Filed 2/19/09
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S073253
v.
ALFRED ANTHONY GUTIERREZ, )
Los Angeles County
Defendant and Appellant.
Super. Ct. No. KA034049
A jury convicted Alfred Anthony Gutierrez of the second degree murder of Dawn
Nakatani (Pen. Code, § 187, subd. (a)),1 the first degree murder of Mario Orellano
(§ 187, subd. (a)), and the attempted willful, deliberate, and premeditated murder of
Sergio Medina (§§ 187, subd. (a), 664). The jury found true sentencing enhancements as
to the murder of Mario Orellano and attempted murder of Sergio Medina that defendant
personally used a firearm (§ 12022.5, subd. (a)(1)) and that defendant committed the
offenses for the benefit of, at the direction of, or in association with, a criminal street
gang (§ 186.22, subd. (b)(4)). The jury also found true a multiple-murder special-
circumstance allegation. After a penalty trial, the jury returned a verdict of death. The
trial court denied defendant’s motions for a new trial and for a reduction or modification
of the sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
1
All further statutory references are to the Penal Code unless otherwise indicated.
1
I. FACTS
A. Introduction
On October 1, 1996, Dawn Nakatani, defendant’s ex-girlfriend and the mother of his
child, was beaten, strangled, and left for dead in her Baldwin Park home. A little before
noon, defendant had driven to Nakatani’s home, picked up defendant’s and Nakatani’s
three-year-old son, and left. A few minutes after noon, Nakatani’s roommate returned
home to find Nakatani unconscious and not breathing. Nakatani was transported to
Queen of the Valley Hospital, where she died at 12:48 a.m. on October 2, 1996, after
being briefly resuscitated.
On October 11, 1996, defendant drove past a gas station where he saw Ralph
Benevente, Mario Orellano, Sergio Medina, and others meeting to make plans for the
evening. Defendant returned to the gas station moments later, got out of his car with an
AK-47-type firearm, and fired several shots at Benevente’s car, killing Orellano and
injuring Medina.
B. Guilt Phase
1. Murder of Dawn Nakatani
a. Prosecution Evidence
Nakatani and her three-year-old son shared a home with Maria Rios and her
daughter. On the morning of October 1, 1996, Rios left the house in the morning while
Nakatani and the son slept. Rios came home for lunch around 12:06 p.m. and noticed
that Nakatani’s room was in disarray. Nakatani’s purse and wallet were on Rios’s bed,
there were candy wrappers at the top of the stairs — a vantage point from which the
television could be viewed — and there was a video cassette case for a Casper video on
top of the television cabinet. Things were out of place in Rios’s bedroom and Rios’s
bedroom window blinds were open and her bed pillows flattened as though someone had
been sitting on her bed looking down at the street through her blinds. Rios became
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frightened and looked through the rest of the house, finding Nakatani lying face down in
the bathroom/laundry room of the home. Nakatani had a bandana tightly knotted twice
around her neck; Rios had to use her hands and teeth to untie the bandana. Nakatani was
not breathing when Rios found her and her face was bruised and swollen. Rios ran
outside screaming and a neighbor called 911. Nakatani was transported to the hospital,
where she was briefly resuscitated but died of her injuries early the next morning.
Kim Pinto, Nakatani’s sister, testified that defendant had called her the evening
before Nakatani was found strangled to tell her that he was upset that Nakatani would not
let him see his son, and that she had “better talk to [Nakatani] or else he will take care of
her his way.” Defendant’s grandmother testified that defendant, along with two men,
dropped defendant’s son off at her house shortly after noon on October 1, 1996 even
though she was too infirm to babysit. Earlier that day, defendant’s mother, Janet
Gutierrez, had spoken with Nakatani to make arrangements to pick up the boy. Janet
Gutierrez arrived at Nakatani’s home a little after noon, saw Rios screaming, and was
told that the child was not there. Janet Gutierrez left Nakatani’s home, called defendant’s
grandmother from a nearby gas station to see if defendant was at his grandmother’s
house, and learned that defendant had dropped the child off there earlier that day.
Two days later, defendant went to the police in response to a notice in the
newspaper that he was being sought in connection with Nakatani’s murder. Deputy
Sheriff Sean Heieck testified that, as they were walking to a jail cell, defendant told him
that Nakatani used methamphetamine and had sex with multiple partners. Shortly
thereafter, Deputy Heieck put defendant in an “isolation cell,” where he was able to
observe defendant sitting alone and heard defendant thrice repeat, unprovoked by any
questioning, “I had to do what was best for my son.” Sergeant David Watkins testified
that defendant was released later that day because the case could not be presented to the
district attorney within 48 hours.
3
Dr. Eugene Carpenter, Jr., the deputy medical examiner, testified that Nakatani died
by ligature strangulation, and had also suffered abrasions and blunt-force trauma
consistent with being held against carpet while being strangled. The strangulation must
have occurred no more than 20 minutes before emergency personnel began administering
cardiopulmonary resuscitation, which began at 12:14 p.m.
More than two months later, on December 7, 1996, Pinto was driving defendant’s
son to his maternal grandmother’s house and mentioned that the next day they were going
to visit his mother’s grave at the cemetery. The boy responded that he would “untie my
mommy,” that he saw his “daddy and his mean friend tie[] up my mommy,” and that he
hit his dad to get him to stop, at which point defendant carried him upstairs and placed a
Casper video in the video cassette recorder for him to watch.
b. Defense Evidence
Defendant testified that he had been concerned about the environment in which his
son was being raised, which sometimes had led to arguments with Nakatani. On October
1, 1996, although defendant had planned for his parents to pick up his son from
Nakatani’s home, he received a call from Nakatani requesting that he come to pick up the
child because his parents were running late. Defendant did not have a driver’s license,
but he told Nakatani that he would get a ride over and pick up their son at 11:30 a.m.
Defendant and two unnamed cohorts2 drove to Nakatani’s home and walked into her
garage to pick up defendant’s son. Defendant and Nakatani began arguing, which
escalated into a physical altercation. Nakatani grabbed defendant’s shirt and scratched
his chest, and the two exchanged kicks. Defendant testified that he walked out of the
2
Defendant testified that he would not name the two men he claimed accompanied
him to Nakatani’s home on October 1, 1996 because, if he did, his “life would be in grave
danger.”
4
garage with his son while the two men walked towards Nakatani. The two men returned
to the car one or two minutes later, and defendant, the boy, and the two men drove away.
When the two men returned to the car, defendant asked them what had happened
with Nakatani. They replied, “She got crazy with us.” When defendant asked them to
elaborate, one of them said, “I don’t want to talk about it in front of your son.” After
dropping his son off at defendant’s grandmother’s house, defendant again asked what had
happened. Defendant testified that they replied that she “got crazy with them, and they
f…ed her up.” When defendant again asked them to elaborate, they replied, “Don’t
worry about it.” Defendant became worried and fled to Mexico, but returned the next
day and went to the police after learning that he was being sought in connection with
Nakatani’s death.
2. Murder of Mario Orellano and Attempted Murder of Sergio Medina
a. Prosecution Evidence
On October 11, 1996, Ralph Benevente, along with his friends Mario Orellano,
Sergio Medina, and twin brothers Aaron and Salvador Cervantes, were out for the
evening in Benevente’s car. Shortly before midnight, the five men were at a gas station
on Francisquito Avenue in Baldwin Park. The gas station was well lit, and there were a
number of other people there. Benevente and Medina testified that they saw an old,
“beat-up,” red or maroon car drive past the gas station. The car stopped, and defendant
got out of the passenger’s seat to stare at, or “mad dog,” Orellano. The red car drove
away, and Benevente became nervous and asked Orellano to get in his car. Benevente
moved his car so that it was between the gas station’s office area and the gas pumps.
Benevente and Medina then saw the red car return and saw defendant jump out of the
passenger side of the vehicle with an AK-47-type assault rifle and fire six shots. Medina
was shot three times, once in his back, and once in each leg. Medina spent a week and a
5
half in the hospital, and was confined to bed for three months. Orellano was shot in his
abdomen, which caused him to bleed to death internally.
Benevente identified defendant as the person who initially got out of the red car and
stared at Orellano, and identified him as the shooter in a photo lineup, a corporeal lineup,
and at defendant’s preliminary hearing. He noted that defendant’s appearance had
changed in that his mustache was thicker at the time of trial. Medina, who initially did
not wish to cooperate with police out of concern for his safety, ultimately identified
defendant as the shooter in the photo and corporeal lineup. Medina also noted that
defendant’s appearance changed from the photo lineup to the corporeal lineup in that
defendant’s hair was longer and his mustache might have been larger, although his face
appeared the same.
Salvador and Aaron Cervantes, members of the Varrio 213 gang, did not wish to
identify defendant, and Salvador feared reprisal. The Cervantes brothers noted that the
artist’s sketch and the photograph of defendant shown in the photo lineup looked like the
shooter. The brothers refused to participate in a corporeal lineup.
On December 15, 1997, as defendant was being moved out of the general prison
population, Deputy Sheriff Thomas Garcia searched defendant’s property and found a
number of “kites,” which are notes that inmates illegally pass to other inmates or to
individuals outside of prison while incarcerated. Deputy Garcia did not “go into detail”
in his search of defendant’s property; once he discovered the contraband, he packed all of
the notes into the folder in which they were found and called his colleague to pick up the
documents.
Among the “kites” were notes identifying Benevente as the “main rata,” and
identifying Benevente, Medina, and Salvador and Aaron Cervantes by name and by age.
One of the notes identified Benevente’s vehicle and license plate number; another
indicated that Benevente had “identified [defendant] at a lineup.” One note contained
Salvador Cervantes’s address and a map to Benevente’s home. Another note referred to
6
Benevente’s car, included his address, and directed the recipient of the note to “solve this
problem.” Defendant refused to give a full handwriting exemplar and refused to write
Ralph Benevente’s name. A handwriting expert confirmed that the kites were likely
written by the same person, but could not identify that person as defendant because the
exemplar defendant provided was of limited utility.
A search of defendant’s home revealed a box of papers and photographs depicting
gang members. Gang expert Deputy Sheriff Scott Lusk testified that he had known
defendant for eight years as a member of the Puente 13 gang, and he had had several
dozen conversations with defendant over the eight-year period preceding defendant’s
trial. Defendant, known as “Dinky,” was a member of the Perth clique of the Puente 13
gang, and his tattoos affiliated him both with the gang and with the clique. One of the
kites found in defendant’s possession was signed, “Dinky G., LaPuente 13.” Deputy
Lusk testified that someone who was trying to distance himself from a gang would not
sign kites with his gang moniker and gang name, as defendant had done.
b. Defense Evidence
On October 11, 1996, defendant was staying with his sister, Pam Gutierrez, about
two or three miles away from the gas station where the shooting occurred. That evening,
defendant’s family celebrated defendant’s son’s third birthday, although defendant was
prevented from attending the celebration by a court order. Defendant’s cousin, Michael
Ramirez, attended the party, and then went to visit defendant around 10:00 p.m. Ramirez
stayed with defendant until about 12:30 a.m. on October 12, 1996, and did not see
defendant leave the house, although Ramirez left once to buy beer shortly after arriving at
the house. Ramirez signed a declaration prepared by defendant’s father outlining his
recollection of seeing defendant on October 11, 1996. In his declaration, Ramirez stated
that defendant did not have a mustache in October of 1996, although he testified at trial
that he was not really sure.
7
Benevente, Medina, and Salvador and Aaron Cervantes all testified that the shooter
had a mustache. Benevente and other witnesses assisted police with preparing a
composite sketch of the shooter; all witnesses involved in preparing the sketch believed
that the shooter had hair on his head, while two witnesses who did not participate in
preparing the sketch recalled that the shooter was bald. In defendant’s booking
photograph taken on October 3, 1996 in connection with the murder of Nakatani,
defendant did not have a mustache. Defendant testified that it takes him “a month and [a]
half, [or] two months” to grow a mustache. The photograph of defendant included in the
photo lineup was taken in 1992 and depicted him with a mustache, but his more recent
booking photograph depicted him without a mustache.
C. Penalty Phase
1. Prosecution Evidence
The People presented evidence that defendant had two prior arrests for assaulting
Nakatani. In the first incident, defendant punched Nakatani in the side of her head, threw
her to the ground, and threatened to kill a member of her family after she refused to have
sex with him. Nakatani subsequently claimed she lied about this incident, and defendant
pled guilty to a misdemeanor violation of section 273.5, inflicting corporal injury on a
cohabitant. Several months later, defendant was arrested after assaulting Nakatani. The
People also presented evidence that defendant, while incarcerated, punched another
inmate in the head while the inmate covered up defensively. Defendant refused to stop
when ordered to do so, and had to be physically subdued.
The People presented victim-impact evidence. Nakatani’s brother testified that he
had been with her the night she died in the hospital, that her death was traumatic, and he
thought about her every day. Nakatani’s sister, Kim Pinto, testified that she and
Nakatani had been very close, and Nakatani’s son was the same age as Pinto’s youngest
child. Pinto testified that Nakatani’s son had been a normal child before his mother’s
8
murder, but following her death the boy became angry and aggressive, had nightmares,
was afraid to go to sleep, was quick-tempered, and was very emotional. Pinto testified
that Nakatani’s mother became very depressed after her daughter’s death, and that
Nakatani’s father could not eat or sleep following Nakatani’s death and that he quit
working one week after her death and died of a heart attack six months later.
Orellano’s father testified that Orellano was a good child and did not get into trouble
with the law. Orellano’s brother testified that he was in shock and his job performance
was impacted by his brother’s death.
2. Defense Evidence
A number of people testified on defendant’s behalf. Defendant’s father testified that
he had provided defendant with a stable family, ensured that defendant received good
educational opportunities, and ensured that he graduated from high school. Defendant’s
father testified that he believed defendant would take direction from authority figures if
imprisoned, and that although defendant had chosen gang life, he would “have to find
himself again,” which he would be able to do if imprisoned.
Defendant’s Little League Baseball coach testified that defendant had been a good
worker. Robert Alderete, defendant’s godfather, testified that defendant had received a
religious upbringing. Alderete testified that he believed defendant would do well in
prison, and that he could be a credit to the institution because he would help others while
incarcerated. Margaret Alderete, defendant’s godmother, testified that defendant had
received a wonderful education, had good role models like his godparents, understood his
religion, and knew right from wrong.
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II. DISCUSSION
GUILT PHASE
A. Denial of Marsden Motion
Defendant contends that the trial court failed to conduct a sufficient inquiry under
this court’s holding in People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and
erroneously denied his motion to substitute counsel in violation of his right to counsel
under the Sixth Amendment to the United States Constitution. At defendant’s pretrial
conference on January 15, 1998, defendant requested and received a Marsden hearing.
Defendant claimed that appointed counsel, Antonio J. Bestard, had failed to thoroughly
interview defendant prior to a January 15, 1998 trial-setting conference, had not
communicated adequately with defendant, had not explained to defendant the manner in
which he would seek the return of materials confiscated from defendant’s jail cell, had
responded to defendant’s request to file a motion for a change of venue by telling
defendant that he was “not O.J. Simpson,” and had told the prosecutor that this case was
not like his last one, which had involved the strangulation murder of the defendant’s
mother.
Bestard responded to defendant’s allegations, explaining that although he had been
appointed only one month prior to the pretrial conference, he had begun to familiarize
himself with the voluminous record, had interviewed defendant, accepted defendant’s
collect telephone calls, and had spoken on numerous occasions with defendant and
members of defendant’s family. With respect to the documents confiscated from
defendant’s jail cell, Bestard had explained several times to defendant’s sister that he
could not seek the return of the documents without the court’s permission, and it was
unlikely that the court would grant that permission. Counsel also explained that his
comment to the prosecutor related to the complexity of the case and certainly was not
intended to be a joke, as defendant contended.
10
“As we have stated, ‘a Marsden hearing is not a full-blown adversarial proceeding,
but an informal hearing in which the court ascertains the nature of the defendant’s
allegations regarding the defects in counsel’s representation and decides whether the
allegations have sufficient substance to warrant counsel’s replacement.’ (People v. Hines
(1997) 15 Cal.4th 997, 1025.)” (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.) As
defendant admits, there is no absolute right to substitute counsel. (Marsden, supra,
2 Cal.3d at p. 123.) A trial court is required to substitute counsel “ ‘in a situation where
the record clearly shows that the first appointed counsel is not adequately representing
the accused.’ ” (Ibid.) Alternatively the trial court must substitute counsel where it is
demonstrated that counsel and defendant are embroiled in an irreconcilable conflict.
(People v. Abilez (2007) 41 Cal.4th 472, 488.) The decision to substitute counsel is
within the discretion of the trial court; this court will not find an abuse of discretion
unless the trial court’s failure to substitute counsel would “ ‘ “substantially impair” the
defendant’s right to effective assistance of counsel.’ ” (Ibid.)
Here, we conclude that the trial court made a proper inquiry and did not abuse its
discretion by concluding that it was unnecessary to substitute counsel. Defendant
primarily asserts that the trial court failed to make an appropriate inquiry under Marsden,
which requires that a trial court “listen[] to [a defendant’s] reasons for requesting a
change of attorneys.” (Marsden, supra, 2 Cal.3d at p. 123.) Here, the trial court did just
that — the trial court asked defendant to list the grounds upon which he believed Bestard
had provided inadequate representation and the grounds upon which he believed that
there was an irreconcilable conflict with counsel. Defendant listed his concerns with
counsel, and the trial court then asked Bestard to respond. Counsel provided a thorough
response to the concerns raised by defendant. Defendant was given an opportunity to
respond, and the trial court then denied defendant’s motion finding that representation
was adequate. We conclude that the trial court made an adequate inquiry as to the
11
existence of a conflict between defendant and counsel, and as to the adequacy of
Bestard’s representation.
Defendant contends that trial counsel’s representation was inadequate because,
defendant alleges, Bestard failed to consult with defendant, failed to make “critical
motions,” and lacked preparation. Defendant cites Bland v. California Dept. of
Corrections (9th Cir. 1994) 20 F.3d 1469, 1477 (overruled in part on other grounds,
Schell v. Witek (9th Cir. 2000) 218 F.3d 1017) (Bland) for the proposition that inadequate
preparation implies that there exists an irreconcilable conflict between a defendant and
his attorney. In Bland, defense counsel spent only 15-20 minutes with defendant prior to
trial, failed to prepare defendant to take the witness stand, and failed to investigate
exculpatory eyewitnesses. (Bland, supra, 20 F.3d at p. 1477.) There is no evidence here
that Bestard was not fully prepared for trial; defendant objects only to the amount of time
counsel spent with him prior to the January 15, 1998 pre-trial conference. Most
significantly, however, the Bland court held that the trial court violated the defendant’s
Sixth Amendment right by failing to make a proper inquiry after defendant requested that
counsel be substituted. (Bland, supra, 20 F.3d at p. 1477.) Here, as previously
discussed, the trial court immediately and properly inquired as to the adequacy of
representation and potential existence of a conflict; accordingly, defendant’s reliance on
Bland is unavailing.
Defendant alleges that counsel’s failure to file a motion for a change of venue
constituted inadequate representation requiring substitution of counsel. Not so. Certainly
defense counsel could have been more artful in explaining to defendant why he believed
that filing a motion for change of venue would be unsuccessful. However, defense
counsel’s decision not to file a motion he believes will be futile does not “ ‘ “substantially
impair” . . . defendant’s right to effective assistance of counsel.’ ” (People v. Abilez,
supra, 41 Cal.4th at p. 488; see People v. Memro (1995) 11 Cal.4th 786, 834 [“The Sixth
12
Amendment does not require counsel ‘ “to waste the court’s time with futile or frivolous
motions.” ’ [Citations.]”].)
Finally, defendant contends that even if a conflict did not exist prior to the Marsden
hearing, a conflict arose at the hearing because trial counsel took an “adversary position.”
There is no evidence in the record that Bestard took such a position; to the contrary,
defense counsel was given an opportunity to describe the scope of his representation at
the Marsden hearing, and following defendant’s response, the trial court reasonably
concluded that no substitution of counsel was necessary. Because we conclude that
defendant was not denied his Sixth Amendment right to counsel, reversal is not
warranted.
B. Dismissal of Prospective Juror Following Contact with Prosecution
Witness
Kim Pinto, Nakatani’s sister and a witness for the People, observed jury selection in
which her coworker, F.K., was a prospective juror. The next day, Pinto approached F.K.
at work and told him that defendant “killed my sister. And if that’s not enough, after that,
he killed someone else. That’s my case. And we have been waiting for a year to get it.”
Pinto then told F.K. that he would likely be excused because he knew her. Prospective
Juror F.K. informed the court later that evening of the conversation he had with Pinto.
The court admonished Pinto for her communication with F.K., heard testimony from
Prospective Juror F.K. regarding his communication with Pinto, and excused Prospective
Juror F.K. Defendant did not object to Prospective Juror F.K.’s excusal.3 Defendant
3
Defense counsel initially expressed “concern” that “this particular juror had some
positive answers on his questionnaire that were favorable to the defendant” and that he
was “denied access to a juror . . . that may have been favorable to” defendant. The court
replied that “the juror may be unfavorable” to defendant, and defense counsel stated, “I
also agree, that’s true, too.” Defense counsel thereafter did not object, and the court
excused Prospective Juror F.K. Defendant then requested a new panel of prospective
jurors because of “the tampering with this particular jury.” The court concluded that
(footnote continued on next page)
13
now claims that dismissing Prospective Juror F.K. violated his right to a fair trial under
the Sixth and Fourteenth Amendments to the United States Constitution. We disagree.
By failing to object, defendant forfeited his claim that the trial court erred in
excusing Prospective Juror F.K. for cause. (People v. Holt (1997) 15 Cal.4th 619, 658.)
Assuming that defendant had preserved this claim on appeal, we conclude that the trial
court did not err. A trial court may excuse a prospective juror for “[a]ctual bias,” which
is defined as “the existence of a state of mind on the part of the juror in reference to the
case, or to any of the parties, which will prevent the juror from acting with entire
impartiality, and without prejudice to the substantial rights of any party.” (Code Civ.
Proc., § 225, subd. (b)(1)(C); Pen. Code, § 1046 [“Trial juries for criminal actions are
formed in the same manner as trial juries in civil actions.”].) “The term ‘actual bias’ may
include a state of mind resulting from a juror’s actually being influenced by extraneous
information about a party.” (People v. Nesler (1997) 16 Cal.4th 561, 581.) F.K. knew a
witness in the case, Pinto, by sight because they worked in the same location. Pinto told
F.K. that defendant had killed her sister and killed another person as well. The trial court
did not abuse its discretion in concluding that F.K.’s business relationship with Pinto and
Pinto’s statement would “prevent the juror from acting with entire impartiality.” (Code
Civ. Proc., § 225, subd. (b)(1)(C).)
Defendant argues that the trial court’s excusal of Prospective Juror F.K. was
improper because a trial court is obliged to conduct a hearing once a juror’s competence
is called into a question. (See People v. Farnam (2002) 28 Cal.4th 107, 140-141 [when
trial court is on notice that cause may exist to discharge a juror, the court must conduct a
reasonable inquiry to determine if the juror should be discharged].) Here, the trial court
(footnote continued from previous page)
contact with one prospective juror did not amount to tampering and denied defendant’s
motion.
14
conducted an inquiry after it was made aware of Pinto’s contact with F.K., which
consisted of hearing argument from defense counsel and the prosecutor as to how to
proceed, questioning Prospective Juror F.K. regarding the conversation he had with
Pinto, and providing defense counsel and the prosecutor with an opportunity to question
Prospective Juror F.K. regarding his conversation with Pinto.
Defendant nonetheless asserts that the trial court erred by failing to ask the
prospective juror whether he could remain impartial and unbiased following his
encounter with Pinto, and by failing to remind the prospective juror of his obligation to
follow the court’s instructions and decide the case on the law and evidence alone.
Defendant cites three cases, in which, unlike the case at bar, the trial court learned of
potential juror prejudice but failed to conduct a hearing or conducted a woefully
inadequate hearing to ascertain whether there was actual prejudice. (See People v.
Compton (1971) 6 Cal.3d 55, 59-60 [no hearing]; People v. Chavez (1991) 231
Cal.App.3d 1471, 1479 [no hearing]; People v. McNeal (1979) 90 Cal.App.3d 830, 837-
838 [inadequate hearing consisting of brief inquiry of foreman and of juror, without
adequate clarifying questions asked of juror].) Moreover, each of the three cases
involved an impaneled jury, whereas the trial court in the present case excused
Prospective Juror F.K. prior to final selection of a jury.
Unlike the three cases upon which defendant relies, the trial court conducted a
thorough hearing. The trial court heard argument from counsel, questioned F.K., and
permitted the parties to question F.K. prior to dismissing him. Defendant asserts that the
trial court in People v. Collins (1976) 17 Cal.3d 687, 696, “did it right” when it
conducted an “extensive hearing” before discharging a juror. In People v. Collins, the
trial court dismissed a juror after questioning her regarding her impartiality; here, the trial
court conducted an even more extensive evaluation of the prospective juror’s ability to
serve by questioning him regarding his encounter with Pinto, permitting counsel to
question him, and hearing argument from counsel. As defendant noted, the trial court in
15
People v. Collins “did it right;” here, the trial court also “did it right” by conducting a
more thorough inquiry than the one conducted in People v. Collins.
Defendant cites no authority that requires a trial court to ask a potential juror
whether he or she could remain impartial and unbiased before excusing the potential juror
for cause. The court permitted defense counsel to question F.K., which gave defendant
an opportunity to so inquire if he wished. The trial court properly could have concluded
that F.K.’s business relationship with Pinto and her statement to F.K. established that
F.K. was actually biased had he assured the court he would attempt to be impartial.
Accordingly, here, even if the trial court’s exercise of its broad discretion to excuse a
prospective juror was erroneous, which it was not, any such error does not warrant
reversal.
C. Precluding Cross-examination of Kim Pinto
Defendant argues that the trial court violated his Sixth Amendment right to confront
witnesses and abused its discretion under Evidence Code section 352 by denying his
motion to cross-examine Pinto regarding her conversation with Prospective Juror F.K. to
establish her bias or prejudice against defendant. Defendant also sought to cross-examine
Pinto in an effort to show that the district attorney engaged in discriminatory enforcement
by prosecuting members of defendant’s family for witness tampering, while failing “to
pursue [Pinto] just as vigorously as [it] pursued” the members of defendant’s family. The
court denied defendant’s motion, ruling that defendant could not use Pinto’s conversation
with a prospective juror “as a way to catapult some unrelated event to cloud the issues in
this case.”
We conclude that the trial court did not err by denying defendant’s motion. While a
defendant’s confrontation right includes the right to cross-examine adverse witnesses
regarding bias or prejudice, the right is not absolute. (People v. Quartermain (1997)
16 Cal.4th 600, 623.) As the trial court did here, a court may restrict cross-examination
16
based upon the factors articulated in Evidence Code section 352. (People v.
Quartermain, supra, 16 Cal.4th at p. 623.) A trial court has the discretion to exclude
otherwise admissible “evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.) We review a trial court’s ruling under Evidence Code section 352
for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
The trial court did not abuse its discretion by excluding evidence regarding Pinto’s
communications with a prospective juror. Defendant cross-examined Pinto regarding her
relationship to Nakatani, her relationship to her nephew, and the ongoing custody battle
between defendant’s family and Nakatani’s family over defendant’s son. The subjects
upon which Pinto was cross-examined amply demonstrated Pinto’s potential bias against
defendant. The trial court did not abuse its discretion by concluding that additional cross-
examination regarding Pinto’s conversation with a prospective juror would “cloud the
issues” and was therefore inadmissible under Evidence Code section 352.
D. Spontaneous Statement
The trial court granted the People’s motion to introduce, over defendant’s
objections, the out-of-court statement of defendant’s son implicating defendant in
Nakatani’s death. At trial, Pinto testified that while she and defendant’s three-year-old
son were driving to her mother’s house on December 7, 1996, approximately two months
following the death of Nakatani, Pinto told the child that they were going to the cemetery
to visit his mother’s grave. In response, defendant’s son told Pinto, “I’m going to untie
my mommy.” Pinto asked the boy “who told him that,” and he replied that “his daddy
and his mean friend tied up his mommy.” The child made a tying motion with his hands
and pointed at his neck while making this statement. The boy stated that he hit
17
defendant, told defendant to stop, and defendant carried him upstairs. While making his
statement, the child was crying, and “scrunching up his face like he was angry.”
Pinto testified that two days after the child made the statement regarding his mother,
she reported it to Detective Aquino, and Detective Aquino interviewed her and the boy in
person shortly thereafter. Detective Aquino testified at a hearing to determine whether
the statement was admissible,4 and corroborated Pinto’s account that she called him to
report the child’s statement, and that he interviewed her in person a few weeks later.
Defendant objected that his son’s statements were inadmissible hearsay; the trial court
overruled defendant’s objection, ruling that Pinto’s statement was corroborated by
Detective Aquino’s recollection of the incident, and Pinto’s testimony regarding
defendant’s son’s hearsay statement fell “within the parameter of the [spontaneous
declaration] exception of the hearsay rule” and was admissible.5
On appeal, defendant argues that the admission of the child’s hearsay statement
violated his right to a fair trial, his right to confront witnesses under the Sixth
4
Evidence Code section 402 provides, in pertinent part, that “[t]he court may hear
and determine the question of the admissibility of evidence out of the presence or hearing
of the jury . . . .”
5
Defendant made two other objections at trial, neither of which he raises on appeal.
First, defendant objected that Pinto’s testimony describing his son’s interaction with
Pinto’s children prior to Nakatani’s death lacked foundation because Pinto was not
familiar with the boy’s actions prior to his mother’s death. The trial court overruled
defendant’s objection, and Pinto testified that she was familiar with defendant’s son’s
behavior with her children both prior to and following Nakatani’s death. Second,
defendant objected that Pinto’s description of the boy as appearing angry when
describing what happened to Nakatani was speculative. The court overruled defendant’s
objection, concluding that Pinto’s characterization of the boy’s state of mind was
admissible under Evidence Code section 800. Evidence Code section 800 provides, “If a
witness is not testifying as an expert, his testimony in the form of an opinion is limited to
such an opinion as is permitted by law, including but not limited to an opinion that is: [¶]
(a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear
understanding of his testimony.”
18
Amendment to the United States Constitution, as well as his right to due process pursuant
to the Fourteenth Amendment to the United States Constitution. We note that although
defendant did not raise federal constitutional objections to the admission of his son’s
testimony at trial, he did not forfeit those claims on appeal. Where “it appears that (1) the
appellate claim is the kind that required no trial court action to preserve it, or (2) the new
arguments do not invoke facts or legal standards different from those the trial court was
asked to apply, but merely assert that the trial court’s act or omission, in addition to being
wrong for reasons actually presented to that court, had the legal consequence of violating
the Constitution[,] . . . defendant’s new constitutional arguments are not forfeited on
appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 (Boyer), applying People v.
Partida (2005) 37 Cal.4th 428, 433-439.)” (People v. Carasi (2008) 44 Cal.4th 1236,
1289, fn.15.)
A statement may be admitted, though hearsay, if it describes an act witnessed by the
declarant and “[w]as made spontaneously while the declarant was under the stress of
excitement caused by” witnessing the event. (Evid. Code, § 1240.) “ ‘To render
[statements] admissible [under the spontaneous declaration exception] it is required that
(1) there must be some occurrence startling enough to produce this nervous excitement
and render the utterance spontaneous and unreflecting; (2) the utterance must have been
before there has been time to contrive and misrepresent, i.e., while the nervous
excitement may be supposed still to dominate and the reflective powers to be yet in
abeyance; and (3) the utterance must relate to the circumstance of the occurrence
preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).)
Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence
because “ ‘ “in the stress of nervous excitement the reflective faculties may be stilled and
the utterance may become the unreflecting and sincere expression of one’s actual
impressions and belief.” ’ [Citation.]” (Ibid.)
19
In Poggi, a police officer responding to a call found the victim about 30 minutes
after she had been stabbed “in a very excited state, with blood flowing from her mouth
. . . apparently attempting to recount what had happened to her but was rambling and
incoherent.” (Poggi, supra, 45 Cal.3d at p. 315.) In response to the officer’s questioning,
the victim described the crime while paramedics attempted to treat her wounds. (Id.
at p. 316.) The victim later died from her injuries. (Ibid.) This court affirmed the trial
court’s ruling that the victim’s statements were admissible as spontaneous statements,
stating that “[w]hether the requirements of the spontaneous statement exception are
satisfied in any given case is, in general, largely a question of fact. [Citation.] The
determination of the question is vested in the court, not the jury. [Citation.] In
performing this task, the court ‘necessarily [exercises] some element of discretion . . . .’
[Citation.]” (Id. at p. 318.)
The defendant in Poggi argued that the statements were not spontaneous because
they were made about 30 minutes following the attack in response to questioning. We
held the trial court did not abuse its discretion: “First, although [the victim] made the
statements at issue about 30 minutes after the attack, it is undisputed that she was still
under its influence. Second, it is also undisputed that she remained excited as she made
the statements, even though she had become calm enough to speak coherently . . . .”
(Poggi, supra, 45 Cal.3d at p. 319.) Thus, although the lapse of time between the
underlying event and the statement describing it is relevant, a statement remains
spontaneous “ ‘if it nevertheless appears that [the statement was] made under the stress of
excitement and while the reflective powers were still in abeyance.’ ([People v.
Washington (1969)] 71 Cal.2d [1170,] 1176.)” (Poggi, supra, 45 Cal.3d at p. 319, italics
omitted.) The amount of time that passes between a startling event and subsequent
declaration is not dispositive, but will be scrutinized, along with other factors, to
determine if the speaker’s mental state remains excited.
20
Here, defendant argues that the child’s statement did not satisfy the requirements of
a spontaneous declaration because the child’s ability to reflect and fabricate had returned
by the time he made the statement, and the statement failed to describe the event
immediately preceding it. We agree. The word “spontaneous” as used in Evidence Code
section 1240 means “actions undertaken without deliberation or reflection. . . . [T]he
basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress
of nervous excitement, the reflective faculties may be stilled and the utterance may
become the instinctive and uninhibited expression of the speaker’s actual impressions and
belief.” (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on another point in
People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
The crucial element in determining whether an out-of-court statement is admissible
as a spontaneous statement is the mental state of the speaker. (People v. Farmer, supra,
47 Cal.3d 888, 903.) “The nature of the utterance — how long it was made after the
startling incident and whether the speaker blurter it out, or example — may be important,
but solely as an indicator of the mental state of the declarant.” (Id. at pp. 903-904.) In In
re Cheryl H. (1984) 153 Cal.App.3d 1098, 1130, the Court of Appeal held that the out-of-
court statement of a three-year-old girl stating that her father had sexually abused her
one- to- two months earlier was not admissible as a spontaneous statement because the
victim was not “still ‘under the stress of excitement caused by’ the exciting event, in this
case the acts of sexual abuse.” (Fn. omitted, disapproved on other grounds by People v.
Brown (2003) 31 Cal.4th 518.) The court observed: “Frequently, statements are ruled
inadmissible under this exception even though uttered only a few minutes after the
exciting event. [Citations.] Substantially longer delays have been tolerated when the
declarant was unconscious. [Citation.] Nonetheless, nothing in the cases or underlying
theory of the ‘spontaneous exclamation’ exception would suggest the necessary level of
psychological stress could be sustained for even a few hours to say nothing of the weeks
21
and months involved in this case.” (In re Cheryl H., supra, 153 Cal.App.3d at p. 1130,
fn. omitted.)
The trial court relied on People v. Trimble (1992) 5 Cal.App.4th 1225 (Trimble), to
find that the boy’s statement satisfied the spontaneous declaration exception to the
hearsay rule. In Trimble, the victim was last seen alive shortly after her mother returned
her to the cabin she shared with the defendant and their two children. (Id. at pp. 1228-
1229.) Two days later, the victim’s sister went to the cabin. (Id. at p. 1229.) As soon as
the defendant left the cabin, the victim’s two and one-half-year-old daughter “became
‘completely hysterical’ ” and described to her aunt how her father had stabbed her mother
nearly two days earlier. (Ibid.)
The Court of Appeal ruled that the trial court did not abuse its discretion in finding
that the child’s statements “were spontaneous rather than the product of reflection.”
(Trimble, supra, 5 Cal.App.4th at p. 1235.) The court concluded that despite “[t]he
appreciable interval between the incident and the subject statements,” the arrival of the
child’s aunt and departure of the child’s father, with whom she had been sequestered for
two days, “was a triggering event, startling enough to provoke an immediate, unsolicited,
emotional outpouring of previously withheld emotions and utterances. [Citation.]”
(Ibid.) The Trimble court relied upon the fact that, until the arrival of the child’s aunt, the
child “had no trustworthy person in whom to confide.” (Ibid.)
Trimble is distinguishable from the present case. Here, defendant’s son was
dropped off with his great-grandparents less than one hour following his departure from
Nakatani’s home, but did not immediately make the statement at issue. He stayed with
his father’s family and visited his mother’s family once every week or two following his
mother’s death. He was never confined with defendant and had ample opportunity to
confide in a relative. Unlike in Trimble, the child did not make his statement at the “first
secure opportunity for disclosure” following confinement with the assailant (Trimble,
supra, 5 Cal.App.4th at p. 1235), but rather made his statement two months later when
22
Pinto said she was taking him to visit his mother’s grave. Although there was evidence
the boy was upset, because he was crying and “scrunching up his face like he was angry,”
there is nothing to indicate that during the two-month period following his mother’s
murder he had remained under the stress of excitement caused by witnessing the event
and that his reflective powers were still in abeyance. We therefore conclude that the trial
court abused its discretion by admitting the child’s hearsay statement.
Defendant alleges that the trial court’s erroneous admission of the boy’s hearsay
statement violated his Sixth Amendment right to confront the witnesses against him. Not
all erroneous admissions of hearsay violate the confrontation clause. (People v.
Page (2008) 44 Cal.4th 1, 48.) As the high court held in Crawford v. Washington (2004)
541 U.S. 36 (Crawford), “[t]he confrontation clause ‘applies to “witnesses” against the
accused — in other words, those who “bear testimony.” [Citation.] “Testimony,” in turn,
is typically “[a] solemn declaration or affirmation made for the purpose of establishing or
proving some fact.” [Citation.]’ ” (People v. Page, supra, 44 Cal.4th at p. 48, quoting
Crawford, supra, 541 U.S. at p. 51.) Only the admission of testimonial hearsay
statements violate the confrontation clause — unless the declarant is unavailable and the
defendant had a prior opportunity to cross-examine the declarant. (People v. Geier
(2007) 41 Cal.4th 555, 597.) While the high court declined to precisely define what
constitutes a “testimonial” statement, it held that, at a minimum, testimonial statements
include “prior testimony at a preliminary hearing, before a grand jury, or at a former trial;
and . . . police interrogations.” (Crawford, supra, 541 U.S. at p. 68.) The court
explained that the confrontation clause addressed the specific concern of “[a]n accuser
who makes a formal statement to government officers” because that person “bears
testimony in a sense that a person who makes a casual remark to an acquaintance does
not.” (Id. at p. 51.) The statement of a three-year-old declarant made to his aunt is more
like “a casual remark to an acquaintance” and is therefore not a testimonial statement
under Crawford. (See People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19 [out-of-court
23
statement made to a friend at school does not constitute “testimonial hearsay” under
Crawford].) Thus, admission of the child’s hearsay statement did not violate defendant’s
Sixth Amendment right to confront witnesses.
Defendant alleges that the trial court’s erroneous admission of the boy’s hearsay
statement also violated his Fourteenth Amendment right to due process, but fails to
provide authority for this proposition, other than his bare assertion that the statement
lacked particularized guarantees of trustworthiness. Defendant also fails to explain how a
statement’s lack of trustworthiness violates the Fourteenth Amendment’s due process
guarantee. Defendant is unable to establish a federal constitutional violation;
accordingly, we analyze the trial court’s error under the test articulated in People v.
Watson (1956) 46 Cal.2d 818, 836 to “evaluate whether ‘it is reasonably probable that a
result more favorable to [defendant] would have been reached in the absence of the
error.’ ” (People v. Page, supra, 44 Cal.4th at p. 42, quoting People v. Watson, supra,
46 Cal.2d at p. 836.)
Defendant argues that the child’s hearsay statement was the only “testimony placing
[defendant] inside Nakatani’s apartment at the time of her death and as an active
participant in her death.” The People argue, on the other hand, that there was ample
circumstantial evidence of defendant’s guilt, including defendant’s statement that he had
to do what was best for his son, his threats to Nakatani’s siblings that they would be
“next,” his story that he left Nakatani’s home moments before her murder, and his
attempts to falsify an alibi, all of which may have been believed by the jury. The People
also argued that the jury could find defendant guilty as an aider and abettor, and the trial
court so instructed the jury.
Although defendant is correct that the boy’s testimony provided the only direct
evidence implicating defendant in the murder, defendant fails to acknowledge the profuse
circumstantial evidence of defendant’s guilt. Absent the child’s hearsay testimony, it is
possible that a jury could have believed defendant’s testimony regarding the event — that
24
he went to Nakatani’s home accompanied by two men whom he refused to identify,
engaged in a brief altercation with Nakatani, and returned to the car with his son while
his two unnamed cohorts quickly killed Nakatani unbeknownst to him — and found him
innocent. However, we need not conclude that it is reasonably probable that the jury
would have returned a verdict more favorable to defendant absent the child’s testimony
because the jury did not find defendant guilty of first degree murder. Rather, the jury
found defendant guilty of second degree murder as an aider and abettor, a nearly
inescapable conclusion in light of the circumstantial evidence that defendant was in
Nakatani’s home moments before she was strangled, his jailhouse confessions that he had
to do what was best for his son, and Pinto’s testimony that he told her she had “better talk
to [Nakatani] or else he will take care of her his way.” Absent the child’s testimony, it is
more probable than not that the jury would have — and did — conclude that defendant
was guilty of second degree murder as an aider and abettor, because defendant knew
“ ‘ “the full extent of the perpetrator’s criminal purpose and [gave] aid or encouragement
with the intent or purpose of facilitating the perpetrator’s commission of the crime.” ’
[Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1118, quoting People v.
Prettyman (1996) 14 Cal.4th 248, 259.) Accordingly, we conclude that reversal of
defendant’s conviction is not warranted.
E. Failure to Instruct Regarding Evaluating Child Testimony
Defendant contends the trial court erred by refusing his request to instruct the jury
pursuant to CALJIC No. 2.20.1 — which guides the jury in evaluating the testimony of a
child 10 years of age or younger — because the instruction would have helped the jury
evaluate the credibility of his son’s statements introduced through Pinto’s testimony.6
6
CALJIC No. 2.20.1 provides: “In evaluating the testimony of a child [ten years of
age or younger] you should consider all of the factors surrounding the child’s testimony,
including the age of the child and any evidence regarding the child’s level of cognitive
development. A child, because of age and level of cognitive development, may perform
(footnote continued on next page)
25
Defendant first contends that because Evidence Code sections 1202 and 788 permit a
party to introduce evidence to impeach a hearsay declarant’s credibility, the trial court
erred by refusing to give CALJIC No. 2.20.1 to allow the jury to assess the child’s
credibility as a hearsay declarant.
Defendant’s reliance on Evidence Code sections 1202 and 788 is misplaced. While
defendant correctly asserts that a jury may evaluate the credibility of a hearsay declarant,
defendant offered no evidence — under Evidence Code sections 1202 (declarant’s prior
inconsistent statements), 788 (declarant’s prior felony convictions), or otherwise — to
impeach the declarant’s credibility. It does not follow from the fact that a hearsay
declarant’s testimony may be impeached that the court here erred by refusing to instruct
the jury pursuant to CALJIC No. 2.20.1, which assists the jury in evaluating a child
witness’s performance on the witness stand. (See People v. Jones (1990) 51 Cal.3d 294,
315-316 [addressing Evidence Code section 1127f’s application to child witness
testifying]; People v. McCoy (2005) 133 Cal.App.4th 974, 979-980.)
Defendant also relies upon Penal Code section 1127f, which requires, at the request
of a party, that a trial court instruct the jury in language that has been incorporated into
CALJIC No. 2.20.1 when “a child 10 years of age or younger testifies as a witness.”
(Italics added.) By its terms, Penal Code section 1127f does not apply because the
declarant was not called as a witness. CALJIC No. 2.20.1 is a specific instruction that
addresses how a jury should evaluate the testimony of a child witness. Because the
requested instruction was inapplicable, we conclude that the trial court did not err by
refusing to instruct the jury pursuant to CALJIC No. 2.20.1.
(footnote continued from previous page)
differently than an adult as a witness, but that does not mean that a child is any more or
less believable than an adult. You should not discount or distrust the testimony of a child
solely because he or she is a child.” (Brackets in original.)
26
Assuming for the purposes of argument that the court’s refusal to instruct the jury
pursuant to CALJIC No. 2.20.1 was erroneous, any error was harmless because the trial
court adequately instructed the jury pursuant to CALJIC No. 2.207 regarding the jury’s
duty to evaluate the believability of witnesses and the truthfulness of testimony. (People
v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18, 24.)
CALJIC No. 2.20 allowed the jury to assess the believability of defendant’s son’s hearsay
statement; CALJIC No. 2.20.1 would not have provided guidance to the jury beyond that
provided by CALJIC No. 2.20, and may have confused the jury because the instruction
pertained specifically to the instance of a young child giving live testimony.
7
CALJIC No. 2.20 provides, “Every person who testifies under oath [or
affirmation] is a witness. You are the sole judges of the believability of a witness and the
weight to be given the testimony of each witness.
“In determining the believability of a witness you may consider anything that has a
tendency reasonably to prove or disprove the truthfulness of the testimony of the witness,
including but not limited to any of the following:
“The extent of the opportunity or ability of the witness to see or hear or otherwise
become aware of any matter about which the witness testified;
“The ability of the witness to remember or to communicate any matter about which
the witness has testified;
“The character and quality of that testimony;
“The demeanor and manner of the witness while testifying;
“The existence or nonexistence of a bias, interest, or other motive;
“The existence or nonexistence of any fact testified to by the witness;
“The attitude of the witness toward this action or toward the giving of testimony [.] [;]
“[A statement [previously] made by the witness that is [consistent] [or] [inconsistent]
with [his] [her] testimony] [.] [;]
“[The character of the witness for honesty or truthfulness or their opposites] [;]
“[An admission by the witness of untruthfulness] [;]
“[The witness' prior conviction of a felony] [;]
“[Past criminal conduct of a witness amounting to a misdemeanor] [;]
“[Whether the witness is testifying under a grant of immunity].” (Brackets in
original.)
27
F. Seizure and Admission of Defendant’s Correspondence
Defendant contends that the trial court deprived him of his Sixth Amendment right
to counsel by admitting into evidence documents seized from defendant’s prison cell that
were protected by the attorney-client privilege. We disagree.
As noted above, on December 15, 1997, as defendant was being moved out of the
general prison population, Deputy Sheriff Thomas Garcia searched defendant’s property
and found a number of “kites,” which are notes inmates illegally pass to one another or to
individuals outside of the prison system. Deputy Sheriff Garcia did not “go into detail”
in his search of defendant’s property; once he discovered the contraband, he packed all of
the notes into the folder in which he found them, and called his colleague to pick up the
documents.
The prosecutor presented the documents to the trial court, and it conducted an in
camera review of the seized documents, isolated all documents that appeared to fall
within the attorney-client privilege, and sealed the remainder of the documents to protect
witnesses. On December 12, 1997, defense counsel requested that all of the seized
documents be turned over to him; the trial court denied the request, explaining that all
documents protected by the attorney-client privilege would be returned, but the remainder
of the documents would stay sealed “until 30 days prior to trial which the code would
mandate and that’s for the protection of the witnesses.”
During the pendency of defendant’s trial, the court found “there was a conspiracy
directed by this defendant to contact, intimidate and dissuade witnesses relevant to the
Mario Orrellana [sic] shooting.” “The court’s review of those documents [seized from
defendant’s cell] have convinced the court that [defendant] is not only a threat as he is in
jail, but he is a . . . continuing threat to the witnesses in this case; that he has conducted a
concerted effort to identify those witnesses, to pass the identity of those witnesses to
other individuals for the purpose of intimidation or, in fact, the court is convinced to do
them great harm and, in fact, potential threat of death to those witnesses. The court is
28
equally convinced based upon the evidence that has been received and is under seal by
the court that the defendant has been utilizing certain members of his family in that
pursuit.” At the time of defendant’s trial, charges had been filed against defendant and
others involved in the conspiracy to intimidate witnesses, but no convictions had
occurred.
On the eve of trial, five months following the trial court’s ruling that the documents
seized from defendant’s prison cell would remain sealed, defendant generally objected to
the prosecutor’s mention of the pending witness intimidation conspiracy case that had
been filed against defendant and others. The prosecutor agreed to refrain from
specifically mentioning that “a case has been filed,” but explained that he would discuss
the existence of a conspiracy, would introduce the kites into evidence, and would call
witnesses to testify regarding the documents seized from defendant.
Three days following this agreement, defendant interrupted his cross-examination of
Deputy Garcia to request a hearing regarding the documents, contending that they were
covered by the attorney-client privilege. The court entertained defendant’s motion,
reviewed the documents, and concluded that none were protected by the attorney-client
privilege. The court invited defendant to explain why any of the documents were
privileged. Defendant declined to do so, and declined to continue his cross-examination
of Deputy Garcia. Instead, defendant requested that his motion be “reserved” until
defendant testified, but he did not raise the objection again.
“[A] confidential communication between client and lawyer” is protected by the
attorney-client privilege and may not be disclosed without the consent of the client or the
client’s representative. (Evid. Code, § 952; see id., §§ 953, 954.) Defendant claims that
the documents, largely consisting of kites seized from his cell, were privileged because
he intended to show the documents to his lawyer, or to the investigator working on his
lawyer’s behalf. This argument lacks merit, as the intent to show a document to a lawyer
does not transform a document into one covered by the attorney-client privilege. (See
29
Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1498 [“The
[attorney-client] privilege only protects disclosure of communications, it does not protect
disclosure of the underlying facts by those who communicated with the attorney.”].) An
attorney-client privileged communication is defined as “information transmitted between
a client and his or her lawyer in the course of that relationship and in confidence by a
means which, so far as the client is aware, discloses the information to no third persons
other than those who are present to further the interest of the client . . . .” (Evid. Code,
§ 952.) Thus, a client’s intent to communicate with his or her lawyer does not render the
subject of that communication privileged; the rule requires that “information [be]
transmitted.” (Evid. Code, § 950; see Zurich American Ins. Co. v. Superior Court, supra,
155 Cal.App.4th at p. 1498.)
We review a trial court’s conclusion that a document is admissible and not subject
to the attorney-client privilege to determine whether it is supported by substantial
evidence. (People v. Gionis (1995) 9 Cal.4th 1196, 1208.) “On appeal, the scope of
judicial review is limited. ‘When the facts, or reasonable inferences from the facts, shown
in support of or in opposition to the claim of privilege are in conflict, the determination of
whether the evidence supports one conclusion or the other is for the trial court, and a
reviewing court may not disturb such finding if there is any substantial evidence to
support it [citations].’ (D.I. Chadbourne, Inc. v. Superior Court[ (1964)] 60 Cal.2d [723,]
729.)” (People v. Gionis, supra, 9 Cal.4th at p. 1208.)
The trial court twice concluded that the kites ultimately admitted into evidence
contained no privileged materials. The trial court invited defendant to seek writ review
of its initial ruling, which defendant declined to do. The trial court then considered and
rejected defendant’s contention that the documents were privileged, and invited
defendant to point to a specific document that was privileged. Again, defendant declined
the trial court’s invitation, and “reserved” his objection, although he never again renewed
it. By failing to press the court for a ruling, defendant forfeited this claim. (People v.
30
Richardson (2008) 43 Cal.4th 959, 1017, fn. 20; People v. Lewis (2008) 43 Cal.4th 415,
482.) In light of the trial court’s review of the documents and defendant’s inability to
articulate why any of the documents were privileged, we conclude that substantial
evidence supports the trial court’s conclusion that the documents are not protected by the
attorney-client privilege.
G. Admission of Testimony Regarding Defendant’s Gang Affiliation and
Intent to Kill
Defendant contends that the trial court violated his right to a fair trail by admitting
the expert testimony of Deputy Sheriff Scott Lusk. Defendant argues that Deputy Lusk’s
testimony regarding defendant’s affiliation with the Puente 13 gang was cumulative and
unduly prejudicial, that his testimony regarding the notes found in defendant’s cell was
irrelevant and prejudicial, and that his testimony regarding prior crimes committed by the
Puente 13 gang was irrelevant, prejudicial, and constituted improper propensity evidence.
With one exception, defendant failed to object upon the grounds specified on appeal, and
has therefore forfeited these claims.8 (People v. Partida (2005) 37 Cal.4th 428, 438.)
Even if defendant had properly objected to the introduction of Deputy Lusk’s testimony,
we conclude that the trial court did not abuse its discretion by admitting Deputy Lusk’s
testimony regarding defendant’s affiliation with the Puente 13 gang, the gang’s prior
crimes, and the notes found in defendant’s cell. (See People v. Hoyos (2007) 41 Cal.4th
872, 898 [trial court’s evidentiary rulings reviewed for abuse of discretion].)
Deputy Lusk, an 18-year veteran of the Los Angeles County Sheriff’s Department,
testified as a gang expert that he had approximately nine years of experience as a gang
detective with the Operation Safe Streets unit of the Los Angeles County Sheriff’s
8
Defendant objected on grounds of relevance to Deputy Lusk’s testimony regarding
a 1990 attempted murder involving the Puente 13 gang. As addressed below, although
this claim is not forfeited, we nonetheless reject defendant’s argument that the trial court
erred by admitting the testimony.
31
Department Industry Station. Deputy Lusk testified that he had experience with the
Puente 13 gang, with which defendant was affiliated, and he had had several dozen
conversations with defendant over the eight-year period preceding defendant’s trial.
Deputy Lusk testified that defendant, known as “Dinky,” was a member of the Perth
clique of the Puente 13 gang, and that his tattoos affiliated him both with the gang and
with the clique. Deputy Sheriff Lusk testified that the Puente 13 gang’s primary purpose
was to commit crimes, and described the types of crimes committed by the gang,
including an attempted murder in 1990 and a robbery in 1991. Neither crime involved
defendant. Deputy Lusk testified that the crimes were committed to enhance the
reputation of the Puente 13 gang, and to enhance the reputations of the gang members
convicted of committing the crimes. Defendant failed to object to Deputy Lusk’s
testimony regarding defendant’s affiliation with the Puente 13 gang, and objected only
once, based upon relevance, to Deputy Lusk’s testimony regarding the 1990 attempted
murder.
Deputy Lusk also interpreted the kites found in defendant’s jail cell. Deputy Lusk
explained that the notes concerned individuals planning to testify in defendant’s trial, and
that one note in particular meant that an individual should be prevented from testifying
using any means necessary, “from talking to — to the person all the way up to killing
him, if necessary.” Defendant twice objected during Deputy Lusk’s testimony regarding
the notes — arguing that the evidence was speculative and cumulative — but failed to
object based on relevance, prejudice, or that the testimony constituted improper
propensity evidence.
The trial court cautioned the jury that it was permitted to consider Deputy Lusk’s
testimony only in connection with the allegation that the murder of Orellano and
attempted murder of Medina were committed for the benefit of the Puente 13 gang with
the intent to promote or assist the gang pursuant to section 186.22. The trial court then
32
asked, the jury, “Does everyone understand that?” The jurors answered collectively in
the affirmative.
We conclude that the trial court did not abuse its discretion by admitting Deputy
Lusk’s testimony for its limited purpose. “ ‘A court abuses its discretion when it acts
unreasonably under the circumstances of the particular case.’ ” (People v. Panah (2005)
35 Cal.4th 395, 426.) Here, the trial court could have reasonably concluded that evidence
regarding defendant’s affiliation with the Puente 13 gang, the gang’s prior criminal
activities, and the notes found in defendant’s cell were relevant with respect to the gang
enhancement allegation, and were not unduly prejudicial or cumulative because the
evidence related only to the enhancement allegation and not the underlying charged
crimes.
Punishment for a crime may be enhanced when the crime is “committed for the
benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further or assist in any criminal conduct by gang members.”
(§ 186.22, subd. (b)(4); see People v. Hernandez (2004) 33 Cal.4th 1040, 1044.) To
establish a gang enhancement, a prosecutor must prove facts beyond the elements of the
underlying offense. (People v. Hernandez, supra, 33 Cal.4th at p. 1044.) “Accordingly,
when the prosecution charges the criminal street gang enhancement, it will often present
evidence that would be inadmissible in a trial limited to the charged offense.” (Ibid.) To
prove the gang enhancement, the prosecution may introduce expert testimony regarding
street gangs. (Id. at pp. 1047-1048.)
Here, the trial court admitted Deputy Lusk’s testimony about defendant’s affiliation
with the Puente 13 gang, and regarding the notes found in defendant’s cell. This
evidence related directly to the elements of the gang enhancement pursuant to section
186.22, subdivision (b)(4). The evidence demonstrated that defendant was a member of
the Perth clique of the Puente 13 gang, the primary purpose of which was to commit
crimes. Deputy Lusk testified to the violent nature of the Puente 13 gang by describing
33
the types of crimes committed by the gang. This evidence was admissible to prove facts
— such as the violent nature of the gang with which defendant was affiliated, and the
type of crimes committed by gang members — related to the gang enhancement, even if
the evidence was inadmissible to prove the underlying charged offense. (People v.
Hernandez, supra, 33 Cal.4th at p. 1044.) We conclude that the trial court did not err in
admitting Deputy Lusk’s testimony, particularly in light of the limiting instruction that
the testimony was being offered only with respect to the gang enhancement allegation,
and was not offered to prove the underlying charged offenses.
H. Defendant’s Alleged Inability to Fully Testify
Defendant argues that the trial court made a number of confusing rulings concerning
the extent to which defendant would be permitted to testify about his relationship with
Nakatani, ultimately impairing defendant’s ability to fully testify as to the events leading
to Nakatani’s death. Defendant’s characterization of the trial court’s rulings is
hyperbolic, and defendant concedes that he was not “literally” denied his right to fully
testify. Accordingly, we conclude that the trial court did not err by limiting defendant’s
testimony regarding the specific details of his past physical altercations with Nakatani.
Defendant asserts that the trial court’s rulings on the permissible scope of
defendant’s testimony regarding his relationship with Nakatani were misleading. We
disagree. When defendant indicated his intention to introduce Nakatani’s prior
conviction for misdemeanor battery, the court ordered defendant not to comment on that
conviction. When defense counsel attempted to elicit testimony describing an altercation
that occurred between defendant and Nakatani, the court ruled that defendant could not
testify as to “the details surrounding . . . [each] instance of violence between” defendant
and Nakatani. Defense counsel stated that he understood the court’s admonition,
conferred briefly with defendant, and continued his direct examination of defendant until
the end of the day.
34
The next morning, defense counsel resumed his direct examination of defendant,
and defendant began to give more detailed answers to counsel’s questions about the
events of October 1, 1996, the date of Nakatani’s death. Unprovoked, defendant stated
that he “didn’t go [sic] any further detail yesterday because I didn’t understand the
judge’s earlier ruling.” The court sustained the prosecutor’s objection to defendant’s
statement, and defense counsel completed defendant’s direct examination. The
prosecution cross-examined defendant regarding his inconsistent testimony, pointing out
that defendant provided a much greater level of detail on his second day of testifying
compared to his first day.
During defendant’s redirect examination, he explained that he had not provided
significant detail during his first day of testimony because he had been “unclear on what
[he] could testify to and what [he] couldn’t on the judge’s ruling.” The court clarified
that “[t]here [was] no such ruling,” and requested that counsel provide a stipulation to
that effect. After a brief sidebar discussion, the court clarified for the jury that its earlier
statement that “[t]here [was] no such ruling” “was overly broad, and the parties have
reached a stipulation which would be more precise on that issue.” The parties then
stipulated “that the defendant was not instructed that he could not talk about the conduct
between himself and Nakatani which occurred on October 1st of 1996.” Defendant
thereafter completed his testimony.
As defendant argues, the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution guarantee that an accused has the right to testify on his or her own
behalf. (Rock v. Arkansas (1987) 483 U.S. 44, 51-53.) As the high court has held,
however, “the right to present relevant testimony is not without limitation.” (Id. at p. 55.)
So long as the restrictions placed on a defendant’s right to testify are not “arbitrary or
disproportionate to the purposes they are designed to serve,” a court may apply a rule of
evidence to limit a defendant’s testimony if “the interests served by [the] rule justify the
limitation imposed on the defendant’s constitutional right to testify.” (Ibid.) Here, the
35
restriction placed on defendant’s testimony — that he could not testify about the specific
details of past altercations in which he and Nakatani were engaged, but could testify
about their contentious relationship, and could provide specific details of the altercation
that occurred on October 1, 1996 — did not impinge on defendant’s constitutionally
protected right to testify on his own behalf. Defendant was able to fully testify regarding
the altercation that occurred prior to Nakatani’s death, and was able to explain that he and
Nakatani had been involved in a tumultuous relationship. Indeed, defendant
acknowledges that his right to testify on his own behalf was not impaired, stating that
“the trial court’s rulings did not, in a literal sense, deny [defendant] his fundamental right
to take the stand and testify on his own behalf.” Accordingly, we conclude that
defendant’s right to testify on his own behalf was not violated, and the trial court did not
err by limiting the scope of defendant’s testimony.
I. Trial Court’s Alleged Disparagement of Defendant in Front of Jury
As described, ante, defendant testified on redirect examination that he had not
discussed the events of October 1, 1996 in detail during his first day of testimony because
he was “unclear on what [he] could testify to and what [he] couldn’t on the judge’s
ruling.” The court stated, “[t]here [was] no such ruling, sir” and requested that counsel
provide a stipulation to that effect. After a brief sidebar discussion, the court clarified for
the jury that its earlier statement “was overly broad, and the parties have reached a
stipulation which would be more precise on that issue.” The parties then stipulated “that
the defendant was not instructed that he could not talk about the conduct between himself
and Nakatani which occurred on October 1st of 1996.” Defendant contends that the
court’s statement, “[t]here [was] no such ruling, sir,” constituted an impermissible
comment on the evidence and disparaged defendant, violating defendant’s rights to a fair
trial and due process.
36
Article VI, section 10 of the California Constitution provides that “[t]he court may
make any comment on the evidence and the testimony and credibility of any witness as in
its opinion is necessary for the proper determination of the cause.” A judge’s ability to
comment upon evidence or a witness’s credibility “is not unlimited. [Citations.] He may
not withdraw material evidence from the jury’s consideration or distort the testimony,
and his comments should be temperately and fairly made, rather than being
argumentative or contentious to a degree amounting to partisan advocacy. . . . [T]he
judge should make clear that his views are not binding but advisory only.” (People v.
Friend (1958) 50 Cal.2d 570, 577-578 (Friend), overruled on other grounds by People v.
Cook (1983) 33 Cal.3d 400, 413, fn. 13, overruled on other grounds by People v.
Rodriguez (1986) 42 Cal.3d 730, 766.) Here, the court’s comment clarified its prior
ruling, or lack thereof, and did not relate to the evidence or to the defendant’s credibility.
Accordingly, the court’s comment could not have run afoul of the rule prohibiting overly
partisan judicial commentary because the court’s statement clarified its prior ruling, and
did not address the declarant’s credibility.
Even if the court’s comment may be construed as a comment upon defendant’s
credibility, we cannot agree with defendant that the judge’s isolated comment was
“contentious to a degree amounting to partisan advocacy.” (Friend, supra, 50 Cal.2d
at p. 577.) The judge stated that he made no ruling limiting defendant’s testimony.
Moments later, the judge clarified his statement for the jury, acknowledging that it was
overbroad. The parties then stipulated as to the scope of the court’s ruling regarding
defendant’s testimony. Although the judge’s comment may have been borne of some
frustration with defendant’s repeated attempts to blame the court for his inconsistent
testimony, that factor alone does not militate in favor of concluding that the court’s
comment deprived defendant of his rights to due process and a fair trial. (See People v.
Rodriguez, supra, 42 Cal.3d at p. 770.) “Of course, appellate courts . . . must evaluate the
propriety of judicial comment on a case-by-case basis, noting whether the peculiar
37
content and circumstances of the court’s remarks deprived the accused of his right to trial
by jury.” (Ibid.) Here, the jury was able to consider defendant’s testimony in light of a
clear ruling by the court, as reflected by the parties’ stipulation. Accordingly, the court’s
comment addressing its earlier ruling, particularly when considered with its almost
immediate admonition and clarification to the jury, did not deprive defendant of his right
to due process or to a jury trial.
J. Failure to Instruct Regarding Third Party Culpability
Defendant testified that after he left Nakatani’s house with his son, the two unnamed
individuals that went with him to Nakatani’s home remained in her home for a minute or
two. Once the two individuals returned to the car where defendant was waiting,
defendant asked them what happened and they responded, “She got crazy with us.” After
defendant asked what that meant, the two individuals told him that they did not want to
talk about it in front of defendant’s son. After dropping off defendant’s son, defendant
again asked the two individuals what happened. Defendant testified that the two
individuals replied that “she got crazy with them and they f…ed her up.” Defendant
asked what they meant, and they replied, “Don’t worry about it.” Defendant testified that
he “wanted to know [what happened] but they didn’t want to say.” Defendant did not
request that the jury be instructed regarding third party culpability, and now claims that
the court erred by failing to instruct the jury sua sponte regarding third party culpability.
We have previously considered and rejected similar claims, and do so here.
“The applicable principles are clear. A criminal defendant may introduce evidence
of third party culpability if such evidence raises a reasonable doubt as to his guilt, but the
evidence must consist of direct or circumstantial evidence that links the third person to
the crime. It is not enough that another person has the motive or opportunity to commit it.
(People v. Robinson (2005) 37 Cal.4th 592, 625.) A trial court has a duty to instruct the
jury ‘sua sponte on general principles which are closely and openly connected with the
38
facts before the court.’ (People v. Holt, supra, 15 Cal.4th at p. 688.) Finally, a trial court
has a sua sponte duty to give instructions on the defendant’s theory of the case, including
instructions ‘as to defenses “ ‘that the defendant is relying on . . . , or if there is
substantial evidence supportive of such a defense and the defense is not inconsistent with
the defendant’s theory of the case.’ ” ’ (People v. San Nicolas (2004) 34 Cal.4th 614,
669.)” (People v. Abilez, supra, 41 Cal.4th at p. 517.) Defendant contends that the court
erred by failing to give a pinpoint instruction along with the burden of proof instruction,
arguing that CALJIC No. 2.90 does not adequately inform the jury regarding the burden
of proof for a defendant’s affirmative defenses.
As an initial matter, defendant bore the burden of requesting a pinpoint instruction,
and failed to do so. (See People v. San Nicolas, supra, 34 Cal.4th at p. 669.) A
defendant is entitled to a pinpoint instruction, upon request, only when appropriate.
(People v. Saille (1991) 54 Cal.3d 1103, 1119.) “Such instructions relate particular facts
to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case, such as mistaken
identification or alibi. [Citation.] They are required to be given upon request when there
is evidence supportive of the theory, but they are not required to be given sua sponte.”
(Ibid., citing People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885; see also People v. San
Nicolas, supra, 34 Cal.4th at p. 669.) We conclude that the court did not err by failing to
instruct the jury, sua sponte, regarding third party culpability.
Here, the jury was instructed, pursuant to CALJIC No. 2.90, that a criminal
defendant is presumed innocent, that he is entitled to a verdict of not guilty if the jury has
reasonable doubt regarding his guilt, and the prosecution bears the burden of proving a
defendant guilty beyond a reasonable doubt.9 Because the jury was properly instructed
9
In its entirety, CALJIC No. 2.90 provides: “Presumption of Innocence —
Reasonable Doubt — Burden of Proof
“A defendant in a criminal action is presumed to be innocent until the contrary is
proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown,
(footnote continued on next page)
39
as to these issues, and because the jury could have acquitted defendant had it believed
that a third party was responsible for Nakatani’s death, no third party culpability
instruction was necessary. (People v. Saille, supra, 54 Cal.3d at p. 1119.)
Assuming for the purposes of argument that the trial court erred, any such error was
harmless. The jury was instructed on reasonable doubt and burden of proof, and could
have acquitted defendant had it believed defendant’s testimony that his two unnamed
cohorts were responsible for Nakatani’s death. Had the court instructed the jury sua
sponte regarding third party culpability, there is no reasonable probability that the result
would have been different in light of the other instructions provided to the jury.
(People v. Abilez, supra, 41 Cal.4th at pp. 517-518.) Thus, any error was harmless.
K. Failure to Instruct That Manslaughter Is a Lesser Included Offense of
Murder
Defendant claims that the trial court erred by denying his request to instruct the jury
on the lesser included offense of voluntary manslaughter. Voluntary manslaughter is
defined as “the unlawful killing of a human being without malice[.] . . . upon a sudden
quarrel or heat of passion.” (§ 192, subd. (a).) Because there was not substantial
evidence that defendant committed voluntary manslaughter, we conclude that the trial
court did not err by refusing to give a voluntary manslaughter instruction.
During argument regarding the exclusion of Nakatani’s battery conviction, the court
commented that defendant’s testimony about the events preceding Nakatani’s death did
(footnote continued from previous page)
[he] [she] is entitled to a verdict of not guilty. This presumption places upon the People
the burden of proving [him] [her] guilty beyond a reasonable doubt.
“Reasonable doubt is defined as follows: It is not a mere possible doubt; because
everything relating to human affairs is open to some possible or imaginary doubt. It is
that state of the case which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.” (Brackets in original.)
40
not warrant an instruction on the lesser included offense of voluntary manslaughter under
People v. Barton (1995) 12 Cal.4th 186, 196, footnote 5 (Barton). Footnote 5 of Barton
provides: “A trial court need not, however, instruct on lesser included offenses when the
evidence shows that the defendant is either guilty of the crime charged or not guilty of
any crime (for example, when the only issue at trial is the defendant’s identity as the
perpetrator). Because in such a case ‘there is no evidence that the offense was less than
that charged’ ([People v.] Sedeno [(1974)] 10 Cal.3d [703,] 715), the jury need not be
instructed on any lesser included offense.” (Barton, supra, 12 Cal.4th at p. 196, fn. 5.)
Defense counsel disagreed with the court, but did not pursue the matter. After the
defense rested, defense counsel requested a manslaughter instruction, and the trial court
denied the request, explaining that, consistent with footnote 5 of Barton, because
defendant’s defense was that “he didn’t do it,” the court was precluded from instructing
on the lesser included offense of voluntary manslaughter.
Defendant properly asserts that it is the “court’s duty to instruct the jury not only on
the crime with which the defendant is charged, but also on any lesser offense that is both
included in the offense charged and shown by the evidence to have been committed.”
(Barton, supra, 12 Cal.4th at p. 190.) In Barton, the defendant and the victim were
engaged in a heated argument, defendant drew a gun believing that the victim was
holding a knife, screamed at the victim, and ultimately shot the victim. (Barton, supra,
12 Cal.4th 186, 191-192.) It was uncontroverted that the defendant killed the victim; the
issue was whether the trial court erred by instructing the jury on manslaughter over the
defendant’s objections where the defendant maintained the shooting was accidental. (Id.
at p. 190.) We concluded that the trial court did not err, but explained in a footnote that a
trial court need not instruct the jury on a lesser included offense where no evidence
supports a finding that the offense was anything less than the crime charged. (Id.
at p. 196, fn. 5; see People v. Breverman (1988) 19 Cal.4th 142, 149; People v. Anderson
(1983) 144 Cal.App.3d 55, 61.)
41
In the present case, unlike in Barton, defendant’s identity as the killer was
contested, because he denied killing the victim, specifically maintaining that his unnamed
companions committed the murder. Further, a voluntary manslaughter instruction is not
warranted where the act that allegedly provoked the killing was no more than taunting
words, a technical battery, or slight touching. (See People v. Manriquez (2005) 37
Cal.4th 547, 586.) “The provocation must be such that an average, sober person would
be so inflamed that he or she would lose reason and judgment. Adequate provocation and
heat of passion must be affirmatively demonstrated. [Citations.]” (People v. Lee (1999)
20 Cal.4th 47, 60.) Here, no evidence was introduced that defendant was so inflamed
that he killed the victim in a heat of passion. Defendant testified that he and Nakatani
engaged in a verbal argument prior to his taking his son and leaving Nakatani’s house.
Defendant testified that he told Nakatani, “[g]et off me, you f…ing bitch,” and that she
“cuss[ed] back at” him. We have held that calling the defendant “a ‘mother f…er’ and . .
. repeatedly asserting that if defendant had a weapon, he should take it out and use it . . .
plainly were insufficient to cause an average person to become so inflamed as to lose
reason and judgment.” (People v. Manriquez, supra, 37 Cal.4th at p. 586.) Similarly, the
verbal exchange described by defendant in the present case did not constitute sufficient
provocation for voluntary manslaughter.
Defendant also testified that Nakatani scratched his chest, he kicked her, she kicked
him in the leg, grabbed his shirt, and he pulled away. Simple assault, such as the tussle
defendant described, also does not rise to the level of provocation necessary to support a
voluntary manslaughter instruction. (See People v. Elmore (1914) 167 Cal. 205, 211.)
Indeed, rather than causing defendant to become enraged, defendant testified that he
simply walked away. Accordingly, we conclude that the trial court did not err by
refusing to give a voluntary manslaughter instruction because that instruction was not
supported by the evidence.
42
L. Exclusion of Nakatani’s Prior Battery Conviction
Defendant contends that the trial court erroneously excluded evidence regarding
Nakatani’s prior battery conviction. The trial court concluded that, because defendant’s
only defense was an alibi, any evidence of Nakatani’s misdemeanor battery conviction
was irrelevant. We review a trial court’s exclusion of evidence for abuse of discretion,
and we conclude that the trial court did not abuse its discretion here by excluding
evidence of the victim’s misdemeanor battery conviction, an event entirely unrelated to
defendant. (People v. Avila (2006) 38 Cal.4th 491, 578.)
Defendant argues that evidence of Nakatani’s conviction of misdemeanor battery
was relevant and admissible to demonstrate her propensity for violence. Evidence Code
section 1101, subdivision (a) provides that “evidence of a person’s character or a trait of
his or her character . . . is inadmissible when offered to prove his or her conduct on a
specified occasion.” Evidence Code section 1103, subdivision (a)(1) provides an
exception to Evidence Code section 1101, subdivision (a) when a defendant offers
evidence regarding the character or trait of a victim “to prove conduct of the victim in
conformity with the character or trait of character.” Of course, the trial court may
exclude otherwise admissible evidence pursuant to Evidence Code section 352 if
admitting the evidence would have confused the issues at trial, unduly consumed time, or
would have been more prejudicial than probative. (See People v. Hoyos, supra,
41 Cal.4th at p. 912; People v. Wright (1985) 39 Cal.3d 576, 587-588.) The trial court
must always perform its gate keeping function pursuant to Evidence Code section 350 to
exclude evidence that is irrelevant.
As defendant argues, “[w]here . . . a discretionary power is inherently or by express
statute vested in the trial judge, his or her exercise of that wide discretion must not be
disturbed on appeal except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of
justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) Where no evidence is presented
43
that the victim posed a threat to the defendant, exclusion of evidence regarding the
victim’s propensity for violence is proper. (People v. Hoyos, supra, 41 Cal.4th at p. 913.)
Defendant suggests that the victim’s propensity for violence was relevant to show that he
was engaged in mutual combat with the victim and committed voluntary manslaughter
rather than murder because he killed her in the heat of passion. As explained, ante, the
quarrel with the victim described by the defendant did not rise to the level of provocation
necessary to support a voluntary manslaughter instruction. (See People v. Manriquez,
supra, 37 Cal.4th at p. 586.) Thus, the trial court did not err by excluding as irrelevant
evidence of Nakatani’s misdemeanor battery conviction.
Assuming for purposes of this discussion that the trial court erred in excluding
evidence of Nakatani’s battery conviction, any such error was harmless because it would
not have resulted in a more favorable verdict. (People v. Watson (1956) 46 Cal.2d 818,
837; People v. Bunyard (1988) 45 Cal.3d 1189, 1213.) Defendant was permitted to
testify regarding his past fights with the victim and about the tumultuous nature of their
relationship. Defendant was also allowed to describe the details of the altercation that
occurred between defendant and the victim on the day she was killed. There is no
reasonable probability that defendant would have obtained a more favorable outcome had
he been permitted to introduce evidence of Nakatani’s prior misdemeanor battery
conviction. (People v. Bunyard, supra, 45 Cal.3d at p. 1213.)
M. Cumulative Guilt Phase Error
Defendant contends that if we do not conclude that any individual guilt phase error
mandates reversal, the cumulative effect of the guilt phase errors requires reversal. We
disagree. To the extent that there are a few instances in which we found or assumed the
existence of error, we concluded that no prejudice resulted from any such error.
Accordingly, the cumulative nature of the guilt phase errors, if any, does not lead us to
conclude that defendant was denied a fair trial.
44
PENALTY PHASE
A. Failure to Instruct Regarding Unanimity on Aggravating Factors
Defendant argues that his Sixth, Eighth, and Fourteenth Amendment rights were
violated by the trial court’s erroneous refusal to instruct the jury that it must unanimously
find true any particular aggravating factor. Defendant acknowledges that we have
repeatedly considered and rejected similar claims, but urges us to reexamine our prior
holdings in light of the high court’s nearly 30-year-old decision in Brown v. Louisiana
(1980) 447 U.S. 323, cited for the proposition that a six-person jury must be unanimous
to ensure its reliability.10 Defendant also argues that the high court’s decisions in
Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584
compel us to conclude that juror unanimity as to each aggravating factor is
constitutionally mandated.
We see no reason to disturb our consistent conclusion that juror unanimity regarding
aggravating factors is not required prior to imposing the death penalty. (People v. Wilson
(2008) 43 Cal.4th 1, 31.) We have also repeatedly considered and rejected defendant’s
argument that the high court’s decisions in Apprendi and Ring compel a different
conclusion. (People v. Mendoza (2007) 42 Cal.4th 686, 707.)
B. Death Penalty Overbreadth
Defendant argues that the California death penalty statutory scheme violates the
Eighth and Fourteenth Amendments to the United States Constitution because it permits
arbitrary application of the death penalty and fails to narrow the class of persons eligible
10 Defendant’s
reference
to
Brown v. Louisiana is misplaced. Defendant cites Brown
v. Louisiana for the proposition that, at a minimum, the Sixth Amendment requires that a
six-person jury unanimously decide the guilt or innocence of an individual accused of a
nonpetty criminal offense in order to assure the jury’s reliability. In fact, the high court
so held in Burch v. Louisiana (1979) 441 U.S. 130, 139. In Brown v. Louisiana, the high
court concluded that the rule articulated in Burch must be retroactively applied.
(Brown v. Louisiana, supra, 447 U.S. at p. 336.)
45
for the death penalty. Defendant acknowledges that we have repeatedly rejected such
claims, and provides no persuasive reason for us to do otherwise here. (See People v.
Demetrulias (2006) 39 Cal.4th 1, 43.)
C. Section 190.2
Defendant argues that his sentence is invalid because section 190.2, setting forth the
special circumstances permitting imposition of the death penalty, is overbroad in
violation of the Eighth and Fourteenth Amendments. We have repeatedly rejected this
claim, and defendant presents no argument warranting a different conclusion here.
(People v. Stevens (2007) 41 Cal.4th 182, 211 (Stevens).)
D. Section 190.3, Factor (a)
Defendant argues that section 190.3, factor (a), “as applied,” violates the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Although
defendant frames his argument as an “as applied” challenge, defendant’s argument
appears to be a facial challenge, focusing on the variety of circumstances courts have
considered aggravating. The high court rejected a facial challenge to section 190.3,
factor (a) in Tuilaepa v. California (1994) 512 U.S. 967, 975-976, and we have
repeatedly held that the section 190.3, factor (a) “does not violate the Fifth, Sixth, Eighth,
or Fourteenth Amendments” to the United States Constitution by allowing arbitrary
imposition of the death penalty. (Stevens, supra, 41 Cal.4th at p. 212.)
E. Miscellaneous Constitutional Challenges to the Death Penalty Statute
Defendant raises a number of challenges to California’s death penalty statutory
scheme, arguing that it lacks sufficient safeguards to avoid arbitrary and capricious
imposition of the death penalty and therefore violates the Eighth and Fourteenth
Amendments to the United States Constitution. We have repeatedly considered and
rejected these claims, and we see no reason to disturb our prior holdings here.
46
“[T]here is no constitutional requirement that the trial court instruct the jury that it
must find beyond a reasonable doubt that aggravating circumstances exist, that the
aggravating circumstances outweigh the mitigating circumstances, or that death is the
appropriate penalty.” (People v. Lewis, supra, 43 Cal.4th at p. 533.) Moreover, the trial
court should not instruct the jury as to the burden of proof at the penalty phase (ibid.),
and failure to do so does not violate defendant’s constitutional rights under the Sixth,
Eighth, and Fourteenth Amendments. (People v. Lewis, supra, 43 Cal.4th at pp. 533-
534.) The high court’s decisions in Apprendi and Ring do not compel us to conclude that
the death penalty sentencing scheme violates due process because capital juries need not
find aggravating factors beyond a reasonable doubt. (See People v. Mendoza, supra,
42 Cal.4th at p. 707.)
We have repeatedly held that “the death penalty scheme is not unconstitutional
because it fails to allocate the burden of proof — or establish the standard of proof — for
finding the existence of an aggravating factor.” (People v. Wilson, supra, 43 Cal.4th at
p. 31.) Accordingly, the trial court did not err by instructing the jury to consider the
aggravating and mitigating circumstances without addressing the burden of proof. We
have also repeatedly held that the death penalty statutory scheme is not unconstitutional
for failing to require that aggravating factors outweigh mitigating factors, or for failing to
establish a standard of proof for concluding that death is the appropriate sentence. (Ibid.)
We again conclude that the jury need not base a death sentence upon written findings
regarding aggravating factors. (Id. at p. 32.) Finally, defendant contends that the death
penalty statutory scheme denies defendant equal protection of the laws, and urges us to
reconsider our decision in People v. Allen (1986) 42 Cal.3d 1222, 1286-1288, holding
otherwise. We have consistently held that the death penalty scheme does not violate a
defendant’s right to equal protection of the laws, and see no reason to conclude otherwise
here. (People v. Zamudio (2008) 43 Cal.4th 327, 373.)
47
F. CALJIC No. 8.85
Defendant raises several challenges to CALJIC No. 8.85, all of which we have
previously considered and rejected. Defendant reiterates his argument that section 190.3,
factor (a) is unconstitutionally overbroad. As discussed, ante, the high court rejected this
claim in Tuilaepa v. California, supra, 512 U.S. at pages 975-976, and we have
repeatedly held that the section 190.3, factor (a) “does not violate the Fifth, Sixth, Eighth,
and Fourteenth Amendments” to the United States Constitution by allowing arbitrary
imposition of the death penalty. (Stevens, supra, 41 Cal.4th at p. 212.) Defendant urges
us to reconsider our holding that the trial court is not required to instruct the jury sua
sponte that it may not “double count” circumstances of the crime as special
circumstances; we see no reason to do so. (See People v. Tafoya (2007) 42 Cal.4th 147,
188.)
Defendant argues that CALJIC No. 8.85 was defective because the jury was not
instructed that section 190.2, factors (d) and (h) could only be considered in mitigation.
We have held that trial courts are under no obligation to so instruct, and that failing to
instruct that section 190.2, factors (d) and (h) may only be considered in mitigation is not
error. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) Finally, defendant claims that
the trial court erred by failing to clarify which of the enumerated factors in CALJIC No.
8.85 are aggravating and which are mitigating. As we have previously held, trial courts
need not instruct the jury as to which factors are aggravating and which are mitigating,
and failure to do so does not constitute error. (People v. Brasure (2008) 42 Cal.4th 1037,
1069.)
G. CALJIC No. 8.88
Defendant argues that the trial court violated his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution, and his
48
corresponding state constitutional rights by instructing the jury pursuant to CALJIC
No. 8.88.11 Defendant raises several specific challenges to CALJIC No. 8.88, all of
which we have previously considered and rejected. First, defendant contends that
CALJIC No. 8.88’s use of the phrase “so substantial” impermissibly reduces the burden
of proof necessary to impose the death penalty. We have repeatedly rejected this
contention. (People v. Wilson, supra, 43 Cal.4th at pp. 31-32.) Defendant next argues
that CALJIC No. 8.88 improperly explains the weighing process a jury is required to
perform, its use of the word “totality” conveys that a jury may not decide against the
11
CALJIC No. 8.88, as given to the jury, states, in pertinent part, “Penalty Trial —
Concluding Instruction
“It is now your duty to determine which of the two penalties, death or confinement
in the state prison for life without possibility of parole, shall be imposed on defendant.
“After having heard all of the evidence, and after having heard and considered the
arguments of counsel, you shall consider, take into account and be guided by the
applicable factors of aggravating and mitigating circumstances upon which you have
been instructed.
“An aggravating factor is any fact, condition or event attending the commission of
a crime which increases its guilt or enormity, or adds to its injurious consequences which
is above and beyond the elements of the crime itself. A mitigating circumstance is any
fact, condition or event which does not constitute a justification or excuse for the crime in
question, but may be considered as an extenuating circumstance in determining the
appropriateness of the death penalty.
“The weighing of aggravating and mitigating circumstances does not mean a mere
mechanical counting of factors on each side of an imaginary scale, or the arbitrary
assignment of weights to any of them. You are free to assign whatever moral or
sympathetic value you deem appropriate to each and all of the various factors you are
permitted to consider. In weighing the various circumstances you determine under the
relevant evidence which penalty is justified and appropriate by considering the totality of
the aggravating circumstances with the totality of the mitigating circumstances. To return
a judgment of death, each of you must be persuaded that the aggravating circumstances
are so substantial in comparison with the mitigating circumstances that it warrants death
instead of life without parole.
“You shall now retire to deliberate on the penalty. The foreperson previously
selected may preside over your deliberations or you may choose a new foreperson. In
order to make a determination as to the penalty, all twelve jurors must agree.”
49
death penalty unless it finds that the mitigating factors outweigh the aggravating factors,
and it is defectively “death-oriented” because it fails to define or describe the penalty of
life without the possibility of parole. We have repeatedly rejected these arguments and
find no reason to hold otherwise here. (People v. Dickey (2005) 35 Cal.4th 884, 951.)
H. Presumption of Life
Defendant argues that the trial court erred by failing to instruct the jury regarding
the “presumption of life.” Defendant acknowledges that we considered and rejected a
similar claim in People v. Arias (1996) 13 Cal.4th 92, and defendant presents us with no
persuasive reason to revisit our holding here. (See People v. Wilson, supra, 43 Cal.4th
at p. 31.)
I. Intercase Proportionality Review
Defendant argues that lack of intercase proportionality review for death penalty
cases violates the California and federal Constitutions; we have repeatedly held
otherwise. (People v. Mendoza, supra, 42 Cal.4th at p. 706.)
J. Prosecutorial Discretion
Defendant acknowledges that we have repeatedly rejected the claim that
prosecutorial discretion to seek the death penalty violates the Fifth, Eighth, and
Fourteenth Amendments. (People v. Crittendon (1994) 9 Cal.4th 83, 152.) We see no
reason to revisit that conclusion here. (See People v. Rundle (2008) 43 Cal.4th 76, 199.)
K. Method of Execution
Defendant contends that the method of execution in California violates the
Fourteenth Amendment’s guarantee of due process and the Eighth Amendment’s
prohibition of cruel and unusual punishment. Specifically, defendant claims that the
Department of Corrections and Rehabilitation’s failure to adopt procedures consistent
with section 3604 and the Administrative Procedures Act violates defendant’s right to
procedural due process under the Fourteenth Amendment, and that lethal injection
50
procedures violate the Eighth Amendment’s prohibition of cruel and unusual punishment.
We have repeatedly held that such “claims are not cognizable on appeal because they do
not affect the validity of the judgment itself and do not provide a basis for reversal of the
judgment on appeal.” (People v. Tafoya, supra, 42 Cal.4th at p. 199; see also People v.
Ramirez (2006) 39 Cal.4th 398, 479.)
L. International Law
Defendant contends that California’s use of capital punishment “as regular
punishment for substantial numbers of crimes” instead of extraordinary punishment for
extraordinary crimes is contrary to international norms of human decency. We have
repeatedly rejected this claim, concluding that “ ‘California does not employ capital
punishment in such a manner. The death penalty is available only for the crime of first
degree murder, and only when a special circumstance is found true; furthermore,
administration of the penalty is governed by constitutional and statutory provisions
different from those applying to “regular punishment” for felonies. [Citations.]’ ”
(People v. Brasure, supra, 42 Cal. 4th 1037, 1072, quoting People v. Demetrulias, supra,
39 Cal.4th at pp. 43-44; see also People v. Leonard (2007) 40 Cal.4th 1370, 1430.)
Defendant also alleges that he was denied his right to a fair trial under various
international treaties. Because we conclude that defendant’s trial was conducted in
accordance with state and federal constitutional law, we need not consider whether a
violation of state or federal constitutional law would also constitute a violation of
international law. (People v. Hillhouse, supra, 27 Cal.4th at p. 511.)
M. Cumulative Error
As with defendant’s guilt phase cumulative error claim, defendant contends that if
we do not conclude that any individual penalty phase error mandates reversal, the
cumulative effect of the penalty phase errors requires reversal. We disagree. We found
no penalty phase error, but assuming there was any error, no prejudice resulted.
51
Accordingly, the cumulative nature of the penalty phase errors, if any, do not convince us
that defendant was denied a fair trial.
III. CONCLUSION
The judgment is affirmed.
MORENO, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
52
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gutierrez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S073253
Date Filed: February19, 2009
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: David Sherman Milton
__________________________________________________________________________________
Attorneys for Appellant:
H. Mitchell Caldwell, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General,
Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Robert C. Schneider, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
H. Mitchell Caldwell
24255 Pacific Coast Highway, SOL
Malibu, CA 90263
(310) 506-4669
Robert C. Schneider
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2059
2
Document Outline
Automatic appeal from a judgment of death.
Date: | Citation: | Docket Number: | Category: | Status: |
Thu, 02/19/2009 | 45 Cal. 4th 789, 200 P.3d 847, 89 Cal. Rptr. 3d 225 | S073253 | Automatic Appeal | closed; remittitur issued |
1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Robert C. Schneider, Deputy Attorney General 300 South Spring Street, 5th Floor Los Angeles, CA |
2 | Gutierrez, Alfred Anthony (Appellant) San Quentin State Prison Represented by Harry Mitchell Caldwell Attorney at Law 24255 Pacific Coast Highway - SOL Malibu, CA |
Disposition | |
Feb 19 2009 | Opinion: Affirmed |
Dockets | |
Aug 10 1998 | Judgment of death |
Sep 10 1998 | Filed certified copy of Judgment of Death Rendered 8-10-98. |
Sep 10 1998 | Penal Code sections 190.6 et seq. apply to this case |
Apr 20 1999 | Record certified for completeness |
Jul 15 2002 | Filed: applt's application for appointment of counsel. |
Jul 16 2002 | Counsel appointment order filed Upon request of appellant for appointment of counsel, H. Mitchell Caldwell is hereby appointed to represent appellant Alfred Anthony Gutierrez for the direct appeal in the above automatic appeal now pending in this court. |
Jul 24 2002 | Date trial court delivered record to appellant's counsel 4,165 pp. record |
Jul 29 2002 | Appellant's opening brief letter sent, due: February 24, 2003 (pursuant to Calif. Rules of Court, rule 39.57(b)). |
Sep 9 2002 | Counsel's status report received (confidential) from atty Caldwell. |
Sep 19 2002 | Counsel's status report received (confidential) from atty Caldwell. |
Dec 18 2002 | Compensation awarded counsel Atty Caldwell |
Jan 13 2003 | Counsel's status report received (confidential) from atty Caldwell. |
Feb 11 2003 | Counsel's status report received (confidential) (supplemental) from atty Caldwell. |
Mar 7 2003 | Counsel's status report received (confidential) from atty Caldwell. |
Mar 7 2003 | Request for extension of time filed to file appellant's opening brief and request for relief from default. (1st request) |
Mar 12 2003 | Order filed Appellant's request for relief from default is granted. Extension is granted to 4/25/2003 to file appellant's opening brief. After that date, only four further extensions totaling 240 additional days are contemplated. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 12/31/2003. |
Apr 1 2003 | Received copy of appellant's record correction motion "Request to Correct the Record, Augment the Record, Examine Sealed Transcripts, and Settle the Record on Appeal." (11 pp.) |
Apr 17 2003 | Compensation awarded counsel Atty Caldwell |
Apr 21 2003 | Counsel's status report received (confidential) from atty Caldwell. |
Apr 21 2003 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
Apr 22 2003 | Extension of time granted to 6/24/2003 to file appellant's opening brief. After that date, only three further extensions totaling 180 additional days will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 12/31/2003. |
Jun 23 2003 | Counsel's status report received (confidential) from atty Caldwell. |
Jun 23 2003 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
Jun 25 2003 | Extension of time granted to 8/25/2003 to file appellant's opening brief. After that date, only two further extensions totaling 120 additional days will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 12/31/2003. |
Aug 21 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
Aug 21 2003 | Counsel's status report received (confidential) from atty Caldwell. |
Aug 25 2003 | Extension of time granted to 10/24/2003 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel H. Mitchell aldwell's representation that he anticipates filing that brief by 12/31/2003. |
Sep 15 2003 | Record certified for accuracy |
Oct 24 2003 | Request for extension of time filed to file appellant's opening brief. (5th request) |
Oct 24 2003 | Counsel's status report received (confidential) from atty Caldwell. |
Oct 30 2003 | Extension of time granted to 12/23/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 3/31/2004. |
Dec 19 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
Dec 22 2003 | Counsel's status report received (confidential) from atty Caldwell. |
Dec 31 2003 | Extension of time granted to 2/23/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 3/31/2004. |
Jan 21 2004 | Record on appeal filed Clerk's transcript 11 volumes (1472 pp.) and reporter's transcript 27 volumes (2939 pp.), including material under seal; ASCII disks. Clerk's transcript includes 439 pp. of juror questionnaires. |
Jan 21 2004 | Letter sent to: counsel advising record on appeal, certified for accuracy, was filed this date. |
Jan 26 2004 | Compensation awarded counsel Atty Caldwell |
Feb 23 2004 | Counsel's status report received (confidential) from atty Caldwell. |
Feb 23 2004 | Request for extension of time filed to file appellant's opening brief. (7th request) |
Mar 1 2004 | Extension of time granted to 4/19/2004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 4/18/2004. |
Apr 16 2004 | Counsel's status report received (confidential) from atty Caldwell. |
Apr 16 2004 | Request for extension of time filed to file appellant's opening brief. (8th request) |
Apr 23 2004 | Extension of time granted to 6/18/2004 to file appellant's opening brief. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 6/18/2004. After that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
Jun 17 2004 | Request for extension of time filed to file appellant's opening brief. (9th request) |
Jun 17 2004 | Counsel's status report received (confidential) from atty Caldwell. |
Jun 30 2004 | Filed: Supplemental declaration in support of application for extension of time to file appellant's opening brief. |
Jul 7 2004 | Extension of time granted to 8-18-2004 to file AOB. After that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. Extension granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing the brief by 8-18-2004. |
Aug 23 2004 | Request for extension of time filed to file appellant's opening brief. (10th request) |
Aug 23 2004 | Counsel's status report received (confidential) from atty Caldwell. |
Aug 26 2004 | Extension of time granted to 9/17/2004 to file appellant's opening brief. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 9/17/2004. After that date, no further extension will be granted. |
Sep 21 2004 | Counsel's status report received (confidential) from atty Caldwell. |
Sep 21 2004 | Request for extension of time filed to file appellant's opening brief. (11th request) |
Sep 23 2004 | Extension of time granted to 9-28-2004 to file AOB. Extension granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing the brief by 9-28-2004. After that date, no further extension of time will be granted. |
Sep 28 2004 | Received: appellant's opening brief (note: lacks certificate of word count; counsel to mail in) |
Sep 28 2004 | Appellant's opening brief filed (87,039 words; 275 pp.) |
Oct 4 2004 | Filed: Appellant's certificate of word count. |
Oct 5 2004 | Respondent's brief letter sent; due: January 26, 2005. |
Oct 20 2004 | Compensation awarded counsel Atty Caldwell |
Jan 6 2005 | Motion for access to sealed record filed Respondent's application for copies of sealed transcripts. |
Jan 13 2005 | Request for extension of time filed to file respondent's brief. (1st request) |
Jan 18 2005 | Extension of time granted to 3-28-2005 to file respondent's brief. |
Feb 2 2005 | Motion for access to sealed record granted Respondent's "Application for Copies of Sealed Transcript," filed on January 6, 2005, is granted. (Cal. Rules of Court, rule 31.2(a)(4).) The clerk is directed to provide respondent with a copy of the reporter's sealed transcript on appeal of a Marsden hearing before the Honorable Robert A. Dukes, Judge Presiding, on January 15, 1998, in case number KA 034049 of the Los Angeles County Superior Court, volume 1D, pages 89-96. The transcript is to remain sealed. |
Mar 22 2005 | Request for extension of time filed to file respondent's brief. (2nd request) |
Mar 25 2005 | Extension of time granted to 5/27/2005 to file respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by 6/28/2005. |
May 18 2005 | Request for extension of time filed to file respondent's brief. (3rd request) |
May 25 2005 | Extension of time granted to 7/26/2005 to file respondent's brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by 9/9/2005. |
Jul 22 2005 | Request for extension of time filed to file respondent's brief. (4th request) |
Jul 27 2005 | Extension of time granted to 9/26/2005 to file respondent's brief. After that date, only one further extension totaling about ten additional days is contemplated. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by 10/5/2005. |
Sep 20 2005 | Request for extension of time filed to file respondent's brief. (5th request) |
Sep 23 2005 | Extension of time granted to 11/28/2005 to file respondent's brief. After that date, only one further extension totaling about 10 additional days will be granted. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by 12/5/2005. |
Nov 15 2005 | Request for extension of time filed to file respondent's brief. (6th request) |
Nov 28 2005 | Extension of time granted to 1/12/06 to file the respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by January 12, 2006. |
Jan 10 2006 | Respondent's brief filed (27886 words; 92 pp.) |
Mar 10 2006 | Request for extension of time filed to file appellant's reply brief. (1st request) |
Mar 14 2006 | Extension of time granted to May 9, 2006 to file appellant's reply brief. |
May 2 2006 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
May 5 2006 | Extension of time granted to July 10, 2006 to file the appellant's reply brief. |
Jul 10 2006 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
Jul 13 2006 | Extension of time granted September 8, 2006 to file appellant's reply brief. |
Sep 7 2006 | Request for extension of time filed to file appellant's reply brief. (4th request) |
Sep 13 2006 | Extension of time granted to November 6, 2006 to file reply brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing the reply brief by December 5, 2006. |
Nov 7 2006 | Request for extension of time filed to file appellant's reply brief. (5th request) |
Nov 9 2006 | Extension of time granted to January 8, 2007 to file the reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel H. Mitchell Caldwell's representation the he anticipates filing that brief by January 7, 2007. |
Jan 5 2007 | Request for extension of time filed to file reply brief. (6th request) |
Jan 9 2007 | Extension of time granted to February 7, 2007 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by February 7, 2007. |
Feb 6 2007 | Request for extension of time filed to file appellant's reply brief. (7th request) |
Feb 9 2007 | Extension of time granted to February 14, 2007 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by February 14, 2007. |
Feb 13 2007 | Appellant's reply brief filed by atty H. Mitchell Caldwell. (76 pp.) (Note: brief lacks required certificate of word count, counsel to submit as soon as possible.) |
Feb 20 2007 | Filed: certificate of word count of appellant's reply brief. (24, 273 words) |
Mar 8 2007 | Compensation awarded counsel Atty Caldwell |
Aug 27 2008 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the November calendar, to be held the week of November 3, 2008, in Sacramento. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
Oct 22 2008 | Case ordered on calendar to be argued on Tuesday, December 2, 2008, at 2:00 p.m., in Los Angeles. |
Nov 3 2008 | Received: appearance sheet from Deputy Attorney General, Robert C. Schneider, indicating 45 minutes for oral argument for respondent. |
Nov 3 2008 | Received: appearance sheet from Attorney Harry M. Caldwell, indicating 45 minutes for oral argument for appellant. |
Nov 3 2008 | Filed: respondent's focus issue letter, dated October 29, 2008. |
Nov 3 2008 | Filed: appellant's focus issue letter, dated October 30, 2008. |
Dec 2 2008 | Cause argued and submitted |
Dec 11 2008 | Compensation awarded counsel Atty Caldwell |
Feb 18 2009 | Notice of forthcoming opinion posted |
Feb 19 2009 | Opinion filed: Judgment affirmed in full opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ. |
Mar 6 2009 | Rehearing petition filed by appellant. (1,146 words; 7 pp.) |
Mar 10 2009 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including May 20, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first. |
Apr 1 2009 | Rehearing denied The petition for rehearing is denied. |
Apr 1 2009 | Remittitur issued |
Apr 8 2009 | Received: receipt for remittitur. |
Jun 18 2009 | Received: from appellant, copy of motion for leave to proceed in forma pauperis on petition for writ of certiorari. (10 pp. excluding appendices) |
Jun 26 2009 | Received: Letter from U.S.S.C., dated June 24, 2009, advising the petition for writ of certiorari was filed on June 16, 2009, No. 08-11065. |
Nov 2 2009 | Certiorari denied by U.S. Supreme Court |
Briefs | |
Sep 28 2004 | Appellant's opening brief filed |
Jan 10 2006 | Respondent's brief filed |
Feb 13 2007 | Appellant's reply brief filed |