling was made, we note that subsequent events do not suggest
that either Nordin or Wilson tailored her testimony on rebuttal to conform with what she
had learned from being present at trial, but instead show that each woman simply testified
to matters she was likely to know without regard to what was disclosed at trial. In
addition, subsequent events do not support any inference that either Nordin nor Wilson,
by her presence, caused any other witness to give testimony different from what the
witness otherwise would have given, inasmuch as even defense counsel characterized
each woman as “very composed” and “very restrained.”16
F. Admission of the Victim’s Precrime Out-of-court Statement
In their case in aggravation at the penalty phase retrial, the People presented
evidence, not offered at the initial trial, that on the day on which the crimes were
committed, Kelly did not act as she usually did at school, and told another girl that
defendant had been fondling her for some time and that she intended to confront him if
he continued to do so.
The events leading to the admission of Kelly’s statement were as follows.
Michelle Acosta, who had been a friend and classmate of Kelly, was the girl to whom
16
Because we conclude that the trial court’s ruling was not erroneous, we find no
merit in defendant’s related claim that the trial court’s asserted error in granting the
People’s motion to permit the presence of Nordin and Wilson as victims under former
section 1102.6 violated his rights under the following provisions of the United States and
California Constitutions: (1) the due process clauses of the Fourteen Amendment and
article I, section 15; (2) the impartial jury clause of the Sixth Amendment and analogous
clauses of article I, sections 15 and 16; (3) the confrontation clauses of the Sixth
Amendment and article I, section 15; and (4) the cruel and unusual punishment clauses of
the Eighth Amendment and of article I, section 17.
39
Kelly had made this statement. Not long after the murder, Acosta had spoken about
Kelly’s statement with someone whom she could not remember but did not mention the
statement again for about 12 years until shortly prior to the penalty phase retrial when,
after a chance meeting with an estranged sister of defendant’s, she related it to a
detective. It was only about three weeks prior to opening statements, shortly after trial
commenced with jury selection, that the prosecutor learned of the existence of Acosta
and of Kelly’s statement to her. Within a day or two, the prosecutor notified defense
counsel. A week or so later, defense counsel was provided an opportunity to interview
Acosta.
In the course of the People’s opening statement, the prosecutor began to make
reference to Kelly’s statement, but was cut off by an objection by defense counsel.
Outside the presence of the jury, defense counsel argued that Kelly’s statement was
inadmissible because it was hearsay and did not fall within any exception to the hearsay
rule, and also because it amounted to aggravating evidence of other violent criminal
activity and had not been included in the pretrial notice required by section 190.3 for all
such evidence except the circumstances of the murder. In response, the prosecutor
argued that Kelly’s statement was admissible because it fell within the exception to the
hearsay rule for a statement of state of mind and also because it was not offered to prove
other violent criminal activity, but rather constituted aggravating evidence of the
circumstances of the murder. The trial court sustained the defense objection, but without
prejudice to a later request by the People for a ruling as to the admissibility of Kelly’s
statement. The trial court then admonished the jury to “disregard the last sentence, the
last subject of the . . . [prosecutor].”
Later that day, outside the presence of the jury, the People sought a ruling from the
trial court that Kelly’s statement was admissible. At an evidentiary hearing conducted
outside the presence of the jury, the People called Acosta to testify. Acosta related
Kelly’s statement, making plain that she had asked Kelly — for 10 or 15 minutes or
40
perhaps even longer — what was bothering her, before Kelly spoke of defendant’s past
fondling. Acosta added that she had made various suggestions to Kelly leading up to
Kelly’s expression of her intent to confront defendant. The prosecutor argued that
Kelly’s statement was admissible because it fell within the exception to the hearsay rule
for a statement of state of mind and also within the exception for a spontaneous
statement. In addition, the prosecutor argued that Kelly’s statement was not offered to
prove other violent criminal activity by defendant, but rather constituted aggravating
evidence of the circumstances of the murder. In opposition, defense counsel argued that
Kelly’s statement could not be deemed spontaneous because it was elicited by
questioning and was not made shortly after the past fondling by defendant to which it
referred. Defense counsel also argued that Kelly’s statement, even if it reflected her state
of mind, was irrelevant and unduly prejudicial.
The trial court ruled, again without prejudice to a later request by the People, that
Kelly’s statement was inadmissible. The trial court determined that Kelly’s statement did
not fall within the spontaneous-statement exception to the hearsay rule because it was
elicited by questioning and also because it could not be said to have been made shortly
after defendant’s past fondling. The trial court further determined that Kelly’s statement
did not fall within the state-of-mind exception, essentially because it was preceded by the
suggestions made by Acosta.
In their case in aggravation, the People proceeded to call Alma Torres. Torres
testified before the jury that Kelly was her best friend and a classmate, and that at school
on the day on which the crimes were committed, Kelly “just was different. She didn’t
want to eat lunch, she didn’t want to play, she didn’t want to do nothing. She wasn’t mad
at me, she was just upset. She didn’t want to tell me what was wrong.”
After Torres’s testimony, outside the presence of the jury, the People again sought
a ruling from the trial court that Kelly’s statement was admissible. The prosecutor and
defense counsel made arguments that were substantially similar to those they previously
41
had made regarding the admissibility of Kelly’s statements. At this time, stating that it
had been “bothered by,” and had “re-thought,” its “prior ruling,” the trial court reversed
itself and ruled that Kelly’s statement was admissible, determining that it fell within the
spontaneous-statement and state-of-mind exceptions to the hearsay rule.
In light of the trial court’s ruling, the People called Acosta as a witness. On direct
examination, Acosta testified as follows: Acosta was a friend and classmate of Kelly.
On the day on which the crimes against Kelly were committed, Acosta discovered Kelly
in a corner of a school bathroom, attempting to avoid contact and crying so hard that she
was shaking and unable to catch her breath. Acosta went over to Kelly and asked what
was bothering her, but Kelly did not answer immediately. After Acosta continued her
inquiry for about 15 or 20 minutes, Kelly, still crying, finally responded that for some
time defendant “was touching her places where she knew that it was wrong to be
touched,” and that “when she goes home from school and if . . . [defendant] was going to
touch her places . . . that she knew . . . wasn’t right, . . . she was going to tell him to quit,”
and that “if he wasn’t, . . . she was going to . . . tell him that she was going to tell her
mother.” After this conversation, Acosta and Kelly returned to class, but thereafter when
Acosta saw Kelly during the remainder of the school day, Acosta observed that Kelly did
not act as she usually did, but was quiet and withdrawn. Defendant did not subject
Acosta to cross-examination. In their respective summations to the jury, the prosecutor
mentioned Kelly’s statement only briefly, and defense counsel did not mention it at all.
Defendant contends that the trial court’s admission of Kelly’s statement was error.
The applicable standard of review is abuse of discretion, the test that governs the
admissibility of evidence generally. “Underlying that determination [of admissibility] are
questions of (1) relevance, (2) hearsay rule/state-of-mind exception, and (3) undue
prejudice.” (People v. Rowland (1992) 4 Cal.4th 238, 264.)
The trial court reasonably determined that Kelly’s statement was not subject to the
requirement of pretrial notice in section 190.3 for the admissibility of aggravating
42
evidence other than the circumstances of the murder. At the outset, we observe that
notwithstanding its several clauses, Kelly’s utterances constitute a single and entire
statement. The references to defendant’s past fondling of Kelly and Kelly’s intent to
confront defendant are inextricably linked to each other for their context and meaning.
Kelly’s statement constituted aggravating evidence of the circumstances of the murder,
suggesting that later that same day Kelly confronted defendant and that in response
defendant murdered her wilfully and with premeditation and deliberation in order to
avoid apprehension for his continuing acts of molestation, and not simply in a senseless
explosion of violence. If defendant believed the jury might use Kelly’s statement to find
he had engaged in violent criminal activity other than the murder and the accompanying
rape, sodomy, and lewd conduct, he could have moved for an instruction limiting the use
of the statement (see Evid. Code, § 355), but he was not entitled to have the statement
excluded pursuant to section 190.3. Furthermore, even if the People had offered Kelly’s
statement to prove violent criminal activity other than the murder and the accompanying
rape, sodomy, and lewd conduct without complying with the pretrial notice requirement
of section 190.3, it would be difficult to conclude that defendant suffered prejudice from
the asserted lack of prior notice inasmuch as the prosecutor had notified defense counsel
about Kelly’s statement more than two weeks prior to the prosecutor’s reference to it in
his opening statement, and defense counsel did not request a continuance to respond (see,
e.g., People v. Williams (1997) 16 Cal.4th 153, 241).
The trial court also reasonably determined that Kelly’s statement was relevant to
the circumstances of the murder, that is, it had a tendency to prove what transpired (see
Evid. Code, § 210), because it suggested that Kelly confronted defendant and that in
response defendant murdered her wilfully and with premeditation and deliberation.
Likewise, the trial court reasonably determined that Kelly’s statement was not
unduly prejudicial. Although Kelly’s statement of course was damaging to defendant’s
position by suggesting that he murdered her wilfully and with premeditation and
43
deliberation, such damage does not amount to undue prejudice for purposes of exclusion
of evidence. (See People v. Karis (1988) 46 Cal.3d 612, 638.) Relevant as it was to the
circumstances of the murder, Kelly’s statement carried a probative value that was not
substantially outweighed by any threat to the fairness of the trial or the reliability of the
outcome. (See People v. Alvarez, supra, 14 Cal.4th at p. 204, fn. 14.)
Finally, whether or not Kelly’s statement fell within the spontaneous statement
exception to the hearsay rule, the trial court reasonably determined that the statement fell
within the state-of-mind exception, specifically to prove Kelly’s future conduct in
confronting defendant prior to the murder in accordance with the intent expressed in her
statement.
For purposes of the state-of-mind exception to the hearsay rule, a statement of
state of mind is one that (1) reflects the declarant’s mental state, and (2) is offered, among
other purposes, to prove the declarant’s conduct (Evid. Code, § 1250, subd. (a)(2)),
including the declarant’s future conduct in accordance with his or her expressed intent
(e.g., People v. Majors (1998) 18 Cal.4th 385, 404; People v. Alcalde (1944) 24 Cal.2d
177, 185–188), unless the statement was made under circumstances indicating lack of
trustworthiness (Evid. Code, § 1252; see id., § 1250, subd. (a)).17
17
Evidence Code section 1250 provides:
“(a) Subject to [Evidence Code] Section 1252, evidence of a statement of the
declarant’s then existing state of mind, emotion, or physical sensation (including a
statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not
made inadmissible by the hearsay rule when:
“(1) The evidence is offered to prove the declarant’s state of mind, emotion, or
physical sensation at that time or at any other time when it is itself an issue in the action;
or
“(2) The evidence is offered to prove or explain acts or conduct of the declarant.
“(b) This section does not make admissible evidence of a statement of memory or
belief to prove the fact remembered or believed.”
Evidence Code section 1252 provides:
(footnote continued on next page)
44
Here, Kelly’s statement reflected her mental state, that is, her intent to confront
defendant, even though the occurrence of such a confrontation itself depended on
defendant’s continued fondling (see People v. Conrad (1973) 31 Cal.App.3d 308, 325).
Moreover, Kelly’s statement was offered to prove her future conduct in accordance with
the intent expressed in her statement, namely that she in fact confronted defendant prior
to the murder. Lastly, Kelly’s statement was not made under circumstances indicating a
lack of trustworthiness, there being no hint of any “motive to misrepresent or to
manufacture evidence” or any similar circumstance (Cal. Law Revision Com. com., 28B
pt. 4 West’s Annot. Evid. Code (1995 ed.) foll. § 1252, p. 303). Although evidence like
Kelly’s statement has been held to be “not admissible if it refers solely to alleged past
conduct on the part of the accused” (People v. Hamilton (1961) 55 Cal.2d 881, 893–894,
italics added, overruled on another point by People v. Wilson (1969) 1 Cal.3d 431, 442;
accord, People v. Lew (1968) 68 Cal.2d 774, 780), Kelly’s statement did not refer solely
to defendant’s past fondling, but also referred to her own intent to confront him.
Even if we assume for the sake of discussion that Kelly’s statement, although
admissible to prove her confrontation of defendant, was inadmissible to prove
defendant’s past fondling, it would not have been rendered inadmissible on that basis.
“When evidence is admissible . . . for one purpose and is inadmissible . . . for another
purpose,” a trial court is not required to exclude the evidence, but rather “upon request” is
required to give a limiting instruction “restrict[ing] the evidence to its proper scope.”
(Evid. Code, § 355.) Here, defendant did not request a limiting instruction of any sort.18
(footnote continued from previous page)
“Evidence of a statement is inadmissible . . . if the statement was made under
circumstances such as to indicate its lack of trustworthiness.”
18
We note that defendant does not claim that his objection and opposition to the
admissibility of Kelly’s statement amounted to a request for a limiting instruction, or that
the trial court erred by refusing any such request.
45
Although we have implied that even in the absence of such a request, a trial court
nevertheless may be required to exclude such evidence when a limiting instruction would
be ineffective (see People v. Thompson (1988) 45 Cal.3d 86, 104–105), in this case we
cannot conclude that a limiting instruction would have been ineffective, particularly
because in their respective summations to the jury the prosecutor mentioned Kelly’s
statement only briefly and defense counsel did not mention it at all.19
G. Admission of Photograph of the Victim’s Body at the Crime Scene
At the guilt phase of the initial trial, outside the presence of the jury, the People
sought to introduce into evidence People’s exhibit No. 3, a photograph of Kelly’s body at
the crime scene taken from a distance, depicting Kelly in a pool of blood with articles of
her clothing displaced and her body exposed, and People’s exhibit No. 4, a similar
photograph of Kelly’s body at the crime scene taken close up, depicting Kelly with her
throat slashed and with her body slashed from the chest through the belly and the pubic
area toward the buttocks, opening the body cavity. Defendant objected that exhibits
19
In addition to claiming that Kelly’s statement was inadmissible under the
applicable Evidence Code provisions, defendant also claims on appeal that the trial
court’s asserted error in admitting Kelly’s statement violated his rights under the
following provisions of the United States and California Constitutions: (1) the due
process clauses of the Fifth and Fourteenth Amendments and article I, sections 7 and 15;
(2) the impartial jury clause of the Sixth Amendment and analogous clauses of article I,
sections 15 and 16; (3) the confrontation clauses of the Sixth Amendment and article I,
section 15; and (4) the cruel and unusual punishment clauses of the Eighth Amendment
and of article I, section 17. Because these constitutional claims all are premised on the
assertion that Kelly’s statement was not admissible under Evidence Code section 1250,
the claims clearly lack merit in light of our conclusion that Kelly’s statement was
properly admitted under that statute. Furthermore, although the United States Supreme
Court’s recent decision in Crawford v. Washington (2004) ___ U.S.___ [124 S.Ct.
1354] — decided after the briefing in this case — revises the applicable analysis of
federal confrontation clause claims in some circumstances, Crawford does not affect the
present case, because the out-of-court statement here at issue (made by the victim to a
friend at school) is not “testimonial hearsay” within the meaning of Crawford. (See ___
U.S. at pp. ___ [124 S.Ct. at pp. 1364-1365, 1374].)
46
Nos. 3 and 4 both were inadmissible as irrelevant and unduly prejudicial. The trial court
sustained defendant’s objection to both exhibits and excluded them, but without prejudice
to reconsidering their admissibility. Subsequently, outside the presence of the jury, the
People again sought to introduce the two photographs, and defendant again objected on
the same grounds. On defense counsel’s representation that he would concede before the
jury that defendant acted with malice aforethought and intent to kill, the trial court
sustained defendant’s objection to exhibit No. 4 and excluded it, but overruled
defendant’s objection to exhibit No. 3 and admitted it, determining in effect that it was
relevant to the circumstances of the murder and not unduly prejudicial.
On appeal in Griffin I, we rejected defendant’s contention that exhibit No. 3 was
unduly prejudicial and should have been excluded. In our prior opinion, we observed
that exhibit No. 3, “although . . . unpleasant and explicit, . . . [was] clinical and was taken
from quite some distance,” whereas exhibit No. 4, which the trial court excluded, was
“obviously more graphic and shocking.” (Griffin I, supra, 46 Cal.3d at p. 1028.)
In the midst of the People’s case in aggravation at the penalty phase retrial, outside
the presence of the jury, defendant objected in anticipation of the People’s seeking to
introduce exhibit Nos. 3 and 4, which bore the same designations they had at the guilt
phase of the initial trial, on the grounds of irrelevance and (especially) undue prejudice.
The trial court overruled defendant’s objection and stated it would admit both exhibits, in
effect determining they were relevant to the circumstances of the murder and not unduly
prejudicial. In addition, the trial court denied a request by defendant to admit only one of
the two photographs, apparently exhibit No. 3. Subsequently, in the presence of the jury,
the trial court admitted exhibit Nos. 3 and 4.
Defendant now contends that the trial court’s admission of exhibit No. 4 was error.
We disagree. The trial court reasonably determined that this exhibit was relevant and not
unduly prejudicial, and therefore did not abuse its discretion. As for defendant’s claim of
irrelevance — which the People argue was not preserved, an assertion controverted by
47
the record on appeal — exhibit No. 4 had a strong tendency to prove the circumstances of
the murder, especially its brutality. As for defendant’s claim of undue prejudice, exhibit
No. 4 (as we implied in Griffin I) indeed is graphic and shocking, but so were defendant’s
crimes. Other evidence could, and did, depict Kelly’s body at the crime scene, but none
as clearly or as powerfully as this exhibit. The trial court reasonably determined that the
probative value of the exhibit was not substantially outweighed by any threat it posed to
the fairness of the trial or the reliability of the outcome. Defendant raises various
complaints about exhibit No. 4 — for example, that it is large and shows Kelly’s bowels
distended by gas formed after death — but he fails to demonstrate undue prejudice.20
H. Admission of Evidence of Defendant’s Employment at a Slaughterhouse
Prior to the penalty phase retrial, the People notified defendant that they intended
to introduce evidence, not offered at the initial trial, of defendant’s employment at the
Palace Meat Company, a slaughterhouse, to establish the circumstances of the murder
and specifically to prove that defendant slaughtered Kelly like an animal would be
slaughtered.
Prior to opening statements, defense counsel, taking the position that evidence of
defendant’s employment at the Palace Meat Company would be inadmissible as
irrelevant and unduly prejudicial, asked the trial court to instruct the prosecutor not to
refer to such evidence in his opening statement in advance of a ruling on its admissibility,
and the trial court so instructed the prosecutor. In the course of his opening statement,
20
Because we conclude that the admission of exhibit No. 4 was not erroneous, we
also reject defendant’s claim that the trial court’s asserted error in admitting exhibit No. 4
violated his rights under the following provisions of the United States and California
Constitutions: (1) the due process clauses of the Fifth and Fourteenth Amendments and,
apparently, article I, sections 7 and 15; (2) the impartial jury clause of the Sixth
Amendment and, apparently, the analogous clauses of article I, sections 15 and 16; and
(3) the cruel and unusual punishment clauses of the Eighth Amendment and of article I,
section 17.
48
the prosecutor did not mention defendant’s employment at the Palace Meat Company, but
did make a comment — about which defense counsel later complained — that the
“evidence will . . . show you that . . . [Kelly] was . . . [slaughtered] much like an animal is
slaughtered . . . .”
Subsequently, outside the presence of the jury, the People sought a ruling from the
trial court that evidence of defendant’s employment at the Palace Meat Company was
relevant to the circumstances of the murder and therefore admissible. Defendant opposed
such a ruling on the ground that this evidence was irrelevant and unduly prejudicial.
At an evidentiary hearing conducted outside the presence of the jury, the People
called David Kennedy, the owner of the Palace Meat Company, to give testimony
relating to the business and defendant’s employment there. The trial court deferred
ruling on the admissibility of the evidence until it heard the testimony of Dr. Nelson, the
pathologist.
As pertinent here, Dr. Nelson testified to the effect that the person who murdered
Kelly rendered her unconscious by strangulation, stabbed her neck with a very sharp
knife and then slashed her throat severing the carotid artery and causing exsanguination,
and finally after death slashed the body in four strokes from the chest through the belly
and the pubic area toward the buttocks, opening the body cavity. After hearing the
testimony of Dr. Nelson, the trial court ruled evidence of defendant’s employment at the
Palace Meat Company admissible, determining expressly that it was not unduly
prejudicial and impliedly that it was relevant.
In accordance with the trial court’s ruling, the People, in their case in aggravation,
called Kennedy as a witness. In pertinent part, Kennedy testified he was the owner of
the Palace Meat Company. In the mid-1970’s, Palace slaughtered sheep on an open kill-
floor by rendering each animal unconscious with an electrical stun, stabbing its neck with
a knife and then slashing its throat in order to sever the jugular vein and cause
exsanguination, and finally after death slashing the body from the area of the hips where
49
the legs join through the belly and the brisket toward the neck, opening the body cavity.
In the mid-1970’s, Palace employed defendant as a general helper, doing clean up and
similar chores. Although defendant did not himself slaughter sheep, he had the
opportunity to observe the process.
Defendant contends the trial court’s admission of the evidence of his employment
at the Palace Meat Company was error. We reject his claim.
First, the trial court did not abuse its discretion in determining that the evidence of
defendant’s employment at the Palace Meat Company was relevant in this case. The
condition in which Kelly’s body was found showed that defendant slaughtered her much
like an animal would be slaughtered. The evidence in question had some tendency to
prove that defendant treated Kelly more like an animal than a human being, and hence
that he was more blameworthy on that basis.
Second, the trial court also did not abuse its discretion in determining that the
evidence of defendant’s employment at the Palace Meat Company was not unduly
prejudicial. The evidence was brief, clear, and neutral, and as such its probative value
properly could be found not to be substantially outweighed by any threat it posed to the
fairness of the trial or the reliability of the outcome. Relying on People v. Ortiz (1979)
95 Cal.App.3d 926, defendant asserts that the evidence was inflammatory. Ortiz,
however, is clearly distinguishable. In the first place, Ortiz involved the admissibility of
evidence at a noncapital trial, and evidence that is unduly prejudicial when offered at a
noncapital trial or at the guilt phase of a capital trial is not necessarily unduly prejudicial
in relation to the issue to be decided by the jury at the penalty phase of a capital trial.
Second, Ortiz held only that the admission of evidence that a defendant engaged in ritual
animal sacrifice to attack his credibility as a witness was unduly prejudicial, but the case
does not suggest to us that the evidence in the present case was unduly prejudicial in
establishing the circumstances of the murder. Defendant also asserts that the evidence
risked confusing and misleading the jury, because it did not establish that defendant
50
actually witnessed the slaughtering of sheep or that his killing of Kelly was conducted in
a manner identical to that employed in the killing of sheep. But the circumstance that the
evidence only suggested, and did not conclusively prove, that defendant slaughtered
Kelly much like an animal is slaughtered goes not to its admissibility, but solely to its
weight. Finally, contrary to defendant’s assertion, the evidence was neither cumulative
nor remote in time or logic.21
I. Admission of Evidence of Defendant’s Knowledge of Police Investigatory
Procedures for Rape Offenses
Outside the presence of the jury at the penalty phase retrial, defendant sought a
ruling from the trial court that evidence of his knowledge of police investigatory
procedures for rape offenses, not offered at the initial trial, was inadmissible as irrelevant
and unduly prejudicial. The People had indicated their intent to present such evidence
before introducing evidence suggesting that defendant washed his genital area in a cell
latrine following his commission of the crimes against Kelly. After an evidentiary
hearing, the trial court ruled the evidence in question was admissible as relevant and not
unduly prejudicial.
In their case in aggravation, the People called Edward Singh as a witness. In
pertinent part, he testified as follows: Singh had been a police officer in Kerman for
about 20 years. Some months prior to the murder, he and defendant worked at Cal
Western Patrol, a security agency. On one occasion, defendant told him of a desire to
become a police officer, and he and defendant then discussed how crimes including rape
are investigated, and spoke of the gathering of evidence of pubic hair, semen, blood, and
saliva from the victim’s body by means of swabs.
21
Because we conclude this evidence properly was admitted, we reject defendant’s
related claims that the trial court’s asserted error in admitting this evidence violated his
rights under the cruel and unusual punishment clause of the Eighth Amendment to the
United States Constitution and the due process clause of the Fourteenth Amendment.
51
Defendant contends that the trial court’s admission of evidence of his knowledge
of police investigatory procedures for rape offenses was error. We disagree. The trial
court reasonably determined that the evidence in question was relevant and not unduly
prejudicial, inasmuch as it was brief, clear, and neutral, and that this evidence suggested
defendant washed his genital area in the cell latrine in order to destroy evidence and
avoid apprehension. Contrary to defendant’s assertion, the evidence did not “intimat[e]
that . . . [he] was planning . . . [his] crimes all along, months before they took place,” but
only that he sought, after committing the crimes, to escape responsibility.22
J. Admission of Evidence of Other Violent Criminal Activity by Defendant Involving
Lewd Acts Committed Against Lisa B.
Prior to the penalty phase retrial, the People gave notice to defendant of their
intent to present evidence, not introduced at the initial trial, of other violent criminal
activity by him involving lewd acts committed against Lisa B. In reliance on the
plurality opinion in People v. Phillips (1985) 41 Cal.3d 29, 72, footnote 25, which was
decided under the similar 1977 death penalty law, defendant requested that the trial court
conduct a preliminary inquiry to determine whether there was substantial evidence to
prove such other violent criminal activity — a condition for the admissibility of any
evidence of that sort. Substantial evidence of other violent criminal activity is evidence
that would allow a rational trier of fact to find the existence of such activity beyond a
reasonable doubt. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1167–1168; People
v. Clair (1992) 2 Cal.4th 629, 672–678; see also People v. Boyd (1985) 38 Cal.3d 762,
778.) Before an individual juror may consider evidence of other violent criminal activity
22
Again, because we conclude this evidence properly was admitted, we reject
defendant’s related claim that the trial court’s asserted error in admitting this evidence
violated his rights under the due process clauses of the Fifth and Fourteenth Amendments
to the United States Constitution, the impartial jury clause of the Sixth Amendment, and
the cruel and unusual punishment clause of the Eighth Amendment.
52
in aggravation, he or she must find the existence of such activity beyond a reasonable
doubt. (See People v. Benson (1990) 52 Cal.3d 754, 809–811.) There is no requirement,
however, that the jury as a whole unanimously find the existence of other violent criminal
activity beyond a reasonable doubt before an individual juror may consider such evidence
in aggravation. (See ibid.)
The trial court agreed to conduct a preliminary inquiry under Phillips. At the
ensuing evidentiary hearing, Lisa was the sole witness. On direct examination, she
testified in substance as follows: Lisa was a niece by marriage to Marvene Nordin,
defendant’s wife. Perhaps a year or two preceding the crimes committed against Kelly,
when Lisa was four or five years of age, defendant engaged in lewd acts with her on two
separate occasions. One time, he touched her around her vagina with his fingers, and the
other time he penetrated her vagina with his fingers and then flicked open a knife with a
folding blade; on each occasion, he threatened harm to others if she were to reveal what
he had done. On cross-examination, Lisa admitted that defendant had an identical twin
named Ronald Griffin, but stated she had been able to distinguish between defendant and
Ronald whenever other persons called either man by his given name and also because
defendant lived with Nordin and Ronald did not. She also admitted that at one time her
mother had dated defendant and at another time Ronald. She further admitted that at
some point she had reported that Ronald had sexually molested her, and that at another
time she had made a similar report about an otherwise unidentified person. Finally, she
conceded she could not date either of the two incidents or even state which occurred
earlier and which later.
In arguing against the admissibility of the evidence of other violent criminal
activity by defendant involving lewd acts committed against Lisa, defense counsel
asserted at the outset that substantial evidence did not exist to prove the existence of such
activity. Defense counsel alternately asserted that this evidence was unduly prejudicial
because of its purported unreliability and its similarity to the charges of rape, sodomy,
53
and lewd conduct alleged to have been committed by defendant against Kelly. Defense
counsel also asserted that because of the purported lack of specificity in the details of the
crimes, the evidence would violate what People v. Jones (1990) 51 Cal.3d 295, refers to
as a defendant’s “right to present a defense” (id. at p. 317, italics omitted), arising from
the accusation clause of the Sixth Amendment to the United States Constitution and,
evidently, the due process clause of the Fourteenth Amendment.
The trial court ruled that the evidence of other violent criminal activity by
defendant involving lewd acts committed against Lisa was admissible, stating that “there
is substantial evidence for this matter to be heard by the jury,” and that the People have
the “obligation to prove these acts beyond a reasonable doubt.”
In light of the trial court’s ruling, the People, in their case in aggravation, called
Lisa as a witness.
On direct examination, Lisa stated that she was 18 years of age. Marvene Nordin,
who was Kelly’s mother, was Lisa’s aunt by marriage; Lisa knew Kelly and defendant,
who then was Nordin’s husband and Kelly’s stepfather. When Lisa was four or five
years of age — a year or two prior to the crimes committed against Kelly — she often
visited defendant and Nordin’s home, where Nordin sometimes would baby-sit for her.
On two occasions during that period, defendant engaged in sexual conduct with her.
On one of these two occasions — Lisa could not remember which occurred earlier
and which later — she was visiting defendant and Nordin’s home. Defendant drove her
in his truck to a store, pulled behind the establishment, and parked. Defendant told Lisa
to take her pants off, and when she declined to do so he pulled them off himself.
Defendant began to touch Lisa with his fingers in the area around her vagina, causing
pain, and she began to cry; she asked him to stop, trying to push him away with her feet,
but he did not. All of a sudden, defendant stopped, and Lisa apparently pulled up her
pants; he then turned on the ignition, told her to lie on the floorboard, and she complied.
Before arriving back at his home, defendant warned Lisa that if she told anyone about the
54
incident, he would hurt Kelly, and Lisa became frightened. Lisa did not tell Nordin about
the incident because she was afraid that defendant would hurt Kelly.
On the other occasion, Lisa again was visiting defendant and Nordin’s home,
sleeping in their bedroom in a nightshirt. When Lisa awoke, she left the room and found
defendant sitting in a chair. After defendant told Lisa to sit by him, she drew near, and he
put her on his lap. Defendant then fondled Lisa about her chest and legs, laid her down
on the floor and laid himself nearby, and continued to fondle her, then proceeding to
place his hand under her nightshirt toward the area around her vagina and finally
penetrating her vagina with his fingers and causing pain. After some time, as defendant
continued in this fashion, Lisa heard an automobile pull up in a driveway outside, and
defendant stopped. Lisa heard a door of the vehicle shut. Defendant returned to the chair
and flicked open a knife with a folding blade. Just then, the doorknob started to turn, and
defendant warned Lisa that if she told the person entering the house about the incident, he
would hurt her mother and her father. The door opened, and Nordin came in. Lisa did
not tell Nordin about the incident, because she was afraid of defendant. At some point
after defendant murdered Kelly, Lisa disclosed both incidents to a person whom she did
not identify.
On cross-examination, Lisa admitted that defendant had a twin named Ronald
Griffin, but denied that she remembered defendant and Ronald to be identical twins. Lisa
stated that she could distinguish between defendant and Ronald whenever other persons
called either man by his given name; she also stated she could distinguish between the
two because defendant lived with Nordin and Ronald did not, and also because she
believed Ronald to be larger than defendant. Lisa also admitted that at one time her
mother had dated defendant and at another time had dated Ronald. Lisa further admitted
that at some point she had reported that Ronald had sexually molested her, and that at
another she had made a similar report about an otherwise unidentified person. There
55
apparently was no independent corroboration of the two incidents that Lisa described as
occurring in defendant’s truck and at his home.
Defendant now contends that the trial court erred in admitting the evidence of
other violent criminal activity by him involving lewd acts committed against Lisa. For
the reasons that follow, we reject this claim.
As stated, a trial court’s ruling on the admissibility of evidence generally is
reviewed for abuse of discretion. This standard applies in the specific context of
evidence of other violent criminal activity. (See, e.g., People v. Ochoa (1998) 19 Cal.4th
353, 449; People v. Clair, supra, 2 Cal.4th at p. 676.)
The trial court reasonably determined that substantial evidence existed to prove
other violent criminal activity by defendant involving lewd acts committed against Lisa.
A rational trier of fact could have credited Lisa’s testimony, which generally was
detailed, internally consistent, and not in conflict with any other evidence presented, and
was sufficient to support a finding beyond a reasonable doubt that defendant touched
Lisa around her vagina with his fingers in the incident in his truck and penetrated her
vagina with his fingers in the incident at his home. Both episodes involved violence by
means of defendant’s accompanying “express . . . threat[s] to use . . . violence” (§ 190.3,
factor (b)) — against Kelly in the former incident and against Lisa’s mother and father in
the latter incident.
The trial court also reasonably determined that the evidence of other violent
criminal activity by defendant involving lewd acts committed against Lisa was not
unduly prejudicial. Although a trial court may not categorically exclude evidence of
other violent criminal activity on the ground of undue prejudice, inasmuch as evidence of
this sort is “expressly made admissible” (People v. Karis, supra, 46 Cal.3d at p. 641;
accord, People v. Box (2000) 23 Cal.4th 1153, 1200–1201), it may exclude “particular
items of [such] evidence” on that ground (People v. Karis, supra, 46 Cal.3d at p. 641,
fn. 21), insofar as any item might “unfairly persuade[]” the trier of fact to find that the
56
defendant engaged in the other violent criminal activity in question (People v. Box,
supra, 23 Cal.4th at p. 1201). The record precludes any characterization of Lisa’s
testimony as unfairly persuasive, in that it generally was detailed, internally consistent,
and not in conflict with any other evidence presented.
Lastly, the trial court reasonably determined that the evidence of other violent
criminal activity by defendant involving lewd acts committed against Lisa would not
violate defendant’s right to present a defense under the Sixth Amendment’s accusation
clause and the Fourteenth Amendment’s due process clause. In Jones, we concluded that
a lack of specificity in the details of crimes like those committed by defendant against
Lisa does not “inevitably preclude a defense.” (People v. Jones, supra, 51 Cal.3d at
p. 319.) The issue usually turns on the relative credibility of the defendant and the child,
both generally and in the situation of the so-called resident child molester (id. at p. 319)
who either lives with, or has continuous access to, the child (id. at p. 299). “[T]he
defendant has the option of taking the witness stand and directly denying any
wrongdoing. If credible, his testimony should prevail over the unspecific assertions
of . . . [the child]. In some cases, the very nonspecificity of the child’s testimony,
especially if uncorroborated, may offer defense counsel fertile field for challenging the
child’s credibility.” (Id. at p. 320.) Here, although Lisa’s testimony was lacking in
specificity as to the date of the incidents in defendant’s truck and at his home, it
otherwise was quite specific, with Lisa describing precisely what defendant did to her. In
any event, on cross-examination defense counsel challenged Lisa’s credibility by
suggesting misidentification or perhaps confabulation. Although defendant did not take
the witness stand to deny Lisa’s testimony, his choice to proceed in that fashion does not
57
reflect any violation of his right to present a defense, but rather a decision to present a
defense in a certain way, by relying upon defense counsel’s cross-examination of Lisa.23
K. Refusal of Request to Instruct on the Penetration Element of Rape and Sodomy
In its charge to the jury at the penalty phase retrial, the trial court instructed, in
pertinent part, that “[t]he defendant in this case has been found guilty of murder of the
first degree. The allegation that the murder was committed under the special
circumstances that the murder was committed while the defendant was engaged in the
commission of rape, while the defendant was engaged in the commission of sodomy, and
while the defendant was engaged in the commission of a lewd act with a child, has been
specially found to be true.”24 The trial court also instructed that “[i]f you the Jury,
individually or collectively, entertains any lingering doubt as to the defendant’s guilt as
to the conviction and/or special circumstance findings, you may weigh and consider such
doubt in deciding what sentence is appropriate.” The trial court, however, refused a
request by defendant to instruct on the elements of murder, rape, and sodomy, or in the
alternative to instruct at least on the penetration element of rape and sodomy, determining
23
Because we conclude the evidence of other violent criminal activity against Lisa
properly was admitted, we reject defendant’s related claims that the trial court’s asserted
error in admitting this evidence violated his rights under the following provisions of the
United States and California Constitutions: (1) the due process clauses of the Fourteenth
Amendment and article I, section 15; (2) the accusation clauses of the Sixth Amendment
and article I, section 14; (3) the confrontation clauses of the Sixth Amendment and
article I, section 15; (4) the compulsory process clauses of the Sixth Amendment and
article I, section 15; (5) the cruel and unusual punishment clauses of the Eighth
Amendment and of article I, section 17; and (6) the equal protection clauses of the
Fourteenth Amendment and article I, section 7.
24
Prior to jury selection, the trial court had instructed the prospective jurors to the
effect that, “as a matter of law, . . . the defendant is guilty of murder and the special
circumstances found true . . . .”
58
in substance that to do so might confuse the jury by inviting it to relitigate the related
special-circumstance findings and underlying convictions.
Defendant contends that the trial court’s refusal of his request to instruct on the
penetration element of rape and sodomy was error.
We conclude that there is no need to determine whether the trial court erred
in declining to give the requested instruction on penetration, because assuming without
deciding, that the trial court did err in failing to give such an instruction on request, we
conclude that the error was not prejudicial in this case under any standard of prejudice.
We reach this conclusion because (1) defendant was permitted to present evidence in
mitigation to support his contention that there was a lingering doubt whether he had
effected penetration and thereby committed rape and sodomy, (2) both counsel in their
penalty phase closing arguments clearly discussed the evidence relating to penetration
and the lingering doubt issue, and (3) there was no suggestion, either by the court or
counsel, that penetration was not an element or an essential feature of the crimes of rape
and sodomy. Under these circumstances, the absence of an instruction informing the
jury, for purposes of the lingering doubt issue, that penetration is an element of the
offenses of rape and robbery was harmless beyond a reasonable doubt.25
25
In light of our conclusion that the absence of an instruction on the penetration
element of rape and sodomy was harmless beyond a reasonable doubt, we reject
defendant’s claim that the trial court’s failure to give such an instruction constituted
reversible error under the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and article I, sections 15, 16, and 17 of the California Constitution.
To the extent defendant claims that the trial court erred by refusing his request to
instruct on the elements of murder, rape, and sodomy generally, and not solely on the
penetration element of rape and sodomy, we dismiss his claim “as not properly raised: it
is perfunctorily asserted without argument in support.” (People v. Ashmus, supra, 54
Cal.3d at p. 985, fn. 15.)
59
L. Failure to Instruct Against Double-counting of Assertedly Overlapping Special
Circumstances and Underlying Crimes
At the penalty phase retrial, the trial court instructed the jury that “[i]n determining
which penalty is to be imposed on the defendant, you shall consider all of the
evidence . . . [and] shall consider, take into account and be guided by . . . [specified
penalty] factors” including “[t]he circumstances of the crime of which the defendant was
convicted in the present proceeding” — namely, the murder of Kelly and the
accompanying rape, sodomy, and lewd conduct — and “the existence of any special
circumstances found to be true” — that is, felony-murder rape, felony-murder sodomy,
and felony-murder lewd conduct.
In his opening brief, defendant contends that the trial court erred by failing to
modify the above-quoted instruction in order to prevent the jury from double-counting
the assertedly overlapping special circumstances — felony-murder lewd conduct vis-à-
vis felony-murder rape and felony-murder sodomy — and the assertedly overlapping
underlying crimes — lewd conduct vis-à-vis rape and sodomy. Defendant asserts that
this error improperly inflated evidence in aggravation over that in mitigation. In their
brief, the People argue that defendant did not preserve any such claim for review on
appeal, because he failed to request any modification to avoid the consequences of which
he now complains and because the instruction actually given was correct and applicable.
In his reply brief defendant has withdrawn his contention, in light of the People’s
argument. Accordingly, we need not address or resolve this claim.
M. Refusal of Request to Instruct on Mercy
At the penalty phase retrial, as stated above, the trial court instructed the jury that
“[i]n determining which penalty is to be imposed on the defendant, you shall consider all
of the evidence . . . [and] shall consider, take into account and be guided by . . . [specified
penalty] factors” including, as pertinent here, “[a]ny sympathetic or other aspect of the
defendant’s character or record that the defendant offers as a basis for a sentence less
60
than death.” The trial court also instructed the jury that “[y]ou are free to assign
whatever moral or sympathetic value you deem appropriate to each and all of the various
factors you are permitted to consider.” The court, however, denied a request by
defendant to give a number of instructions stating or suggesting that the jury could
exercise mercy based on the evidence, in part because some of these requested
instructions were duplicative of those quoted above. In their respective closing
arguments, defense counsel explicitly urged the jury to exercise mercy and the prosecutor
implicitly urged the jury not to do so.
Defendant contends that the trial court’s denial of his request to instruct the jury
that it could exercise mercy based on the evidence was error. We have rejected
substantially similar claims in the past (see, e.g., People v. Smith (2003) 30 Cal.4th 581,
638; People v. Hughes (2002) 27 Cal.4th 287, 403; People v. Lewis (2001) 26 Cal.4th
334, 393), and we reject the present claim as well. A trial court, of course, may refuse an
instruction that is duplicative. (E.g., People v. Sanders (1995) 11 Cal.4th 475, 560;
People v. Mickey (1991) 54 Cal.3d 612, 697; see, e.g., People v. Benson, supra, 52
Cal.3d at p. 805, fn. 12.) The question of the appropriate standard of review applicable to
a determination of duplicativeness need not be resolved (see People v. Berryman (1993)
6 Cal.4th 1048, 1079), because even when scrutinized independently, the trial court’s
decision was sound. The instructions requested were clearly duplicative of the
instructions given, which informed the jury that it had to “consider all of the evidence”
and could “consider, take into account and be guided by” any factor, including “[a]ny
sympathetic or other aspect of the defendant’s character or record that the defendant
offers as a basis for a sentence less than death,” and that the jury was “free to assign
whatever moral or sympathetic value you deem appropriate to each and all of the various
factors you are permitted to consider.” (See, e.g., People v. Smith, supra, 30 Cal.4th at
p. 638; People v. Hughes, supra, 27 Cal.4th at p. 403; People v. Lewis, supra, 26 Cal.4th
at p. 393.)
61
Defendant argues that without the instructions he requested, a reasonable
likelihood exists (see People v. Clair, supra, 2 Cal.4th at p. 663) that the jury was misled
into believing it was precluded from considering and giving effect to at least some of the
evidence that he presented in mitigation, in violation of the cruel and unusual punishment
clause of the Eighth Amendment to the United States Constitution and the due process
clause of the Fourteenth Amendment. But having received an instruction expressly
declaring that it had to “consider all of the evidence” and could “consider, take into
account and be guided by” any factor including “[a]ny . . . aspect of the defendant’s
character or record that the defendant offers as a basis for a sentence less than death,” the
jury adequately was advised that it could consider and give effect to all of the evidence
presented by defendant in mitigation.26
N. Instruction on the Determination of Penalty
With regard to the determination of penalty, the trial court instructed the jury at
the penalty phase retrial, apparently at the request of defendant as well as the People, as
follows:
“It is now your duty to determine which of the two penalties, death or confinement
in the state prison for life without possibility of parole, shall be imposed on the
defendant.
“After having heard all of the evidence, and after having heard and considered the
arguments of counsel, you shall consider, take into account and be guided by the
applicable factors of aggravating and mitigating circumstances upon which you have
been instructed.
26
To the extent defendant claims the jury could exercise mercy apart from the
evidence, and should have been instructed accordingly, the contention lacks merit. A
jury may not exercise mercy in this fashion, and therefore should not be instructed that it
could. (People v. Benson, supra, 52 Cal.3d at pp. 808–809.)
62
“An aggravating factor is any fact, condition or event attending the commission of
a crime which increases its guilt or enormity, or adds to its injurious consequences which
is above and beyond the elements of the crime itself. A mitigating circumstance is any
fact, condition or event which as such, does not constitute a justification or excuse for the
crime in question, but may be considered as an extenuating circumstance in determining
the appropriateness of the death penalty.
“The weighing of aggravating and mitigating circumstances does not mean a mere
mechanical counting of factors on each side of an imaginary scale, or the arbitrary
assignment of weights to any of them. You are free to assign whatever moral or
sympathetic value you deem appropriate to each and all of the various factors you are
permitted to consider. In weighing the various circumstances you determine under the
relevant evidence which penalty is justified and appropriate by considering the totality of
the aggravating circumstances with the totality of the mitigating circumstances. To
return a judgment of death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances that it
[sic] warrants death instead of life without parole.”
Defendant contends that the trial court’s giving of the foregoing instruction was
constitutionally deficient in various respects — each of which, he acknowledges, we have
rejected in prior decisions in passing upon substantially similar instructions.
The standard of review for the legal correctness of an instruction is independent,
inasmuch as the “question is one of law, involving as it does the determination of the
applicable legal principles.” (People v. Berryman, supra, 6 Cal.4th at p. 1089.)
First, defendant challenges this sentence of the instruction: “To return a judgment
of death, each of you must be persuaded that the aggravating circumstances are so
substantial in comparison with the mitigating circumstances that it [sic] warrants death
instead of life without parole.” (Italics added.) Defendant argues, in substance, that the
Eighth Amendment’s cruel and unusual punishment clause and the Fourteenth
63
Amendment’s due process clause prohibit vagueness in guiding the jury and require
reliability for any decision made, that the words “so substantial” rendered the instruction
vague, and that the word “warrants” made the ensuing verdict of death unreliable. In
People v. McPeters (1992) 2 Cal.4th 1148, 1194, and People v. Breaux (1991) 1 Cal.4th
281, 315–316, we rejected a similar attack on the asserted operation of the words “so
substantial” and “warrants,” respectively, and we again do so now.
Second, defendant challenges the failure of the instruction to state that the People
bear the burden of proving beyond a reasonable doubt that death is the appropriate
penalty. Defendant argues that the Fourteenth Amendment’s due process clause imposes
such a burden. In People v. Berryman, supra, 6 Cal.4th at page 1101, however, we held
to the contrary, and we adhere to that holding.
Third, defendant similarly challenges the failure of the instruction to state that in
order to return a verdict of death, the jury must find beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating circumstances and that death is the
appropriate penalty. Defendant argues that the Fourteenth Amendment’s due process
clause imposes such a requirement on the jury. But in People v. Hawthorne (1992) 4
Cal.4th 43, 79, we concluded that the United States Constitution, including implicitly the
Fourteenth Amendment’s due process clause, does not impose any requirement of this
sort, and we so conclude again.
Fourth, defendant challenges the failure of the instruction to state that in order to
return a verdict of death, the jury must be unanimous in finding any aggravating
circumstance underlying the verdict and must provide a written statement of reasons.
Defendant argues, by implication, that the Eighth Amendment’s cruel and unusual
punishment clause and/or the Fourteenth Amendment’s due process clause demand such
a finding and statement of reasons from the jury. In People v. Pride (1992) 3 Cal.4th
195, however, we impliedly held to the contrary, and now do so expressly.
64
Fifth, defendant challenges the sentence of the instruction defining a mitigating
circumstance as “any fact, condition or event which as such, does not constitute a
justification or excuse for the crime in question, but may be considered as an extenuating
circumstance in determining the appropriateness of the death penalty.” Defendant argues
that the Eighth Amendment’s cruel and unusual punishment clause and the Fourteenth
Amendment’s due process clause, as construed in Lockett v. Ohio (1978) 438 U.S. 586,
604, generally require that the jury “not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death,” but that the
definition of a mitigating circumstance incorporated in the instruction precluded the jury
from giving such consideration. Although we agree with defendant concerning what is
required by the two federal constitutional provisions in question, we otherwise disagree.
A mitigating circumstance must not be reviewed in isolation, but rather in the context of
the charge as a whole. (See, e.g., People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
After such review, we conclude that no reasonable likelihood exists that the jury
misunderstood or misapplied the definition of a mitigating circumstance as argued by
defendant. The instruction made clear that “[i]n determining which penalty is to be
imposed on the defendant,” the jury had to “consider all of the evidence” and could
“consider, take into account and be guided by” any factor, including “[a]ny sympathetic
or other aspect of the defendant’s character or record that the defendant offers as a basis
for a sentence less than death.” Defendant’s citation of studies purportedly showing or
suggesting the generally imperfect understanding of the concept of “mitigation” fails to
establish any reasonable likelihood that the definition of a mitigating circumstance in this
case misled the jury as to the scope of its responsibility in choosing between the two
possible punishments.
Defendant asserts that, in light of the decisions of the United States Supreme
Court in Ring v. Arizona (2002) 536 U.S. 584 and Apprendi v. New Jersey (2000) 530
65
U.S. 466, we must reconsider any adverse conclusion that we otherwise might be inclined
to reach on any aspect of his claim.
In
Apprendi, the court held that the Fourteenth Amendment’s due process clause
requires the state to submit to a jury, and prove beyond a reasonable doubt to the jury’s
unanimous satisfaction, every fact, other than a prior conviction, that increases the
punishment for a crime beyond the maximum otherwise prescribed under state law. In
Ring, the court held that Apprendi operates in the capital context.
Contrary to defendant’s assertion, as we recently made plain in People v. Prieto
(2003) 30 Cal.4th 226, 262–263, Ring and Apprendi are inapplicable to the determination
of penalty in a capital case under California law. Under the law of this state, all of the
facts that increase the punishment for murder of the first degree — beyond the otherwise
prescribed maximum of life imprisonment with possibility of parole to either life
imprisonment without possibility of parole or death — already have been submitted to a
jury (and proved beyond a reasonable doubt to the jury’s unanimous satisfaction) in
connection with at least one special circumstance, prior to the commencement of the
penalty phase. (See § 190.2.) Therefore, at the penalty phase itself no further facts need
to be proved in order to increase the punishment to either death or life imprisonment
without possibility of parole, because both now are prescribed as potential penalties. It is
true that at the penalty phase, the choice between death and life imprisonment without
possibility of parole depends on a determination as to which of the two penalties is
appropriate, which in turn depends on a determination whether the evidence in
aggravation substantially outweighs that in mitigation. (See, e.g., People v. Brown
(1985) 40 Cal.3d 512, 538–545, & especially fns. 13 & 19 on pp. 541–542 & 545, revd.
on other grounds sub nom. California v. Brown (1986) 479 U.S. 538.) But as explained,
the ultimate determination of the appropriateness of the penalty and the subordinate
determination of the balance of evidence of aggravation and mitigation do not entail the
finding of facts that can increase the punishment for murder of the first degree beyond the
66
maximum otherwise prescribed. Moreover, those determinations do not amount to the
finding of facts, but rather constitute a single fundamentally normative assessment (see,
e.g., People v. Boyde (1988) 46 Cal.3d 212, 252–255, affd. sub nom. Boyde v. California
(1990) 494 U.S. 370) that is outside the scope of Ring and Apprendi. (Cf. Cooper
Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 432, 437 [holding
that an “award of punitive damages does not constitute a finding of ‘fact[]’: “imposition
of punitive damages” is not “essentially a factual determination,” but instead an
“expression of . . . moral condemnation”].)27
O. Constitutionality of the 1978 Death Penalty Law
Defendant contends that the 1978 death penalty law violates the United States and
California Constitutions, both on its face and as applied, by failing adequately to narrow
the class of murderers subject to the death penalty, and hence that the sentence of death
imposed upon him is invalid on that ground. Specifically, defendant claims that the death
penalty law fails adequately to narrow the class of death-eligible murderers because the
law (1) defines murder of the first degree in a vague and overbroad fashion, in violation
of the cruel and unusual punishment clause of the Eighth Amendment and the due
process clause of the Fourteenth Amendment, and (2) impermissibly leaves the
narrowing function to prosecutorial discretion, in violation of the due process clauses of
the Fifth and Fourteenth Amendments, the cruel and unusual punishment clause of the
Eighth Amendment, and the equal protection clause of the Fourteenth Amendment, as
27
To the extent defendant claims that by giving the instruction on the determination
of penalty quoted in the text, the trial court erred under the Fifth and Sixth Amendments
to the United States Constitution and article I, sections 7 and 15 of the California
Constitution, as well as under the Eighth Amendment’s cruel and unusual punishment
clause and the Fourteenth Amendment’s due process clause, defendant’s argument is
dismissed as not properly raised, inasmuch as it is perfunctorily asserted without
argument in support.
67
well as the due process clauses of article I, sections 7 and 15, the cruel or unusual
punishment clause of article I, section 17, and the equal protection clause of article I,
section 7.
In
People v. Hughes, supra, 27 Cal.4th at pages 403–404, we concluded that the
death penalty law in fact adequately narrows the class of death-eligible murderers.
There, we rejected a claim substantially similar to defendant’s. Here, defendant adds
only a bare invocation, without argument, of the federal and state constitutional
guaranties of equal protection. Accordingly, we reject defendant’s claim as well. Lastly,
in light of the crimes of which he was convicted, which included rape, sodomy, and lewd
conduct in addition to murder and the special circumstances found true (which comprised
felony-murder rape, felony-murder sodomy, and felony-murder lewd conduct), defendant
is squarely within the class of death-eligible murderers, no matter how narrowly that class
reasonably might be defined.
Defendant also contends that the 1978 death penalty law violates the United States
Constitution, both on its face and as applied, by failing to provide for intercase
proportionality review — specifically violating the Fifth Amendment’s due process
clause, the Eighth Amendment’s cruel and unusual punishment clause, the Fourteenth
Amendment’s due process and equal protection clauses, and some unidentified clause of
the Sixth Amendment. In People v. Frye (1998) 18 Cal.4th 894, 1029, we held that the
United States Constitution, including explicitly the Fifth, Sixth, Eighth, and Fourteenth
Amendments, does not require intercase proportionality. Presented with no reason to
reconsider our holding, we adhere to it in this case and accordingly reject defendant’s
claim.
Defendant contends that the 1978 death penalty law violates the United States and
California Constitutions, both on their face and as applied, in several additional
particulars, each of which he acknowledges we have rejected in other decisions.
Defendant also claims that instructions given in this case in conformity with the death
68
penalty law are themselves violative of the federal and state Constitutions in various
respects, each of which he likewise acknowledges we have rejected in passing upon
substantially similar instructions elsewhere.
First, defendant claims that the 1978 death penalty law, and the instructions given,
violate the Eighth Amendment’s cruel and unusual punishment clause and the Fourteenth
Amendment’s due process clause by failing to identify which penalty factors are
aggravating and which penalty factors are mitigating. In People v. Rodriguez (1986) 42
Cal.3d 730, 777–779, we held that the United States Constitution, including implicitly the
provisions on which defendant relies, does not require any such identification of
aggravating and/or mitigating penalty factors. We come to the same conclusion
expressly in the present case. Defendant argues that Ring and Apprendi require us to
reconsider this point, but we conclude they do not, because as we have explained these
decisions are inapplicable to the determination of penalty in a capital case under
California law. Further, in People v. Fudge (1994) 7 Cal.4th 1075, 1126–1127, we
upheld substantially similar instructions against a substantially similar attack. The United
States Constitution does not require the identification of aggravating and/or mitigating
penalty factors in the instructions given to the jury, or elsewhere.
Second, defendant claims that the 1978 death penalty law, and the instructions
given, violate the Sixth Amendment’s jury trial clause, the Eighth Amendment’s cruel
and unusual punishment clause, and the Fourteenth Amendment’s due process and equal
protection clauses, by failing to impose on the People the burden of proving beyond a
reasonable doubt that any given aggravating circumstance exists, that the aggravating
circumstances outweigh the mitigating circumstances, and that death is the appropriate
penalty. Rejecting a like challenge to the death penalty law in People v. Marshall (1990)
50 Cal.3d 907, 935–936, where the defendant’s argument differed only in its omission of
any reference to the Sixth Amendment, we concluded that the Eighth and Fourteenth
Amendments do not impose any burden of that sort. We now reject defendant’s
69
challenge as well, finding that its invocation of the Sixth Amendment adds nothing of
substance, because defendant erroneously assumes (as noted above) that Ring and
Apprendi are applicable to the determination of penalty in a capital case under California
law. In Marshall, we also rejected a similar challenge to substantially identical
instructions.
Third, defendant claims that the 1978 death penalty law, and the instructions
given, violate the Sixth Amendment’s jury trial clause, the Eighth Amendment’s cruel
and unusual punishment clause, the Fourteenth Amendment’s due process and equal
protection clauses, and the analogous provisions of, apparently, article I, sections 7, 15,
16, and 17, by failing to require that in order to return a verdict of death, the jury must be
unanimous in finding any aggravating circumstance underlying the verdict. In People v.
Cox (1991) 53 Cal.3d 618, 691–692, we concluded that neither the United States
Constitution nor the California Constitution, including implicitly the provisions invoked
in the present case, imposes any such requirement on the jury, and we adhere to that
conclusion here. Moreover, in People v. Bacigalupo (1991) 1 Cal.4th 103, 147, vacated
on other grounds sub nomine Bacigalupo v. California (1992) 506 U.S. 802, we
specifically held that the Sixth Amendment does not impose any requirement of this sort.
Defendant asks us to reconsider our holding in light of Ring and Apprendi. There is,
however, no reason for us to do so, because — as we have explained — Ring and
Apprendi are inapplicable to the determination of penalty in a capital case under
California law.
Fourth, defendant claims that the 1978 death penalty law, and the instructions
given, violate the Eighth Amendment’s cruel and unusual punishment clause, the
Fourteenth Amendment’s due process clause, and apparently the Fifth Amendment’s due
process clause and the Sixth Amendment’s jury trial clause, by defining two of the
penalty factors in terms of “[w]hether or not the offense was committed while the
defendant was under the influence of extreme mental or emotional disturbance” (§ 190.3,
70
factor (d), italics added) and “[w]hether or not at the time of the offense the capacity of
the defendant to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or defect, or the affects of
intoxication” (§ 190.3, factor (h), italics added). Defendant’s argument is to the effect
that the terms “extreme” and “impairment at the time of the offense” have a limiting
effect and therefore are at odds with the Eighth Amendment’s cruel and unusual
punishment clause and the Fourteenth Amendment’s due process clause, which as noted
generally require that the jury “not be precluded from considering, as a mitigating factor,
any aspect of a defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death” (Lockett v.
Ohio, supra, 438 U.S. at p. 604). But in People v. Brown, supra, 40 Cal.3d at pages 540–
541, we construed the death penalty law to allow just such consideration. The
instructions in the present case, as quoted above, were expressly in accord with these
requirements. Notwithstanding defendant’s complaint, there is no reasonable likelihood
that the jury understood or applied the terms “extreme” or “impairment at the time of the
offense” in isolation so as to preclude the jury from considering all that it was permitted
to consider in support of the penalty of life imprisonment without possibility of parole
rather than death. To the extent defendant argues that the term “extreme” is
impermissibly vague for purposes of the death penalty law and the instructions given, and
thus violates the Eighth Amendment’s cruel and unusual punishment clause and the
Fourteenth Amendment’s due process clause among other provisions, we found such an
argument unpersuasive in People v. Taylor (2001) 26 Cal.4th 1155, 1179, and adhere to
that position in the present case.
Fifth, defendant claims that the 1978 death penalty law, and the instructions given,
violate the Eighth Amendment’s cruel and unusual punishment clause, the Fourteenth
Amendment’s due process clause, the due process clauses of article I, sections 7 and 15,
and the cruel or unusual punishment clause of article I, section 17, by failing to establish
71
a presumption that life imprisonment without possibility of parole is the appropriate
penalty in any given case. In People v. Arias (1996) 13 Cal.4th 92, 190, we concluded in
effect that neither the United States nor the California Constitution requires such a
presumption. We adhere to that conclusion and on that basis reject defendant’s reliance
on the specific federal and state constitutional provisions he cites. Contrary to
defendant’s implication, Ring and Apprendi have no bearing on the conclusion we reach,
because, as explained above, they are inapplicable to the determination of penalty in a
capital case under California law.
Sixth, defendant claims that the 1978 death penalty law, and the instructions
given, violate the Fifth Amendment’s due process clause, the Eighth Amendment’s cruel
and unusual punishment clause, the Fourteenth Amendment’s due process clause, and,
apparently, the Sixth Amendment’s jury trial clause, to the extent the law allows the
admission, and the instructions allowed the consideration, of evidence of other violent
criminal activity that did not result in a conviction. In People v. Holt (1997) 15 Cal.4th
619, 701, we explicitly rejected a claim similar to defendant’s, impliedly concluding that
the Fifth, Sixth, Eighth, and/or Fourteenth Amendments do not prohibit the admission or
consideration of such evidence. Presented with no reason to do otherwise, we adhere to
that conclusion and therefore reject defendant’s argument.
P. Cumulative Error
Defendant contends that all of the errors assertedly committed at the penalty phase
retrial, considered together, require reversal of the judgment, because they cumulatively
resulted in prejudicial violations of both the United States and California Constitutions —
specifically, the cruel and unusual punishment clause of the Eighth Amendment and the
due process and equal protection clauses of the Fourteenth Amendment, as well as the
due process clauses of article I, sections 7 and 15, the equal protection clause of article I,
section 7, and the cruel or unusual punishment clause of article I, section 17.
72
With only one exception, we have rejected all of defendant’s claims of error. With
respect to the claim that the trial court erred in failing to instruct the jury on penetration
as an element of rape and sodomy in connection with defendant’s lingering doubt claim,
we have assumed, without deciding, that the failure was error, and have found that any
error in this regard was harmless beyond a reasonable doubt. (Ante, pp. 59-60.) Because
there is no additional error to “cumulate” with that determination, defendant’s claim of
cumulative error is clearly without merit.
III. DISPOSITION
For the reasons stated above, the judgment is affirmed.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
73
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Griffin
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S029174
Date Filed: July 19, 2004
__________________________________________________________________________________
Court: Superior
County: Fresno
Judge: James L. Quaschnick
__________________________________________________________________________________
Attorneys for Appellant:
Lynne S. Coffin, State Public Defender, under appointment by the Supreme Court, Donald J. Ayoob, Assistant State
Public Defender, Mary K. McComb and Manuel J. Baglanis, Deputy State Public Defenders, for Defendant and
Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant
Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and
Respondent.
74
Counsel who argued in Supreme Court (not intended for publication with opinion):
Donald J. Ayoob
Assistant State Pubic Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
George M. Hendrickson
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5270
75
Opinion Information
| Date: | Docket Number: |
| Mon, 07/19/2004 | S029174 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Sacramento Office George Hendrickson, Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Griffin, Donald (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sf Donald Ayoob, Assistant State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| 3 | Griffin, Donald (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Michael Laurence, Executive Director 303 Second Street, Suite 400 South San Francisco, CA |
| 4 | Griffin, Donald (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sac Mary McComb, Deputy State Public Defender 801 "K" Street, Suite 1100 Sacramento, CA |
| Disposition | |
| Jul 19 2004 | Opinion: Affirmed |
| Dockets | |
| Sep 22 1992 | Judgment of death |
| Oct 9 1992 | Filed certified copy of Judgment of Death Rendered 9-22-92. |
| Oct 22 1992 | Application for Extension of Time filed By Court Reporters Renee Torres and Lisa Ortez to Complete R.T. |
| Oct 26 1992 | Extension of Time application Granted To Court Reporters (Torres and Ortez) To 11-23-92 To Complete R.T. |
| Oct 27 1992 | Application for Extension of Time filed By Court Reporter Valerie Faust to Complete R.T. |
| Oct 28 1992 | Extension of Time application Granted To Court Reporter (Valerie Faust) To 11-6-92 To Complete R.T. |
| Nov 2 1992 | Application for Extension of Time filed By Court Reporter Vicki Vaughan to Complete R.T. |
| Nov 4 1992 | Extension of Time application Granted To Court Reporter (Vaughan) To 12-1-92 To Complete R.T. |
| Sep 28 1995 | Order appointing State Public Defender filed to represent appellant on his automatic appeal, including any related habeas proceedings. |
| Nov 6 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Nov 13 1995 | Extension of Time application Granted To Applt To 1-8-96 To request Corr. of Record. |
| Jan 8 1996 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jan 11 1996 | Extension of Time application Granted To Applt To 3-8-96 To request Corr. of Record. |
| Mar 4 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 7 1996 | Extension of Time application Granted To Applt To 5-7-96 To request Corr. of Record. |
| May 2 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 8 1996 | Extension of Time application Granted To Applt To 7-8-96 To request Corr. of Record. |
| Jul 3 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 15 1996 | Extension of Time application Granted To Applt To 9-6-96 To request Corr. of Record. |
| Sep 4 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 6 1996 | Extension of Time application Granted To Applt To 11-5-96 To request Corr. of Record. |
| Nov 1 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 8 1996 | Extension of Time application Granted To Applt To 1-6-97 To request Corr. of Record. |
| Dec 31 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jan 6 1997 | Extension of Time application Granted To Applt To 3-7-97 To request Corr. of Record. |
| Mar 5 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 7 1997 | Extension of Time application Granted To Applt To 5-6-97 To request correction of the Record. no further Extensions of time Are Contemplated. |
| May 2 1997 | Application for Extension of Time filed By Applt to request correction of Record. |
| May 7 1997 | Extension of Time application Granted To Applt To 6-5-97 To request Corr. of Record. no further Extensions of time will be Granted. |
| Jun 16 1997 | Received: Copy of Applt's motion to correct, Augment & Settle the Record (28 Pp.) |
| Aug 4 1999 | Record on appeal filed C-36 (9,943 pages) and R-57 (4,651 pages) (Including Material Under Seal); Clerk's Transcripts include 2,611 pages of Juror Questionnaires. |
| Aug 4 1999 | Appellant's opening brief letter sent, due: 9/13/99 |
| Sep 13 1999 | Application for Extension of Time filed To file Aob. |
| Sep 14 1999 | Extension of Time application Granted To 11/12/99 To file Aob. |
| Nov 9 1999 | Application for Extension of Time filed To file Aob. |
| Nov 12 1999 | Extension of Time application Granted To 1/11/2000 To file Aob. |
| Jan 7 2000 | Application for Extension of Time filed To file Aob. |
| Jan 12 2000 | Extension of Time application Granted To 3/13/2000 To file Aob. |
| Mar 9 2000 | Application for Extension of Time filed To file Aob. |
| Mar 15 2000 | Extension of Time application Granted To 5/12/2000 To file Aob. |
| May 10 2000 | Application for Extension of Time filed To file Aob. |
| May 10 2000 | Filed: Applic for permission to correct and Settle the Record After certification and to Ingross the Record on Appeal with the Settled Statement. |
| May 15 2000 | Extension of Time application Granted To 7/11/2000 To file Aob. |
| May 25 2000 | Filed: Resp's Opposition to motion to Add to the Record. |
| Jun 5 2000 | Filed: Applt's response to Opposition to Applt's Applic for permission to Corr. and Settle Record After Cert. and to Engross with the Settled Statement. |
| Jul 7 2000 | Application for Extension of Time filed To file AOB. |
| Jul 7 2000 | Counsel's status report received (confidential) |
| Jul 12 2000 | Extension of Time application Granted To 9/11/2000 to file AOB. |
| Aug 30 2000 | Counsel's status report received (confidential) |
| Sep 1 2000 | Application for Extension of Time filed To file AOB. (7th request) |
| Sep 8 2000 | Extension of Time application Granted To 11/13/2000 to file AOB. |
| Oct 31 2000 | Counsel's status report received (confidential) |
| Nov 3 2000 | Application for Extension of Time filed To file AOB. (8th request) |
| Nov 15 2000 | Extension of Time application Granted To 1/12/2001 to file AOB. |
| Dec 20 2000 | Record correction granted In the matter of People v. Donald Griffin (S029174), on 5/10/2000, applt filed an "Application for permission to correct and settle the record after certification and to engross the record on appeal with the settled statement." Applt's request to correct the reporter's transcript at page 24, as described in applt's application, is granted. Applt's request to augment the record on appeal with a settled statement, as described in applt's application, is denied. |
| Dec 28 2000 | Order filed: The order filed in the above matter on 12-20-2000, is amended to read as follows: In the matter of People v. Donald Griffin (S029174), on 5-10-2000, applt filed an "Application for permission to correct and settle the record after certification and to engross the record on appeal with the settled statement." Applt's request to correct the reporter's transcript at page 2294, as described in applt's application, is granted. Applt's request to augment the record on appeal with a settled statement, as described in applt's application, is denied. |
| Dec 29 2000 | Counsel's status report received (confidential) from State P.D. |
| Jan 5 2001 | Application for Extension of Time filed To file AOB. (9th request) |
| Jan 9 2001 | Order filed: In the matter of People v. Donald Griffin (S029174), on May 10, 2000, appellant filed an "Application for permission to correct and settle the record after certification and to engross the record on appeal with the settled statement." Appellant's request to correct the reporter's transcript at page 24, as described in appellant's application, is granted. Appellant's request to augment the record on appeal with a settled statement, as described in appellant's application, is denied. |
| Jan 10 2001 | Extension of Time application Granted To 3/13/2001 to file AOB. No further ext. of time are contemplated. |
| Mar 6 2001 | Counsel's status report received (confidential) from State P.D. |
| Mar 7 2001 | Application for Extension of Time filed to file AOB. (10th request) |
| Mar 15 2001 | Extension of Time application Granted to 5-14-2001 to file AOB. No further extensions of time are contemplated. |
| May 7 2001 | Application for Extension of Time filed To file AOB. (11th request) |
| May 10 2001 | Extension of Time application Granted To 6/13/2001 to file AOB. No further extentions of time are contemplated. |
| May 25 2001 | Counsel's status report received (confidential) from State P.D. |
| Jun 1 2001 | Application for Extension of Time filed To file AOB. (12th request) |
| Jun 11 2001 | Extension of Time application Granted to 7/13/2001 to file AOB. No further extensions of time are contemplated. |
| Jul 13 2001 | Appellant's opening brief filed (269 pp.) |
| Jul 20 2001 | Counsel's status report received (confidential) |
| Aug 10 2001 | Application for Extension of Time filed To file resp.'s brief. (1st request) |
| Aug 14 2001 | Extension of Time application Granted To 10/11/2001 to file resp.'s brief. |
| Sep 24 2001 | Counsel's status report received (confidential) |
| Oct 10 2001 | Counsel's status report received (confidential) |
| Oct 12 2001 | Application for Extension of Time filed To file resp.'s brief. (2nd request) |
| Oct 19 2001 | Extension of Time application Granted To 12/10/2001 to file resp.'s brief. |
| Nov 21 2001 | Counsel's status report received (confidential) (supplemental) from State P.D. |
| Dec 7 2001 | Request for extension of time filed To file resp.'s brief. (3rd request) |
| Dec 10 2001 | Counsel's status report received (confidential) from State P.D. |
| Dec 13 2001 | Extension of time granted To 2/8/2002 to file resp.'s brief. Dep. AG Hendrickson anticipates filing the brief by 4/12/2002. Only one further extension totaling 63 additional days is contemplated. |
| Feb 13 2002 | Counsel's status report received (confidential) from State P.D. |
| Feb 15 2002 | Request for extension of time filed To file resp.'s brief. (4th request) |
| Feb 20 2002 | Extension of time granted To 4/12/2002 to file resp.'s brief. Dep. AG Hendrickson anticipates filing the brief by 4/12/2002. No further extension is contemplated. |
| Apr 9 2002 | Request for extension of time filed To file resp.'s brief. (5th request) |
| Apr 15 2002 | Counsel's status report received (confidential) |
| Apr 16 2002 | Extension of time granted To 5/13/2002 to file resp.'s brief. Dep. Atty. General Hendrickson anticipates filing the brief by 5/13/2002. After that date, no further extension will be granted. |
| May 13 2002 | Respondent's brief filed (248 pp.) |
| Jun 4 2002 | Request for extension of time filed To file reply brief. (1st request) |
| Jun 10 2002 | Extension of time granted To 8/2/2002 to file reply brief. The court anticipates that after that date, only three further extensions totaling 150 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule. |
| Jun 14 2002 | Counsel's status report received (confidential) |
| Aug 8 2002 | Request for extension of time filed To file appellant's reply brief. (2nd request) |
| Aug 13 2002 | Extension of time granted To 10/1/2002 to file appellant's reply brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule. |
| Aug 15 2002 | Counsel's status report received (confidential) |
| Sep 25 2002 | Request for extension of time filed To file appellant's reply brief. (3rd request) |
| Oct 1 2002 | Extension of time granted To 12/2/2002 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule. |
| Oct 16 2002 | Counsel's status report received (confidential) |
| Nov 26 2002 | Request for extension of time filed To file appellant's reply brief. (4th reqeust) |
| Dec 6 2002 | Extension of time granted To 2/3/3003 to file appellant's reply brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet this schedule. |
| Dec 16 2002 | Counsel's status report received (confidential) |
| Jan 27 2003 | Request for extension of time filed to file appellant's reply brief. (5th reqeust) |
| Jan 30 2003 | Extension of time granted to 3-5-2003 to file AOB. After that date, no further extension will be granted. Extension granted based upon Asst. State P.D. Donald Ayoob's representation that he anticipates filing AOB by 3-5-2003. |
| Feb 14 2003 | Counsel's status report received (confidential) |
| Mar 5 2003 | Appellant's reply brief filed (130 pp.) |
| Apr 17 2003 | Counsel's status report received (confidential) from State P.D. |
| Jun 13 2003 | Counsel's status report received (confidential) |
| Jul 18 2003 | Filed: appellant's motion to file motion for blood test under seal. (received motion for blood test under separate cover.) |
| Jul 29 2003 | Opposition filed by respondent to appellant's motion to file motion (for blood test) under seal. |
| Aug 11 2003 | Motion to unseal record filed (AA) Motion by appellant to unseal transcript of hearing held on 1/8/1992. |
| Aug 12 2003 | Counsel's status report received (confidential) |
| Aug 13 2003 | Motion for discovery filed (in AA proceeding) appellant's motion for post-conviction discovery. |
| Aug 13 2003 | Application to file document under seal denied Appellant's "Motion to File Motion for Blood Test Under Seal," filed on July 18, 2003, is denied. (See Cal. Rules of Court, rule 243.1(c), (d).) The clerk is directed to return, unfiled, appellant's "Ex Parte Motion for Blood Test of Petitioner," lodged conditionally under seal on July 18, 2003. |
| Aug 14 2003 | Filed: supplemental declaration of service by mail of motion for post-conviction discovery. |
| Aug 27 2003 | Record ordered unsealed Appellant's "Motion to Unseal Trial Transcript," filed on August 8, 2003, is granted. The clerk is directed to unseal pages 18-39 of "Reporter's Transcript on Appeal: February 4, 1991 [and] January 8, 1992," and to provide a copy to appellant and a copy to respondent. Werdegar, J., was absent and did not participate. |
| Sep 2 2003 | Related habeas corpus petition filed (concurrent) No. S118650 |
| Sep 8 2003 | Request for extension of time filed by respondent to file response to motion for post-conviction discovery. (1st request) |
| Sep 11 2003 | Extension of time granted to respondent to 10-2-2003 to file a response to appellant's motion for post-conviction discovery. |
| Oct 2 2003 | Filed: "Response to Motion for Post-Conviction Discovery." |
| Oct 14 2003 | Filed: "Reply to Response to Motion for Post-Conviction Discovery." |
| Mar 15 2004 | Exhibits requested People's 3 and 4 (photographs). |
| Mar 18 2004 | Exhibit(s) lodged People's 3 and 4. |
| Mar 22 2004 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the May calendars, to be held in San Francisco the week of May 3 and also the week of May 24, 2004. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument. |
| Apr 6 2004 | Case ordered on calendar 5-6-04, 1:30pm. S.F. |
| Apr 12 2004 | Filed letter from: Appellant's counsel, dated 4/9/2004, re focus issues for oral argument. |
| Apr 14 2004 | Discovery motion denied The motion for postconviction discovery, filed on August 13, 2003, is denied. Denial is without prejudice to filing or refiling motions pursuant to Penal Code section 1054.9 and In re Steele (2004) 32 Cal.4th 682 in superior court. |
| Apr 16 2004 | Filed letter from: Respondent's counsel, dated 4/14/2004, re focus issues for oral argument. |
| Apr 29 2004 | Request for judicial notice denied Appellant's request for judicial notice (or alternatively to expand the record on appeal) set forth in Appellant's Opening Brief, page 232, footnote 61, is denied. |
| Apr 29 2004 | Order filed Appellant's request for judicial notice (or alternatively to expand the record on appeal) set forth in Appellant's Opening Brief, page 232, footnote 61 is denied. |
| May 6 2004 | Cause argued and submitted |
| Jul 19 2004 | Opinion filed: Judgment affirmed in full Majority Opinion by George, CJ. ----- Joined by Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Aug 26 2004 | Remittitur issued (AA) |
| Aug 26 2004 | Exhibit(s) returned to Fresno County Superior Court, People's 3 and 4. |
| Aug 26 2004 | Order filed (150 day statement) |
| Sep 7 2004 | Received: Acknowledgment of receipt of remittitur. |
| Sep 20 2004 | Received: acknowledgment of receipt of exhibits. |
| Nov 19 2008 | Motion filed (AA) Motion for the appointment of associate counsel (Habeas Corpus Resource Center) (for all evidentiary proceedings; see In re Griffin on Habeas Corpus, S118650) |
| Dec 10 2008 | Order appointing Habeas Corpus Resource Center filed Good cause appearing, the application of appointed counsel State Public Defender for the appointment of associate counsel, filed November 19, 2008, is granted. The Habeas Corpus Resource Center is hereby appointed as associate counsel of record to represent petitioner Donald Griffin for all matters related to petitioner's pending evidentiary hearing pursuant to this Court's issuance of an order to show cause returnable in the Fresno Superior Court (see In re Donald Griffin on Habeas Corpus, S118650). |
| Briefs | |
| Jul 13 2001 | Appellant's opening brief filed |
| May 13 2002 | Respondent's brief filed |
| Mar 5 2003 | Appellant's reply brief filed |
