Supreme Court of California Justia
Docket No. S029174
People v. Griffin

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, 07/19/2004S029174

Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
George Hendrickson, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Griffin, 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

3Griffin, 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

4Griffin, 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 2004Opinion: Affirmed

Dockets
Sep 22 1992Judgment of death
 
Oct 9 1992Filed certified copy of Judgment of Death Rendered
  9-22-92.
Oct 22 1992Application for Extension of Time filed
  By Court Reporters Renee Torres and Lisa Ortez to Complete R.T.
Oct 26 1992Extension of Time application Granted
  To Court Reporters (Torres and Ortez) To 11-23-92 To Complete R.T.
Oct 27 1992Application for Extension of Time filed
  By Court Reporter Valerie Faust to Complete R.T.
Oct 28 1992Extension of Time application Granted
  To Court Reporter (Valerie Faust) To 11-6-92 To Complete R.T.
Nov 2 1992Application for Extension of Time filed
  By Court Reporter Vicki Vaughan to Complete R.T.
Nov 4 1992Extension of Time application Granted
  To Court Reporter (Vaughan) To 12-1-92 To Complete R.T.
Sep 28 1995Order appointing State Public Defender filed
  to represent appellant on his automatic appeal, including any related habeas proceedings.
Nov 6 1995Application for Extension of Time filed
  By Applt to request correction of Record.
Nov 13 1995Extension of Time application Granted
  To Applt To 1-8-96 To request Corr. of Record.
Jan 8 1996Application for Extension of Time filed
  By Applt to request correction of Record.
Jan 11 1996Extension of Time application Granted
  To Applt To 3-8-96 To request Corr. of Record.
Mar 4 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 7 1996Extension of Time application Granted
  To Applt To 5-7-96 To request Corr. of Record.
May 2 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
May 8 1996Extension of Time application Granted
  To Applt To 7-8-96 To request Corr. of Record.
Jul 3 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 15 1996Extension of Time application Granted
  To Applt To 9-6-96 To request Corr. of Record.
Sep 4 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Sep 6 1996Extension of Time application Granted
  To Applt To 11-5-96 To request Corr. of Record.
Nov 1 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Nov 8 1996Extension of Time application Granted
  To Applt To 1-6-97 To request Corr. of Record.
Dec 31 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Jan 6 1997Extension of Time application Granted
  To Applt To 3-7-97 To request Corr. of Record.
Mar 5 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 7 1997Extension 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 1997Application for Extension of Time filed
  By Applt to request correction of Record.
May 7 1997Extension 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 1997Received:
  Copy of Applt's motion to correct, Augment & Settle the Record (28 Pp.)
Aug 4 1999Record 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 1999Appellant's opening brief letter sent, due:
  9/13/99
Sep 13 1999Application for Extension of Time filed
  To file Aob.
Sep 14 1999Extension of Time application Granted
  To 11/12/99 To file Aob.
Nov 9 1999Application for Extension of Time filed
  To file Aob.
Nov 12 1999Extension of Time application Granted
  To 1/11/2000 To file Aob.
Jan 7 2000Application for Extension of Time filed
  To file Aob.
Jan 12 2000Extension of Time application Granted
  To 3/13/2000 To file Aob.
Mar 9 2000Application for Extension of Time filed
  To file Aob.
Mar 15 2000Extension of Time application Granted
  To 5/12/2000 To file Aob.
May 10 2000Application for Extension of Time filed
  To file Aob.
May 10 2000Filed:
  Applic for permission to correct and Settle the Record After certification and to Ingross the Record on Appeal with the Settled Statement.
May 15 2000Extension of Time application Granted
  To 7/11/2000 To file Aob.
May 25 2000Filed:
  Resp's Opposition to motion to Add to the Record.
Jun 5 2000Filed:
  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 2000Application for Extension of Time filed
  To file AOB.
Jul 7 2000Counsel's status report received (confidential)
 
Jul 12 2000Extension of Time application Granted
  To 9/11/2000 to file AOB.
Aug 30 2000Counsel's status report received (confidential)
 
Sep 1 2000Application for Extension of Time filed
  To file AOB. (7th request)
Sep 8 2000Extension of Time application Granted
  To 11/13/2000 to file AOB.
Oct 31 2000Counsel's status report received (confidential)
 
Nov 3 2000Application for Extension of Time filed
  To file AOB. (8th request)
Nov 15 2000Extension of Time application Granted
  To 1/12/2001 to file AOB.
Dec 20 2000Record 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 2000Order 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 2000Counsel's status report received (confidential)
  from State P.D.
Jan 5 2001Application for Extension of Time filed
  To file AOB. (9th request)
Jan 9 2001Order 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 2001Extension of Time application Granted
  To 3/13/2001 to file AOB. No further ext. of time are contemplated.
Mar 6 2001Counsel's status report received (confidential)
  from State P.D.
Mar 7 2001Application for Extension of Time filed
  to file AOB. (10th request)
Mar 15 2001Extension of Time application Granted
  to 5-14-2001 to file AOB. No further extensions of time are contemplated.
May 7 2001Application for Extension of Time filed
  To file AOB. (11th request)
May 10 2001Extension of Time application Granted
  To 6/13/2001 to file AOB. No further extentions of time are contemplated.
May 25 2001Counsel's status report received (confidential)
  from State P.D.
Jun 1 2001Application for Extension of Time filed
  To file AOB. (12th request)
Jun 11 2001Extension of Time application Granted
  to 7/13/2001 to file AOB. No further extensions of time are contemplated.
Jul 13 2001Appellant's opening brief filed
  (269 pp.)
Jul 20 2001Counsel's status report received (confidential)
 
Aug 10 2001Application for Extension of Time filed
  To file resp.'s brief. (1st request)
Aug 14 2001Extension of Time application Granted
  To 10/11/2001 to file resp.'s brief.
Sep 24 2001Counsel's status report received (confidential)
 
Oct 10 2001Counsel's status report received (confidential)
 
Oct 12 2001Application for Extension of Time filed
  To file resp.'s brief. (2nd request)
Oct 19 2001Extension of Time application Granted
  To 12/10/2001 to file resp.'s brief.
Nov 21 2001Counsel's status report received (confidential)
  (supplemental) from State P.D.
Dec 7 2001Request for extension of time filed
  To file resp.'s brief. (3rd request)
Dec 10 2001Counsel's status report received (confidential)
  from State P.D.
Dec 13 2001Extension 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 2002Counsel's status report received (confidential)
  from State P.D.
Feb 15 2002Request for extension of time filed
  To file resp.'s brief. (4th request)
Feb 20 2002Extension 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 2002Request for extension of time filed
  To file resp.'s brief. (5th request)
Apr 15 2002Counsel's status report received (confidential)
 
Apr 16 2002Extension 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 2002Respondent's brief filed
  (248 pp.)
Jun 4 2002Request for extension of time filed
  To file reply brief. (1st request)
Jun 10 2002Extension 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 2002Counsel's status report received (confidential)
 
Aug 8 2002Request for extension of time filed
  To file appellant's reply brief. (2nd request)
Aug 13 2002Extension 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 2002Counsel's status report received (confidential)
 
Sep 25 2002Request for extension of time filed
  To file appellant's reply brief. (3rd request)
Oct 1 2002Extension 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 2002Counsel's status report received (confidential)
 
Nov 26 2002Request for extension of time filed
  To file appellant's reply brief. (4th reqeust)
Dec 6 2002Extension 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 2002Counsel's status report received (confidential)
 
Jan 27 2003Request for extension of time filed
  to file appellant's reply brief. (5th reqeust)
Jan 30 2003Extension 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 2003Counsel's status report received (confidential)
 
Mar 5 2003Appellant's reply brief filed
  (130 pp.)
Apr 17 2003Counsel's status report received (confidential)
  from State P.D.
Jun 13 2003Counsel's status report received (confidential)
 
Jul 18 2003Filed:
  appellant's motion to file motion for blood test under seal. (received motion for blood test under separate cover.)
Jul 29 2003Opposition filed
  by respondent to appellant's motion to file motion (for blood test) under seal.
Aug 11 2003Motion to unseal record filed (AA)
  Motion by appellant to unseal transcript of hearing held on 1/8/1992.
Aug 12 2003Counsel's status report received (confidential)
 
Aug 13 2003Motion for discovery filed (in AA proceeding)
  appellant's motion for post-conviction discovery.
Aug 13 2003Application 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 2003Filed:
  supplemental declaration of service by mail of motion for post-conviction discovery.
Aug 27 2003Record 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 2003Related habeas corpus petition filed (concurrent)
  No. S118650
Sep 8 2003Request for extension of time filed
  by respondent to file response to motion for post-conviction discovery. (1st request)
Sep 11 2003Extension of time granted
  to respondent to 10-2-2003 to file a response to appellant's motion for post-conviction discovery.
Oct 2 2003Filed:
  "Response to Motion for Post-Conviction Discovery."
Oct 14 2003Filed:
  "Reply to Response to Motion for Post-Conviction Discovery."
Mar 15 2004Exhibits requested
  People's 3 and 4 (photographs).
Mar 18 2004Exhibit(s) lodged
  People's 3 and 4.
Mar 22 2004Oral 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 2004Case ordered on calendar
  5-6-04, 1:30pm. S.F.
Apr 12 2004Filed letter from:
  Appellant's counsel, dated 4/9/2004, re focus issues for oral argument.
Apr 14 2004Discovery 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 2004Filed letter from:
  Respondent's counsel, dated 4/14/2004, re focus issues for oral argument.
Apr 29 2004Request 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 2004Order 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 2004Cause argued and submitted
 
Jul 19 2004Opinion filed: Judgment affirmed in full
  Majority Opinion by George, CJ. ----- Joined by Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Aug 26 2004Remittitur issued (AA)
 
Aug 26 2004Exhibit(s) returned
  to Fresno County Superior Court, People's 3 and 4.
Aug 26 2004Order filed (150 day statement)
 
Sep 7 2004Received:
  Acknowledgment of receipt of remittitur.
Sep 20 2004Received:
  acknowledgment of receipt of exhibits.
Nov 19 2008Motion 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 2008Order 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 2001Appellant's opening brief filed
 
May 13 2002Respondent's brief filed
 
Mar 5 2003Appellant's reply brief filed
 
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