Filed 8/26/04 (reposted same date to correct docket number)
IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
KEVIN BERNARD HALEY,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A-757948
A jury convicted defendant Kevin Bernard Haley of the first degree murder
of Delores Clement (Pen. Code, § 187)1 and found true the special circumstance
allegations that the murder was committed while defendant was engaged in the
commission of burglary (§ 190.2, subd. (a)(17)(G)), robbery (id., subd.
(a)(17)(A)), rape (id., subd. (a)(17)(C)), and sodomy (id., subd. (a)(17)(D)). It
also convicted defendant of the robbery (§ 211), rape (§ 261, subd. (2)), and
sodomy (286, subd. (c)) of Clement, as well as the burglary of her residence
(§ 459), but it failed to reach a verdict on charges concerning two other victims.
The same jury subsequently set the penalty at death. The trial court denied the
automatic motion to modify the penalty (§ 190.4, subd. (e)) and sentenced
defendant to death. This appeal is automatic. (§ 1239, subd. (b).)
Carlos v. Superior Court (1983) 35 Cal.3d 131 (Carlos), we held that
even when the defendant is the actual killer, intent to kill is an element of the
All statutory references are to the Penal Code unless otherwise indicated.
felony-murder special circumstance. While this aspect of Carlos was overruled in
People v. Anderson (1987) 43 Cal.3d 1104 (Anderson), we subsequently held that
“[c]ases involving the felony-murder special circumstance committed after Carlos
but before Anderson . . . must apply the intent-to-kill requirement.” (People v.
Wharton (1991) 53 Cal.3d 522, 586, fn. 16.) The murder in the present case
occurred in the Carlos/Anderson “window period.” Because the trial court’s
failure to instruct the jury on the intent-to-kill requirement was not harmless
beyond a reasonable doubt, we affirm the conviction for first degree felony murder
and the underlying felonies, but reverse the special circumstance findings and
resulting death sentence.
A. Procedural History
Following the guilt phase of the jury trial, defendant was convicted of the
murder of Delores Clement (§ 187) with the special circumstances that the murder
was committed during the commission of burglary, robbery, sodomy, and rape
(§ 190.2, subd. (a)(17)). Defendant also was convicted of the burglary of the
Clement residence (§ 459) and the robbery (§ 211), sodomy (§ 286, subd. (c)), and
rape (§ 261, subd. (2)) of Clement. The jury was unable to reach verdicts on the
additional charges that defendant had murdered and sexually assaulted Laverne
Stolzy and had sexually assaulted Olga B. The multiple murder special
circumstance (§ 190.2, subd. (a)(3)), which was based on the Clement and Stolzy
murders, was therefore not proven. Following the penalty phase, the jury set the
penalty at death.
After the trial court denied the automatic motion to modify the penalty
(§ 190.4, subd. (e)), it sentenced defendant to death. In addition, the trial court
imposed a total determinate term of 11 years based on defendant’s convictions for
robbery, sodomy, and rape, and ordered that the determinate term run consecutive
to defendant’s death sentence.
B. Guilt Phase Facts
1. Delores Clement Murder
Delores Clement, 55 years old, lived in an apartment building on South
Dunsmuir Avenue in Los Angeles. In the late night or early morning hours of
September 26 and September 27, 1984, her upstairs neighbor was awakened by a
scream. On the morning of September 27, 1984, a second neighbor noticed that
the screen was missing from Clement’s bedroom window, looked inside, and saw
Clement’s body. Police officers found Clement’s body on top of the bed,
facedown. Her nightgown had been pulled up above her chest near her shoulders.
There was blood around her head and anal area.
Forensic print specialist William Leo obtained a latent fingerprint and palm
print from the inside edge of the doorframe of Clement’s closet. Leo testified at
trial that he compared those prints to an ink fingerprint card that he had obtained
from defendant. Leo stated that the latent prints obtained from the crime scene
were defendant’s. Criminalist Doreen Music recovered hair samples from the
victim’s body and right index finger. On October 10, 1984, she compared those
hair samples to hair samples obtained from defendant. Music determined that the
hair fragment recovered from Clement’s right index finger was “similar in
microscopic characteristics to the pubic hair samples” obtained from defendant
“[a]nd therefore, these items could have a common origin.”
On September 29, 1984, defendant was interviewed by Los Angeles Police
Department Robbery-Homicide Detective Woodrow Parks at the Wilshire Jail.
Defendant denied any involvement in the Clement murder. Detective Parks
testified that he was informed on October 9, 1984, that defendant’s fingerprints
matched the prints recovered at the Clement residence. He obtained a warrant for
defendant’s arrest. At approximately 6:30 p.m. on the same date, defendant was
arrested at his house on South Brunson Street in Los Angeles. Detective Parks
stated that defendant did not appear to be under the influence and was “very
cooperative and very talkative.”
Defendant was advised that he was under arrest for the murder of Delores
Clement. Detective Parks and his partner, Los Angeles Police Department
Robbery-Homicide Detective James McCann, told defendant that they knew he
had committed the murder because his fingerprints had been found at the crime
scene. Defendant replied, “Well, I figured I’d see you again, and you know I did
that murder.” During the ride to the police station, defendant volunteered that he
killed Delores Clement. He added that he was sorry about what had happened
because he had just wanted to commit a burglary. He also stated that had not
intended to rape Clement, but that he had just gotten excited when he was
struggling with her and trying to keep her from screaming.
Once at the police station, defendant made a full confession, which police
officers secretly tape-recorded. A portion of this recording was played to the jury.
The jury was also provided with a written transcript of this portion of the
interview. On the tape recording, defendant stated that he “was just going [into
the Clement residence] to get the money.” When he heard Clement coming into
her bedroom, “[he] couldn’t jump out in time so he jumped into the closet.” While
in the closet, he saw her purse next to her bed and went to retrieve it. Clement
started screaming. Defendant stated that he put his hand over her mouth to
prevent her from screaming. They struggled “all over the bed,” and “[he] was
trying to keep her mouth closed with one hand while [he] looked through the purse
with the other.” He admitted to raping and sodomizing her after he had gone
through her purse and retrieved some money.
after he had sex with Clement, he strangled her
with his hands while she was lying on her back. When asked whether he strangled
her so she would not tell the police, defendant replied, “No – nothing like that. I
just wanted . . . to get out.” He stated that Clement was “never dead when I was
there.” He added, “When I left there, she was . . . down and breathing.”
Defendant stated that he stopped having sex with her when he started “[t]hinking
about what I was doing.” He added: “I ran . . . I didn’t want her to catch her
breath and start screaming.” Defendant stated that on the day of the murder he had
ingested a quarter gram or less of cocaine a “long time” before the murder
occurred. He added that he drank four beers afterwards, which made the effects of
the cocaine “linger.” He stated that he was “never incoherent” while under the
influence of narcotics.
Dr. Susan Selser, a deputy medical examiner in the Los Angeles County
Coroner’s Office, testified as to the cause of death of Delores Clement, based on
an autopsy report prepared by Dr. Terry Allen, formerly of the same office. Dr.
Selser stated that she also reviewed Dr. Allen’s preliminary hearing testimony in
this matter. She testified that the cause of Clement’s death was asphyxia due to
manual strangulation, to wit, a lack of oxygen due to pressure applied to the neck.
She added that the victim had extensive bruises in the neck muscles, a fracture to
the hyoid bone, which is a small U-shaped bone at the base of the tongue, a
fracture to the thyroid cartilage, which lies just below the hyoid, and petechial
hemorrhages along the mucosal surfaces of the larynx. But the victim’s thyroid
cartilage was fractured in a manner that left it intact, and Dr. Selser stated that she
was unable to determine which of the two fractures had impeded the victim’s
breathing. She testified that there was “probably a partial obstruction” to the
victim’s breathing passageway and acknowledged that it was “very likely” that
manual pressure was removed from the neck, and the obstruction caused
insufficient oxygen to reach the brain. She added that there were also extensive
lacerations to Clement’s anus and vagina caused by blunt force trauma. While the
injuries were possibly caused by a penis, she stated that “another type of foreign
object would be more likely.”
On the morning of June 26, 1984, Laverne Stolzy’s body was found at her
home by a coworker. She was 56 years old. Her blouse was pushed up over her
breasts and she was naked from the neck down. Police observed a “considerable
amount of blood to the top of her hair.” There was a piece of wood in the room
(commonly referred to as a “2 by 4”) that appeared to have blood and hair on it at
one end, and a piece of corncob lying on the floor between her feet. Semen was
present on the narrow end of the corncob. The pathologist testified that there were
extensive fractures to the top, middle, front, and base of Stolzy’s skull and the
cause of death was multiple cerebral injuries due to blunt force trauma.
Ollie Coleman, a neighbor of Stolzy’s, was the prosecution’s only
eyewitness. On the night of the murder, he was standing outside of his house
when he saw defendant walk behind the Stolzy residence. Defendant was back
there for “maybe ten minutes or so,” so Coleman walked over to “see what was
happening with this guy.” Coleman passed by defendant and they exchanged
greetings. This encounter lasted five seconds. They were “face to face, one or
two feet” away from each other. Defendant walked away, but returned shortly
thereafter and walked down Stolzy’s driveway. Approximately 30 minutes later,
he saw defendant get into Stolzy’s car, start it, and attempt to drive off. Coleman
testified that he had “no doubt in [his] mind” that defendant was the person he saw
the night of the murder.
Detective Parks testified that the day after defendant’s arrest, October 10,
1984, he asked defendant to remove his shoes in order to get a footprint. He stated
that defendant asked him, “Why are you doing this?” Parks stated that “Detective
McCann told him that we had his footprints at the murder scene of the woman that
was killed on 23rd Street in June” (the Stolzy murder) and defendant responded,
“Well, you better check your evidence on that case because when I did her, I never
took my clothes off.”
Olga B., 58 years old, was deemed unavailable to testify at trial due to her
poor health; her preliminary hearing testimony was thus read to the jury. On
August 22, 1984, she was alone in the kitchen of her home on South Spaulding
Street in Los Angeles. Her “whole house was lit up.” She saw defendant against
the wall in her living room and tried to run. Defendant grabbed her from behind,
choked her, and put her on a chair in the dining room. Defendant removed her
shorts and orally copulated her by placing his tongue into her vagina. He then
removed his trousers and tried to rape her. Defendant eventually ejaculated into a
towel. He took the money in her purse and fled. The victim identified defendant
in a photographic lineup on October 18, 1984, and in court.
Lee Mann, a criminalist with the Los Angeles Police Department, testified
that he located a seminal stain on Olga B.’s towel and checked the stain to
determine its blood type, which can be classified into three basic blood grouping
systems. Mann determined that the person depositing the seminal stain was a type
B secretor, and that the seminal fluid was PGM type One, and PEP-A type One.
Mann concluded that “6 or 7 percent” of the population would exhibit all of the
above characteristics, and defendant was in that group.
C. Penalty Phase Facts
At the penalty phase of the trial, the prosecution introduced evidence of
four additional crimes allegedly committed by defendant.
a. Barbara A. and Peter Klevecz
On April 13, 1984, at 12:30 a.m., Barbara A. and Peter Klevecz were at
Dockweiler Beach in El Segundo. They were on a date and drinking beer. She
was a virgin. As they were leaving, defendant and his brother, Reginald Haley,
asked them for a beer. After Klevecz gave defendant and his brother the beer, one
of them pulled out a gun and demanded money. After Klevecz gave them his
money, he and Barbara A. were taken to a lifeguard tower and put on separate
sides so they could not see each other. Defendant attempted to rape Barbara A.
but was unsuccessful. Reginald Haley then tried to rape her, but also was
unsuccessful. He then sodomized her. Defendant returned and vaginally
penetrated Barbara A. while she was facing downward. Klevecz was held at
gunpoint during the sexual attacks.
On October 24, 1985, Barbara A. identified defendant at a live lineup. She
also identified him at the preliminary hearing and at trial. Klevecz remembered
hearing the name “Regg” spoken by one of the assailants. Barbara A. distinctly
remembered that Reginald Haley called defendant “Kev” during her ordeal.
On May 21, 1982, police officers discovered the badly beaten body of
Elizabeth Burns, age 87. Her robe was pulled up to her midthigh area and
wrapped around her. Her false teeth were lying on the floor next to her, and she
appeared to have been sexually assaulted. An autopsy revealed that she died from
multiple traumatic injuries and suffered severe injuries to the head, as well as
injuries to the anus and vagina, consistent with having been raped and sodomized.
David Gerhardt stated that he was a burglar and had known defendant and
his brother Regg for seven years. He stated that one time he and the Haley
brothers were “riding around in a car” and defendant, pointing out the Burns
residence, told Gerhardt that he and his brother had been “casing the place.” On a
different occasion, he and Reginald Haley went to the residence on foot with the
intention of committing a burglary, but Gerhardt withdrew when they discovered
an elderly lady was at home. About two weeks later, defendant told Gerhardt that
he and his brother had successfully committed that burglary.
Gerhardt was subsequently put in jail, where he saw defendant. Defendant
told Gerhardt that he was being charged with “this particular Beverly Hills
murder,” and Gerhardt said, “You mean the one that you and Reginald did?”
Haley replied, “Yeah.” Gerhardt responded, “You mean the old lady was there
and you did the burglary?” Defendant replied, “Yeah,” and indicated that he and
his brother killed the lady. It was stipulated, however, that defendant had not been
charged with the Burns murder.
On May 17, 1984 at 5:30 a.m., as part of her usual routine, Willa Gerber
went jogging from her house on Whitworth Avenue in Los Angeles toward
Beverly Hills. While she was jogging, a dirty maroon 1965 Mustang with a
blackish top drove slowly past her. She watched as the car turned around and
came back toward her, halting in the middle of the street. Defendant got out of the
car holding a gun and told her to “get in the car.” He grabbed her and they
struggled. Gerber stated that, “He was pulling me and I was battling, and he
pushed me down so that my head hit the street, . . . and I mean it cracked my
head.” While she was lying on the pavement, defendant pointed a gun at her face.
She heard a click. She then got up and ran. Defendant followed in the car.
Gerber jumped over the picket fence of a house on Stearns Avenue. While she
was standing in the yard area, defendant leaned out of the car and fired the gun.
She was hit twice. One bullet went into her thigh, through her stomach and out
her waist. The second bullet went through her buttocks and lodged in her waist.
d. Jodi Samuels
At 6:45 a.m. on May 17, 1984, approximately one hour after Willa Gerber
was shot, Harold Ray was in his house on 23rd Street and Longwood in Los
Angeles2 when he heard someone screaming and realized it was Jodi Samuels, a
15-year-old girl who lived in his neighborhood. Mr. Ray heard her say “Get away
from me, somebody call the cops.” He heard a male voice say, “Come back here.”
As he opened the door to see what was happening, he heard two shots. He saw a
Ford Mustang in the street, vintage 1965 or 1964, black or dark gray in color with
primer spots. The car, he said, was not maroon. He saw a male getting into the
vehicle and described him as a light-complexioned Black man with a longer than
average neck, approximately five-foot eight or nine inches tall. He did not
identify defendant at a live lineup on October 18, 1984. Looking at defendant in
court, he said the man he saw that day “looked a lot lighter than [defendant] in my
opinion, lighter in complexion.” Jodie Samuels’s mother, Dorothy Samuels, stated
that she heard gunshots and saw her daughter lying in the street. Her daughter’s
white purse was missing. Jodie died three days later.
Los Angeles Police Department Robbery-Homicide Detective Fred Miller
responded to the location of the Willa Gerber shooting incident and observed the
recovery of “a slug, [a] spent round on the ground in the driveway.” An expended
bullet was also recovered from Jodi Samuels’s body during her autopsy.
Lawrence Baggett, assigned to the firearms identification unit of the City of Los
This location is approximately one block from the Stolzy residence on 23rd
Street and Westview Drive.
Angeles, microscopically compared the two expended bullets and concluded that
they had been fired from the same gun.
The sole witness called for the defense at the penalty phase was Kathy
Pedzek, an eyewitness identification expert, who explained several factors that can
affect the accuracy of eyewitness identifications. Defense counsel did not present
any mitigating evidence.
A. Claims Related to Defendant’s Statements
Defendant makes three claims related to his statements to police: (1) the
initial statements he made to the police following his arrest were involuntary
because the police threatened to kill him and his intoxication made him susceptible
to that threat; (2) these initial statements were obtained in violation of Miranda v.
Arizona (1966) 384 U.S. 436; and (3) because his initial statements were obtained
in violation of Miranda, his subsequent statements, obtained after a valid Miranda
waiver, were tainted.
For the reasons stated below, we hold that defendant’s initial statements to
police were voluntary and were not the product of an interrogation within the
meaning of Miranda. As such, defendant’s post-Mirandized statements, most
significantly the statements contained in the subsequent, tape-recorded confession,
are admissible. Even assuming arguendo that defendant’s initial, voluntary
statements to police were obtained in violation of Miranda, his tape-recorded
confession is still admissible because the subsequent administration of Miranda
warnings to a suspect who has given voluntary but unwarned statements suffices
to remove the conditions that would preclude admission of the earlier statements.
The admissibility of defendant’s statements to the police was litigated prior
to trial.3 The court considered the motion based on the preliminary hearing
testimony of Detective McCann, defendant’s tape-recorded confession, the
transcript of the tape recording, and defendant’s testimony at the hearing. The
basis for the motion was that the change in defendant’s tone of voice during the
recorded interview suggested a “sobering up,” which indicated a lack of
voluntariness. Defendant never specifically moved to exclude the initial
statements he made in the patrol car.
Detective McCann stated in his preliminary hearing testimony that he
contacted defendant in jail after defendant was arrested on September 28, 1984, on
an unrelated burglary charge. After waiving his constitutional rights, defendant
denied any involvement in the Clement murder. He was subsequently released
On October 9, 1984, a latent print technician informed Detective McCann
that defendant’s fingerprints matched latent prints that had been located inside
Clement’s apartment. After securing a warrant for defendant’s arrest, McCann,
accompanied by his partner, Detective Parks, and a uniformed officer, arrested
defendant inside his house and placed him in the rear seat of the detectives’ police
vehicle. Defendant stated, “I knew I’d see you again,” and in response, Detective
McCann stated, “Yeah, now we know that you did kill Delores Clement.”
Defendant paused for a moment and said, “You’re right. I did it.”4 Detective
The motion to exclude the statements was heard before Judge William
Pounders. The jury trial was conducted by Judge Judith Chirlin.
The sequence of this conversation is disputed by defendant. At trial,
Detective Parks stated that as defendant was put in the backseat of the patrol
vehicle, he was advised that he was under arrest for the murder of Delores
Clement and that the detectives knew he committed the murder. Defendant
replied, “Well, I figured I’d see you again, and you know that I did that murder.”
McCann then obtained defendant’s consent to search his room. He also informed
defendant that he and his partner would interview defendant further at the police
While en route to the police station, defendant continued to talk about the
Clement murder. When it appeared that defendant was beginning an “ongoing
narrative,” Detective McCann advised defendant of his Miranda rights, which
defendant waived. Detective McCann stated that defendant “kept stressing the
fact he went over to the Clement residence to commit a burglary, that it had not
been his intent to commit a murder.” Defendant added that he had not intended to
commit a rape. Instead, defendant stated that he had concealed himself in the
victim’s bedroom closet, the victim entered and they struggled; defendant became
excited during the struggle and raped Clement. Detective McCann informed
defendant that the detectives would conduct a detailed interview at the police
Once at the station, the detectives secretly recorded their interview with
defendant. On the tape recording, he was again advised of his constitutional rights
and he agreed to talk to the detectives.5 After receiving this waiver, Detective
Detective Parks added that Detective McCann told defendant that his fingerprint
was found at the murder scene. It is unclear precisely when Detective McCann
conveyed the fingerprint information to defendant.
As reported in the transcript (*** indicates the recording was
unintelligible), Detective McCann told defendant, “I’m gonna give you your
Rights again. Remember when I gave them to you on the way over here?”
Defendant replied in the affirmative. McCann stated: “But *** give ’em to you
again. You have the right to remain silent. If you give up the right to remain
silent, anything you say can and will be used against you in a court of law. You
have the right to speak with an attorney and to have the attorney present during
questioning. If you so desire and cannot afford one, an attorney will be appointed
for you without charge before questioning. You understand all that?” Defendant,
“Yeah.” McCann: “Okay. You understand each of these rights -- I’ve explained
them to you?” Defendant: “Yes, I do.” McCann: “*** do you wish to give up
McCann asked, “Do you wish to give up the right to speak with an attorney and to
have him present during questioning? Can you sit and talk to me right now and
answer my questions without having an attorney present?” Defendant replied,
“Yes, I could. But – you know how I feel, but I’m gonna do it *** ’cause *** I
don’t – I don’t want to get jumped on *** ” Detective McCann responded, “Well,
Kevin, nobody’s gonna jump on you. I want to ask you these questions . . . [a]nd
if you want to talk to me about it, that’s fine. I’m not gonna jump on you. I’m not
gonna let anyone else jump on you.” Defendant replied: “*** gonna tell you
everything, whether *** want it there or not, I just ***. ” The detective replied,
“Okay.” Defendant then provided a detailed account of his involvement in the
Defendant testified during the hearing to show, according to defense
counsel, defendant’s “state of mind at the time just before the [first] statement was
made and during the [tape-recorded] statement that he was under the influence of
Defendant stated that he was smoking cocaine with his girlfriend in his
room shortly before he was arrested and it made him “paranoid and light in the
head.” He explained that he “came down” during the interview and “wasn’t at all
in [his] best mind at the time.” He stated that Detective McCann had threatened
him at his house, slammed him down on his bed and said “he was going to shoot
[him] on the way to the police station.” On cross-examination, defendant stated
that he received his constitutional rights in the police car because he reminded the
officers to do so. He agreed that he waived his constitutional rights at the police
station. He agreed that no cocaine paraphernalia was found in his room. He told
the court that only after he confessed to the Clement murder did he state that he
the right to remain silent? Do you want to talk to me; do you want to answer my
questions --” Defendant: “Yes.” McCann: “-- tonight? Okay.”
wanted to talk to an attorney. On redirect examination, he stated that he was not
as under the influence at the police station as he had been in the house. But then
he agreed that he was still under the influence when he admitted killing Clement.
The trial court denied the motion to exclude defendant’s statements, ruling
that the bulk of the tape-recorded statement was admissible. The court, however,
did suppress statements made by defendant later in the tape-recorded statement,
after he confessed to the Clement murder. Specifically, the court ruled that the
detectives persisted in questioning defendant about the Stolzy murder after he had
invoked his right to remain silent. The court also ruled that defendant’s reference
to being “jumped on,” was not “indicative of a threat [but that defendant did not]
want the [officers’] criticism,” and that defendant’s change in demeanor, which it
noticed from listening to the tape recording, was not the result of “coming down
off of the cocaine use.” Instead, the court found that it is “equally and perhaps
more persuasive he is upset about having given the details of a very gory murder
to the police, and that seems to cause his reluctance to talk further.”
Defendant argues that his tape-recorded confession at the police station was
involuntary “because McCann had threatened to kill him and because he was
under the influence of cocaine.” This claim is based solely on defendant’s
testimony at the hearing, in which he alleged that Detective McCann threatened to
kill him on the way to the police station and that he had smoked cocaine shortly
before his arrest.
“[T]he state’s burden is to prove the voluntariness of a confession by a
preponderance of the evidence.” (People v. Weaver (2001) 26 Cal.4th 876, 920.)6
Defendant argues that where a confession “proves the case,” voluntariness
must be proved beyond a reasonable doubt. However, defendant cites no authority
in support of this proposition. Under both the federal and state Constitutions, the
“Under both state and federal law, courts apply a ‘totality of circumstances’ test to
determine the voluntariness of a confession. [Citations.] Among the factors to be
considered are ‘ “the crucial element of police coercion [citation]; the length of the
interrogation [citation]; its location [citation]; its continuity” as well as “the
defendant’s maturity [citation]; education [citation]; physical condition [citation];
and mental health.” ’ [Citation.] On appeal, the trial court’s findings as to the
circumstances surrounding the confession are upheld if supported by substantial
evidence, but the trial court’s finding as to the voluntariness of the confession is
subject to independent review.” (People v. Massie (1999) 19 Cal.4th 550, 576.)
The trial court’s determination that defendant’s tape-recorded confession
was voluntary is supported by substantial evidence. The trial court had the
opportunity to observe defendant testify and judge his credibility. Despite
defendant’s claim that he smoked cocaine shortly before his arrest, no cocaine
paraphernalia was found in his room. In addition, the tape recording reveals that
defendant was responsive to the officer’s questioning, recalled the incident in great
detail, and never mentioned during the interview that he was under the influence
or otherwise mentally impaired. These factors support the trial court’s finding that
defendant was not “under the influence of any narcotic or dangerous drug,” and
that his change in demeanor was “attributable solely to the fact” that he had just
provided the police with details of a very gory murder.”
Nor did the trial court credit defendant’s testimony that Detective McCann
threatened to kill him when he was arrested. Certainly, defendant’s credibility was
in question given that his testimony about smoking cocaine in his room shortly
before his arrest was impeached by the fact no cocaine paraphernalia was found
prosecution must prove the voluntariness of a confession by a preponderance of
the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Markham
(1989) 49 Cal.3d 63, 71.)
there. Instead, the court credited the preliminary hearing transcript testimony of
Detective McCann, who described defendant as very eager to talk on the way to
the police station. Detective McCann’s testimony is corroborated by the fact that
defendant was cooperative during the portion of the tape-recorded interview in
which the Clement murder was discussed. These factors support the trial court’s
finding that defendant’s statement in the tape-recorded confession that he did not
want to be “jumped on” indicated only that he did not want to be criticized by the
officers. Under the totality of the circumstances, we agree with the trial court that
defendant’s tape-recorded confession was voluntary.
3. Miranda Waivers Were Knowing, Voluntary, and Intelligent
Defendant makes the related claim that the Miranda waivers he gave both
in the patrol car and prior to his taped-recorded confession at the police station
were not made knowingly, voluntarily, and intelligently. This claim, too, is based
on defendant’s insistence that his statements to police were a product of Detective
McCann’s threat to kill him. “In considering a claim that a statement or
confession is inadmissible because it was obtained in violation of a defendant’s
rights under [Miranda], we accept the trial court’s resolution of disputed facts and
inferences, and its evaluation of credibility, if supported by substantial evidence.”
(People v. Wash (1993) 6 Cal.4th 215, 235.) As discussed above, the trial court
chose not to credit defendant’s testimony that the officers threatened to kill him
upon his arrest, and thus found that defendant’s initial statements in the patrol car,
and those contained in the Mirandized tape-recorded confession, were voluntary.
The trial court’s ruling is supported by substantial evidence.
Defendant next claims that the detectives violated his Miranda rights when
they “interrogated” him (1) at the police car immediately after his arrest, and (2)
while en route to the police station. But defendant never made this specific claim
at the trial court level. As such, he has failed to preserve it for review. (See, e.g.,
People v. Memro (1995) 11 Cal.4th 786, 833.) Even assuming that these claims
were properly preserved, we reject them.
a. Statements at the patrol car
Defendant argues that Detective McCann’s statement to him at the patrol
car just after his arrest, that the detectives “knew” he committed the Clement
murder because they found his fingerprints at the scene of the crime, constituted
an interrogation because it was reasonably likely to elicit an incriminating
A defendant who is in custody, as here, must be given Miranda warnings
before police officers may interrogate him. (Rhode Island v. Innis (1980) 446 U.S.
291, 297 (Innis).) In Innis, the high court defined the term “interrogation,” stating
that “the Miranda safeguards come into play whenever a person in custody is
subjected to either express questioning or its functional equivalent. That is to say,
the term ‘interrogation’ under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely
to elicit an incriminating response from the suspect. The latter portion of this
definition focuses primarily upon the perceptions of the suspect, rather than the
intent of the police. This focus reflects the fact that the Miranda safeguards were
designed to vest a suspect in custody with an added measure of protection against
coercive police practices, without regard to objective proof of the underlying
It is unclear whether Detective McCann told defendant about the fingerprint
evidence before defendant stated “You’re right. I did it.” (See discussion, ante, p.
14, fn. 4.) We will assume for purposes of analysis, however, that the officer
conveyed this information to defendant prior to defendant’s admission.
intent of the police. A practice that the police should know is reasonably likely to
evoke an incriminating response from a suspect thus amounts to interrogation.
But, since the police surely cannot be held accountable for the unforeseeable
results of their words or actions, the definition of interrogation can extend only to
words or actions on the part of police officers that they should have known were
reasonably likely to elicit an incriminating response.” (Innis, 446 U.S. at pp. 300-
302, fns. omitted.)
Innis, while the defendant was being transported to the police station,
one police officer said to another that he hoped police would continue searching
for the missing gun because a student from the school for the handicapped could
pick it up and get hurt. (Innis, supra, 446 U.S. at pp. 294-295.) The defendant
then volunteered the weapon’s location. The court ruled that this brief
conversation was not an interrogation because it was “nothing more than a
dialogue between the two officers to which no response from respondent was
invited.” (Id. at p. 302.)
People v. Clark (1993) 5 Cal.4th 950, the defendant was being
transported to the hospital by the police to obtain a blood sample. He had
previously invoked his Miranda rights. He asked the officers what the penalty
was for the murder for which he was under arrest, stating: “ ‘What can someone
get for something like this, thirty years?’ ” (Id. at p. 982.) The officer responded
that he had never seen anyone serve more than seven and a half years unless the
person was a “ ‘mass murderer.’ ” Following this exchange, the defendant
confessed. (Ibid.) We held that this conversation did not constitute an
interrogation: “Clearly, not all conversation between an officer and a suspect
constitutes interrogation. The police may speak to a suspect in custody as long as
the speech would not reasonably be construed as calling for an incriminating
response.” (Id. at p. 985.) We concluded: “The record does not establish that
defendant was subject to ‘compelling influences, psychological ploys, or direct
questioning.’ [Citation.]” (Id. at p. 986.)
People v. Dominick (1982) 182 Cal.App.3d 1174 (Dominick), defendant
Shedelbower invoked his right to an attorney. As the investigators began picking
up their notebooks and other materials in preparation to leave the interview room
and take the defendant to the booking area, a detective falsely stated to the
defendant that the stabbing victim had identified the defendant’s picture as one of
the persons who had raped her and murdered her friend. The detective truthfully
added that a codefendant was in custody. Five minutes later, the defendant
confessed. (Id. at p. 1189.) The Court of Appeal held that these statements were
not an interrogation within the meaning of Innis, stating “the officers did not
attempt to engage defendant in a conversation but merely offered him justification
for retaining him in custody. Their words do not appear to us to be ‘reasonably
likely to elicit an incriminating response from the suspect.’ ” (Id. at p. 1192.)
U.S. v. Shedelbower (9th Cir. 1989) 885 F.2d 570, the Court of Appeals
upheld the state court’s ruling in Dominick, supra, 182 Cal.App.3d 1174. Relying
on Innis, the court ruled that the detective’s statements that the victim identified
the defendant’s picture and that a codefendant was in custody “were not the
functional equivalent of questioning. They did not call for nor elicit an
incriminating response. They were not the type of comments that would
encourage [the defendant] to make some spontaneous incriminating remark.”
(Shedelbower, supra, 885 F.2d at p. 573.)
United States v. Moreno-Flores (9th Cir. 1994) 33 F.3d 1164, upon the
defendant’s arrest, the officer told him that they “had seized about 600 pounds of
cocaine,” that he “was in serious trouble,” and “was facing a lengthy prison
sentence.” (Id. at p. 1168.) The defendant did not respond. The following
morning, after the officer asked him “how his night was,” the defendant confessed.
(Ibid.) The court of appeals, relying on Innis, held that the officer’s statements on
the previous night were not express questions, “[n]or did they constitute the
functional equivalent of interrogation.” (Id. at p. 1169.)
These cases are fatal to defendant’s argument. Detective McCann told
defendant, in effect, that “he knew he did it because his fingerprint was found at
the scene.” The detective did not phrase this statement as a question, and this
statement did not call for an incriminating response. A brief statement informing
an in-custody defendant about the evidence that is against him is not the functional
equivalent of interrogation because it is not the type of statement likely to elicit an
People v. Sims (1993) 5 Cal.4th 405, relied upon by defendant, is
inapposite. There, the defendant was in custody in Las Vegas, Nevada, for
murders committed in South Carolina and Glendale, California. Two Glendale
officers asked the defendant if he wanted to talk about the case, and the defendant
invoked his right to counsel. As the officers were leaving, the defendant asked
what was going to happen to him, referring to whether he would be extradited to
South Carolina or California. One officer then told the defendant that he was
wanted for murder in both California and South Carolina and launched into a
detailed explanation about the defendant’s involvement in the Glendale crime,
providing the defendant with a detailed account of the evidence against him. We
stated that the officer’s detailed, nonresponsive answer to the defendant’s
extradition question was the “ ‘functional equivalent’ ” of questioning because he
“pursued a line of conversation far exceeding the scope of any answer legitimately
responsive to a question concerning extradition.” (Id. at p. 442.) Similarly, in
People v. Boyer (1989) 48 Cal.3d 247, 274, we found an Innis violation where the
officer, after the defendant invoked his Miranda rights to silence and counsel,
asked the defendant to reenter an interrogation room and “launched into a
monologue on the status of the investigation,” which prompted an incriminating
response from the defendant. Such is decidedly not the situation here. Detective
McCann made a brief statement to defendant that did not call for an incriminating
response, and the record here, unlike in Sims and Boyer, does not establish that
defendant was subject to compelling influences, psychological ploys, or direct
b. Statements en route to the police station
While en route to the police station, defendant was “very eager” to talk
about the Clement murder and made incriminating statements. When it appeared
that defendant was beginning an “ongoing narrative,” Detective McCann advised
defendant of his Miranda rights, which defendant waived.
People v. Ray (1996) 13 Cal.4th 313, 337, we stated that “not all
statements obtained by the police from a suspect who is incarcerated or otherwise
confined are the product of interrogation. Nothing in Miranda is intended to
prevent, impede, or discourage a guilty person, even one already confined, from
freely admitting his crimes, whether the confession relates to matters for which he
is already in police custody or to some other offense. As Miranda itself
recognized, ‘[c]onfessions [are] a proper element in law enforcement. Any
statement given freely and voluntarily without any compelling influences is, of
course, admissible in evidence. The fundamental import of the privilege while an
individual is in custody is not whether he is allowed to talk to the police without
the benefit of warnings and counsel, but whether he can be interrogated. There is
no requirement that police stop a person who enters a police station and states that
he wishes to confess to a crime, or a person who calls the police to offer a
confession or any other statement he desires to make. Volunteered statements of
any kind are not barred by the Fifth Amendment’ or subject to the prophylactic
requirements of Miranda. [Citations.]”
Defendant’s statements en route to the police station were volunteered. As
noted, the court credited the preliminary hearing transcript testimony of Detective
McCann, who described defendant as very eager to talk on the way to the police
station. This finding is supported by substantial evidence. Accordingly, there was
no interrogation and no Miranda violation occurred.
5. The Subsequent Advisement Was Valid
Defendant also claims that his initial statements when he was arrested and
while en route to the police station, because they were obtained illegally, tainted
his tape-recorded statement at the police station that was obtained after he was
advised of and waived his Miranda rights. We disagree. As noted, defendant’s
initial statements were not the product of an interrogation within the meaning of
Miranda. Even assuming his initials statements were obtained in violation of
Miranda, we conclude that because they were voluntarily given, they did not taint
defendant’s subsequent tape-recorded confession.
Oregon v. Elstad (1985) 470 U.S. 298, the high court rejected the notion
that a subsequent confession must necessarily be excluded because it followed an
otherwise voluntary statement that was given without Miranda warnings. The
court stated: “It is an unwarranted extension of Miranda to hold that a simple
failure to administer the warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect’s ability to exercise his free
will, so taints the investigatory process that a subsequent voluntary and informed
waiver is ineffective for some indeterminate period. Though Miranda requires
that the unwarned admission must be suppressed, the admissibility of any
subsequent statement should turn in these circumstances solely on whether is it
knowingly and voluntarily made.” (470 U.S. at p. 309.)
Elstad, an officer had come to the defendant’s home to arrest him.
Without providing the required Miranda advisement, the officer asked the
defendant if he knew why the officer was there and if he knew the burglary
victims. The defendant’s response was incriminating. The defendant later gave a
full statement at the police station after having been advised of and having waived
his Miranda rights. The high court held that despite the officer’s initial failure to
administer warnings to the defendant, the defendant’s statement at the station need
not be suppressed: “[Absent] deliberately coercive or improper tactics in obtaining
the initial statement, the mere fact that a suspect has made an unwarned admission
does not warrant a presumption of compulsion. A subsequent administration of
Miranda warnings to a suspect who has given a voluntary but unwarned statement
ordinarily should suffice to remove the conditions that precluded admission of the
earlier statement.” (Oregon v. Elstad, supra, 470 U.S. at p. 314.) Elstad compels
the same conclusion here.
B. Excusal of Four Prospective Jurors
Defendant claims that the trial judge improperly granted the prosecutor’s
motion to excuse four prospective jurors for cause because there was no showing
that their views concerning capital punishment would prevent or substantially
impair their performance as jurors. In addition, on October 16, 1993, it was
established that the questionnaires completed by these four jurors could not be
located. Defendant claims that the absence of these juror questionnaires denies
him a meaningful level of appellate review because it cannot be determined from
reviewing only the record transcript whether the jurors’ ability to serve was
substantially impaired. We conclude that the missing juror questionnaires do not
impede meaningful appellate review, and that the trial judge properly excused the
four prospective jurors for cause.
Both the United States Constitution and the California Constitution entitle a
criminal defendant to a record on appeal sufficiently complete to permit
meaningful appellate review. (People v. Howard (1996) 1 Cal.4th 1132, 1165.) In
People v. Ayala (2000) 24 Cal.4th 243, 270 (Ayala), and People v. Alvarez (1996)
14 Cal.4th 155, 196, footnote 8 (Alvarez), we held that lost juror questionnaires
did not impede meaningful appellate review: “ ‘The record on appeal is
inadequate . . . only if the complained-of deficiency is prejudicial to the
defendant’s ability to prosecute his appeal. [Citation.] It is the defendant’s burden
to show prejudice of this sort. [Citation.] Defendant attempts to carry this burden,
but does not succeed. He simply does not show that the absence of the
questionnaires is prejudicial to his ability to urge his Wheeler/Batson claim—or
any other. Indeed, material from the now lost items survives in the reporter’s and
clerk’s transcripts through quotation and paraphrase.” (Alvarez, supra, 14 Cal.4th
at p. 196, fn. 8.) In Ayala, we explained that despite the absence of the juror
questionnaires the record was sufficiently complete to decide defendant’s Wheeler
claims. (Ayala, 24 Cal.4th at p. 270.)
We reach the same conclusion here. The complete transcript of the voir
dire process is available for appellate review. The record reveals that during voir
dire, the trial judge permitted both attorneys considerable latitude in exploring
each juror’s views on the death penalty. The attorneys were free to read questions
on a prospective juror’s questionnaire and the prospective juror’s written response,
and then ask the prospective juror to further explain his or her written response.
Thus, portions of the juror questionnaires have been preserved for appellate review
through quotation and paraphrase.
The voir dire transcript in the present case reveals that each of the
challenged jurors gave equivocal or conflicting statements as to whether they
could impose the death penalty. This alone is a sufficient basis to uphold the
determination of the trial court as to these jurors’ actual state of mind. People v.
Carpenter (1997) 15 Cal.4th 312, 357 (Carpenter) [“if the juror’s statements
[regarding the death penalty] are equivocal or conflicting, the trial court’s
determination of the juror’s state of mind is binding”].) Defendant fails to show
prejudice because he does not explain how the missing juror questionnaires
undermine this fact. We therefore conclude that the absence of the juror
questionnaires does not impede meaningful appellate review in this case.8
Jurors Were Properly Excused
A trial judge may properly exclude a prospective juror in a capital case if
the juror’s views on capital punishment would prevent or substantially impair the
performance of his or her duties as a juror in accordance with the court’s
instructions and the juror’s oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424;
People v. Jones (2003) 29 Cal.4th 1229, 1246; People v. Guzman (1988) 45 Cal.3d
915, 955.) The determination of a juror’s qualifications fall “ ‘within the wide
discretion of the trial court, seldom disturbed on appeal.’ ” (People v. Kaurish
(1990) 52 Cal.3d 648, 675.) There is no requirement that a prospective juror’s
bias against the death penalty be proven with unmistakable clarity. (People v.
Carpenter (1999) 21 Cal.4th 1016, 1035.) Instead, “it is sufficient that the trial
judge is left with the definite impression that a prospective juror would be unable
Nothing in our discussion should be interpreted as condoning the loss of
juror questionnaires in capital murder cases. (Cal. Rules of Court, rule 34.1, subd.
(a)(1)(C); Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1088.)
to faithfully and impartially apply the law in the case before the juror.” (People v.
Jones, supra, 29 Cal.4th at pp. 1246-1247.) “On review, if the juror’s statements
[regarding the death penalty] are equivocal or conflicting, the trial court’s
determination of the juror’s state of mind is binding. If there is no inconsistency,
we will uphold the court’s ruling if it is supported by substantial evidence.”
(Carpenter, supra, 15 Cal.4th at p. 357.)
a. Juror Marvela P.
Prospective Juror Marvela P. made conflicting statements about her views
on the death penalty. Therefore, the trial court’s determination as to this juror’s
state of mind is binding.
Initially, Marvela P. agreed with defense counsel that she would listen to
the evidence, and if the prosecution proved defendant’s guilt as well as the special
circumstances beyond a reasonable doubt, she would not hesitate or refuse to vote
for guilt or find true the special circumstances allegations to avoid considering
whether a death sentence would be appropriate. But she acknowledged her
opposition to the death penalty in this manner: “It seems like murder, that man
shouldn’t take life, only the Lord.” She agreed that it was “really God’s function
to take lives, not ours.” When asked by the prosecutor what she thought about the
death penalty, she said, “I don’t think it [sic] should be a death penalty. I don’t
really think it [sic] should be a death penalty.” When asked to explain this belief,
Marvela P. stated, “It should be the Lord that take a life, you know, not us.” The
prosecutor pointed out, contrary to her earlier answer to defense counsel, that
Marvela P. stated in her juror questionnaire that she would refuse to vote for
murder in the first degree because she would not want to consider the death
penalty. The prosecutor then asked, “You don’t believe in the death penalty;
that’s clear?” Marvela P. replied, “Yes.” The prosecutor stated, “And that’s just
something you don’t want to deal with; is that right?” Marvela P. replied, “Yes.”
Based on her inconsistent answers and the fact that she stated “that man
shouldn’t take a life,” the trial judge found that Marvela P. “would be substantially
impaired in terms of her ability to vote for the death penalty.” The trial judge
properly excused Prospective Juror Marvela P. (See, e.g., Ayala, supra, 24 Cal.4th
at p. 275 [“we are bound by the trial court’s determination that [the juror was]
substantially impaired” where the juror’s gave inconsistent answers, including
testimony that she was incapable of imposing death penalty].)
b. Juror Delores T.
Prospective Juror Delores T. acknowledged that her statements about the
death penalty were contradictory: “I know I have contradicted myself. I realize
that.” The judge first asked Delores T. whether she had “such strong feelings
about the death penalty that under no circumstances, no matter what . . . evidence
there is, just no way that you could vote for the death penalty,” to which she
responded, “at this point in time, I’d have to say yes.” Yet later, Delores T. said
she could conceive of a situation in which she would vote for the death penalty,
such as if something happened to her five-year-old son. Delores T. also agreed
with the defense attorney that she would listen to the evidence, and based on the
evidence and the law, would “follow [her] convictions.” The prosecutor began his
questioning of Delores T. by referring her to the following question on her juror
questionnaire: “Do you have such an opinion concerning the death penalty that
regardless of the evidence that might be revealed during the penalty phase of the
trial, should we get there, you would automatically and absolutely refuse to vote
for the death penalty in any case?” Delores T. stated that her written response was
“yes,” and that “those were my feelings at the time and basically that remains my
At a sidebar conference after this questioning, the trial judge stated that
Delores T.’s ability to serve as a juror was “substantially impaired” and therefore
granted the prosecutor’s challenge for cause. Based on her admitted inability to
impose the death penalty, the trial court properly excused Prospective Juror
Delores T. (See, e.g., People v. Maury (2003) 30 Cal.4th 342, 379 [prospective
juror properly excused where she “did not think” she could impose the death
c. Juror Betty L.
During voir dire, the defense attorney aptly described Prospective Juror
Betty L.’s statements when he stated to the judge, “she sort of flips back and
forth.” Betty L. initially agreed with the trial judge that “if . . . the prosecutor has
proved beyond a reasonable doubt that the defendant is guilty, and he has proved
beyond a reasonable doubt that the special circumstances are true, that [she] would
not hesitate or refuse to vote for those verdicts that you thought were correct . . . .”
Betty L. seemingly confirmed that she could vote for the death penalty in response
to various questions by the defense attorney. But when the prosecutor asked, “But
under the right circumstances, do you think you could [impose the death penalty],
Betty L. responded, “I really don’t think so. I don’t.” The prosecutor then stated:
“Then you should not be on this jury because you, yourself, could not impose the
death penalty?” Betty L. responded, “Right.”
During a sidebar conference, the defense attorney appropriately
characterized Betty L.’s testimony when he said, “the state of the record is
somewhat ambiguous as to whether she is substantially impaired.” Based on this
ambiguity, the judge properly excused Prospective Juror Betty L. (See, e.g.,
People v. Jones, supra, 29 Cal.4th at pp. 1248-1249 [prospective juror properly
excused based on equivocal statements].)
d. Juror Margaret S.
The trial judge first asked Margaret S., “Do you have such opinions about
the death penalty that you could just not, under any circumstances and regardless
of what the evidence is, you just could not vote to impose the death penalty?”
Margaret S. responded, “I believe that’s so.” To confirm, the judge rephrased his
question, “You think that your feeling about the death penalty is, you just couldn’t
. . .”; Margaret S. interrupted, “No, it’s against my nature.” Later, however,
Margaret S. stated that she might be able to impose the death penalty in certain
situations, but she could not articulate such situations. Answering questions from
the prosecutor, Margaret S. characterized the death penalty and the notion of “an
eye for an eye,” as “a barbaric cultural practice.” Margaret S. also reiterated her
opposition to the “concept” of the death penalty. Based on her conflicting
statements, the trial judge properly excused Prospective Juror Margaret S.
C. Carlos Error
Defendant claims that felony-murder special-circumstances findings and
resulting death sentence must be reversed because the trial court failed to instruct
the jury that it must find that defendant intended to kill the victim as required by
our decision in Carlos, supra, 35 Cal.3d 131. We agree.
In Carlos, we held that intent to kill was a required element of the felony-
murder special circumstance, whether the defendant was the actual killer or an
aider and abettor. (Carlos, supra, 35 Cal.3d at pp. 153-154.) In Anderson, supra,
43 Cal.3d 1104, we partially overruled Carlos and held that intent to kill is not an
element of the felony-murder special circumstance when the defendant is the
actual killer; “but when the defendant is an aider and abetter rather than the actual
killer, intent must be proved before the trier of fact can find the special
circumstance to be true.” (Id. at p. 1139.) Anderson was silent on whether its
holding applied retroactively. (In re Baert (1988) 205 Cal.App.3d 514.)
Defendant committed the Clement murder in September 1984, during the
“window period” between the decisions in Carlos and Anderson. Moreover, the
trial took place in the spring of 1988, after the Anderson decision but before an
appellate court had ruled on whether the decision in Anderson applied
Against this backdrop, the issue of Anderson’s retroactivity was fiercely
litigated by the parties. During voir dire, defense counsel requested that the trial
court pose questions to the prospective jurors on the intent to kill issue, but the
court refused. After the jury was sworn, the parties submitted briefs on the Carlos
issue. Defense counsel argued that if Carlos did not apply, “the real legal effect is
to prevent the defendant from putting before the jury a defense that he did not
have the intent to kill.” The trial judge “reluctantly” applied Anderson
However, prior to the beginning of the defense case, the trial judge revisited
the Carlos issue. Stating that she had not “changed [her] mind” that Anderson
applied retroactively,” she nonetheless asked the prosecutor whether he still
objected to a Carlos intent to kill instruction given that several judges had
informed her “that other district attorneys have taken the position [that] they don’t
want to risk anything, and so they’re willing to accede to a defense request on [the
Carlos] instruction.” The prosecutor replied, while “it is possible that maybe we
can do it by the way of a special finding . . . I’ll just rely on my understanding of
the law that it is retroactive, and let the appellate courts decide the issue . . . .” The
court warned that doing so was “a big risk,” but the prosecutor did not waver. As
he stated, “the only thing that is at risk is the special circumstance rather than the
case, so I am prepared to go forward.” The trial court therefore left intact its
ruling that defendant would not be permitted to present evidence on the issue of
intent to kill because it was “irrelevant.”
Defense counsel immediately sought review of the trial court’s Carlos
ruling by filing a petition for writ of prohibition in the Court of Appeal, which was
summarily denied.9 This court denied review. Accordingly, the jury was not
instructed that defendant must have intended to kill Delores Clement in order to be
convicted of the felony-murder special circumstance.
This was error. While “Anderson has since been applied to appellants
convicted of pre-Carlos felony murder” (People v. Whitt (1990) 51 Cal.3d 620,
638), “[c]ases involving the felony-murder special circumstance committed after
Carlos but before Anderson . . . must apply the intent-to-kill requirement.
[Citation.]” (People v. Wharton, supra, 53 Cal.3d at p. 586, fn. 16.) As noted, this
murder occurred in the Carlos/Anderson window period. Both parties concede
that Carlos error occurred. They differ as to whether the failure to instruct the jury
on the intent-to-kill requirement mandates reversal of the special circumstance
findings and the judgment of death in this case. It does.
The determination of whether Carlos error is harmless “depends on
application of the harmless-beyond-a-reasonable-doubt standard of Chapman v.
California (1967) 386 U.S. 18, 24.” (People v. Osband (1996) 13 Cal.4th 622,
681 (Osband).) In other words, “error in failing to instruct that a special
circumstance contains a requirement of the intent to kill is harmless when ‘the
evidence of defendant’s intent to kill . . . was overwhelming, and the jury could
have had no reasonable doubt on that matter.’ ” (Ibid.)
Because the Court of Appeal summarily denied writ relief, its ruling does
not constitute law of the case. (Kowis v. Howard (1992) 3 Cal.4th 888, 897-901.)
Certainly, if the jury had considered whether defendant intended to kill
Clement and returned a finding of guilt, that verdict would have been supported by
substantial evidence. (See, e.g., People v. Hernandez (1988) 47 Cal.3d 315, 349
[strangulation “is indicative of at least a deliberate intent to kill”].) But the
evidence that defendant intended to kill Clement was not overwhelming. Rather,
the jury might have believed defendant’s claim that he did not intend to kill the
victim and that she was alive when he fled the scene of the crime.
strangling Clement, but asserted that she had
interrupted him while he was committing a burglary and he strangled her only to
prevent her from screaming. He denied having strangled her so she would not
report his crimes to the police, adding he just wanted “to get out.” He told the
police he used a pillow “not to suffocate her, just to wipe off her face.” Defendant
claimed the victim was alive when he left her, stating: “[S]he was just trying to –
like, catching her breath away. . . . [S]he was down and breathing.” Defendant
added, “I ran – I had to run back out before she – you know – I didn’t want her to
catch her breath and start screaming.” I just took off right after that ‘cause she
was just – when I went in there, she was just gasping for air.”
Defendant’s initial statements to detectives after his arrest are consistent
with his recorded statements. On cross-examination, Detective Parks agreed that,
in the police vehicle, defendant stated he just went in to commit a burglary, that he
had no intention to hurt anyone, and he just wanted to sneak in, take some money
and sneak out again. Detective Parks added that defendant told detectives that “he
The autopsy report is also consistent with defendant’s version of events.
The report listed the cause of death as asphyxia due to manual strangulation, to
wit, a lack of oxygen due to pressure applied to the neck. The report supported its
conclusion as to the cause of death by pointing to fractures to the victim’s hyoid
bone and thyroid cartilage. But the victim’s thyroid cartilage was fractured in a
manner that left it intact, and the medical examiner was unable to determine which
of the two fractures impeded the victim’s breathing. Rather, the medical examiner
testified that there was “probably a partial obstruction” to the victim’s breathing
passageway, and acknowledged that it was “very likely” that manual pressure was
removed from the neck, and the obstruction caused insufficient oxygen to reach
People v. Marshall (1997) 15 Cal.4th 1 (Marshall), we reversed a
felony-murder special-circumstance finding based upon Carlos error on similar
facts, holding that the evidence presented did not show beyond a reasonable doubt
that the defendant intended to kill the victim. We stated: “The pathologist . . .
testified (based on the report of another physician who had actually done the
autopsy and on photographs taken by others at the crime scene and the autopsy)
that the cause of [the victim’s] death was asphyxia caused by a combination of a
ligature gag and compression of the neck. On cross-examination, [the pathologist]
stated that it was possible for a person to die from a ligature gag alone and that
small bones in the neck that are often broken during manual strangulation were not
fractured in [the victim’s] neck. From this evidence the jury could reasonably have
found that defendant gagged [the victim] to quiet her screams for help, without an
intent to kill her, and that [the victim] choked to death on her gag.” (Marshall, 15
Cal.4th at p. 43.)
The evidence in the present case could support a finding that defendant
intended to kill the victim, but it also is consistent with defendant’s claim that he
was merely attempting to silence the victim’s screams. Accordingly, the evidence
of intent to kill is not overwhelming and the trial court’s error in failing to instruct
the jury that it must find intent to kill in order to find true the felony-murder
special circumstance was prejudicial. The cases in which we have concluded that
Carlos error was harmless are far different from the present case. (See, e.g.,
People v. Bolden (2002) 29 Cal.4th 515, 560-561 [single five-to-six-inch-deep
stab wound to back of apparently sleeping and helpless victim]; Osband, supra, 13
Cal.4th at pp. 681-682 [severe beating and deep stab wound in the neck of elderly
victim that severed carotid artery]; People v. Cudjo (1993) 6 Cal.4th 585, 630
[multiple blows to back and sides of head on helpless victim, fracturing the skull
and lacerating the brain]; People v. Johnson (1993) 6 Cal.4th 1, 46-47 [one victim
strangled to death with telephone wire and set afire; second victim beaten to death
by being kicked 10-12 times in the face and head].)
D. Refusal to Instruct on Involuntary Manslaughter
Defendant claims that the trial judge’s failure to instruct the jury on
involuntary manslaughter as a lesser included offense of first degree felony
murder, constitutes reversible error.10 We conclude that the trial judge properly
denied defendant’s request to give an involuntary manslaughter instruction. We
further conclude that even if the judge should have given such an instruction, the
failure to do so constitutes harmless error.
“[A] defendant has a constitutional right to have the jury determine every
material issue presented by the evidence [and] . . . an erroneous failure to instruct
on a lesser included offense constitutes a denial of that right . . . .” (People v.
Lewis (2001) 25 Cal.4th 610, 645.) However, a trial judge need not instruct the
jury as to all lesser included offenses, just those that find substantial support in the
Defendant requested CALJIC No. 8.47 (5th ed. 1988), which provides: “If
you find that a defendant, while unconscious as a result of voluntary intoxication,
killed another human being without intent to kill and without malice aforethought,
the crime is involuntary manslaughter. [¶] When a person voluntarily induces
[his] [her] own intoxication to the point of unconsciousness, [he] [she] assumes
the risk that while unconscious, [he] [she] will commit acts inherently dangerous
to human life or safety. Under such circumstances, the law implies criminal
evidence. (People v. Ochoa (1998) 19 Cal.4th 353, 422.) “ ‘Substantial evidence’
in this context is ‘ “evidence from which a jury composed of reasonable [persons]
could . . . conclude” ’ that the lesser offense, but not the greater, was
committed.” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
With these principles in mind, we turn to involuntary manslaughter.
“When a person renders himself or herself unconscious through voluntary
intoxication and kills in that state, the killing is attributed to his or her negligence
in self-intoxicating to that point, and is treated as involuntary manslaughter.”
(People v. Ochoa, supra, 19 Cal.4th at p. 423.) Unconsciousness does not mean
that the actor lies still and unresponsive. Instead, a person is deemed
“unconscious” if he or she committed the act without being conscious thereof. (Id.
at pp. 423-424.)
In the present case, defendant argues that the trial judge should have
instructed the jury as to the elements of involuntary manslaughter, because
defendant presented “substantial evidence” that he was “unconscious” when he
murdered the victim. Specifically, defendant claimed in the tape-recorded
interview that he ingested cocaine and drank alcohol the night he murdered the
victim. Defendant also claimed in the interview that while he was raping the
victim, he started thinking about what he was doing and stopped before he
No rational jury could have found defendant guilty of involuntary
manslaughter based on this evidence. First, during the tape-recorded confession,
defendant never claimed that his cocaine use rendered him “unconscious,” or
otherwise made him unaware of what he was doing. To the contrary, defendant
admitted that when he smokes cocaine, he is “never incoherent.” Moreover,
defendant was able to recount in great detail his actions on the night of the murder;
these details reveal that defendant was not only conscious, but calculating, alert
and methodical. For example, defendant described how he entered the victim’s
house by removing a screen, then climbing through the open window. After
entering, defendant searched for the victim’s purse without being detected by the
victim, who was in the house. When the victim entered the bedroom, defendant
hid in the closet because he calculated that he could not exit through the window
in time. Once the victim noticed defendant and began screaming, he had the
presence of mind to keep one hand over her mouth to silence her while he looked
through her purse with his other hand. He removed money from the victim’s
purse, and was able to recall the approximate amount of money as well as the
denominations. Defendant was able to draw a diagram of the location of the
victim’s house, and explain his movements once inside the house. Defendant even
described the victim in detail, down to the “pink,” “light color” of her “pajamas.”
The fact that defendant was able to describe the crimes in such detail, as
well as act in a cold, calculating manner during the crimes, clearly shows that no
reasonable jury could have found defendant guilty of involuntary manslaughter.
(See People v. Ochoa, 19 Cal.4th 353, 424.) The trial judge properly declined to
instruct the jury on involuntary manslaughter.
Even assuming that the trial court should have given the involuntary
intoxication instruction, any such error was harmless because the jury’s guilty
verdicts as to burglary and robbery compel the conclusion that the jury rejected
defendant’s argument that he was intoxicated to the point that he was unaware of
his acts. Specifically, the jury had been instructed that voluntary intoxication
could negate the specific intent required for robbery and burglary. In returning its
burglary and robbery verdicts, therefore, the jury necessarily rejected defendant’s
argument that his alleged intoxication affected his ability to commit the crimes.
“[I]n view of the actual verdict returned by the jury . . . there is no reasonable or
plausible basis for finding that the instructional error affected the jury’s verdict.”
(People v. Flood (1998) 18 Cal.4th 470, 505.)
E. Rape and Sodomy Instructional Errors
Defendant was charged with first degree felony murder, based on the theory
that he murdered Delores Clement during the commission of four different
felonies; robbery, burglary, rape, and sodomy. In explaining the elements of these
four underlying felonies to the jury, the trial court stated that the crimes of rape
and sodomy were general intent crimes. But to be convicted of felony murder, a
defendant must have the specific intent to commit one of the enumerated felonies,
even if the enumerated felony is a general intent crime, such as rape or sodomy.
(See, e.g., People v. Hernandez, supra, 47 Cal.3d at p. 346.) In such situations,
the prosecution must prove beyond a reasonable doubt that the defendant harbored
the specific intent to commit rape or sodomy. (Id. at p. 346, fn. 20.) However, the
jury was not so instructed. The Attorney General concedes that this was error.
Defendant argues the instructional error was prejudicial because there was
insufficient evidence of his specific intent to commit rape and sodomy.11
People v. Flood, supra, 18 Cal.4th 470, 504, we held that a “trial court’s
instructional error is amenable to harmless error analysis [when] it appears beyond
a reasonable doubt that the error did not contribute to the jury’s verdict.” We are
convinced beyond a reasonable doubt that the error here did not contribute to the
jury’s verdict. Defendant admitted raping and sodomizing Delores Clement after
he had gone through her purse and retrieved some money. The coroner added that
Clement had extensive lacerations to her anus and vagina caused by blunt force
In section F, we conclude the trial court erred when it instructed the jury it
could find defendant guilty of first degree felony murder using sodomy as the
predicate offense, but find this error harmless. That discussion subsumes
defendant’s claim of instructional error here with respect to sodomy and,
therefore, we confine our analysis to rape.
trauma. Defendant’s statement that he had not intended to rape Clement, but “just
got excited when he was holding onto her trying to keep her from screaming”
suggests he had not planned to rape Clement, not that the rape was unintentional.
In addition, we have found felony-murder instructional error to be harmless
where we could “determine from the record that the jury necessarily found
defendant guilty on a proper theory.” (Marshall, supra, 15 Cal.4th at p. 38.) In
Marshall, defendant contended that his felony-murder conviction had to be
reversed because it may have been based on an improper felony-murder theory
(robbery rather than rape). We disagreed and stated: “The jury found true the
special circumstance allegation that defendant killed [the victim] during the
attempted commission of a rape. Because a jury must unanimously agree that a
special circumstance finding is true (§ 190.4), and the jury in this case was so
instructed, the jury’s finding that defendant killed [the victim] in the course of
committing an attempted rape indicates that the jury unanimously found defendant
guilty of first degree murder on the valid theory that the killing occurred during
the attempted commission of a rape.” (Marshall, supra, 15 Cal.3d at p. 38.)
In the present case, the jury necessarily and unanimously found defendant
guilty of first degree murder on a proper felony-murder theory. Specifically, the
jury was correctly instructed that defendant must have had the specific intent to
commit robbery or burglary in order to be found guilty of first degree felony
murder,12 and it found true the felony-murder special circumstance that defendant
With respect to first degree felony murder, the judge gave the following
instruction: “In order to prove the commission of the crime of murder in this case,
each of the following elements must be proved: One, that a human being was
killed; Two, that the killing was unlawful and; Three, that the killing occurred
during the commission or attempt to commit a felony inherently dangerous to
human life. Robbery, burglary, rape and sodomy are felonies inherently
dangerous to human life. [¶] The unlawful killing of a human being, whether
intentionally, unintentional or accidental which occurs as a result of the
killed the victim during the course of a robbery and burglary. The jury was also
instructed that it must decide each special circumstance separately, which
“indicates that the jury unanimously found defendant guilty of first degree murder
on the valid theory that the killing occurred during the . . . commission of a
[robbery or burglary].” (Marshall, supra, 15 Cal.3d at p. 38.)
F. First Degree Felony Murder Based on Sodomy
Defendant correctly contends, and the Attorney General concedes, that the
trial court erroneously instructed the jury that it could find defendant guilty of first
degree felony murder based on the predicate felony of sodomy. In September
1984, when defendant murdered Delores Clement, “section 189 limited the types
of sex offenses that would support a conviction of first degree felony murder to
rape (§ 261) and lewd or lascivious acts with a child under the age of 14 years
(§ 288). Although murder committed in the course of a sodomy was a special
circumstance which, if found true, would support imposition of the death penalty,
a jury at the time could consider the sodomy special circumstance only after
finding defendant guilty of having committed first degree murder.” (People v.
Hart (1999) 20 Cal.4th 546, 580, fn. 2.)
This error was harmless. As noted above, Marshall teaches that if the trial
court erroneously instructs on felony murder, reversal is not required if there is a
basis in the record to conclude that the verdict was based on a valid theory of guilt.
(Marshall, supra, 15 Cal.4th at p. 38.) In the present case, the jury was correctly
commission or attempt to commit the crimes of robbery and burglary and where
there was in the mind of the perpetrator, the specific intent to commit such a
crime, is murder in the first degree. [¶] The specific intent to commit robbery or
burglary in the commission or attempt to commit such crimes must be proved
beyond a reasonable doubt. [¶] The unlawful killing of a human being, whether
or not intentional or accidental, which occurs as a result of the commission of or
attempt to commit the crimes of rape or sodomy, is murder in the first degree.”
instructed that defendant must have had the specific intent to commit robbery or
burglary in order to be found guilty of first degree felony murder, and it found true
the felony-murder special circumstance that defendant killed the victim during the
course of a robbery and burglary. The jury was instructed that it must decide each
special circumstance separately, which indicates that the jury unanimously found
defendant guilty of first degree murder on the valid theory that the killing occurred
during the commission of a robbery or burglary.
G. Inconsistent and Confusing Instructions
Defendant contends that the trial court erred by giving confusing,
conflicting and erroneous instructions to the jury with respect to the specific intent
requirements of robbery and burglary felony murder. The trial judge’s instructions
to the jury in this regard were the following: “In the crimes of murder, burglary
and robbery . . . a necessary element is the existence in the mind of the defendant
of the specific intent as included in the definitions of the crimes.” After a brief
sidebar conference, the judge said to the jury, “Now, the specific intent, there is a
specific intent required with respect to burglary or robbery. The reason the murder
count is included in this instruction, is that what the instruction means is basically
is that in order for you to find the felony murder based upon either – on the
burglary or the robbery, you must find the specific intent that is required for the
burglary or the robbery. Unless you find those specific intents for the burglary or
the robbery, you cannot find the defendant guilty of felony murder based on that
burglary or robbery.” The judge then proceeded to read the standard jury
instructions for first degree felony murder, robbery and burglary.
Defendant asserts that these instructions were erroneous and confusing
because the felony-murder rule requires that a defendant must have the specific
intent to commit one of the enumerated felonies (e.g., People v. Hernandez, supra,
47 Cal.3d at p. 346), which means that the defendant must harbor specific intent to
commit every element of burglary or robbery, not just the specific intent to steal.
The trial judge should have stated, defendant asserts, that the prosecutor needed to
prove defendant specifically intended to commit every element of the burglary and
robbery, as opposed to stating generally that the specific intent requirement for
felony murder is “the specific intent as included in the definitions of the crimes.”
Not so. We rejected this precise argument in People v. Pollock (2004) 32
Cal.4th 1153, 1175, stating: “Defendant argues that a specific intent to commit the
underlying felony means a specific intent to commit the crime as a whole or . . . to
commit each element of the underlying felony, and not merely the specific intent,
if any, that is required for the commission of the underlying felony. [¶]
Defendant is mistaken, at least as to underlying felonies that are specific intent
crimes. For felony murder in the commission of a robbery or of a burglary in
which entry is made for the purpose of theft, the only specific intent that the
prosecution must prove is the specific intent to steal the victim’s property, which
includes a specific intent to permanently deprive the victim of the property.
[Citation.] A defendant who has this specific intent has the only specific intent
required for liability under the felony-murder rule.” (See also People v. Visciotti
(1992) 2 Cal.4th 1, 56 [stating that intent to steal is the only mental state relevant
to felony murder in the commission of robbery].)
The trial judge’s instructions, therefore, were neither erroneous nor
confusing in this regard. Further, the clarification after the sidebar conference
appropriately reminded the jury that in order to convict defendant of felony
murder, it must find that he had the requisite specific intent required for either
robbery or burglary. The judge then properly listed the specific intent
requirements for those crimes. Thus, the jury deliberated and reached a verdict
with the proper understanding of the specific intent requirements.
H. Reversal Due to Cumulative Instructional Errors
Defendant next contends that his convictions should be reversed because
even assuming that no single error was prejudicial, the errors considered in total
add up to a degree of prejudice requiring reversal. However, because none of the
instructional errors in fact prejudiced defendant, his argument for cumulative
prejudice must fail.
We affirm defendant’s convictions for first degree murder, robbery,
burglary, rape, and sodomy. The felony-murder special-circumstance findings are
set aside, and the judgment of death is reversed.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Haley
Original Appeal XXX
Opinion No. S007531
Date Filed: August 26, 2004
County: Los Angeles
Judge: Judith C. Chirlin
Attorneys for Appellant:
Amitai Schwartz, under appointment by the Supreme Court, Elizabeth S. Letcher and Monique Olivier for
Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys General, William T.
Harter, Susan L. Frierson, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Law Offices of Amitai Schwartz
806 Hearst Avenue
Berkeley, CA 94710-2018
Sharlene A. Honnaka
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Sharlene A. Honnaka, Deputy Attorney General
300 South Spring Street, 5th Floor
Los Angeles, CA
|2||Haley, Kevin Bernard (Appellant)|
Represented by Amitai Schwartz
Law Offices Of Amitai Schwartz
2000 Powell Street, Suite 1286
|Aug 26 2004||Opinion: Conviction aff., special circs reversed|
|Oct 3 1988||Judgment of death|
|Oct 14 1988||Filed certified copy of Judgment of Death Rendered|
|Jun 13 1989||Counsel appointment order filed|
Amitai Schwartz, Esq.
|Sep 22 1989||Application for Extension of Time filed|
By Applt to request correction of Record.
|Sep 25 1989||Extension of Time application Granted|
To Applt To 12-1-89 To request Corr. of Record.
|Nov 20 1989||Application for Extension of Time filed|
By Applt to request correction of Record.
|Nov 21 1989||Extension of Time application Granted|
To Applt To 12-11-89 To request Corr. of Record.
|Feb 21 1990||Compensation awarded counsel|
|Jun 6 1990||Compensation awarded counsel|
|Aug 15 1990||Compensation awarded counsel|
|Dec 19 1990||Compensation awarded counsel|
|Jun 26 1991||Change of Address filed for:|
Resp Atty General.
|Jun 16 1993||Filed:|
appellant's application for appointment of associate counsel.
|Jun 18 1993||Compensation awarded counsel|
|Jun 22 1993||Filed:|
letter from attorney Amitai Schwartz withdrawing appellant's application for for appointment of associate counsel (filed 6-16-93).
|Jul 13 1993||Application for Extension of Time filed|
by appellant to prepare and submit settled statement.
|Jul 14 1993||Extension of Time application Denied|
The application of appellant for an extension of time to prepare and submit settled statement is DENIED.
|Jul 14 1993||Letter sent to:|
appellant re: 7-14-93 order: counsel may deliver to the trial judge, within the time specified by Calif. Rules of Court, rule 36(b), such settled statement as may presently be prepared, with a request for a hearing on the matter.
|Jul 21 1993||Compensation awarded counsel|
|Aug 17 1994||Compensation awarded counsel|
|Sep 14 1994||Compensation awarded counsel|
|Mar 23 1999||Record on appeal filed|
C-20 (4,626 Pp.) and R-88 (8,002 Pp.) (Including Material Under Seal). Clerk's Transcript includes 872 pages of Juror Questionnaires.
|Mar 23 1999||Appellant's opening brief letter sent, due:|
|Apr 21 1999||Application for Extension of Time filed|
By Applt to file AOB
|Apr 23 1999||Extension of Time application Granted|
To 7-2-99 To file AOB
|Jun 1 1999||Compensation awarded counsel|
|Jun 15 1999||Application for Extension of Time filed|
To file Aob.
|Jun 18 1999||Extension of Time application Granted|
To 8-31-99 To file AOB
|Aug 19 1999||Application for Extension of Time filed|
To file Aob.
|Aug 20 1999||Extension of Time application Granted|
To 11/1/99 To file Aob.
|Oct 15 1999||Application for Extension of Time filed|
To file Aob.
|Oct 18 1999||Extension of Time application Granted|
T0 12/31/99 to file Aob.
|Dec 21 1999||Application for Extension of Time filed|
To file Aob.
|Dec 30 1999||Extension of Time application Granted|
To 1/31/2000 To file Aob.
|Jan 24 2000||Application for Extension of Time filed|
To file Aob.
|Jan 26 2000||Extension of Time application Granted|
To 2/18/2000 To file Aob.
|Feb 18 2000||Filed:|
Applt's Application for Leave to file AOB in Excess of 280 pages
|Feb 22 2000||Order filed:|
Applt's Appl. for Leave to file AOB in Excess of 280 pages Is Granted.
|Feb 22 2000||Appellant's opening brief filed|
|Mar 6 2000||Filed:|
Confidential Declaration of Atty Amitai Schwartz
|Mar 8 2000||Compensation awarded counsel|
|Mar 16 2000||Application for Extension of Time filed|
To file Respondent's brief.
|Mar 21 2000||Extension of Time application Granted|
To 5/22/2000 To file Resp's brief.
|Mar 31 2000||Change of Address filed for:|
Atty Amitai Schwartz
|Apr 6 2000||Filed letter from:|
Applt (Pro Se) dated 4/2/2000
|Apr 19 2000||Order filed:|
Appellant's motion to relieve appointed counsel and appoint new counsel in his place, filed on 4-5-2000, is denied.
|May 18 2000||Application for Extension of Time filed|
To file Resp's brief.
|May 22 2000||Extension of Time application Granted|
To 7-21-2000 To file Resp's brief.
|Jul 14 2000||Application for Extension of Time filed|
to file resp's brief (third request)
|Jul 20 2000||Extension of Time application Granted|
To 9/19/2000 to file resp's brief.
|Sep 15 2000||Application for Extension of Time filed|
To file resp's brief. (4th request)
|Sep 20 2000||Extension of Time application Granted|
To 11/20/2000 to file resp's brief.
|Oct 27 2000||Counsel's status report received (confidential)|
|Nov 15 2000||Application for Extension of Time filed|
To file resp's brief. (5th request)
|Nov 21 2000||Extension of Time application Granted|
To 1/19/2001 to file resp's brief. No further ext. of time are contemplated.
|Dec 4 2000||Counsel's status report received (confidential)|
|Jan 12 2001||Application for Extension of Time filed|
To file resp's brief (6th request)
|Jan 22 2001||Extension of Time application Granted|
To 3/20/2001 to file resp's brief. No further ext. of time will be granted.
|Jan 30 2001||Counsel's status report received (confidential)|
|Mar 16 2001||Rehearing petition filed|
|Apr 2 2001||Counsel's status report received (confidential)|
|Apr 2 2001||Application for Extension of Time filed|
To file Reply Brief. (1st request)
|Apr 6 2001||Extension of Time application Granted|
To 6/4/2001 to file reply brief.
|May 29 2001||Application for Extension of Time filed|
To file reply brief. (2nd request)
|May 31 2001||Extension of Time application Granted|
To 7/19/2001 to file reply brief.
|Jul 13 2001||Application for Extension of Time filed|
To file reply brief. (3rd request)
|Jul 17 2001||Extension of Time application Granted|
To 8/20/2001 to file reply brief.
|Aug 13 2001||Application for Extension of Time filed|
To file reply brief. (4th request)
|Aug 15 2001||Filed:|
Supplemental declaration in support of application for extension of time to file reply brief.
|Aug 20 2001||Extension of Time application Granted|
To 9/19/2001 to file reply brief. No further extensions of time are contemplated.
|Sep 19 2001||Appellant's reply brief filed|
|Oct 9 2001||Filed:|
Notice of erratta, dated 10/3/2001, regarding resp.'s brief filed 3/16/2001.
|Jan 31 2002||Filed:|
Declaration from counsel pursuant to fixed fee payment guideline. (confidential)
|Feb 4 2002||Compensation awarded counsel|
|Feb 15 2002||Filed:|
Second notice of errata, dated 2/15/2002, re respondent's brief filed 3/16/2001.
|Feb 22 2002||Compensation awarded counsel|
|Apr 8 2002||Change of Address filed for:|
applt. counsel Amitai Schwartz.
|Apr 10 2002||Filed:|
Supplemental notice of change of address filed by applt. counsel Amitai Schwartz.
|Dec 9 2002||Received letter from:|
atty Schwartz, dated 12-5-2002, requesting that oral argument not be scheduled during second week of February or during first or second week of March, 2003.
|Jul 3 2003||Received letter from:|
atty Schwartz, dated 7-2-2003, requesting that the court not set oral argument during the first two weeks of Oct. 2003.
|Jan 16 2004||Exhibit(s) lodged|
People's exhibit #36 (audio tape).
|Feb 27 2004||Received:|
letter from attorney Amitai Schwartz, dated 2-25-2004, advising of his vacation plans, and requesting that court not set oral argument for the June calendar on or after June 3, 2004.
|Mar 26 2004||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 24, 2004, in San Francisco, or for the June calendar, to be held the week of June 1 in Los Angeles. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument.
|Apr 28 2004||Case ordered on calendar|
6-1-04, 2pm, L.A.
|May 7 2004||Filed letter from:|
Appellant's counsel Amitai Schwartz, dated 5/5/2004, re focus issues for oral argument.
|May 7 2004||Filed letter from:|
Appellant's counsel Amitai Schwartz, dated 5/5/2004, requesting 45 minutes for oral argument.
|May 7 2004||Filed letter from:|
respondent's counsel, Sharlene Honnaka, re: issues to be focused on at O/A, June 1, 2004.
|May 10 2004||Order filed|
The request of attorney Amitai Schwartz for 45 minutes to argue on behalf of appellant is granted.
|May 14 2004||Filed:|
appellant's application for leave to file supplemental brief. (brief submitted under separate cover)
|May 17 2004||Supplemental brief filed|
by appellant. (23 pp.)
|May 17 2004||Order filed|
Appellant's "Application for Leave to File Supplemental Brief in Excess of 2800 Words" is granted. Any response by respondent should be served and filed on or before May 25, 2004.
|May 25 2004||Filed:|
response to appellant's supplemental brief. (10 pp.)
|Jun 1 2004||Cause argued and submitted|
|Jun 9 2004||Compensation awarded counsel|
|Aug 26 2004||Opinion filed: Conviction affirmed, special circs reversed|
OPINION BY: Moreno, J. --- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, Brown,JJ.
|Sep 28 2004||Remittitur issued (AA)|
|Sep 28 2004||Exhibit(s) returned|
to superior court. (People's no. 36)
|Oct 4 2004||Received:|
acknowledgment of receipt of exhibits.
|Oct 4 2004||Received:|
acknowledgment of receipt of remittitur.
|Feb 22 2000||Appellant's opening brief filed|
|Sep 19 2001||Appellant's reply brief filed|