Filed 3/2/06
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S036864
v.
JOSE FRANCISCO GUERRA,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. SA004990
This is an automatic appeal (Pen. Code, § 1239, subd. (b))1 from a
judgment of death under the 1978 death penalty law. A jury convicted defendant
Jose Francisco Guerra of the first degree murder of Kathleen Powell. (§ 187,
subd. (a).) The jury found true the special-circumstance allegation that defendant
murdered Powell while engaged in the attempted commission of rape (§ 190.2,
former subd. (a)(17)(iii), now subd. (a)(17)(C))2 and further found that defendant
personally used a deadly and dangerous weapon, a knife, to commit the murder
(§ 12022, former subd. (b), now subd. (b)(1)). After a penalty trial, the jury set the
penalty at death. (§ 190.1 et seq.) The trial court denied defendant’s motions for
1
All further statutory references are to the Penal Code unless otherwise
indicated.
2
During pretrial proceedings, the trial court granted defendant’s request to
strike the special-circumstance allegations that the murder was committed while
lying in wait (§ 190.2, subd. (a)(15)) and during the commission of a burglary (§
190.2, former subd. (a)(17)(vii), now subd. (a)(17)(G)).
1
new trial (§ 1181) and to modify the penalty verdict (§ 190.4, subd. (e)) and
sentenced defendant to death. This appeal is automatic.
We affirm the judgment.
I. FACTS
A. Guilt Phase
1. The Prosecution’s Case
In October 1990, Kathleen Powell lived with her boyfriend, Charles Sims,
on Kirkside Road in Los Angeles. The house next door to Powell’s residence was
being remodeled. Defendant was a construction worker at the remodeling site.
On October 25, 1990, around 7:15 p.m., Sims arrived home and found
Powell’s body lying on the utility room floor in a pool of blood with a knife on top
of her chest. The utility room extended from the kitchen and had a door to the
backyard.
Earlier in the morning, around 10:00 a.m., Powell beckoned to Odell
Braziel, one of the workers at the construction site, to come to her house. Powell
had hired Braziel about a week before the murder to repair some dents in her car
and detail it. Thereafter, Powell occasionally had given him food and beverages
as well as plates of sandwiches to share with the other construction workers.
When Braziel reached Powell’s house, she said, “I have a problem. I can’t keep
feeding all these people. You, I don’t mind, you’re working on my car,” but “I got
a problem with Francisco [defendant, Jose Francisco]. I can’t keep him away
from my house.” Braziel suggested that she tell Sims or the contractor, or call the
police. During their conversation, defendant walked into Powell’s house through
the utility room door and into the kitchen. The conversation ended, and as Braziel
left, Powell asked him to take defendant back to the remodeling site. When he
2
returned to the site, Braziel informed Al Canale, an electrical contractor, of
Powell’s complaint.
After lunch, defendant asked Braziel to buy him a quart of beer. Braziel
returned shortly thereafter with the beer, found defendant standing on Powell’s
back patio, and gave him the beer. Around 2:30 p.m., Eric Sloane, the site
manager, arrived at the remodeling site. Sloane testified that Braziel had
complained that defendant was “pestering” Powell and spent considerable time at
her house during the day. As Sloane walked around the site looking for defendant,
he heard the gate to Powell’s backyard close and observed defendant emerge from
a hedge dividing the two houses. When Sloane asked defendant what he was
doing on Powell’s property, he noticed defendant’s eyes were bloodshot and his
breath carried a strong odor of alcohol. Sloane asked defendant whether he had
been drinking, and defendant said that he had been robbed of his life savings the
previous night. He apologized to Sloane and assured him that he would not go to
Powell’s property again. After his encounter with Sloane, defendant told Braziel,
“Forget you see me there.”
Shortly thereafter, Braziel found defendant on Powell’s back patio. Braziel
testified he tried to persuade defendant to leave, but defendant gyrated his hips “in
a sexual way” and repeated, “Kathy for me, me for Kathy.” Braziel demonstrated
defendant’s movement for the jury by simultaneously gyrating the lower portion
of his body and thrusting his hips forward. Braziel observed defendant step
through the patio sliding glass door and go about three feet into Powell’s den just
as the telephone rang. Powell answered the telephone in the front part of the
house.
Octave Semere, a coworker of Powell’s, testified that sometime between
3:00 p.m. and 3:30 p.m., he telephoned Powell. While speaking to Powell, he
could hear Powell’s sliding glass door open and close. Powell hollered for “Jose”
3
to get out of the house and asked Semere whether he knew how to say “get out” in
Spanish, but he did not. Semere heard a second person enter through Powell’s
sliding glass doors and heard a man’s voice say to her in English that, “this guy
Jose is crazy” and “not to trust him.” He then heard Powell tell a third person who
had come through the sliding glass door to get out of her house.
Meanwhile, in Powell’s den, Braziel told defendant that Powell was just
friendly and did not like him romantically. Defendant repeated “Kathy-me, me-
Kathy” and continued to gyrate his hips. A few days earlier, while sitting around
with several coworkers, defendant had made similar statements and gyrations and
used the Spanish word “panocha,” a slang term for female genitalia, in reference
to Powell. Braziel believed defendant was drunk because he slurred his words,
had a strong odor of alcohol on his breath, and had difficulty standing. Powell
then called out, “Francisco, why don’t you go to work? Why don’t you find
something to do?” and indicated, with a “shooing” motion, for Braziel to leave and
take defendant with him. According to Braziel, she “begged” him to take
defendant back to the jobsite. Braziel warned Powell that she should “watch out”
for defendant and lock her door. He then returned to the jobsite with defendant.
Braziel testified that Powell had arranged to take him to her friend’s house
in the evening to work on the friend’s car. Powell had told him she was going to
take a nap and asked him to wake her up at 4:00 p.m. by tapping on her back
window. When Braziel woke Powell from her nap, she said, “Francisco was in
my house when I was asleep, and my door was open.” Braziel asked her how she
knew defendant was there, and she explained, “I know. I know. I could feel him.
I know he was there. I locked my doors and I woke up, my doors were open.”
Braziel returned to the jobsite and informed Canale about Powell’s fear that
defendant had been in her house. Canale testified that sometime after this
conversation, he was working on an electrical panel about 12 to 15 feet away from
4
Powell’s utility room. Through the utility room window, he observed defendant
standing in the utility room near the opened door leading to the backyard.
Defendant was drinking a brown substance from a glass that Canale believed was
Jack Daniels whiskey based on the odor of alcohol emanating from the utility
room. Defendant walked in and out of Powell’s utility room several times.
John Romanak, an electrical contractor, testified that he arrived at the
remodeling site between 4:15 p.m. and 4:30 p.m. Canale informed him that
defendant had been drinking and was bothering Powell. Defendant then staggered
out of the kitchen and asked, “Que pasa?” Canale understood the phrase to mean,
“What’s happening?” and responded, “Nada, ” meaning “nothing.” Defendant
emitted a strong odor of alcohol. Romanak commented, “What’s wrong with this
guy? He seems awful uptight.” Romanak suggested they put away their tools and
leave for the day. Braziel put his tools away and met Powell in front of her house.
After he got into her car, defendant approached Powell on the driver’s side,
reached for the upper back of the driver’s seat with his right hand, and
simultaneously leaned his upper body and head into her car, possibly as if to kiss
her. Defendant said something in Spanish to Powell, but Braziel did not
understand him. Powell “jerked back” away from defendant and towards the
passenger seat. She said she was afraid and would start locking her doors.
Susan Michel, Powell’s neighbor, testified that sometime after 4:00 p.m.,
she observed defendant as she walked by the remodeling site. He asked her
whether she had come from Powell’s house. Michel answered, no, that she lived
on the corner.
Powell and Braziel arrived at Ayshea Levy’s house shortly before 5:00 p.m.
so Braziel could detail Levy’s car. Powell left 10 to 15 minutes later. After
Braziel completed his work on Levy’s car around 7:30 p.m., Levy’s gardener,
Roberto Gonzalez, gave him a ride to the intersection of Pico and La Brea.
5
Powell was scheduled to begin her work shift at 7:00 p.m. Around 7:15
p.m., Sims found Powell dead in their utility room and called 911.
Los Angeles Police Detective Kurt Wachter found Powell’s purse in her car
with the keys in the ignition. Powell’s wallet was on the bar area of her house.
The knife on Powell’s chest matched the knife set in Powell’s kitchen. The door
leading from the utility room into Powell’s backyard was locked with a key-to-key
deadbolt. The side door to the house being remodeled was ajar.
Several of defendant’s fingerprints and his bloody palm print were found
on the walls of Powell’s utility room, and his bloody palm print was found on the
kitchen counter of the house being remodeled. Blood samples collected from the
wall bearing the palm print in Powell’s utility room and the fence separating
Powell’s front and backyards were consistent with Powell’s blood type, as were
blood samples collected from the kitchen counter and a telephone in the house
being remodeled. A throw rug in Powell’s kitchen contained a bloody shoe print
that had the same lug-sole pattern as a bloody shoe print on the dining room carpet
in the house being remodeled. The pattern may have been of a work boot.
Detective Wachter, assisted by Officer Sergio Guzman who acted as
translator, interviewed defendant on October 26, 1990, before his arrest on the
same day. Defendant denied that he knew Powell until he was shown her
photograph. He denied having had any contact with Powell and said that he had
never been in her yard or house. Defendant stated that he arrived at home by 5:30
p.m. the day Powell was murdered. He consented to a search of his apartment and
gave the officers the clothes and cowboy boots that he said he wore that day. The
clothing was freshly laundered and folded in the closet. The clothes and boots
contained no blood.
The Los Angeles County Deputy Medical Examiner, Irwin Golden,
determined that Powell died from numerous fatal stab wounds to her upper body
6
and multiple “through-and-through” stab wounds to her neck. Dr. Golden
observed several small poke wounds on her breasts, right front shoulder, and right
back shoulder; a slicing or slashing wound on each breast; and defensive wounds
on her arms and hands. He testified the poke wounds were “very small, some
appeared to be triangular, some were lengthwise, and appeared to be just nicks of
the skin . . . compatible with the tip of a sharp instrument.” The poke wounds on
Powell’s breasts and right back shoulder were inflicted while she was alive. The
poke wounds on her right shoulder were inflicted at or near the time of death. The
knife that was found lying on her chest could have inflicted the stab wounds.
There was no vaginal trauma or other physical evidence of a sexual assault.
Powell was fully clothed in a blouse, brassiere, slacks, panties, and shoes.
Powell’s shirt contained multiple slits and cuts to the front, back, and sleeves. Her
panties were blood-soaked; but not cut or torn.
2. The Defense Case
Defendant testified in his own defense and denied killing Powell. He stated
that on the day of the murder, when defendant encountered Sloane near the
driveway between the two houses, he had been coming from the garage and not
the gate leading to Powell’s backyard. Defendant denied telling Sloane he had
been drinking and had been on Powell’s property. He could not recall whether he
told Sloane that he had recently been robbed.
Defendant testified he had three or four beers that day, but he did not tell
Braziel to buy him beer. The work crew left the jobsite at 4:30 p.m.. He was the
last worker to leave. Before he left, he decided to swim in the pool. He had
removed his shirt and boots when he heard screaming next door. Defendant
walked to Powell’s house, entered through the sliding glass back door, and found
Powell lying in a “little bit of blood.” He tried to lift her by her shoulders but saw
7
that she had “too many wounds” and laid her back down. Defendant put his hand
on the wall to balance himself as he stood. He returned to the jobsite and picked
up the telephone. Defendant did not know whom to call because he was scared,
and he did not know how to call 911. He washed up in the pool, redressed, and
walked to the bus stop around 5:40 p.m.
Defendant arrived home at 5:45 p.m. He called his wife but did not tell her
about the crime because he was afraid she would have been upset with him and
would “bawl [him] out or something.”
Defendant testified that he lied to police officers when they interviewed
him and denied he had been in Powell’s house because he thought he would be
beaten by officers. Defendant testified that in his native Guatemala, the police are
corrupt and often beat and torture people to obtain incriminating evidence. When
officers told defendant his fingerprints were on the wall near Powell’s body, he
told them he might have been in Powell’s house but was too drunk to remember.
A second pair of shoes taken from defendant’s apartment did not match the
shoe prints found at the crime scene or at the remodeling house.
3. Rebuttal Evidence
Defendant’s “wife,” Antonia Juventina Salguero,3 testified that he generally
wore tennis shoes to work. Defendant wore his brown boots only on special
occasions and never to work. Defendant told Salguero that he had taken off his
shoes and socks and went into the pool about 5:35 p.m. Defendant did not tell
Salguero that he went into Powell’s house until about five or six months after the
3
The trial court found the marital privilege did not apply because defendant
and Salguero had never been formally married.
8
murder. Salguero admitted that she would become angry when defendant helped
people and had threatened to leave him.
Manuel Paz, defendant’s nephew, told police that on the day of the murder,
defendant had arrived at his apartment about 6:30 p.m. and was drunk.
4. Surrebuttal Evidence
When defendant tried to help Powell, he touched a wall with his left hand.
He did not remember how he positioned himself around Powell’s body.
B. Penalty Phase
1. The Prosecution’s Evidence
The prosecution presented victim impact evidence through the testimony of
Powell’s father, Sims, and Powell’s ex-boyfriend, Hector Tobar.
The prosecution presented additional evidence of defendant’s conduct
involving force or threats of force. Angela Guerra de Maderos, who lived in a
small town in the Republic of Guatemala, testified that one evening around the
year 1986, she was walking home through the forest accompanied by 12-year-old
Edgar Ramirez. Defendant, whom she had known since he was born, jumped in
front of them, wielded a machete, and prevented them from going forward. He
wore a bandanna over his face. De Maderos ran into a field, and Ramirez ran to
de Maderos’s house for help. Defendant caught up with de Maderos and told her,
“You’re here with a guerilla. I am going to rape you and I’m going to kill you.”
Defendant kicked de Maderos, causing her to fall, and poked her throat with the
machete, causing numerous puncture marks. His bandanna fell off during the
struggle. Defendant left when de Maderos’s husband and son approached and
fired a shot. He left behind his machete sheath, with the initials F.G. De Maderos
did not report the attack to the police because she was afraid that they would not
investigate the incident and that defendant would kill her. The day after the attack,
9
defendant told Ramirez, “I did scare you yesterday, didn’t I?” Ramirez responded,
“How come you did that to us unjustly, unfairly, like that?” Defendant just
laughed and smiled at him.
2. The Defense Evidence
Defendant worked as a medic, police officer, and farmer in Guatemala. He
often helped his family and members of his community when they were sick,
injured, or hungry. He took injured people to the hospital, gave blood when
needed, and visited people by horseback to give them medical injections, when
needed.
Defendant’s wife, Salguero, testified that defendant was accused of
shooting someone whom he had tried to help. After this, Salguero told defendant
that if he continued to help people, she would no longer love him.
II. DISCUSSION
A. Pretrial and Jury Selection Issues
1. Denial of Funding Request for an Alcohol-induced
Electroencephalogram Test
Defendant contends the trial court erroneously denied his multiple requests
for funding to conduct an alcohol-induced electroencephalogram (EEG) test, thus
violating his statutory rights under section 987.9 and various state and federal
constitutional rights.4
4
Regarding this claim and most other claims raised on appeal, defendant also
argues that the asserted error or misconduct infringed various of his constitutional
rights to a fair and reliable trial. In most of those instances in which defendant
raised the issue at trial, he failed explicitly to make some or all of the
constitutional arguments he now urges on appeal. Unless otherwise indicated, the
appellate claim is of a kind that either required no action by defendant to preserve
it (e.g., an erroneous instruction affecting defendant’s substantial rights) or
involved application of the same facts or legal standards the defendant asked the
(Footnote continued on next page.)
10
a. Procedural Background
On three occasions, defendant sought funding to conduct an alcohol-
induced EEG on the basis that he may have suffered an alcohol-induced psychosis
or allergic reaction on the day of Powell’s murder due to his ingestion of alcohol,
and as a result was unable to form the requisite specific intent of the charged
offense. The court denied each request because it doubted whether the test results
would be admissible, whether the test could duplicate a person’s reactions to
alcohol on a previous occasion, and whether this particular test was the only test
that could determine allergic reactions to alcohol. The court noted that a defense
psychiatrist had already received $2000, and it approved 10 additional hours for
otherwise approved investigations.
b. Applicable Law
An indigent defendant has a statutory and constitutional right to ancillary
services reasonably necessary to prepare a defense. (§ 987.9, subd. (a);
Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320.) The defendant has
the burden of demonstrating the need for the requested services. (Corenevsky v.
Superior Court, supra, at p. 320.) The trial court should view a motion for
(Footnote continued from previous page.)
trial court to apply, accompanied by a new argument that the trial error or
misconduct had the additional legal consequence of violating the Constitution. To
that extent, defendant has not forfeited his new constitutional claims on appeal.
(See People v. Partida (2005) 37 Cal.4th 428, 433-439; see also People v. Cole
(2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003) 31 Cal.4th 93, 117-
118.) In the latter instance, except where we otherwise conclude, rejection, on the
merits, of a claim that the trial court erred on the issue actually before that court
necessarily leads to rejection of defendant’s newly asserted constitutional claim as
well. No separate constitutional discussion is required in such cases, and we
therefore provide none.
11
assistance with considerable liberality, but it should also order the requested
services only upon a showing they are reasonably necessary. (Ibid.) On appeal, a
trial court’s order on a motion for ancillary services is reviewed for abuse of
discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 234; Corenevsky v. Superior
Court, supra, at p. 321.) We find no such abuse in this case.
Defendant failed to demonstrate the test was reasonably necessary for his
defense. Counsel provided no facts showing defendant blacked out or suffered
any memory loss due to his ingestion of alcohol on the day Powell was murdered.
Thus, defendant’s assertion that he may have suffered a pathological reaction to
alcohol that induced a state of unconsciousness or amnesia on the day Powell was
murdered is mere speculation. Also, as the trial court noted, counsel failed to
establish how the proposed test conditions would duplicate the circumstances on
the day of the murder and yield relevant and reliable information. Indeed, counsel
provided no explanation for his request that defendant be administered tequila
during the test even though defendant admitted he drank beer on the day of the
murder.
Contrary to defendant’s argument, Ake v. Oklahoma (1985) 470 U.S. 68
does not compel a different conclusion. In Ake, the Supreme Court held an
indigent defendant is entitled to access to a psychiatrist for assistance in preparing
a defense when he makes a preliminary showing that his sanity at the time of the
offense is likely to be a significant factor at trial. (Id. at p. 83.) Defendant
presented no evidence that he suffered a pathological reaction to alcohol on the
day of Powell’s murder. The record shows defendant had access to a psychiatrist,
as Ake requires: a defense psychiatrist had received $2000 in court-approved
funds, and the trial court approved an additional 10 hours for further investigation.
Moreover, any error in denying defendant’s request for funds was harmless.
Defendant’s palm prints and fingerprints were found in Powell’s blood inside her
12
utility room and also on the countertop in the remodeling site. Defendant testified
he went inside Powell’s house when he heard screaming. He found Powell lying
in a “little bit of blood.” He tried to lift Powell by her shoulders but laid her back
down when he realized she was too severely injured. Defendant returned to the
remodeling site but did not call the police because he did not know how to dial
911. The level of detail in defendant’s rendition of the facts on the day of
Powell’s murder belies any claim that alcohol rendered him unconscious. In
addition, although defendant’s nephew and sister-in-law testified they had
observed defendant drink beer previously, there was no evidence that defendant
had ever suffered a psychotic or allergic reaction to alcohol. Accordingly,
defendant has failed to establish he was deprived of a fair trial or otherwise
suffered prejudice from the denial of his request for funds. (People v. Mendoza
(2000) 24 Cal.4th 130, 159.)
2. Suppression Motion
Defendant claims the trial court erred in denying his motion to suppress
statements he made during two police interviews and all evidence obtained as a
result of those interviews. He argues that his statements were involuntary.
a. Factual and Procedural Background
(1) The Interviews
(i) October 26, 1990 Interview
On October 26, 1990, Los Angeles Police Detectives Kurt Wachter and
Charlie Brown approached defendant at the office of his employer, D’Erections,
the company that was remodeling the house next door to Powell at the time of her
murder. Defendant spoke Spanish and not English, but another employee
translated for them. They asked defendant if he would accompany them to the
police station for questioning about a crime that was committed the previous day.
13
They said he was not under arrest and would not be handcuffed. Defendant
agreed. The detectives drove him, unhandcuffed, to the West Los Angeles police
station in an unmarked detective car and placed him, still unhandcuffed, in an
interrogation room. There, with Detective Sergio Guzman translating, Wachter
interviewed defendant. Defendant was concerned but calm. Throughout the
interview, all participants maintained a relatively conversational tone.
Wachter thanked defendant for coming to the station and advised him that
he was there voluntarily and not in custody or under arrest. He advised defendant
of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
When the translator asked defendant if he wanted to give up his right to remain
silent and speak with the detective, defendant answered, “Yes. Yes.” The
translator then asked him if he wanted to give up his right to speak with an
attorney and have one present during questioning. Defendant said he did not need
an attorney and did not have money to pay an attorney.
At Detective Wachter’s request, the translator again explained to defendant
his Miranda rights. The interview continued as follows:
“[Translator]: Okay, do you wish to give up the right to remain silent?
“[Defendant]: Yes.
“[Translator]: Do you wish to give up the right to speak an, with an
attorney ha… and to have him present during your questioning?
“[Defendant]: Okay.
“[Translator]: Okay. What is okay, what? That you don’t want the, the,
the, the attorney?
“[Defendant]: Uh, I, attorney, no, because I don’t have any money, right?
“[Translator]: I, I know, but also, one can be appointed [sic] for you
without cost before you are questioned.
“[Defendant]: And I don’t have to pay for him?
14
“[Translator]: Yes.
“[Defendant]: And I don’t pay? But since, since I don’t, I don’t have, uh, a
problem to, to have any attorney, I don’t [UI]5 that is I am, I am…
“[Translator]: [ENG] Yeah, I don’t have money for an attorney, but
however I have no problem. I, I have no… there is no problem going on with me
because, ‘cause I did nothing wrong or something so there’s no need for me
having an attorney.
“[Wachter]: Okay, just understand, uh, please make him understand that he
has to answer the question yes or no.
“[Translator]: [SPAN] Oh, okay, then, the thing is we need to know that
neither [sic] you say whether or not you want the attorney here before you are
questioned. And as I say, one can be appointed for you without cost before…
“[Defendant]: That, that is fine, well then, appoint one for me.
“[Translator]: Huh?
“[Defendant]: Well that is fine, for him to be appointed for me [UI] have
an attorney, right?
“[Translator]: Then, do you want an attorney?
“[Defendant]: Yes, I want an attorney.
“[Translator]: [ENG] He said, ‘Yes, I want an attorney.’
“[Wachter]: Okay, understand this, if he wants the attorney and doesn’t
wish to speak to us, then from the information that we have, he’s going to be
arrested for murder and we’ll book him into jail right now.
5
The transcript from this taped interview indicates that “UI” denotes an
“unintelligible” response. In addition, “ENG” indicates that the dialogue recorded
on the tape following this notation is in English until the notation “SPAN”
appears, after which the dialogue is in Spanish until the next ENG notation
appears. All of defendant’s statements are translations from Spanish.
15
“[Translator]: [SPAN] Okay, I want you to… the detective says that I
want, that it is, that you (should) know about this. Then if you want the attorney
here and you don’t want to speak to the detectives about yesterday’s case then I
want you to… they have enough in… information about what oc… occurred
yesterday…
“[Defendant]: Uh-huh.
“[Translator]: …that right now they are going to arrest you. They are
going to put you in jail for the, for the death of the lady [UI].
“[Defendant]: That is, the thing is, is that I didn’t understand you, right? I
understand you, right? That, well, if I ask for an attorney for myself, but since I’m
not guilty of anything, nor do I know, nor do I know what, what that is, then, I
need to speak to them. That they tell me, they tell me what, what…
“[Translator]: What? Speak with whom, then? The detectives?
“[Defendant]: With them, with them.
“[Translator]: That, that’s why I’m here. I, I [UI] am…
“[Defendant]: [UI]
“[Translator]: [UI]
“[Defendant]: Then [UI] rather speak with them and [UI].
“[Translator]: [UI] Spanish, that’s why I’m, I’m here helping you.
“[Defendant]: [UI] as I say, the thing is, I don’t, don’t know, I am, I don’t
know anything about that. Uh-huh.
“[Translator]: Don’t, don’t you know anything about what happened, it, of
what happened?
“[Defendant]: I don’t know, I don’t know because I, I go in to work, uh, at
eight. I go to the office to work.
“[Translator]: Okay, but, sir, you are telling me about what happened
yesterday. I don’t want you to tell me anything until you, until, that, that, that, you
16
say that you didn’t want the attorney here, but you also have your right, so, to have
the attorney. But as I say, they have enough information about you…
“[Defendant]: Uh-huh.
“[Translator]: …about what happened yesterday…
“[Defendant]: Uh-huh.
“[Translator]: …and if you want the attorney present here, then they are
going to go, put you in jail.
“[Defendant]: I know, I know what they are telling me, I know. But, as I
say, right? I would rather speak to them, and I don’t want an attorney. I don’t
want an attorney.”
The detectives then proceeded to question defendant. After defendant was
shown a photograph of Powell, he admitted that he had seen her “go by the
jobsite.” But defendant said he was “not on familiar terms with her” and denied
that he had ever been in Powell’s house or on her property. He further denied that
he ever approached her car or spoke to her.
The detectives asked defendant about the clothes he wore at the jobsite on
the previous day. Defendant offered to take the detectives to his apartment and
retrieve the clothes he wore to work that day. He then asked for directions to the
police station and informed the detectives he would go to his apartment, get his
clothes, and come back. The translator told defendant the detectives would
accompany him to his apartment. Defendant later signed a form stating that he
voluntarily consented to the detectives searching his residence.
(ii) October 30, 1990 Interview
Defendant was initially arrested and placed in custody after he retrieved his
clothes from his apartment following the first interview on October 26, 1990.
Four days later, on October 30, 1990, Detective Wachter interviewed defendant
17
again. He again advised defendant of his Miranda rights, and defendant waived
them. When asked if he wanted an attorney, defendant replied, “No, because it’s a
waste (of money) for the Government and everything, you understand me? And I
prefer, well, by himself [sic], right?”
Detective Wachter described defendant as self-assured and forceful with his
responses. Defendant again denied that he ever spoke with Powell but admitted he
may have gone into her yard, possibly at the direction of his supervisor. The
translator informed defendant that his fingerprints were left in Powell’s blood in
her house and at the jobsite. Defendant responded, “My prints are there?” and “I
don’t think that my prints are there.” He maintained that he had not entered
Powell’s house.
Defendant later stated that he might have been drunk and gone into
Powell’s house after someone else killed her. He stated he was not capable of
“killing that person.” He then suggested, “perhaps maybe, maybe I went in but
maybe I found her dead.” “And perhaps, and perhaps I, I was too drunk when I
went in and perhaps I thought she wasn’t dead and, and I saw her perhaps, I don’t
know.” He said he did not remember but he might have tried to pick her up to see
if she was alive. He saw no one in the house or running from the house.
Defendant drank “maybe some, some five” beers or more on the day Powell was
murdered, but he also said he did not recall getting drunk.
Defendant was arraigned later that day.
(2) The Suppression Hearing
At the suppression hearing, defense counsel conceded that there was no
Miranda issue and that the detectives complied with Miranda during their
interrogation of defendant. But he argued defendant’s waiver of his Miranda
rights was coerced and his statements were involuntary because the detectives
18
threatened to arrest him and failed to stop questioning him once he requested
counsel. Also, counsel argued defendant’s waiver and statements were
involuntary because he believed he had no choice but to submit to the detectives’
questioning based on his experience with the police in his native Guatemala who
would “beat or kill” or “put a cattle prod on” those who did not cooperate during
an interrogation. The prosecutor countered that defendant’s waiver and statements
were not coerced and that defendant’s experiences in Guatemala were irrelevant to
a determination of the validity of his waiver.
The trial court first determined that the prosecution had sustained its burden
of showing defendant had been advised of and had waived his Miranda rights.
Counsel nonetheless moved the court to permit Dr. Jose La Calle to testify “about
the way that people, such as [defendant], view the police in the context of
Guatemala” and about defendant’s understanding that he had no choice but to talk
to the officers.
After considering counsel’s arguments, listening to the audiotape, and
reviewing the transcript of the first interview, the trial court ruled that defendant
had been properly advised of and had waived his Miranda rights. It specifically
found that (1) the officers’ conduct during their interrogation of defendant
complied with Miranda; (2) defendant’s waiver of Miranda rights and statements
were voluntary; and (3) defendant spoke with the detectives in an effort to
exculpate himself. The court stated, “[T]here is absolutely no question in this
court’s mind that this defendant knew exactly what was taking place,” was “not an
unintelligent person,” and “appreciated some very subtle nuances in the questions
that were asked of him.” It found the proffered testimony of Dr. La Calle
irrelevant.
Defense counsel also moved to suppress defendant’s statements from the
October 30 interview on the grounds that they were involuntary because they
19
derived from the first interview, and because he was not arraigned within the
statutory deadline. (§ 825.)6 The trial court excluded the October 30 statements
from the prosecution’s case-in-chief because of the four-day delay in arraignment,
but permitted their use for impeachment.
b. The Applicable Legal Standards
(1) Miranda
In Miranda, supra, 384 U.S. 436, the United States Supreme Court
“recogniz[ed] that any statement obtained by an officer from a suspect during
custodial interrogation may be potentially involuntary because such questioning
may be coercive” and “held that such a statement may be admitted in evidence
only if the officer advises the suspect of both his or her right to remain silent and
the right to have counsel present at questioning, and the suspect waives those
rights and agrees to speak to the officer.” (People v. Neal (2003) 31 Cal.4th 63,
67.) The Miranda safeguards apply to confessions and “statements which amount
to ‘admissions’ of part or all of an offense” regardless of whether they are
exculpatory or inculpatory in nature. (Miranda, supra, 384 U.S. at pp. 444, 476-
477.) A statement obtained in violation of Miranda may not be admitted in the
prosecution’s case-in-chief but, if voluntary, may be admitted to impeach the
defendant. (Harris v. New York (1971) 401 U.S. 222, 223-224; People v. Neal,
supra, 31 Cal.4th at p. 67.)
On appeal, we review independently a trial court’s ruling on a motion to
suppress a statement under Miranda. (People v. Waidla (2000) 22 Cal.4th 690,
730.) In doing so, however, “we accept the trial court’s resolution of disputed
6
Section 825 requires that a defendant be arraigned before a magistrate
“without unnecessary delay, and, in any event, within 48 hours after his or her
arrest, excluding Sundays and holidays.”
20
facts and inferences, and its evaluations of credibility, if supported by substantial
evidence.” (People v. Cunningham (2001) 25 Cal.4th 926, 992.)
(2) Voluntariness
A defendant’s statements challenged as involuntary are inadmissible at trial
unless the prosecution proves by a preponderance of the evidence that they were
voluntary. (Lego v. Twomey (1972) 404 U.S. 477, 487-489; Jackson v. Denno
(1964) 378 U.S. 368, 385-386; People v. Markham (1989) 49 Cal.3d 63, 69-71.)
“The due process [voluntariness] test takes into consideration ‘the totality of all
the surrounding circumstances—both the characteristics of the accused and the
details of the interrogation.’ ” (Dickerson v. U.S. (2000) 530 U.S. 428, 434,
quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.) This test
“examines ‘whether a defendant’s will was overborne’ by the circumstances
surrounding the giving of a confession.” (Ibid.) We make the same inquiry to
determine the voluntariness of a Miranda waiver. (Colorado v. Connelly (1986)
479 U.S. 157, 169-170 [“There is obviously no reason to require more in the way
of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth
Amendment confession context”].) “[C]oercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary’ within the meaning of
the Due Process Clause of the Fourteenth Amendment.” (Id. at p. 167; see also
People v. Williams (1997) 16 Cal.4th 635, 659.) Coercive police activity,
however, “ ‘does not itself compel a finding that a resulting confession is
involuntary.’ [Citation.] The statement and the inducement must be causally
linked. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 404-405.)
We review independently a trial court’s determinations as to whether
coercive police activity was present and whether the statement was voluntary.
(People v. Jones (1998) 17 Cal.4th 279, 296.) We review the trial court’s findings
21
as to the circumstances surrounding the confession, including the characteristics of
the accused and the details of the interrogation, for substantial evidence. (Ibid.)
“[T]o the extent the facts conflict, we accept the version favorable to the People if
supported by substantial evidence.” (People v. Weaver (2001) 26 Cal.4th 876,
921.)
c. Issue Preservation
At trial, defendant did not argue that his statements were obtained in
violation of Miranda. Defense counsel apparently made a tactical decision to
waive any Miranda issue, a decision that appears reasonable on the facts of this
case. Because defendant left his palm prints and fingerprints in Powell’s blood at
both the crime scene and the house being remodeled, counsel may reasonably have
believed that defendant had to testify at trial to explain those fingerprints.
Testifying would place his credibility at issue. If counsel succeeded in having
defendant’s statements excluded solely under Miranda, they still would be
admissible to impeach him. (Harris v. New York, supra, 401 U.S. at pp. 223-224;
People v. Neal, supra, 31 Cal.4th at p. 67.) Only if counsel could convince the
court that the statements were involuntary would they be excluded for all
purposes, including impeachment. (Jackson v. Denno, supra, 378 U.S. at pp. 385-
386; People v. Neal, supra, at pp. 67, 79.) Therefore, if defendant intended to
testify to try to explain the fingerprints and palm prints, counsel’s motion to
suppress would gain defendant nothing unless he established the statements were
involuntary, rather than solely the product of a Miranda violation.
Accordingly, on appeal, defendant contends that his statements should have
been suppressed for all purposes because they were involuntary under the totality
of the circumstances. Defendant asserts these circumstances include Detective
Wachter’s questioning after he invoked his right to counsel, Wachter’s threat of
22
arrest, and defendant’s experiences in his native Guatemala. The People argue
defendant has forfeited the issue regarding any improper questioning by Detective
Wachter. The People are correct, but only in part.
Although counsel waived any Miranda issue arising from police conduct
during the interrogation, he specifically asserted Detective Wachter’s conduct was
a factor that rendered his statements involuntary under the totality of the
circumstances. Therefore, although defendant may not, and does not, rely solely
on Miranda for relief, he may rely on all of the circumstances, including the
continued questioning, as they relate to the voluntariness issue.
d. Analysis
(1) October 26 Statements
As stated, defendant has waived any Miranda issues as grounds for
suppressing his statements from the October 26 interview. The only issue
presented is whether defendant’s statements were voluntary. Defendant contends
his statements from the October 26 interview were involuntary because (1)
Detective Wachter failed to stop questioning him after he invoked his right to
counsel; (2) Wachter threatened to arrest defendant and put him in jail if he did not
speak with the detectives; and (3) defendant’s experiences in his native Guatemala
affected his understanding of the interrogation. After reviewing the entire record
independently, we disagree.
Defendant first contends the detective’s failure to stop the interview when
he requested counsel was coercive and rendered his statement involuntary because
it led him to believe that his rights were meaningless and that he had to speak with
the detectives. “While the fact that a statement was obtained despite the
defendant’s invocation of the right to counsel is one of the circumstances we
consider [in determining whether a statement was voluntary], it . . . is not
23
dispositive.” (People v. Bradford (1977) 14 Cal.4th 1005, 1041; see also People v.
Neal, supra, 31 Cal.4th at pp. 81-85 [officer’s continued interrogation of
defendant after defendant invoked his right to counsel was one of three
circumstances considered in determining voluntariness of subsequent
confessions].)
Defendant had voluntarily accompanied the detectives to the police station
from his place of employment. Before invoking his right to counsel, defendant
had repeatedly expressed his willingness to cooperate with the detectives and
claimed to have no need for an attorney because he did not have “a problem.”
Once defendant invoked his right to counsel and was threatened with arrest, his
desire to cooperate with the detectives remained unchanged. He again stated he
did not need an attorney because he did not know anything about the murder. As
such, the record does not establish that defendant was affected in any manner or
that his free will was overborne by the continued interrogation by Detective
Wachter. There is no causal connection between the continued interrogation of
defendant and his purported belief that he was required to cooperate during the
interview. (People v. Maury, supra, 30 Cal.4th at pp. 404-405.)
Defendant next contends Detective Wachter coerced him into making his
statements by falsely threatening to arrest him. Wachter testified at the
suppression hearing that he did not believe he had probable cause to arrest
defendant until after he initially interviewed defendant and searched his apartment.
Defendant contends Wachter’s threat was particularly coercive because he was
confused and lacked knowledge about our legal system. Nothing in the record,
however, suggests defendant was coerced. He did not become confused or
otherwise lose his composure after Wachter said he would arrest him. (See, e.g.,
People v. Jones, supra, 17 Cal.4th at p. 298 [“no indication that defendant was
frightened into making a statement that was both involuntary and unreliable” by
24
the detective’s “persistent references to the dire consequences he was facing”].)
To the contrary, defendant remained eager to talk throughout the interview. As
the detectives were about to conclude the interview, defendant offered to retrieve
his clothes from his home and return to the police station. Clearly, he did not feel
as if he was under arrest. When the translator clarified that the detectives would
accompany defendant to his home, he said, without hesitation, “Okay, fine.” He
then asked if he could let his wife know “what’s going on.” Such conduct belies
any claim by defendant that he felt coerced or feared the detectives would mistreat
or torture him. We agree with the trial court’s assessment that “defendant knew
exactly what was taking place” during the interview. He appreciated subtle
nuances in the questions and intelligently answered some poorly phrased
compound questions.
The sole cause appearing in the record for defendant’s cooperation during
the interview was his desire to exculpate himself. People v. Hayes (1985) 169
Cal.App.3d 898, 905-908, is factually similar. In that case, after the 16-year-old
suspect stated, “I want to talk to a lawyer,” the detective immediately informed
him that he (the suspect) was going to be booked for first degree murder, detained
at juvenile hall, and certified as an adult in the case. (Id. at pp. 901, 906-907 & fn.
4.) As the detective began to leave the interrogation room, the suspect told the
detective that he “couldn’t do that to him” and that he “hadn’t killed anybody
and . . . he would show [the detective] where the gun was.” (Ibid.) The Court of
Appeal found the detective’s statements informing the suspect what was going to
happen to him after he invoked his right to counsel were not made in an attempt to
elicit statements from the suspect. (Id. at p. 907.) After invoking his right to
counsel, the suspect was motivated to speak with the detective, not by coercion,
but rather by his desire to clear himself of any suspicion. (Id. at pp. 907-908; see
also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 59 [“His resistance, far
25
from reflecting a will overborne by official coercion, suggests instead a still
operative ability to calculate his self-interest in choosing whether to disclose or
withhold information”].) Therefore, the court held the suspect’s change of heart in
desiring to speak with the detective and his subsequent statements were
voluntarily made. (Id. at p. 908.)
In this case, Wachter responded to defendant in much the same manner as
the detective responded to the juvenile suspect in Hayes—he essentially informed
defendant that if he did not speak with him that he (defendant) would be arrested
and charged with Powell’s murder. Defendant then decided to speak with the
detectives, in an effort, the record indicates, to clear himself of suspicion. He
denied that he knew Powell until he was shown a photograph of her and stated he
“[didn’t] know anything about that.” He further denied that the had ever been in
Powell’s house or yard. Defendant’s behavior is not the behavior of one whose
free will has been overborne. Therefore, we discern no causal link between the
detective’s threat of arrest and defendant’s subsequent statements and waiver of
his right to counsel. (People v. Maury, supra, 30 Cal.4th at pp. 404-405.)
Further, that Detective Wachter may have informed defendant falsely that
he had sufficient probable cause to arrest him for Powell’s murder did not render
defendant’s subsequent waiver of his right to counsel and statements involuntary.
Although false statements made by the police during questioning may affect the
voluntariness of a defendant’s confession, “ ‘ they are not per se sufficient to make
it involuntary.’ ” (People v. Farnam (2002) 28 Cal.4th 107, 182, quoting People
v. Musselwhite (1998) 17 Cal.4th 1216, 1240.) A finding of involuntariness is
unwarranted if the deception is not of a type reasonably likely to produce a false
statement. (Ibid.) Here, the detective’s statement that there was sufficient
probable cause to arrest defendant was not likely to produce a false statement.
(See e.g., People v. Jones, supra, 17 Cal.4th at p. 299 [detective’s deceptive
26
statements to defendant implying that he knew more than he did or could prove
more than he could were not reasonably likely to procure a false statement].) A
finding of involuntariness on this basis, therefore, is unwarranted.
Finally, to the extent that defendant contends his statements and any waiver
were involuntary based on his experiences in Guatemala, we disagree. “The due
process inquiry focuses on the alleged wrongful and coercive actions of the
state . . . and not the mental state of defendant.” (People v. Weaver, supra, 26
Cal.4th at p. 921, citing Colorado v. Connelly, supra, 479 U.S. at p. 165; see also
People v. Bradford, supra, 14 Cal.4th at p. 1041 [“The Fifth Amendment is not
‘concerned with moral and psychological pressures to confess emanating from
sources other than official coercion.’ ”].)
At the suppression hearing, counsel sought to present evidence that
defendant’s experiences in Guatemala affected his understanding of the
interrogation. Defendant would have testified that he believed he had to submit to
questioning by the detectives in this case because in his native Guatemala, the
police would torture or kill him if he did not cooperate during an interrogation.
Also, he would have testified he had no understanding of the legal system in this
country. Dr. La Calle, a psychologist, would have testified on the cultural
conditions of Guatemala and the general manner in which the police mistreat
people. Based on his interview of defendant, Dr. La Calle also would have
testified that because of defendant’s experience with the Guatemalan police, he
(defendant) believed he could not refuse to answer the detectives’ questions in this
case.
Defendant’s proffered testimony, however, would have established only
that his “‘pressure’ sprang from within [himself].” (People v. Mickey (1991) 54
Cal.3d 612, 650.) As a matter of law, this involved no state coercion. (Ibid.) No
27
causal link existed between defendant’s internal pressure from his experiences
with the Guatemalan police and any police activity in this case.
Accordingly, based on our examination of the totality of the circumstances,
we conclude defendant’s statements from the October 26 interview were voluntary
and therefore admissible for impeachment. (Jackson v. Denno, supra, 378 U.S. at
pp. 385-386; People v. Markham, supra, 49 Cal.3d at pp. 69-71.)
(2) October 30 Statements
On October 30, 1990, four days after he was initially interviewed and
arrested, Detective Wachter conducted a second interview of defendant.
Defendant was given and waived his Miranda rights before answering any
questions.
Counsel moved to suppress defendant’s statements from that interview on
the ground they were involuntary as a result of the coercive nature of his interview
on October 26 and the delay in his arraignment. The trial court granted the
motion, in part, excluding this statement from the prosecution’s case-in-chief
because of defendant’s delayed arraignment, but permitting its use for
impeachment. Defendant now claims his statement should have been excluded for
all purposes, including impeachment. We disagree.
We have already found that the statements on October 26 were voluntary.
Nothing about the circumstances surrounding the October 30 statements suggests
that what was voluntary four days earlier had become involuntary. The delay in
arraignment was not itself coercive. Defendant was as cooperative in talking to
the police the second time as he was the first time. It remains clear that defendant
still wanted to give the police an exculpatory statement. This was not a case of the
police effectively coercing a confession, as in People v. Neal, supra, 31 Cal.4th
28
63, but of defendant voluntarily giving statements denying his involvement in the
crime.
(3) Defendant’s Consent to Search His Apartment
During the October 26 interview, defendant consented to a search of his
apartment by the detectives. He gave the detectives the clothes he wore to work
on the day of Powell’s murder. Defendant moved to suppress this evidence on the
ground his consent was involuntary and obtained during the coercive first
interview. The trial court denied his motion.
Defendant renews his claim on appeal. Because we have concluded
defendant’s statements from the October 26 interview, including his consent to
search his apartment, were voluntarily made (see ante, pp. 23-28), defendant’s
consent did not derive from an involuntary or coerced source. Accordingly, the
evidence seized during the search was not excludable on this basis.7
3. Challenges for Cause
Defendant contends the court erred in overruling his challenges to eight
prospective jurors for bias in favor of the death penalty. “To preserve a claim of
trial court error in failing to remove a juror for bias in favor of the death penalty, a
defendant must either exhaust all peremptory challenges and express
dissatisfaction with the jury ultimately selected or justify the failure to do so.”
(People v. Williams, supra, 16 Cal.4th at p. 667.) Here, defendant did not exhaust
his peremptory challenges for the sitting jury, although he did so for the alternate
7
Defendant additionally contends he was denied a fair hearing on his
suppression motion because the trial court “err[ed] in distinguishing admissions
from confessions.” Even if the trial court erred, however, we have independently
concluded defendant’s statements were voluntary and thus properly admitted.
Accordingly, his contention fails.
29
jurors. Additionally, defendant did not object to the jury as it was finally
constituted. Therefore, he has forfeited these claims for appellate review.
In any event, we may reject defendant’s claims without examining the
merits of his challenges for cause because he cannot show prejudice. “To prevail
on such a claim, defendant must demonstrate that the court’s rulings affected his
right to a fair and impartial jury.” (People v. Yeoman, supra, 31 Cal.4th at p. 114.)
In this case, none of the prospective jurors defendant challenged sat on the jury.
He had peremptorily challenged six of the eight prospective jurors he challenged
for cause. The remaining two were never called into the jury box. Therefore,
because defendant did not challenge any sitting juror for cause, he cannot show the
court’s rulings affected his right to an impartial jury. (Ibid. [to obtain relief on
appeal from the erroneous denial of a challenge for cause, the record must show
the defendant challenged a sitting juror]; see also Ross v. Oklahoma (1988) 487
U.S. 81, 85-91.)
4. Batson/Wheeler
During voir dire, defense counsel timely objected under Batson v. Kentucky
(1986) 476 U.S. 79 (Batson), and People v. Wheeler (1978) 22 Cal.3d 258
(Wheeler), to the prosecutor’s peremptory challenges of three Hispanic and three
African-American prospective jurors. As to counsel’s objections to the first
Hispanic prospective juror and the first African-American prospective juror, the
trial court ruled that defendant had failed to establish a prima facie case of
discrimination as to each group. With respect to the remaining objections, the
court asked the prosecutor to justify his peremptory challenges. The prosecutor
did so, and the court accepted the explanations as genuine and race neutral on each
occasion.
30
Ultimately, no jurors identified as Hispanic and two jurors identified as
African-Americans were among the sitting jurors. Defendant contends the court
erred in overruling his objections.
Both the state and federal Constitutions prohibit the use of peremptory
challenges to remove prospective jurors based solely on group bias. (Batson,
supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Recently,
“the United States Supreme Court reaffirmed that Batson states the procedure and
standard to be employed by trial courts when challenges such as defendant’s are
made. ‘First, the defendant must make out a prima facie case by “showing that the
totality of the relevant facts gives rise to an inference of discriminatory purpose.”
[Citations.] Second, once the defendant has made out a prima facie case, the
“burden shifts to the State to explain adequately the racial exclusion” by offering
permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a
race-neutral explanation is tendered, the trial court must then decide ... whether the
opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ ”
(People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California
(2005) 545 U.S. ___, ___ [125 S.Ct. 2410, 2416], fn. omitted (Johnson).) The
high court clarified that “a defendant satisfies the requirements of Batson’s first
step by producing evidence sufficient to permit the trial judge to draw an inference
that discrimination has occurred.” (Johnson, supra, at p. ___ [125 S.Ct. at pp.
2417-2419], revg. in part People v. Johnson (2003) 30 Cal.4th 1302, 1318
[requiring the defendant to “show that it is more likely than not the other party’s
peremptory challenges, if unexplained, were based on impermissible group
bias”].)
In determining whether the defendant ultimately has carried his burden of
proving purposeful racial discrimination, “the trial court ‘must make “a sincere
and reasoned attempt to evaluate the prosecutor’s explanation in light of the
31
circumstances of the case as then known, his knowledge of trial techniques, and
his observations of the manner in which the prosecutor has examined members of
the venire and has exercised challenges for cause or peremptorily . . . . ” ’ ”
(People v. Reynoso (2003) 31 Cal.4th 903, 919) “[T]he trial court is not required
to make specific or detailed comments for the record to justify every instance in
which a prosecutor’s race-neutral reason for exercising a peremptory challenge is
being accepted by the court as genuine.” (Ibid.) Inquiry by the trial court is not
even required. (Id. at p. 920.) “All that matters is that the prosecutor’s reason for
exercising the peremptory challenge is sincere and legitimate, legitimate in the
sense of being nondiscriminatory.” (Id. at p. 924.) A reason that makes no sense
is nonetheless “sincere and legitimate” as long as it does not deny equal
protection. (Ibid.)
a. Asserted Trial Court Error in Failing to Find a Prima Facie
Case of Discrimination
Defendant argues first that the court erred in finding no prima facie case of
discrimination when the prosecutor used peremptory challenges to excuse
Prospective Jurors R.M., an Hispanic, and L.B., an African-American. We
disagree.
“When a trial court denies a Wheeler motion without finding a prima facie
case of group bias, the appellate court reviews the record of voir dire for evidence
to support the trial court’s ruling. [Citations.] We will affirm the ruling where the
record suggests grounds upon which the prosecutor might reasonably have
challenged the jurors in question.” (People v. Farnam, supra, 28 Cal.4th at p.
135.)
As a preliminary matter, in supplemental briefing defendant asserts that
because the trial court did not state the standard it used to determine whether he
established a prima facie case of discrimination, we must presume the trial court
32
used the improper more likely than not standard under People v. Johnson. (See
Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [trial court is presumed to
follow established law absent evidence to the contrary].) Therefore, he asks that
we independently determine whether he established a prima facie case of
discrimination using the reasonable inference test under Batson. As in People v.
Cornwell, “[r]egardless of the standard employed by the trial court, and even
assuming without deciding that the trial court’s decision is not entitled to
deference, we have reviewed the record and, like the United States Supreme Court
in Johnson . . . [we] are able to apply the high court’s standard and resolve the
legal question whether the record supports an inference that the prosecutor
excused a juror on the basis of race.” (People v. Cornwell, supra, 37 Cal.4th at p.
73.) We conclude the record fails to support “an inference that the prosecutor
excused [any] juror on the basis of race.” (Ibid.)
As to Prospective Juror R.M., defense counsel sought to establish a prima
facie case of discrimination based solely on the circumstance that R.M. was the
only Hispanic sitting in the jury box, leaving only two other Hispanics on the
entire panel. This circumstance, standing alone, is not dispositive on the issue of
whether defendant established a prima facie case. (People v. Crittenden (1994) 9
Cal.4th 83, 119; but see Johnson, supra, 545 U.S. at p. __ [125 S.Ct. at pp. 2414,
2419] [the removal of all three African-American prospective jurors established a
prima facie case].) Moreover, the record discloses reasons other than racial bias
for any prosecutor to challenge Prospective Juror R.M. He indicated on his
questionnaire that a person’s voluntary intoxication should automatically be
considered a defense, or reduce his or her culpability, if that person commits a
crime “because your mind is not where it [is] suppose[d] to be.” The prosecutor
volunteered that this response was something he considered in excusing R.M. He
may reasonably have believed that R.M. would have difficulty setting his belief
33
aside and evaluating the evidence in this case because defendant claimed he was
intoxicated at the time of Powell’s murder. Defendant contends the trial court
rejected this possibility because it stated that the juror’s attitude towards
intoxication was “not disqualifying at all.” But it may merely have meant the
attitude would not support a challenge for cause, not that a prosecutor had to
ignore it. “The circumstance that the juror was not subject to exclusion for cause
certainly did not support an inference that the exercise of a peremptory challenge
against [the juror] was motivated by group bias.” (People v. Cornwell, supra, 37
Cal.4th at p. 70.) In addition, the trial court also said that it would have excused
the juror itself. It said that R.M. had “an attitude that projects itself as clearly as a
ringing bell” and “some kind of chip on his shoulder or some attitude here that’s
very disturbing.”
With respect to Prospective Juror L.B., defense counsel sought to establish
a prima facie case of discrimination because the prosecutor challenged a second
African-American prospective juror.8 As stated, this showing is not dispositive of
whether defendant established a prima facie case. (People v. Crittenden, supra, 9
Cal.4th at p. 119.) As with Prospective Juror R.M., the record reveals reasons
other than racial discrimination for any prosecutor to challenge this prospective
juror. L.B. had indicated that a cousin was treated unfairly by police when the
cousin was arrested for carrying a gun in a Mercedes he was driving. The officer
had asked L.B.’s cousin if he had stolen the vehicle. L.B., who was a passenger in
the Mercedes, believed her cousin was treated unfairly by the police based on this
question. She also believed her cousin was treated unfairly by the judicial system
regarding this incident. In addition, L.B. responded on her questionnaire that she
8
Defense counsel conceded the prosecutor’s challenge to the first African-
American prospective juror was proper and did not object.
34
did not let people tell her what to do and that she had “very strong opinions.” She
also questioned whether she could remain objective in judging a person’s
credibility. Even though L.B. gave assurances that she could evaluate the
evidence objectively, based on these responses, the prosecutor reasonably might
have been concerned with L.B.’s negative views of the police and the judicial
system based on the incident with her cousin and her self-described strong
personality, and challenged her on these bases.
Relying on Hernandez v. New York (1991) 500 U.S. 352, 359, defendant
further argues the trial court impliedly found that he established a prima facie case
of discrimination when it considered and purportedly rejected the prosecutor’s
explanation that he excused Prospective Juror R.M. because he believed voluntary
intoxication should automatically be a defense to a crime. In Hernandez, a
plurality of the United States Supreme Court held that, although no express
finding of a prima facie case had been made, the issue of whether a prima facie
case of discrimination had been made became moot once the prosecutor
volunteered his reasons for exercising his peremptory challenges. (Ibid.)
Defendant’s reliance on Hernandez is misplaced. At the conclusion of the
hearing, unlike Hernandez, the trial court expressly found that a prima facie case
of discrimination was not established and impliedly found that the prosecutor’s
proffered reason was genuine. As we explained, the trial court’s remark that
R.M.’s belief was not “necessarily disqualifying” may have meant his attitude did
not support a challenge for cause. In any event, the remark did not support an
inference that the prosecutor was racially biased in challenging R.M. or that the
trial court rejected the prosecutor’s explanation as implausible.
Even assuming the trial court did find a prima facie case of discrimination
at this point, defendant is not entitled to relief. The trial court made a sincere and
reasoned effort to evaluate the prosecutor’s race-neutral reason for challenging
35
R.M., and substantial evidence supports the trial court’s implied finding that the
prosecutor’s reason was genuine and nondiscriminatory. (People v. McDermott
(2001) 28 Cal.4th 946, 970.)
Defendant next argues that when the prosecutor’s explanation is compared
with the responses of certain other jurors, the prosecutor’s discriminatory intent is
apparent. He relies on Miller-El v. Dretke (2005) __ U.S. __ [125 S.Ct. 2317]
(Miller-El) (discussed post, pp. 37-40) in asking us to perform a comparative juror
analysis to review the trial court’s finding on this issue. Assuming without
deciding that a comparative juror analysis should be conducted under the
circumstances presented to evaluate the plausibility of the prosecutor’s
volunteered explanation as to R.M., we conclude defendant’s proffered analysis
fails to establish purposeful discrimination. (See People v. Schmeck (2005) 37
Cal.4th 240, 270 [comparative juror analysis failed to demonstrate purposeful
discrimination].)
Defendant asserts that R.M.’s belief that voluntary intoxication should or
could be a defense to a crime or make an offender less culpable was shared by
non-Hispanic Jurors K.D., A.B., and K.Z., whom the prosecutor did not
peremptorily challenge. His assertion is misleading because R.M. indicated “yes”
on his questionnaire that voluntary intoxication “should automatically” be a
defense to a crime or reduce an offender’s culpability “because your mind is not
where it[’s] suppose[d] to be.” None of the jurors with whom defendant compares
R.M. marked “yes” to this question or otherwise shared his view. Accordingly, a
comparison of the responses to the voluntary intoxication question by these
prospective jurors does not alter our conclusion that the record substantiates the
trial court’s implied finding that the prosecutor’s reason for excusing R.M. was
genuine and nondiscriminatory.
36
Finally, defendant also compared Prospective Juror L.B., who regarded
herself as a leader, with non-African-American jurors who also considered
themselves leaders. He does not, however, expressly ask that we perform a
comparative analysis, as he did with Prospective Juror R.M. Performing a
comparative analysis is problematic when, as here, the prosecutor did not provide
reasons for the challenge because the trial court found no prima facie case had
been established. Indeed, in Miller-El, the high court used comparative analysis to
review the trial court’s findings as to the plausibility of the prosecutor’s reasons.
(See Miller-El, supra, __ U.S. at p. __ [125 S.Ct. at pp. 2325-2332].) In any
event, the record does not convince us that the court should have found a prima
facie case at this stage.
In sum, challenging these two prospective jurors early in the process did
not, itself, support an inference that discrimination had occurred. Accordingly, we
conclude the defendant failed to make a prima facie case of discrimination at this
stage.
b. Asserted Trial Court Error in Accepting the Prosecutor’s
Reasons for Challenging Prospective Hispanic and African-
American Jurors
Although the court initially found no prima facie showing as to either the
first Hispanic or African-American challenged, it later found, at least impliedly,
that defendant had made such a showing as to both groups and asked the
prosecutor to justify his challenges to two prospective jurors of each group.
Defendant contends the trial court erred by accepting the prosecutor’s reasons for
challenging these prospective jurors and ultimately finding he did not establish
purposeful discrimination. We disagree.
A trial court’s ruling on this issue is reviewed for substantial evidence.
(People v. McDermott, supra, 28 Cal.4th at p. 971.) “We presume that a
37
prosecutor uses peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide reasons from sham
excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort
to evaluate the nondiscriminatory justifications offered, its conclusions are entitled
to deference on appeal. [Citation.]” (People v. Burgener (2003) 29 Cal.4th 833,
864.)
In this case, based on our review of the record, we conclude substantial
evidence supports the following findings of the trial court that the prosecutor’s
peremptory challenges were based on genuine nondiscriminatory reasons and not
group bias. (People v. McDermott, supra, 28 Cal.4th at p. 970.)
The prosecutor stated numerous grounds for challenging Prospective Juror
E.A., who was Hispanic. This juror had a sister who was in prison for second
degree murder and three counts of armed robbery. The prosecutor believed E.A.
likely would be offended by his argument that defendant is a “monstrous person”
and should be put to death, because her sister is a convicted murderer. The
prosecutor also was concerned that this juror worked for the City of Santa Monica
as a park ranger but had applied to the Santa Monica Police Department and failed
a written test. Because E.A. was not hired as a police officer, the prosecutor had
the same concern that he would regarding a prospective juror who was an ex-
police officer. He believed she would be overly critical of the police investigation
that was conducted in this case and have difficulty evaluating the evidence
objectively. Also, this juror previously served on a jury that resulted in a hung
jury. The trial court accepted the prosecutor’s reasons, noting that it could not
fault him for “being uncomfortable with respect to all of the matters that he has
raised.”
The prosecutor stated he excused Prospective Juror O.B., another Hispanic,
because he was a traveling actor who was presently unemployed, believed
38
minorities are treated unfairly in the criminal justice system, and had strong
opinions against the death penalty. When asked to state his general feelings about
the death penalty on his questionnaire, O.B. responded, “Don’t like the thought of
death.” He also stated that even though convicted criminals of “gruesome crimes”
should be “punished harshly,” he believed “death should be an act of nature or
fate.” The trial court stated it was satisfied that the prosecutor’s reason for
excusing O.B. was not because of his race.
The prosecutor stated he believed Prospective Juror B.B., an African-
American, was biased against the death penalty. B.B. stated that although the
death penalty was appropriate in some cases, she felt “life is a precious gift” and
the death penalty should be used “very carefully.” In addition, this juror witnessed
a murder at the age of 12 and learned that “everyone’s life is important.” The
prosecutor further explained that the composition of the jury had changed after
defense counsel exercised his last two peremptory challenges. He believed there
were more potential jurors in the audience who would be favorable to the
prosecution than there were in the jury box at that time. The trial court
acknowledged the prosecutor twice accepted the jury as constituted when it
included Prospective Juror B.B. and stated it was convinced the prosecutor’s
reasons for excusing B.B. were not based on race.
While selecting alternate jurors, the prosecutor challenged H.W., an
African-American. He said he did so based on his belief that she was biased
against the death penalty. In her questionnaire, H.W. stated she was against the
death penalty but that her feelings could change if the victim were “someone
close” or a child. She believed a sentence of life without possibility of parole was
“worse” than a death sentence. Also, the religious denomination to which H.W.
belonged did not support the death penalty. The trial court accepted these race-
neutral explanations for challenging H.W. and further observed the prosecutor was
39
legitimately attempting to reduce the number of alternate jurors who had strong
opinions against the death penalty.
For the first time on appeal, defendant requests that we perform a
comparative juror analysis to evaluate the genuineness of the prosecutor’s reasons
for peremptorily challenging the prospective jurors in question. Our long standing
practice has been that a reviewing court must consider evidence of comparative
juror analysis when a defendant has presented such evidence at the trial court but
need not conduct such an analysis for the first time on appeal. (People v. Johnson,
supra, 30 Cal.4th at pp. 1324-1325 [review of trial court’s finding regarding
whether defendant established a prima facie showing of group bias];9 People v.
Johnson (1989) 47 Cal.3d 1194, 1220-1222 [review of trial court’s finding
regarding the genuineness of a prosecutor’s race-neutral reasons for exercising a
peremptory challenge].) The high court recently conducted such a comparative
juror analysis in Miller-El, supra, __ U.S. at p. __ [125 S.Ct. at pp. 2325-2332], to
evaluate the state trial court’s findings as to the plausibility of the prosecutor’s
explanations for excusing 10 of 11 African-American prospective jurors and
ultimately concluded the trial court’s findings were erroneous. (Id. at pp. __ [125
S.Ct. at pp. 2325-2338].) In this case, assuming without deciding that we should
perform the requested comparative juror analysis under the circumstances
presented, we conclude that defendant fails to demonstrate purposeful
9
The original petition for writ of certiorari from our opinion in People v.
Johnson, supra, 30 Cal.4th 1302, challenged both our holding regarding the
standard for a prima facie case and our refusal to conduct comparative juror
analysis for the first time on appeal. The high court granted certiorari only on the
issue regarding a prima facie case. Accordingly, although it reversed our opinion
in Johnson regarding the standard for a prima facie case (see ante, p. 31), it left
this part of the opinion intact. (Johnson, supra, 545 U.S. at p. ___ [125 S.Ct. at
pp. 2417-2419].)
40
discrimination and that substantial evidence supports the trial court’s findings that
the prosecutor’s race-neutral reasons for excusing Jurors E.A., O.B., B.B., and
H.W. were genuine. (See People v. Schmeck, supra, 37 Cal.4th at p. 270.)
As to E.A., defendant argues that the prosecutor’s concern that her sister
was convicted of second degree murder and armed robbery applied to other White
jurors who had close relatives who had been charged with various crimes. The
other crimes, however, were much less serious than murder. Additionally, the
prosecutor worried that if he referred to defendant as a monster who deserved to
die for killing the victim, he might offend E.A. because of her sister’s murder
conviction. The other prospective jurors probably would not take offense at such
an argument. Moreover, unlike E.A.’s sister, none of the relatives had expressed
the belief that he or she was treated unfairly by the justice system, nor did the
jurors. As to the prosecutor’s concern that E.A. had failed to pass the test for
employment with the Santa Monica Police Department and now works as a park
ranger, defendant points out that Juror M.L. investigated occupational safety and
fire accidents, had taken administrative law courses, and worked for the Veterans
Affairs Police Department. M.L., however, is not a former police officer and did
not perform criminal investigations. Contrary to defendant’s claim, he worked
with, not for, the Veterans Affairs Police Department in his capacity as an
occupational safety and health specialist. The prosecutor would not likely be as
concerned with M.L. second-guessing or being overly critical of the investigation
in this case as he would with E.A., given she was actually denied employment as a
police officer, a position to which she aspired. The other jurors whom defendant
identifies are not similarly situated in this respect. Finally, defendant emphasizes
that E.A. showed more support for the death penalty than non-Hispanic jurors.
While it may be true that E.A. had certain strong views that showed more support
for the death penalty than certain non-Hispanic jurors, the prosecutor stated he had
41
“too many” reasons to be concerned about this prospective juror. He was not
required to accept E.A. as a juror “if reasons apart from group bias supported his
challenge.” (People v. Cornwell, supra, 37 Cal.4th at p. 72.) Defendant, further,
does not point to any other non-Hispanic juror who had similar experiences in
each area with which the prosecutor was concerned. In view of the totality of the
evidence, we conclude substantial evidence supports the trial court’s finding that
the prosecutor’s reasons were genuine.
With regard to Hispanic Prospective Juror O.B., defendant claims that
O.B.’s perception about racial groups did not distinguish him from other jurors or
warrant a challenge by the prosecutor. O.B. stated “most minori[ties] are viewed
as different by mainstream American” and “therefore [are] not usually given equal
merit [sic]” in the justice system. None of the jurors defendant identifies share
O.B.’s view that “most” minorities are not treated equally in our system of justice.
African-American Alternate Juror L.S., however, did share O.B.’s opinion that
police officers “often make mistakes” when testifying; others cited by defendant
did not. Contrary to his assertion, O.B.’s views on what should be done about the
crime problem in Los Angeles County were somewhat different when compared
with the non-Hispanic jurors who were more “pro-police.” As the prosecutor
remarked, O.B. was “not pro-police.” Regarding his view on the death penalty,
O.B. did “strongly disagree” with the statement that anyone who intentionally kills
another should never receive the death penalty whereas other jurors did not hold
such a strong view. Nonetheless, the prosecutor was concerned with O.B.’s
apparent strong opposition to the death penalty, as shown by his statement that
“even though convicted criminal[s] of gru[esome] crimes should be punished
harshly, death should be an act of nature or fate.” Although defendant has shown
some similarities between O.B. and non-Hispanic jurors and alternate jurors, none
of these individuals were similar to O.B. in all the areas in which the prosecutor
42
expressed concern. In sum, the record supports the trial court’s findings that the
prosecutor’s stated reasons for challenging O.B. were genuine and race neutral.
With respect to Prospective Juror B.B., an African-American woman,
defendant does establish this juror supported the death penalty as much as some
jurors. Still, the prosecutor—who had twice accepted the jury as constituted
before excusing B.B.— expressed concern that B.B. had witnessed a murder as a
young child and learned that life is “precious.” He believed she leaned toward life
and felt that prospective jurors with stronger views in favor of the death penalty
remained in the venire. The prosecutor also stated if this were a White juror under
the same exact circumstances, he would challenge the juror for the same tactical
reason. Defendant fails to establish the existence of a juror who was similarly
situated. Finally, “ ‘[w]hile the fact that the jury included members of a group
allegedly discriminated against is not conclusive, it is an indication of good faith
in exercising peremptories, and an appropriate factor for the trial judge to consider
in ruling on a Wheeler objection.’ ” (People v. Ward (2005) 36 Cal.4th 186, 203,
quoting People v. Turner (1994) 8 Cal.4th 137, 168.) Two African-American
women remained on the final jury. Under the totality of the circumstances, the
record supports the trial court’s findings that the prosecutor’s challenge as to
Prospective Juror B.B. was not race-based or otherwise implausible.
As for H.W., an African-American woman, defendant argues a comparative
analysis reveals the prosecutor’s statement that he excused her because her
religious denomination did not believe in the death penalty was pretextual. Not
so. As discussed above, the prosecutor stated he excused H.W. because he
believed she was “pro-life.” H.W. stated she was against the death penalty but
could change her mind if the victim was “someone close.” As the prosecutor
noted, H.W. was not “close” to Powell. Also, H.W. indicated in her questionnaire
that her religious denomination did not believe in the death penalty. During voir
43
dire, the trial court pointed out that in response to the question whether she felt
obligated to accept the position of her religious denomination, H.W. responded
“yes” and “no” and then marked out “yes” and wrote “no, I make my own
choices.” Ultimately, H.W. stated she could make her own decision about
imposing the death penalty based on the circumstances. Defendant claims that the
prosecutor “improperly assumed that an African-American juror would be more
led by their religion than White jurors who were members of churches opposed to
the death penalty.” The prosecutor did not express such a view. The prosecutor
merely mentioned H.W.’s religious denomination did not support the death
penalty, suggesting he did not find her credible. Such a finding was reasonable
under the circumstances. Also, neither of the jurors identified by defendant
equivocated on the issue of the death penalty as did H.W. on her questionnaire and
during voir dire. Further, even though she indicated life without parole was the
worst punishment, defendant argues that H.W.’s views on the death penalty “did
not go beyond” other jurors who sat on the jury. Not true. Although some jurors
also may have believed that the punishment of life without parole was worse than
the penalty of death, as stated, none expressed reservations about the death penalty
as did H.W. In sum, defendant’s comparisons fail to establish that the
prosecutor’s race-neutral reasons were pretextual. Substantial evidence supports
the trial court’s findings that the prosecutor’s reasons were genuine and not based
on race.
B. Issues Affecting Guilt and Penalty
1. Judicial Bias
Defendant contends the superior court judge assigned to preside over his
case for all purposes improperly failed to recuse himself as suggested by defendant
and under circumstances in which a reasonable person would have entertained
44
doubts concerning his impartiality, in violation of Code of Civil Procedure section
170.1, subdivision (a)(6). He adds that subsequent rulings made by the judge
revealed his bias throughout trial.
2. Trial Proceedings
During pretrial proceedings, defendant filed a petition for writ of mandate
in the Court of Appeal after the trial judge allegedly “refused to reconsider the
denial of [his] section 995 motion [to dismiss the information].” He also requested
a temporary stay of the trial proceedings. The Court of Appeal issued the stay on
Friday, July 9, 1993. Three hundred prospective jurors had been summoned to
appear in the trial court on Monday, July 12, 1993, for the commencement of jury
selection. Instead, the trial judge conducted a hearing regarding defendant’s writ
petition and the temporary stay of proceedings that had issued.
At the hearing, the trial judge said that he was “very upset” about the recent
developments in defendant’s case because to his knowledge, a copy of defendant’s
writ petition had not been served on the trial court and defense counsel gave him
no indication of the possibility that a stay of proceedings might issue. The judge
further explained that he tried to keep the costs of county trials to a minimum and
that he had no time to tell jurors to not report for jury duty as scheduled.
The trial judge and counsel then discussed the procedural posture leading to
the filing of the writ petition. Counsel reminded the trial judge that a previous writ
petition had been filed in this case. The trial judge remarked that the prior petition
was “[a]lso full of specious statements.” When counsel disagreed with the judge’s
characterization, the judge responded, “[Counsel], you are so intellectually
dishonest that if you turned around fast, you’d screw yourself into the ground.”
The trial judge and counsel then debated the merits of the writ petition and
the circumstances that resulted in its filing. Counsel claimed that the trial judge
45
failed to rule on his motion to reconsider the denial of his section 995 motion. The
trial judge disagreed and stated that he declined to reconsider the motion on “June
21st,” and that “Oh, I see. The word ‘refused’ doesn’t mean refused to you.” The
judge then asked counsel, “How many times do you want me to reconsider a
denial to reconsider?”
After a recess, the trial judge told counsel that he had considered whether
this incident would cause him to be biased against defendant and ultimately
decided he could give defendant a fair trial. Counsel asked the trial judge whether
he would not hold the temporary stay of the trial proceedings against defendant.
The trial court responded, “Without question.”
The trial judge continued to complain that counsel’s office had not served
him with the writ petition and that certain allegations were either untrue or
misleading. Ultimately, the trial judge reiterated he could give defendant a fair
trial and assured counsel he would disqualify himself if he found himself
“compromising” defendant’s right to a fair jury trial. Trial counsel did not
respond and apparently accepted the trial judge’s representation that defendant
would receive a fair trial.
We note initially that during the pretrial hearing regarding the issuance of
the temporary stay of proceedings that defendant did not request but merely
suggested the trial judge “should recuse [himself].” When the trial judge
responded by assuring counsel that defendant would receive a fair trial and
continuing with the proceedings, counsel made no effort to comply with the
procedures under Code of Civil Procedure section 170.3, subdivision (c)(1), and
seek disqualification of the judge. (People v. Bryant (1987) 190 Cal.App.3d 1569,
1572-1573 [discussing the procedures under Code of Civil Procedure section
170.3, subdivision (c)(1), that counsel is to follow to challenge a judge’s
qualification to preside over further proceedings once the judge refuses to
46
disqualify himself or herself].) As the People assert, counsel apparently accepted
the judge’s representation that defendant would receive a fair trial.
“If a judge refuses or fails to disqualify herself, a party may seek the
judge’s disqualification. The party must do so, however, ‘at the earliest
practicable opportunity after discovery of the facts constituting the ground for
disqualification.’ (Code Civ. Proc., § 170.3, subd. (c)(1).)” (People v. Scott (1997)
15 Cal.4th 1188, 1206-1207.) As was the case in Scott, defense counsel was fully
aware before and during trial of all the facts defendant now cites in support of his
claim of judicial bias. But he never claimed during trial that the judge should
recuse himself or that his constitutional rights were violated because of judicial
bias. “It is too late to raise the issue for the first time on appeal.” (Ibid; see also
People v. Brown (1993) 6 Cal.4th 322, 334 [“[Code of Civil Procedure s]ection
170.3 [subdivision] (d) forecloses appeal of a claim that a statutory motion for
disqualification authorized by section 170.1 was erroneously denied”].) For the
same reason, defendant has forfeited his additional claims that the trial judge’s
alleged bias affected his subsequent trial rulings. (Scott, supra, 15 Cal.4th at p.
1207.)
In any event, defendant’s claim lacks merit.
Defendant has a due process right to an impartial trial judge under the state
and federal Constitutions. (Arizona v. Fulminante (1991) 499 U.S. 279, 309;
People v. Brown, supra, 6 Cal.4th at p. 332.) The due process clause of the
Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no
actual bias against the defendant or interest in the outcome of the case. (Bracy v.
Gramley (1997) 520 U.S. 899, 904-905.)
Section 1044 provides that a trial court has the duty to control the trial
proceedings. (See also People v. Carpenter (1997) 15 Cal.4th 312, 397.) When
an attorney engages in improper behavior, such as ignoring the court’s instructions
47
or asking inappropriate questions, it is within a trial court’s discretion to
reprimand the attorney, even harshly, as the circumstances require. (People v.
Snow (2003) 30 Cal.4th 43, 78.) Mere expressions of opinion by a trial judge
based on actual observation of the witnesses and evidence in the courtroom do not
demonstrate a bias. (Moulton Niguel Water Dist. v. Colombo (2003) 111
Cal.App.4th 1210, 1219-1220; see also People v. Farnam, supra, 28 Cal.4th at pp.
193-195.) Moreover, a trial court’s numerous rulings against a party—even when
erroneous—do not establish a charge of judicial bias, especially when they are
subject to review. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d
781, 795-796; McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11.)
On appeal, we assess whether any judicial misconduct or bias was so
prejudicial that it deprived defendant of “ ‘a fair, as opposed to a perfect, trial.’ ”
(People v. Snow, supra, 30 Cal.4th at p. 78, quoting United States v. Pisani (2d
Cir. 1985) 773 F.2d 397, 402.)
Here, based on our review of the record, we conclude defendant fails to
establish he was deprived of his constitutional right to a fair and impartial tribunal.
The trial judge was outraged because trial counsel failed to give him or the
courtroom clerk a courtesy call and inform him that he (counsel) had requested a
temporary stay of proceedings that would potentially obviate the need for the 300
prospective jurors who had been summoned for the commencement of jury
selection. But all of his comments in this regard were made outside the presence
of any jurors. The judge made clear, moreover, that his irritation was with counsel
and not defendant. He unequivocally stated defendant would receive a fair trial,
and counsel accepted that representation. Further, the trial judge did not display
overt bias against the defense so as to deprive defendant of a fair trial. (People v.
Snow, supra, 30 Cal.4th at p. 79.)
48
Defendant’s additional claim that subsequent rulings by the trial judge
revealed a bias that “was more than passing anger” also fails on the merits. As
stated, adverse or erroneous rulings, especially those that are subject to review, do
not establish a charge of judicial bias. (Andrews v. Agricultural Labor Relations
Bd., supra, 28 Cal.3d at pp. 795-796.) Defendant never expressed any concern
that the judge was prejudiced against him during trial nor did he request the judge
to recuse himself. We see nothing in the record establishing bias against
defendant. As the People argue, defendant’s willingness to let the entire trial pass
without another charge of bias against the judge not only forfeits his claims on
appeal but also strongly suggests they are without merit. (See, e.g., People v.
Tappan (1968) 266 Cal.App.2d 812, 816-817 [following the trial judge’s allegedly
prejudicial pretrial comment, defendant’s failure to complain of judge’s bias
during trial showed defendant’s confidence in judge’s impartiality].)
Accordingly, defendant’s claim of judicial bias fails on the merits.
C. Guilt Phase Issues
1. Evidentiary Issues
a. Admissibility of Powell’s Statements Regarding Her Fear of
Defendant
During the prosecutor’s direct examination of Braziel, defense counsel
objected to Braziel’s testimony that “[Powell] said ‘Francisco was in my house
when I was asleep and my door was open.’ ” Outside the presence of the jury,
counsel argued Powell’s state of mind was irrelevant, the statements were
inadmissible hearsay, and Powell, of course, was unavailable for cross-
examination.
The trial court denied defendant’s objections, ruling the statements were
relevant and admissible under the state-of-mind exception to the hearsay rule to
explain Powell’s subsequent conduct of jerking away from defendant when he
49
approached her in her car. (Evid. Code, § 1250.) The trial court admonished the
jury that Powell’s statements could not be considered to prove defendant was in
fact in Powell’s house as she slept, but were admitted only for the purpose of
explaining her subsequent actions, if relevant.
On appeal, defendant contends the trial court erred in admitting Powell’s
statements that she was afraid of him and believed he was in her house while she
napped on the day of the murder. He claims such evidence was irrelevant,
inadmissible hearsay, and more prejudicial than probative under Evidence Code
section 352. We find no error.
The abuse of discretion standard of review applies to any ruling by a trial
court on the admissibility of evidence. (People v. Rowland (1992) 4 Cal.4th 238,
264.) This standard is particularly appropriate when, as here, the trial court’s
determination of admissibility involved questions of relevance, the state of mind
exception to the hearsay rule, and undue prejudice. (Ibid.) Under this standard, a
trial court’s ruling will not be disturbed, and reversal of the judgment is not
required, unless the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest miscarriage of justice.
(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Evidence is relevant if it has any tendency in reason to prove a disputed
material fact. (Evid. Code, § 210.) “ ‘Hearsay evidence,’ ” defined as “evidence
of a statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated,” is generally
inadmissible. (Evid. Code, § 1200.)
Evidence of a statement of a declarant’s state of mind, when offered to
prove or explain the declarant’s conduct, is admissible, as long as the statement
was made under circumstances indicating its trustworthiness. (Evid. Code, §§
1250, subd. (a)(2), 1252.) A prerequisite to this exception is that the victim’s
50
mental state or conduct be placed in issue. (People v. Noguera (1992) 4 Cal.4th
599, 621.) Evidence of the murder victim’s fear of the defendant is admissible
when the victim’s state of mind is relevant to an element of an offense. (See, e.g.,
People v. Waidla, supra, 22 Cal.4th at p. 723 [victim’s statements indicating fear
of defendants were relevant to prove lack of consent in the burglary and robbery
related to her murder].)
Here, the trial court properly admitted Braziel’s testimony. “In a
prosecution for forcible rape, evidence is relevant if it establishes any
circumstance making the victim’s consent to sexual intercourse less plausible.”
(People v. Kipp (2001) 26 Cal.4th 1100, 1123-1124.) Powell’s statements that she
believed defendant came into her house as she napped and that she was afraid of
him were clearly probative of her lack of consent to sexual intercourse in the
attempted rape. Therefore, Powell’s state of mind was relevant to prove the
attempted-rape felony murder and the attempted-rape special-circumstance
allegation, and thus fell within the state-of-mind exception. (Evid. Code, §§ 1250,
subd. (a)(2).)
Defendant argues that even if Powell’s state of mind was at issue, the
statements were unreliable. To the extent the incident Powell described was a
dream or hallucination, for example, he argues it would not be trustworthy to
explain her state of mind. But the court admonished the jury the statements were
not to be considered as proof defendant was actually in Powell’s house when she
awakened from her nap, but as circumstantial evidence of her belief that he was
there. In addition, although the court recognized Powell might have dreamed
defendant was in her house or she may have spoken falsely about the incident,
such a possibility, without more, is insufficient to render her statements unreliable.
(See People v. Rowland, supra, 4 Cal.4th at p. 264.)
51
Defendant also contends the trial court abused its discretion in ruling that
Powell’s extrajudicial statements were not substantially more prejudicial than
probative. We conclude the claim fails. Evidence is substantially more prejudicial
than probative under Evidence Code section 352 if it poses an intolerable “ ‘risk to
the fairness of the proceedings or the reliability of the outcome.’ ” (People v.
Waidla, supra, 22 Cal.4th at p. 724, quoting People v. Alvarez, supra, 14 Cal.4th at
p. 204, fn. 14.) As stated, Powell’s statements indicating her fear of defendant
were relevant to prove the lack of consent in the attempted-rape felony murder and
attempted-rape special circumstance. That Powell believed defendant entered her
house as she napped was not inflammatory, as defendant contends, given other
witnesses had testified defendant had been in Powell’s house throughout the day.
Further, the court specifically admonished the jurors not to consider
Powell’s statements as proof defendant entered her house. We presume jurors
follow limiting instructions (People v. Anderson (1987) 43 Cal.3d 1104, 1120),
and defendant has not rebutted that presumption. Defendant contends, however,
that these statements would have prejudicially impacted the jury in the penalty
phase because the court instructed it to consider the evidence admitted at the guilt
phase. In doing so, defendant argues, it would have assumed the truth of the
statements. But with respect to evidence that was admitted for a limited purpose
in the guilt phase, the court reminded the jury in the penalty phase it could
consider the evidence only for that limited purpose.
b. Admissibility of Powell’s Statements Regarding Other Workers
On the day of the murder, Braziel twice informed Al Canale, the electrical
contractor, that “Hispanic workers,” including defendant, were bothering Powell
in her house. Semere, one of Powell’s coworkers, talked to Powell on the
telephone on the day of the murder and testified he heard in the background the
52
voices of two men as they apparently entered Powell’s house through her sliding
glass door.
On cross-examination by defense counsel, Braziel recalled only the first
names of five members of the construction crew: Antonio, Roberto, Francisco
(defendant), Ruijilio, and Omar. He testified he had observed Roberto, Antonio,
and defendant in Powell’s backyard. When counsel attempted to ask Braziel
whether Powell had complained about Roberto being in her house, the trial court
sustained the prosecutor’s hearsay objection. Thereafter, Braziel testified that he
had observed Roberto go to Powell’s back door and that Powell complained
Roberto and other construction workers were bothering her, knocking on her door
two or three times a day.
Defendant contends the trial court abused its discretion when it sustained
the prosecutor’s hearsay objection and prevented trial counsel from asking Braziel
whether Powell complained about Roberto being in her house. We conclude the
trial court properly limited counsel’s cross-examination of Braziel.
Defendant argues evidence of Powell’s state of mind with respect to
Roberto was relevant and admissible under Evidence Code section 1250 to explain
her frustration with the workers and establish defendant was not the sole source of
her frustration. But, as stated, the declarant’s mental state or conduct must be at
issue to qualify for admission under the state-of-mind exception to the hearsay
rule. (People v. Noguera, supra, 4 Cal.4th at p. 621.) Here, there was no evidence
of third party culpability or evidence that Powell feared Roberto. Powell’s state of
mind as to Roberto thus was not relevant to prove an element of an offense or to
show Powell acted in conformity with that state of mind. (Evid. Code, § 1250.)
Therefore, evidence that Powell may have been frustrated with Roberto or the
other workers was irrelevant and inadmissible. We conclude the trial court did not
abuse its discretion in limiting counsel’s inquiry on this point.
53
Even assuming the trial court abused its discretion by limiting counsel’s
cross-examination of Braziel, any error was harmless because it is not reasonably
probable the evidence would have affected the outcome. (People v. Fudge (1994)
7 Cal.4th 1075, 1102-1103; People v. Cudjo (1993) 6 Cal.4th 585, 611-612
[erroneous exclusion of evidence of third party culpability]; People v. Watson
(1956) 46 Cal.2d 818, 836.) The jury heard testimony that in addition to
defendant, other workers had been in Powell’s house. Semere testified he heard
Powell holler for “Jose” and another man to get out of her house as he spoke with
her on the telephone in the afternoon on the day of the murder. Further, Braziel
testified Powell complained that Roberto and other workers knocked on her door
two or three times a day. Indeed, for these reasons, we would find any error
harmless beyond a reasonable doubt.
c. Admissibility of Hector Tobar’s Testimony Regarding Powell’s
Love of Guatemalan People and the Spanish Language
Defendant contends the trial court abused its discretion by admitting Hector
Tobar’s testimony regarding Powell’s interest in Guatemala and its people,
culture, and language. Tobar testified he and Powell took a 10-day trip to
Guatemala in 1988. Powell became “very fond” of Guatemala and wanted to stay
there “because she loved the people so much.” She began to learn the Spanish
language and would practice whenever she could find someone to speak with her.
On one occasion, Tobar visited Powell in the hospital where she worked and saw
her talk “to people in Spanish in the cafeteria and other places. She—she loved to
be able to talk to people.” At a bench conference, the trial court denied counsel’s
motion to strike Tobar’s testimony on the ground it was irrelevant.
Defendant contends the evidence was irrelevant. We disagree. As stated,
relevant evidence is evidence “having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.” (Evid.
54
Code, § 210.) “The test of relevance is whether the evidence tends ‘ “logically,
naturally, and by reasonable inference” to establish material facts such as identity,
intent, or motive.’ ” (People v. Scheid (1997) 16 Cal.4th 1, 13.)
Defendant and several of the construction workers whom Powell fed on
occasion and who knocked on Powell’s door several times a day were Spanish
speaking. Braziel heard Powell speak Spanish on the day of the murder. Evidence
that Powell enjoyed practicing her Spanish language skills by talking with
Spanish-speaking people had a tendency to explain why she took an interest in the
construction workers next door, including defendant, and shared her food and
drink with them. Thus, the evidence was relevant to establish the nature of the
relationship between Powell and the workers—that is, a nonsexual relationship
consistent with the prosecution’s theory that Powell’s interest in the workers,
including defendant, was other than sexual and that she feared defendant’s
unwanted attention. In light of its relevance under this theory, the trial court did
not abuse its discretion in admitting the evidence. (People v. Taylor (2001) 26
Cal.4th 1155, 1173.)
On appeal, defendant also argues that evidence of Powell’s love for
Guatemala and its people and her enjoyment in speaking Spanish with others was
inadmissible under Evidence Code section 110110 to show Powell was friendly
with defendant simply because he was Guatemalan and spoke Spanish. He further
argues this evidence was not properly admitted under Evidence Code section
10
Evidence Code section 1101, subdivision (a) provides that “evidence of a
person’s character or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her conduct on a specified
occasion.”
55
110311 because he had not introduced evidence showing Powell’s dislike of
Guatemala, its people, or its language. Counsel’s objection to this testimony on
the sole ground of relevance, however, did not preserve for appeal his present
contention that the testimony was improper character evidence. (Evid. Code, §
353; People v. Clark (1992) 3 Cal.4th 41, 127-128.) His claim is thus forfeited on
this ground. In any event, this claim is without merit.
Evidence may be relevant and admissible for one purpose even though it
is inadmissible for another purpose. (See Evid. Code, § 355; People v. Eagles
(1982) 133 Cal.App.3d 330, 340.) Tobar’s testimony relating Powell’s love for
Guatemala, its people, and its language was admissible to explain Powell’s motive
in interacting with the construction workers, including defendant, on the day of the
murder. Further, we disagree with defendant’s assertion that Tobar’s testimony
created a uniquely sympathetic view of the victim in the guilt phase. (See former
CALJIC No. 1.00 [the jury must not be influenced by sympathy]; People v. Fields
(1983) 35 Cal.3d 329, 362 [“appeals to the sympathy or passions of the jury are
inappropriate at the guilt phase”].) A court need not exclude otherwise admissible
evidence merely because it might generate sympathy for a crime victim.
d. Admissibility of Dr. Jose La Calle’s Testimony that Defendant
was Passive
Defendant contends the trial court erroneously excluded the testimony of
Dr. Jose La Calle who would have testified regarding defendant’s passive
personality. Specifically, at an Evidence Code section 402 hearing, trial counsel
sought to present Dr. La Calle’s expert testimony that defendant was incapable of
11
The prosecution may introduce character evidence of the victim only to
rebut evidence offered by the defendant to prove the victim acted in conformity
with a particular character trait. (Evid. Code, § 1103, subd. (a)(2).)
56
committing a violent act under normal circumstances. Counsel offered to prove
that Dr. La Calle would testify that based on an interview of defendant and results
from a series of tests given to him, he formed the opinion that defendant has a
passive personality, is nonviolent, and is incapable “under normal circumstances”
of committing a violent act resulting in a homicide. Counsel further argued that
Dr. La Calle’s testimony was relevant to bolster character evidence he intended to
introduce regarding defendant’s reputation for honesty, veracity, and nonviolence.
The trial court refused to hear Dr La Calle’s testimony and stated the evidence
would be admissible only if he was “100 percent certain” that defendant would not
commit a violent act under any circumstances.
A defendant may introduce opinion evidence of his or her character to show
a nondisposition to commit an offense. (Evid. Code, § 1102, subd. (a); People v.
Stoll (1989) 49 Cal.3d 1136, 1153 [defendant charged with sex offense may
present expert opinion evidence of “lack of deviance”].) All expert opinion
testimony, however, is subject to the requirement that it be “[r]elated to a subject
that is sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.” (Evid. Code, § 801, subd. (a).) A trial court’s decision as
to whether a particular subject is a proper one for expert opinion is reviewed for
abuse of discretion. (People v. Mayfield (1997) 14 Cal.4th 668, 766; People v.
Cole (1956) 47 Cal.2d 99, 103-105; People v. Manriquez (1999) 72 Cal.App.4th
1486, 1492.)
We conclude that the trial court applied an incorrect standard by requiring
Dr. La Calle to be “100 percent certain” that defendant would not commit a
violent act under any circumstances before the proffered testimony could be
admitted. Given an opportunity, the expert might have testified (or counsel might
have expanded the offer of proof to state) that the facts of this case fell within his
definition of normal circumstances. Any error in excluding Dr. La Calle’s
57
proposed testimony, however, was nonprejudicial. The evidence of guilt was
strong, and the proposed testimony would have opened the door for rebuttal with
the evidence of defendant’s prior assault in Guatemala on Angela Guerra de
Maderos, which the prosecution introduced at the penalty phase.
Finally, defendant claims the trial court’s erroneous ruling also violated his
right to due process, to present a defense, and to a reliable verdict. (U.S. Const.,
5th, 6th, 8th, and 14th Amends.; Cal. Const., art. I, §§ 7, 15.) These constitutional
claims lack merit because, for the reasons stated, the exclusion of this evidence
was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24.)
e. Admissibility of Rebuttal Evidence Used in Re-creation of
Crime Scene
Defendant contends the trial court improperly admitted in rebuttal a hamper
that was used in the prosecution’s re-creation of the crime scene without
establishing that it met foundational requirements. He testified in his own defense
that after he found Powell on her utility room floor, he wedged himself between
the water cooler and the hamper and tried to lift her by her shoulders. Defendant
put Powell back on the floor when he realized she was too injured to move. In
doing so, he propped himself up on something, although he could not remember if
it was the wall, trash can, or hamper.
During rebuttal, the prosecution introduced a series of exhibits, including a
substitute hamper (the original had not been collected as evidence), that
reconstructed the crime scene in a courtroom mock-up. The courtroom mock-up
was also transported to the crime scene for a jury view. Detective Wachter
testified that a wastebasket collected from the crime scene had a price sticker from
an Armstrong store. Assuming the hamper was also purchased at an Armstrong
store, Wachter purchased a substitute hamper that was “identical in appearance” to
58
the hamper lying next to the victim’s body at the time of the murder. Defense
counsel objected to admission of the hamper on the grounds that there was no
showing the substitute hamper was made of the same material and had the same
strength and flexibility as the original hamper, and its admission therefore, was
improper.
The trial court overruled counsel’s objection and admitted the substitute
hamper, finding the hamper was of a size similar to the one depicted in the crime
scene photographs. It also noted the jury understood the original hamper was not
available. On appeal, defendant renews his challenge to the hamper’s
admissibility,
When, as here, the relevance of evidence depends on the existence of a
preliminary fact, the proffered evidence is inadmissible unless the trial court finds
there is sufficient evidence to sustain a finding of the existence of the preliminary
fact. (Evid. Code, § 403, subd. (a)(1).) That is, the trial court must determine
whether the evidence is sufficient for a trier of fact to reasonably find the existence
of the preliminary fact by a preponderance of the evidence. (People v. Marshall
(1996) 13 Cal.4th 799, 832.) “The court should exclude the proffered evidence
only if the ‘showing of preliminary facts is too weak to support a favorable
determination by the jury.’ ” (People v. Lucas (1995) 12 Cal.4th 415, 466.) A
trial court’s decision as to whether the foundational evidence is sufficient is
reviewed for abuse of discretion. (Ibid.)
The trial court did not abuse its discretion. Defendant argues the
prosecution failed to establish the preliminary fact that the substitute hamper was
similarly designed and constructed as the one next to the victim’s body at the time
of the murder. But the flaw in this argument is that because the original hamper
was not recovered from the crime scene, its design and construction could not be
established at trial. Contrary to defendant’s assertions, the prosecutor did not
59
invite the jury to conduct a physical experiment on the substitute hamper in order
to test its strength or construction. The prosecutor properly encouraged the jury to
test defendant’s testimony by using the substitute hamper and other objects of the
mock-up to determine whether defendant could have stood between the water
cooler and hamper, adjacent to Powell’s knee, when he purportedly lifted her up
by her shoulders. (People v. Baldine (2001) 94 Cal.App.4th 773, 778 [jurors may
use an exhibit according to its nature to aid them in weighing the evidence, but not
to generate new evidence].)
There was ample evidence from which the jury could determine the
substitute hamper resembled the original hamper under conditions substantially
similar to those prevailing at the time of Powell’s murder. Detective Wachter
testified that the substitute hamper was “identical in appearance” to the original.
The forensic artist who created the courtroom mock-up used the hexagonal tiles of
the utility room floor and the wall as a grid to plot the coordinates of the hamper,
water cooler, Powell’s body, and other items. He estimated the placement of these
items were accurate to one inch. The jury viewed the crime scene and could
compare the relative size and locations of the objects in the mock-up, including the
substitute hamper, to the dimensions of the actual utility room. In addition, the
jury could compare the substitute hamper with the hamper resting next to Powell’s
body, as depicted in photographs of the crime scene.
f. Exclusion of Surrebuttal Evidence Explaining Why Defendant
Did Not Tell His Wife About Finding Powell’s Body
Defendant contends that the trial court erred under Evidence Code section
356 by excluding surrebuttal evidence that would have explained why he was
afraid to tell his wife he discovered Powell’s body.
Defendant testified in his defense that after returning home on the day of
the murder, he did not tell his wife he had discovered Powell’s body because he
60
believed she would “bawl [him] out or something.” The prosecutor also elicited
on cross-examination that defendant believed his wife would get mad at him and
“bawl [him] out” for trying to help Powell. Defendant did not tell his wife about
finding Powell’s body until months after he was arrested.
Outside the presence of the jury, defense counsel sought to present
surrebuttal evidence explaining why defendant was afraid to tell his wife about
finding Powell’s body. Counsel made an offer of proof that defendant’s wife,
Antonia Salguero, would testify she and defendant argued when he helped injured
people in the past and that she felt he should not help people. Salguero would
testify regarding a specific incident in which defendant was falsely accused of
shooting an individual whom he had tried to help. The trial court ruled evidence
that defendant and his wife generally argued when defendant helped others was
admissible, but evidence regarding the specific incident in Guatemala was
inadmissible.
Salguero testified in the defense’s case-in-chief that she had scolded
defendant “many times” for helping other people. In the prosecution’s rebuttal,
she testified, “I never liked for him to be defending other people or anything. And
it was his habit all the time.” On cross-examination by defense counsel, Salguero
further testified she “got very angry” with defendant because he had gone into
Powell’s house and tried to help her.
Evidence Code section 356 provides: “Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the same
subject may be inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation, or writing is
given in evidence, any other act, declaration, conversation, or writing which is
necessary to make it understood may also be given in evidence.” The purpose of
this section is to prevent a party from using select aspects of a conversation, act,
61
declaration, or writing to create a misleading impression on the subject presented
to the jury. (People v. Arias (1996) 13 Cal.4th 92, 156.)
In this case, defendant was the proponent of evidence that his wife would
scold him for having tried to help Powell. Therefore, he was not an adverse party
entitled to inquire into the whole subject under Evidence Code section 356.
(People v. Lawley (2002) 27 Cal.4th 102, 155.) Accordingly, we conclude no
error occurred.
g. Admission of Defendant’s Statements to the Bailiff
At the prosecutor's request, the trial court conducted an Evidence Code
section 402 hearing near the end of the prosecution’s case-in-chief to determine
the admissibility of a statement defendant had made to Deputy Sheriff Richard
Breton, a courtroom bailiff, during a pretrial hearing. At the hearing, Breton
testified that on June 14, 1993, he had a conversation with defendant as he
escorted him from the courtroom to the lockup. Breton told defendant he had
visited several cities in Guatemala and enjoyed the country. Defendant
acknowledged the cities were very nice and then said, “In my country, I do this, no
problem, I go home tonight.” A few seconds later, he said something in Spanish
that Breton did not understand.
Trial counsel objected to admission of Breton’s testimony on the ground
that defendant’s statement to Breton was ambiguous.12 The prosecution argued
the statement was admissible as an implied admission of guilt. The trial court
acknowledged defendant’s statement was ambiguous but ruled the testimony was
12
Counsel also objected that the prosecution violated the discovery rules
because this testimony was not disclosed until the day the prosecution rested its
case. Defendant, however, does not raise this contention on appeal. In any event,
the trial court found no suggestion the prosecutor was aware of this testimony but
consciously withheld it from the defense.
62
nonetheless admissible because what defendant was referring to when he said “I
do this” is for the trier of fact to determine. At trial, Breton’s testimony was
consistent with his testimony at the hearing.
On appeal, defendant maintains the statement should have been excluded
because the meaning of “I do this” was ambiguous. His claim fails, however,
because it “concerns only the weight of this evidence, not its admissibility, which
does not require complete unambiguity.” (People v. Ochoa (2001) 26 Cal.4th 398,
438.)
Defendant additionally argues the statement was hearsay and not
admissible as an implied admission under Evidence Code section 1220. Because
defendant did not object on this ground at trial, he may not raise this issue on
appeal. (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) Moreover, the
argument is without merit. Evidence Code section 1220 provides that “Evidence
of a statement is not made inadmissible by the hearsay rule when offered against
the declarant in an action to which he is a party . . . .” In this case, the evidence
was of a statement made by and offered against defendant, the declarant as well as
a party to this prosecution. Regardless of whether the statement can be described
as an admission, the hearsay rule does not require its exclusion when it is offered
against a party declarant. (People v. Carpenter, supra, 21 Cal.4th at p. 1049.)
Finally, relying on People v. Hill (1998) 17 Cal.4th 800, and People v.
Cummings (1993) 4 Cal.4th 1233, defendant argues the trial court had a sua sponte
duty to instruct the jury that the bailiff’s testimony was not entitled to any special
weight simply because it came from a bailiff. In Hill, the courtroom bailiff
overheard the defendant make incriminating statements and at trial, testified for
the prosecution regarding those statements. (Hill, at p. 842.) The bailiff thereafter
resumed his courtroom duties. (Ibid.) On appeal, the defendant argued that,
among other things, the trial court, on its own motion, should have instructed the
63
jury to not give the bailiff’s testimony any additional weight merely because he
was a bailiff. (Id. at pp. 842-843.) We agreed such an instruction should have
been given, and further concluded the bailiff should have been reassigned to
another courtroom after he testified because the jurors would likely have accorded
the bailiff’s testimony additional weight simply because he was a uniformed
officer in charge of their protection. (Id. at pp. 842-843, 846.)
In People v. Cummings, supra, 4 Cal.4th at p. 1289, the courtroom bailiff
similarly overheard the defendant make incriminating statements and subsequently
testified at trial for the prosecution regarding those statements. The defendant
objected to admission of the bailiff’s testimony on the grounds its admission
would deny him due process and a fair and impartial trial because the bailiff was a
trusted court officer, had been involved in seating and escorting the jurors, and had
relayed juror messages to the court. (Ibid.) On appeal, we agreed with the trial
court’s findings that the probative value of the testimony outweighed any
prejudice to the defendant from his status as a trusted officer and concluded the
testimony was properly admitted. (Id. at p. 1290.) The bailiff had little direct
contact with jurors, had not been identified as a potential witness, was not a key
prosecution witness, and was relieved of his courtroom duties upon testifying.
(Ibid.) In addition, the trial court admonished the jury not to accord the bailiff’s
testimony greater weight because he had been a bailiff in the courtroom. (Id. at p.
1291.)
In this case, Breton served as bailiff in pretrial proceedings but was
reassigned from the courtroom in which defendant’s case was tried prior to
commencement of jury selection. Hence, there was no official interaction between
Breton, acting as the courtroom bailiff, and the jury. Unlike Hill and Cummings,
the danger that the jury would accord Breton’s testimony additional weight
because of his direct interaction with them was therefore nonexistent. Breton,
64
moreover, was not the key prosecution witness, and his presence as a uniformed
officer was no different than that of any other uniformed officer testifying in court.
Accordingly, on these facts, we conclude the trial court was not required to
admonish the jury that no greater weight should be accorded Breton’s testimony
because he was a courtroom bailiff.
2. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor engaged in prejudicial misconduct by
repeatedly asking argumentative and sarcastic questions during cross-examination
of defendant. Prosecutorial misconduct is reversible under the federal
Constitution when it “infects the trial with such unfairness as to make the
conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44;
accord, Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v.
DeChristoforo (1974) 416 U.S. 637, 643.) “Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under
[California] law only if it involves the use of deceptive or reprehensible methods
to attempt to persuade either the trial court or the jury.” (People v. Morales,
supra, 25 Cal.4th at p. 44.)
Generally, “a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant
[requested] an assignment of misconduct and [also] requested that the jury be
admonished to disregard the impropriety.” (People v. Ayala (2000) 23 Cal.4th
225, 284.) At trial, defendant objected to the prosecutor’s cross-examination of
defendant on several occasions. We conclude either no misconduct occurred or
any misconduct was harmless.
65
a. Questions About Defendant’s Truthfulness
During his first interview with the police, defendant denied that he had ever
been in Powell’s house. During the second interview, defendant initially
maintained that he had never been in Powell’s house but eventually admitted he
had previously lied to the police and had entered Powell’s house after she was
killed. On cross-examination, the prosecutor asked defendant several times
whether he “twitched,” “blinked,” “blushed,” or otherwise indicated to the officer
who interviewed him that he was lying. Defendant generally responded that he
did not know or remember. The trial court overruled counsel’s objections that the
prosecutor’s questions were argumentative.
On appeal, defendant claims the prosecutor’s questions constituted
misconduct because they were argumentative and served only to inflame the jury.
We disagree. An argumentative question is designed to engage a witness in
argument rather than elicit facts within the witness’s knowledge. (People v.
Mayfield (1997) 14 Cal.4th 668, 755.) Defendant admitted he had lied to the
police during the first interview. As the People point out, the questions were
appropriate because they related to distinct mannerisms or gestures defendant may
have displayed when he lied. They were, in essence, designed to elicit facts within
defendant’s knowledge that related to the assessment of his credibility. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206 [it is the exclusive province of the trier of fact
“to determine the credibility of a witness and the truth or falsity of the facts on
which that determination depends”].) No misconduct occurred.
In addition, defendant claims that the trial court acted improperly in
clarifying a question during this examination. Defendant had indicated he did not
understand what the prosecutor was asking. The court described the cross-
examination as “stalled” and clarified the prosecutor “is asking you if you are
aware of anything that you do when you lie, such as blush or blink your eyes or
66
swallow hard or be unable to look the other person in the eye.” Defendant
responded, “I don’t know.”
Absent an objection, defendant has forfeited this claim on appeal.
Nonetheless, it is without merit. While it is ordinarily the better practice for the
trial court to let counsel develop the case, a trial court properly may “undertake the
examination of witnesses . . . when it appears that relevant and material testimony
will not be elicited by counsel.” (People v. Rigney (1961) 55 Cal.2d 236, 243.)
b. Other Improper Questions
Defendant claims the prosecutor improperly asked defendant why two
prosecution witnesses would lie. We disagree.
Eric Sloane testified for the prosecution that on the day of Powell’s murder,
when he looked for defendant on the jobsite, he heard a gate close and saw
defendant emerge from a hedge that separated the house being remodeling and
Powell’s house. Sloane asked defendant why he was on Powell’s property.
According to Sloane, defendant apologized and told him it would not happen
again. Defendant testified he was coming from the garage on the construction site
and had not been on Powell’s property. On cross-examination, over objection, the
prosecutor asked defendant if he knew of any reason why Sloane would have lied.
Defendant testified that Sloane was not lying because “[h]e didn’t find me on the
other side inside the house.”
Prosecution witness Susan Michel testified that shortly after 4:00 p.m. on
the day of Powell’s murder, she walked by Powell’s house and observed three
workers drive away from the remodeling site. According to Michel, defendant
remained and asked her whether she had come from Powell’s house. Michel told
him no, and that she lived down the street on the corner. On cross-examination,
defendant denied that he had such a conversation with Michel. The prosecutor
67
then asked defendant if Michel had any reason to lie about him. Defendant
responded no.
The People argue defendant has forfeited this claim as to Michel because he
failed to object to the prosecutor’s question of her. We disagree. Any objection
would have been futile because the trial court had previously overruled his
objection on the same ground with respect to witness Sloane. (People v. Hill,
supra, 17 Cal.4th at p. 821.) Therefore, defendant has not forfeited the claim for
appeal. (Ibid.)
The prosecutor did not ask defendant for his opinion as to Sloane’s and
Michel’s veracity. Rather, the questions assumed these witnesses might have been
lying and sought possible explanations for their false testimony from defendant.
This is not misconduct. It is apparent the prosecutor’s questions were designed
merely to highlight the discrepancies between defendant’s testimony and that of
the witnesses. The questions did not call on defendant to characterize Sloane and
Michel as liars. The jury, moreover, was instructed under former CALJIC No.
2.20 that they were the sole judges of the believability of a witness.
c. Challenge Regarding Defendant’s Testimony
Defendant contends the prosecutor’s questions regarding his inability to tell
his wife about discovering Powell’s body at the crime scene were argumentative.
On cross-examination, defendant testified that he did not inform his wife about
finding Powell’s body because he was “scared” and “didn’t have the courage” to
tell her. In response, the prosecutor asked defendant whether he thought his wife
would have put a bag over his head and tortured him13 if he told her what he had
13
Defendant testified earlier that he was a police officer in Guatemala and
had observed the torturing of suspects: “Well, when I was—where I was at, I was
at the border in San Marcos, they just use the hood there, and some blow, some
(Footnote continued on next page.)
68
observed. Defendant claims the prosecutor’s question was argumentative and
constituted misconduct.
No misconduct occurred. As stated, an argumentative question is designed
to engage a witness in argument and is improper. (People v. Mayfield, supra, 14
Cal.4th at p. 755.) Here, the prosecutor properly challenged defendant regarding
his explanation that he was “scared” and “didn’t have the courage” to tell his wife
about discovering Powell’s body. The prosecutor’s questions served to highlight
for the jury the improbability of defendant’s explanation. (See, e.g. People v.
Bemore (2000) 22 Cal.4th 809, 847 [“the prosecutor simply employed a rhetorical
device calculated to focus the jury’s attention on strong circumstantial evidence of
guilt and on any corresponding weaknesses in the defense case”].)
d. Questioning Regarding Inconsistencies in Defendant’s
Testimony
On direct examination, defendant testified inconsistently regarding the
events that prompted him to go over to Powell’s house after all of the construction
workers had left for the day. He first described hearing “two voices like
something was happening” but said he “heard a woman’s voice.” Defendant
testified he was unable to understand the voices because they were speaking in
(Footnote continued from previous page.)
small blows. That’s all. But it was enough for a person to be careful because as
soon as they put the hood on and he would start choking so he would give
in . . . The hood is something like a plastic—and if the person is very suspicious to
them like they really think they did something, they put some kind of a powder
like . . . . [¶] It’s a powder named gamsen, g-a-m-s-e-n, that is . . . an insecticide,
they don’t put very much, a little bit, place it on his head, covering his face up, and
it’s got like a—like a tie, it’s closed up . . . so it remains closed. So people can’t
breathe. [¶] And then after a little while then when they know nothing’s happened
to the person, they remove it, the person is kind of half dead though.”
69
English. He then said he heard “just a woman’s voice” and “then two voices.” He
described the voices as “not normal voices.” Defendant subsequently clarified he
heard two voices that made loud sounds associated with pain. He did not hear any
words.
On cross-examination, the prosecutor followed up on this issue:
“[The Prosecutor]: Sir, were these two women saying words in the English
language?”
“[Defendant]: The two ladies?”
“[The Prosecutor]: Yes.”
“[Defendant]: What two ladies?”
“[The Prosecutor]: You—are you just making this up as you go
along?”
“[Counsel]: I am going to object [to] that; that’s argumentative, Your
Honor. It’s not a question.”
“THE COURT: Overruled.”
“[The Prosecutor]: [A]re you making this up as you go along?”
“[Defendant]: You are asking me about the two ladies?
“[The Prosecutor]: No, I am asking you whether you are just making this
up as you go along.”
“[Defendant]: I’m not making anything up.”
On appeal, defendant contends that he did not understand and was confused
by many of the prosecutor’s questions. For this reason, he claims the prosecutor’s
questions in the preceding exchange were sarcastic and abusive and constituted
misconduct. We find no misconduct. As the People point out, because
defendant’s testimony regarding the voices he heard coming from Powell’s house
was riddled with inconsistencies, the prosecutor could properly test defendant’s
veracity in this area and highlight any inconsistencies. Moreover, the jury heard
70
defendant’s testimony and could evaluate whether his inconsistencies were the
result of his language difficulties or lack of candor.
e. Questioning Regarding Defendant’s Actions After Discovering
Powell’s Body
Defendant testified that he did not remember washing any blood off of
himself after finding Powell’s body, but he admitted that he must have done so in
the pool at the house under construction. The prosecutor repeatedly questioned
defendant’s memory in this area and finally asked him if he was afraid to admit to
the jury that he washed the blood off of himself. The trial court overruled
counsel’s objection that the question was argumentative.
On appeal, defendant contends the prosecutor engaged in misconduct
because the question was argumentative and suggested he was trying to hide
something even though he admitted he must have washed any blood off. We
conclude no misconduct occurred. Evidence of defendant’s specific conduct was
relevant and admissible on the issue of his credibility. (People v. Harris (1989) 47
Cal.3d 1047, 1080-1082.) Thus, the prosecutor could properly focus on
defendant’s testimony regarding his specific actions after he left Powell’s house to
determine whether defendant’s conduct was consistent with attempting to help
Powell or with covering up evidence of her murder.
f. Cumulative Impact of Alleged Prosecutorial Misconduct
Defendant contends the numerous instances of alleged misconduct rendered
his trial fundamentally unfair, in violation of his federal constitutional right to due
process and a reliable verdict. Because we have concluded no misconduct
occurred, his claim fails.
3. Sufficiency of Evidence of Attempted Rape
The trial court found the evidence was insufficient to instruct the jury on a
theory of premeditated and deliberate murder. Accordingly, the prosecution’s sole
71
theory supporting defendant’s first degree murder conviction and the related rape-
murder special-circumstance finding was felony murder during an attempted rape.
Defendant contends the evidence is insufficient to establish Powell was murdered
during an attempted rape, and this court must reverse his first degree felony-
murder conviction and strike the related rape-murder special-circumstance finding.
In the alternative, he argues we should reduce his conviction to second degree
murder.
In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we “examine the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Kraft (2000) 23 Cal.4th 978, 1053; see also Jackson v. Virginia
(1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578.) We
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. (People v. Kraft, supra, 23 Cal.4th at p.
1053.)
The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special-circumstance
allegations. (People v. Maury, supra, 30 Cal.4th at p. 396.) “[I]f the
circumstances reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably be reconciled
with a contrary finding.” (People v. Farnam, supra, 28 Cal.4th at p. 143.) We do
not reweigh evidence or reevaluate a witness’s credibility. (People v. Ochoa,
supra, 6 Cal.4th at p. 1206.)
72
A killing “committed in the perpetration of, or attempt to perpetrate” one of
several enumerated felonies, including rape, is first degree murder.14 (§ 189) The
rape-murder special circumstance equally applies to a murder “committed while
the defendant was engaged in . . . the commission of, [or] attempted commission
of” rape. (§ 190.2, subd. (a)(17)(C)); People v. Kelly (1992) 1 Cal.4th 495, 524-
525.) Forcible rape is an act of sexual intercourse accomplished with a person not
the spouse of the perpetrator against the person’s will by means of force or
violence. (§ 261, subd. (a)(2); People v. Maury, supra, 30 Cal.4th at p. 427.) An
attempt to commit rape has two elements: the specific intent to commit rape and a
direct but ineffectual act done toward its commission. (See People v. Carpenter,
supra, 15 Cal.4th at p. 387.) The act must be a direct movement beyond
preparation that would have accomplished the crime of rape if not frustrated by
extraneous circumstances. (Ibid.) An actual element of the offense, however,
need not be proven. (People v. Dillon (1983) 34 Cal.3d 441, 454, 456 [attempted
robbery].)
Intent to commit rape is the intent to commit the act against the will of the
complainant. (See, e.g., People v. Maury, supra, 30 Cal.4th 342, 400 [assault with
intent to commit rape]; People v. Ghent (1987) 43 Cal.3d 739, 757 [an assault with
intent to commit rape and an attempted rape require the same specific intent].) A
defendant’s specific intent to commit a crime may be inferred from all of the facts
and circumstances disclosed by the evidence. (People v. Craig (1994) 25
14
The trial court instructed the jury that a killing “which occurs during the
attempted commission of the crime of rape is murder of the first degree when the
perpetrator had the specific intent to commit such crime.” (Former CALJIC No.
8.21.)
73
Cal.App.4th 1593, 1597; see also People v. Cain (1995) 10 Cal.4th 1, 47
[burglary].)
Defendant first contends the evidence shows, at most, a sexual interest in
Powell that cannot be equated with an intent to rape. Second, he contends because
there was no physical evidence of a sexual attack, there was no evidence of
attempted rape. We disagree and conclude the jury could reasonably infer
defendant’s intent to have nonconsensual intercourse with Powell by force and
further find his actions at least went beyond mere preparation and constituted
direct but ineffectual acts toward the attempted commission of a rape.
In older cases involving a charge of sexual assault, in the absence of
physical evidence that a sexual assault had occurred (e.g., the presence of semen
or vaginal trauma), the court declined to infer an intent to commit a sexual assault
on the victim, even if the victim was unclothed. (See, e.g., People v. Granados
(1957) 49 Cal.2d 490, 497; People v. Craig (1957) 49 Cal.2d 313, 318-319;
People v. Anderson (1968) 70 Cal.2d 15, 35.) Recently, we distinguished these
decisions by noting the lack of semen or absence of sexual trauma on the victim
did not rebut an inference, based on the other physical evidence surrounding the
attack, that the defendant entered the victim’s house with an intent to rape.
(People v. Holloway (2004) 33 Cal.4th 96, 138-139.) We concluded there was
sufficient evidence from which the jury could reasonably infer the defendant’s
intent to rape, notwithstanding the absence of physical evidence the victim
suffered a sexual assault. (Ibid.) The jury could reasonably infer defendant’s
intent to rape from the condition of the victim’s body and evidence of the
defendant’s attempted rape of the victim’s sister. (Ibid.) Here, as in Holloway,
despite the lack of physical evidence Powell had suffered a sexual assault, we
conclude sufficient evidence established defendant intended to rape her.
74
The record establishes defendant’s escalating sexual interest in Powell. A
few days before the murder, as defendant sat around the remodeling site with other
coworkers, he used the word “panocha,” a slang term for female genitalia, in
reference to Powell as he gyrated his hips in a sexual manner. On the day of the
murder, defendant repeatedly entered Powell’s property and house. In the
morning, defendant walked through Powell’s utility room door and into her
kitchen. Powell asked Braziel to take defendant back to the remodeling site. After
lunch, Braziel found defendant standing alone on Powell’s back patio. Around
2:30 p.m., Sloane, the remodeling contractor, heard the gate to Powell’s backyard
close and saw defendant emerge from the hedge separating the properties. When
Sloane asked defendant why he was next door and not working, defendant
apologized and assured him it would not happen again. Later, after defendant had
stepped through Powell’s patio door and into her den, Powell again asked Braziel
to take defendant back to the remodeling site. Defendant repeatedly chanted
“Kathy for me, me for Kathy” and gyrated his hips in a sexual manner. Braziel
tried to persuade defendant to leave and told him, “[N]o, Francisco, Powell’s like
being a nice person. She don’t like you that way. She likes you like a friend.”
Defendant responded by continuing to repeat his “Kathy for me, me for Kathy”
chant and gyrating his hips. Still later, Canale, the electrical contractor, observed
defendant alone inside Powell’s utility room, drinking a brown beverage.
In addition, the evidence shows defendant fabricated a reason for remaining
at the remodeling site after all of the construction workers had left for the day. At
trial, defendant claimed that he told Antonio Flores, a coworker, he intended to
stay at the site until his boss, Kevin Cozen, returned. However, Cozen testified he
had made no arrangement to meet defendant at the site in the afternoon.
Defendant also had asked Michel, a neighbor who was walking by the
remodeling site after 4:00 p.m. whether she had come from Powell’s house, and
75
she replied, “No.” A jury could reasonably infer from such evidence that
defendant planned to catch Powell alone after the other construction workers had
left.
Evidence of Powell’s injuries also support a conclusion that defendant
attempted to rape her and stabbed her to death when she resisted having sex with
him. The most telling of Powell’s injuries are the poke wounds and the slash
wound on each of Powell’s breasts. The wounds were essentially parallel and
indicate defendant deliberately poked Powell in one breast with the tip of his knife
and then poked her in the other breast in the same manner. Then, after poking her
breasts, defendant slit one of Powell’s breasts open and slashed the other. Such
wounds obviously were not accidental. A jury could reasonably infer that by
inflicting these wounds, defendant intended to force Powell to do something
against her will. The nature and location of Powell’s injuries—considered in
conjunction with the above circumstantial evidence of defendant’s escalating
sexual interest in Powell, demonstrated persistence in entering Powell’s house, and
efforts to ensure that he would be alone with Powell at the end of the day—
support the jury’s finding that defendant intended to force Powell to submit to his
sexual intent.
Defendant argues that a myriad of circumstances was presented by the
evidence and that an attempted rape was not the only explanation that accounted
for Powell’s murder. For example, assuming he poked Powell’s breasts with a
knife, he maintains the evidence suggests equally that those wounds were inflicted
as a result of his taunting her for having rejected his sexual advances rather than
attempting to force her to have sexual intercourse with him. But the defense
offered no evidence at trial to contest the People’s evidence that defendant acted
with intent to rape Powell. Defendant testified he was not interested in Powell
romantically and found her upon hearing her screams, implying that some
76
unidentified third party must have attacked her in her utility room and stabbed her
to death. The jury obviously did not believe his version of events. His defense at
trial thus provides no support for his argument on appeal that the People’s
evidence was insufficient to establish his intent to rape Powell. The jury could
have reasonably inferred that defendant assaulted Powell with the intent to rape.
Further, the jury could have reasonably found defendant’s conduct
constituted a direct but ineffectual act in furtherance of his intent to rape, thereby
establishing his attempted rape of Powell. (People v. Carpenter, supra, 15 Cal.4th
at p. 387.) Proof of even slight acts beyond preparation done in furtherance of the
intent to rape will constitute an attempt. (People v. Memro (1985) 38 Cal.3d 658,
69; People v. Dillon, supra, 34 Cal.3d at p. 456.) Under the prosecution’s theory,
defendant’s infliction of poke wounds on Powell’s breasts, while she was alive,
constituted an act in furtherance of an attempted rape. Defendant complains that
the poke wounds were not necessarily inflicted in a sexual manner and that some
sort of physical sexual assault is required to establish attempted rape. Not so. In
Carpenter, supra, 15 Cal.4th at page 387, we declined to hold that an attempted
rape requires “some physical conduct of a distinctly and unambiguously sexual
nature.” (See also People v. Kipp (1998) 18 Cal.4th 349, 376-377 [a demand for
oral copulation followed by the actual or attempted use of force constitutes more
than mere preparation].)
Here, consistent with the prosecution’s theory, the jury could reasonably
find that defendant attempted consensual sexual intercourse with Powell, was
rejected by her, and then attempted to force her to comply by poking her breasts
with the tip of his knife.15 In doing so, defendant’s use of force amounted to more
15
The dissent suggests in the alternative that “[t]he physical evidence allowed
a reasonable inference that defendant tortured and killed Powell out of anger
(Footnote continued on next page.)
77
than mere preparation and progressed into an attempted rape. (People v.
Carpenter, supra, 15 Cal.4th at p. 387.)
For these reasons, we conclude the evidence is sufficient to support the
jury’s finding that defendant killed Powell during an attempted rape and,
accordingly, defendant’s first degree felony-murder conviction and the related
rape-murder special-circumstance finding.
4. Attempted Rape Special Circumstance
Here, defendant contends that, as a matter of law, the attempted rape
allegation cannot sustain the rape-murder special-circumstance in this case
because Powell’s murder was not committed to advance the attempted rape. We
disagree.
In People v. Kelly, supra, 1 Cal.4th at p. 526, we affirmed that a murder
committed during an attempted rape can support both a felony murder conviction
and a rape special-circumstance finding. A finding that a killing occurred in the
commission of a felony requires that “the two are parts of one continuous
transaction.” (People v. Berryman (1993) 6 Cal.4th 1048, 1085.) “The rape-
murder special-circumstance requires that the rape not be merely incidental to the
murder but does not require that the intent to kill arise after the rape or attempt to
rape.” (People v. Carpenter, supra, 15 Cal.4th at p. 388.) The jury must find that
(Footnote continued from previous page.)
because she refused him or out of jealousy over her friendship with his coworker,
Braziel.” (Dis. opn., post, at pp. 2-3.) As stated, however, the existence of
alternative theories does not render the evidence of defendant’s felony murder
conviction insufficient. (People v. Farnam, supra, 28 Cal.4th at p. 144.)
“Because the circumstances reasonably justify the jury’s findings, we may not
reverse the judgment simply because the circumstances might also reasonably be
reconciled with defendant’s alternative theories.” (Ibid.)
78
the defendant committed murder “in order to advance an independent felonious
purpose.” (People v. Green (1980) 27 Cal.3d 1, 61.) In this case, evidence that
defendant desired to have sexual intercourse with Powell, attempted to kiss her,
and entered her house without permission strongly suggests his primary
motivation was rape “or at least that the [attempted] rape was an ‘independent
purpose.’” (People v. Carpenter, supra, 15 Cal.4th at p. 387.) Accordingly,
defendant’s claim of error fails.
5. Instructional Issues
a. Instruction Regarding Motive (former CALJIC No. 2.51)
The trial court instructed the jury with the standard instruction regarding
motive.16 Defendants contends the motive instruction was erroneous on three
grounds. The People argue these issues are not cognizable because defendant
failed to object on these grounds at trial. For reasons explained below, we agree
with the People in part.
Defendant initially complains the motive instruction shifted the
prosecution’s burden of proof to imply he had to prove his innocence. Despite his
failure to object to this instruction on this basis, the claim is cognizable on appeal
because it implicates his substantial rights. (People v. Cleveland (2004) 32
Cal.4th 704, 750; § 1259.) Nonetheless, we have previously rejected this claim
(People v. Cleveland, supra, 32 Cal.4th at p. 750), and defendant offers no
persuasive reason to revisit our decision. (See also People v. Prieto (2003) 30
16
“Motive is not an element of the crime charged and need not be
shown. However, you may consider motive or lack of motive as a
circumstance in this case. Presence of motive may tend to establish guilt.
Absence of motive may tend to establish innocence. You will therefore
give the presence or absence, as the case may be, the weight to which you
find it to be entitled.” (Former CALJIC No. 2.51.)
79
Cal.4th 226, 254 [no reasonable juror would consider CALJIC 2.51 an instruction
or standard of proof instruction distinct from the reasonable doubt standard set
forth in CALJIC 2.90].)
Defendant next argues the motive instruction erroneously informed the jury
that evidence of motive alone was sufficient to establish guilt because, unlike the
court’s instruction on consciousness of guilt, the motive instruction did not
explicitly state that evidence of motive alone is not sufficient to prove guilt.
(People v. Cleveland, supra, 32 Cal.4th at p. 750.) This claim is not cognizable,
however, because defendant was obligated to request clarification and failed to do
so. (People v. Hillhouse (2002) 27 Cal.4th 469, 503 [a party must request a
clarifying instruction in order to argue on appeal that an instruction correct in law
was too general or incomplete].) In any event, we find no error in the instruction
and no prejudice. The jury was properly instructed on the reasonable doubt
standard. We find no reasonable likelihood the jury would interpret the instruction
as stating that motive alone was sufficient to prove defendant’s guilt. (People v.
Cleveland, supra, 32 Cal.4th at p. 750.) Certainly, the jury’s verdict in this case
was not based solely on motive.
Defendant further argues the motive instruction relieved the prosecution of
its burden of proving beyond a reasonable doubt defendant possessed the requisite
intent to rape when he killed Powell. He asserts that motive and intent were
indistinguishable in this case and that the jury would not have been able to
distinguish instructions involving motive and intent. This issue is cognizable on
appeal even absent defendant’s objection at trial. (§ 1259; People v. Hillhouse,
supra, 27 Cal.4th at p. 503 [no objection required for appellate review because
instructions involving an element of the crime affect the substantial rights of the
defendant].) But defendant’s claim lacks merit.
80
In People v. Maurer (1995) 32 Cal.App.4th 1121, which defendant cites,
the defendant was convicted of misdemeanor child annoyance under section 647.6.
To prove the mental state element of the offense, the prosecution had to show that
defendant’s conduct was motivated by an unnatural or abnormal sexual interest.
(People v. Maurer, supra, 32 Cal.App.4th at pp. 1126-1127.) The jurors were told
by one instruction that the defendant’s conduct must be “motivated” by an
unnatural or abnormal sexual interest and by another that “motive” need not be
established. (Ibid.) The Court of Appeal held the conflicting instructions
erroneously removed the issue of intent from the jury’s deliberations. (Ibid.)
This case is distinguishable. We have explained that “[m]otive describes
the reason a person chooses to commit a crime. The reason, however, is different
from a required mental state such as intent or malice.” (People v. Hillhouse,
supra, 27 Cal.4th at p. 504.) Here, although the intent to commit rape was an
element of the offense, motive was not. Moreover, the trial court instructed the
jury that to find the rape-murder special-circumstance, it must find the “murder
was committed in order to carry out or to advance the commission of the crime of
attempted rape” and the special-circumstance “is not established if the attempted
rape was merely incidental to the murder.” Consequently, the instructions as a
whole did not refer to motive and intent interchangeably. We find no reasonable
likelihood that the jury understood those terms to be synonymous. (People v.
Cash (2002) 28 Cal.4th 703, 739.)
b. The Special-Circumstance Instruction
With respect to the special circumstance of murder in the commission of an
attempted rape, the trial court instructed the jury as follows:
“To find that the special circumstance, referred to in these instructions as
murder in the commission of attempted rape is true, it must be proved:
81
“1. The murder was committed while the defendant was engaged in the
attempted commission of a rape; and
“2. The murder was committed in order to carry out or advance the
commission of the crime of attempted rape or to avoid detection. In other words,
the special circumstance referred to in these instructions is not established if the
attempted rape was merely incidental to the commission of the murder.” (Former
CALJIC No. 8.81.17, italics added.)
Defendant contends first that the trial court erred by refusing his request to
delete the phrase “or to avoid detection” from the instruction on the ground that
there was no evidence the killer murdered Powell to avoid detection. We disagree.
The jury could reasonably infer that defendant murdered Powell either to carry out
or advance the attempted rape or to avoid detection, or both. Indeed, no other
reason for his killing Powell readily appears. Any of these purposes would suffice
to support the special circumstance. Nothing required the trial court to limit the
jury to one choice or the other.
Defendant also maintains that the instruction permitted the jury to make the
special-circumstance finding in the absence of evidence of an attempted rape
because the jury could find the special circumstance true by simply finding he
tried to avoid detection “of whatever he had done up to that point.” Defendant’s
argument is premised on an unreasonable interpretation of the instruction. To find
defendant guilty of first degree felony murder, the jury was instructed it had to
find defendant had the specific intent to commit rape and that the attempted rape
was proven beyond a reasonable doubt. (Former CALJIC Nos. 3.31, 8.21.) The
challenged instruction further required that the jury had to find the murder was
committed while the defendant was engaged in the attempted commission of a
rape and the rape was not merely incidental to the murder. The jury was also
instructed to consider the instructions “as a whole” and to not single out any
82
particular point or instruction and ignore the others. (Former CALJIC No. 1.01.)
Therefore, as applied to this case, the special-circumstance instruction required
that Powell’s murder was committed to avoid the detection of an attempted rape.
We conclude, based on the totality of the instructions given, there is no
reasonable likelihood the jury misconstrued or misapplied the instructions.
(People v. Maury, supra, 30 Cal.4th at p. 437.)
c. Consciousness of Guilt Instructions
Evidence established, and defendant conceded, he made false and
misleading statements to the police and his wife. As a result, the trial court
instructed the jury, as follows: “If you find that before this trial the defendant
made a willfully false or deliberately misleading statement concerning the crime
for which he is now being tried, you may consider such statement as a
circumstance tending to prove a consciousness of guilt. However, such conduct is
not sufficient by itself to prove guilt, and its weight and significance, if any, are
matters for your determination.” (Former CALJIC No. 2.03.)
Defendant also provided police officers with clothing he claimed he wore
on the day of Powell’s murder. He told Detective Wachter he had not washed the
clothes. Based on this evidence, the trial court gave the following instruction: “If
you find that a defendant attempted to or did fabricate evidence to be produced at
the trial, such conduct may be considered by you as a circumstance tending to
show a consciousness of guilt. However, such conduct is not sufficient by itself to
prove guilt and its weight and significance, if any, are matters for your
determination.” (Former CALJIC No. 2.04.)
On appeal, defendant contends the consciousness of guilt instructions were
impermissibly argumentative and improperly allowed the jury to make
unreasonable inferences regarding his mental state during the commission of the
83
offenses. We have considered and rejected similar arguments in prior cases.
(People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Kipp, supra, 18
Cal.4th at p. 375, and cases cited; People v. Holt (1997) 15 Cal.4th 619, 678;
People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224; People v. Rodrigues (1994)
8 Cal.4th 1060, 1140-1141; People v. Bacigalupo (1991) 1 Cal.4th 103, 128.)
Defendant offers no persuasive reason for us to revisit these decisions.
d. Definition of Rape
The trial court instructed the jury on first degree felony murder, as follows:
“The unlawful killing of a human being, whether intentional, unintentional
or accidental, which occurs during the attempted commission of the crime of rape
is murder of the first degree when the perpetrator had the specific intent to commit
such crime.
“The specific intent to commit rape and the attempted commission of such
crime must be proved beyond a reasonable doubt.
“As used in this instruction, the word ‘rape’ means engaging in an act of
sexual intercourse with a female person, who is not the spouse of the perpetrator,
accomplished against such person’s will by means of force, violence, or fear of
immediate and unlawful bodily injury to such person.” (Former CALJIC 8.21.)
Defendant contends the definition of rape included in this instruction was
deficient because it failed to define “sexual intercourse.” We disagree.
As a preliminary matter, the People argue defendant has forfeited this claim
because he failed to request a clarifying instruction at trial. Generally, a claim of
instructional error is not cognizable on appeal if the instruction is correct in law
and the defendant fails to request a clarification instruction. (See e.g., People v.
Catlin (2001) 26 Cal.4th 81, 149.) Here, however, because the asserted error
consists of a failure to instruct on an essential element of the offense of rape as
84
included in the felony-murder charge and affects his substantial rights, his failure
to object does not preclude our review of this issue. (See e.g., People v. Flood
(1998) 18 Cal.4th 470, 482, fn. 7.)
Contrary to defendant’s assertion, “sexual intercourse” is not a technical
term with various meanings that might be misunderstood when used to define
rape. (See People v. Holt, supra, 15 Cal.4th at p. 676 [In the context of rape,
“sexual intercourse” requires penetration of the victim’s vaginal genitalia by the
male sex organ].) In Holt, we rejected defendant’s argument that the trial court
erred by failing to define “sexual intercourse” in the context of rape. The term
“sexual intercourse” was placed in proper context by other instructions given in
that case and by the arguments of counsel. (Ibid.)
Defendant asserts there was no similar clarification in this case, but we
disagree. It was undisputed that the offense was attempted rape, not rape, and
required no penetration. (People v. Ray (1961) 187 Cal.App.2d 182, 189 [“Rape
requires penetration, however slight.”].) Defense counsel argued the lack of
evidence of attempted rape, as follows: “There was no . . . tearing or attempted
removal of . . . Powell’s clothes. No penetration or attempted penetration of the
vaginal area. No evidence of any words or acts that would indicate an intent to
take a woman by force or against her will.”
We agree with the People that there is no possibility that the jury
misunderstood the term “sexual intercourse” in the context of the definition of
rape.
e. Instructions Regarding the Reasonable Doubt Standard
Defendant contends a number of instructions given to the jury (Former
CALJIC Nos. 1.00, 2.01, 2.02, 2.21.2, 2.22, 2.51, 8.83.1) were unconstitutional
because they misled jurors regarding the reasonable doubt standard and
85
impermissibly lightened the prosecution’s burden of proof. Each of his
contentions is without merit.
Defendant initially challenges three interrelated instructions on
circumstantial evidence: former CALJIC No. 2.01 (sufficiency of circumstantial
evidence—generally); former CALJIC No. 2.02 (sufficiency of circumstantial
evidence to prove specific intent or mental state); and former CALJIC No. 8.83.1
(special circumstances—sufficiency of circumstantial evidence to prove required
mental state). Defendant argues these instructions (1) misled the jury into
believing it could find him guilty if he “reasonably appeared guilty” regardless of
any reasonable doubt they may entertain as to his guilt, and (2) effectively
reversed the burden of proof and required the jury to find him guilty unless he
came forward with evidence of his innocence. We have repeatedly rejected these
arguments, and defendant offers no persuasive reason to reconsider our prior
decisions. (People v. Nakahara, supra, 30 Cal.4th at p. 714; People v. Hughes
(2002) 27 Cal.4th 287, 346-347; People v. Riel (2000) 22 Cal.4th 1153, 1200;
People v. Millwee (1998) 18 Cal.4th 96, 160; People v. Crittenden, supra, 9
Cal.4th at p. 144.)
Defendant next argues that former CALJIC No. 1.00 [defendant’s arrest
and prosecution not used to infer he is “more likely to be guilty than innocent”]
and former CALJIC No. 2.51 [presence of motive may establish guilt] misled the
jury because they undercut the prosecution’s burden of proof by failing to
emphasize the central issue in a criminal trial is not simply guilt or innocence but
whether guilt had been established beyond a reasonable doubt. But we have
rejected this argument as well. (People v. Nakahara, supra, 30 Cal.4th at p. 714;
People v. Frye (1998) 18 Cal.4th 894, 957-958.)
Defendant’s contention that former CALJIC No. 2.21.2 (witness willfully
false) impermissibly lightened the prosecution’s burden of proof, because it
86
allowed the jury to assess prosecution witnesses by seeking only a probability of
truth in their testimony, has recently been rejected. (See People v. Nakahara,
supra, 30 Cal.4th at p. 714; People v. Hillhouse, supra, 27 Cal.4th at p. 493.)
We also have recently rejected defendant’s claim that former CALJIC No.
2.22 (weighing conflicting testimony) directed the jurors to evaluate the evidence
by looking at its “convincing force” rather than the “relative number” of testifying
witnesses and in doing so, improperly “replaced” the beyond reasonable doubt
standard with a standard akin to a preponderance of evidence standard. (People v.
Nakahara, supra, 30 Cal.4th at pp. 714-715.)
D. Penalty Phase Issues
1. Evidentiary Issues
a. Admissibility of Hearsay Statement That Defendant Had Killed
Other People in Guatemala
Prosecution witness Angela Guerra de Maderos testified on direct
examination that on an evening in 1980, she was walking home through the
countryside in Guatemala and defendant attacked her and threatened to rape and
kill her. He kicked her to the ground and poked her throat with a machete.
Defendant left de Maderos when her husband and son approached and fired a shot.
On cross-examination, de Maderos explained that after the attack she went to the
police and made a report, but on the advice of her sons she did not identify
defendant as her assailant. After that, she made no further report of the incident.
In rebuttal, over counsel’s hearsay objection, de Maderos testified that she did not
report the attack, in part, because she feared defendant would kill her as she had
87
heard he was a violent person who had killed other people. The court instructed
the jury of the limited purpose for which it could consider this testimony.17
Defendant contends the trial court erred in admitting de Maderos’s
testimony that she had heard defendant was violent and had killed people because
her testimony was improper hearsay and inherently untrustworthy. On appeal, we
apply an abuse of discretion standard of review to any ruling by a trial court on the
admissibility of evidence. (People v. Alvarez, supra, 14 Cal.4th at p. 201.) Based
on our review, we conclude the trial court did not abuse its discretion in admitting
de Maderos’s testimony.
To be hearsay, a statement must be “offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) Here, the prosecution did not offer, and
the jury was not permitted to consider, de Maderos’s testimony about fearing
defendant for the truth of the matter asserted but for the nonhearsay purpose of
explaining why she did not report the attack. Her explanation was probative
because defense counsel suggested during cross-examination that her conduct was
inconsistent with being the victim of such an attack. The trial court carefully
17
The trial court instructed the jury as follows: “The jury is admonished that
this question—this answer that the witness has given to that question where she
said yes, is not proof that the defendant is—was a violent person or that he had
killed anybody. We’re dealing here solely with the state of mind of this witness.
That is, she’s giving an explanation for her conduct based upon what she had in
her mind. Whether those things are true or not is not the issue. [¶] The issue is
whether this witness believed them and she’s offering that as a reason why she did
not further report the matter. And that’s the sole purpose for which the answer is
received. [¶] You’re the ones to assess the credibility of this witness, you’re the
ones to assess her reasons, if any, that she gives for things that she did or didn’t
do. [¶] But you are not to take from her answer that the defendant was a violent
person or that he had killed anybody. [¶] All that’s relevant here is whether or not
you believe that this witness heard such things and if she did, that it affected her
and caused her not to report this matter.”
88
admonished the jury that de Maderos’s testimony that she had heard defendant
was violent and had killed people was being admitted solely to explain her failure
to report the attack and not for its truth. The import of her testimony was not
whether defendant was violent and had killed in Guatemala, but whether de
Maderos failed to report the attack because she believed he was violent. Thus, the
testimony was properly admitted for a nonhearsay purpose. (People v.
Armendariz (1984) 37 Cal.3d 573, 585.)
Defendant’s argument that de Maderos’s testimony was inadmissible
because her testimony was untrustworthy is misplaced. “Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends.” (People v. Maury, supra, 30 Cal.4th at p. 403.)
b. Admissibility of Testimony that Witnesses Feared Retribution
Because They Testified Against Defendant
De Maderos testified, over defense counsel’s objections, that she was
worried that “something might happen to [her]” when she returned to Guatemala
after testifying because she believed defendant’s family “might not take [her
testimony] well.” De Maderos further testified she had “heard it being said that if
we came here to testify, the only pleasure we would have would be to come, but
that something might happen to us when we returned.” Edgar Ramirez also
testified over counsel’s objections that he was concerned about his family upon
returning to Guatemala and worried that someone might hurt him because he was
testifying in this case. He had received no direct threat nor heard any talk in his
hometown in Guatemala that he would be in danger when he returned home after
testifying.
89
On appeal, defendant contends the trial court erred in admitting their
testimony that they were afraid of the consequences of testifying against defendant
when they returned to Guatemala. We find no abuse of discretion in permitting de
Maderos and Ramirez to testify regarding their fear of testifying against defendant.
“Evidence that a witness is afraid to testify or fears retaliation for testifying is
relevant to the credibility of that witness and is therefore admissible.” (People v.
Burgener, supra, 29 Cal.4th at p. 869; Evid. Code, § 780, subd. (f) [jury may
consider the existence or nonexistence of a bias, interest, or other motive in
determining a witness’s credibility].) An explanation of the basis for the witness’s
fear is likewise relevant to the jury’s assessment of his or her credibility and is
well within the discretion of the trial court. (Ibid.) For such evidence to be
admissible, there is no requirement to show threats against the witness were made
by the defendant personally or the witness’s fear of retaliation is “directly linked”
to the defendant. (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588.)
Here, evidence that de Maderos feared retaliation for testifying against
defendant was offered for the nonhearsay purpose of explaining inconsistencies in
portions of her testimony, including her equivocal responses when asked whether
she feared retaliation. Ramirez’s testimony that he feared testifying was also
relevant to his credibility even though he testified he had not personally received
or heard of any threat. (See, e.g., People v. Avalos (1984) 37 Cal.3d 216, 232
[witness’s fear was caused only by the nature and gravity of her testimony].)
Moreover, as the People point out, the record suggests the witnesses exhibited
hesitancy in responding to questions. The jury was entitled to consider their
explanations in evaluating their credibility, and the trial court instructed the jury
accordingly. Importantly, the trial court further admonished the jurors that if they
believed the statements were made, they must not attribute them to defendant.
90
Accordingly, the trial court properly exercised its discretion in admitting their
testimony.
c. Admissibility of Ramirez’s Testimony that Defendant’s Family
Had Offered Him Money to Not Testify
In addition to testifying about his fear of testifying, Ramirez also testified,
over counsel’s objections, that defendant’s sister, identified only as “Mary,”
offered to give him money to not testify in this case.18 He declined the offer and
stated he would not accept any money. Defendant now argues the trial court erred
in admitting this evidence on the grounds it was irrelevant hearsay and prejudicial.
We disagree. “Just as the fact a witness expects to receive something in exchange
for testimony may be considered in evaluating his or her credibility,” (People v.
Olguin (1994) 31 Cal.App.4th 1355, 1368-1369) the fact that a witness declined
an offer for financial gain in exchange for his silence is likewise relevant in
evaluating his or her credibility. In this case, evidence that Ramirez was offered
money to not testify was properly admitted for the nonhearsay purpose of
assessing his state of mind at trial and the effect, if any, on his credibility.
Therefore, the trial court did not err in admitting the evidence.
The trial court properly instructed the jury that the evidence was limited to
their consideration of Ramirez’s credibility. Moreover, the court admonished the
jury that the evidence must not be attributed to defendant because there was no
evidence of his involvement in either making the offer or causing the offer to be
made.
18
Ramirez testified that Mary told him if de Maderos gave him any money to
testify in this case, she would give him money as well in order not to come to trial.
Outside the presence of the jury, Ramirez denied that de Maderos gave him money
to testify regarding her attack by defendant.
91
d. Exclusion of Testimony from Rego Roberto Maderos Regarding
the Identity of His Mother’s Attacker
During pretrial interviews, de Maderos denied that she told her son, Rego
Roberto de Maderos (Rego Roberto), that she did not recognize her attacker. She
stated she recognized defendant’s voice. During Rego Roberto’s interview, he
stated that at the time of the attack, his mother stated, “I didn’t recognize him.”
Defense counsel sought to introduce this statement to rebut the prosecution’s
evidence that defendant attacked de Maderos and sought an evidentiary hearing
under Evidence Code section 402.
Rego Roberto would have testified that at the time de Maderos was
attacked, he was working in a nearby field when he heard her scream and ran to
her. He asked de Maderos, “What happened to you, mother?” She answered that
a man wanted to kill her and that his “face was covered.” When Rego Roberto
asked her, “Who could it be?,” she replied “I didn’t recognize him.” Rego
Roberto would have testified further that the attacker did not leave a machete
behind, that defendant was not the attacker, and that he considered defendant to be
a nice person. The trial court denied defendant’s motion on the grounds Rego
Roberto was not competent to testify about the attack because he did not witness it
and his belief that someone else attacked de Maderos was irrelevant.
During the penalty phase, defendant renewed his motion for the admission
of Rego Roberto’s testimony, specifically his statement that he told his mother
someone else attacked her. The court denied his motion, explaining that Rego
Roberto’s testimony was inadmissible because he did not witness the attack, his
testimony was offered on a collateral issue, and his testimony was based on
rumors. In addition, the court ruled the testimony was inadmissible under
Evidence Code section 352 on the grounds it would mislead the jury and
necessitate undue consumption of time.
92
On appeal, defendant contends that the trial court erred in excluding the
proffered testimony on the ground that de Maderos’s statement that she did not
recognize her attacker was admissible as a prior inconsistent statement. (Evid.
Code, § 1235).19 The People argue defendant forfeited this issue because he failed
to object on this ground at trial. We disagree. To preserve for appeal an alleged
error in excluding evidence, a party must make an offer of proof informing the
trial court of the “purpose, and relevance of the excluded evidence.” (Evid. Code,
§ 354, subd, (a); see People v. Valdez (2004) 32 Cal.4th 73, 108.) In this case,
defense counsel’s written motion made clear he sought admission of Rego
Roberto’s testimony to rebut de Maderos’s testimony that she was assaulted by
defendant in Guatemala. We find this offer of proof adequate to preserve the
issue.
Evidence that de Maderos told her son that she did not recognize her
attacker would have been admissible as a prior inconsistent statement. Evidence
Code section 1235 states, in pertinent part: “Evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if the statement is
inconsistent with his [or her] testimony at the hearing . . . .” Prior inconsistent
19
Defendant also contends that Rego Roberto’s anticipated testimony that
there was no machete left at the scene of the attack was admissible to impeach de
Maderos’s testimony that defendant left a machete sheath at the scene or to
establish the existence of another Francisco Guerra who was an enemy of the de
Maderos family. We disagree on both counts. The fact that Rego Roberto did not
see a machete at the scene does not impeach de Maderos’s testimony that
defendant left his machete sheath with the initials F.G. at the scene. Further,
defendant’s assertion that Rego Roberto’s testimony “could have established that
there was another person named ‘Francisco Guerra’” is speculative and lacks
evidentiary support. Finally, Rego Roberto’s opinion that defendant was a “nice
person” and not “our enemy” was irrelevant and inadmissible to impeach de
Maderos regarding her failure to report the attack.
93
statements are admissible under this provision to prove their substance as well as
to impeach the declarant. (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.) In
this case, de Maderos’s testimony at trial identifying defendant as her attacker was
inconsistent with the proffered testimony that shortly after the attack she said she
did not recognize her attacker.
Nonetheless, error in excluding this evidence was harmless. De Maderos
was impeached by counsel when she revealed on cross-examination that prior to
giving her testimony on direct examination, she had not mentioned that she saw
defendant’s face during the attack. During previous interviews, she stated that
defendant’s face was covered by a bandana and that she recognized him only by
his voice. In addition, de Maderos gave equivocal or ambiguous answers when
asked why she failed to report the attack and whether she feared retaliation for
testifying against defendant. Under these circumstances, there is no reasonable
possibility that further impeachment of de Maderos regarding her identification of
defendant as her attacker would have affected the verdict. (People v. Jones (2003)
29 Cal.4th 1229, 1265, fn. 11; see also People v. Ochoa (1998) 19 Cal.4th 353,
479 [with respect to penalty phase error, our state law reasonable possibility
standard is equivalent to the harmless beyond a reasonable doubt standard of
Chapman v. California, supra, 386 U.S. at page 24, which governs federal
constitutional error].)20
20
Because we have concluded that defendant was not prejudiced by any error
in excluding Rego Roberto’s testimony, we need not address his second contention
that the testimony was admissible under the spontaneous declaration exception to
the hearsay rule. (Evid. Code, § 1240). In addition, defendant forfeited this issue
by failing to assert this ground at trial.
94
e. Exclusion of Photograph Offered in Mitigation
During the penalty phase, defendant offered three photographs as
mitigating evidence: a photograph of defendant’s home in Guatemala and his
three children; a photograph of his three children at the time of trial; and a
photograph of his horse and three children at the time they lived with defendant in
Guatemala. Counsel argued the photograph of the horse and defendant’s children
was relevant to show defendant and his family as they lived in Guatemala. He
added the photograph also was relevant to show the horse defendant rode when he
gave medical attention to people in the village. The trial court admitted the
photograph of defendant’s children at their home in Guatemala and the photograph
of the children at the time of defendant’s trial but excluded the photograph of
defendant’s horse and children as cumulative.
Defendant contends the court erred in excluding the photograph of his
horse. The trial court determines relevancy of mitigating evidence and retains
discretion to exclude evidence whose probative value is substantially outweighed
by the probability that its admission will create substantial danger of confusing the
issues or misleading the jury. (People v. Cain, supra, 10 Cal.4th at p. 64; People
v. Fauber (1992) 2 Cal.4th 792, 856.) Here, the trial court admitted a photograph
depicting defendant’s home in Guatemala and his three children. The jury heard
testimony from defendant’s wife that he and she raised all three children together
and that defendant would ride his horse to deliver medications to the local village
people. Accordingly, we conclude the trial court did not err in finding the
photograph of defendant with his horse irrelevant or in excluding it under
Evidence Code section 352.
95
2. Asserted Instructional Error Regarding Evidence of Unadjudicated
Criminal Activity
Defendant contends the trial court committed numerous errors in
instructing the jury regarding evidence of unadjudicated criminal activity
introduced under section 190.3, factor (b).
a. Instructions on Unadjudicated Criminal Activity
The notice of aggravating evidence the prosecution filed before trial
included the attempted rape of de Maderos in Guatemala. In a hearing outside the
presence of the jury, the trial court indicated to counsel that it did not intend to
instruct the jury on any elements of this offense because the issue for the jury to
decide was “whether they’re convinced beyond a reasonable doubt that the
defendant either did or attempted to use force or violence in an illegal manner
upon another person.” Defense counsel, however, asked that the jury receive the
instruction on attempted rape. The trial court informed counsel that if it gave an
instruction on attempted rape, it also would instruct the jury on assault with a
deadly weapon and attempted murder. It reasoned that if the jury did not find
beyond a reasonable doubt the alleged conduct was an attempted rape, it could
nonetheless consider the conduct under section 190.3, factor (b), as either an
assault with a deadly weapon or an attempted murder. Over counsel’s objection
that only the attempted rape instruction should be given, the trial court instructed
the jury on attempted rape, assault with a deadly weapon, and attempted murder.
The court then denied counsel’s request for instructions defining battery and
brandishing a weapon.
On appeal, defendant contends the trial court erred in instructing the jury on
assault with a deadly weapon and attempted murder. He argues that he was
entitled to rely on the particular offense alleged by the prosecutor in his notice of
96
evidence in aggravation (e.g., attempted rape) in presenting his defense without
having to defend against additional related offenses during trial. Not so.
Evidence of prior violent conduct is admitted under section 190.3, factor
(b), “to enable the jury to make an individualized assessment of the character and
history of the defendant to determine the nature of the punishment to be imposed.”
(People v. Davis (1995) 10 Cal.4th 463, 544.) The probative value of this
evidence lies in the defendant’s conduct that gave rise to the offense. (Ibid.) The
prosecution’s notice that evidence will be presented regarding a specific violent
crime or crimes should alert counsel that evidence of all crimes committed during
the same course of conduct may be offered, and, therefore, substantially complies
with the notice requirement of section 190.3. (People v. Visciotti (1992) 2 Cal.4th
1, 70.)
Here, defendant does not complain that he was unaware of the multiple
offenses potentially arising out of the attack on de Maderos, nor could he.
Defendant’s investigator interviewed de Maderos more than a year before trial.
She related that defendant pointed his machete at her throat and threatened to rape
and kill her. Therefore, because the crimes of assault with a deadly weapon and
attempted murder were also committed as part of the same course of conduct as
the attempted rape, the prosecution substantially complied with the notice
requirement under section 190.3. (People v. Visciotti, supra, 2 Cal.4th at p. 70.)
Defendant, moreover, has not shown any prejudice. Generally, in the
absence of any showing that a delay in the notice affected counsel’s trial strategy,
the appropriate remedy for a violation of the notice requirement would be to grant
a continuance as needed to permit defendant to prepare a response. (People v.
Pinholster (1992) 1 Cal.4th 865, 956-958.) Defendant did not request a
continuance nor did he otherwise indicate he was unable to prepare a defense. (Id.
at p. 958.) Accordingly, defendant’s claim fails.
97
b. Refusal of Instructions on Lesser Included Offenses
Defendant contends the trial court improperly refused his request for
instructions on battery (§ 242) and brandishing a weapon (§ 417).
Instructions on the elements of the offenses presented under section 190.3,
factor (b) are not required in the absence of a request by counsel. (People v.
Anderson (2001) 25 Cal.4th 543, 589; see also id., fn. 14 [rule that instruction on
elements of prior violent crime is not required sua sponte is unaffected by
Apprendi v. New Jersey (2000) 530 U.S. 466].) A trial court, however, may give
such “elements” instructions on its own motion when they are “vital to a proper
consideration of the evidence.” (People v. Cain, supra, 10 Cal.4th at p. 72.)
Once defense counsel asked that the jury be instructed on attempted rape,
the trial court informed counsel it would also instruct on assault with a deadly
weapon and attempted murder. Based on de Maderos’s testimony that defendant
poked her throat with his machete and threatened to kill her, there was substantial
evidence to support instructing the jury on assault with a deadly weapon and
attempted murder. In addition, the court expressed concern that if only the
attempted rape instruction were given, the jury might become confused and
question whether the evidence could be considered under section 190.3, factor (b)
if it believed defendant physically attacked de Maderos as she testified but still
retained a reasonable doubt as to whether defendant intended to rape her. The
court further reasoned that “if the jury believes that the activities alleged were
beyond a reasonable doubt committed by the defendant, and he threatened to kill
her and attempted to kill her, that is evidence of prior act[s] involving force or
violence, and it doesn’t matter whether it’s for the purpose of rape.”
On the other hand, the trial court specifically found instructions on simple
assault or brandishing a weapon were not warranted based on the evidence: “if you
believe [de Maderos], it was either an [assault with a deadly weapon], it certainly
98
wasn’t a simple assault, or a brandishing of a weapon. That would involve
conjecture. If it didn’t happen the way she said it did, which amounts to at the
very least an [assault with a deadly weapon], then it was nothing.”
We agree with the trial court’s assessment of the facts and its conclusion
that the instructions were not warranted under those facts. Accordingly, we need
not decide whether a trial court is ever obligated to instruct on lesser offenses
requested by trial counsel at a penalty phase.
Moreover, any error in failing to give the requested instructions was
harmless. As the People correctly point out, the issue before the jury was whether
defendant used force or violence or the express or implied threat to use force or
violence. (§ 190.3, factor (b).) Even if the requested lesser included offense
instructions were given and found true by the jury beyond a reasonable doubt, the
result would necessarily be the same: defendant used or threatened to use force or
violence. As the trial court expressed, “If [the jury] believe[s] [de Maderos]
beyond a reasonable doubt, that somebody did these things, I don’t think there’s
any question but what [sic] it involves the threat of or attempt to use force or
violence on another person.” Under these circumstances, there is no reasonable
possibility of any error in failing to instruct the jury on simple assault or
brandishing a weapon affected the verdict. (People v. Avena (1996) 13 Cal.4th
394, 433.)
c. Assertedly Improper Characterization of Attack on de Maderos
Defendant contends, in essence, that when the trial court instructed the jury
regarding the evidence that defendant had attacked de Maderos 10 to 12 years
earlier, it repeatedly and improperly directed a verdict that defendant’s conduct
constituted “an attempted rape, assault with a deadly weapon, and/or attempted
99
murder.” He asserts the erroneous instructions increased the aggravating effect of
this evidence.
We conclude the trial court properly instructed the jury that it was for them
to determine whether the evidence of the attack on de Maderos amounted to an
attempted rape, assault with a deadly weapon, or attempted murder. In assessing
whether the jury instructions given were erroneous, the reviewing court “must
consider the instructions as a whole . . . [and] assume that the jurors are intelligent
persons and capable of understanding and correlating all jury instructions which
are given.” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111; Cal. Const., art.
IV, § 13; see also People v. Williams, supra, 16 Cal.4th at p. 675 [claims of
instructional error are evaluated “in the context of the overall charge” to the jury].)
Here, in addition to the challenged instructions, the court instructed the
jurors under former CALJIC Nos. 2.90 and 8.87 that when determining whether
defendant committed an attack on de Maderos that constituted an attempted rape,
assault with a deadly weapon, or attempted murder, they were to presume
defendant was innocent until the evidence proved otherwise beyond a reasonable
doubt. The jurors were specifically instructed that they must be convinced beyond
a reasonable doubt that defendant committed such criminal activity before they
could consider the evidence as an aggravating factor. In addition, the court told
the jurors that if there was any reasonable doubt that the prosecution proved
defendant committed the criminal activity, then the jurors must not consider the
evidence for any purpose.
Various other instructions informed the jurors that defendant was to receive
the benefit of reasonable doubt: Former CALJIC No. 2.01 [sufficiency of
circumstantial evidence], former CALJIC No. 2.72 [proof of corpus delicti], and
former CALJIC No. 2.91 [burden of proving identity]. Therefore, in considering
the overall charge to the jury, we conclude there was no reasonable likelihood that
100
the jury misconstrued or misapplied the instructions under the belief that the trial
court was directing them to find the conduct alleged constituted an attempted rape,
assault with a deadly weapon, or attempted murder. (People v. Clair (1992) 2
Cal.4th 629, 663.)
d. Failure to Give Instructions on Intoxication
Defense counsel requested the trial court instruct the jury on intoxication as
part of its instructions on other crimes evidence. The trial court stated it would
instruct on voluntary intoxication pursuant to former CALJIC Nos. 4.21.1 and
4.22, as it had in the guilt phase, but it failed to do so. Defendant contends the
court erred.
Although defendant failed to object to the trial court’s failure to give the
intoxication instructions, we find this issue cognizable because it involves a claim
of instructional error affecting his substantial rights. (People v. Hill, supra, 17
Cal.4th at p. 843, fn. 8; People v. Prieto, supra, 30 Cal.4th at p. 268; § 1259.) As
for the merits, there was insufficient evidence that defendant was intoxicated to
warrant the requested instructions. As the People point out, de Maderos testified
that defendant did not smell of alcohol. Ramirez testified he did not smell
defendant’s breath but only thought defendant was drunk because he was walking
bent over.
3. Miscellaneous Challenges to Jury Instructions
Defendant asserts various other challenges to the jury instructions that we
have previously rejected. Defendant raises no basis for reconsideration of those
rulings. The trial court may properly refuse as argumentative an instruction that
one mitigating factor may be sufficient for the jury to return a verdict of life
imprisonment without possibility of parole. (People v. Prieto, supra, 30 Cal.4th at
pp. 263-264; People v. Hines (1997) 15 Cal.4th 997, 1068-1069.) “[T]here is no
101
requirement, under either state or federal law, that the court specifically instruct
the jury to consider any residual doubt of defendant's guilt.” (People v. Sanchez
(1995) 12 Cal.4th 1, 77; accord, People v. Lawley, supra, 27 Cal.4th at p. 166.)
The trial court is not required to instruct the jury that it could consider sympathy
and mercy. (People v. Clark, supra, 3 Cal.4th at p. 163.) The trial court has no
duty to identify which factors might be aggravating and which factors might be
mitigating. (People v. Jones (2003) 30 Cal.4th 1084, 1123.) The trial court can
properly refuse as argumentative an instruction that identifies particular evidence
as mitigating. (People v. Musselwhite, supra, 17 Cal.4th at pp. 1269-1270; People
v. Benson (1990) 52 Cal.3d 754, 804-806.) Defendant claims that we should
reconsider some of these rulings in light of Ring v. Arizona (2002) 536 U.S. 584,
and Apprendi v. New Jersey, supra, 530 U.S. 466. Those cases, however, do not
affect California’s death penalty law. (People v. Smith (2003) 30 Cal.4th 581,
642.)
4. Alleged Prosecutorial Misconduct
a. References to Matters Not in Evidence
During closing argument in the penalty phase, the prosecutor asserted that
when defendant asked Susan Michel whether she had come from Powell’s house
shortly before the murder, the defendant may have “become somewhat excited at
the prospect of the terror that he was going to inflict later on.” He then invited the
jurors to put themselves in the defendant’s shoes and visualize, based on the
evidence, what he saw as he killed Powell: “Now the first thing that he did when
he commenced the attack, after he grabbed that knife out of the butcher block, was
he took the knife and he caused these little poke wounds that you saw in the –
“[Counsel]: I am going to object to that. That’s not Dr. Golden’s
testimony. I think that’s a misstatement.
102
“The Court: Overruled.
“[The prosecutor]: He took these and caused these poke wounds in her
breasts, and I want you to think about, based upon the evidence, what he would
have seen reflected in [Powell’s] face when he did this to her. We don’t have any
direct evidence of that but we have real good circumstantial evidence. Because I
want you to recall how squeamish and how much pain we feel when we go to the
doctor’s office and they take a little needle and prick our fingers in order to draw
some blood, and then imagine the horror and the terror that he saw reflected in the
face of [Powell] as he took a butcher knife and poked her and poked her and poked
her in the breasts with that butcher knife.
“But in seeing the effects that this was having on . . . Powell, instead of
stopping what he was doing, he continued. It only served to further excite and
entice him. And he decided to go ahead in slitting her breasts open, which you
also saw in the autopsy photographs, the right and left breast, essentially taking
that knife and kind—I don’t know what the right term would be, fondling or
outlining the contours of the breast while making these incise wounds.”
The prosecutor then argued that although defendant had time to consider
his actions, he did not stop because he enjoyed what he was doing: “And then . . .
[Powell] undoubtedly realizing that there was no way she was going to get through
that door, turned to face him and he looked right into the face of this woman who,
in the words of [counsel], had shown him nothing but kindness. He had the
opportunity to consider how kind and gentle this woman was, and instead of
stopping what he was doing, instead of saying, ‘my God, I—I can’t do this to
another human being, I must stop,’ he continued with a fusillade of blows as she
lifted up her arms and feebly tried to hide behind them because she wasn’t even
apparently capable of hitting back. Blows which were so ferocious, that he almost
cut right down to the bones of her arms.
103
“And then finally, he saw [Powell] lying on the floor and what must have
been the most unimaginable pain, but nevertheless someone who, according to the
doctor’s testimony, the coroner, could have survived up to that point, maybe she
would have been permanently disfigured but she could have survived. And as a
medic, the defendant would have known that. And he could have thought to
himself, ‘what have I done, I must stop, I must stop the bleeding, I must save this
woman, I must call for help.’ But instead, the only thing that he was capable of
thinking of was where to position himself in the room in order to get the very best
angle to be able to take this knife and plunge it in her throat over and over again
until he was absolutely certain, 100 percent convinced that . . . Powell would never
again walk the face of this earth.
“Now, . . . the kind of person who can do what the defendant did to her
with that knife is a very special kind of individual.
“And even if we don’t have the exact sequence correct of everything that
happened, you know that everything that I just said happened. And that the
defendant had time during each one of those events and in between each one of
them to have seen in the most graphic ways that we could ever imagine what he
was doing to another human being and to have stopped.
“Now, what do you call that when someone does to another person what he
did to Kathy Powell when he takes that knife and, in essence, fondles her and
coaxes her and taunts her with it. None of those words, are really accurate to
describe what it is because I don’t know if we have words in the English language
that were calculated to describe what [defendant] is capable of. But the word that
comes closest, of course, is torture. That’s what he was doing to this woman when
he was playing with her with that knife.
“Torture.
104
“Why did he do it? He did it because he enjoyed it. He did it because
when he saw the pain and the torment and the terror, it only served as a catalyst for
him to increase his level of violence. He did it . . . because this is a person who
gains emotional fulfillment, psychological satisfaction from pain. Didn’t have any
financial motive, didn’t have any other motive.
“And certainly this has to be probably the most powerful circumstance in
aggravation because what kind of a murder is worse than the kind of an individual
who kills not because they need money or for some other reason, but because they
like to. This is a person who had absolutely no motive to do what he did except
his own ideology and belief that the sanctity of human life is somehow subservient
to his own twisted desire for pleasure.”
The prosecutor further suggested the jurors should not consider the defense
evidence that defendant was a medic in Guatemala mitigating because it showed
that defendant took pleasure in penetrating a person’s skin with a needle: “And is
it maybe that we are all just a little bit uncomfortable or squeamish or was it the
idea that . . . this is a man who for some bizarre reason gets sexual satisfaction out
of penetrating the skin even in little ways. And that maybe you just felt a little
squeamish and uncomfortable when you somehow learned that he also goes out of
his way to run through the forests of Guatemala to give people injections. I don’t
know what you were thinking. But it might be something for you to explore in the
jury room.”
Outside the presence of the jury, trial counsel objected that there was no
evidence to support the prosecutor’s arguments and that in any event, the
defendant’s asserted emotional fulfillment and psychological satisfaction from
pain were not proper aggravating circumstances under section 190.3. The trial
court denied counsel’s objection, finding the prosecutor’s arguments properly
related to the circumstances of the crime, factor (a) of section 190.3. Without
105
identifying any particular argument, the court then added that it thought some of
the prosecutor’s arguments were “fallacious” and “built on a foundation of sand.”
Defendant now contends the prosecutor improperly argued facts not in
evidence during argument when he asserted that defendant killed for pleasure,
became excited about the prospects of terror, and “gain[ed] emotional fulfillment,
psychological satisfaction from pain.” He adds the prosecutor committed further
misconduct by arguing defendant’s affinity for killing “has to be probably the
most powerful circumstance in aggravation.”
On appeal, we apply the same standard to evaluate a claim of prosecutorial
misconduct at the penalty phase that we apply at the guilt phase. (People v.
Valdez, supra, 32 Cal.4th at p. 132.) But when misconduct has been established,
in determining prejudice, we must decide “ ‘whether there is a reasonable
possibility that the jury construed or applied the prosecutor’s comments in an
objectionable manner.’ ” (Id. at pp. 132-133.) “In conducting this inquiry, we ‘do
not lightly infer’ that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements.” (People v. Frye, supra, 18
Cal.4th at p. 970.)
Each party is entitled to comment fairly on the evidence and the reasonable
inferences that can be drawn from the evidence. (People v. Hill, supra, 17 Cal.4th
at p. 819.) Here, we conclude the prosecutor’s comments either were properly
based on the evidence or were nonprejudicial. Contrary to defendant’s assertions,
the prosecutor did not actually refer to defendant as a “sexual sadist.” (But see
People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [use of opprobrious epithets is
proper when reasonably warranted by the evidence].) The prosecutor commented
on defendant’s conduct at the time of the murder and did not assert defendant
suffered from a mental disorder. In addition, that the trial court may have found
some of his arguments were “fallacious” and “built on a foundation of sand” is of
106
no consequence in light of its finding that they were relevant under factor (a) of
section 190.3, the circumstances of the crime. It is for the jury to determine
whether the inferences the prosecutor draws in closing argument are reasonable.
(People v. Dennis (1998) 17 Cal.4th 468, 522.)
We further disagree that the prosecutor essentially argued defendant
suffered from a mental disorder of sexual sadism and improperly urged the jury to
consider defendant’s disorder as an aggravating factor under section 190.3. Factor
(a) of section 190.3 allows the prosecutor and defense counsel to present to the
penalty phase jury evidence of all relevant aggravating and mitigating matters
“including, but not limited to, the nature and circumstances of the present
offense, . . . and the defendant's character, background, history, mental condition
and physical condition.” (Italics added.) Evidence that reflects directly on the
defendant’s state of mind contemporaneous with the capital murder is relevant
under section 190.3, factor (a), as bearing on the circumstances of the crime.
(People v. Ramos (1997) 15 Cal.4th 1133, 1163-1164; see also People v. Smith
(2005) 35 Cal.4th 334, 354-355 [the prosecution can present evidence of the
defendant’s mental illness or bad character under factor (a) even if it also bears
upon a mitigating factor]; People v. Avena, supra, 13 Cal.4th at p. 439 [“The fact
that evidence of defendant’s [capital crime] was also indicative of his character or
mental condition does not render the evidence inadmissible”].)
In this case, the prosecutor’s argument related to defendant’s conduct at the
time he murdered Powell and could not reasonably have been construed by the
jury as a medical diagnosis that defendant suffered from “sexual sadism.” Further,
because the trial court found the prosecutor’s arguments that defendant
experienced “emotional fulfillment, psychological satisfaction from pain” and
enjoyed causing Powell to suffer to be relevant to the circumstances of Powell’s
murder, such matters could properly be considered by the jury as evidence in
107
aggravation under section 190.3, factor (a). Whether or not these circumstances
were the most powerful aggravating circumstances was a matter for the jury to
determine.
Defendant next claims the prosecutor improperly turned the mitigating
evidence about his work giving people medical injections in Guatemala into
something “sinister” by arguing defendant experienced “sexual satisfaction . . .
penetrating the skin even in little ways.” But even if the prosecutor’s argument
constituted misconduct, any misconduct was harmless under the applicable penalty
phase standard because the jury likely recognized it as an advocate’s hyperbole
and discounted it accordingly. (People v. Poggi (1988) 45 Cal.3d 306, 340.)
b. Mischaracterization of Evidence
Defendant contends the prosecutor improperly characterized the sequence
of Powell’s murder and argued without evidence that Powell was psychologically
vulnerable, that defendant breached her trust, and that defendant lurked in the
darkness waiting for her. He first challenges the prosecutor’s presentation of his
theory on the sequence of events leading up to Powell’s murder. (See ante, pp.
102-103.) The trial court overruled defendant’s objection that the prosecutor
misstated the coroner’s testimony. On appeal, defendant’s contends there was no
evidence to support this theory.
A prosecutor may properly discuss the circumstances of defendant’s crime
when arguing in favor of the death penalty. (People v. Navarette (2003) 30
Cal.4th 458, 519.) A prosecutor also may express an opinion on the state of the
evidence and relate the People’s theory of the case in a comprehensible, story-like
manner. (People v. Frye, supra, 18 Cal.4th at pp. 975-976.)
108
Here, the coroner testified that Powell suffered poke wounds, stabbing to
the back and neck, and defensive wounds on her arms and hands. Several of these
wounds could have been fatal.
During his argument, the prosecutor informed the jury that the inferences
he drew from the evidence reflected his theory and not necessarily what actually
happened. He explained that there was no direct evidence of what transpired at
the time defendant murdered Powell, and thus, the jury would have to rely on the
circumstantial evidence to determine what Powell experienced. Further, after
presenting his sequence of events, the prosecutor told the jury, “[E]ven if we don’t
have the exact sequence correct of everything that happened, you know that
everything that I just said happened.” The prosecutor properly based his theory on
the evidence admitted at trial or reasonable inferences drawn from it. Therefore,
we conclude the prosecutor’s argument was not improper.
Defendant further contends the evidence does not support the prosecutor’s
argument that Powell was psychologically vulnerable and that defendant breached
her trust and lurked in the dark, waiting to kill her. During argument, the
prosecutor portrayed Powell as psychologically vulnerable and someone who
clung to “a childlike belief that all people are good at heart.” He stated that
anyone who met her would have been aware of her vulnerability. The prosecutor
then questioned whether defendant gave Powell either some indication that
although he seemed outwardly quiet and harmless, he was “a monster inside” or a
warning such as, “Kathy, you can’t trust me, I know I might seem quiet and
harmless, but watch out because there’s a monster inside.” Continuing, the
prosecutor described Powell as someone who would never have been able to look
into defendant’s “cold, cold eyes” and see the “emptiness behind them.” He
suggested that Powell was “too decent to . . . protect herself” and that defendant
saw this weakness in her and perceived her as a “convenient target.” The
109
prosecutor further accused defendant of “abus[ing] the trust that Kathy Powell
placed in him” and “lurking in the darkness of Powell’s home, waiting for her.”
The trial court overruled defendant’s objections that there was no evidence
to support this line of argument and that Powell’s vulnerability and defendant’s
breach of her trust were not aggravating factors under section 190.3. It ruled the
argument was properly based on evidence of the circumstances of Powell’s
murder.
We agree that the prosecutor’s argument was properly based on the
evidence or reasonable inferences drawn from it. A prosecutor may identify those
traits of the victim that made the victim vulnerable to crime when such
characteristics are relevant to the charged crimes, and has no duty “‘to shield the
jury from all favorable inferences about the victim’s life or to describe relevant
events in artificially drab or clinical terms.’ ” (People v. Frye, supra, 18 Cal.4th at
p. 975.)
Further, the trial court instructed the jury that it was to “determine what the
facts are from the evidence received during the entire trial.” (Former CALJIC No.
8.84.1.) Whether to draw the same inferences as those urged by the prosecutor
regarding the circumstances of Powell’s murder was, thus, a question for the jury
to decide. There was no misconduct.
c. Argument Regarding Aggravating Factors
The prosecutor argued Powell’s vulnerability, defendant’s breach of trust,
and defendant’s pleasure from stabbing were separate aggravating factors under
section 190.3, factor (a). He also used the same aggravating circumstances
language when he discussed other crimes evidence admissible under section 190.3,
factor (b). As a result, defendant contends the prosecutor’s use of the term
“aggravating circumstance” confused jurors about the weighing process and
110
encouraged them “to apply factor (a), the circumstances of the crime, three
different times in three different ways.” Ultimately, the prosecutor’s argument
had the effect of “skewing the weight accorded this factor and created the risk of
an arbitrary or unreliable death verdict.”
The People initially assert that defendant failed to object to the prosecutor’s
argument on this basis at trial. Defendant counters that such a basis was inherent
in his objection that the above circumstances of the crime described by the
prosecutor were not aggravating circumstances under section 190.3. We think this
objection was sufficient to preserve the issue. But the claim fails on the merits.
Defendant fails to cite anything in the record that suggests the jury was confused
by the prosecutor’s argument or the instructions it was given. The prosecutor
merely suggested to jurors how they could consider each piece of evidence under
the specified statutory factors.
In addition, the court instructed the jury under former CALJIC No. 8.88
that “[t]he 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”; and that in determining which
penalty was justified, it should “consider the totality of the aggravating
circumstances with the totality of the mitigating circumstances.”
In sum, because the prosecutor did not urge the jury to double-count or
triple-count the circumstances of the crime in weighing the aggravating and
mitigating circumstance, the possibility of prejudice is “remote.” (People v.
Ochoa, supra, 26 Cal.4th at p. 457.) In light of the prosecutor’s remarks and the
standard instructions about the weighing of aggravating and mitigating
circumstances given in this case, we find no reasonable likelihood the jurors were
misled or confused in the manner defendant suggests or otherwise applied the
111
instructions in an illegally improper manner. (People v. Ayala (2000) 24 Cal.4th
243, 289-290.)
5. Retention of Juror
Defendant contends the trial court improperly retained Juror R. during
deliberations despite time conflicts that placed pressure on the jury to reach a
verdict.
a. Factual Background
On Wednesday, September 1, 1993, approximately 30 minutes after jury
deliberations commenced, the jury returned to the courtroom. Juror R. informed
the trial court that he intended to start a two-week vacation on Friday. The trial
court informed the juror that travel commitments were not a legal cause to excuse
him from jury duty. The trial court then told Juror R. that he could be excused if
he were to experience a financial hardship. Juror R. stated he would not permit his
vacation plans to affect his deliberations. The trial court admonished the jury to
resume its deliberations. The court declined counsel’s request to remove Juror R.
The jury deliberated until 4:00 p.m.
On Thursday, prior to the readback of certain testimony at the jury’s
request, the trial court made further inquiry into Juror R.’s travel plans. Juror R.
stated he made arrangements to begin his vacation on Saturday. If the jury did not
reach a verdict before Saturday, he intended to claim a financial hardship based on
the prepaid costs of his vacation. Juror R. assured the court that his vacation plans
would not affect his deliberations. No juror indicated that his or her deliberations
would be affected by Juror R.’s vacation plans. The jury deliberated until 4:15
p.m.
On Friday, at 3:00 p.m., the court and counsel conferred to discuss Juror
R.’s status. Defense counsel asked the court to excuse Juror R., substitute an
112
alternate juror in his place, and commence deliberations anew immediately, rather
than on Tuesday. The prosecutor noted the time and argued that nothing would be
gained by permitting the jury to commence deliberations anew for one hour rather
than allowing Juror R. to continue deliberating with the jury until the end of the
day and substitute an alternate juror at that time, if needed. Trial counsel
complained that there was “a subconscious coercion” by permitting Juror R. to
remain on the jury.
The trial court stated that it saw no risk of coercion and that it preferred the
original 12 jurors render the penalty verdict. It was “reluctant to disturb the
composition of the original jury except in those instances where I find a risk to a
fair and impartial outcome or a hardship on a juror.” The court brought the jury
into the courtroom and informed them that Juror R.’s status remained the same.
The court stated that if the jury could not reach a verdict by the end of the day, it
would excuse Juror R. and an alternate juror would be substituted in his place.
The court admonished the jury that Juror R.’s situation should not affect their
deliberations. No juror indicated that it would. Approximately one hour later, the
jury returned its death verdict.
b. Analysis
Penal Code section 1089 provides in relevant part that “If at any time,
whether before or after the final submission of the case to the jury, . . . a juror
requests a discharge and good cause appears therefore, the court may order the
juror to be discharged and draw the name of an alternate, who shall then take a
place in the jury box . . . .” A trial court’s ruling whether to discharge a juror for
good cause under section 1089 is reviewed for abuse of discretion. (People v.
Hart (1999) 20 Cal.4th 546, 596; People v. Beeler (1995) 9 Cal.4th 953, 989.)
The juror’s inability to perform the functions of a juror must appear in the record
113
as a “demonstrable reality” and will not be presumed. (People v. Lucas, supra, 12
Cal.4th at p. 489.) The trial court’s finding whether “good cause” exists will be
upheld on appeal if substantial evidence supports it. (Beeler, supra, 9 Cal.4th at p.
975.)
Here, based on our review of he record, we conclude the trial court properly
retained Juror R. during the penalty phase deliberations. Juror R. unequivocally
stated he would vote for the penalty he thought was appropriate without regard to
his vacation plans. Our review of the record finds nothing to suggest he was
unable to function as a juror. The trial court, moreover, was in the best position to
observe Juror R.’s demeanor. (People v. Beeler, supra, 9 Cal.4th at p. 989.) The
record also does not indicate that any other juror was affected by Juror R.’s
vacation plans or that the jury was coerced into rendering its verdict. The trial
court asked the jury twice whether Juror R.’s vacation plans would affect their
deliberations and on both occasions received no affirmative response from any
juror. It also made clear to the jury, including Juror R., that if it did not reach a
verdict, it would remove Juror R. to permit him to go on his vacation. Thus, the
jury knew that Juror R. would have his vacation whether or not it reached a
verdict. Defendant’s assertion that the jury would hasten its deliberations to
accommodate Juror R.’s vacation plans finds no support in the record.
Finally, we reject defendant’s contention that the trial court insufficiently
questioned the jury to ascertain the effect of Juror R.’s vacation plans, if any, on
its deliberations. The trial court retains discretion about what procedures to
employ, including conducting a hearing or detailed inquiry, when determining
whether to discharge a juror. (People v. Beeler, supra, 9 Cal.4th at p. 989.) We
discern no abuse of discretion in the manner the trial court conducted its inquiry of
the jury.
114
6. Denial of Motion for New Trial
After the close of the penalty phase, but before sentencing, defendant filed
a motion for a new trial, arguing among other things, the evidence was insufficient
to support special circumstance of attempted rape. The trial court denied the
motion.
Defendant argues the trial court erred in denying his motion for new trial
because it failed to conduct an independent review of the evidence, as required,
and instead, erroneously applied the deferential substantial evidence standard and
reviewed the evidence in the light most favorable to the judgment. We disagree.
When a verdict has been rendered or a finding made against the defendant,
he may move for a new trial on various statutory grounds including that the verdict
is contrary to the law or evidence. (§ 1181.) A trial court may grant a motion for
new trial only if the defendant demonstrates reversible error. (People v. Clair,
supra, 2 Cal.4th at p. 667.) With regard to claims of sufficiency of the evidence,
we have stated: “In reviewing a motion for a new trial, the trial court must weigh
the evidence independently. [Citation.] It is, however, guided by a presumption in
favor of the correctness of the verdict and proceedings supporting it. [Citation.]
The trial court ‘should [not] disregard the verdict . . . but instead . . . should
consider the proper weight to be accorded to the evidence and then decide whether
or not, in its opinion, there is sufficient credible evidence to support the verdict.’
[Citation.]” (People v. Davis, supra, 10 Cal.4th at pp. 523-524.) On appeal, a trial
court’s ruling on a motion for new trial is reviewed for abuse of discretion.
(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 128.) Its ruling will not
be disturbed on appeal “ ‘unless a manifest and unmistakable abuse of discretion
clearly appears.’ [Citation.] ” (People v. Davis, supra, 10 Cal.4th at p. 524.)
We conclude the trial court did not abuse its discretion in denying
defendant’s motion. The record establishes that in considering the motion for a
115
new trial, the trial court independently weighed the evidence and determined
witness credibility, but did not substitute its judgment for that of the jury. The
court discussed the sufficiency of the evidence that defendant attempted to rape
Powell: “If there is one thing that I can say with dead certainty, it is that the
evidence in this case clearly shows beyond a reasonable doubt that the defendant
was the perpetrator of the crime”; “I stand by my analysis that I made at the time
of the 1118.1 motion. As I look at all of this evidence, I do not see how I can
come to the conclusion that the trier of fact proceeded to come to the conclusion
that the defendant committed this act while attempting to rape the victim as being
a flight of fancy, or the product of prejudice of any kind”; “But in view of the
statement about ‘panocha,’ in view of the very graphic illustration of sexual
intercourse [defendant’s gyrations while repeating ‘Kathy-me, me-Kathy’], I again
state that the only reasonable conclusion is that the defendant wanted to have
sexual intercourse with the victim”; “I’ve turned all of these circumstances over
and over in my mind and speculated about lots of things far out and I just cannot
see any reasonable interpretation of all of the evidence here and the reasonable
inferences to be drawn but that the defendant desired sexual intercourse with this
woman as easily as he could get it but if he couldn’t get it easily he would get it by
force”; “A jury found Odell Braziel to be credible. I find Odell Braziel to be
credible. Certainly not as to every detail. But as I say, the broad brush strokes as
to the defendant’s sexual interest in this victim and the defendant’s prior
indications of his strong attraction to her and what he was seeking. Yes, I find
Odell Braziel to be eminently credible.”
116
7. Denial of Automatic Application for Modification of the Judgment
a. Preservation of Issue and Standard of Review
Defendant contends the trial court erred in denying his automatic
application for modification of the judgment because it (1) speculated he had
planned the crime, and (2) refused to consider sympathetic factors in mitigation.
He has forfeited the first issue because he failed to make a contemporaneous
objection on this ground at trial. The contemporaneous objection rule applied at
defendant’s modification hearing, held on November 22, 1993. (People v. Riel,
supra, 22 Cal.4th at p. 1220 [the rule requiring an objection applies to cases in
which the modification hearing was held after this court’s decision in People v.
Hill (1992) 3 Cal.4th 959, 1013, became final].) Defendant contends that an
objection would have been futile because he had argued in his new trial motion,
heard immediately before the modification hearing, that there was no evidence he
had planned Powell’s murder. We disagree because defendant did not clearly
argue absence of planning even in the new trial motion. Moreover, denial of a
new trial motion does not mean this objection at the modification hearing would
have been futile. We do, however, believe that defendant’s argument the
modification hearing regarding use of sympathetic factors was sufficient to
preserve that claim.
The entire contention lacks merit. In ruling on an automatic application for
modification of the verdict under section 190.4, subdivision (e), the trial judge
“shall review the evidence, consider, take into account, and be guided by the
aggravating and mitigating circumstances . . . and shall make a determination as to
whether the jury’s findings and verdicts that the aggravating circumstances
outweigh the mitigating circumstances are contrary to law or the evidence
presented.” The trial court’s ruling must be based only on the evidence presented
at trial. (People v. Sakarias (2000) 22 Cal.4th 596, 648.) “[T]he trial judge’s
117
function is not to make an independent and de novo penalty determination, but
rather to independently reweigh the evidence of aggravating and mitigating
circumstances and then to determine whether, in the judge’s independent
judgment, the weight of the evidence supports the jury verdict. [Citations.]”
(People v. Lang (1989) 49 Cal.3d 991, 1045.) The trial judge must provide “a
ruling ‘ “adequate to assure thoughtful and effective appellate review.” ’ ”
(People v. Arias, supra, 13 Cal.4th at p. 191.)
“On appeal, we subject a ruling on a verdict-modification application to
independent review.” (People v. Clair, supra, 2 Cal.4th at p. 689.) “Of course,
when we conduct such scrutiny, we simply review the trial court’s determination
after independently considering the record; we do not make a de novo
determination of penalty.” (People v. Mickey, supra, 54 Cal.3d at p. 704.)
b. Evidence of Planning
Defendant first contends the trial court improperly speculated that he
planned Powell’s murder. His contention is without merit. The trial court’s
remark (“As to the crime for which defendant was convicted, it is clear from the
evidence that it was a planned offense, not spur-of-the-moment”) reflects a
reasonable interpretation of the evidence presented to the jury. Even though the
court expressed uncertainty whether the evidence showed the murder was
premeditated, evidence that defendant planned his attack on Powell was
compelling. Defendant remained at the jobsite until after all of the other
construction workers had left for the day. When one of Powell’s neighbors
walked by in the afternoon, he asked her if she had come from Powell’s house,
assuring himself that Powell would be alone in the house.
118
c. Sympathetic Factors
At the modification hearing, counsel summarized the testimony of the
penalty phase witnesses who testified to defendant’s good deeds in Guatemala and
urged the trial court to strike the death penalty based on this evidence alone. He
also argued that defendant was a good member of his community when he was not
intoxicated. The trial court found that the aggravating circumstances substantially
outweighed the mitigating circumstances and rejected the automatic application
for a reduction in sentence from death to life without the possibility of parole.
Defendant contends that in deciding his verdict-modification application
the trial court erred because it refused to consider sympathetic factors in
mitigation. He specifically complains the court ignored the sympathetic value of
the evidence of his good deeds and community involvement described above.
Defendant cites as error the following statements by the trial court: “So the logic
of the setup of the statutory scheme plus the decisions of the Supreme Court lead
me to the inescapable conclusion that a trial court does not assess whether [the
death penalty] was appropriate, that considerations of mercy and sympathy come
into play in only two areas when a death penalty is involved. [¶] They are factors
appropriate for the jury to consider, . . . and number two, of course, historically
they continued to employ factors considered by the governor when it comes to his
commutation powers. But they are not within the purview of the trial judge.”
As defendant correctly argues, we have recognized that sympathetic factors
are integral to both the jury’s penalty determination and the trial court’s ruling on
a motion for modification of the verdict. (See People v. Dyer (1988) 45 Cal.3d 26,
84 [the court’s comments reflected its understanding that it could properly
consider sympathy in making its decision]; People v. Williams (1988) 44 Cal.3d
883, 971-972 [“the jury, and the judge in deciding whether to modify a verdict of
death, must be permitted to consider any evidence that is relevant and potentially
119
mitigating,” including evidence that “may reflect remorse, or otherwise arouse
sympathy in either jury or judge”].) But “[s]ympathy is not itself a mitigating
‘factor’ or ‘circumstance,’ but an emotion.” (People v. Lanphear (1984) 36 Cal.3d
163, 166.) The trial court is not required to find that evidence offered in
mitigation does in fact mitigate. (People v. Scott, supra, 15 Cal.4th at p. 1222.)
Here, the record indicates the trial court painstakingly considered all of the
evidence offered in aggravation and mitigation. It identified the evidence of
defendant’s good deeds in Guatemala, his intoxication on the day of the murder,
and his lack of felony convictions as circumstances in mitigation it considered.
The court specifically commented on the sympathetic value of the good deeds
offered by defendant, although it found many of these deeds were not what it
called “altruistic in nature.” The court then independently weighed the evidence
of aggravating and mitigating circumstances and found, as stated above, the
evidence of the aggravating circumstances substantially outweighed that of the
mitigating circumstances. The court concluded the findings of the jury were
appropriate based on the evidence presented. No more is required of the trial
court. (People v. Lang, supra, 49 Cal.3d at p. 1045.)
The trial court made the remarks about sympathy and mercy in the course
of commenting that, after assessing whether the evidence of the aggravating
circumstances outweighs that of the mitigating circumstances, a trial court does
not itself, independently and de novo, determine that the death penalty is
appropriate in a particular case. (See § 190.4, subd. (e); People v. Alvarez, supra,
14 Cal.4th at p. 245.) Instead, as the trial court stated, its function in ruling on the
verdict-modification application is to independently reweigh the aggravating and
mitigating evidence and determine whether the evidence supports the jury’s
verdict. Its remarks concerning the mitigating evidence defendant offered reveal
that it considered all such evidence although finding it worthy of little weight.
120
The court’s reference to mercy and sympathy not being “within the purview” of
the trial judge are most reasonably understood as its declining to step outside the
trial judge’s proper role of independently reweighing evidence to substitute its
own view of the appropriate penalty. It correctly stated that sympathetic factors
may be considered by the jury in determining whether the death penalty is
warranted (§ 190.3) and by the Governor in deciding whether to commute a
sentence (Cal. Const., art. V, § 8).
8. Proportionality Review
Defendant contends his death sentence is disproportionate. We disagree.
“To determine whether a sentence is cruel or unusual as applied to a particular
defendant, a reviewing court must examine the circumstances of the offense,
including the defendant’s motive, the extent of the defendant’s involvement in the
crime, the manner in which the crime was committed, and the consequences of the
defendant’s acts. The court must also consider the defendant’s age, prior
criminality and mental capabilities.” (People v. Cox (2003) 30 Cal.4th 916, 969-
970.) “If the court concludes that the penalty imposed is ‘grossly disproportionate
to the defendant’s culpability’ [citation] or, stated another way, that the
punishment shocks the conscience and offends fundamental notions of human
dignity [citation], the court must invalidate the sentence as unconstitutional.” (Id.
at p. 970.)
Here, on the day of the murder, defendant expressed his desire to have
sexual intercourse with Powell and entered Powell’s home throughout the day
without permission. He planned to attack Powell after all of the construction
workers had left. Defendant entered Powell’s house, attempted to rape her, and
inflicted numerous injuries on her with a large butcher knife before fatally
stabbing her. Defendant had started to similarly attack another woman with a
121
machete in his native Guatemala. After each attack, defendant made remarks that
indicated he was proud of his actions. Finally, although he had been drinking on
the day of the murder, there was no evidence he was emotionally or mentally
impaired at the time of Powell’s murder.
Accordingly, we find the penalty in this case not so disproportionate to
defendant’s personal culpability as to warrant reversal of his sentence. (People v.
Cox, supra, 30 Cal.4th at p. 970.)
9. International Law
Defendant contends the constitutional violations he suffered in this case and
California’s death penalty system, in general, violate international law and the
federal constitutional ban on cruel and unusual punishment under the Eighth and
Fourteenth Amendments. We disagree. “Because defendant has failed to
establish prejudicial violations of state or federal constitutional law, we need not
consider whether such violations would also violate international law.” (People v.
Bolden (2002) 29 Cal.4th 515, 567.) “International law does not prohibit a
sentence of death rendered in accordance with state and federal constitutional and
statutory requirements.” (People v. Hillhouse, supra, 27 Cal.4th at p. 511.)
Further, “the death penalty is not cruel and unusual punishment in violation of the
Eighth Amendment to the federal Constitution.” (People v. Fairbank (1997) 16
Cal.4th 1223, 1255.)
10. Miscellaneous Constitutional Challenges
Defendant contends California’s death penalty statute is unconstitutional
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. We have previously considered and rejected each of these
challenges, and defendant offers no persuasive reason to reconsider our prior
decisions. His reliance on Ring v. Arizona, supra, 536 U.S. 584, and Apprendi v.
122
New Jersey, supra, 530 U.S. 466, in support is unavailing as we have held Ring
and Apprendi “do not affect California’s death penalty law.” (People v. Smith,
supra, 30 Cal.4th at p. 642.) Therefore, we continue to hold the following:
Section 190.3, factor (a), is neither vague nor overbroad, and does not
impermissibly permit arbitrary and capricious imposition of the death penalty.
(People v. Maury, supra, 30 Cal.4th at p. 439; People v. Jenkins (2000) 22 Cal.4th
900, 1050-1053.)
Section 190.3, factor (b) is not unconstitutional for failing to “require that
aggravating factors be proven beyond a reasonable doubt, require that the
aggravating factors must outweigh the mitigating factors beyond a reasonable
doubt, require that death must be found to be the appropriate penalty beyond a
reasonable doubt [citation], or require that there be any burden of proof.” (People
v. Box (2000) 23 Cal.4th 1153, 1217.)
“Jury unanimity is not required on aggravating circumstances, which are
not elements of an offense.” (People v. Maury, supra, 30 Cal.4th at p. 440.)
California’s death penalty statute is not unconstitutional in failing to require
written findings and reasons for the jury’s death verdict (Maury, supra, 30 Cal.4th
at p. 440) and failing to require intercase proportionality review (People v. Combs
(2004) 34 Cal.4th 821, 868).
The jury’s consideration of unadjudicated criminal conduct as aggravating
factors is not unconstitutional. (People v. Brown (2004) 33 Cal.4th 382, 402.)
California’s death penalty statute does not deprive capital defendants of
equal protection because it fails to provide for disparate sentence review. (People
v. Brown, supra, 33 Cal.4th at p. 402.)
123
11. Cumulative Error
Defendant contends that the cumulative effect of the guilt and penalty phase
errors require reversal of his conviction and death sentence even if none of the
errors is prejudicial individually. We have found no prejudicial error and no
cumulative prejudice; thus, defendant’s contention is without merit.
III. DISPOSITION
We affirm the judgment.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
124
DISSENTING OPINION BY WERDEGAR, J.
The evidence at defendant’s trial amply proved he killed the victim,
Kathleen Powell, in a brutal and unprovoked attack. His offense was at least
second degree murder and may have been a greater crime. What the evidence
failed sufficiently to demonstrate is that defendant killed Powell while engaged in
the attempted commission of rape. For this reason, I dissent from affirmance of
defendant’s conviction for first degree murder with an attempted rape special
circumstance. (Pen. Code, §§ 189, 190.2, subd. (a)(17)(C).)
In reviewing a criminal conviction or special circumstance finding
challenged as lacking evidentiary support, “the court must review the whole record
in the light most favorable to the judgment below to determine whether it discloses
substantial evidence―that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) In the present
case, the evidence bearing on defendant’s actual intent when he attacked Powell
was simply too ambiguous and uninformative―of too little “solid value”
(ibid.)―to support the attempted rape finding.
I agree with the majority that sufficient evidence showed defendant was
sexually interested in Powell. But his repeated chant of “Kathy for me, me for
Kathy” suggests the expectation, however deluded, of a consensual encounter, at
least as much as—arguably even more than—it suggests an intent to rape.
1
Defendant, whom the evidence showed was intoxicated on the afternoon of the
crime, apparently thought Powell returned his sexual interest. Defendant’s
coworker, Braziel, tried to talk him out of this mistaken belief, stating Powell liked
him only as a friend, but defendant’s continued chanting of “Kathy for me, me for
Kathy” suggests he rejected Braziel’s admonition. In this light, that defendant
made an excuse to remain at the worksite and inquired of a neighbor whether she
had come from Powell’s house does not point distinctly to a planned forcible
attack. I agree with the majority that a jury could reasonably infer defendant
planned to catch Powell alone (maj. opn., ante, at p. 76), but I disagree a jury
could reasonably infer from this, beyond a reasonable doubt, that he intended to
rape her. The jury had no way to know whether defendant went to Powell’s home
with the intent to rape her or merely anticipated consummation of what he thought
was mutual attraction.
The majority seeks to buttress its conclusion that defendant’s sexual interest
in Powell and hope to find her alone supports a finding he intended to rape her
(maj. opn., ante, at p. 76) by pointing to the nature of Powell’s wounds. Powell’s
body was fully clothed when discovered, and the physical evidence showed
neither semen nor genital trauma. The majority reasons, however, that the nature
and location of Powell’s wounds, in particular the pokes and slices to her breasts,
gave rise to an inference that “defendant intended to force Powell to do something
against her will,” i.e., “to submit to his sexual intent.” (Ibid.) But such wounds
are as consistent with a sadistic desire to inflict pain―a desire prompted by
rejection―as with an attempt to rape.
At trial, the prosecutor argued the wounds were “a substitute form of sex,”
i.e., sexual sadism. A sadistic intent may be evidence of an intent to torture; it is
not, however, the same as an intent to rape. The physical evidence allowed a
reasonable inference that defendant tortured and killed Powell out of anger
2
because she refused him or out of jealousy over her friendship with his coworker,
Braziel. That defendant poked and slashed Powell’s breasts in an attempt to
coerce her into sexual intercourse is also possible, but the evidence did not allow a
reasonable juror to so find beyond a reasonable doubt. To say the cutting marks
on Powell’s breasts support a finding that defendant attempted to rape her is
speculative at best.
The majority relies in part on People v. Holloway (2004) 33 Cal.4th 96,
138-139, in which we distinguished earlier cases finding insufficient physical
evidence of attempted rape. But Holloway involved much stronger evidence than
this case. The defendant earlier had clearly tried to rape one victim (Debbie) and
had then entered the townhouse where he killed the other victim (Diane). Diane,
who her mother testified never slept nude, was found nude on her bed, her
bedroom in disarray, her panties tucked under the mattress. She had ligature
marks on her wrists and ankles. We held the evidence sufficient to find the
defendant had entered the townhouse with the intent to rape Diane. (Ibid.) In the
present case, the evidence shows neither disrobement, nor indications of bondage,
nor the recent or contemporaneous attempt to rape another victim. Nor did
defendant declare his intent to rape the victim, as in People v. Carpenter (1997) 15
Cal.4th 312, 387, also cited by the majority (maj. opn., ante, at p. 77). In
determining the nature of Powell’s wounds is substantial evidence that defendant
killed her in the commission of rape or attempted rape, the majority extends
Holloway beyond what the opinion will support.
As the majority observes, intent may be shown by circumstantial evidence.
(Maj. opn., ante, at p. 73.) But the circumstantial evidence must be substantial―it
must be such that a reasonable jury could find it allows only one reasonable
inference, that of criminal intent. In my view, the evidence of Powell’s wounds is
not of that type or quantity. A reasonable jury simply could not know beyond a
3
reasonable doubt that defendant, when he attacked Powell, intended to force her to
have sex with him before killing her.
Defendant’s killing of Powell, whether or not performed with the intent to
rape, was murder. It may have risen to first degree capital murder on the theory
the wounds to Powell’s breasts showed she was tortured before being killed (Pen.
Code, §§ 189, 190.2, subd. (a)(18)), though this theory was not presented to the
jury. But even viewing the record “in the light most favorable to the judgment
below” (People v. Johnson, supra, 26 Cal.3d at p. 578), there was simply
insufficient credible evidence of “solid value” (ibid.) from which a reasonable jury
could conclude beyond a reasonable doubt that defendant, when he attacked
Powell, intended to force sexual intercourse on her. The conviction of first degree
murder and the special circumstance finding, both dependent on a finding of
attempted rape, should be reversed.
WERDEGAR, J.
WE CONCUR:
MORENO,
J.
GILBERT,
J.*
*
Presiding Justice of the Court of Appeal, Second Appellate District,
Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Guerra
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S036864
Date Filed: March 2, 2006
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Leslie W. Light
__________________________________________________________________________________
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders and Arnold Erickson, Deputy State Public
Defender, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka, Keith H. Borjon and Alene M. Games,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Arnold Erickson
Deputy State Public Defender
221 Main Street, Tenth Floor
San Francisco, CA 94105
(415) 597-5831
Alene M. Games
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2369
Opinion Information
| Date: | Docket Number: |
| Thu, 03/02/2006 | S036864 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Alene M. Games, Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA |
| 2 | Guerra, Jose Francisco (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Jean R. Sternberg 303 Second Street, Suite 400 South San Francisco, CA |
| 3 | Guerra, Jose Francisco (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sf Arnold Erickson, Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| Disposition | |
| Mar 2 2006 | Opinion: Affirmed |
| Dockets | |
| Nov 22 1993 | Judgment of death |
| Dec 21 1993 | Filed certified copy of Judgment of Death Rendered 12-21-93. |
| Aug 11 1998 | Order appointing State Public Defender filed Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant Jose Francisco Guerra for the direct appeal in the above automatic appeal now pending in this court. |
| Oct 5 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 9 1998 | Extension of Time application Granted To 12-07-98 To request Record correction |
| Dec 2 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 9 1998 | Extension of Time application Granted To 2-5-99 To request Record correction |
| Feb 1 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Feb 3 1999 | Extension of Time application Granted To 4-6-99 To request Record correction |
| Mar 18 1999 | Order filed appointing H.C. Resource Center Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Jose Francisco Guerra for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. |
| Apr 1 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 12 1999 | Extension of Time application Granted To 6-7-99 To request Record correction no Furhter Extensions of time Are Contemplated. |
| Jun 4 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jun 10 1999 | Extension of Time application Granted To Applt To 8-6-99 To request Record correction. no further Extensions of time will be Granted. |
| Aug 6 1999 | Received: Copy of Applt's motion to correct, Augment and Settle the Record (57 Pp.) |
| Jul 10 2000 | Counsel's status report received (confidential) from Habeas Corpus Resource Center. |
| Aug 11 2000 | Counsel's status report received (confidential) from State Public Defender. |
| Sep 7 2000 | Counsel's status report received (confidential) from HCRC. |
| Oct 11 2000 | Counsel's status report received (confidential) from State P.D. |
| Nov 2 2000 | Counsel's status report received (confidential) from HCRC. |
| Dec 11 2000 | Counsel's status report received (confidential) from State P.D. |
| Jan 5 2001 | Counsel's status report received (confidential) from HCRC. |
| Feb 8 2001 | Counsel's status report received (confidential) from State P.D. |
| Mar 15 2001 | Counsel's status report received (confidential) from HCRC. |
| Apr 9 2001 | Counsel's status report received (confidential) from State P.D. |
| May 2 2001 | Counsel's status report received (confidential) from HCRC. |
| Jun 8 2001 | Counsel's status report received (confidential) from State P.D. |
| Jul 2 2001 | Counsel's status report received (confidential) from HCRC. |
| Aug 8 2001 | Counsel's status report received (confidential) from State P.D. |
| Sep 4 2001 | Counsel's status report received (confidential) from HCRC. |
| Oct 10 2001 | Counsel's status report received (confidential) from State P.D. |
| Oct 31 2001 | Counsel's status report received (confidential) from HCRC. |
| Dec 7 2001 | Counsel's status report received (confidential) from State P.D. |
| Dec 13 2001 | Counsel's status report received (confidential) (supplemental) from HCRC. |
| Jan 7 2002 | Counsel's status report received (confidential) from HCRC. |
| Jan 24 2002 | Record on appeal filed C-24 (5877 pp.) and R-55 (5345 pp.) including material under seal. CT contains 3226 pp. of juror questionnaires. |
| Jan 24 2002 | Appellant's opening brief letter sent, due: March 5, 2002. |
| Feb 8 2002 | Counsel's status report received (confidential) from State P.D. |
| Mar 1 2002 | Request for extension of time filed To file AOB. (1st request) |
| Mar 6 2002 | Extension of time granted To 5/6/2002 to file AOB. |
| Mar 11 2002 | Counsel's status report received (confidential) from HCRC. |
| Apr 9 2002 | Counsel's status report received (confidential) from State P.D. |
| May 3 2002 | Request for extension of time filed To file AOB. (2nd request) |
| May 6 2002 | Counsel's status report received (confidential) from HCRC. |
| May 10 2002 | Extension of time granted To 7/5/2002 to file AOB. Court anticipates, only five further extensions totaling 270 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule. |
| Jun 10 2002 | Counsel's status report received (confidential) from State P.D. |
| Jul 2 2002 | Counsel's status report received (confidential) from HCRC. |
| Jul 3 2002 | Request for extension of time filed To file AOB. (3rd request) |
| Jul 10 2002 | Extension of time granted To 9/3/2002 to file AOB. The court anticiaptes, only four further extensions totailng 210 additional days will be granted.. Counsel is ordered to take all steps necessary to meet this schedule. |
| Aug 9 2002 | Counsel's status report received (confidential) from State P.D. |
| Sep 3 2002 | Request for extension of time filed To file appellant's opening brief. (4th request) |
| Sep 6 2002 | Extension of time granted To 11/4/2002 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additioal days 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 it. |
| Sep 16 2002 | Counsel's status report received (confidential) from HCRC. |
| Oct 9 2002 | Counsel's status report received (confidential) from State P.D. |
| Nov 4 2002 | Request for extension of time filed To file appellant's opening brief. (5th request) |
| Nov 7 2002 | Extension of time granted To 1/3/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Nov 19 2002 | Counsel's status report received (confidential) from HCRC. |
| Dec 9 2002 | Counsel's status report received (confidential) from State P.D. |
| Dec 30 2002 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Jan 6 2003 | Extension of time granted To 3/4/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days 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 it. |
| Jan 21 2003 | Counsel's status report received (confidential) from HCRC. |
| Feb 7 2003 | Counsel's status report received (confidential) from State P.D. |
| Mar 3 2003 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Mar 5 2003 | Extension of time granted to 5/5/2003 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Arnold Erickson's representation that he anticipates filing that brief by 5/5/2003. After date, no further extension is contemplated. |
| Mar 17 2003 | Counsel's status report received (confidential) from HCRC. |
| Apr 8 2003 | Counsel's status report received (confidential) from State P.D. |
| May 5 2003 | Application to file over-length brief filed to file appellant's opening brief. (553 pp. brief submitted under separate cover) |
| May 7 2003 | Order filed Appellant's motion to file over-length opening brief is granted. |
| May 7 2003 | Appellant's opening brief filed (553. pp.) |
| May 19 2003 | Counsel's status report received (confidential) from HCRC. |
| May 30 2003 | Request for extension of time filed to file respondent's brief. [1st.request] |
| Jun 4 2003 | Extension of time granted to 8/5/2003 to file respondent's brief. |
| Jul 21 2003 | Counsel's status report received (confidential) from HCRC. |
| Aug 1 2003 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Aug 1 2003 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Aug 7 2003 | Extension of time granted to 10/6/2003 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon Deputy Attorney General Alene M. Games's representation that she anticipates filing that brief by 1/2/2004. |
| Sep 17 2003 | Counsel's status report received (confidential) from HCRC. |
| Sep 29 2003 | Request for extension of time filed to file respondent's brief. (3rd. request) |
| Oct 3 2003 | Extension of time granted to 12/5/2003 to file respondent's brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension is granted based upon counsel Alene M. Games's representation that she anticipates filing that brief by 1/30/2004. |
| Nov 19 2003 | Counsel's status report received (confidential) from HCRC. |
| Dec 2 2003 | Request for extension of time filed to file respondent's brief. (4th. request) |
| Dec 11 2003 | Extension of time granted to 2/3/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alene M. Games's representation that she anticipates filing that brief by 1/30/2004. After that date, no further extension is contemplated. |
| Jan 20 2004 | Counsel's status report received (confidential) from HCRC. |
| Jan 30 2004 | Request for extension of time filed to file respondent's brief. (5th request) |
| Feb 5 2004 | Extension of time granted to 3/4/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Alene M. Games's representation that she anticipates filing that brief by 3/4/2004. After that date, no further extension will be granted. |
| Mar 3 2004 | Respondent's brief filed (86,262 words - 311 pp.) |
| Mar 3 2004 | Application to file over-length brief filed for respondent's brief. [submitted concurrent with brief of 311 pgs.] FILING OF APPLICATION IS STRICKEN in that brief complies with word-count limits of rule 36(1)(A). |
| Mar 5 2004 | Received: letter from A.G. Alene M. Games re:over-length resp's. brief filed Mar. 3, 2004. |
| Mar 17 2004 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Mar 19 2004 | Counsel's status report received (confidential) from HCRC. |
| Mar 19 2004 | Extension of time granted to 5/24/2004 to file appellant's reply brief. |
| May 17 2004 | Request for extension of time filed by appellant to file reply brief. (2nd request) |
| May 18 2004 | Counsel's status report received (confidential) from HCRC. |
| May 25 2004 | Extension of time granted to 7-23-2004 to file reply brief. The court anticipates that after that date, only two further extensions totaling about 120 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it. |
| Jul 21 2004 | Exhibits requested from Los Angeles County Superior Court: People's 1-7, 11-20, 23, 24A, 24B-K, 25, 27-29, 32-34, 35A-K and 38-40. |
| Jul 22 2004 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Jul 28 2004 | Exhibit(s) lodged from Los Angeles County Superior court: People's 1-7, 11-20, 23, 24A-K, 25, 27-29, 32-34, 35A-K, 38-40. (7 charts/photo poster-boards and one manila envelope containing photos) |
| Jul 30 2004 | Extension of time granted to 9-21-2004 to file reply brief. After that date, only two further extensions totaling about 75 additional days will be granted. Extension granted based upon Deputy SPD Arnold Erickson's representation that he anticipates filing the brief by 12-3-2004. |
| Sep 16 2004 | Request for extension of time filed to file appellant's reply brief. (4th reqeust) |
| Sep 20 2004 | Extension of time granted to 11/22/2004 to file appellant's reply brief. After that date, only one further extension totaling about 11 additional days will be granted. Extension is granted based upon Deputy State Public Public Defender Arnold Erickson's representation that he anticipates filing that brief by 12/3/2004. |
| Sep 21 2004 | Counsel's status report received (confidential) from HCRC. |
| Nov 15 2004 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Nov 17 2004 | Extension of time granted to 12/3/2004 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Arnold Erickson's representation that he anticipates filing that brief by 12/3/2004. After that date, no further extension will be granted. |
| Nov 18 2004 | Counsel's status report received (confidential) from HCRC. |
| Dec 3 2004 | Appellant's reply brief filed (42,025 words; 165 pp.) |
| Dec 6 2004 | Filed: Supplemental declaration of service of appellant's reply brief. |
| Jan 18 2005 | Counsel's status report received (confidential) from HCRC. |
| Mar 16 2005 | Counsel's status report received (confidential) from HCRC. |
| Mar 16 2005 | Received: per request RT/ dated 8-2-91 from DAG Alene Games |
| Mar 17 2005 | Exhibit(s) lodged defense exhibit A ( a cassette tape ). |
| Mar 28 2005 | Counsel's status report received (confidential) from HCRC. |
| Jun 1 2005 | Related habeas corpus petition filed (concurrent) No. S134332 |
| Jun 29 2005 | Supplemental briefing ordered The parties are requested to brief the effect, if any, of Johnson v. California (No. 04-6964, June 13, 2005) 545 U.S. ___ (2005 WL 1383731) and Miller-El v. Dretke (No. 03-9659, June 13, 2005) 545 U.S. ___ (2005 WL 1383365) on the issues of this case. Appellant is directed to file a supplemental appellant's opening brief limited to this question on or before July 19, 2005. Respondent is directed to file a supplemental respondent's brief limited to this question within 20 days of the filing of the supplemental appellant's opening brief. Appellant may file a supplemental reply brief limited to this question within 10 days of the supplemental respondent's brief. Brown, J., was absent and did not participate. |
| Jul 19 2005 | Supplemental brief filed appellant's opening brief. (6859 words; 26 pp.) |
| Aug 5 2005 | Filed: supplemental letter brief of respondent (23 pp.) (Note: respondent advised on 8-10-2005 to resubmit in supplemental brief format with table of authorities, covers, and certificate of word count.) |
| Aug 10 2005 | Supplemental brief filed respondent's. (6507 words; 25 pp.) |
| Aug 15 2005 | Supplemental brief filed appellant's supplemental reply brief. (3672 words; 15 pp.) |
| Oct 18 2005 | Oral argument letter sent advising that case could be scheduled for oral argument as early as the December calendar, to be held the week of December 5, 2005, in Los Angeles. The advisement of "focus issues," notification that two counsel are to required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Nov 9 2005 | Case ordered on calendar December 7, 2005, 9:00 a.m., in Los Angeles |
| Nov 16 2005 | Request for Extended Media coverage Filed By John Hancock of The California Channel. |
| Nov 16 2005 | Filed: letter from DSPD Arnold Erickson, dated 11/15/2005, re focus issues for oral argument. Received: appearance sheet advising that counsel will need 30 minutes for oral argument. |
| Nov 18 2005 | Request for Extended Media coverage Granted subject to the conditions set forth in rule 980, California Rules of Court. |
| Nov 21 2005 | Received: Faxed letter from Alene M. Games, deputy Attorney General, stipulating to Justice Kennard's participation in the case even though she will not be present at oral argument, and filed as of 11/23/2005. |
| Nov 23 2005 | Filed: letter from respondent, dated 11/18/2005, re focus issues for oral argument. Received: appearance sheet advising respondent will need 30 minutes for argument. |
| Nov 28 2005 | Order vacated (case still open) The order filed Nov. 18, 2005, granting media coverage is hereby vacated. |
| Dec 7 2005 | Cause argued and submitted |
| Mar 2 2006 | Opinion filed: Judgment affirmed in full Majority Opinion by Chin, J. ----- joined by George, C.J., Kennard & Baxter, JJ. Dissent by Werdegar, J. ----- joined by Moreno & Gilbert (CA 2/6 assigned), JJ. |
| Mar 17 2006 | Rehearing petition filed by appellant. (5545 words; 20 pp.) |
| Mar 21 2006 | Time extended to consider modification or rehearing to May 31, 2006, or the date upon which reheaing is either granted or denied, whicever occurs first. |
| May 24 2006 | Rehearing denied Petition for rehearing DENIED. Werdegar and Moreno, JJ., are of the opinion the petition should be granted. |
| May 24 2006 | Remittitur issued (AA) |
| May 26 2006 | Order filed (150 day statement) |
| Jun 5 2006 | Received: acknowledgment of receipt of remittitur. |
| Jun 12 2006 | Order filed (150 day statement) |
| Jun 13 2006 | Exhibit(s) returned People's 1-7, 11-20, 23, 24A-24K, 25, 27-29, 32-34, 35A-35K and 38-40 Defendant's A |
| Jun 26 2006 | Filed: declaration of Marsha Smith, senior deputy clerk of the Automatic Appeals Unit, re exhibit no. 19. |
| Jun 26 2006 | Filed: declaration of Carl Caldana, office assistant in the Clerk's Office, re exhibit no. 19. |
| Aug 14 2006 | Received: letter from U.S.S.C., dated 8-10-2006, advising time to file certiorari petition extended to and including October 20, 2006. |
| Oct 16 2006 | Received: copy of appellant's petition for writ of certiorari. (11 pp. - excluding attachments) |
| Oct 23 2006 | Received: letter from U.S.S.C., dated October 19, 2006, advising petition for writ certiorari filed as No. 06-7232. |
| Dec 1 2006 | Received: acknowledgment of receipt of exhibits. |
| Jan 26 2007 | Received: letter from U.S.S.C., dated January 22, 2007, advising petition for writ of certiorari is denied. |
| Aug 23 2007 | Change of contact information filed for: HCRC. |
| Briefs | |
| May 7 2003 | Appellant's opening brief filed |
| Mar 3 2004 | Respondent's brief filed |
| Dec 3 2004 | Appellant's reply brief filed |
