Citation 43 Cal. 4th 1269, 185 P.3d 727, 78 Cal. Rptr. 3d 295
People v. Harris
Filed 6/19/08
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S037625
v.
LANELL CRAIG HARRIS,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. LA008803
(Bert Glennon, Jr.)
A jury sentenced defendant Lanell Craig Harris to death after finding him
guilty of first degree murder during the commission of a robbery, attempted
murder, and three counts of robbery, all with personal use of a firearm.1 The jury
hung on another murder charge, and on whether the attempted murder was
premeditated. This appeal is automatic. We affirm the judgment.
I. FACTS
The facts may be briefly stated for background purposes; further details and
procedural matters will be discussed in connection with defendant’s contentions.
A.
Guilt Phase
1. Prosecution
a. The Contreras Murder
On the evening of August 7, 1991, defendant approached a group of men
gathered in a grassy area of the Van Nuys Recreational Center. Defendant asked
1 Penal Code sections 187, subdivision (a), 190.2, subdivision (a)(17), 664,
211, 1203.06, subdivision (a)(1), and 12022.5, subdivision (a). Further statutory
references are to the Penal Code, unless otherwise specified.
1
if they had drugs to sell; when they said no, he offered to sell them a camera. No
one wanted the camera. When one of the men offered defendant a cup of soup, he
became angry and knocked the cup to the ground. Another man, Alfredo Calleros,
saw defendant try to pull up a large pipe that was partially buried in the ground.
Calleros picked up a milk crate and prepared to throw it at defendant. Defendant
left, saying he would be back.
Defendant returned with another man about 15 minutes later. He
approached Calleros and tried to shoot him, but the handgun misfired. As Calleros
ran, defendant pointed the gun skyward and pulled the trigger. This time it fired.
Most of the men in the area fled, but a group playing cards remained. Defendant
and his companion approached them. Defendant aimed the gun at Efren Reyes’s
head and took money from his pocket. Defendant’s companion took money from
Reynaldo Villatoro.
Defendant approached Julian Contreras and reached for his wallet. When
Contreras resisted, defendant shot him in the thigh. Contreras fell and defendant
shot him twice more in the back. Defendant took Contreras’s wallet and left with
his companion. Contreras died at the hospital.
b. The Rodriguez Murder
The murder charge on which the jury was unable to reach a verdict arose
from events in January 1991 in Los Angeles. On the night of January 2, Alba
Rodriguez went with her mother Marta to a Winchell’s donut shop where Marta
worked. Around midnight, Marta left to get supplies from another store. She
returned and tapped on the door, signaling Alba to open it. As Alba approached
the door, she saw defendant standing at the service window. The door was stuck
closed; Marta told Alba to wait on the customer. Alba noticed that defendant had
trouble speaking when he gave his order. While Alba was preparing the order, she
heard her mother scream. Alba ran to the door and saw Marta struggling with
defendant, who had a butcher knife. There was blood on her mother’s chest. Alba
unsuccessfully tried to open the door. Marta twice told her to call the police. As
2
she went to the telephone, Alba saw defendant leaving. While she was making the
phone call, Marta came through the door, collapsed, and died.
Marta had a stab wound on the left side of her chest, four inches deep,
which cut through a piece of one rib and completely through her heart. She also
had a wound on her left forearm, which the medical examiner characterized as a
typical defensive wound.
2. Defense
Defendant presented an alibi defense to the Contreras murder. His wife,
Lucinda Harris, testified that she and defendant spent the entire afternoon and
evening together. They visited Lucinda’s parents, went to a pool hall for about an
hour, and then to Lucinda’s apartment, arriving around 8:30 or 9:00 p.m. They
drank some beer, and Lucinda took a bath. She could hear defendant talking on
the telephone as she bathed. He did not leave her apartment that night.
The defense called no witnesses regarding the Rodriguez murder.
B.
Penalty Phase
1. Prosecution
Contreras’s son and daughter testified about the impact his killing had on
them and their family.
The court took judicial notice of defendant’s six prior convictions, all
resulting from pleas of guilty or no contest: (1) a residential burglary on
November 21, 1984; (2) an assault with a deadly weapon or force likely to
produce great bodily injury on December 16, 1984; (3) a first degree robbery on
December 16, 1984; (4) an assault with a deadly weapon that resulted in the
intentional infliction of great bodily injury on December 17, 1984; (5) a second
degree robbery on December 17, 1984; and (6) an escape from police officers on
December 18, 1984.
The prosecution presented witnesses to three incidents of defendant’s
uncharged criminal activity. William Scott testified that on August 21, 1979,
when he was in high school, he was approached by three young men as he was
3
leaving a store. One of them was defendant, who appeared to be about 16 years
old. They commented on Scott’s bicycle, an expensive racing model, and
defendant asked if he wanted to trade it for an inferior bicycle. When Scott
refused, defendant hit him in the windpipe without warning and left with Scott’s
bicycle. On the morning of his testimony, Scott was unable to identify defendant
from a group of six photos, but when shown a single larger picture he recognized
defendant as the person who had hit him.
In 1982, Christopher Stokes and Louie Magdaleno were employed as police
officers for the Los Angeles Unified School District. On December 7 of that year,
Stokes detained defendant, then a student, near the auditorium at San Fernando
High School. He brought defendant in handcuffs to the security office and sat him
in a room with Magdaleno. Defendant appeared to be under the influence of
drugs. Stokes went to an adjacent office, where he heard defendant yelling threats
at Magdaleno. Defendant demanded to know why he was there, and threatened to
kill Magdaleno. Stokes reentered the room, and defendant threatened to kill him
and his wife, saying he knew where they lived, or could find out. He was
“screaming and yelling,” and “had spit coming out of his mouth, a lot of foam and
mucous from his nose.” Defendant began to walk toward Magdaleno, who
subdued him with the assistance of two Los Angeles police officers. Shortly
thereafter, defendant tried to walk out the door, and a scuffle ensued. Defendant
was sprayed with Mace but continued struggling for five or 10 minutes. Both
officers took defendant’s threats seriously. Stokes had 24-hour police protection
at his house, and Magdaleno stayed away from his home for the rest of the week.
Jerome Van Tress testified that he was a Frito Lay salesman in 1984. Early
on the morning of December 17, he drove to a 7-Eleven store in Pacoima.
Looking inside, he saw someone throwing the clerk, who was a small man, from
one end of the counter to the other. Van Tress drove to a police station and
reported the attack. Returning to the 7-Eleven, he saw several police cars. The
clerk was being taken to an ambulance; there was blood on the floor of the store
4
and on the sidewalk outside. Van Tress identified defendant as the assailant.
Detective Richard Knapp of the Los Angeles Police Department testified that he
investigated the 7-Eleven robbery. Following a lead, he and a detective went to an
apartment across the street, where a woman answered the door. Knapp saw
defendant lying on the floor inside, with a bloody folding knife on a table next to
him. The jury was told that this incident led to defendant’s conviction of robbery
and assault with a deadly weapon, and that he admitted intentionally inflicting
great bodily injury on the 7-Eleven clerk.
2. Defense
At the penalty phase, defendant’s stepmother Doris Harris testified about
his experiences growing up, particularly his troubled relationship with his father.
Dr. Robert White, a psychologist hired by the defense, interviewed defendant
seven or eight times, and concluded that defendant suffered from chronic severe
depression. Dr. White related traumatic events in defendant’s life as well as his
positive behavior in structured settings, like prison. Sonja Fox, a chaplain at a
probation camp for juveniles, testified about her favorable impression of
defendant’s conduct during a six-month stay at the camp. Defendant’s football
coach in junior college, Charles Ferrero, testified that he was a positive influence
on the team. Christine Branich, a correctional officer from Folsom, testified that
defendant was a good worker and a good influence on other inmates while serving
a prison term beginning in 1987. A deputy sheriff at the Los Angeles Central Jail,
Jeffrey Creager, testified that while defendant was in custody in 1993, the year of
the trial in this case, he was chosen as a trusty inmate worker, and had helped
rescue another inmate who attempted suicide.
II. DISCUSSION
A.
The Adequacy of the Record
Defendant challenges the adequacy of the appellate record in a number of
respects. He initiated lengthy proceedings below to correct and augment the
5
record, which resulted in three settled statements designating omissions that could
not be rectified.
“[S]tate law entitles a defendant only to an appellate record ‘adequate to
permit [him or her] to argue’ the points raised in the appeal. [Citation.] Federal
constitutional requirements are similar. The due process and equal protection
clauses of the Fourteenth Amendment require the state to furnish an indigent
defendant with a record sufficient to permit adequate and effective appellate
review. [Citations.] Similarly, the Eighth Amendment requires reversal only
where the record is so deficient as to create a substantial risk the death penalty is
being imposed in an arbitrary and capricious manner. [Citation.] The defendant
has the burden of showing the record is inadequate to permit meaningful appellate
review. [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 857-858; see also
People v. Rundle (2008) 43 Cal.4th 76, 110-111.)
Defendant urges us to reconsider our rule placing on the appellant the
burden of demonstrating that the record is so inadequate as to frustrate meaningful
review. He argues that he should not be required to speculate about issues that
might have arisen from missing parts of the record, and that an incomplete record
amounts to a structural defect requiring reversal without a specific showing of
prejudice. Certainly a substantially defective record could amount to such a
structural defect, but it remains the appellant’s burden to make that showing.
Defendant fails to do so here.
Defendant complains about a number of items in the first settled statement
that are not typically reflected in an appellate record, so that their omission cannot
be said to be an obstacle to review absent some special circumstance. These
include physical gestures by witnesses during testimony and by the prosecutor
during argument; charts referred to by counsel during the course of argument but
not entered into the record as exhibits; the identities of jurors whose comments or
questions were recorded by the reporter or whose actions were otherwise
described in the transcript; the specific portions of a witness’s taped statement that
6
were played for the jury during closing argument; and the circumstances
surrounding notes sent by the jury during its deliberations (i.e., why only certain
portions of a witness’s testimony were read back to the jury, exactly when the
court received a note, and when or how counsel agreed to a response). A
defendant must rely on counsel to make items like these a part of the record if they
have some significance regarding a potential appellate issue.
Defendant
also
contends that various off-the-record discussions deprived
him of his right to a complete record. Section 190.9 requires “all proceedings”
during trial to be transcribed in a capital case. This requirement does not include
“private conferences between defense counsel and defendant, or among counsel
and cocounsel or their witnesses.” (People v. Samayoa (1997) 15 Cal.4th 795,
820.) Here, the record does not reflect the nature of the discussions in question.
Although the failure to transcribe them may have been a violation of section
190.9, it gives rise to no presumption of prejudice. Defendant must demonstrate
that the omissions deprive him of meaningful appellate review. (People v. Hinton
(2006) 37 Cal.4th 839, 919.) He makes no effort to do so, failing to analyze the
context of the “off the record” references in the reporter’s transcripts. In each
instance counsel and the court were unable to recall the substance of the
discussions. Thus, the likelihood is that they involved either private discussions,
routine issues of scheduling and the like, or other matters that would not affect our
review.2
The second settled statement concerned four pretrial hearings in municipal
court that were not recorded. Neither the court nor counsel could recall these
hearings, which should have been reported under section 190.9. (See People v.
2
Defendant notes that one unrecorded discussion involved a juror.
Although the settled statement states that the court and counsel could not recall
any prior discussion with the juror, the juror was questioned on the record about
her off-the-record contact with the court. It is clear from the transcript that the
contact was a phone call from the juror to report her personal experience with a
location discussed in a witness’s testimony. The matter was fully explored by the
court and counsel on the record.
7
Freeman (1994) 8 Cal.4th 450, 509.) Clerks’ transcripts reflect the subject matter
of each of these hearings, however. Defendant does not analyze these transcripts
or make any effort to discuss how the absence of reporters’ transcripts affects his
right to meaningful review, other than to complain that he lacks the information
they would have provided. He fails to show prejudice. (People v. Hinton, supra,
37 Cal.4th at p. 919.)
The third settled statement reveals that the prosecutor and defense counsel
submitted lists of proposed jury instructions at both the guilt and penalty phases,
neither of which could be located by the clerk’s office for inclusion in the record.
The attorneys could not find the originals or copies of these lists. Furthermore, the
court was unable to ascertain if it had compiled a list of the instructions it rejected;
if such a list existed, its content could not be settled. Defendant argues that
without knowing which of his proposed instructions were refused by the court, his
appellate counsel cannot provide him effective assistance and there can be no
meaningful review of the guilt and special circumstance verdicts.
As to the guilt phase instructions, the record includes lengthy discussions
between the court and counsel on substance and terms. Defendant makes no
attempt to detail how these discussions are insufficient for our review. He merely
asserts that in many instances, which he does not specify, it cannot be discerned
which party requested the instruction being discussed, or what it was the trial court
refused to adopt. This assertion is insufficient to establish an inadequate record.
Defense counsel stated on the record that he had gone over all the modifications
worked out by the court and counsel, and had no further changes or deletions to
suggest. Counsel raised no omissions from the guilt phase instructions in his
motion for a new trial. Appellate counsel has raised a number of guilt phase
instructional issues, which are addressed below. The lack of a written list of
proposed instructions, and of instructions refused, does not appear to have
hindered this effort.
8
Regarding the penalty phase, defendant acknowledges that the court read
into the record all but one of the six special instructions his counsel submitted. He
contends the contents of the omitted instruction cannot be ascertained. However,
the court and counsel discussed this instruction, which concerned mitigating
factors, in sufficient detail that it is clear defendant was not entitled to have it read
to the jury. The prosecutor objected to the instruction because it singled out
particular incidents and identified them as mitigating factors, when they could also
be viewed as aggravating. The court noted that the instruction tended to “pinpoint
certain pieces of evidence and not pinpoint others.” Defense counsel argued that
the instruction properly allowed the jurors to consider the incidents in mitigation
“if you find they so apply.” The prosecutor responded that if the instruction were
given, she would in turn be entitled to a pinpoint instruction on every aggravating
factor shown by the penalty phase evidence. The court concluded that the
substance of the instruction was appropriate for argument, but not for instruction.
We have frequently ruled that instructions providing a partial list of
mitigating factors, with reference to particular items of evidence, are improper.
(See, e.g., People v. Cook (2007) 40 Cal.4th 1334, 1364, and cases therein cited.)
Defendant establishes no likelihood that the absence of a written record of his
proposed special instruction has prevented his counsel from effectively evaluating
the denial of this instruction as a possibly meritorious claim on appeal.
The second item on the third settled statement is a proposed questionnaire
given by the trial court to counsel before jury selection, with a request for their
suggestions. The clerk was unable to locate this document. Defendant mentions
this omission but makes no effort to demonstrate how it might affect his right to
meaningful appellate review. The third settled statement also notes that defense
counsel’s proposed additional questions for the jury questionnaire could not be
found by the clerk or by counsel. Defendant again fails to develop any argument
as to how the lack of this document has hampered appellate review.
9
Next, the third settled statement states that during jury selection, the court
provided written questions to a group of male jurors regarding a remark by one
prospective juror to the effect that “we’ll give him a fair trial and then we’ll hang
him.” The comment was made to the court clerk, who was unable to identify the
juror. The court and counsel devoted some time to investigating which
prospective juror made the remark, and the man who was generally agreed to be
the most likely suspect was eventually excused. Although the settled statement
declares that the questions given to the jurors on this subject could not be found or
reconstructed, the court in fact read the questions aloud to the group of jurors, and
they were transcribed by the reporter. Thus, defendant has suffered no prejudice
from the absence of the document itself.
Finally, the third settled statement states that neither the clerk nor counsel
were able to locate copies of letters given by defense counsel to the clerk to be
mailed to four jurors after trial, in connection with defendant’s motion for a new
trial. Defendant speculates that the content of these letters may have prevented
him from establishing the basis for obtaining a new trial. Any such possibility
appears remote indeed, and furnishes no ground for deeming the record
inadequate.
We emphasize, once again, that trial courts should take care to avoid off-
the-record discussions in capital cases, and to comply with section 190.9 in all
respects. (People v. Freeman, supra, 8 Cal.4th at p. 511.) Maintaining the
documentary record is equally important. (See § 190.7.) These measures not only
assure an adequate appellate record, but also obviate the burden of settling the
record. (Freeman, at p. 511.) Human affairs being what they are, however,
perfect records are not always achieved. Appellants must do more than merely
complain about omissions; they must demonstrate that the record is insufficient for
meaningful appellate review. (People v. Rogers, supra, 39 Cal.4th at pp. 857-
858.) The significance of missing items must be analyzed with reference to what
10
is reflected by the record. Here, defendant fails to establish that the omissions he
notes resulted in a record so deficient as to make the appellate process unreliable.
B.
The Questioning of Reyes
Defendant contends the prosecutor improperly led her witness, Efren
Reyes, into an in-court identification. Reyes testified with the assistance of an
interpreter. Near the beginning of his testimony, the prosecutor established that
Reyes had been one of the card players at the scene of Contreras’s murder, and
that the assailant had been a Black male. The prosecutor then asked if Reyes saw
that person in the courtroom. Reyes said “no.” The following exchange ensued:
“Q. All right. You don’t see the person present in court today? Did you
look in this part of the courtroom here?
“A. No.
“Q. Not in the audience; did you look up here also? No. I mean up here in
the front.
“A. Yes. At a court date that I came before, and I testified, and he was
here.
“Q. All right. And the person that was there when you came to court the
first time, does he look anything like the gentleman that’s sitting at this table
second from the end?
“[Defense counsel]: Objection.
“THE COURT: Overruled.
“THE WITNESS: Oh, yes, yes. It’s him; it’s him.”
The prosecutor elicited the following explanation from Reyes for his failure
to see defendant at first:
“A. . . . I was looking on this side. I didn’t look on the other side.
“THE COURT: Pointing to the jury, for the record.
“Q. [By the prosecutor]: Is the computer on the judge’s bench blocking
your view of that end of the table?
“A. Yes. This is, right here. That’s why I didn’t see him.
11
“Q. Okay. Indicating for the record, he’s pointing?
“THE COURT: The computer monitor on top of the bench.”
Defendant
claims
the
prosecutor’s
leading questions violated Evidence
Code section 767, subdivision (a)(1), as well as various constitutional rights.3 The
Attorney General correctly responds that the questioning of Reyes was proper
under the circumstances. “A ‘leading question’ is a question that suggests to the
witness the answer that the examining party desires.” (Evid. Code, § 764.)
Questions calling for a “yes” or “no” answer are not leading unless they are
unduly suggestive under the circumstances. (People v. Williams (1997) 16 Cal.4th
635, 672; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 165, pp.
229-230.) Furthermore, leading questions are not always impermissible on direct
examination. “Evidence Code section 767, subdivision (a)(1), provides that
leading questions ‘may not be asked of a witness on direct or redirect
examination’ except in ‘special circumstances where the interests of justice
3
Here, as elsewhere, defendant asserts violation of his federal
constitutional rights to due process under the Fourteenth Amendment, a fair trial
by jury under the Sixth and Fourteenth Amendments, and a reliable determination
of guilt in a capital case under the Eighth and Fourteenth Amendments. The
Attorney General contends these claims are waived because defendant did not
identify his constitutional objections below.
What we stated in People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17,
applies here: “In most instances, insofar as defendant raised the issue at all in the
trial court, he failed explicitly to make some or all of the constitutional arguments
he now advances. In each instance, unless otherwise indicated, it appears that
either (1) the appellate claim is of a kind (e.g., failure to instruct sua sponte;
erroneous instruction affecting defendant’s substantial rights) that required no trial
court action by the defendant to preserve it, or (2) the new arguments do not
invoke facts or legal standards different from those the trial court itself was asked
to apply, but merely assert that the trial court’s act or omission, insofar as wrong
for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution. To that extent, defendant’s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”
12
otherwise require.’ Trial courts have broad discretion to decide when such special
circumstances are present. [Citations.]” (Williams, at p. 672.)
Here, the court did not abuse its discretion by permitting the prosecutor to
direct Reyes’s attention toward defendant’s location in the courtroom, even if her
questions were leading. Reyes was evidently unable to see defendant from the
witness chair because a computer monitor was in his line of sight. He looked
around those parts of the courtroom he could see, initially searching the audience
and then the jury box. Moreover, the possibility of improper suggestion was
remote. Reyes had already identified defendant at the preliminary hearing, and
before that picked him out of a live lineup of six persons during the police
investigation. Under these circumstances, defense counsel’s objection was
properly overruled.
C.
The Denial of the Motion for Acquittal on the Rodriguez Murder
After the prosecution rested, defense counsel moved for a judgment of
acquittal as to the charge of first degree murder of Marta Rodriguez, contending
there was no evidence of deliberation or premeditation. The prosecutor responded
that during the time defendant waited to place his order with Alba Rodriguez at the
Winchell’s window, and after he placed the order, he had sufficient time to
deliberate and choose to kill before confronting Marta at the door. The court
denied the motion, finding “sufficient evidence to allow the jury to decide the
issue.” The jury divided 10 to 2 on this charge, failing to agree on the issue of
guilt in the first instance, not on the degree of the crime.
Defendant argues that while the jury was unable to reach a verdict on the
Rodriguez murder, the trial court’s denial of his motion for acquittal leaves him
open to retrial for first degree murder. This is so. (See Smith v. Massachusetts
(2005) 543 U.S. 462, 466-467; People v. Lagunas (1994) 8 Cal.4th 1030, 1039,
fn.6; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 140, p.
488.) The Attorney General contends the trial court properly denied the motion
for acquittal, noting the evidence that (1) defendant was armed with a butcher
13
knife in the early morning hours, a time when few witnesses were likely to be
present; (2) Marta was stabbed in the left side of her chest with enough force for
the knife to completely penetrate her heart; and (3) there was more than enough
time for defendant to premeditate a killing while he stood at the service window.
On a motion for judgment of acquittal under section 1118.1, the trial court
applies the same standard as an appellate court reviewing the sufficiency of the
evidence. The court must consider whether there is any substantial evidence of the
existence of each element of the offense charged, sufficient for a reasonable trier
of fact to find the defendant guilty beyond a reasonable doubt. (People v. Cole
(2004) 33 Cal.4th 1158, 1212-1213.) We independently review the trial court’s
ruling. (Id. at p. 1213.) Here, defendant challenges only the sufficiency of the
evidence of deliberation and premeditation.
“A verdict of deliberate and premeditated first degree murder requires more
than a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful
weighing of considerations in forming a course of action; ‘premeditation’ means
thought over in advance. [Citations.] ‘The process of premeditation does not
require any extended period of time. “The true test is not the duration of time as
much as it is the extent of the reflection. Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly. . . .”
[Citations.]’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
Here, defendant was armed with a knife and stabbed Rodriguez without
provocation directly in the heart with enough force to penetrate part of a rib and
pierce entirely through the heart. In the time it took for Alba to go from the door
to the service window, and to take and prepare defendant’s order, there was ample
time for him to deliberate and premeditate before attacking Marta. Under these
circumstances, we cannot say the jury could not reasonably have found defendant
guilty of first degree murder.
14
D.
The Evidence of Threats Against Robert James
1. Background
Robert James was the grandson of Doris Harris, defendant’s stepmother.
On October 17, 1991, a week after defendant was arrested, James gave a taped
interview to police detectives. He told them that on September 23, he had walked
by the park in Van Nuys with defendant. James wanted to play basketball, but
defendant saw some Mexicans in the area and said they had to leave, “[c]ause . . . I
blasted this fool in the park, and there go some of his homeboys.” James said
defendant later explained that he had seen some Mexicans gambling, went home
to get his gun, and returned to the park with another person. They confronted the
Mexicans and asked for money, “then the sewer rat jumped up and I shot him.”
Defendant’s term for Mexicans was “sewer rat.”
At trial, although James went over his taped statement with the prosecutor
in the morning on the day he testified, by the afternoon he could recall very little
of what he had told the detectives. After his testimony, the prosecutor learned
from a detective who drove James home that James had been threatened by
defendant’s sister during the lunch break. The prosecutor wanted the detective to
testify, so that the jury could evaluate the discrepancy between James’s statements
in court and those on the tape, which would be played for the jury. Defense
counsel objected, arguing that the evidence of the threat would be unduly
prejudicial because the jury would likely draw the conclusion that defendant had
something to do with it.
The court decided to permit the detective to testify about the incident, with
a limiting instruction informing the jury that the threat came from a family
member, not from defendant. Detective Paul Stewart told the jury that he had
been present during the interview conducted before James testified. At that time,
James had recalled most of his statements in the taped interview. However,
Stewart was also present when James was on the witness stand, at which time
“many of the things that he remembered in the morning . . . he said he did not
15
remember when he testified.” Stewart testified that while he was taking James
home later that day, James said “that he was in the cafeteria of this building when
he was approached by a woman who made the statement to him [that] you and
your mother could disappear.” The woman was “a family member.”
The court cautioned the jury that Stewart’s testimony was admitted only “to
show the state of mind [of] the witness when the witness testified,” not “to prove
the truth of the statement that was made.” The jury was told that “you must not
draw any inferences with respect to the defendant as to those statements,” and
specifically that “you may not infer that . . . this was made by the defendant or at
the defendant’s behest. It is only to indicate the state of mind of the witness at the
time when [the witness] testified so that you may properly evaluate that witness’s
testimony and any inconsistencies that you find that there are.”
Thereafter, the prosecutor recalled James to the stand. She questioned him
about the incident in the cafeteria, asking “did someone from your family and the
defendant’s family approach you during the lunch hour?” James said a woman
had approached him, and they were “bickering back and forth.” With some
prompting, he said the woman had told him that he “better not lie on her brother”
and that he and his mother might “come up missing.” On cross-examination,
defense counsel asked James about the threat, confirming that it was defendant’s
sister who delivered it. James said the threat had upset him at first, but did not
affect his testimony in any way.
2. The Admissibility of the Threat Evidence
Evidence that a witness is afraid to testify or fears retaliation is admissible
because it bears on credibility. (People v. Burgener (2003) 29 Cal.4th 833, 869;
accord, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 946; People v. Guerra
16
(2006) 37 Cal.4th 1067, 1141.) Defendant acknowledges this well-established
rule, but raises a series of objections to its application in this case.4
First, he contends the prosecutor failed to lay an adequate foundation for
the relevance and probative value of the threat evidence. Defendant asserts that
the admission of this evidence was improperly premised on the assumption that
James was telling the truth in his taped statement. This is not the case; James’s
state of mind when he testified after hearing the threat had no necessary
connection with the veracity of his earlier statement. Next, defendant contends the
Burgener rationale is limited to cases of discrepancy between prior sworn
testimony and later statements in court. This claim is supported by neither the
cases cited in Burgener (People v. Warren (1988) 45 Cal.3d 471, 481; People v.
Feagin (1995) 34 Cal.App.4th 1427, 1433), nor those following it (e.g., People v.
Gonzalez, supra, 38 Cal.4th at pp. 945-946; People v. Guerra, supra, 37 Cal.4th at
pp. 1141-1142). Defendant also argues there was no showing that James was
indeed afraid to testify. He points to James’s later testimony that the threat did not
affect him. The court, of course, had no way of anticipating this testimony when it
made its ruling. The court was aware of the discrepancy between the statements
on the tape and James’s testimony, and the relevance of the threat he received
immediately before he took the stand was obvious.
Defendant claims that in any event, the probative value of the evidence was
outweighed by the prejudicial impact on the jury of learning that his sister had
threatened a key witness and the witness’s mother during trial. That
determination, however, was “well within the discretion of the trial court.”
(People v. Burgener, supra, 29 Cal.4th at p. 869.) The jury was cautioned not to
attribute the threat to defendant. Defendant claims the admonition was defective
because it followed Detective Stewart’s testimony, and the court spoke in terms of
4
Defendant asserts violations of his rights under the Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution, and under article I, sections 7,
15, 16, and 17 of the California Constitution.
17
“the evidence you have just heard” and “the state of mind of the witness when the
witness testified.” Defendant suggests the jury would have understood these
references to apply to Stewart, and thus the inferences they might draw regarding
the threat to James were unrestricted. The suggestion is completely meritless.
The detective’s state of mind was not at issue, and his testimony was focused on
the impact of the threat against James.
Defendant
also
complains that the admonition was not repeated after James
was recalled and questioned about the threat. However, the court’s cautionary
instruction the previous week was lengthy and detailed, and promptly followed
Detective Stewart’s testimony, which first informed the jury of the threat. The
court was not required to repeat the admonition, and defense counsel made no
such request.
3. The Prosecutor’s Reference to the Threat in Closing
Regarding James’s testimony, defense counsel argued as follows in his
closing: “He was threatened to such an extent that the People want you to believe
him, and that’s why he changed his testimony. Doesn’t it strike you as a little odd
that he wouldn’t say anything before the testimony or he wouldn’t want these
people out of the courtroom?”
In her rebuttal, the prosecutor responded that it was precisely because he
was threatened that James had said nothing before he testified: “The exact thing
about threats is they scare you. And you don’t necessarily run and tell on the
person who just threatened you because they threatened you. And you don’t want
to make them any madder. So instead you come in and try to appease them. You
come in and say I don’t remember. And I might have made that part up. As they
are sitting here in the audience staring at him, he is back-pedaling big time. . . .
But what we know is true is his prior statement, what he said to the police, what
you hear on the tape when no one was glaring at him and no one had threatened
him and the defendant wasn’t sitting there looking at him.” Defendant, while
refraining from making a claim of prosecutorial misconduct, contends the
18
prosecutor’s reference to his presence and the threat against James in the same
sentence undermined the court’s limiting instruction, and exacerbated the
prejudice created by the admission of the threat evidence.
Defense counsel made no objection or request for an admonition from the
court, which could have reinforced the limiting instruction and mitigated any
undue prejudice. His claim is thus barred on appeal. (People v. Thornton (2007)
41 Cal.4th 391, 454.) Defendant responds to the Attorney General’s waiver
argument by suggesting for the first time in his reply brief that the failure to object
amounted to ineffective assistance of counsel. The argument is as meritless as it is
belated. “[D]eciding whether to object is inherently tactical, and the failure to
object will rarely establish ineffective assistance.” (People v. Hillhouse (2002) 27
Cal.4th 469, 502.) Here, while requesting an admonition was one tactical option,
counsel could also have decided that objecting would focus the jury’s attention on
the threat incident in ways that would not be helpful to the defense.
The prosecutor’s comment echoed her opening argument, where she made
no mention of the threat but argued that James’s taped statement was credible
because it was made when “the defendant wasn’t in the room looking at him, other
family members weren’t in the audience looking at him.” The jury would
understand that, regardless of any threat, James would have been more willing to
incriminate his relative in a private interview than in open court, in the presence of
defendant and other family members. Any implication in her later comment that
defendant may have been involved with the threat was remote enough that counsel
could reasonably have opted to let it pass without objection.
E.
The Exclusion of Evidence of James’s Probation Performance
Defense counsel sought to impeach Robert James with testimony from his
probation officer to the effect that James was dishonest. The court held a hearing
under Evidence Code section 402 to determine what the probation officer would
say. The parties agreed that because James was a juvenile, the officer could not go
into specific matters reflected on his record. Harry Ridley testified that he was
19
James’s probation officer and had been for nearly a year. He considered James
irresponsible. James had been evasive, did not comply with the conditions of his
probation, and failed to keep Ridley informed of his whereabouts. Ridley recalled
one particular lie James told, which he did not specify, but generally he based his
opinion on James’s failure to follow instructions.
The court heard extended argument from counsel, during which the
prosecutor stated that if Ridley’s testimony were admitted, she would be entitled
to rehabilitate James by examining the reasons for his behavior. Ultimately, the
court concluded that while the evidence of James’s performance on probation was
relevant to show his lax character and general lack of credibility, its probative
value was insufficient to outweigh the consumption of time it would take to
explore the matter, including collateral issues pertaining to his failure to comply
with probation conditions. Accordingly, the court excluded the evidence of his
probation performance under Evidence Code section 352.
Regarding specific instances of untruthfulness, the prosecutor
acknowledged that Ridley remembered one time when James had lied to him.
However, the court agreed with her argument that James’s failure to keep
promises made to his probation officer did not amount to “lies.” After conferring
with Ridley, defense counsel told the court there were “no additional grounds to
go into.” Counsel had interpreted Ridley’s account of James’s failure to do what
he said he would do as instances of lying. Ridley did not testify before the jury.
Defendant contends the court abused its discretion under Evidence Code
section 352. We disagree. “ ‘[T]he latitude section 352 allows for exclusion of
impeachment evidence in individual cases is broad. The statute empowers courts
to prevent criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225,
301; accord, People v. Lewis (2001) 26 Cal.4th 334, 374-375.) Here, James’s
failures on probation were evidently numerous, and the prospect of prolonged
nitpicking was a real one. Defendant claims the court’s ruling deprived him of his
20
fundamental rights to confrontation and to present a defense, under the Sixth and
Fourteenth Amendments to the federal Constitution. However, “we have
repeatedly held that ‘not every restriction on a defendant’s desired method of
cross-examination is a constitutional violation. Within the confines of the
confrontation clause, the trial court retains wide latitude in restricting cross-
examination that is repetitive, prejudicial, confusing of the issues, or of marginal
relevance.’ [Citation.]” (Ayala, at p. 301; see also Lewis, at p. 375.)
Defense counsel had ample opportunity to question James regarding the
discrepancies between his taped statement and his trial testimony. James himself
testified that he had not been completely truthful during the police interview, when
he incriminated defendant. Moreover, after it was shown that he had been
threatened in advance of his original trial testimony, James denied the threat had
affected him, but also confirmed the accuracy of the taped statements that he could
not remember in his original testimony. Thus, James’s truthfulness was already
seriously compromised. Evidence of his performance on probation would have
introduced a variety of collateral credibility issues, and would not “have produced
‘a significantly different impression of [the witness’s] credibility.’ ” (People v.
Frye (1998) 18 Cal.4th 894, 946, quoting Delaware v. Van Arsdall (1986) 475
U.S. 673, 680; see also People v. Smith (2007) 40 Cal.4th 483, 513.) 5
F.
The Witness Credibility Instructions
Defendant
claims
the
court erred by giving two instructions on witness
credibility, CALJIC Nos. 2.13 and 2.24. He contends the former of these
instructions unfairly bolstered the testimony of prosecution witnesses Robert
5
Defendant complains that the prejudice resulting from the exclusion of
the probation performance evidence was compounded by the giving of CALJIC
No. 2.24, which told the jury: “If the evidence establishes that a witness’s
character for honesty or truthfulness has not been discussed among those who
know him or her, you may infer from the absence of such discussion that such
character trait is good.” However, the evidence did not establish the absence of
such discussion, and the conflicts in James’s own testimony made it unlikely that
the jury would have drawn any inference of truthfulness as a character trait of his.
21
James and Mark King, and the latter improperly skewed the credibility
determination as to prosecution witness Delsie Noble.6
James’s testimony is described in part II.D.1, ante, pages 15-16. King
provided a taped interview to detectives in which he said, among other things, that
defendant told King “I had to smoke one of those Mexicans” during a robbery.
However, on the witness stand King refused to confirm nearly everything on the
tape, which was played for the jury. Noble testified that defendant had told him
about the killing the day after it happened.
Respondent argues that defendant invited any error by requesting these
instructions himself. Respondent is correct. “ ‘The doctrine of invited error bars a
defendant from challenging an instruction given by the trial court when the
defendant has made a “conscious and deliberate tactical choice” to “request” the
instruction. [Citations.]’ ” (People v. Weaver (2001) 26 Cal.4th 876, 970; accord,
People v. Thornton, supra, 41 Cal.4th at p. 436.)
Defense counsel joined the prosecutor in requesting CALJIC No. 2.13,
which stated:
“Evidence that on some former occasion, a witness made a statement or
statements that were inconsistent or consistent with his or her testimony in this
trial, may be considered by you not only for the purpose of testing the credibility
of the witness, but also as evidence of the truth of the facts as stated by the witness
on such former occasions.
“If you disbelieve a witness’ testimony that he or she no longer remembers
a certain event, such testimony is inconsistent with a prior statement or statements
by him or her describing that event.”
In his closing argument, counsel emphasized the conflicts between various
witnesses’ trial testimony and their prior inconsistent statements. He also
specifically asked the jury to remember a taped statement by Mark King indicating
6
Defendant claims violation of his rights to a fair jury trial and to due
process under the Sixth and Fourteenth Amendments to the federal Constitution.
22
that he expected a reward for incriminating defendant, which King denied at trial.
Thus, counsel had a legitimate tactical purpose for requesting CALJIC No. 2.13,
and the invited error rule applies. (People v. Hardy (1992) 2 Cal.4th 86, 152; see
also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) In any event,
defendant’s argument is devoid of merit; he complains that the instruction unfairly
refers to “the truth of the facts” in a prior statement, without telling the jury it
could also consider the falsity of the statement. However, the instruction in no
way directs the jury to accept prior statements as the truth; it merely covers the
hearsay exceptions provided in Evidence Code sections 1235 and 1236, in a
neutral fashion. (See People v. Wilson (2008) 43 Cal.4th 1, 20-21.)
CALJIC No. 2.24 told the jury: “Evidence of the character of a witness for
honesty or truthfulness may be considered in determining his believability. If the
evidence establishes that a witness’s character for honesty or truthfulness has not
been discussed among those who know him, you may infer from the absence of
such discussion that such character trait is good.”
Defense counsel specifically requested this instruction, explaining to the
court that it would cover King’s testimony that Delsie Noble “lies all the time.”
Counsel’s choice here was plainly “conscious and deliberate,” and it bars
defendant from challenging the instruction on appeal. (People v. Weaver, supra,
26 Cal.4th at p. 970.) Again, in any event, his argument is meritless. Defendant
faults the instruction for not referring to a witness’s character for dishonesty or
untruthfulness. He underestimates the common sense of jurors.
G.
Instructions Bearing on the Standard of Proof
Defendant challenges the constitutionality of a series of instructions,
claiming they undermined the standard of proof beyond a reasonable doubt.
(CALJIC Nos. 1.00, 2.01, 2.02, 2.21.2, 2.22, 2.27, 2.51, 8.83, 8.83.1.) He
acknowledges that we have rejected his claims, but invites us to reconsider our
previous opinions in light of the facts of this case. (People v. Cleveland (2004) 32
Cal.4th 704, 750-751; People v. Crittenden (1994) 9 Cal.4th 83, 144; see also, e.g.,
23
People v. Cook, supra, 40 Cal.4th at pp. 1361-1362.) Defendant gives no
persuasive reason in logic or law for us to revisit these settled issues.
H.
Sufficiency of the Murder Charge in the Information
Defendant argues it was error to instruct the jury on first degree murder
because the information charged him only with murder in violation of section 187,
subdivision (a), which he characterizes as a statute defining second degree murder.
Defendant claims the court lacked jurisdiction to try him for first degree murder.
He recognizes that we have repeatedly held that an information charging murder in
violation of section 187 is sufficient to support a first degree murder conviction.
(People v. Hughes (2002) 27 Cal.4th 287, 369, citing cases; see also People v.
Geier (2007) 41 Cal.4th 555, 591; People v. Carey (2007) 41 Cal.4th 109, 131-
132.) However, he claims the rationale of these cases is irreconcilable with the
holding of People v. Dillon (1983) 34 Cal.3d 441 (Dillon).
Dillon held that section 189 is a codification of the first degree felony-
murder rule. (Dillon, supra, 34 Cal.3d at pp. 471-472.) Because there is only a
single statutory offense of first degree murder (see, e.g., People v. Geier, supra, 41
Cal.4th at p. 591), defendant reasons that the relevant statute must be section 189,
not section 187, which he construes as a definition of second degree murder.7
Defendant misreads both Dillon and the statutes. Dillon made it clear that section
189 serves both a degree-fixing function and the function of establishing the
7 Section 187 provides, in relevant part: “Murder is the unlawful killing of
a human being, or a fetus, with malice aforethought.”
Section 189 provides, in relevant part: “All murder which is perpetrated by
means of a destructive device or explosive, a weapon of mass destruction,
knowing use of ammunition designed primarily to penetrate metal or armor,
poison, lying in wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or which is committed in the perpetration of, or attempt to
perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any
murder which is perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree. All other kinds of murders are of the
second degree.”
24
offense of first degree felony murder. (Dillon, at pp. 468, 471.) It defines second
degree murder as well as first degree murder. Section 187 also includes both
degrees of murder in a more general formulation. (People v. Witt (1915) 170 Cal.
104, 108.) Thus, an information charging murder in the terms of section 187 is
“sufficient to charge murder in any degree.” (People v. Carey, supra, 41 Cal.4th
at p. 132.)
Defendant does not contend he lacked actual notice of the prosecution’s
theory of first degree murder. He does, however, assert that the information failed
to allege all the facts necessary to justify the death penalty, making it defective
under Apprendi v. New Jersey (2000) 530 U.S. 466, 476. The Apprendi claim is
illusory; the information included special circumstance allegations that fully
supported the penalty verdict.
I.
Jury Unanimity on the Type of Murder
Defendant also argues that the court erred by failing to instruct the jury that
it had to agree unanimously on whether he committed premeditated murder or
felony murder.8 Again, he acknowledges we have repeatedly rejected this
argument, but asks us to reconsider it. (E.g., People v. Nakahara (2003) 30
Cal.4th 705, 712-713, citing cases; see also People v. Geier, supra, 41 Cal.4th at p.
592; People v. Carey, supra, 41 Cal.4th at p. 132-133.) Defendant submits no
cogent rationale for a different rule, however. The United States Supreme Court
has held that a jury need not unanimously agree on whether the defendant
committed premeditated or felony murder, and this rule has been widely adopted
by state courts. (Schad v. Arizona (1991) 501 U.S. 624, 640-642 (plur. opn. of
Souter, J.), citing cases; id. at pp. 649-651 (conc. opn. of Scalia, J.).)
Defendant
attempts
to
distinguish
Schad on the ground that Arizona courts
have not deemed premeditation and the commission of a felony to be independent
8
Defendant cites the Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution, and sections 7, 15, 16, and 17 of article I of the California
Constitution.
25
elements of murder, whereas California courts have sometimes employed the
“element” terminology. The distinction is merely semantic. The Arizona murder
statute at issue in Schad was substantially similar to section 189, and to the
common law definition of murder in existence since “at least the early 16th
century.” (Schad v. Arizona, supra, 501 U.S. at p. 648 (conc. opn. of Scalia, J.);
id. at p. 629, fn. 1 (plur. opn. of Souter, J.); see fn. 7, ante, p. 24.) Whether the
mental states required for a conviction of first degree murder are described as
“elements” (People v. Nakahara, supra, 30 Cal.4th at p. 712), “theories” (ibid.), or
“alternative means of satisfying the element of mens rea” (Schad v. Arizona,
supra, 501 U.S. at p. 632 (plur. opn. of Souter, J.)), the rule remains the same: the
jury need only unanimously agree that the defendant committed first degree
murder.
In any event, as the Attorney General notes, here the jury unanimously
found that defendant murdered Contreras during the commission of a robbery.
(See People v. Cleveland, supra, 32 Cal.4th at p. 751.)
J.
The Failure to Instruct on Theft as a Lesser Included Offense
Defendant contends the trial court erred by failing to instruct the jury on
theft as a lesser included offense of robbery.9 He claims there was substantial
evidence that he formed the intent to steal only after shooting Contreras, in which
case there would have been no robbery. “If intent to steal arose only after the
victim was assaulted, the robbery element of stealing by force or fear is absent.”
(People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056; see also, e.g., People v.
Waidla (2000) 22 Cal.4th 690, 737.) However, the record in this case does not
support defendant’s argument.
Defendant relies on the following facts. The evidence showed that he
returned to the park with a gun following a dispute with the men gathered there.
9
He asserts violations of the Sixth, Eighth, and Fourteenth Amendments to
the federal Constitution, and sections 7, 15, and 16, of article I of the California
Constitution.
26
He approached Calleros and tried to shoot him. When the gun failed to discharge,
defendant fired a shot into the air. Calleros ran away and heard a single shot,
followed by someone “screaming give me the money.” Defendant asserts that
Calleros’s testimony “arguably constitutes evidence supporting the notion that an
intent and attempt to steal arose only after the shooting of Contreras.” However,
given that defendant’s first shot was into the air, and that Contreras was shot three
times in quick succession, Calleros’s testimony in no way suggests that the murder
preceded any demand for money. Nor did the fact that defendant’s first act upon
his return was to assault Calleros tend to show that he did not also intend to rob
the men in the park.
Defendant bases his argument primarily on the testimony of Reynaldo
Villatoro, who said that defendant brought his arm down and shot at Contreras
“maybe a second” after firing into the air. However, viewed in its entirety
Villatoro’s testimony is consistent with that of the other witnesses, all of whom
agreed that a robbery was in progress when Contreras was shot. Villatoro testified
that he was being robbed by defendant’s companion when Contreras was shot, and
that Reyes had already been robbed. Villatoro did not see anything taken from
Contreras, because he was paying attention to defendant’s companion. He said
that his money was taken before the final shot was fired at Contreras, and that after
he was robbed the companion told defendant, “I have the money. Let’s go.” The
two men then ran away.
It is true that, unlike the other witnesses, Villatoro did not observe any
attempt to steal from Contreras, either before or after the shooting. It is also true
that, in response to a series of questions that appeared to confuse him, Villatoro
gave answers that, considered in isolation, might suggest Contreras was shot
before Reyes and Villatoro were robbed. During cross-examination, Villatoro said
Contreras was shot twice while standing and again as he was falling to the ground,
at which time Villatoro stopped watching because he was being robbed by
defendant’s companion. The following exchange then took place:
27
“Q. Now, after the other person took your money, did he take somebody
else’s money?
“A. From Efren [Reyes].
“Q. Okay. Was that before or after you?
“A. Before me.
“Q. And was Don Julian [Contreras] already on the ground at this time?
“A. Yes.
“Q. Okay, some money was taken from Efren and you in that order?
“A Yes. What? Excuse me one moment. What do you mean in that
order?
“Q. Well, the first person who had money taken was Efren?
“A. Yes.
“Q. And then money was taken from you?
“A. Yes.”
Shortly thereafter, Villatoro confirmed that he was robbed by defendant’s
companion just as Contreras fell to the ground.
On this record, the jury could not reasonably have concluded that the
shooting preceded the robbery. The witnesses gave varying accounts of who was
robbed first; according to Sanchez, it was Villatoro; according to Juan Quijas, the
first thing that happened when defendant approached the group was that “his
friend started to take the money from everybody,” but Quijas did not notice who
the first victim was; according to Reyes, defendant and his companion first tried to
take Contreras’s wallet. What was clear from all the accounts was that the
shooting occurred during the robbery. One statement by Villatoro indicating that
Contreras was on the ground, already shot for the last time, when Reyes was
robbed, did not constitute a substantial contradiction of the general account.
Villatoro immediately made it clear that it was he who was being robbed as
Contreras fell, and that Reyes had already been victimized.
28
“[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense, but such instructions are required
whenever evidence that the defendant is guilty only of the lesser offense is
‘substantial enough to merit consideration’ by the jury. [Citations.] ‘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. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162;
accord, e.g., People v. DePriest (2007) 42 Cal.4th 1, 50.) The evidence here did
not require instruction on theft as a lesser included offense of robbery.10
K.
The Defective Special-Circumstance Instruction
The court gave the following version of CALJIC No. 8.81.17:
“To find that the special circumstance, referred to in these instructions as
murder in the commission of robbery, is true, it must be proved:
“1. The murder was committed while the defendant was engaged in the
commission or attempted commission of a robbery or
“2. The murder was committed in order to carry out or advance the
commission of the crime of robbery. In other words, the special circumstance
referred to in these instructions is not established if the robbery or attempted
robbery was merely incidental to the commission of the murder.” (Italics added.)
10
In his reply brief, defendant develops the argument that Villatoro’s
testimony would support a finding that defendant had no expectation that his
companion would rob Reyes and Villatoro, and merely intended to shoot someone
upon returning to the park. However, a speculative inference that depends on the
jury ignoring substantial contrary evidence is not enough to require the court to
instruct on a lesser included offense. (People v. Waidla, supra, 22 Cal.4th at p.
738; see also, e.g., People v. DePriest, supra, 42 Cal.4th at p. 50.) Here, all the
other eyewitnesses testified that defendant personally participated in the robberies,
and Villatoro did not see the entire transaction between defendant and Contreras.
Defendant’s gloss on Villatoro’s version of the events is mere speculation.
29
Defendant correctly observes that use of the disjunctive “or” between the
enumerated paragraphs was erroneous.11 (People v. Prieto (2003) 30 Cal.4th 226,
256.) The court replaced “and” with “or” at the prosecutor’s request, and with
defense counsel’s agreement. The Attorney General contends counsel’s
acquiescence forfeited defendant’s claim on appeal. However, “[t]he invited error
doctrine will not preclude appellate review if the record fails to show counsel had
a tactical reason for requesting or acquiescing in the instruction. [Citations.]”
(People v. Moon (2005) 37 Cal.4th 1, 28.) Here, as in Moon, the record shows no
tactical reason, and therefore we do not apply the invited error doctrine. (Ibid.)
The error is reversible unless it was harmless beyond a reasonable doubt.
(People v. Prieto, supra, 30 Cal.4th at pp. 256-257.) Defendant contends the
second paragraph of CALJIC No. 8.81.17 is a required element of the felony-
murder special circumstance, which must be found true by the jury. We have
rejected that view. The second paragraph of the instruction does not set out a
separate element of the special circumstance; it merely clarifies the scope of the
requirement that the murder must have taken place “during the commission” of a
felony. (People v. Monterroso (2004) 34 Cal.4th 743, 766-767; People v. Kimble
(1988) 44 Cal.3d 480, 501.) “Thus, unless the evidence supports an inference that
the defendant might have intended to murder the victim without having an
independent intent to commit the specified felony, there is no duty to include
CALJIC No. 8.81.17’s second paragraph. [Citations.]” (Monterroso, at p. 767.)
Here, of course, the second paragraph was presented to the jury as an
alternative, not as a clarification of the first paragraph. Defendant notes this
permitted the jury to find the special circumstance true based only on a finding
that the murder occurred while he was engaged in the commission of a robbery,
without making the further finding that the murder was committed to carry out or
advance the robbery. Relying on the same evidence underlying the lesser included
11
Defendant claims violation of his rights to due process and trial by jury
under the Sixth and Fourteenth Amendments to the federal Constitution.
30
offense argument discussed in part II.J., ante, pages 26-29, defendant claims the
record supports an inference that he intended to murder Contreras without
intending to steal from him until after the shooting occurred. However, neither
paragraph of the instruction reflected defendant’s after-acquired-intent theory. If
the murder were committed while he was engaged in robbery, under the first
paragraph, the intent to rob would already have been formed, just as it would have
been if the murder were committed to carry out the robbery under the second
paragraph. In any event, the evidence did not support defendant’s theory, as
discussed above in part J.
The defect in the instruction clearly did not affect the verdict. In addition to
returning a true finding on the felony-murder special circumstance, the jury found
defendant guilty of robbing Contreras. The evidence simply did not support the
notion that the robbery was somehow incidental to the murder. Defendant makes
much of the fact that he tried to shoot Calleros before any robbery attempt was
made. However, by all accounts a robbery or robberies were being committed
when he shot Contreras. By most accounts, Contreras was shot after he resisted.
In addition to the eyewitness testimony, three witnesses (James, Noble, and King)
testified or gave statements to the police to the effect that defendant told them he
shot a Mexican who resisted when defendant tried to take his money. On this
record, the failure to give CALJIC No. 8.81.17 in the conjunctive was harmless
beyond a reasonable doubt.
L.
The Refusal to Remove Juror G.
1. Background
On the morning of the first day of the penalty phase, the clerk informed the
court that a juror had reported receiving death threats. The court met with the
juror, P.G., in chambers. Both counsel were present, but not defendant. Juror G.
said that in a telephone conversation that morning, his father told him he had
received a death threat the previous night. A male caller had asked for Mr. G., and
told the juror’s father “we are going to kill you. We are going to shoot you six
31
times in the stomach and you are going to be dead.” Juror G. said he had been
living with this parents until a month ago, was fearful for his family, and believed
the threat was related to this case. He noted that some witnesses had testified that
Contreras was shot in the stomach.
Juror G. said he did not think he would have a difficult time sitting on the
jury for the penalty phase, or that the incident “would influence me one way or the
other.” However, he was concerned for his family and requested “some
precautions possibly in that regard.” Asked if he believed defendant might be
responsible for the threat, Juror G. said “I really have no way of knowing.” It was
decided that he should call his father back to get more details, since his earlier
conversation was a general one. After speaking with his father, Juror G. reported
that the caller had asked for “Nick,” not for Mr. G. The juror said the telephone
number was listed under Nick G, his father’s name. His father could not
distinguish the race of the caller. When he identified himself as Nick, the caller
had threatened to “shoot you dead.” His father asked why, and the man said “you
know why.” After his father said he did not understand, the caller threatened to
shoot him six times in the stomach. The juror’s father told the caller he was crazy,
and hung up.
Juror G. told the court he “honestly believe[d] that it would not” affect his
deliberations, but repeated that he would like “some type of protection [to] be
given to my family.” Defense counsel asked if his neutrality might be
compromised in the absence of such protection. The juror responded that it would
not, but that he might be distracted. The court asked if his ability to be fair to
defendant would be impaired, assuming the threat came from “somebody that
knows something about this case.” The juror said it would not.
The court asked the district attorney’s office to investigate the incident and
look into providing whatever protection was appropriate for Juror G.’s family. It
assured the juror that the matter would be taken seriously. The prosecutor said she
would contact the police, and defense counsel agreed. The juror then left
32
chambers. The prosecutor expressed reluctance to excuse the juror, because if the
threat were related to this case that would be precisely the result the caller wanted
to achieve, and would leave only two alternate jurors. She thought the incident
might tend to prejudice Juror G. either way in his deliberations, but asked that he
not be removed.
Defense counsel moved to exclude the juror, based on the juror’s belief that
the threat was related to the case and on his fear for his family. The court noted
that the juror had been “very steadfast” about his ability to be fair. The court was
also concerned about the possibility that a series of jurors might be threatened for
the purpose of removing them from the panel. Defense counsel argued that the
threat, coming several days after the guilty verdict, would effectively become an
illegitimate aggravating factor in Juror G.’s mind. The court decided to bring the
juror back in to admonish him, but stated that a threatening telephone call was
alone not grounds for dismissing a juror. The court said it would ask Juror G.
again about his ability to set the incident aside during his deliberations, and “if he
says yes, he can, I have to take him at his word. If he says no, then that is a
different story.” The court discussed the possibility of sequestering the jury with
counsel, but decided such a step would be premature.
Juror G. returned. The court determined that he had not discussed the
incident with any other juror, and instructed him not to do so. It then told Juror G.
that the threat could not be attributed to defendant. The juror said he understood,
and that his primary concern was for his family’s safety. In response to the court’s
admonition not to let the matter affect his deliberations in the penalty phase, Juror
G. stated: “If I thought for a moment, your Honor, that it would affect me in any
way whatsoever as to my ability as a juror, I would be the first to tell you that I
can’t any longer serve on this case.” He assured the court that he understood the
seriousness of the jury’s task. The court said that steps would be taken “to try to
give every assurance to your family,” but that the court needed to be satisfied that
Juror G. would be able to exclude the incident from his deliberations. The juror
33
repeated that he would have told the court if he felt his ability to serve on the jury
would be impaired. He said he had thought the matter through, and since he did
not know where the threat came from he would adopt the “perception . . . of a
neutral juror like it never happened.”
The juror provided his father’s address and telephone number for purposes
of investigating the threat. He asked that defendant not be informed of the threat,
because if “hypothetically” it was defendant or someone he knew who was behind
it, that information would confirm that the threat had reached the juror’s family,
given that there were several listings for his surname in the telephone book. After
the juror was excused, however, the court expressed concern about intruding into
discussions between counsel and his client, and merely asked counsel to “use your
professional discretion within the bounds of ethical consideration as to how much
detail you want to discuss with [defendant].” Counsel agreed with the prosecutor
that it would be appropriate to describe the incident as “an attempt to contact a
juror.”
Later the same morning, the prosecutor advised the court and counsel that
the threat had been investigated. Detective Stewart learned that Juror G.’s father
had made a police report about a car blocking a driveway. The car turned out to
be stolen, the driver was charged, and the father was a witness in the case, which
was scheduled for a preliminary hearing the next week. He was identified as
“Nick G.” on the subpoena. Because the caller had asked for “Nick,” the
prosecutor concluded it was more likely that the threat arose from the other case.
The juror was again brought into chambers, and informed of these developments.
He had spoken with his father, who said the detective had told him the threat was
probably related to the case in which the father was a witness. The court agreed,
and said it wanted “to set your mind at rest, so that you’ll be aware of all of the
information regarding the telephone call. It does not appear that it is related to this
case.” Juror G. responded, “okay.”
34
The court’s refusal to dismiss Juror G. was among the grounds on which
defendant sought a new trial. The court denied the new trial motion.
2. Analysis
Defendant contends the court’s refusal to excuse Juror G. denied him the
right to a fair trial by an impartial jury under the federal and state constitutions.12
“An impartial jury is one in which no member has been improperly influenced
[citations] and every member is ‘ “ ‘capable and willing to decide the case solely
on the evidence before it’ ” ’ [citations].” (In re Hamilton (1999) 20 Cal.4th 273,
294.) A defendant is “entitled to be tried by 12, not 11, impartial and unprejudiced
jurors. ‘Because a defendant charged with a crime has a right to the unanimous
verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand
if even a single juror has been improperly influenced.’ [Citations.]” (People v.
Holloway (1990) 50 Cal.3d 1098, 1112, disapproved on other grounds in People v.
Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
“A sitting juror’s involuntary exposure to events outside the trial evidence,
even if not ‘misconduct’ in the pejorative sense, may require . . . examination for
probable prejudice. Such situations may include attempts by nonjurors to tamper
with the jury, as by bribery or intimidation. [Citations.]” (In re Hamilton, supra,
20 Cal.4th at pp. 294-295.) “[T]ampering contact or communication with a sitting
juror[] usually raises a rebuttable ‘presumption’ of prejudice. [Citations.]” (Id. at
p. 295.) “Still, whether an individual verdict must be overturned for jury
misconduct or irregularity ‘ “ ‘is resolved by reference to the substantial likelihood
test, an objective standard.’ ” ’ [Citations.] Any presumption of prejudice is
rebutted, and the verdict will not be disturbed, if the entire record in the particular
case, including the nature of the misconduct or other event, and the surrounding
circumstances, indicates there is no reasonable probability of prejudice, i.e., no
substantial likelihood that one or more jurors were actually biased against the
12
He cites the Sixth and Fourteenth Amendments to the federal
Constitution, and article I, section 16 of the California Constitution.
35
defendant. [Citations.]” (Id. at p. 296.) We independently determine whether
there was such a reasonable probability of prejudice. (People v. Danks (2004) 32
Cal.4th 269, 303.)
Defendant contends the trial court erred by (1) failing to acknowledge the
presumption of prejudice arising from the threat; (2) considering the possibility
that the person or persons behind the threat might be able to obtain the dismissal
of a series of jurors by making threats; (3) accepting the assurances of Juror G.
that he would remain impartial; (4) ignoring the inherently prejudicial nature of
the threat; and (5) exacerbating that prejudice by informing Juror G. that the
district attorney’s office would investigate the matter and take steps to protect his
family. However, the record does not reflect a substantial likelihood that Juror G.
harbored an actual bias against defendant.
The trial court was not required to expressly declare its awareness of
presumed prejudice; it did so implicitly by holding a prompt hearing to explore the
circumstances of the threat and the possibility of bias, which is the required
procedure for handling a presumptively prejudicial incident of juror tampering.
(Smith v. Phillips (1982) 455 U.S. 209, 215-216; In re Carpenter (1995) 9 Cal.4th
634, 647-648.) The court’s concern that the person making the threat may have
been attempting to force a mistrial was neither the controlling consideration in its
decision to allow Juror G. to remain on the jury, nor a forbidden consideration.
“Our system of justice has not delegated to every reprobate the power to effect a
mistrial. A trial may proceed if the court, after considering factors such as the
communication’s nature, the jurors’ responses, and the curative ability of
instructions [citation], finds that the jury can (and will) remain impartial and
render a verdict based solely on the evidence, not the improper contact.” (U.S. v.
Williams (7th Cir. 1984) 737 F.2d 594, 612; see also U.S. v. Williams (D.C. Cir.
1987) 822 F.2d 1174, 1190, superseded by rule on other grounds as stated in
United States v. Caballero (D.C.Cir.1991) 936 F.2d 1292, 1298-99.)
36
Juror G. repeatedly and unequivocally stated that his ability to deliberate
impartially would not be affected by the threat. Courts may properly rely on such
statements to determine whether a juror can maintain his or her impartiality after
an incident raising a suspicion of prejudice. (Smith v. Phillips, supra, 455 U.S. at
pp. 215 and 217, fn. 7; Tanner v. United States (1987) 483 U.S. 107, 122-123; cf.
People v. Guerra, supra, 37 Cal.4th at pp. 1158-19; People v. Beeler (1995) 9
Cal.4th 953, 972-975.) Defendant contends the court improperly assumed that it
had to accept Juror G.’s assurances, twice stating “I have to take him at his word.”
However, the court’s first such comment was clearly a conclusion based on its
observation of the juror’s unequivocal declarations that he could be fair in his
deliberations. The second comment, anticipating the juror’s reaction after further
admonishment, is reasonably understood as following from the court’s earlier
observations, rather than as a blind commitment to accept the juror’s promises
regardless of their credibility. The trial court was in the best position to observe
Juror G.’s demeanor. We defer to that court’s credibility determinations when
supported by substantial evidence, and Juror G.’s emphatic and repeated
assurances were substantial. (Guerra, supra, at p. 1158; People v. Danks, supra,
32 Cal.4th at p. 304.)
Defendant’s claim that the threat was simply too inherently prejudicial to
be disregarded is undermined by the surrounding circumstances, both those
developed when Juror G. was first questioned and those revealed by the
investigation. Although Juror G. initially reported that the caller asked for “Mr.
G.,” when he called his father for more details he learned that the man had asked
for “Nick,” his father’s name. Juror G.’s first name had been read in open court
when the guilt phase verdicts were returned, because he signed the verdicts as
foreman.13 Thus, the fact that the caller asked for “Nick” immediately diminished
the likelihood that the threat was related to defendant’s case. When it was then
discovered that Juror G.’s father was identified as a prosecution witness named
13
Juror G. did not serve as foreman for the penalty phase.
37
“Nick G.” on a subpoena in another case coming up for a hearing the following
week, the chances of a connection became so remote as to dispel the presumption
of prejudice. 14 (See In re Hamilton, supra, 20 Cal.4th at pp. 305-306.)
Defendant argues that whether or not the threat was related to his case, the
court prejudiced Juror G. by telling him the district attorney would investigate and
take steps to protect his family. Defendant claims this inevitably tended to dispose
the juror favorably toward the prosecution. It would have been preferable for the
court to avoid informing Juror G. that the prosecutor would take the lead on this
matter. However, Juror G. would naturally expect the state to respond to his
report, and the fact that the investigation quickly yielded a strong reason to believe
that his family was not targeted because of his service on the jury mitigated any
prejudice that might have resulted from a belief that the district attorney’s office
was protecting him from defendant or someone acting on defendant’s behalf.
Defense counsel raised no objection, so the court had no occasion to admonish the
juror not to draw any untoward inferences from the prosecutor’s role in the
investigation.
We conclude that under the totality of the circumstances surrounding the
threat against Juror G.’s father, there is no substantial likelihood that the juror was
actually biased against defendant. (See People v. Danks, supra, 32 Cal.4th at p.
303.)
M.
Defendant’s Absence From Certain Proceedings
Defendant contends he was denied the right to be present at three critical
stages of his trial. A criminal defendant’s right to be personally present at trial is
protected by the confrontation clause of the Sixth and Fourteenth Amendments to
14
Defendant makes much of the prosecutor’s response when the court
proposed telling Juror G. that the threat “has nothing to do with this case.” The
prosecutor said, “[w]ell, ‘that we think.’ I mean, we’re nowhere sure of that.”
The facts on the record speak for themselves, however, and the prosecutor’s
caution does not establish prejudice.
38
the federal Constitution, by article I, section 15 of the California Constitution, and
by sections 977 and 1043.
Under the Sixth Amendment’s confrontation clause, a defendant has the
right to be personally present at any proceeding in which his appearance is
necessary to prevent “interference with [his] opportunity for effective cross-
examination.” (Kentucky v. Stincer (1987) 482 U.S. 730, 744-745, fn. 17; People
v. Cole, supra, 33 Cal.4th at p. 1231.) The Fourteenth Amendment guarantees the
right to be present as a matter of due process at any “stage . . . that is critical to
[the] outcome” and where the defendant’s “presence would contribute to the
fairness of the procedure.” (Kentucky v. Stincer, supra, 482 U.S. at p. 745; Cole,
at p. 1231.)
The state constitutional right to be present at trial is generally coextensive
with the federal due process right. (See People v. Bradford (1997) 15 Cal.4th
1229, 1357; United States v. Gagnon (1985) 470 U.S. 522, 526.) This court has
made it clear that neither the state nor the federal Constitution, nor the statutory
requirement that a defendant be present at “all . . . proceedings” (§ 977, subd.
(b)(1))15, provides a criminal defendant with the right to be personally present in
chambers or at bench discussions outside the jury’s presence on questions of law
or other matters as to which his presence bears no reasonable, substantial relation
to his opportunity to defend the charges against him. (People v. Rogers, supra, 39
Cal.4th 826, 855; People v. Ochoa (2001) 26 Cal.4th 398, 434-435, abrogated on
another point as noted in People v. Prieto, supra, 30 Cal.4th at p. 263, fn. 14;
People v. Waidla, supra, 22 Cal.4th 690, 742; People v. Jackson (1980) 28 Cal.3d
264, 309, disapproved on another point by People v. Cromer (2001) 24 Cal.4th
889, 901, fn. 3.)
15
Section 1043, subdivision (b)(2) bars a defendant in a capital case from
being voluntarily absent from trial. No issue of voluntary absence is presented
here.
39
Defendant claims his presence might have made a difference in the
outcome of various hearings held outside the presence of the jury.16 However,
none of these hearings were critical to his opportunity to defend, and defendant’s
arguments that he could have contributed to the fairness of the proceedings
amount to no more than speculation. (See People v. Cole, supra, 33 Cal.4th at p.
1232.)
1. The Discussion of Threats Against Robert James
Defendant contends he was entitled to be present for the discussion
between the court and counsel regarding the threats against prosecution witness
Robert James (see pt. II.D.1., ante, pp. 15-16). In this bench conference, for
which the jury was excused and defendant was absent, the court offered to allow
counsel to stipulate that defendant had nothing to do with his sister’s threat against
James. Defense counsel was unwilling to stipulate, repeatedly protesting that he
had no first hand knowledge of the threat. Counsel was concerned that a
stipulation would establish the threat as a fact. The prosecutor offered to stipulate
merely that James had told Detective Stewart about the threat, but defense counsel
ultimately decided he would rather question the detective about James’s failure to
disclose the threat earlier, in an attempt to suggest that it “never happened.”
Defendant
contends
the
stipulation would have protected him against the
damaging evidence of the threat. He asserts that if he were present, he could have
assured his counsel he had nothing to do with the threat, and insisted on accepting
the stipulation. However, counsel displayed no concern over whether defendant
was himself involved in the threat; his preoccupation was with the evidence
establishing the fact of the threat. There is no reasonable, substantial likelihood
that if defendant had been present, counsel would have made a different strategic
decision on how to counter the threat evidence, which was clearly relevant to
16
He claims violation of his rights to due process, to be present at trial, and
to a reliable penalty determination under the 6th, 8th, and 14th Amendments to the
federal Constitution.
40
James’s state of mind when he testified. The right to be present does not extend to
argument over such evidentiary matters. (See People v. Box (2000) 23 Cal.4th
1153, 1191-1192; People v. Holloway, supra, 50 Cal.3d at p. 1116, disapproved
on other grounds in People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.)
Defendant fails to show how his presence would have contributed to the fairness
of the procedure during the discussion of the threat evidence, or that his
opportunity for effective cross-examination was interfered with. Accordingly, he
fails to establish any violation of the controlling constitutional standards.
In any event, after the detective testified the court unequivocally instructed
the jury that the threat could not be attributed to defendant, achieving the same
effect as the stipulation that counsel rejected. Defendant claims a stipulation
would have prevented the prosecutor from implying that he was involved (see pt.
II.D.3., ante, pp. 18-19). However, any such implication was equally refutable by
reference to the court’s limiting instruction.
2. The Hearing on Sealing the Guilt Verdicts and Excusing a Juror
Late on the afternoon of June 9, 1993, the jury notified the court that it had
reached a unanimous verdict on five of the six counts, but could not agree on the
final count or on one special circumstance allegation. After some jurors indicated
that further deliberation might be helpful, the court sent the jury back to write
down any requests for clarification. While the jury was doing this, the prosecutor
asked the court whether it would seal the verdicts that had been reached at the end
of the day. The court said it would, if the jury was going to continue its
deliberations. Otherwise, it would “just go ahead and take the verdict.” The jury
subsequently reported that the further instructions it received from the court were
helpful. Accordingly, the court told it to return the following day. Defendant was
present during these proceedings.
The following day, June 10, the judge was absent due to a previous
engagement. By midmorning, the jury had reached an impasse on the remaining
count and the special circumstance allegation. The clerk informed counsel of the
41
situation, and telephoned the judge. By agreement of counsel and order of the
court, the verdicts were sealed and the jury was excused. That afternoon, the clerk
received a telephone call from a coworker of one of the jurors, reporting that the
juror was discussing the verdicts and deliberations at her workplace, including
which of the jurors was causing the jury to hang. The clerk reported this incident
by telephone to the judge.
On June 11, the court discussed the situation in chambers with counsel,
apparently in defendant’s absence. The court expressed no doubt that the juror
had engaged in misconduct that would prevent her from sitting for the penalty
phase, if there were one. It proposed questioning the juror to see if she admitted
the misconduct, and if she had spoken to anyone else before the verdicts were
sealed, in which case the verdicts would be tainted and the jury would have to
begin again after an alternate was seated. If she had committed no misconduct
before the verdicts were sealed, the court believed the verdicts would be valid.
Defense counsel expressed doubt about the validity of the verdicts in any event,
and urged the court to seat an alternate and commence deliberations anew. The
prosecutor disagreed.
The juror, R.S., was called into chambers, and readily admitted discussing
the case with her coworkers. She had thought the case was over. She apologized,
and assured the court repeatedly that she had not spoken about it with anyone
outside the jury room until after the verdicts were sealed the previous day. The
court conferred with counsel, both of whom agreed that Juror S. had been candid.
The court decided the misconduct had not tainted the verdicts. With the consent
of both counsel, Juror S. was excused from further service on the jury.
Defendant argues that his right to be present was violated when the verdicts
were sealed and then accepted by the court in his absence, and when the court
discussed the misconduct of Juror S. with counsel alone and determined that she
must be dismissed.
42
As to the taking of the verdicts, defendant claims he could have objected to
their sealing in the first place on June 10, or asked the court to inform the jurors
that they could reconsider the verdicts. However, defendant was present on June 9
when the verdicts were sealed at the end of the day, and made no objection or
request for reconsideration. The jury was clearly at an impasse on the morning of
June 10, abandoning its deliberations at 10:45 a.m. The judge was absent, and
there was no alternative but to seal the verdicts at that point. Regarding the
dismissal of Juror S., defendant asserts that he might have asked the court to
excuse the juror before the verdicts were recorded, and seat an alternate for new
guilt deliberations. Defense counsel made that very request. The court rejected
the idea, and it is inconceivable that defendant’s presence would have made any
difference. This was not a critical stage at which defendant’s presence was
necessary as a matter of fairness. (Kentucky v. Stincer, supra, 482 U.S. at p. 745;
People v. Perry (2006) 38 Cal.4th 302, 312.)
Nor was defendant’s presence required during the discussion of Juror S.’s
misconduct, which led to her excusal with the consent of counsel. The dismissal
of a juror for misconduct is not a matter for which the defendant must be present.
(People v. Johnson (1993) 6 Cal.4th 1, 17-20, disapproved on another point in
People v. Rogers, supra, 39 Cal. 4th at p. 879; People v. Abbott (1956) 47 Cal.2d
362, 371-372; People v. Feagin, supra, 34 Cal.App.4th at pp.1438-1439.)
Defendant identifies no particular circumstance that might have required his
presence. He asserts he was deprived of the chance to make his own assessment
of the juror’s credibility and could have objected to counsel’s consent to her
dismissal. However, the misconduct was clear and court’s decision was an
obvious one.
3. The Hearings on the Threat to Juror G.’s Family
Defendant also contends he had the right to be present at the hearings
during which Juror G. reported the threat against his father, and the court decided
to allow G. to remain on the jury. (See pt. II.L.1., ante, pp. 31-35.) Defendant
43
argues that he himself was the subject of these hearings, and that he was entitled to
be there to protect his interests, particularly since, he asserts, his counsel failed to
do so effectively.
The subject of the hearings was the telephone threat received by the juror’s
father. Juror G. was clearly concerned with the possibility that the threat might be
related to defendant or someone he knew. He requested that defendant not be
informed of the episode so as not to confirm that the threat had been successfully
communicated, in case defendant were “hypothetically” involved in some way.
The juror would obviously have objected to defendant’s presence. Defendant had
no right to attend such confidential in-chambers discussions. (United States v.
Gagnon, supra, 470 U.S. at p. 527; People v. Ochoa, supra, 26 Cal.4th at pp. 435-
436, abrogated on another point as noted in People v. Prieto, supra, 30 Cal.4th at
p. 263, fn. 14.) He argues that he could have objected to Juror G. remaining on the
jury, or in the alternative assured the juror that he was not involved in the threat.
However, as noted just above it is settled that the removal of a juror is not a matter
for which a defendant is entitled to be present. Assurances from defendant were
unlikely to assuage the juror’s concerns, which in any event were alleviated by the
investigation that showed the threat was unrelated to this case. Finally, any direct
colloquy between the defendant and a juror would clearly have been inappropriate.
N.
Alleged Errors Concerning the Evidence in Aggravation
1. The Evidence of Juvenile Threats
Defendant challenges the trial court’s admission of evidence that he
threatened school police officers Steven Stokes and Louis Magdaleno when they
detained him in the security office of San Fernando High School in 1982.17 (See
the statement of facts, ante, p. 4.) The trial court deemed the evidence sufficient
to establish threats against public officers under section 71, amounting to
17
As to all claims concerning the evidence in aggravation, defendant
asserts violation of the Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution.
44
“criminal activity” for purposes of the aggravating factor provided by section
190.3, factor (b). Defendant claims the evidence failed to establish either his
intent to interfere with the performance of official duties or his ability to carry out
the threats.
Defendant
contends
there
was nothing to suggest his threats were meant to
obtain his release from custody. The claim is meritless. His demand to know why
he was being detained, just before he began threatening Magdaleno, and his
subsequent attempt to walk out the door sufficiently established his intent to
interfere with the officers’ efforts to detain him.
Defendant argues that since he was handcuffed and in custody when he
made the threats, he was in no position to carry them out. He relies on our
decisions in People v. Tuilaepa (1992) 4 Cal.4th 569, 590, and People v. Boyd
(1985) 38 Cal.3d 762, 777. However, in People v. Dunkle (2005) 36 Cal.4th 861,
at pages 919-920, we explained that Tuilaepa and Boyd failed to recognize that
section 71 does not require a present ability to carry out the threat. “Indeed, the
statute expressly provides that the threat may be communicated by ‘telephone,
telegraph, or letter’ (§ 71) — clearly indicating the Legislature did not intend to
require that the defendant have the capability to inflict the threatened unlawful
injury immediately.” (Dunkle, at p. 920.) It is sufficient if the defendant made a
threat with the requisite intent and it reasonably appears to the recipient that the
threat could be carried out. (Ibid.)18
Thus, it is immaterial that defendant may have lacked the ability to act on
his threats immediately. He told the officers that he knew or could find out where
they lived, and that he would kill them. He also threatened to kill Stokes’s wife
and burn down his house. The officers testified that they took these threats
18
Defendant also relies on People v. Wright (1990) 52 Cal.3d 367, 425-
426. However, Wright merely followed Boyd, and is not persuasive for the
reasons noted above.
45
seriously, and took precautions against them. This was sufficient to establish a
reasonable appearance that the threats could be carried out.
2. The Jury Instruction on the Threats
Defendant contends the jury instruction on the threats discussed above
improperly removed from the jury’s consideration the question whether his
conduct amounted to a criminal act. The court gave the jury a version of CALJIC
No. 8.87, as follows:
“Evidence has been introduced for the purpose of showing that the
defendant Lanell Harris has committed the following criminal acts: Threatening a
School Officer and Robbery which involved the express or implied use of force or
violence or the threat of force or violence. Before a juror may consider any of
such criminal acts as an aggravating circumstance in this case, a juror must first be
satisfied beyond a reasonable doubt that the defendant, Lanell Harris, did in fact
commit such criminal acts. A juror may not consider any evidence of any other
criminal acts as an aggravating circumstance.
“It is not necessary for all jurors to agree. If any juror is convinced beyond
a reasonable doubt that such criminal activity occurred, that juror may consider
that activity as a fact in aggravation. If a juror is not so convinced, that juror must
not consider that evidence for any purpose.”
Defendant
complains
that
the jury was told the threats were criminal in
nature. His reading of the instruction is unduly strained. It did not inform the jury
that the acts he committed were necessarily criminal threats. The references to
“such criminal acts” or “activity” in the latter parts of the instruction clearly
referred back to the opening sentence, which explained that the jury was to
consider the evidence that the prosecution offered for the purpose of proving the
offense. Thus, the jury would reasonably have understood that it was to weigh the
evidence to decide whether it showed, beyond a reasonable doubt, that defendant
committed the criminal act of threatening a school officer. (See People
46
v. Monterroso, supra, 34 Cal.4th at p. 793; People v. Nakahara, supra, 30 Cal.4th
at p. 720.)
3. The Voluntary Intoxication Instructions
The court instructed the jury on the specific intent required for the
uncharged crime of threatening a school officer. With the assent of both counsel,
the court also gave the jury a version of CALJIC No. 4.21 on voluntary
intoxication, as follows:
“In the uncharged crime of Threatening a School Official a necessary
element is the existence in the mind of the defendant of the specific intent as set
forth elsewhere in these instructions.
“If the evidence shows that the defendant was intoxicated at the time of the
alleged crime, you should consider that fact in determining whether defendant had
such specific intent.
“If from all the evidence you have a reasonable doubt whether the
defendant formed such specific intent you must find that he did not have such
specific intent.”
The court followed this instruction with the definition of voluntary
intoxication provided by CALJIC No. 4.22:
“Intoxication of a person is voluntary if it results from the willing use of
any intoxicating liquor, drug or other substance, knowing that it is capable of an
intoxicating effect or when he willingly assumes the risk of that effect.
“Voluntary intoxication includes the voluntary ingestion, injecting or taking
by any other means of any intoxicating liquor, drug or other substance.”
Defendant contends these two instructions are irreconcilable and confusing.
He claims the jurors were likely to conclude that his willing assumption of the risk
of intoxication could not have diminished the criminality of his conduct. To the
extent this claim was not forfeited by defendant’s failure to object or seek
clarification below (see People v. Cleveland, supra, 32 Cal.4th at p. 749), it is
meritless. The jury was correctly informed that intoxication was relevant to its
47
determination of whether defendant had formed the requisite specific intent, even
if he was willing to accept the risk of intoxication. We considered and rejected a
claim similar to defendant’s in People v. Cain (1995) 10 Cal.4th 1, concluding
there was no likelihood that CALJIC Nos. 4.21 and 4.22 misled the jury in its
consideration of the intent requirement. (Cain, at pp. 38-39.)
4. The Escape Instruction
The jury was informed that defendant had pled guilty to a charge of
escaping from a police officer. The court read to the jury an abbreviated and
modified version of CALJIC No. 7.30, as follows:
“The defendant has been convicted of the crime of escape without force or
violence, in violation of section 4532(b) of the Penal Code.
“Every person arrested and booked and charged with a felony who is under
the lawful custody of an officer who escapes or attempts to escape from the lawful
custody of such officer is guilty of the crime of escape without force or violence,
in violation of Penal Code section 4532(b).”
The written instructions provided to the jury included the standard
terminology from the form instruction referring to “[e]very prisoner arrested and
booked and charged . . . .” (Italics added.) Defendant contends the failure to
change “prisoner” to “person” in the written instructions violated his constitutional
rights because the jury was likely to have inferred that he had escaped from state
prison. Defendant forfeited this claim by failing to object below. The
inconsistency between the oral and written instructions is trivial and did not even
arguably affect his substantial rights. (§ 1259.) The evidence and argument made
it plain that the escape was from the custody of a police officer, and both the oral
and written instructions so specified.
5. The “Clerk Had Been Stabbed” Testimony
During the questioning of Jerome Van Tress, the salesman who observed
defendant attacking a 7-Eleven clerk in 1984, Van Tress began to relate what
happened when he drove to a police station to report what he had seen. Defense
48
counsel objected after Van Tress stated “the police officer at the desk said —.”
The prosecutor responded that “it may not be offered for its truth, we don’t know
what it is. So it might not be hearsay.” The court allowed Van Tress to answer,
subject to a motion to strike. Van Tress continued, “he said that the clerk had been
stabbed.” The court sustained defense counsel’s objection and directed the jury to
disregard the answer.
Defendant argues that the court erred by failing to require the prosecutor to
establish that Van Tress’s testimony was not “offered to prove the truth of the
matter stated” under the hearsay statute (Evid. Code, § 1200, subd. (a)), before
permitting Van Tress to finish his statement. Defendant relies on cases discussing
the necessity of proving the existence of a preliminary fact before proffered
evidence is deemed admissible, under Evidence Code section 403. (E.g., People v.
Sanders (1995) 11 Cal.4th 475, 514; People v. Pic’l (1981) 114 Cal.App.3d 824,
859-860, disapproved on another point in People v. Kimble, supra, 44 Cal.3d at p.
498.) These cases are inapposite; whether testimony is offered to prove the truth
of the matter stated is not a preliminary fact, but an intrinsic part of the
determination whether a statement is hearsay. In any event, the court’s authority
to allow a witness to answer on a provisional basis, subject to a motion to strike, is
recognized in Evidence Code section 403 itself, as well as in other contexts.
(Evid. Code, § 403, subd. (b); 3 Witkin, Cal. Evidence, supra, Presentation at
Trial, § 388, p. 481.)
Nevertheless, we note that the better practice would have been to resolve
the hearsay question before revealing the witness’s statement to the jury. It is not
unreasonable to expect advocates to know what evidence they are eliciting and be
prepared to defend its admissibility in advance. The prosecutor’s excuse that “we
don’t know what it is” invited the court to go forward and hope to rectify any
49
problem after the fact. Under the circumstances, however, defendant can show no
prejudice.19
The jury was informed that defendant had admitted intentionally inflicting
great bodily injury on the victim, and it heard Van Tress testify that he had seen
“quite a bit of blood” on the floor of the 7-Eleven and on the sidewalk outside.
The jury also learned, as we discuss next, that when defendant was arrested the
same day, there was a bloody knife next to him. Thus, even assuming the jury
would not have been able to follow the court’s instruction to disregard Van Tress’s
hearsay testimony, in light of this other evidence the reference to stabbing was not
in itself so prejudicial as to violate any fundamental right.
6. The Bloody Knife Evidence
Detective Richard Knapp testified that he and a colleague went to an
apartment across the street from the 7-Eleven on the day of the robbery, following
a lead. Inside they found defendant lying on the floor, next to a table on which
there was a folding knife. The knife was closed. When Knapp examined it, he
saw what appeared to be dried blood on the inside and outside of the handle.
Defendant
contends
this testimony was irrelevant to any statutory
aggravating factor. The claim is meritless. The fact that defendant was found
with a bloody knife not long after the robbery was relevant to prove “criminal
activity by the defendant which involved the use or attempted use of force or
violence” under section 190.3, factor (b). Defendant’s arguments disputing the
probative value of this evidence go to its weight, rather than its admissibility.
7. General Objections to the Use of Unadjudicated Criminal
Activity
Defendant
raises
a
number of general objections to the use of unadjudicated
criminal activity as an aggravating factor under section 190.3, factor (b). We have
consistently rejected these challenges.
19
He contends his rights to due process and a reliable penalty determination
under the Sixth and Fourteenth Amendments to the federal Constitution were
violated.
50
Section 190.3, factor (b) is not unconstitutionally vague or overbroad.
(Tuilaepa v. California (1994) 512 U.S. 967, 976-977; People v. Dunkle, supra, 36
Cal.4th at p. 922.) Defendant contends our decisions construing this factor have
resulted in procedural protections less rigorous than those provided to noncapital
defendants. However, the authority to which he refers fails to support his
assertion that penalty phase procedures are constitutionally required to be more
stringent than other criminal procedures. (See Ake v. Oklahoma (1985) 470 U.S.
68, 87 (conc. opn. of Burger, C. J.); Eddings v. Oklahoma (1982) 455 U.S. 104,
117-118 (conc. opn. of O’Connor, J.); Lockett v. Ohio (1978) 438 U.S. 586, 605-
606.) To the contrary, it is settled that defendants in capital cases are not similarly
situated to noncapital defendants. Thus, the objection that section 190.3, factor (b)
operates differently from noncapital procedures is meritless, as is defendant’s
equal protection claim. (People v. Carey, supra, 41 Cal.4th at p. 136; People v.
Blair (2005) 36 Cal.4th 686, 754.)
The use of the same jury to determine guilt and to weigh the other-crimes
evidence does not deprive defendants of an impartial jury. (People v. Bolin (1998)
18 Cal.4th 297, 335; People v. Avena (1996) 13 Cal.4th 394, 428.) Defendant
argues that his counsel was unable to adequately question prospective jurors
during voir dire regarding the unadjudicated crimes, due to the risk of biasing
them during the guilt phase, at which the other crimes evidence was inadmissible.
However, he provides no specific argument on this point, and elsewhere he
concedes that the unadjudicated offenses “involved alleged robbery and threatened
assaultive conduct” similar to the charged crimes. Because counsel was free to
explore the prospective jurors’ attitudes in regard to the charged crimes, defendant
fails to demonstrate any prejudice, even if he could establish a constitutional
violation.
Jury unanimity is not required with respect to unadjudicated criminal
conduct. (People v. Barnwell (2007) 41 Cal.4th 1038, 1059; People v. Michaels
(2002) 28 Cal.4th 486, 541-542.) Nor does expiration of the statute of limitations
51
bar the use of such conduct as an aggravating factor. (Barnwell, at p. 1058, citing
cases.) Defendant cites Johnson v. Mississippi (1998) 486 U.S. 578, 585-586, for
the proposition that procedures governing consideration of other-crimes evidence
at the penalty phase must conform to the constitutional standards governing proof
of charged offenses. However, as we have pointed out, Johnson does not say that.
(Barnwell, at p. 1058, fn. 15; People v. Yeoman (2003) 31 Cal.4th 93, 137-138.)
Juvenile misconduct may properly be introduced as evidence in
aggravation. (People v. Roldan (2005) 35 Cal.4th 646, 737; People v. Lewis,
supra, 26 Cal.4th at p. 378; People v. Lucky (1988) 45 Cal.3d 259, 295.)
O.
The Absence of an Instruction Defining Life Without Parole
The jury was given CALJIC No. 8.84, which stated in relevant part: “It is
the law of this state that the penalty for a defendant found guilty of murder of the
first degree shall be death or confinement in the state prison for life without the
possibility of parole in any case in which the special circumstance alleged in this
case has been specially found to be true.” Similarly, CALJIC No. 8.88 informed
the jury it was to “determine which of the two penalties, death or confinement in
the state prison for life without the possibility of parole, shall be imposed on the
defendant.”
Defendant contends these instructions failed to adequately explain the
meaning of “life without the possibility of parole,” as required by Kelly v. South
Carolina (2002) 534 U.S. 246, Shafer v. South Carolina (2001) 532 U.S. 36, and
Simmons v. South Carolina (1994) 512 U.S. 154.20 We have rejected this
argument many times, noting that the South Carolina instructions were defective
because they failed to inform the jury of the defendant’s parole eligibility status.
(E.g., People v. Martinez (2003) 31 Cal.4th 673, 699; People v. Smith (2003) 30
Cal.4th 581, 635-636.) The instructions here explicitly informed the jury that
there would be no possibility of parole.
20
He asserts violation of the Sixth, Eighth, and Fourteenth Amendments to
the federal Constitution.
52
Defendant claims that during its deliberations, the jury demonstrated
confusion over the available sentencing choices by sending a note asking for a
definition of “Life without the possibility of parole/Death penalty.” Before
replying, the court inquired whether counsel had discussed the matter to work out
an answer acceptable to both sides. The prosecutor responded that they had, and
the answer was that the meaning of the terms was “exactly what they sound like;
that there is no other definition of them.” Defense counsel affirmed, “that’s
correct.” The court asked, “so your proposal is the jury be given no further
definition of life without parole or death?” Both counsel replied “yes.”
Accordingly, the jurors were called in and the court told them “those matters have
been defined for you and there’s really no need to define them further. They’re in
the materials that have been given to you and the court’s instructions, and there’s
no need to further define them for you at this point.”
Defendant complains that the court’s answer was “essentially . . . no
response at all,” and amounted to ignoring the jury’s request for a definition. He
has waived this argument by specifically agreeing below to the court’s handling of
the jury’s question. (People v. Turner (2004) 34 Cal.4th 406, 437; see also People
v. Martinez, supra, 31 Cal.4th at p. 698.) In any event, his arguments lack merit.
The court told the jury to follow the instructions it had been given on this point,
and those instructions are “precisely accurate.” (People v. Smith, supra, 30
Cal.4th at p. 635.) The common meanings of “life without the possibility of
parole” and “death penalty” are obvious. (See People v. Snow (2003) 30 Cal.4th
43, 123.) The jury’s request, as defendant acknowledges, did not reflect failure to
understand what the words meant as much as it demonstrated uncertainty that a
life sentence would actually be carried out without defendant being released from
prison.
It would have been proper for the court to tell the jury “ ‘to assume that
whatever penalty it selects will be carried out’ ” or to give “ ‘a comparable
instruction.’ ” (People v. Snow, supra, 30 Cal.4th at p. 123, quoting People v. Kipp
53
(1998) 18 Cal.4th 349, 378-379.) However, defendant did not request such an
instruction. Nor was he prejudiced by the procedure to which he agreed. The
court informed the jury in so many words to consult the instructions it was given,
without looking for further definition. The instructions were plain and accurate.
Considered on their own terms, as the jurors were directed to do, they left no room
for doubt over defendant’s eligibility for parole.
P.
The Absence of an Instruction on Victim Impact Evidence
Defendant
claims
the
court should have given an instruction on the proper
use of victim impact evidence, to prevent an unduly emotional response from the
jury.21 He proposed no such instruction below. Even if he had, we have “rejected
the argument that a trial court must instruct the jury not to be influenced by
emotion resulting from victim impact evidence. [Citations.]” (People v. Carey,
supra, 41 Cal.4th at p. 134.) Defendant objects to certain arguments made by the
prosecutor. He does not claim prosecutorial misconduct. Nevertheless, he asserts
the remarks were so inflammatory the court should have given a cautionary
instruction. Defense counsel was certainly free to respond to the prosecutor’s
victim impact arguments, and to request an instruction addressing them if he
believed one was needed. However, defendant cites no authority for the
proposition that the court must respond to closing argument by giving sua sponte
limiting instructions.
Q.
The Failure to Reinstruct at the Penalty Phase
During the discussion of penalty phase instructions with counsel, the court
was skeptical about the necessity of reinstructing the jury with the guilt phase
instructions that were pertinent to the penalty deliberations. Ultimately, with the
concurrence of counsel, the court decided not to reinstruct, but to give a general
instruction telling the jury to follow those guilt phase instructions that applied to
21
He cites the Sixth, Eighth, and Fourteenth amendments to the federal
Constitution, as well as sections 7, 15, 16, and 17 of article I of the California
Constitution.
54
the penalty determination, excluding those prohibiting the consideration of
sympathy for the defendant. The court noted that the jury would have the guilt
phase instructions in written form.
Accordingly, the court read the following special instruction: “You are to
be guided by the previous instructions given in the first phase of this case which
are applicable and pertinent to the determination of penalty. However, you are to
completely disregard any instructions given in the first phase which prohibited you
from considering pity or sympathy for the defendant. In determining penalty, the
jury may take into consideration pity and sympathy for the defendant.”
Immediately before reading this instruction, however, the court gave the
jury the standard version of CALJIC No. 8.84.1, which included the
admonishment: “You must accept and follow the law as I state it to you.
Disregard all other instructions given to you in other phases of this trial.” This
instruction was designed to be followed by all the instructions appropriate for the
penalty phase. (See People v. Steele (2002) 27 Cal.4th1230, 1255-1256.)
Defendant contends the court erred by failing to reinstruct the jury with the
applicable guilt phase instructions, and by giving it contradictory directions to
disregard all former instructions, on the one hand, but to follow those that were
applicable, on the other.22 The court did indeed err. As we have held, if the court
tells the jury to disregard the guilt phase instructions, “it must later provide it with
those instructions applicable to the penalty phase.” (People v. Moon, supra, 37
Cal.4th at p. 37.) We reiterate that trial courts should take pains to ensure that
penalty phase juries are fully and properly instructed. (See People v. Carter
(2003) 30 Cal.4th 1166, 1222; Moon, at p. 37, fn. 7.)
The Attorney General, while noting that defendant agreed to the
instructional procedure below, does not contend the error was invited. But insofar
as defendant claims the court should have reread the applicable guilt phase
22
He asserts violation of his rights under the Eighth and Fourteenth
Amendments to the federal Constitution.
55
instructions, his counsel did indeed invite error. The prosecutor directly, and
correctly, questioned whether the jury would be capable of modifying the written
instructions from the guilt phase to fit the penalty phase issues. In particular, she
noted that the circumstantial evidence instructions referred to findings of guilt,
which would not be involved in the penalty deliberations. Defense counsel argued
at length against reinstructing the jury, and requested that it receive only
instructions on the elements of the uncharged crimes, to avoid confusion and the
temptation to “relitigate the issues in guilt.”
It is true that counsel did not ask the court to give CALJIC No. 8.84.1 in
addition to the special instruction set out above. He merely acquiesced in the
court’s decision to give these inconsistent instructions. Thus, to the extent that
error affected defendant’s substantial rights, he is not barred from raising a claim
of instructional error without an objection in the trial court. (People v. Benavides
(2005) 30 Cal.4th 1166, 111; see also People v. Moon, supra, 37 Cal.4th at p. 37.)
In any event, the instructions given by the court did not prejudice defendant under
the circumstances of this case, as we shall explain.
While it was confusing for the jury to hear first that it was to “[d]isregard
all other instructions given to you in other phases of this trial,” and then that it
should “be guided by the previous instructions given in the first phase of this case
which are applicable and pertinent to the determination of penalty,” two factors
operated to resolve the conflict as a practical matter. First, the jury was given the
guilt phase instructions in written form, and would reasonably have understood
that they could therefore consider them. Second, the prosecutor, in her closing
argument, referred the jury to the “original” circumstantial evidence instructions
as they applied to the question of whether defendant had used a knife in the 7-
Eleven robbery. (See pt. II.N.5. & 6., ante, pp. 48-50.) She specifically
mentioned the aspect of those instructions most favorable to defendant, stating:
“If there are two reasonable interpretations of the evidence you must accept the
one that favors the defendant.” While the arguments of counsel are no substitute
56
for instructions from the court, here the jury would surely have concluded from the
prosecutor’s argument that these guilt phase instructions were applicable at the
penalty phase.
In arguing that the failure to reinstruct was prejudicial, defendant specifies
only the circumstantial evidence instructions, CALJIC Nos. 2.01 and 2.02. He
contends that, even if the jury did turn to the written instructions, it would not
have deemed these particular instructions applicable because of their references to
“guilt.” However, as noted, the prosecutor incorporated these instructions in her
argument on defendant’s use of a knife. Regarding the uncharged offenses alleged
in the penalty phase, common sense would have led the jury to consider the
instructions in determining whether defendant had committed those crimes.
Defendant relies on our discussion in People v. Babbitt (1988) 45 Cal.3d 660, 717-
718. There, we reasoned that the jury would not have applied “the no-sympathy
instruction (CALJIC No. 1.00)” because it “refers specifically to deciding a
defendant’s guilt or innocence.” (Babbitt, at p. 717.) Here, by contrast, the jury
would have applied the circumstantial evidence instructions both as a matter of
logic and by reference to the prosecutor’s argument incorporating them.
Defendant has failed to establish a reasonable possibility, or a reasonable
doubt, that any instructional error involving the applicability of the guilt phase
instructions affected the penalty verdict. (See People v. Wilson, supra, 43 Cal.4th
at p. 28; People v. Carter, supra, 30 Cal.4th at p. 1221-1222.)
R.
CALJIC No. 8.85
Defendant claims the failure to delete inapplicable statutory factors from
CALJIC No. 8.85, which identifies the factors that may be considered in
mitigation or aggravation, violated his federal and state constitutional rights.23 We
have repeatedly rejected this argument. (E.g., People v. Cook, supra, 40 Cal.4th at
23
Defendant cites only the Sixth, Eighth, and Fourteenth Amendments to
the federal Constitution.
57
p. 1366; People v. Anderson (2001) 25 Cal.4th 543, 600; People v. Ghent (1987)
43 Cal.3d 739, 776-777.)
Defendant claims the use of the phrase “whether or not” to preface certain
factors (e.g., section 190.3, factor (e), “[w]hether or not the victim was a
participant in the defendant’s homicidal conduct or consented to the homicidal
act”) improperly prompts the jury to consider the absence of such factors as
aggravating circumstances. Again, we have repudiated this claim on multiple
occasions. (E.g., People v. Tafoya (2007) 42 Cal.4th 147, 198; People v. Gray
(2005) 37 Cal.4th 168, 236; People v. Kraft (2000) 23 Cal.4th 978, 1078-1079.)
Defendant refers to a law review article reporting a study finding that jurors
believe the absence of mitigating evidence may support a sentence of death. We
have explained, however, that “[t]he mere absence of a mitigating element may
weigh against a finding that the instant offense is less serious than ‘normal,’ and
thus especially deserving of mercy, but it does not suggest that the crime is more
serious than ‘normal,’ and thus especially deserving of death.” (People v.
Rodriguez (1986) 42 Cal.3d 730, 788.) Thus, “the sentencing jury is entitled to
know that a defendant’s crime lacks certain elements the state deems relevant to
leniency in the choice of penalty.” (Id. at p. 789; see also People v. Ayala, supra,
23 Cal.4th at p. 232; People v. Ghent, supra, 43 Cal.3d at p. 771.)
S.
CALJIC No. 8.88
Defendant contends CALJIC No. 8.88, the trial court’s concluding
instruction to the jury, is constitutionally flawed in a number of respects, each of
which we have addressed in earlier cases, finding no error.24 The instruction told
the jury that it “must be persuaded that the aggravating circumstances are so
substantial in comparison with the mitigating circumstances that it warrants death
instead of life without the possibility of parole.” Contrary to defendant’s
arguments, the “so substantial” language is not impermissibly vague and
24 Defendant relies on the Sixth, Eighth, and Fourteenth Amendments to
the federal Constitution.
58
ambiguous (People v. Tafoya, supra, 42 Cal.4th at p. 189; People v. Coffman and
Marlow, supra, 34 Cal.4th 1, 124; People v. Breaux (1991) 1 Cal.4th 281, 315-
316), nor is the use of the term “warranted” instead of “appropriate” (People v.
Carey, supra, 41 Cal.4th at p. 137; People v. Perry, supra, 38 Cal.4th at p. 320;
People v. Smith (2005) 35 Cal.4th 334, 370). Neither is the instruction defective
for failing to inform the jury that neither party bore the burden of persuasion on
the penalty determination. (People v. Geier, supra, 41 Cal.4th at p. 619; Coffman
and Marlow, at p. 124; People v. Hayes (1990) 52 Cal.3d 577, 643.)
T.
Imposition of Capital Punishment for Felony Murder
Defendant
claims
that
condemning him to death for a felony murder that
did not require an intent to kill, while sparing some intentional killers from capital
punishment, violates the Eighth and Fourteenth Amendments to the federal
Constitution. We have rejected such claims. (People v. Kennedy (2005) 36
Cal.4th 595, 640; People v. Taylor (1990) 52 Cal.3d 719, 747-748; People v.
Anderson (1987) 43 Cal.3d 1104, 1147.) Defendant does not persuade us to
change our view.
U.
Miscellaneous Constitutional Challenges to the Death Penalty Statute
Defendant presents a number of further constitutional attacks on the death
penalty statute that we have rejected.25 We continue to do so. Thus:
The “circumstances of the crime” factor provided by section 190.3, factor
(a) does not foster arbitrary and capricious penalty determinations. (People v.
Barnwell, supra, 41 Cal.4th at p. 1058; People v. Cook, supra, 40 Cal.4th at p.
1367.)
Section 190.3 sufficiently narrows the class of murderers eligible for capital
punishment. (People v. Barnwell, supra, 41 Cal.4th at p. 1058; People v. Bonilla
(2007) 41 Cal.4th 313, 358.)
25
Defendant again refers to the Sixth, Eighth, and Fourteenth Amendments
to the federal Constitution.
59
The burden of proof beyond a reasonable doubt does not apply to findings
on the capital sentencing factors (except for other crimes), nor does the
preponderance of the evidence standard. The jury’s findings need be neither
written nor unanimous. (People v. Barnwell, supra, 41 Cal.4th at p. 1059; People
v. Abilez (2007) 41 Cal.4th 472, 533.)
Review for intercase proportionality is not constitutionally required.
(People v. Barnwell, supra, 41 Cal.4th at p. 1059; People v. Geier, supra, 41
Cal.4th at p. 618.) Defendant fails to support his assertion that this court has
categorically forbidden such review; in the only case to which he refers, we
considered the showing of alleged disproportionality and found it insufficient.
(People v. Marshall (1990) 50 Cal.3d 907, 947.)
Section 190.3, factor (b) does not violate the federal Constitution by
permitting the use of unadjudicated criminal activity as an aggravating factor, nor
must such factors be found true beyond a reasonable doubt by a unanimous jury.
(People v. Barnwell, supra, 41 Cal.4th at p. 1059; People v. Bonilla, supra, 41
Cal.4th at p. 359.)
The use of the adjectives “extreme” and “substantial” in section 190.3,
factors (d) and (g) is not unconstitutional. (People v. Barnwell, supra, 41 Cal.4th
at p. 1059; People v. Cook, supra, 40 Cal.4th at p. 1366.)
“A penalty phase jury need not be instructed that section 190.3, factors (d),
(e), (f), (g), (h), and (j) can only mitigate, and not aggravate, the crime.
[Citation.]” (People v. Barnwell, supra, 41 Cal.4th at p. 1059; see also People v.
Bonilla, supra, 41 Cal.4th at p. 360.)
“The death penalty law does not deny capital defendants equal protection
because it provides a different method of determining the sentence than is used in
noncapital cases. [Citation.]” (People v. Barnwell, supra, 41 Cal.4th at p. 1059;
see also People v. Bonilla, supra, 41 Cal.4th at p. 360.)
60
V.
Cumulative Error
Defendant contends the cumulative effect of the errors at his trial requires
reversal of his death sentence. We have found no prejudicial error at either phase
of trial. The defects we have identified, i.e., the omissions from the appellate
record, the faulty instruction on the felony murder special circumstance, and the
failure to properly reinstruct the jury at the penalty phase, do not, considered
together, warrant reversal.
W.
International Law
Capital punishment in California is not a violation of international law, nor
do the international norms asserted by defendant render the death penalty
unconstitutional under the Eighth or Fourteenth Amendment. (People v. Barnwell,
supra, 41 Cal.4th at p. 1059; People v. Bonilla, supra, 41 Cal.4th at p. 360.)
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
61
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Harris
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S037625
Date Filed: June 19, 2008
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Bert Glennon, Jr.
__________________________________________________________________________________
Attorneys for Appellant:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Joel
Kirshenbaum, Deputy State Public Defender, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Susan D. Martynec, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joel Kirshenbaum
Deputy State Public Defender
221 Main Street, Suite 1000
San Francisco, CA 94105
(415) 904-5600
Susan D. Martynec
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2250
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 06/19/2008 | 43 Cal. 4th 1269, 185 P.3d 727, 78 Cal. Rptr. 3d 295 | S037625 | Automatic Appeal | closed; remittitur issued | HARRIS (LANELL) ON H.C. (S144756) |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Susan D. Martynec, Deputy Attorney General 300 South Spring Street, 5th Floor Los Angeles, CA |
| 2 | Harris, Lanell Craig (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sf Joel Kirshenbaum, Deputy 221 Main Street, 10th Floor San Francisco, CA |
| 3 | Harris, Lanell Craig (Appellant) San Quentin State Prison Represented by Alfons G. Wagner Attorney at Law 14 Monarch Bay Plaza, #355 Monarch Beach, CA |
| Disposition | |
| Jun 19 2008 | Opinion: Affirmed |
| Dockets | |
| Jan 12 1994 | Judgment of death |
| Jan 27 1994 | Filed certified copy of Judgment of Death Rendered 1-12-94. |
| Jul 22 1998 | Order appointing State Public Defender filed For the direct Appeal. |
| Jul 22 1998 | Counsel appointment order filed Alfons G. Wagner Is appointed to represent Applt for Habeas Corpus/Executive Clemency Proceedings Related to the Automatic Appeal. |
| Aug 14 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Aug 18 1998 | Extension of Time application Granted To Applt To 10-23-98 To request Corr. of Record. |
| Aug 18 1998 | Filed: Additional Proof of Service of request for Eot. |
| Oct 19 1998 | Application for Extension of Time filed By Applt to request Record correction |
| Oct 26 1998 | Extension of Time application Granted To 12-22-98 To request Record correction |
| Nov 4 1998 | Compensation awarded counsel |
| Dec 2 1998 | Compensation awarded counsel |
| Dec 21 1998 | Application for Extension of Time filed By Applt to request Record correction |
| Dec 22 1998 | Extension of Time application Granted To 2-22-99 To request Record correction |
| Feb 9 1999 | Compensation awarded counsel |
| Feb 17 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Feb 26 1999 | Extension of Time application Granted To 4-26-99 To request Record correction no further Extensions of time Are Contemplated |
| Apr 14 1999 | Compensation awarded counsel |
| Apr 21 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 22 1999 | Compensation awarded counsel |
| Apr 29 1999 | Extension of Time application Granted To 6-25-99 To request Record correction no further Extensions of time will be granted |
| Jun 30 1999 | Compensation awarded counsel |
| Jul 7 1999 | Received: Letter from State P.D., dated 7-6-99, Advising Applt's motion to correct, Augment & Settle the Record Was filed in Superior Court on 6-24-99. |
| Jul 9 1999 | Received copy of appellant's record correction motion appellant's motion to correct, augment and settle the record (63 pp.) |
| Aug 16 1999 | Compensation awarded counsel Atty Wagner |
| Oct 6 1999 | Compensation awarded counsel |
| Dec 14 1999 | Compensation awarded counsel Atty Wagner |
| Feb 2 2000 | Compensation awarded counsel Atty Wagner |
| May 10 2000 | Compensation awarded counsel Atty Wagner |
| Jul 26 2000 | Counsel's status report received (confidential) from atty Alfons Wagner. |
| Aug 23 2000 | Counsel's status report received (confidential) from State P.D. |
| Oct 2 2000 | Counsel's status report received (confidential) from atty Wagner. |
| Oct 25 2000 | Counsel's status report received (confidential) from State P.D. |
| Nov 30 2000 | Counsel's status report received (confidential) from atty Wagner. |
| Dec 29 2000 | Counsel's status report received (confidential) from State P.D. |
| Feb 2 2001 | Counsel's status report received (confidential) from atty Wagner. |
| Feb 28 2001 | Counsel's status report received (confidential) from State P.D. |
| May 1 2001 | Counsel's status report received (confidential) from State P.D. |
| Jun 5 2001 | Counsel's status report received (confidential) from atty Wagner. |
| Jun 14 2001 | Compensation awarded counsel Atty Wagner |
| Jul 5 2001 | Counsel's status report received (confidential) from State P.D. |
| Sep 5 2001 | Counsel's status report received (confidential) from State P.D. |
| Sep 13 2001 | Compensation awarded counsel Atty Wagner |
| Sep 21 2001 | Counsel's status report received (confidential) from atty Wagner. |
| Nov 6 2001 | Counsel's status report received (confidential) from State P.D. |
| Nov 27 2001 | Counsel's status report received (confidential) from atty Wagner. |
| Dec 17 2001 | Counsel's status report received (confidential) from atty Wagner. |
| Jan 8 2002 | Counsel's status report received (confidential) from State P.D. |
| Jan 30 2002 | Counsel's status report received (confidential) from atty Wagner. |
| Mar 13 2002 | Counsel's status report received (confidential) from State P.D. |
| Apr 3 2002 | Counsel's status report received (confidential) from atty Wagner. |
| May 14 2002 | Counsel's status report received (confidential) from State P.D. |
| Jun 10 2002 | Counsel's status report received (confidential) from atty Wagner. |
| Jul 18 2002 | Counsel's status report received (confidential) from State P.D. |
| Aug 7 2002 | Counsel's status report received (confidential) from atty Wagner. |
| Sep 16 2002 | Counsel's status report received (confidential) from State P.D. |
| Oct 9 2002 | Counsel's status report received (confidential) from atty Wagner. |
| Nov 22 2002 | Counsel's status report received (confidential) from State P.D. |
| Dec 12 2002 | Counsel's status report received (confidential) from State P.D. |
| Jan 28 2003 | Counsel's status report received (confidential) |
| Feb 10 2003 | Counsel's status report received (confidential) from atty Wagner. |
| Feb 28 2003 | Record on appeal filed C-23 (5,135 pp.) and R-39 (4,039 pp.) including sealed material, and 4,153 pp. of juror questionnaires. |
| Feb 28 2003 | Appellant's opening brief letter sent, due: 4-9-2003. |
| Mar 20 2003 | Filed: one vol. of R.T. containing court reporter affidavits and 5 ascii disks. |
| Apr 1 2003 | Counsel's status report received (confidential) from State P.D. |
| Apr 1 2003 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Apr 8 2003 | Extension of time granted to 6/9/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totalijng 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate cousnel of record, of this schedule, and to take all steps necessary to meet it. |
| Apr 14 2003 | Counsel's status report received (confidential) from atty Wagner. |
| Apr 28 2003 | Change of Address filed for: habeas corups counsel Alfons G. Wagner. |
| Jun 2 2003 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Jun 4 2003 | Counsel's status report received (confidential) from State P.D. |
| Jun 5 2003 | Extension of time granted to 8/8/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Jun 11 2003 | Counsel's status report received (confidential) from atty Wagner. |
| Aug 1 2003 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Aug 1 2003 | Counsel's status report received (confidential) from State P.D. |
| Aug 7 2003 | Extension of time granted to 10/7/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Aug 12 2003 | Counsel's status report received (confidential) from atty Wagner. |
| Sep 30 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Sep 30 2003 | Counsel's status report received (confidential) from State P.D. |
| Oct 3 2003 | Extension of time granted to 12/8/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel if ordered to inform his or her assisting attorney or entity, if any, and any assisting attorne of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Oct 15 2003 | Counsel's status report received (confidential) from attorney Wagner. |
| Dec 2 2003 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Dec 2 2003 | Counsel's status report received (confidential) from State P.D. |
| Dec 4 2003 | Extension of time granted to 2/6/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assistingattorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Dec 15 2003 | Counsel's status report received (confidential) from atty Wagner. |
| Jan 30 2004 | Request for extension of time filed to file AOB. (6th request) |
| Feb 2 2004 | Counsel's status report received (confidential) from State P.D. |
| Feb 4 2004 | Filed: Supplemental declaration in support of application for extension of time to file appellant's opening brief. |
| Feb 13 2004 | Counsel's status report received (confidential) from atty Wagner. |
| Feb 17 2004 | Extension of time granted to 4/6/2004 to file appellant's opening brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Deputy State Public Defender Joel Kirshenbaum's representation that he anticipates filing that brief by 10/1/2004. |
| Mar 30 2004 | Request for extension of time filed to file appellant opening brief. (7th request) |
| Mar 30 2004 | Counsel's status report received (confidential) from State P.D. |
| Apr 12 2004 | Extension of time granted to June 7, 2004 to file appellant's opening brief. After that date, only two further extensions totaling 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Joel Kirshenbaym's representation that he anticipates filing that brief by October 1, 2004. |
| Apr 15 2004 | Counsel's status report received (confidential) from atty Wagner. |
| Apr 27 2004 | Compensation awarded counsel Atty Wagner $171.50 |
| May 12 2004 | Compensation awarded counsel Atty Wagner |
| Jun 1 2004 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Jun 2 2004 | Counsel's status report received (confidential) from State P.D. |
| Jun 4 2004 | Extension of time granted to 8/2/2004 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Joel Kirshenbaum's representation that he anticipates filing that brief by 10/1/2004. |
| Jul 26 2004 | Counsel's status report received (confidential) from State P.D. |
| Jul 26 2004 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Jul 30 2004 | Extension of time granted to 10-1-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon Deputy SPD Joel Kirshenbaum's representation that he anticipates filing the brief by 10-1-2004. |
| Aug 13 2004 | Counsel's status report received (confidential) from atty Wagner. |
| Oct 1 2004 | Filed: appellant's application to file opening brief exceeding 95,200 words. (AOB submitted under separate cover.) |
| Oct 8 2004 | Order filed Appellant's application to file opening brief exceeding 95,200 words is granted. |
| Oct 8 2004 | Appellant's opening brief filed (116,709 words; 398 pp.) |
| Oct 8 2004 | Filed: Supplemental declaration of service of appellant's opening brief. |
| Oct 18 2004 | Counsel's status report received (confidential) from atty Wagner. |
| Nov 2 2004 | Request for extension of time filed to file respondent's brief. (1st request) |
| Nov 5 2004 | Extension of time granted to 1/7/2005 to file respondent's brief. |
| Dec 16 2004 | Counsel's status report received (confidential) from atty Wagner. |
| Jan 3 2005 | Request for extension of time filed to file respondent's brief. (2nd. request) |
| Jan 6 2005 | Extension of time granted to 3/8/2005 to file respondent's brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon Supervising Deputy Attorney General Susan D. Martynec's representation that she anticipates filing that brief by 4/18/2005. |
| Feb 16 2005 | Counsel's status report received (confidential) from atty Wagner. |
| Mar 2 2005 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Mar 9 2005 | Extension of time granted to 4/18/2005 to file resopndent's brief. Extension is granted based upon Supervising Deputy Attorney General Susan D. Martynec's representation that she anticipates filing that brief by 4/18/2005. After that date, no further extension will be granted. |
| Apr 18 2005 | Counsel's status report received (confidential) from atty Wagner. |
| Apr 18 2005 | Respondent's brief filed (49956 words; 170 pp.) |
| May 2 2005 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| May 4 2005 | Extension of time granted to 7/8/2005 to file appellant's reply brief. |
| Jun 14 2005 | Counsel's status report received (confidential) from atty Wagner. |
| Jun 27 2005 | Counsel's status report received (confidential) (supplemental) from atty Wagner. |
| Jul 1 2005 | Request for extension of time filed to file reply brief. (2nd request) |
| Jul 7 2005 | Extension of time granted to September 6, 2005 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon Deputy State Public Defender Joel Kirshenbaum's representation that he anticipates filing that brief by early December 2005. |
| Aug 23 2005 | Counsel's status report received (confidential) from atty Wagner. |
| Aug 30 2005 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Sep 7 2005 | Extension of time granted to 11/7/2005 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy State Public Defender Joel Kirshenbaum's representation that he anticipates filing that brief by early December 2005. |
| Oct 31 2005 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Nov 4 2005 | Extension of time granted to 1-6-06 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Joel Kirshenbaum's representation that he anticipates filing the brief by 1-6-06. |
| Nov 9 2005 | Counsel's status report received (confidential) from atty Wagner. |
| Jan 6 2006 | Appellant's reply brief filed (44,521 words; 159 pp.) |
| Mar 27 2006 | Habeas funds request filed (confidential) |
| Apr 12 2006 | Order filed re habeas funds request (confidential) |
| Apr 27 2006 | Counsel's status report received (confidential) from atty Wagner. |
| Jun 30 2006 | Counsel's status report received (confidential) from atty Wagner. |
| Jul 3 2006 | Related habeas corpus petition filed (concurrent) No. S144756, by attorney Wagner. |
| Dec 14 2006 | Compensation awarded counsel Atty Wagner |
| Sep 27 2007 | Exhibit(s) lodged from LASC: People's Exhibits 59 & 60 |
| Oct 2 2007 | Note: exhibits which were lodged in our Los Angeles office on September 27, 2007, were received today in San Francisco. |
| Feb 14 2008 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the April 2008 calendar, to be held April 1 through 4, 2008, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Apr 9 2008 | Case ordered on calendar to be argued on Monday, May 5, 2008, at 1:30 p.m. in San Francisco |
| Apr 18 2008 | Received: appearance sheet from Deputy Attorney General Susan D. Martynec, indicating 45 minutes for oral argument for respondent. |
| Apr 18 2008 | Filed: respondent's focus issues letter, dated April 16, 2008. |
| Apr 21 2008 | Filed: appellant's focus issues letter, dated April 21, 2008. |
| Apr 21 2008 | Received: appearance sheet from Deputy Public Defender, Joel Kirshenbaum indicating 45 minutes for oral argument for appellant. |
| Apr 25 2008 | Received: appellant's letter of additional authorities for oral argument, dated April 25, 2008. |
| May 5 2008 | Cause argued and submitted |
| Jun 5 2008 | Exhibit(s) lodged from superior court. People's 49A-49E. (photos) |
| Jun 6 2008 | Note: exhibits which were lodged in our Los Angeles office on June 5, 2008, were received today in San Francisco. |
| Jun 18 2008 | Notice of forthcoming opinion posted |
| Jun 19 2008 | Opinion filed: Judgment affirmed in full opinion by Corrigan, J -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ |
| Jul 3 2008 | Rehearing petition filed by appellant (1,419 words; 8 pp.) |
| Jul 9 2008 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 17, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jul 30 2008 | Rehearing denied The petition for rehearing is denied. George, C.J., was absent and did not participate. |
| Jul 30 2008 | Remittitur issued (AA) |
| Jul 31 2008 | Exhibit(s) returned to Los Angeles Superior Court. People's exhibit no's. 49A, 49B, 49C, 49D, 49E, 59 and 60. |
| Aug 8 2008 | Note: Exhibits People's #59 & #60 returned to Superior Court this date. |
| Aug 8 2008 | Note: Exhibts 49a(photo), 49b(photo), 49c(photo), 49d(photo), 49e(photo) returned to Superior Court this date. |
| Aug 13 2008 | Received: receipt for remittitur. |
| Aug 15 2008 | Received: acknowledgment for receipt of exhibits from superior court. |
| Oct 29 2008 | Received: copy of petition for writ of certiorari dated October 27, 2008. (17 pp. excluding appendices.) |
| Nov 6 2008 | Received: letter from USSC, dated November 3, 2008, advising that a petition for writ of certiorari was filed on October 28, 2008 and placed on the docket November 3, 2008 as No. 08-7034. |
| Jan 12 2009 | Certiorari denied by U.S. Supreme Court |
| Apr 23 2009 | Compensation awarded counsel Atty Wagner |
| Briefs | |
| Oct 8 2004 | Appellant's opening brief filed |
| Apr 18 2005 | Respondent's brief filed |
| Jan 6 2006 | Appellant's reply brief filed |
