Filed 8/29/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S058092
v.
Los Angeles County
MAURICE LYDELL HARRIS,
Super. Ct. No. YA020916
)
Defendant and Appellant.
A jury found defendant Maurice Lydell Harris guilty of the attempted
murder of Bernard Canto (Pen. Code, §§ 187, 664)1 and the murders of Alicia
Allen and her fetus (§ 187), finding that he committed the murders under the
special circumstances of felony-murder robbery, felony-murder burglary (§ 190.2,
subd. (a)(17)(A), (G)), and multiple murder (§ 190.2, subd. (a)(2)). The jury also
found defendant guilty of robbery and burglary (§§ 211, 459), and found that he
personally used a firearm in the commission of the attempted murder (§ 12022.5),
that he was personally armed during the commission of the murders, the robbery,
and the burglary (§ 12022, subd. (a)(1)), and that he inflicted great bodily injury in
the commission of the attempted murder (§ 12022.7, subd. (a)). After a penalty
trial, the jury returned a verdict of death for the murder of Allen, and life without
the possibility of parole for the murder of Allen’s fetus. The court denied the
automatic motion to modify the verdict of death (§ 190.4) and imposed that
sentence. This appeal is automatic. (§ 1239, subd. (b).)
1
Unless otherwise indicated, all section references are to the Penal Code.
1
We affirm the judgment.
I. FACTS
A. Guilt Phase
1.
Prosecution
Evidence
At 10:25 p.m. on August 9, 1994, a Gardena police officer on patrol saw
Bernard Canto stumble and fall to the pavement in front of his police car on South
Vermont Boulevard. Canto stated he had been shot near where his van was
parked. The police found Canto’s van parked nearby in front of the gated
apartment complex where defendant lived. On the passenger side of the van they
found blood and nine-millimeter shell casings. Across the street they found a
bloody shirt and a pair of bloody shorts containing a wallet, papers, and phone
cards bearing Canto’s name, $150 in cash, and a beeper.
The security officer on duty at defendant’s apartment complex told police
that, earlier that night, two men talked to him for a short time in the security
office, and approximately a half-hour later he heard gunshots outside the security
gates. He saw a white car and a blue car that had been in the middle of the street
back up and drive off in the wrong direction down South Vermont Boulevard.
At 11:11 p.m., within an hour of Canto’s shooting, the Gardena police
responded to a call regarding a shooting at Canto’s house on West Marine Avenue,
approximately 1.6 miles from the site of the South Vermont Boulevard shooting.
Loud music could be heard coming from inside the house. A chain-link fence
surrounded the house, and a security gate on the front door was shut and locked.
The police went to the back of the house through an open gate and found a
bloodstain and a jammed nine-millimeter Beretta handgun on the driveway. Inside
the house they found Canto’s fiancée, Alicia Allen, who was 17 weeks pregnant,
2
lying face down on the bed with her hands tied behind her back with a sock and
twine. She had been shot twice in the head. Allen and her fetus were dead.
In the dining room police found an open key box on the wall and keys
scattered on the floor. The living room couch was in disarray, and amidst the
upended cushions police found a gold chain and a broken fingernail with nail
polish matching that worn by Allen. The bedroom had been ransacked. A nine-
millimeter handgun and bullets were in a dresser drawer that had been pulled out
of the dresser and placed on the bed, and expended bullets and shell casings were
found on the floor.
The gun found in the driveway, which bore no discernable fingerprints, had
fired all of the bullets used to shoot Allen and Canto, as well as the bullets from
the bedroom. The bloodstain in the driveway possessed genetic characteristics
consistent with defendant’s blood. From the area where the bloodstain was found,
police found trace amounts of human genetic material that did not match either
Allen or defendant and that could have come from any bodily fluid. The police
could not determine how long that material had been on the driveway.
Several of Canto’s neighbors on West Marine Avenue testified that on the
night of August 9, 1994, they saw two Black men dressed in dark clothing
approach Canto’s house. One of the men stayed on the sidewalk in front of the
security gate, and the other went to the front door where he met and talked to
Allen, and then went inside with her. Within 10 or 15 minutes the neighbors heard
three or four gunshots in quick succession, and shortly thereafter saw two Black
men fleeing on foot eastward on West Marine Avenue, at least one of whom was
limping. One of the men was husky and six feet tall and may have worn his hair
in dreadlocks or a ponytail. The other man was thin and may have worn a hat.
The neighbors did not see anyone else come out of Canto’s house, or see anyone
3
get into a car and drive away. (The record gives no indication of the identity of
the other person.)
Although Canto survived the shooting of August 9, 1994, he was murdered
in Chicago in November 1995, and therefore was unavailable to testify at trial in
1996. The prosecution read into the record the transcript of his preliminary
hearing testimony.
Canto testified that in August 1994, he earned a living by restoring and
selling cars bought at auction. He paid cash for the cars, and often kept large sums
of money in the house he shared with Allen on West Marine Avenue. On August
9, 1994, at 8:30 p.m., Canto received a call from defendant, whom he considered
to be his friend and with whom he had engaged in several business dealings.
Defendant told Canto to pick him up at the corner of Normandie and Rosecrans
Avenues and defendant would repay a debt of $1,500 he owed Canto. Canto left
his house at 9:30 or 10:00 p.m., picked up defendant, and drove back to
defendant’s apartment complex on South Vermont Boulevard. He and defendant
went upstairs to defendant’s apartment, but because defendant had forgotten his
keys they could not get in. On their way back to Canto’s van they stopped and
talked to the security guard of the apartment complex and asked him if he had an
extra key to the apartment. Canto and defendant then got back into Canto’s van
and returned to an address at Normandie and Rosecrans Avenues where defendant
retrieved his apartment keys from his girlfriend. Canto and defendant then
returned to defendant’s apartment complex.
Canto testified that he parked his van in front of defendant’s apartment, got
out, locked the door, walked around the van, and heard repeated gunshots. He
turned around and saw defendant shooting at him from seven feet away, with his
arm outstretched holding a black nine-millimeter gun. Canto asked defendant,
“Maurice, why?” Defendant laughed. Canto testified bullets hit him in the back,
4
side, and hip. He fell, then got up and walked to the side of the street where he
encountered the police car.
Canto told police that when he left his house that evening everything was in
order. Allen was alive, wearing a pair of diamond earrings, a gold chain, an
engagement ring, a gold wedding band, a class ring, and another gold ring. Three
of these rings she wore all the time and never took off. He kept $500 in cash in
the bedroom drawer. When Canto returned to the house after a month in the
hospital, he did not specifically check for missing items, but he did note that the
$500 in cash and a car phone were missing.
Canto did not at first identify defendant as the man who shot him. At the
scene of the shooting, when paramedics were attending to his wounds, he told
police his shooter was a Black male, 29 to 30 years old. A detective of the
Gardena Police Department testified that when he interviewed Canto in the
intensive care unit of the hospital in the early morning of the second day following
the shooting, Canto first told him a Black male had come up and shot him for no
apparent reason. The detective testified that it was clear Canto did not know at the
time of that interview that Allen was dead, and when the detective told Canto that
Allen had been murdered less than an hour after he had been shot, Canto became
very upset, started to cry, and had to be sedated. The detective returned to the
hospital the next day and interviewed Canto again. Canto then identified
defendant by name as his shooter, described in detail the events of the night of the
shooting, and picked defendant’s photograph from a photo lineup.
Canto admitted that he lied the first two times the police interviewed him
when he denied knowing the identity of his shooter, and explained that he did so
because he was not thinking straight, was in pain, and intended to “take care of the
matter” himself by killing defendant.
5
Regina Mills testified that for three or four weeks before September 16,
1994, the date of his arrest, defendant stayed with her at her Los Angeles
apartment. Defendant had short hair, but Mills saw him wear a long, curly-haired
wig the entire time he was staying with her. She testified defendant limped and
used a cane, and she saw a long, deep, burn-like injury starting near the knee and a
hole that looked like a gunshot wound on defendant’s right leg. She saw an injury
on a toe on his right foot.
Mills testified that while staying at her apartment, defendant met with other
men and women, often left the apartment for an hour or two, and made and
received numerous phone calls. Mills overheard defendant on the phone say, in a
stressed and worried tone, that he should have gone to Allen’s funeral, and that
someone who “lived” was in the hospital. Two days before defendant’s arrest,
Mills heard him talk about leaving town. Defendant told Mills the police were
looking for him and that he had injured his leg in a shootout during a robbery
during which “another guy” had also been shot. He said he thought he shot a
pregnant woman. In exchange for her testimony, Mills received immunity from
prosecution for charges of harboring a fugitive and receiving stolen property, and
was placed in a witness relocation program.
When the police arrested defendant at Mills’s apartment, defendant was
carrying a map of Atlanta, telephone numbers for Amtrak railway and Greyhound
Bus, marijuana, and a tube of mascara. He was wearing eyeliner, and he was
limping. He initially identified himself to the police as Kenny Jordan.
Defendant’s duffle bag contained men’s clothing, medicine, six Greyhound Bus
tickets to Atlanta, cash, and a large amount of cocaine. After his arrest, defendant
called Mills and threatened to kill her because he thought she had informed the
police of his whereabouts.
6
2. Defense Evidence
Defendant testified about the night of the shootings. He admitted that he
had told no one the version of events he gave at trial. He denied killing Allen and
her fetus, and explained that the shooting resulted from a drug deal gone bad. He
explained he went to Canto’s house to deliver cocaine and encountered two men
who shot and tried to kill him before he made his escape.
Defendant informed the jury that he had been convicted of federal drug
possession charges in 1988 and was incarcerated in a federal prison until August,
1993. He was on a Christmas furlough in 1992 when he met Canto. When he was
released from federal prison he worked at World Class Coach, an auto body shop
in Los Angeles where Canto often brought cars for repair.
Defendant and Canto went into business together dealing drugs. Defendant
described himself as “kind of a popular guy,” who had a lot of drug world
connections because of his recent federal incarceration and explained that he and
Canto had engaged in seven large-scale cocaine deals and numerous marijuana
deals between March and August of 1994. He said his role in these deals was “the
middle man” who put together buyers with sellers and explained how he was able
to get cheaper prices from certain “contacts” and thereby increase his profits. He
had expertise in the “cutting and cooking” of cocaine; he explained how he would
use a microwave oven to turn powdered cocaine into rock cocaine, and how he
would use specially fashioned metal boxes to compress what he called “procaine”
into a “dummy kilo” of fake cocaine to be used to swindle people in drug deals.
Defendant told the jury he was motivated by the “greed and easy money and ego
and thrill” associated with drug sales.
On the morning of August 9, 1994, Canto contacted defendant at his
apartment and told him he had a deal set with buyers from Chicago who wanted to
purchase a kilogram of cocaine for $16,000. Defendant went to Canto’s house on
7
West Marine Boulevard to discuss the details of the transaction; defendant would
get the cocaine and Canto would page defendant when he was ready to receive the
drugs on behalf of the buyers. That afternoon, defendant went to his supplier,
“Greg,” who did not have the exact amount of cocaine defendant wanted but who
did have a dummy kilo of fake cocaine defendant had made for him earlier in the
week. Greg and defendant decided to use the fake cocaine in the deal with Canto,
and Greg agreed to give defendant an additional nine ounces of real cocaine, worth
about $4,500, as his payment for conducting the sale of the fake cocaine.
Defendant explained that although there was a lot of trust between drug dealers, he
decided not to tell Canto the cocaine he would deliver to the buyers was fake.
Defendant testified Canto paged him around 10:00 p.m.2 Twenty minutes
later, defendant drove up to his apartment complex on South Vermont Boulevard
and saw Canto standing on the street leaning into a midsized car. Defendant and
Canto went upstairs to defendant’s apartment. Defendant testified he began to
have second thoughts about going through with the deal with the fake cocaine
because the buyers now knew where he lived; he also stated, however, that he was
not concerned that at the time of the exchange the buyers would test the kilo and
discover the fraud because Canto told him the buyers were in a hurry and would
take the cocaine and go directly to the airport and leave for Chicago. He
explained, “most of the time, believe it or not, that is how it goes.” He thought
that a possible way to get out of making the deal would be to make a complaint at
the security office of the apartment complex that one of his cars was missing and
2
Defendant testified on direct examination that Canto initially paged him
“around 10:00 p.m.” On cross-examination, he said that the shootings inside the
house on West Marine Boulevard, which occurred substantially later than the
paging, happened just after 10:00 p.m. (Canto encountered the police on South
Vermont Boulevard just after he was shot at 10:25 p.m.; Canto’s neighbors
reported the shootings at West Marine Boulevard at 11:11 p.m.)
8
have the security officer contact the police. Defendant acknowledged that his
“greed outweighed his [concerns about] safety,” and it never occurred to him to
merely tell Canto that he had not been able to get the amount of cocaine he
wanted.
On their way back to the buyer’s car to get the money, defendant and Canto
did stop to talk to the security guard at the apartment complex. The conversation
lasted about 10 minutes. Canto then got the money from the buyers. Defendant
and Canto returned to defendant’s apartment where defendant gave Canto the kilo
of fake cocaine. Canto then told defendant he wanted four more ounces of cocaine
right away. Defendant agreed to get it from Greg and bring it to Canto’s house as
soon as possible. Canto left, and two minutes later defendant took the $16,000
back to Greg’s apartment, stayed there for 20 minutes, picked up the extra four
ounces of cocaine for Canto and $200 in cash, and left for Canto’s house on West
Marine Avenue.
Defendant testified that when he got to Canto’s house, he parked the car
behind Canto’s red van in the driveway. When he got inside the house, a man put
a gun to his side and said, “Come on in, boy.” Another man pushed him to the
ground, kicked him, and tied his hands behind his back with an extension cord.
Someone asked him where their money was, and said, “Go do something.” He
could not see the faces of these people, but he could hear their footsteps in the
house and he heard someone go out the back door.
Defendant decided his only chance to survive was for him also to go out the
back door, so he loosened his hands from the extension cord behind his back and
started to run. He heard gunshots, and thought the people inside the house were
shooting at him. As he was going down the back steps a man who was taller than
he and who had long hair grabbed him from the front, “like a bear hug.” A second
man grabbed him from behind, then reached in and put a gun between defendant
9
and the first man, who was still holding him in the bear hug. The second man then
shot defendant in the right leg and defendant fell to the ground. The first man also
cried out that he had been shot. Defendant assumed that he and the first man had
been hit by the same bullet.
The second man then pointed the gun at defendant and tried to shoot him in
the face but the gun jammed and the man threw the gun to the ground. Both the
first and second man then ran around one side of the house. Defendant ran in the
opposite direction around the other side of the house and through the front gate to
his car. He drove to his girlfriend’s house in Inglewood and stayed there for two
or three days. From there he went to Greg’s house in Pasadena and stayed there
until he was healed, about three weeks.
Defendant testified he spent time at Mills’s apartment before his arrest on
September 16, 1994. He feared returning to his own apartment; he continued to
conduct his drug business from Mills’s apartment. Defendant stated that Mills
sold marijuana for him and that he used her apartment to store cocaine. He denied
wearing makeup or a wig. He explained that the mascara in his pocket at his arrest
must have gotten there when Mills gave him some marijuana and he put it in his
pocket. He denied telling Mills about the events at Canto’s house.
Defendant
acknowledged
that he did have earlier plans to go to Atlanta to
visit a girlfriend but changed his plans before August 9, 1994, and at the time of
trial he did not know how to contact his Atlanta girlfriend. He testified that he had
also lost contact with the girlfriend in Inglewood, and that Greg died in 1994 or
1995 while defendant was awaiting trial. He further acknowledged that he gave
false identities to police both when he was arrested for drugs in 1988 and when he
was arrested for Allen’s murder on September 16, 1994, and that he gave false
information on an employment application, on his California driver’s license
application, and on his rental application.
10
B. Penalty Phase
1. Prosecution Evidence
At the penalty phase, Alicia Allen’s mother, Pamela Gunn, testified to the
close relationship she had with Allen, her only child, whom she raised alone. She
related how Allen was artistic, and had done well in high school where she was on
the debate team. She was a cheerleader and a dancer. Allen had attended some
college, but subsequently left school and left home. Gunn testified that on
Mother’s Day 1994, just months before the murders, Allen had showed off a
diamond engagement ring and spoken of plans to marry Canto and return to
college in the fall. Gunn described how she learned of the murder, and of the
emotional and financial costs involved in planning and attending the funeral. She
presented a photograph of Allen’s gravesite and testified about the emotional toll
she and her family experienced at the mortuary in viewing Allen’s naked body and
seeing two gaping bullet wounds to the head, broken fingernails, and an “ugly”
autopsy incision. She testified about the impact Allen’s death had had on her.
Allen’s grandmother also testified about the impact of Allen’s death and her
viewing of the body.
On cross-examination, the defense established that Gunn had not had direct
contact with Allen for over a year, that she had not known where Allen lived, and
that Allen was working at minimum wage jobs.
2. Defense Evidence
Defendant’s community college track coach testified that he was a hard
worker and a quiet, respectful student who had the potential to be a world-class
athlete. An employee at Edwards Air Force Base testified that while defendant
was an inmate at the Boron Federal Prison for his 1988 drug possession
conviction, she supervised his work on projects at the airbase. He and other
inmates were bused to the airbase from the prison grounds. She supervised his
11
work for eight or nine months, during which time she found him to be quiet when
spoken to, and an average and obedient worker. He treated her with respect. A
deputy attorney general who knew defendant through a church-sponsored prison
ministry fellowship testified defendant stayed in his home for two weeks during
his federal prison furlough. He found defendant to be respectful and interested in
sports. Finally, Canto’s ex-wife testified she had seen Canto with $6,000 in cash
in a brown paper bag and she could not account for the source of the money. She
had never seen Canto with illegal drugs.
II. DISCUSSION
A. Jury Selection Issues
Defendant claims the trial court erred in granting four of the prosecution’s
challenges for cause. He also claims the court excused a qualified juror and, in
conducting assertedly inadequate voir dire, restricted his ability to determine the
qualification of three other jurors.
“The trial court may excuse for cause a prospective juror whose views on
the death penalty would prevent or substantially impair the performance of that
juror’s duties.” (People v. Smith (2003) 30 Cal.4th 581, 601; see also Wainwright
v. Witt (1985) 469 U.S. 412.) On appeal, we will uphold the trial court’s ruling if
it is fairly supported by the record, and we accept as binding the trial court’s
determination as to a prospective juror’s true state of mind when that juror has
made conflicting or ambiguous statements. (Smith, at p. 602.)
Because the record supports the trial court’s findings that Prospective Juror
L.S.’s personal feelings would prevent her from being able to impose the death
penalty, and because the voir dire of Prospective Jurors J.R., D.B., and J.P. was
not inadequate, defendant’s claims of error have no merit.
12
In the 17-page written questionnaire, Prospective Juror L.S. indicated she
would “probably get cold feet” and would not want the personal responsibility of
deciding to actually impose the death penalty. During voir dire, she stated that she
would have to be convinced “that there was [sic] no kind of mitigating
circumstances at all before I could see being responsible for putting somebody to
death.” The court explained, “[t]he law does not say in order to come back with
death there be no mitigating circumstances,” and “[when] the aggravating factors
so substantially outweigh the mitigating then the juror should vote for death and
not otherwise.” When asked, “Could you follow that instruction or are you going
to want something else to use, some different standard of your own?,” L.S. replied,
“It is like I said. It would have to be overwhelmingly is how I feel about it.
Overwhelmingly aggravating circumstances.”
Defendant argues the trial court should have ceased voir dire when L.S.
said she did not like the death penalty but could impose it under “overwhelmingly
aggravating circumstances.” He argues the following colloquy should not have
occurred:
“Court: I want to know within your heart of hearts in your case, not some
other case, this case, if you could actually give both sides a fair call on penalty if
we have a penalty phase or are you going to set an unrealistic standard for yourself
that could never be met?
“L.S.: I don’t think I can put somebody to death, no.
“Court: Both sides are entitled to have 12 jurors that, if necessary, can
make that choice and make the choice based on the law that I outlined and make it
fair for the defendant, fair for the prosecution, the sides they represent here. Do
you believe you are a juror who can do that or do you think that your abilities are
substantially impaired by your feelings about the death penalty?
13
“L.S.: Really I don’t think that I could vote for the death penalty, no . . . .
Not knowing any circumstances about the case or like you say mitigating and
aggravating, I am 80 or 90 percent sure I couldn’t do it.”
Defendant did not object to this voir dire and therefore has forfeited the
claim for appeal. (People v. Benavides (2005) 35 Cal.4th 69, 88.) In any event,
the claim has no merit. Contrary to defendant’s assertions, the additional
questioning was not misleading or confusing. These questions aided in
determining whether L.S. harbored any bias that would prevent her from following
the instructions to consider aggravating and mitigating evidence (People v. Cash
(2002) 28 Cal.4th 703, 721–722), and allowed the court to identify a juror whose
death penalty views would prevent or substantially impair the performance of her
duties as a juror (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47). L.S.’s
answers also demonstrated her inability and unwillingness to engage in the
weighing process necessary to determine whether death was the appropriate
penalty, and the trial court reasonably could find substantial impairment in L.S.’s
abilities to perform duties as a juror. (See People v. Stewart (2004) 33 Cal.4th
425, 447; People v. Griffin (2004) 33 Cal.4th 536, 558-562.) We reject
defendant’s assertion that Prospective Juror L.S. was improperly excused.
Defendant’s challenge to the adequacy of the voir dire of Prospective Jurors
J.R., D.B., and J.P. also lacks merit. J.R. indicated in the questionnaire that he was
not comfortable with the death penalty and that he would “always vote for life
imprisonment without possibility of parole and reject the death penalty, regardless
of the evidence presented at trial.” During voir dire by the court he said that he
had held these beliefs about the death penalty for a long time. D.B. stated in the
questionnaire that he believed the death penalty was appropriate in some
circumstances and should be used as a last resort, but also stated he would always
vote for life imprisonment, and that the responsibility of making such a decision
14
was more than he could handle. Brief voir dire by the court revealed that D.B.
would always vote for life without possibility of parole. J.P. gave conflicting and
confusing answers to questions posed in both the questionnaire and voir dire, and
the court determined she was not capable of understanding the basic concepts
involved in a death penalty case.
Defendant claims the court did not ask enough questions to resolve the
apparent ambiguities shown in these jurors’ answers. We disagree. “ ‘[W]e pay
due deference to the trial court, which was in a position to actually observe and
listen to the prospective jurors. Voir dire sometimes fails to elicit an unmistakably
clear answer from the juror, and there will be times when “the trial judge is left
with the definite impression that a prospective juror would be unable to faithfully
and impartially apply the law. . . . [T]his is why deference must be paid to the trial
judge who sees and hears the juror.” ’ ” (People v. Griffin, supra, 33 Cal.4th at p.
559.) Such findings by the trial court are generally binding if the prospective
juror’s responses are equivocal or conflicting. (Id. at p. 558; People v. Ashmus
(1991) 54 Cal.3d 932, 962.) The record supports the court’s findings that each of
these prospective jurors lacked either the ability or the willingness to engage in the
performance of duties as jurors in a death penalty case, and we defer to its decision
that no further questions were necessary.
B. Guilt Phase Issues
1. Evidentiary Rulings
a. Admission of Evidence
i. Videotape of victim
Defendant claims the court committed error in admitting a videotape of
Alicia Allen taken two weeks before her murder. He renews the objection made at
trial pursuant to Evidence Code section 352 that the tape was more prejudicial
than probative.
15
Courts should be cautious in the guilt phase about admitting photographs of
murder victims while alive, given the risk that the photograph will merely generate
sympathy for the victims. (People v. Osband (1996) 13 Cal.4th 622, 677.) But the
possibility that a photograph will generate sympathy does not compel its exclusion
if it is otherwise relevant. (People v. DeSantis (1992) 2 Cal.4th 1198, 1230.) The
decision to admit victim photographs falls within the trial court’s discretion, and
an appellate court will not disturb its ruling unless the prejudicial effect of the
photographs clearly outweighs their probative value. (People v. Navarette (2003)
30 Cal.4th 458, 495.)
Allen’s mother testified that Allen regularly wore numerous pieces of
jewelry that she never took off, including a diamond engagement ring and a high
school class ring. The prosecution played a silent, 40-second-long portion of a
videotape taken of Allen at a child’s birthday party two weeks before her death.
Her mother identified the engagement ring and several necklaces shown on the
videotape, and testified that with the exception of a small “pinky” ring, none of the
jewelry shown in the videotape or any other pieces of Allen’s jewelry were ever
recovered.
Defendant claims the videotape was more prejudicial than probative, and
the videotape showing a children’s birthday party was emotionally charged and
served to highlight Allen’s “innocent nature.” We disagree. The videotape was
relevant to proving Allen owned and wore jewelry that allegedly was stolen during
the course of the murders, and was not made inadmissible, as defendant argues,
because the prosecution could have established the same relevant fact by other
means. (People v. Navarette, supra, 30 Cal.4th at pp. 495–496.) We have
reviewed the videotape and agree with the trial court that although it was taken
during the course of a child’s birthday party, it does not engender an emotional
16
reaction but is neutral and unremarkable. The court acted within its discretion in
admitting the evidence.
ii.
Canto’s
preliminary hearing testimony
Defendant next claims the court erred in admitting Canto’s preliminary
hearing testimony. Because defendant objected only to the deletion of certain
portions of Canto’s testimony and not to its admission per se, he failed to preserve
this claim for appeal. (Evid. Code, § 353.)
In addition, the claim lacks merit. “The confrontation clauses of both the
federal and state Constitutions guarantee a criminal defendant the right to confront
the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const.[,] art. I, § 15.)
That right is not absolute, however. An exception exists when a witness is
unavailable and, at a previous court proceeding against the same defendant, has
given testimony that was subject to cross-examination.” (People v. Cromer (2001)
24 Cal.4th 889, 892.) Such statements are not made inadmissible by the hearsay
rule if the cross-examination was made “with an interest and motive similar” to
that at the prior proceeding. (Evid. Code, § 1291, subd. (a)(2).) In this case,
Canto’s death rendered him unavailable to testify at trial. (Evid. Code, § 240,
subd. (a)(3).) Accordingly, the prosecution introduced an edited version of
Canto’s preliminary hearing testimony. (Id., § 1291, subd. (b).)3
Defendant argues that at the time of the preliminary hearing, counsel did
not know of Canto’s illegal drug activities, and consequently he did not have an
opportunity to cross-examine with the same interest and motive as he would have,
3
Evidence Code section 1291, subdivision (b), provides: “The admissibility
of former testimony under this section is subject to the same limitations and
objections as though the declarant were testifying at the hearing, except that
former testimony offered under this section is not subject to: ¶ (1) Objections to
the form of the question which were not made at the time the former testimony
was given, ¶ (2) Objections based on competency or privilege which did not exist
at the time the former testimony was given.”
17
had Canto been available at trial. He asserts that the testimony gave the jury a
false and misleading impression of Canto’s credibility and thereby undermined
defendant’s right to a fair determination of guilt and penalty. Defendant cannot
now be heard to complain that the defense did not know of Canto’s drug dealing
prior to the preliminary hearing; by his own admission at trial, he and Canto had
been engaged in drug dealing for some time before August 9, 1994.
Moreover, a defendant’s interest and motive at a second proceeding is not
dissimilar to his interest at a first proceeding within the meaning of Evidence Code
section 1291, subdivision (a)(2), simply because events occurring after the first
proceeding might have led counsel to alter the nature and scope of cross-
examination of the witness in certain particulars. (People v. Alcala (1992) 4
Cal.4th 742, 784.) The “motives need not be identical, only ‘similar.’ ” (People v.
Samayoa (1997) 15 Cal.4th 795, 850.) “Both the United States Supreme Court
and this court have concluded that ‘when a defendant has had an opportunity to
cross-examine a witness at the time of his or her prior testimony, that testimony is
deemed sufficiently reliable to satisfy the confrontation requirement [citation],
regardless whether subsequent circumstances bring into question the accuracy or
the completeness of the earlier testimony.’ ” (People v. Wilson (2005) 36 Cal.4th
309, 343; see California v. Green (1970) 399 U.S. 149.)
Defendant’s interest
and motive in cross-examining Canto at the preliminary hearing were similar to
those at trial: to challenge Canto’s credibility and discredit his account of the
shooting. Defense counsel conducted an in-depth cross-examination twice as long
as the direct examination, which succeeded in eliciting evidence that challenged
Canto’s credibility.4 Accordingly, defendant’s opportunity to cross-examine
4
Canto admitted he twice lied to police when asked if he knew the identity
of his shooter.
18
Canto at the preliminary hearing satisfied the confrontation clause, and any
objection to the preliminary hearing testimony would have lacked merit.
iii. Testimony regarding Canto’s statements
Two witnesses testified about statements Canto made after the shootings.
Defendant claims the court erred in admitting the evidence.
At the preliminary hearing Canto denied being a “loan shark” and described
himself as a businessman who fixed and resold cars bought for cash at auction.
Detective Davila of the Gardena Police Department impeached Canto when Davila
testified for defendant on direct examination regarding a small portion of a
telephonic interview he conducted while Canto was still in the hospital. He
testified Canto admitted that the reason he had large quantities of cash at his house
was because he was in the illegal “loan shark” business.
On cross-examination of Davila, the prosecution established that Canto
initiated the telephonic interview in the hospital by asking a nurse to call the police
so he could “set the record straight” and tell the police information regarding his
shooting and the murder of Allen, and so he could explain that at all prior police
contacts, he had lied when he denied knowing the identity of his shooter. Over
objection that it was beyond the scope of direct examination, Davila then testified
about what Canto told him were the events of the evening of August 9, 1994,
wherein Canto said that he had lent money to defendant, that defendant had
contacted him that afternoon in order to repay the loan, that while driving
defendant to and from his apartment in an effort to get the money owed, defendant
shot him, that he lied to the police initially when he told them he did not know the
identity of the shooter, that he explained “if it took him the rest of his life, he was
going to get even and take care of the defendant himself,” but after learning while
in the hospital that Allen had been murdered, Canto decided it “was no longer
personal” and wanted the police to get involved. With the exception of his
19
admission that he was a “loan shark,” this was essentially the same evidence Canto
testified to at the preliminary hearing.
Defendant claims the court erred in admitting the portion of Canto’s
hospital interview elicited during cross-examination because that testimony was
beyond the scope of direct examination.
A witness may be cross-examined on any matter within the scope of direct
examination. (Evid. Code, § 773.) “Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the same
subject may be inquired into by an adverse party . . . .” (Id., § 356.) “ ‘In
applying Evidence Code section 356 the courts do not draw narrow lines around
the exact subject of inquiry. “In the event a statement admitted in evidence
constitutes part of a conversation or correspondence, the opponent is entitled to
have placed in evidence all that was said or written by or to the declarant in the
course of such conversation or correspondence, provided the other statements have
some bearing upon, or connection with, the admission or declaration in
evidence. . . .” [Citation.]’ ” (People v. Zapien (1993) 4 Cal.4th 929, 959.)
Further, the jury is entitled to know the context in which the statements on direct
examination were made. (People v. Sanders (1995) 11 Cal.4th 475, 520 [where
defense counsel elicited portions of investigative interview with witness,
prosecution not foreclosed from inquiring into context of statements on redirect
examination of witness and cross-examination of investigator].)
Canto’s admission to Davila that he participated in illegal loan shark
activity contradicted his preliminary hearing testimony and was placed into
evidence by defendant. The prosecution was entitled to present the entire context
in which Canto made the admission, including his explanation of the events of the
August 9 shooting, which he asserted arose out of his loan shark activity. The
20
court did not err in allowing Davila to testify to the remainder of Canto’s hospital
admission.
Defendant further claims these statements elicited on cross-examination of
Davila were inadmissible hearsay. By not objecting to admission of the
statements as hearsay, defendant failed to preserve the issue for appeal. (People v.
Williams (1997) 16 Cal.4th 635, 681.) Were we to consider the claim on the
merits, it would fail. The statements were admissible for the nonhearsay purpose
of placing Canto’s statements into context. (People v. Turner (1994) 8 Cal.4th
137, 190.)
Over objection, the prosecution called in rebuttal Lyndon Bull, the owner
and manager of the World Class Coach Works auto body shop where both
defendant and Canto worked. He testified he had known defendant since high
school; that in late 1993 or early 1994, he had given defendant a full-time job for
$150 a week “pick[ing] up parts”; that he was training Canto to do repair
estimates; and that when defendant eventually failed to show up for work
following the shootings his friends and family and coworkers looked for him for
nearly a month but did not find him and defendant never called or showed up at
work again.
Defendant argues, as he did at trial, that this was improper rebuttal
evidence. The decision to admit rebuttal evidence rests largely within the
discretion of the trial court and will not be disturbed on appeal in the absence of
demonstrated abuse of that discretion. (Evid. Code, § 1093, subd. (d); People v.
DeSantis, supra, 2 Cal.4th at p. 1232.) “ ‘[P]roper rebuttal evidence does not
include a material part of the case in the prosecution’s possession that tends to
establish the defendant’s commission of the crime. It is restricted to evidence
made necessary by the defendant’s case in the sense that he has introduced new
evidence or made assertions that were not implicit in his denial of guilt.’ ”
21
(People v. Young (2005) 34 Cal.4th 1149, 1199, quoting People v. Carter (1957)
48 Cal.2d 737, 753–754.)
The rebuttal testimony of Lyndon Bull as to the limited scope of
defendant’s job at the auto body shop properly challenged defendant’s testimony
that he was “basically [the] assistant manager” of the shop, that he “helped run the
place, do estimates, make sure that everybody gets paid, write the checks and pay
invoices,” and that he was gone from work starting August 1, 1994, because he
was on vacation. We find no abuse of discretion in permitting this testimony.
In addition, over a hearsay objection, Bull testified that three or four weeks
after the shooting, Canto came into the auto body shop and said defendant had
“shot him up.” Defendant argues this was inadmissible hearsay testimony. We
agree. Hearsay evidence is “evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the
matter stated.” (Evid. Code, § 1200, subd. (a).) Unless an exception applies,
hearsay evidence is inadmissible. (Id., subd. (b).) Canto’s statement to Bull was
an out-of-court statement, and respondent does not suggest that it comes within
any exception or that it was offered for any purpose other than to prove defendant
shot Canto. The admission, therefore, was error. The error, however, was
harmless. We have held the application of ordinary rules of evidence does not
implicate the federal Constitution, and thus we review allegations of error under
the “reasonable probability” standard of People v. Watson (1956) 46 Cal.2d 818,
836. (People v. Marks (2003) 31 Cal.4th 197, 226–227.) Because Bull merely
repeated statements similar to Canto’s preliminary hearing testimony, it is not
reasonably probable that the error affected the outcome of the trial. Indeed,
assuming defendant has preserved a claim of federal constitutional error, and the
error did implicate federal constitutional rights, we would find the error harmless
beyond a reasonable doubt.
22
b. Exclusion of Evidence
i. Evidence of Canto’s drug dealing and third party culpability
Before trial the prosecution moved in limine to exclude 23 items of
evidence proffered by defendant, which included, inter alia, two separate but
related areas of evidence of Canto’s drug dealing: (1) circumstantial evidence of
Canto’s alleged drug-related activities as witnessed by his neighbors and family;
and evidence of alleged drug-related items found in his home and in his possession
at the time of his murder in Chicago in 1995; and (2) the statements of Melvin
Walford and Cleveland James attesting to their involvement in Canto’s drug
dealing business and the details surrounding Canto’s murder. Defendant had
sought to introduce this evidence to challenge Canto’s credibility by establishing
Canto’s status as a drug dealer, and to support his theory of third party culpability
in the murders of Allen and her fetus.
The court excluded all of this proffered evidence. Defendant now claims
that in doing so, the court abused its discretion and violated various of his
constitutional rights. We conclude that the court abused its discretion in excluding
some of the evidence but find no prejudice.
The principles governing the admission of evidence are well settled. Only
relevant evidence is admissible (Evid. Code, §§ 210, 350), “and all relevant
evidence is admissible unless excluded under the federal or state Constitutions or
by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)”
(People v. Heard (2003) 31 Cal.4th 946, 973.) “The test of relevance is whether
the evidence tends ‘logically, naturally, and by reasonable inference’ to establish
material facts such as identity, intent, or motive.” (People v. Garceau (1993) 6
Cal.4th 140, 177.) In determining the credibility of a witness, the jury may
consider any matter that has a tendency in reason to prove or disprove the
truthfulness of his testimony at the hearing, including but not limited to: a
23
witness’s character for honesty or veracity or their opposites; the existence or
nonexistence of a bias, interest, or other motive; his attitude toward the action in
which he testifies or toward the giving of testimony; and his admission of
untruthfulness. (Evid. Code, § 780.) Past criminal conduct involving moral
turpitude that has some logical bearing on the veracity of a witness in a criminal
proceeding is admissible to impeach, subject to the court’s discretion under
Evidence Code section 352. (See People v. Wheeler (1992) 4 Cal.4th 284, 295–
296.) Possession of drugs for sale, which involves the intent to corrupt others, is
conduct involving moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317.)
The trial court has broad discretion in determining the relevance of
evidence. (See People v. Crittenden (1994) 9 Cal.4th 83, 132.) We review for
abuse of discretion a trial court’s rulings on the admissibility of evidence. (People
v. Heard, supra, 31 Cal.4th at p. 972; People v. Rowland (1992) 4 Cal.4th 238,
264.)
The proffered circumstantial evidence of Canto’s alleged drug dealing
included the following: Canto’s ex-wife would have testified that she was married
to Canto for 10 years and that the marriage ended nearly two years before his
death, that he never held a “regular job,” had “a lot of money,” and traveled
extensively, and she was of the opinion that he was a drug dealer; neighbors would
have testified to a large amount of foot traffic at Canto’s house at all hours of the
day and night; Canto’s coworker would have testified that he accompanied Canto
when Canto drove to two homes and went inside for a short period of time, from
which the coworker assumed Canto was delivering drugs; the coworker also
would have testified he saw Canto carrying a concealed weapon and heard him
admit to having “shot some Bloods in Chicago”; and police officers would have
24
testified that the search of Canto’s house following the murders revealed three
bulletproof vests and a large amount of ammunition.5
The proffered statements of Walford and James, then awaiting trial in
Chicago for Canto’s murder, would have included contentions that they had been
employed by Canto for several years to transport large quantities of cocaine
between Los Angeles and Chicago, and that they shot and stabbed Canto, causing
his death, after a disagreement during a drug deal in November 1995.
The trial court considered the admissibility of all of this evidence in a
lengthy pretrial hearing on the motion in limine, and revisited the admissibility of
the statements of Walford and James at the end of the prosecution’s case-in-chief
and again during defendant’s case. When first considering the admissibility of the
circumstantial evidence during the hearing on the motion, the court recognized
that it knew very little about the case to come; indeed, it did not know of
defendant’s contention that he and Canto were dealing drugs, or of the statements
of Walford and James and details of Canto’s murder during the drug deal in
Chicago. The court ruled the circumstantial evidence irrelevant, and stated
“clearly in the guilt phase the court sees no relevance of the defense’s desire to see
Mr. Canto as a narcotic dealer and to suggest that somebody else killed him or
somebody else tried to kill him [and Allen] other than the defendant. [¶] That is
far from being relevant third party culpability evidence. It simply seeks to cast
doubt upon Mr. Canto and to, I assume, imply to the jury that others may have had
reasons to want a drug dealer dead, all of which is absolutely speculative.” The
court also stated, “if, however, the defendant testifies that these matters become
5
Defendant also asserted that a search of Canto’s Chicago residence
following his murder revealed a large amount of marijuana, but he was unable at
trial to produce evidence in support of the assertion.
25
relevant based upon his testimony or any other defense witness, we will revisit the
issue.”
Later, during the hearing on the motion, the court learned of and considered
the admissibility of the proffered statements of Walford and James. The court
concluded this did provide more substantial evidence of Canto’s drug dealing and
therefore did have a bearing on Canto’s credibility, but the statements were
hearsay, inadmissible as third party culpability evidence, substantially more
prejudicial than probative, and therefore inadmissible.
During trial the court reconsidered the admissibility of the statements of
Walford and James regarding Canto’s murder. Defendant made an offer of proof
that he would testify to his and Canto’s drug dealing business and the details of the
drug deal of the night of the murders on August 9, 1994, and argued the statements
of Walford and James were relevant to challenge Canto’s credibility and support
defendant’s contention that Canto was a drug dealer, as would the contention that
Canto carried a gun and was believed by his coworkers to be a drug dealer. The
court issued a written ruling, again finding the evidence of Canto’s murder
irrelevant, and the statements of Walford and James to be hearsay and
substantially prejudicial and to be excluded pursuant to Evidence Code section
352, and inadmissible as third party culpability evidence pursuant to People v.
Hall (1986) 41 Cal.3d 826, 834.
We conclude that defendant’s offer of proof that he would testify about
Canto’s drug dealing provided the foundation for the relevancy of the
circumstantial evidence that had been missing when the court initially ruled on its
admissibility. The circumstantial evidence suggesting Canto was a drug dealer
was no longer speculative and was relevant and admissible to challenge Canto’s
credibility. (See People v. Wheeler, supra, 4 Cal.4th at pp. 295–296.) The court
should have admitted the circumstantial evidence at this point.
26
However, the jury heard substantial other evidence challenging Canto’s
credibility: police officers testified that they found several boxes each of plastic
wrap and fabric softener in Canto’s house on West Marine Avenue, items often
used to disguise distinctive odors in the packaging and transportation of large
amounts of marijuana; Canto lied to the Gardena police when he said he did not
know who shot him; he gave a false name on the rental application for the house
on West Marine Avenue; he lied to the Chicago police before he died; he admitted
he harbored bias and animosity toward defendant and wanted to “take care of
business” and kill defendant himself; and defendant himself testified in detail to
Canto’s involvement in drug dealing. The exclusion of the circumstantial
evidence of Canto’s drug dealing did not keep the jury from learning facts from
which it could assess Canto’s character and credibility. No prejudice resulted
from the court’s decision to exclude the circumstantial evidence of Canto’s drug
dealing.
We find no error in excluding the statements of Walford and James. “To be
admissible, the third party evidence need not show ‘substantial proof of a
probability’ that the third person committed the act; it need only be capable of
raising a reasonable doubt of defendant’s guilt. At the same time, we do not
require that any evidence, however remote, must be admitted to show a third
party’s possible culpability. As this court observed in [People v.] Mendez [(1924)
193 Cal. 39], evidence of mere motive or opportunity to commit the crime in
another person, without more, will not suffice to raise a reasonable doubt about a
defendant’s guilt: there must be direct or circumstantial evidence linking the third
person to the actual perpetration of the crime.” (People v. Hall, supra, 41 Cal.3d
at p. 833.) “[C]ourts should simply treat third-party culpability evidence like any
other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its
27
probative value is substantially outweighed by the risk of undue delay, prejudice,
or confusion (§ 352).” (People v. Hall, supra, 41 Cal.3d at p. 834.)
Evidence regarding Canto’s murder in Chicago would not raise a
reasonable doubt as to defendant’s culpability for the murder of Allen and her
fetus. The prosecution established that defendant shot Canto, that defendant was
in the house when Allen and her fetus were murdered, and that the same gun was
used to shoot Canto and Allen. Defendant himself testified that he was dealing
drugs with Canto and was in Canto’s house when Allen was murdered. Neither
party presented evidence, either direct or circumstantial, which placed Walford or
James in Canto’s house at any time. The fact that Canto was involved in drug
dealing and was himself subsequently murdered by Walford and James in Chicago
in November 1995, in the course of drug dealing, neither demonstrated that
Walford or James was involved in the killings in Canto’s house in August 1994,
nor disproved the prosecution’s theory that it was defendant who shot Allen. The
court did not abuse its discretion in excluding these statements.
ii. Postmurder burglary of Canto’s house
The court also excluded evidence that seven weeks after the Allen murders,
police caught and prevented burglars from taking furniture from Canto’s house on
West Marine Avenue, and that when notified of the attempted burglary of his
home, Canto, who had only briefly returned to the house since being released from
the hospital, told the police he was not interested in anything in the house and
would not press charges. This evidence, defendant argues, challenged the critical
element of the prosecution’s case for robbery: that Allen’s missing jewelry was
taken at the time of the murders.
Several rings Allen always wore were missing when she was found dead.
Some of her fingernails were broken, suggesting she engaged in a struggle in the
28
house before she died. The prosecution argued that it was reasonable to conclude
that the killer took the missing rings. Defendant points out there was no inventory
taken of the contents of the house after the murders, and argues that the proffered
evidence of the postmurder burglary attempt was relevant to raise the possibility
that the rings were not taken at the time of the murders, but were left in the house
and later taken during the burglary.
The trial court properly excluded this evidence. The fact of an unsuccessful
attempt to burglarize Canto’s abandoned house weeks after the murders does not
alone raise a reasonable inference that the missing rings were left in the house
following the murders. Moreover, the court had discretion to exclude the evidence
under Evidence Code section 352 even if we assume it had some marginal
relevance.
Even if we were to find the court abused its discretion in excluding any or
all of the proffered exculpatory evidence including the statements of Walford and
James and the prior burglary attempt, defendant has failed to establish a
reasonable probability of a more favorable outcome in the absence of the error.
At most, the additional evidence the jury would have heard was of marginal value.
Indeed, for these reasons, we would find any error harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18.)
Defendant also argues the court impermissibly “conditioned” the
admissibility of this proffered evidence on his testifying. Because he failed to
raise this objection at trial (Evid. Code, § 354; People v. Valdez (2004) 32 Cal.4th
73, 108), defendant forfeited this argument on appeal. Moreover, the claim is
without merit. The court did not suggest that the proffered evidence would
become admissible only if defendant testified. Rather, the court indicated that as
offered, it was irrelevant, but if defendant offered other evidence, such as his own
29
testimony, demonstrating Canto was a drug dealer, the court would revisit the
admissibility and relevance of the proffered evidence.
2. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct in a number of
respects. “To constitute a violation of the federal Constitution, prosecutorial
misconduct must ‘ “so infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.” ’ [Citations.] Conduct by a prosecutor that
does not render a criminal trial fundamentally unfair is prosecutorial misconduct
under state law only if it involves ‘ “the use of deceptive or reprehensible methods
to attempt to persuade either the court or the jury.” ’ ” (People v. Benavides,
supra, 35 Cal.4th at p. 108.)
After the preliminary hearing but before Canto’s death, the prosecution
filed a “Motion for Hearing To Determine Conflict of Interest” that raised a
question whether a conflict of interest existed between defendant and his counsel,
a deputy in the Los Angeles County public defender’s office. The prosecution
stated that the Public Defender’s Office previously represented prosecution
witness Canto. Defense counsel indicated that her office had evaluated the issue
and concluded that there was no conflict. Court and counsel questioned whether
the existence of a conflict was a matter of law or fact and whether that
determination should be made by court or counsel, and the court scheduled a
hearing on those issues.
Before the hearing was held, however, Canto died. The court determined
his death rendered moot the question of whether a conflict existed, and, without
objection, took the prosecution’s motion off calendar. Counsel continued to
represent defendant throughout the guilt and penalty phases of trial; defendant
represented himself in propria persona at the motion for new trial.
30
Defendant characterizes the filing of the “Motion for Hearing To Determine
Conflict of Interest” as prosecutorial misconduct, claiming the motion “sowed the
seeds of distrust in appellant’s mind that his counsel was representing interests in
conflict with appellant’s own and that counsel was not using her best efforts on his
behalf,” and “created an atmosphere of mistrust that ultimately resulted in the
breakdown of the attorney-client relationship,” all in violation of various
constitutional rights.
Assuming for argument the issue was preserved, it is meritless. The
prosecution had the right to protect itself. Whether a conflict of interest exists
such that a defendant should have a different attorney is a very sensitive matter.
The prosecution could legitimately be concerned that if the court had not
examined the question, any conviction it received might have been doomed to
reversal on appeal even before the trial began. (See, e.g., People v. Mroczko
(1983) 35 Cal.3d 86.) We see no impropriety in the prosecution’s cautiously
seeking a determination before trial whether a conflict existed rather than waiting
for a defense challenge to a conviction after trial.
Moreover, the record does not suggest that defendant mistrusted counsel
due to the prosecutor’s conduct or that counsel failed to represent defendant
adequately. Defendant did not reveal on the record the reason he chose to
represent himself following the penalty phase, and on appeal he acknowledges that
counsel did not have a conflict of interest. The trial court stated at the hearing on
the motion for new trial that counsel “did everything she could throughout the trial
to try to convince me to allow Mr. Canto’s earlier statements to be impeached by
his alleged drug dealing and all manner of things. She took a position contrary to
Mr. Canto. She was not afraid to do so. She urged me to find that he was a dope-
dealing criminal and a liar, et cetera. I mean, everything that you would want your
advocate to do, she did . . . . Her conduct at this trial belies any suggestion that she
31
felt constrained or was constrained in any way. Just the opposite. She went after
Canto like an attack dog, and I don’t mean that in an uncomplimentary sense.”
Defendant next asserts that the prosecution caused three potential witnesses
to Canto’s murder in Chicago to change their minds about testifying on
defendant’s behalf, and thereby interfered with his right to compulsory process in
violation of various constitutional rights. Prosecutorial intimidation of, or
interference with, defense witnesses violates the Sixth Amendment right to compel
the attendance of witnesses and the Fourteenth Amendment right to due process.
(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 52; People v. Mincey
(1992) 2 Cal.4th 408, 460; In re Martin (1987) 44 Cal.3d 1, 29–30.) Defendant
bears the burden of demonstrating at least a reasonable possibility that the witness
could have given testimony that would have been both material and favorable; that
the prosecution engaged in activity that was entirely unnecessary to the proper
performance of its duties and of such a character as to transform a defense witness
from a willing witness to one who would refuse to testify; and a causal link
between that misconduct and his inability to present witnesses on his own behalf.
(In re Martin, supra, at pp. 31–32.) He has not met this burden.
Before trial, Detective Dempsey of the Riverdale, Illinois, police
department cooperated with the defense and agreed to testify to the statements
made by Walford that he killed Canto because Canto was a cheating drug dealer.
In an effort to obtain Walford’s and James’s blood samples the prosecutor sent a
fax to a state attorney’s office in Illinois seeking the names and addresses of their
attorneys. The fax read in part: “In The People versus Harris, the defense
indicated in their opening statement that the defendant will testify and blame the
1994 Los Angeles crime on Mr. James and Mr. Walford. He will testify that in
arriving at the scene, he saw the two exiting the house, the crime already
completed. They finished in Chicago in 1995 what they started in Los Angeles in
32
’94.[6] [¶] The attorneys [for Walford and James] may wish to cooperate to avoid
having their clients implicated, extradited, and prosecuted for capital murder in
the state of California.” (Italics added.)
Defense counsel stated that just before the in camera hearing regarding the
admissibility of Walford’s statement, she had been contacted by Illinois trial
counsel for Walford and codefendant James who, presumably in response to the
prosecution’s inquiries, “wanted to know what her intentions were” with regard to
their clients. She further stated that the defense had recently learned the
prosecution had telephoned Detective Dempsey, and that Dempsey was now “not
sure he would be able to testify.”
Defendant argues, as he did below, that by contacting the state attorney’s
office in Illinois and Detective Dempsey, the prosecution unconstitutionally
impeded his ability to present a defense. We disagree. Defendant’s inability to
present this evidence was not due to the witnesses’ willingness or unwillingness to
testify, but to the trial court’s rulings excluding the evidence. Further, the record
does not establish that before the prosecution sent the fax to Illinois, either
Walford or James had been willing to testify on defendant’s behalf, or, if they
were, that the prosecution’s actions negatively influenced Walford or James or
Dempsey in their decisions not to testify.
Defendant also fails to establish that the evidence that might have been
presented would have been both material and favorable to the defense. Even
absent Walford’s and James’s statements regarding Canto’s drug dealing,
defendant had evidence with which to challenge Canto’s credibility. By
defendant’s own admission, he and Canto were large-scale drug dealers, and
6
Actually, defense counsel had stated only, “Mr. Harris will describe for you
when he arrived [at Canto’s house] he was confronted by two men.” Defendant
later testified he could not identify the men.
33
defendant was inside Canto’s house when Allen was murdered. The fact that two
drug dealers in Chicago later murdered Canto does nothing to suggest that
defendant was a victim rather than a perpetrator of this crime.
Defendant claims the prosecution engaged in misconduct by offering the
evidence that he has claimed in this appeal the court should have excluded and
opposing the admission of defense evidence the court did exclude. Defendant
failed to object to this alleged misconduct and thus forfeited these claims on
appeal. (People v. Crew (2003) 31 Cal.4th 822, 839.) Moreover, phrasing the
claim as one of misconduct adds nothing to the strength of defendant’s evidentiary
claims we have already considered. Although offering evidence the prosecutor
knows is inadmissible may be misconduct (People v. Scott (1997) 15 Cal.4th 1188,
1218), the adversarial process generally permits one party to offer evidence, and
the other party to object if it wishes, without either party being considered to have
committed misconduct. The trial court simply rules on the admissibility of the
evidence, as the court did here.
Defendant claims the prosecution engaged in misconduct when, after
urging the court to find certain evidence had no probative value, it relied on
evidence of Canto’s status as a drug dealer in its guilt phase closing argument.
Again, he failed to object to this alleged misconduct and thus forfeited the claim
on appeal. Moreover, contrary to defendant’s argument, the prosecution did not
“rely on the fact Canto was a drug dealer to bolster his argument about
[defendant’s] motivations to commit the crime.” Rather, the prosecution
commented on defendant’s own testimony and stated, “if you want to believe
Canto was a drug dealer, that’s even more reason he’s going to have some dope in
there worth stealing, and maybe a lot more cash.” The prosecution is given wide
latitude during closing argument to make fair comment on the evidence, including
34
reasonable inferences or deductions to be drawn from it. (People v. Wharton
(1991) 53 Cal.3d 522, 567.) We find no misconduct.
Relying on testimony, largely from defendant himself, that he earned $150
a week plus commissions from the auto body shop, that his July and August 1994
rent checks for $695 each were returned for insufficient funds, that he was
indebted to Canto for $1,500, and that at the time he left the auto body shop he
still owed money on a $500 car he had purchased from owner Lyndon Bull, the
prosecution argued in closing at the guilt phase of trial that defendant was in debt,
needed money, and therefore had the “motive and opportunity to pull a robbery.”
Defendant claims this argument constituted misconduct. Because defendant failed
to object or seek an admonition as to this asserted instance of misconduct, and
because an admonition would have cured the alleged harm, defendant has forfeited
the claim for appeal. (People v. Dennis (1998) 17 Cal.4th 468, 517-518; People v.
Ochoa (1998) 19 Cal.4th 353, 427-428.) In any event, the claim has no merit.
It is true that “[e]vidence of a defendant’s poverty or indebtedness generally
is inadmissible to establish motive to commit robbery or theft, because reliance on
poverty alone as evidence of motive is deemed unfair to the defendant, and the
probative value of such evidence is considered outweighed by the risk of
prejudice.” (People v. Wilson (1992) 3 Cal.4th 926, 939, italics added.) But here,
the evidence was already presented without objection, largely from defendant’s
own mouth. The prosecutor merely commented on that evidence, which was
proper.
Moreover, evidence of a defendant’s poverty may be admissible to refute a
contention that he did not commit the offense because he did not need the money.
(People v. Koontz (2002) 27 Cal.4th 1041, 1076.) Such is the case here.
Defendant testified on direct examination that he was not having financial
difficulties in the summer of 1994. He testified at length to the thousands of
35
dollars in profits he earned dealing drugs, and stated that “between his various
activities” his income would fluctuate from week to week. He acknowledged that
his rent checks bounced but explained it was due to his and his roommate’s
negligence in depositing paychecks and not because of an actual lack of funds on
his part. The prosecution properly refuted defendant’s assertion that he was not in
financial need at the time of the crimes and the inference that he had no financial
motive to commit robbery.
3. Alleged Judicial Bias
Defendant claims the trial court harbored a bias against him. He asserts the
bias was demonstrated in several allegedly erroneous evidentiary rulings and in
inappropriate comments and conduct by the court. In particular, he claims the
court exhibited bias against him when it made direct statements of disbelief of
defendant’s case; interjected its own objection during the cross-examination of a
police officer regarding a possible unidentified witness; interjected its own
objection during cross-examination of a police officer regarding the bullets found
in Canto’s apartment; made disparaging remarks to defense counsel during cross-
examination of the evidence technician; interjected its own objection during cross-
examination of the fingerprint technician regarding prints on the gun and the
gathering of blood evidence; and conducted its own cross-examination of
defendant.
Defendant challenged only the court’s interruption of the cross-examination
of the evidence technician regarding possible fingerprints on the gun, but he did
not object to any of the other judicial interruptions or resulting evidentiary rulings,
or to his cross-examination by the court. Although defendant failed to object to
the allegedly improper acts on the grounds of judicial bias or seek the judge’s
recusal (see People v. Snow (2003) 30 Cal.4th 43, 78; People v. Seaton (2001) 26
Cal.4th 598, 698; People v. Hines (1997) 15 Cal.4th 997, 1041; People v. Wright
36
(1990) 52 Cal.3d 367, 411; Code Civ. Proc., § 170.1, subds. (a)(6)(C), (c)), we
need not decide whether defendant has forfeited this claim because it lacks merit.
A review of each complained-of act by the trial court reveals no evidence the trial
judge was biased against defendant.
Although “the trial court has both the duty and the discretion to control the
conduct of the trial” (People v. Fudge (1994) 7 Cal.4th 1075, 1108), “the Due
Process Clause clearly requires a ‘fair trial in a fair tribunal.’ Withrow v. Larkin,
421 U.S. 35, 46, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975), before a judge with
no actual bias against the defendant or interest in the outcome of his particular
case. See, e.g., Aetna [Life Ins. Co. v. Lavoie (1986) 475 U.S. 813,] 821-822;
Tumey [v. Ohio (1927) 273 U.S. 510,] 523.)” (Bracy v. Gramley (1997) 520 U.S.
899, 904–905.) The role of a reviewing court “is not to determine whether the
trial judge’s conduct left something to be desired, or even whether some
comments would have been better left unsaid. Rather, we must determine whether
the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as
opposed to a perfect, trial. (United States v. Pisani (2d Cir. 1985) 773 F.2d 397,
402.)” (People v. Snow, supra, 30 Cal.4th at p. 78.) In deciding whether a trial
court has manifested bias in the presentation of evidence, we have said that such a
violation occurs only where the judge “ ‘officiously and unnecessarily usurp[ed]
the duties of the prosecutor . . . and in so doing create[d] the impression that he
[was] allying himself with the prosecution.’ ” (People v. Clark (1992) 3 Cal.4th
41, 143.) This principle was not violated here.
At a midtrial hearing out of the presence of the jury regarding the
admissibility of evidence of Canto’s murder in Chicago, the court stated, “What is
giving me a little bit of pause is defendant is arrested at time one, makes no
reference to this elaborate offer, then Mr. Canto dies, and my cynical self tells me
that what happens is once Mr. Canto dies and defendant is provided with the
37
details of that incident lo and behold—and I’d bet my right arm on it—for the first
time the defendant is now talking about bad guys from Chicago. . . . It is almost
too good to be true for the defendant.” And “[I] would be mighty curious if I
could look into your mind and that of Mr. Harris’s as to when this defense arose,
when the facts arose that jibe so neatly with the statement of two arrestees in
Chicago.” The court did not, as defendant argues, exhibit bias in these statements,
but simply commented on aspects of the evidence out of the presence of the jury.
This falls far short of “betray[ing] a bias against defense counsel.” (People v.
Wright, supra, 52 Cal.3d at p. 411.)
Officer King, one of the first police officers on the scene at Canto’s house,
testified to having interviewed several of the eyewitnesses, including a man who
had flagged him down at the crime scene. An unidentified woman accompanied
that man. On cross-examination, defense counsel asked the officer if he had seen
any other officers interviewing the eyewitness or the unidentified woman. The
court interrupted on its own motion, and prevented the officer from answering the
question, stating the information sought was irrelevant. Counsel explained she did
not intend to call as witnesses any of the other officers or the eyewitness or the
unidentified woman, and the court sustained its own objection. In curbing vague
questions about unknown persons, the court did not ally itself with the prosecution
but rather exercised reasonable control of the trial to avoid irrelevant or unduly
prolonged testimony. (People v. Fudge, supra, 7 Cal.4th at p. 1108.)
The court interrupted the examination of a police officer and challenged the
relevancy of questions regarding a gun found in Canto’s home and the number of
bullets found in the bedroom dresser. Again, defendant fails to show this
evidences judicial bias against defendant; the court challenged questions posed to
this witness by both the prosecution and defense.
38
The court interrupted defendant’s cross-examination of the prosecution’s
evidence technician. Defense counsel attempted to ask her if fingerprints could
have been found on the magazine inside the gun discovered in the driveway of
Canto’s home. Over defense’s argument that the questions were relevant, the
court declared them to be a “waste of time” because the technician had already
testified that no fingerprints had been found on the gun. Later, after the technician
testified she had “collected one solid swatch from the stain” in the driveway,
defense counsel asked if the technician made an effort to collect the “entire
bloodstain.” The court declared the question to be “meaningless” because “I don’t
know how anyone could know if they were successful in obtaining an entire stain
off of the driveway.” In so ruling, the court properly exercised its discretion to
expedite the examination of witnesses by curbing repetitious questioning.
Nor, as defendant contends, did the court exhibit a hostile or rancorous
attitude toward defendant when it asked defense counsel to “move on” when she
attempted again to elicit information regarding the ammunition found in Canto’s
house.
Finally, defendant asserts the court displayed bias against him when the
court itself asked the following questions of defendant, without objection, after the
prosecution’s cross-examination:
“Court: When you were in the house, you say you heard a gun go off?
Who did you figure was being shot?
“Defendant: I thought I was being shot at.
“Court: At some point did it dawn on you that perhaps somebody else had
been shot in the house?
“Defendant: No.
“Court: Never did?
“Defendant: No.
39
“Court: Did you think that Mr. Canto might be in there?
“Defendant: Yes, I figured it was a possibility he was in there.
“Court: You didn’t see him, though?
“Defendant: No.
“Court: Did you think the young lady might be in there?
“Defendant: No, because I haven’t seen her. I didn’t see her earlier when I
was there.
“Court: You didn’t think she was home?
“Defendant: No, I didn’t.
“Court: Did you ever call the house later on to see if anybody got killed?
“Defendant: No, I didn’t.
“Court: Why not?
“Defendant: Just never crossed my mind.
“Court: Didn’t?
“Defendant: No.
“Court: Weren’t you curious?
“Defendant: I was more distraught.
“Court: In the next couple of days did you ever call the house or try to
contact Mr. Canto?
“Defendant: Like I said, I believe it was the next day that I read the
newspaper.
“Court: You said two days later.
“Defendant: I believe it was either that day or the next day.
“Court: It wouldn’t be in the next morning’s paper since it happened so
late.
“Defendant: I couldn’t say for sure. I couldn’t say what day it was.
“Court: You never called to find out what happened?
40
“Defendant: No.
“Court: Never did?
“Defendant: No.
“Court: You were ignorant of it until you read it in the paper?
“Defendant: Yes.”
Evidence Code section 775 “ ‘ “confers upon the trial judge the power,
discretion and affirmative duty . . . [to] participate in the examination of witnesses
whenever he believes that he may fairly aid in eliciting the truth, in preventing
misunderstanding, in clarifying the testimony or covering omissions, in allowing a
witness his right of explanation, and in eliciting facts material to a just
determination of the cause.” ’ ([People v. Carlucci (1979) 23 Cal.3d 249,] 256,
quoting Gitelson, A Trial Judge’s Credo (1966) 7 Santa Clara L.Rev. 13–14.) [¶]
The constraints on the trial judge’s questioning of witnesses in the presence of a
jury are akin to the limitations on the court’s role as commentator. The trial
judge’s interrogation ‘must be . . . temperate, nonargumentative, and scrupulously
fair. The trial court may not . . . withdraw material evidence from the jury’s
consideration, distort the record, expressly or impliedly direct a verdict, or
otherwise usurp the jury’s ultimate factfinding power.’ (People v. Rodriguez
(1986) 42 Cal.3d 730, 766.)” (People v. Hawkins (1995) 10 Cal.4th 920, 948.)
Defendant argues the court overstepped its bounds with respect to the tone,
form, and number of questions posed. However, he did not object to the trial
court’s questioning, thus making the claim not cognizable on appeal. (People v.
Corrigan (1957) 48 Cal.2d 551, 556.) Were we to reach the merits, we would not
endorse all of the trial court’s questioning quoted above and, indeed, would find
some of it inappropriate. On the facts of this case, however, we find no prejudice.
We must assume that jurors followed their instruction not to “disbelieve any
witness” or to decide the facts based on anything the court said or did, and to
41
disregard any intimations or suggestions the court may have made regarding the
believability of any witness. (CALJIC No. 1732.) Further, the evidence of guilt
was strong and the weaknesses in defendant’s assertions of innocence would have
been apparent to the jury even absent the court’s questions. It is not reasonably
probable the jury would have reached a different guilt verdict had the court
refrained from asking these questions. (People v. Watson (1956) 46 Cal.2d 818,
836.)
4. Instructional Claim
Defendant contends the court erred in instructing the jury pursuant to
CALJIC Nos. 2.01 and 2.02 regarding the use of circumstantial evidence. He
argues that by informing the jury, “if one interpretation of the evidence appears to
you to be reasonable and the other interpretation to be unreasonable, it would be
your duty to accept the reasonable interpretation and reject the unreasonable,” the
court permitted the jury to base a finding of guilt on a degree of proof less than
beyond a reasonable doubt. We have repeatedly rejected similar claims, and do so
again here. (People v. Bradford (1997) 15 Cal.4th 1229, 1346.)
C. Penalty Phase Issues
1. Evidentiary Claims
a. Introduction of Victim Impact Evidence
Defendant contends that the court erred in admitting victim impact
evidence. The Eighth Amendment to the federal Constitution permits the
introduction of victim impact evidence, or evidence of the specific harm caused by
the defendant, when admitted in order for the jury to assess meaningfully the
defendant’s moral culpability and blameworthiness. (Payne v. Tennessee (1991)
501 U.S. 808, 825.) Such evidence violates the Fourteenth Amendment’s due
process clause when it is so unduly prejudicial that it renders the trial
fundamentally unfair. (Ibid.) Under California law, victim impact evidence is
42
generally admissible as a circumstance of the crime pursuant to section 190.3,
factor (a). (People v. Boyette (2002) 29 Cal.4th 381, 443–444; People v. Stanley
(1995) 10 Cal.4th 764, 832.) “ ‘On the other hand, irrelevant information or
inflammatory rhetoric that diverts the jury’s attention from its proper role or
invites an irrational, purely subjective response should be curtailed.’ ” (People v.
Edwards (1991) 54 Cal.3d 787, 836, quoting People v. Haskett (1982) 30 Cal.3d
841, 864.)
Defendant renews his objections at trial to the admission of the statements
of Allen’s mother and grandmother regarding viewing Allen’s body at the
mortuary, and the photographs of her gravesite. The evidence was properly
admitted. As a circumstance of the crime, the condition of the victim’s body is a
factor relevant to penalty. (People v. Smithey (1999) 20 Cal.4th 936, 990.) The
brief descriptions by Allen’s mother and grandmother of what they saw at the
mortuary were far less graphic and disturbing than routine autopsy photographs
we have previously allowed as proof of the condition of a victim’s body (e.g.,
ibid.), and the court did not err in admitting this evidence. The photograph of
Allen’s gravesite was further evidence relating to her death and the effect upon her
family, and was properly admitted as a circumstance of the murders.
Defendant also challenges the admission of evidence of a specific event at
the funeral. Allen’s mother, Pamela Gunn, and Allen’s grandmother testified that
at the end of the funeral service, the lid to the closed casket mistakenly was
opened as it was being put into the hearse, and that several attendees screamed in
horror and two people fainted, one falling on the top of the partially opened casket.
Defendant did not object to this testimony at trial and thus forfeited the claim for
purposes of appeal. (People v. Davenport (1995) 11 Cal.4th 1171, 1205.) Had
defendant objected, the trial court probably should have excluded this specific
testimony. The mistake by funeral home personnel in allowing the casket lid to be
43
opened in sight of the mourners, and the screaming and fainting of funeral
attendees that resulted, was too remote from any act by defendant to be relevant to
his moral culpability. But, assuming defense counsel should have objected, we
find no reasonable probability of prejudice. (In re Scott (2003) 29 Cal.4th 783,
811.) The testimony was very brief, consuming no more than 16 lines of
transcript, and was not significant in light of the emphasis placed in the penalty
phase on the effect of the crime itself on the victim’s family, the brutality of the
murders, and the paucity of significant mitigating circumstances. Indeed, for these
reasons we would find the admission of this evidence harmless beyond a
reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.)
b. Exclusion of Evidence
Defendant argues the court erred in excluding evidence that was relevant
pursuant to section 190.3, factors (a) (circumstances of the offense), and (e)
(whether the victim was a participant in or consented to the homicidal act), to
rebut the prosecution’s penalty phase evidence, and in mitigation.
“The Eighth and Fourteenth Amendments require the jury in a capital case
to hear any relevant mitigating evidence that the defendant offers, including ‘ “any
aspect of a defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death.” ’
([People v.] Frye [(2004)] 18 Cal.4th [494,] 1015.) In turn, the court does have
the authority to exclude, as irrelevant, evidence that does not bear on the
defendant’s character, record, or circumstances of the offense. (Ibid.) ‘[T]he
concept of relevance as it pertains to mitigation evidence is no different from the
definition of relevance as the term is understood generally.’ (Id. at pp. 1015-
1016.) Indeed, ‘excluding defense evidence on a minor or subsidiary point does
not impair an accused’s due process right to present a defense.’ (People v.
44
Fudge[, supra, 7 Cal.4th at p.] 1103.)” (People v. Ramos (2004) 34 Cal.4th 494,
528.)
Under this standard, we find no error.
Before trial, and again before the penalty phase, defendant moved to admit
evidence that Canto’s ex-wife had warned Allen that Canto was dangerous and
that living in the same house with him could get her killed; that Allen had actual
knowledge of Canto’s drug dealing; and that Allen in the past had used a false
driver’s license. Defendant proffered the evidence to establish that Allen’s choice
to live with Canto contributed to her own death. The court refused to admit the
proffered evidence. Defendant argues the evidence was admissible to show Allen
was not the innocent victim portrayed by the prosecution but rather a person who
made voluntary choices to live in a dangerous situation and maintain a lifestyle
that contributed to her death. We disagree. Contrary to the implications in the
concurring and dissenting opinion, the proffered evidence did not show that Allen
participated in or was otherwise associated with Canto’s or defendant’s criminal
activities. The fact that Allen had a false driver’s license and may have known
that she was living in a dangerous situation did not constitute evidence that she
participated in or consented to the acts leading up to her murder. The trial court
did not err in excluding the proffered evidence as irrelevant.
The defense proffered the testimony of Pamela Gunn, Allen’s mother, that
she had been told by others that Canto was “trouble.” The defense sought to
establish that the anguish and grief Gunn testified to in the penalty phase was not
attributable to Allen’s death, but rather to Gunn’s own guilt at her failure to
intercede in the dangerous circumstance in which her daughter was living. We
find no error in the exclusion of this testimony. “Testimony from the victims’
family members was relevant to show how the killings affected them, not whether
they were justified in their feelings due to the victims’ good nature and sterling
45
character. Accordingly, defendant was not entitled to disparage the character of
the victims” in rebuttal. (People v. Boyette, supra, 29 Cal.4th at p. 445.)
Defendant also argues the court erred in predicating the admission of this
proffered evidence on defendant’s testifying on his own behalf. It did not do so.
The court merely indicated that should the defense introduce evidence, either from
defendant or another source, that Allen participated in the drug activities of Canto
and defendant, the court would revisit the question.
Defendant again proffered the evidence regarding Canto’s drug dealing that
was excluded in the guilt phase, including observations of Canto’s family,
coworkers, and neighbors and their opinions that Canto was dealing drugs,
Walford’s statements regarding the murder of Canto in Chicago during a drug
deal, Canto’s possession of bulletproof vests and large amounts of ammunition,
and his admission to having shot people in Chicago. In addition, defendant
proffered evidence that Canto had been shot in the leg 19 months before August 9,
1994. He argued the evidence would allow the jury to assess the aggravating
nature of the crimes in the appropriate context. The court excluded the proffered
evidence regarding Canto’s murder as more prejudicial than probative pursuant to
Evidence Code section 352, and the remaining proffered evidence as irrelevant to
factors in mitigation.
Defendant now argues if the jury had been aware of this additional
evidence of Canto’s drug dealing and subsequent drug-related murder, they would
have understood Allen’s murder “was the result of Bernard Canto’s drug dealing
and not a cold blooded robbery by [defendant].” He argues the evidence would
have “minimized the aggravating nature of the crime” and served as a basis for a
sentence of less than death. Again, we believe the court acted within its discretion
in excluding this evidence as irrelevant to Allen’s murder. Defendant murdered
Allen, not Canto. But even if the court should have admitted it, we find any error
46
harmless beyond a reasonable doubt. We see no reasonable possibility the
evidence regarding Canto’s status as a drug dealer would have led to a sentence of
less than death. The jury determined that defendant bound, gagged, and shot Allen
to death in her own home. That the robbery and murder might have been
connected to the fact that Allen was associated with Canto, who earlier that
evening participated in a large-scale drug deal during which defendant sold Canto
fake cocaine, bore no relevance to the assessment of the severity of the crime.
Defendant’s moral culpability remains essentially the same. The jury’s evaluation
of defendant’s responsibility for his actions inside the house on the night of
August 9, 1994, would not have changed with additional evidence that the fiancé
of the woman he murdered was a large-scale drug dealer.
2. Limitations on Defendant’s Arguments
a. Arguments Regarding Individual Juror Responsibility
Defendant argues the court placed unconstitutional limits on his penalty
phase arguments on four occasions, by prohibiting counsel from speaking about
the jurors’ direct and individual responsibility for defendant’s fate. He argues the
court lessened the jurors’ sense of the “awesome responsibility” inherent in the
penalty decision, thereby violating his Eighth Amendment right to reliability in the
determination that death is the appropriate punishment. We disagree.
“The right to present closing argument at the penalty phase of a capital trial,
while broad in scope, ‘is not unbounded . . . ; the trial court retains discretion to
impose reasonable time limits and to ensure that argument does not stray unduly
from the mark.’ ” (People v. Boyette, supra, 29 Cal.4th at p. 463.) Juror
determinations may not be the product of “emotional responses that are not rooted
in the aggravating and mitigating evidence introduced during the penalty phase,”
or “extraneous emotional factors.” (California v. Brown (1986) 479 U.S. 538,
542–543.) Nor may jurors be misled “to minimize the importance of [their] role,”
47
or “to believe that the responsibility for determining the appropriateness of the
defendant’s death rests elsewhere.” (Caldwell v. Mississippi (1985) 472 U.S. 320,
328–329, 333.)
As will appear, none of the limitations placed by the trial court could have
had the effect of misleading the jury, permitting them to act upon emotional
responses, or diminishing their sense of individual, personal responsibility for the
verdict. Instead, the court prohibited counsel from improperly inflating the jurors’
sense of their responsibility. We thus find defendant’s Eighth Amendment
argument unconvincing.
In the first instance, the court stopped counsel from arguing that the
decision the jurors would make as to penalty would have an “enormous impact”
not only on defendant, but also on his family, his attorneys, and on each juror
himself or herself. Counsel asserted that she was seeking to urge the importance
of the “individual verdict” of each juror. The court correctly disagreed; counsel’s
argument improperly sought to engage the juror’s sympathies for defendant’s
family and friends. Such sympathies have no bearing on the individualized nature
of the penalty decision. (People v. Bemore (2000) 22 Cal.4th 809, 855 -856
[sympathy for defendant’s loved ones and their reaction to a death verdict do not
relate to either the circumstances of the capital crime or the character and
background of the accused].) Further, the court correctly stopped counsel from
improperly addressing as a factor in mitigation the emotional impact a death
verdict would have upon each juror. The jurors’ reactions to the penalty imposed
would constitute emotional responses “untethered to the facts of the case” (People
v. Boyette, supra, 29 Cal.4th at p. 444), not proper factors for consideration.
In the second instance, the prosecution objected when defense counsel
began to argue that a sentence of life without the possibility of parole would
protect society. In sustaining the objection the court correctly stated that the jury
48
was not to consider the “underpinnings of death penalty law” or “attempt to
protect society at large.” We have long held that the jury should not concern itself
with protecting society. (People v. Benson (1990) 52 Cal.3d 754, 807 [questions
of deterrence or cost in carrying out capital sentence are for Legislature, not for
jury considering a particular case]; People v. Love (1961) 56 Cal.2d 720, 731
[misconduct to argue general deterrent effect of capital punishment].)
In the third instance, the court stopped defense counsel from arguing that if
any one of the jurors voted for life imprisonment instead of death, defendant “will
not be executed.” In so doing, the court correctly prohibited counsel from
erroneously telling the jury that a deadlocked verdict would result in a life
sentence. (§ 190.4, subd. (b) [if jury unable to reach unanimous verdict as to
penalty, court shall dismiss jury and impanel new jury to try issue of penalty].)
In the fourth instance, the court sustained the prosecution’s objection when
defense counsel began to argue that in Utah, the death sentence is carried out by
firing squad. In the presence of the jury the court explained, “I understand what
you were getting to, the marksmen, and the bullets, and so forth, the manner in
which they are . . . . That has nothing to do with this case.” Later, out of the
presence of the jury, the court explained that it would not allow counsel to equate
jurors with “executioners standing in a firing squad.” Defendant renews the
arguments presented below, arguing that the court limited his ability to impress
upon the jury the seriousness of their role in sentencing in violation of the Eight
Amendment, citing Caldwell v. Mississippi, supra, 472 U.S. 320.
We disagree. Caldwell’s prohibition against misleading the jury as to the
importance of their role “is relevant only to certain types of comment—those that
mislead the jury as to its role in the sentencing process in a way that allows the
jury to feel less responsible than it should for the sentencing decision.” (Darden v.
Wainwright, supra, 477 U.S. at p. 184, fn. 15.) The limitation on counsel’s
49
argument here did not result in the suggestion that the jurors bore less
responsibility than they actually did. Instead, it prevented the improper suggestion
that the jurors had more responsibility than they actually did and that each one of
their votes was akin to a live round of ammunition shot by a firing squad. Such an
argument would have mischaracterized the jurors’ role in the penalty phase and
engendered an emotional response “not rooted in the aggravating and mitigating
evidence introduced during the penalty phase.” (California v. Brown, supra, 479
U.S. at p. 542.)
Contrary to defendant’s argument, the jurors were aware of the “awesome
responsibility” inherent in the decision before them and of their individual
responsibility for the verdict. The prosecutor began his argument by referring to
the “very important, very serious decision,” defense counsel referred to the
“terrible decision,” the “grievous” and “great and heavy” responsibility which will
“remain with [the jurors],” and numerous times counsel referred to the “individual
decision” which would involve the “moral conscience” of each juror.
In sum, none of the limitations imposed on defendant’s penalty phase
argument affected the reliability of the verdict.
b. Arguments Regarding Defendant’s Lack of Violent
Criminal History
In closing argument to the jury, the prosecutor argued that if defendant
received a sentence of life without the possibility of parole, he could commit
crimes in prison without fear of greater punishment. Defense counsel objected
that the prosecutor was improperly arguing future dangerousness. The court
sustained the objection and admonished the jury “to disregard the comments about
how the defendant might behave, or what crimes might be committed in the
future.” Later, during her closing argument, defense counsel argued without
objection that the prosecution had not presented any evidence of prior acts of
50
violence by defendant, and that specifically there was no evidence of acts of
violence during defendant’s federal or present incarceration. Counsel also argued,
“What would be one of the most fundamental concerns you are going to have? Is
society protected? And as [the prosecutor] pointed out, and correctly so, our
prisons are a part of society. Is society protected? Clearly, this man, Mr. Harris,
has demonstrated—” At this point, the court interrupted and said, “I did it for the
People, I’m going to do it for the defense, that’s not part of this game. . . . [T]he
jury is not being asked at this point to render a decision on penalty to protect
society the best way. That would invite them to speculate too much. So I’m going
to not let you do it either.” Defense counsel then continued to argue, without
objection or interruption, that the absence of any “evidence whatsoever of any acts
of violence or threat of violence” was “heavily mitigating” under section 190.3,
factor (b) (presence or absence of criminal activity involving force or violence).
Defendant claims the court prevented him from presenting his lack of
violent criminal history as a factor in mitigation and from urging the jury to
consider that because he was not a violent prisoner in the past, he would not be a
risk to other prisoners should he receive a sentence of life without the possibility
of parole. The court did err to the extent it believed neither side could argue
defendant’s future dangerousness. The prosecution may argue future
dangerousness if the argument is based on the evidence. (People v. Champion
(1995) 9 Cal.4th 879, 940.) Accordingly, the defense may argue the opposite. But
any error in this case was harmless. Defendant actually gained to the extent he
prevented the prosecution from arguing that he might commit crimes in prison.
Moreover, defendant was able to argue fully the mitigating impact of his absence
of a history of violence while incarcerated. We see no reasonable possibility the
verdict would have been different had the court permitted both sides to argue
future dangerousness.
51
3. Instructional Claims
a. Victim Impact Instructions
At the close of the penalty phase, defendant requested, and the court
refused to give, the following instruction: “Evidence has been introduced for the
purpose of showing the specific harm caused by the defendant’s crime. Such
evidence, if believed, was not received and may not be considered by you to divert
your attention from your proper role of deciding whether defendant should live or
die. You must face this obligation soberly and rationally, and you may not impose
the ultimate sanction as a result of an irrational, purely subjective response to
emotional evidence and argument. On the other hand, evidence and argument on
emotional though relevant subjects may provide legitimate reasons to sway the
jury to show mercy.”
The court did instruct the jury, as requested by the prosecution, that “[if]
supported by the evidence, it is proper to consider the impact of the murder on the
victim’s family (including their pain and suffering) when determining the
appropriate penalty. You are further instructed that such evidence is to be
included within the meaning of factor (a), the circumstances of the offenses, in the
preceding instruction (CALJIC No. 8.85) and is not a separate factor in
aggravation.”
Defendant contends that the court thus instructed the jury on victim-impact
evidence in an uneven and unfair manner, interfering with the jury’s discretion to
give whatever weight it chose to any factor in mitigation or aggravation, and
allowing the jury to make a decision based upon emotion or sympathy for the
victims rather than upon logic and rationality.
We disagree. The instruction given properly informed the jury of the law
regarding victim-impact evidence. (People v. Edwards, supra, 54 Cal.3d at p. 835
[§190.3, factor (a), allows evidence and argument on specific harm caused by
52
defendant, including impact on family of victim].) The court properly rejected the
defense-proffered instruction as confusing; the instruction was unclear as to whose
emotional reaction it directed the jurors to consider with caution—that of the
victim’s family or the jurors’ own. Further, the instructions given as a whole did
not give the jurors the mistaken impression that they could consider emotion over
reason, nor did the instructions improperly suggest what weight the jurors should
give to any mitigating or aggravating factor.
b. Lingering Doubt Instructions
The court also refused to give three instructions requested by defendant
regarding lingering doubt.7 Contrary to defendant’s argument, although it is
proper for the jury to consider lingering doubt (People v. Slaughter (2002) 27
Cal.4th 1187, 1219), there is neither a state nor a federal constitutional
requirement that the jury be specifically instructed that it may do so. (Franklin v.
Lynaugh (1988) 487 U.S. 164, 173-174; People v. Lawley (2002) 27 Cal.4th 102,
166.) The lingering doubt concept is sufficiently encompassed in other
instructions ordinarily given in capital cases. (People v. Hines, supra, 15 Cal.4th
at p. 1068.) The court did not err in refusing to instruct as defendant requested.
7
Defendant requested the following instructions: (1) “The adjudication of
guilt is not infallible and any lingering doubt you entertain on the question of guilt
may be considered by you in determining the appropriate penalty.” (2) “It may be
considered as a factor in mitigation if you have a lingering doubt as to the guilt of
the defendant.” (3) “A juror who voted for conviction at the guilt phase may still
have a lingering or residual doubt whether the defendant was the actual killer.
Such a lingering or residual doubt, although not sufficient to raise a reasonable
doubt at the guilt phase, may still be considered as a mitigating factor at the
penalty phase. Each juror may determine whether any lingering or residual doubt
is a mitigating factor and may assign it whatever weight the juror feels
appropriate.”
53
c. CALJIC Nos. 8.84.1 and 8.85
Defendant contends that CALJIC Nos. 8.84.1 and 8.85, in directing the jury
in the penalty phase to determine what the facts are from the evidence received
during the entire trial, unconstitutionally allowed the consideration of nonstatutory
aggravating circumstances in the determination of penalty. We have held
otherwise. (People v. Taylor (2001) 26 Cal.4th 1155, 1180 [standard sentencing
instructions proper despite failure to limit aggravating evidence to factors
enumerated in § 190.3].)
d. CALJIC No. 8.86
Defendant testified at the guilt phase that he had been convicted of federal
drug possession charges in 1988 and was incarcerated in a federal prison until
August 1993. At the penalty phase the parties stipulated to the prosecution’s
introduction of documentation from the United States Department of Justice
regarding defendant’s 1988 federal conviction and incarceration for drug
possession. This eight-page “prison packet” included detailed information about
the prior conviction.
In closing argument the prosecutor referred to defendant’s prior conviction,
stating defendant “collided with the criminal justice system and he didn’t learn
from his mistakes. He didn’t get any better, he got worse. And if you recall from
his testimony itself, as soon as he was released from federal prison, he went back
to drug dealing. It shows a person who has very little ability to be reformed, to
repent his prior conviction. That is significant when you analyze the man. So that
definitely is a factor in aggravation.”
Defendant argues that in light of the introduction of the federal “prison
packet,” the court prejudicially erred in refusing to instruct sua sponte with
CALJIC No. 8.86, which requires the jury to find beyond a reasonable doubt that
54
defendant was convicted of a prior crime before the prior crime can be considered
as an aggravating circumstance.
Normally such an instruction is required, even absent a request, when
evidence of prior crimes is introduced or referred to as an aggravating factor
pursuant to section 190.3, factor (c). (People v. Davenport (1985) 41 Cal.3d 247,
280; People v. Robertson (1982) 33 Cal.3d 21, 53, 60.) Under the circumstances
of this case, however, it was not necessary. Defendant first told the jury of the
conviction, and the prison packet was admitted by stipulation, so there was no
question whether he suffered the conviction. All that CALJIC No. 8.86 would
have done was to imply that the conviction was a factor in aggravation, which
would, if anything, have aided the prosecution, not defendant. Any error was
harmless beyond a reasonable doubt.
e. Refusal to Instruct on Remorse
The court refused the defense request to instruct the jury that “[y]ou may
not consider lack of remorse as an aggravating factor. Further, you may not
consider the defendant’s trial testimony in which he denied legal responsibility for
the crimes charged as evidence of lack of remorse.” Defendant argues the
instruction was necessary because there was evidence from which the jury could
infer he lacked remorse.
We disagree. The jury may consider the circumstances of the crime in
aggravation. (§ 190.2, factor (a).) Accordingly, “[t]he jury may consider the
defendant’s refusal to show any remorse in the context of the murder as an
aggravating factor.” (People v. Ochoa (2001) 26 Cal.4th 398, 449.) Although the
prosecution is precluded from arguing that lack of remorse can be found in
defendant’s claim of innocence (People v. Fierro (1991) 1 Cal.4th 173, 243–244;
People v. Coleman (1969) 71 Cal.2d 1159, 1169), or that lack of remorse not
related to the crime is an aggravating factor (People v. Mendoza (2000) 24 Cal.4th
55
130, 186; People v. Proctor (1992) 4 Cal.4th 499, 545), the prosecution did not
make these arguments. Thus, the proposed instruction was unnecessary. The
standard instructions, which the court gave, were sufficient.
4. Jury Deliberation Claims
a. Jurors’ Questions
Defendant argues the court prejudicially erred in answering several jurors’
questions during the penalty phase. We find no error.
The first question asked, “Please review instruction regarding severity of
penalty. One juror has expressed belief that life in prison is more punishing than
death.” Over defendant’s objection that the juror was revealing misconduct in the
deliberations and inviting the judge to become the thirteenth juror, the court
replied, “Under the law . . . and regardless of your personal belief as to what is
harder on somebody or what is more severe or what is the tougher penalty, under
the law the death penalty is the more severe penalty. Life in prison is not as severe
as the death penalty. That is the law and that is the law you have to follow. . . .
You can’t inject your own belief as to what you think is tougher or not.”
Defendant argues that by instructing the jury that death is the more severe
penalty, the court interfered with the jury’s deliberative process and thereby
increased the risk of an arbitrary and capricious decision on penalty. We disagree.
That death is considered to be a more severe punishment than life is explicit in
California law: CALJIC No. 8.88, approved in People v. Duncan (1991) 53 Cal.3d
955, 977–979, states in pertinent part “[t]o return a judgment of death, each of you
must be persuaded that the aggravating circumstances are so substantial in
comparison with the mitigating circumstances that it warrants death instead of life
without parole.” The court did not err in so instructing the jury.
The second question asked, “Please review the law regarding speculation
on whether the convicted felon may later repent if given the sentence of life
56
imprisonment.” The juror later clarified that the concern was whether it would be
appropriate for the jury to consider or speculate whether defendant might repent,
or have a change of character, while serving a life sentence. Without objection,
the court explained: “In terms of whether or not you can speculate on certain
things, the answer is no. The instructions taken as a whole clearly indicate that
you cannot base any decision in this case or resolve any issue in this case by the
process of speculating. You must base your decision upon the evidence and any
reasonable inference to be drawn from the evidence in the case, not just
speculating which means just guesswork and so forth.”
Defendant now argues the court failed to address the juror’s question
regarding repentance and thereby sent the message that the jurors were not to
consider defendant’s character or propensity for repentance in their deliberations.
He argues this violated his Eighth Amendment right to have the court give
guidance as to the mitigating factors to be considered, citing McDowell v.
Calderon (9th Cir. 1999) 130 F.3d 833. Because he failed to object to the court’s
response, defendant has forfeited the issue for appeal. In any event, the claim has
no merit. The court’s response did not, as defendant contends, directly or
impliedly tell the jurors they could not consider defendant’s character or
propensity for repentance in their deliberative process. Rather, in light of the fact
that defendant presented no evidence regarding repentance, the court properly
instructed them they should not speculate about facts not before them.
The third question asked, “Please explain more to me mitigating and
aggravating and how it fits in with factor (k) extenuating circumstances. Does that
mean what positive (mitigating) things you can argue about for [sic] what has
happen [sic] to the victim [sic] (to not give him the death penalty.) If you can give
an example.” The juror later clarified he was seeking an explanation of and
examples of “extenuating circumstances” in reference to section 190.3, factor (k)
57
(“Any other circumstance which extenuates the gravity of the crime even though it
is not a legal excuse for the crime.”). Over defendant’s objection to giving any
examples of extenuating circumstances, the court explained that factor (k) was
“divided into two parts, . . . the circumstances related to the crime . . . and factors
peculiar to the defendant’s character or background. . . . The word ‘extenuate,’ or
‘extenuate the gravity of the crime’ means make less severe, make a crime not so
bad. . . . If someone, for example, was convicted of stealing some food and that
person was hungry at the time that that person stole, that would not be a legal
defense, but it would be something that the jury would consider. [¶] It would
make the crime less severe. You should not steal, but there was some, not defense
or excuse, but some reason perhaps that motivated it and made it less bad as
opposed to somebody stealing food to resell it to buy heroin with. [¶] The other
example that I thought of is if you punch somebody in the nose, you can’t do that.
But if you punch somebody in the nose because two minutes before that person
had hit your little son on the head with a rock, some big grown-up man hit your
five-year old son on the head with a rock, and you punched this fellow’s nose in,
you would probably end up being arrested and a jury would convict you of battery,
but there is something there that extenuates the gravity of your act.”
Defendant now argues, as he did below, that these examples trivialized the
weighing process and confused the jury by creating an unreasonable expectation
of what mitigating evidence could be. He argues the examples set forth an unfair
standard of comparison with the facts of the case. We disagree. The examples
given were reasonable explanations of general extenuating circumstances within
the context of criminal behavior, and were far enough removed from the
circumstances of this crime that no reasonable juror would apply the examples as
standards of evidence in mitigation. The court did not err.
58
b. Alleged Coercion of Deadlocked Jury
The court asked the jury to return separate verdicts of either “death” or “life
imprisonment without parole” on count two (the murder of Allen) and on count
three (the murder of Allen’s fetus). On three occasions, over three days of
deliberations, the jurors informed the court they were deadlocked. The jurors
reported there had been changes in the votes on count two and count three on each
of the ballots taken.8 Following each declaration of deadlock, defendant moved
for a mistrial, arguing in essence that further deliberations would be futile and the
court’s insistence in continuing deliberations constituted coercion. He now argues
the court should have declared a mistrial. We disagree.
Section 1140 provides, “Except as provided by law, the jury cannot be
discharged after the cause is submitted to them until they have agreed upon their
verdict and rendered it in open court, unless by consent of both parties, entered
upon the minutes, or unless, at the expiration of such time as the court may deem
proper, it satisfactorily appears that there is no reasonable probability that the jury
can agree.” The determination whether there is a reasonable probability of
agreement rests within the sound discretion of the trial court. (People v. Proctor,
supra, 4 Cal.4th at p. 539.) “Although the court must take care to exercise its
power without coercing the jury into abdicating its independent judgment in favor
of considerations of compromise and expediency [citation], the court may direct
further deliberations upon its reasonable conclusion that such direction would be
8
On the first day, after four hours of deliberation, one ballot was taken,
revealing votes of nine to three on count two, and six to six on count three. Later
that afternoon, the second, third, and fourth ballots revealed votes of eight to four,
then seven to five, on count two, and nine to three on count three. On the second
day of deliberations, the jury reported taking an additional five ballots, revealing
consistent votes of eleven to one on count two, and fluctuating votes of eight to
four, seven to five, and four to eight on count three. The jury reached a verdict on
both counts on the third day.
59
perceived ‘ “as a means of enabling the jurors to enhance their understanding of
the case rather than as mere pressure to reach a verdict on the basis of matters
already discussed and considered.” ’ ” (People v. Proctor, supra, 4 Cal.4th at p.
539.)
On the first occasion, the court noted that the jury had only been
deliberating for four hours and had taken only one ballot. The court polled each
juror individually to determine if any readback of testimony or clarification of the
law would be of benefit. The court answered questions submitted by several
jurors, and sent the jury back to continue deliberations.
On the second occasion, later that afternoon, the court indicated that
because three additional ballots had been taken and each revealed there had been
changes in the votes, it was not satisfied that a unanimous verdict could not be
reached. Before sending the jurors home for the weekend, the court reminded
them that each had said during the jury selection process that they “were the type
of folks who could choose between the penalties,” that each individual juror had
assured the court that he or she could vote for the punishment they thought
appropriate, whether it be life without the possibility of parole or death, and that if
at any time during the trial any juror felt unable to make such a decision, he or she
would so inform the court. Each juror was polled and indicated he or she could
make such a decision. The court instructed the jurors: “Do not take any of my
comments now or at any time in this trial as suggesting how any juror should vote
as to penalty on either count. . . . [¶] . . . I am not going to attempt to coerce a
verdict out of a jury at all, but what I will do is explore this until I am convinced
that there is no reasonable possibility of a unanimous verdict. . . . [¶] . . . Please
draw no inferences from anything that I have said or any question that I may have
asked about how I believe or feel this case should be resolved or if it should be.”
60
On the third occasion, the following day, the court again noted changes in
votes in the five ballots taken that day, and stated it was not satisfied a unanimous
verdict could not be reached.
Defendant argues the court’s comments improperly constituted subtle
insistence that a verdict should be reached and implicitly required the jurors to
move toward unanimity. Further, he argues the court abandoned its responsibility
to remind the jurors they should not surrender their individual beliefs in order to
reach a verdict. We find no abuse of discretion. In spite of the jury’s assessment
that they were “hopelessly deadlocked,” the record reasonably supports the court’s
determination that the jurors had not reached an impasse. Each successive ballot
taken revealed changes in the votes. Further, contrary to defendant’s argument,
the court’s comments did not insist that a verdict be reached. The court’s
comments informed the jury that deliberations would continue until the court was
satisfied they were deadlocked, but they were not to infer that the court believed a
verdict “should be” reached. Finally, each juror was sufficiently reminded of his
or her individual responsibilities in the deliberative process when the court polled
each juror to determine if each could make a choice and reach a verdict. (Cf.
People v. Rodriguez, supra, 42 Cal.3d at pp. 774-777 [no error in denying mistrial
motion when jury stated it was “hopelessly deadlocked” after 18 days of
deliberations].)
D. Constitutionality of California’s Death Penalty Law
Defendant raises a number of facial constitutional challenges to California’s
death penalty statute, claims we have repeatedly rejected and find no persuasive
reason to reexamine. Accordingly, we continue to hold:
Section 190.2 adequately narrows the class of murder for which the death
penalty may be imposed (People v. Snow, supra, 30 Cal.4th at p. 125), and is not
overbroad, either because of the sheer number and scope of special circumstances
61
which define a capital murder, or because the statute permits imposition of the
death penalty for an unintentional felony murder (People v. Anderson (2001) 25
Cal.4th 543, 601).
Consideration of the circumstances of the crime under section 190.3, factor
(a), does not result in arbitrary or capricious imposition of the death penalty.
Contrary to defendant’s position, “a statutory scheme would violate constitutional
limits if it did not allow such individualized assessment of the crimes but instead
mandated death in specified circumstances. (See generally Lockett v. Ohio (1978)
438 U.S. 586, 602-606.)” (People v. Brown (2004) 33 Cal.4th 382, 401.) The use
of restrictive adjectives—i.e., “extreme” and “substantial”—in the list of
mitigating factors in section 190.3 does not act unconstitutionally as a barrier to
the consideration of mitigation. (People v. Brown, supra, 33 Cal.4th at p. 402;
People v. Prieto (2003) 30 Cal.4th 226, 276.)
California death penalty law is not unconstitutional for failing to impose a
burden of proof—whether beyond a reasonable doubt or by a preponderance of the
evidence—as to the existence of aggravating circumstances, the greater weight of
aggravating circumstances over mitigating circumstances, and the appropriateness
of a death sentence. (People v. Brown, supra, 33 Cal.4th at p. 401; People v.
Lenart (2004) 32 Cal.4th 1107, 1136; People v. Hillhouse (2002) 27 Cal.4th 469,
510-511.) The jury is not constitutionally required to achieve unanimity as to
aggravating factors. (People v. Brown, supra, 33 Cal.4th at p. 402; People v.
Prieto, supra, 30 Cal.4th at p. 275.) Recent United States Supreme Court
decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona
(2002) 536 U.S. 584 have not altered these conclusions. (People v. Brown, supra,
33 Cal.4th at p. 402; People v. Prieto, supra, 30 Cal.4th at p. 275.)
Because neither capital defendants nor noncapital defendants have their
penalties fixed under the standard of proof beyond a reasonable doubt, the death
62
penalty does not in that respect violate principles of equal protection. (People v.
Marshall (1990) 50 Cal.3d 907, 936.) The trial court is not required to identify
which factors are aggravating and which are mitigating, or to instruct that the jury
must restrict its consideration of evidence in this regard. (People v. Brown, supra,
33 Cal.4th at p. 402.) The jury is not required to make written findings. (Ibid.;
People v. Frierson (1979) 25 Cal.3d 142, 178–180.)
The failure to require intercase proportionality review does not render the
law unconstitutional. (People v. Brown, supra, 33 Cal.4th at p. 402; People v.
Prieto, supra, 30 Cal.4th at p. 276.) The jury need not unanimously consider
unadjudicated criminal activities as factors in aggravation, but such criminal
activities can be considered only if deemed true beyond a reasonable doubt.
Unanimity is required only as to the appropriate penalty. (People v. Anderson,
supra, 25 Cal.4th at p. 590.) Prosecutorial discretion whether or not to seek the
death penalty does not render the law vague or arbitrary. (People v. Brown, supra,
33 Cal.4th at p. 403; People v. Crittenden, supra, 9 Cal.4th at p. 152.)
Finally, California’s death penalty statute does not “fall short of
international norms of humanity and decency.” “International law does not
prohibit a sentence of death rendered in accordance with state and federal
constitutional and statutory requirements.” (People v. Hillhouse, supra, 27 Cal.4th
at p. 511; see also People v. Brown, supra, 33 Cal.4th at p. 404.)
E. Cumulative Error
Defendant contends that the cumulative effect of errors in the guilt and
penalty phases require reversal. “Defendant has demonstrated few errors, and we
have found each error or possible error to be harmless when considered separately.
Considering them together, we likewise conclude that their cumulative effect does
not warrant reversal of the judgment.” (People v. Bolden (2002) 29 Cal.4th 515,
567-568.)
63
III. CONCLUSION
We affirm the judgment.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
64
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
With respect to the guilt phase of defendant’s capital trial, I join the
majority in upholding the convictions for the attempted murder of Bernard Canto
(Pen. Code, §§ 187, 664),1 the murders of Alicia Allen (Canto’s fiancée) and her
17-week-old fetus (§ 187), and other crimes not pertinent here, as well as the
jury’s findings that defendant committed the murders under the special
circumstances of felony-murder robbery, felony-murder burglary (§ 190.2, subd.
(a)(17)(A), (G)), and multiple murder (§ 190.2, subd. (a)(2)). I write separately to
clarify the problem with the trial judge’s questioning of defendant in front of the
jury during defendant’s testimony on his own behalf at the guilt phase. The
majority says that it does “not endorse all of the trial court’s questioning,” and
acknowledges that “some of it [was] inappropriate,” but it provides no guidance as
to which questions were improper or why. (Maj. opn, ante, p. 41.) As I will
explain, certain of the court’s questions may well have conveyed to the jury the
judge’s opinion that defendant’s testimony was not credible. In doing so, the
judge became an advocate for the prosecution, abandoning the neutrality required
of a judge. The error, however, was harmless.
With respect to the penalty phase of trial, I conclude that the trial court
committed prejudicial error when it excluded certain evidence proffered by
defendant. I therefore disagree with the majority’s holding that the court properly
1
Unless otherwise indicated, all section references are to the Penal Code.
1
excluded this evidence, and I dissent from the majority’s affirmance of the
judgment of death.
I
During the evening of August 9, 1994, Bernard Canto was found on a
sidewalk near the apartment complex where defendant lived. He had been shot
three times, but he survived. Later that night, neighbors saw two men come to the
house where Canto lived with his fiancée, Alicia Allen. One of the men went
inside. The neighbors later heard shots and saw the two men fleeing; one of them
was limping. When police officers came to the house, they found the body of
Allen, who had been shot twice in the head. The house had been ransacked.
When defendant was arrested, he had a gunshot wound in his leg, and he had a
large quantity of cocaine.
Before defendant’s capital trial, Canto was murdered in Chicago. At the
guilt phase of the trial, the prosecution had Canto’s preliminary hearing testimony
read to the jury. In that testimony, which the jury evidently believed, Canto said
that defendant asked for a ride to his apartment, promising to repay $1,500 that he
owed Canto. When they arrived, however, defendant suddenly shot Canto three
times and left him lying outside the apartment complex. Canto also said that after
Allen’s killing some money was missing from the home he shared with Allen and
that he had told defendant, before Allen’s murder, that he kept a large amount of
money there.
The prosecution also presented the testimony of Regina Mills, with whom
defendant stayed after Allen’s murder. She testified that defendant told her that he
was injured in a shootout that occurred in a robbery, and that he had shot a woman
who he thought was pregnant.
2
Testifying in his own defense, defendant denied shooting either Canto or
Allen. He said that Canto was a drug dealer; that he himself was a “middle man”
who put together buyers and sellers of cocaine and marijuana; and that on the
morning of the shootings Canto had telephoned him that he had buyers who
wanted a kilogram of cocaine. Defendant said that he told Canto he would buy the
cocaine and bring it to Canto, but that he actually delivered a kilogram of fake
cocaine to Canto, who gave defendant $16,000 and said he wanted four more
ounces of cocaine as soon as possible.
Defendant further testified that when he returned to the Canto/Allen house
with the last cocaine order, armed strangers tied his hands. He said he managed to
break free, but then two men grabbed him, one of them shot him in the leg, and he
heard the other man exclaim that the shot hit him too. According to defendant, the
gunman then tried to shoot defendant in the face, but the gun jammed and
defendant ran away. He insisted that he never saw Allen that night and that he did
not know she had been killed until he read about it in the newspaper.
The defense argued that the two men who defendant said had attacked him
at the Canto/Allen home must have killed Allen, and that they were the same two
men whom neighbors saw fleeing from the home shortly after shots were fired.
According to the defense, the limping man who fled from the home was not
defendant (as the prosecution had claimed), but the man who (according to
defendant’s testimony) was hit by the bullet that wounded defendant in the leg.
II
After defendant’s testimony at the guilt phase of trial, the prosecutor cross-
examined him. The trial court then asked defendant a series of questions.
Defendant contends that some of these questions could have conveyed to the jury
that the trial court was on the side of the prosecutor. I agree.
3
“ ‘The law of this state confers upon the trial judge the power, discretion
and affirmative duty . . . [to] participate in the examination of witnesses whenever
he believes that he may fairly aid in eliciting the truth, in preventing
misunderstanding, in clarifying the testimony or covering omissions, in allowing a
witness his right of explanation, and in eliciting facts material to a just
determination of the cause.’ ” (People v. Carlucci (1979) 23 Cal.3d 249, 256,
quoting Gitelson, A Trial Judge’s Credo (1966) 7 Santa Clara L.Rev. 7, 13-14.)
In asking such questions, however, “the trial court must not undertake the
role of either prosecutor or defense counsel.” (People v. Carlucci, supra, 23
Cal.3d at p. 258.) “The examination should relate to material matters and be
conducted impartially, so that the jury will not receive improper inferences as to
the judge’s opinions on the case.” (3 Witkin, Cal. Evidence (4th ed. 2000) § 82,
p. 116; see also People v. Camacho (1993) 19 Cal.App.4th 1737, 1744.) “The trial
judge’s interrogation ‘must be . . . temperate, nonargumentative, and scrupulously
fair.’ ” (People v. Hawkins (1995) 10 Cal.4th 920, 948.) The judge “may not ask
questions to convey to the jury his opinion of the credibility of a witness” (People
v. Rigney (1961) 55 Cal.2d 236, 241) and “must not become an advocate for either
party” (ibid.).
Here, the trial court’s examination of defendant began with these questions:
“Court: When you were in [Canto and Allen’s] house, you say you heard a
gun go off? Who did you figure was being shot?
“Defendant: I thought I was being shot at.
“Court: At some point did it dawn on you that perhaps somebody else had
been shot in the house?
“Defendant: No.
“Court: Never did?
“Defendant: No.” (Italics added.)
4
The trial judge’s question—“Never did?”—did nothing to clarify the
evidence. Defendant had already answered that it had not occurred to him that
anyone in the house had been shot, and the judge’s question merely compelled
defendant to repeat his answer. Viewed in isolation, this initial part of the judge’s
questioning would be a trivial matter. But this was simply the first instance of a
recurring theme throughout the trial judge’s questioning of defendant, in the
course of which defendant had to repeat answers he had already given, answers
that seemed damaging to the defense.
The trial court’s examination continued:
“Court: Did you think that Mr. Canto might be in there?
“Defendant: Yes, I figured it was a possibility he was in there.
“Court: You didn’t see him, though?
“Defendant: No.
“Court: Did you think the young lady [Canto’s girlfriend, Allen] might be
in there?
“Defendant: No, because I haven’t seen her. I didn’t see her earlier when I
was there.
“Court: You didn’t think she was home?
“Defendant: No, I didn’t.
“Court: Did you ever call the house later on to see if anybody got killed?
“Defendant: No, I didn’t.
“Court: Why not?
“Defendant: Just never crossed my mind.
“Court: Didn’t?
“Defendant: No.
“Court: Weren’t you curious?
“Defendant: I was more distraught.” (Italics added.)
5
The trial judge’s first question that I have italicized—“Didn’t?”—once
again compelled defendant to repeat testimony apparently damaging to the
defense. The judge then immediately asked a largely rhetorical question—
“Weren’t you curious?”—that may have conveyed to the jury that the judge did
not believe defendant’s testimony.
The court went on:
“Court: In the next couple of days did you ever call [Canto and Allen’s]
house or try to contact Mr. Canto?
“Defendant: Like I said, I believe it was the next day that I read the
newspaper.
“Court: You said two days later.
“Defendant: I believe it was either that day or the next day.
“Court: It wouldn’t be in the next morning’s paper since it happened so
late.
“Defendant: I couldn’t say for sure. I couldn’t say what day it was.
“Court: You never called to find out what happened?
“Defendant: No.
“Court: Never did?
“Defendant: No.
“Court: You were ignorant of it until you read it in the paper?
“Defendant: Yes.” (Italics added.)
The trial court’s question, “You never called to find out what happened?”
was argumentative. The judge had already asked that question, and defendant had
answered it. Replying to this repetitive question, defendant again said he had not
called Canto at his home to find out what had happened. The court then
rhetorically asked, “Never did?” This was the third time the court had asked
defendant whether he had called, in addition to the questions about why he had not
6
done so. The judge’s concluding question—“You were ignorant of [the shooting
of Allen] until you read it in the paper?”—simply repeated an answer defendant
had earlier given.
The judge’s repetitive questions to defendant did not “ ‘aid in eliciting the
truth, in preventing misunderstanding, in clarifying the testimony or covering
omissions, in allowing a witness his right of explanation, and in eliciting facts
material to a just determination of the cause.’ ” (People v. Carlucci, supra, 23
Cal.3d at p. 256.) Rather, they served only to highlight for the jury implausible
aspects of defendant’s testimony, thus improperly conveying to the jury the
judge’s view that defendant’s testimony was not credible. (See People v. Rigney,
supra, 55 Cal.2d at p. 241.)
Nevertheless, reversal is not required. Defendant did not object to the trial
court’s questions. (See People v. Corrigan (1957) 48 Cal.2d 551, 556 [“It is
settled that a judge’s examination of a witness may not be assigned as error on
appeal where no objection was made when the questioning occurred.”].)
Moreover, the evidence of guilt was strong, and defendant’s claim of innocence
was unpersuasive. Although the trial court should not have asked questions
revealing its disbelief of defendant’s story, the weaknesses in that story would
have been apparent to the jury, particularly after the prosecutor pointed them out
in his closing argument. Thus, it is not “reasonably probable” (People v. Watson
(1956) 46 Cal.2d 818, 836) that the jury would have reached a different result at
the guilt phase of defendant’s trial if the trial court had not asked the improper
questions I discussed earlier. Nor were the court’s questions so damaging or
unfair as to violate defendant’s right to a fair trial under the Fourteenth
Amendment to the federal Constitution.
7
III
Before trial, the prosecution moved to exclude all evidence tending to show
that Canto, the victim of the attempted murder, was dealing drugs that were kept in
the home he shared with murder victim Allen, his fiancée, and that Allen knew
this. Below, I briefly describe the most significant defense evidence that the
prosecution sought to exclude:
(1) Deborah Chambers, who was Canto’s former wife and the mother of
his three children, had lived with Canto for 10 years. She was expected to testify
for the defense that Canto never held a “regular job,” yet had “a lot of money,”
that he traveled extensively, and that she ended her relationship with him
approximately one year before the murders in this case because “she believed his
drug dealing activities placed her and her children in danger.” Chambers also
would testify that she warned Canto’s fiancée Allen, that Canto was a drug dealer,
and that if Allen remained with Canto she would run the risk of getting killed.
(2) Canto’s neighbors saw extensive foot traffic at Canto’s house at all
hours of the day and night;
(3) After the murders, police found three bulletproof vests at Canto’s
home, one of which had a bullet hole in it.
(4) Two defense witnesses were prepared to testify that Canto always
carried a gun.
(5) After the preliminary hearing but before trial in this case, Canto was
murdered in Chicago by one Melvin Walford. In his confession, Walford said that
he, Canto, and another man had been trafficking in cocaine for several years; that
on the day Canto was killed the three of them were in Canto’s car when Canto
accused Walford of stealing from him; that after angry words were exchanged,
Canto ordered Walford out of the car; and that Walford, angry at being ordered out
of the car, pulled out his gun and shot Canto several times, killing him.
8
All of this proffered testimony—except for the neighbors’ testimony about
the foot traffic at the Canto/Allen home—was excluded both at the guilt phase and
at the penalty phase. Although the majority acknowledges that some of this
defense evidence should have been admitted at the guilt phase to support
defendant’s claim of innocence, it concludes that the evidence was irrelevant at the
penalty phase. I disagree with the latter conclusion.
Based on the evidence proffered by defendant, considered along with
defendant’s guilt phase testimony that he and Canto were drug dealers, the jury
could have concluded: (1) Canto was a dealer who dealt drugs out of his and
Allen’s home; (2) although there was no evidence that Allen herself was dealing
drugs, she knew Canto kept drugs for sale in their home, and they jointly
possessed them (see, e.g., People v. Saldana (1984) 157 Cal.App.3d 443, 455
[“the prosecution was able to prove that [the defendant] had . . . possession of the
heroin since it was found in the bedroom over which he exercised joint dominion
and control”]; People v. Crews (1952) 110 Cal.App.2d 218, 220 [evidence of
narcotics and paraphernalia found in “open sight” in their home “was sufficient to
support the finding of joint possession of husband and wife”]; see generally
People v. Newman (1971) 5 Cal.3d 48, 52; People v. Harrington (1970) 2 Cal.3d
991, 998); (3) defendant knew that Canto and Allen kept drugs and the profits
from drug sales in their home; and (4) defendant killed Allen and tried to kill
Canto to obtain the drugs and money.
The excluded defense evidence about Canto’s activities as a drug dealer and
about Allen’s knowledge of the drug dealing and her joint possession of the drugs
was admissible on two grounds. It was admissible under factor (a) of section
190.3, which allows the prosecution and the defense to introduce evidence
pertaining to “[t]he circumstances of the crime of which the defendant was
9
convicted in the present proceeding,” and it was admissible to rebut the victim
impact evidence that the prosecution presented.
As used in factor (a) of section 190.3, the phrase “the circumstances of the
crime” is broadly defined. It “does not mean merely the immediate temporal and
spatial circumstances of the crime. Rather it extends to ‘[t]hat which surrounds
materially, morally, or logically’ the crime.” (People v. Edwards (1991) 54 Cal.3d
787, 833; see also People v. Smith (2005) 35 Cal.4th 334, 352.) Here, Canto’s
activities as a drug dealer, and Allen’s knowing acquiescence in those activities,
were circumstances that surrounded both morally and logically the murders of
Allen and the fetus she was carrying, in particular because the presence of the
drugs and the cash proceeds from drug sales provided the motive for the robbery
murders.
The evidence was also admissible to rebut the prosecution’s victim impact
evidence. In Payne v. Tennessee (1991) 501 U.S. 808, the United States Supreme
Court held that in capital prosecutions the Eighth Amendment’s prohibition of
cruel and unusual punishment does not bar presentation of evidence “about the
victim and about the impact of the murder on the victim’s family,” and that a state
may properly conclude that such evidence “is relevant to the jury’s decision as to
whether or not the death penalty should be imposed.” (501 U.S. at p. 827.) The
court explained that “[v]ictim impact evidence is simply another form or method
of informing the sentencing authority about the specific harm caused by the crime
in question, evidence of a general type long considered by sentencing authorities.”
(Id. at p. 825.) The court acknowledged a concern “that the admission of victim
impact evidence permits a jury to find that defendants whose victims were assets
to their community are more deserving of punishment than those whose victims
are perceived to be less worthy” (id. at p. 823), but the court thought this concern
unfounded: “As a general matter, however, victim impact evidence is not offered
10
to encourage comparative judgments of this kind—for instance, that the killer of a
hardworking, devoted parent deserves the death penalty, but that the murderer of a
reprobate does not. It is designed to show instead each victim’s ‘uniqueness as an
individual human being,’ whatever the jury might think the loss to the community
resulting from his death might be.” (Ibid.)
Here, the prosecution’s case in aggravation at the penalty phase relied
heavily on victim impact testimony showing the effect of Allen’s death on her
mother and grandmother. As part of this testimony, the jury learned that in high
school Allen had been a cheerleader who was on the debate team and loved to
dance. Defendant should have been permitted to add to this portrait by presenting
evidence that Allen’s fiancé, Canto, was a drug dealer who kept drugs and drug
money at their apartment, and that Allen was aware of and acquiesced in this drug
dealing and, by reasonable inference, benefited financially from it.
Does the erroneous exclusion of this evidence require reversal of the death
judgment? Under state law, error at the penalty phase of a capital trial requires
reversal of a death judgment if there is a reasonable possibility that the error
affected the penalty verdict. (People v. Jackson (1996) 13 Cal.4th 1164, 1232.)
This standard “is the same, in substance and effect, as the harmless beyond a
reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24.”
(People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11.) In adopting this strict
standard, the court has recognized the inherent difficulty of making prejudice
determinations for penalty phase errors: “A capital penalty jury . . . is charged
with a responsibility different in kind from . . . guilt phase decisions: its role is not
merely to find facts, but also—and most important—to render an individualized,
normative determination about the penalty appropriate for the particular
defendant—i.e., whether he should live or die.” (People v. Brown (1988) 46
Cal.3d 432, 448.) “As the representative of the ‘community at large, the jury
11
applies “its own moral standards to the aggravating and mitigating evidence” ’ to
determine if death or life [imprisonment without parole] ‘ “is the appropriate
penalty for [that] particular offense and offender.” ’ ” (People v. Mendoza (2000)
24 Cal.4th 130, 192.)
Here, the evidence erroneously excluded by the trial court is unlike the
mitigating evidence customarily offered by the defense at the penalty phase of a
capital case in that it pertained primarily to the behavior of the victims, not the
defendant. Some jurors might well reject such evidence as irrelevant or
unpersuasive, or even be offended by a perceived attempt to attack the character of
the victims. Other jurors, however, may have viewed the evidence that attempted
murder victim Canto was a drug dealer and that murder victim Allen allowed
Canto to sell illegal drugs from the apartment they shared and benefited financially
from the illegal drug sales as significantly weakening the aggravating force of the
prosecution’s victim impact evidence and as making the murders of Allen and her
fetus marginally less heinous. I cannot say beyond a reasonable doubt that the
jury here would not have viewed the evidence in this way, nor can I say beyond a
reasonable doubt that consideration of this evidence would not have affected the
penalty verdict, causing at least some jurors to select the penalty of imprisonment
for life without possibility of parole. Apart from the circumstances of the crimes
and the victim impact evidence, the only circumstance in aggravation suggested by
the prosecution was defendant’s one prior felony conviction, for drug possession.
Because the case in aggravation was not overwhelming, I conclude that the error
in excluding the evidence was prejudicial and that the judgment should be
reversed as to penalty.
KENNARD, J.
12
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. S058092
Date Filed: August 29, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Charles E. Horan
__________________________________________________________________________________
Attorneys for Appellant:
Glen Niemy, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Rama R. Maline, Deputy Attorneys General,
for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Glen Niemy
P.O. Box 764
Bridgton, ME 04009
(207) 647-2600
Rama R. Maline
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2287
2
Opinion Information
| Date: | Docket Number: |
| Mon, 08/29/2005 | S058092 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Mr. Rama Maline, Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA |
| 2 | Harris, Maurice Lydell (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Michael Laurence, Executive Director 303 Second Street, Suite 400 South San Francisco, CA |
| 3 | Harris, Maurice Lydell (Appellant) San Quentin State Prison Represented by Glen Niemy Attorney at Law P.O. Box 764 Bridgton, ME |
| Disposition | |
| Aug 29 2005 | Opinion: Affirmed |
| Dockets | |
| Dec 20 1996 | Judgment of death |
| Dec 26 1996 | Filed certified copy of Judgment of Death Rendered December 20,1996 |
| Mar 15 2000 | Counsel appointment order filed Upon request of applt for appointment of counsel, Glen Niemy is hereby appointed to represent Maurice Lydell Harris for the direct appeal in the above automatic appeal now pending in this court. |
| Mar 27 2000 | Received letter from: Superior Court; dated 3/23/2000; Re Advising Record Was mailed to Applt Counsel on 3/23/2000. |
| Jun 22 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Jun 26 2000 | Extension of Time application Granted To 8/25/2000 To Applt To request Corr. of the Record. |
| Jul 12 2000 | Compensation awarded counsel Atty Niemy |
| Jul 24 2000 | Counsel's status report received (confidential) from atty Niemy. |
| Aug 9 2000 | Compensation awarded counsel Atty Niemy |
| Aug 24 2000 | Application for Extension of Time filed By applt to request corr. of the record. (2nd request) |
| Aug 25 2000 | Extension of Time application Granted To 10/24/2000 to applt to request corr. of the record. |
| Sep 22 2000 | Counsel's status report received (confidential) from atty Niemy. |
| Sep 27 2000 | Compensation awarded counsel Atty Niemy |
| Oct 24 2000 | Application for Extension of Time filed By applt to request corr. of the record. (3rd request) |
| Oct 26 2000 | Extension of Time application Granted To 11/27/2000 to applt to request corr. of the record. |
| Nov 14 2000 | Change of Address filed for: Atty Glen Niemy |
| Nov 16 2000 | Compensation awarded counsel Atty NIemy |
| Nov 27 2000 | Received copy of appellant's record correction motion Appellant's request to correct, augment the record, examine sealed transcripts, seal other documents and settle the record (10 pp. excluding attachment) |
| Nov 27 2000 | Counsel's status report received (confidential) from atty Niemy. |
| Jan 30 2001 | Compensation awarded counsel Atty Niemy |
| Mar 14 2001 | Compensation awarded counsel Atty Niemy |
| Mar 27 2001 | Counsel's status report received (confidential) from atty Niemy. |
| May 31 2001 | Counsel's status report received (confidential) from atty Niemy. |
| Jul 23 2001 | Change of Address filed for: applt. counsel Niemy. |
| Jul 25 2001 | Counsel's status report received (confidential) from atty Niemy. |
| Oct 1 2001 | Counsel's status report received (confidential) from atty Niemy. |
| Oct 16 2001 | Compensation awarded counsel Atty Niemy |
| Oct 17 2001 | Compensation awarded counsel Atty Niemy |
| Dec 3 2001 | Counsel's status report received (confidential) from atty Niemy. |
| Dec 11 2001 | Counsel's status report received (confidential) (amended) from atty Niemy. |
| Dec 18 2001 | Record on appeal filed C-13 (3370 pp.) and R-33 (3501 pp.) including material under seal. CT includes 1428 pp. of juror questionnaires. |
| Dec 18 2001 | Appellant's opening brief letter sent, due: January 28, 2002. |
| Jan 29 2002 | Request for extension of time filed To file A0B. (1st request) |
| Jan 31 2002 | Extension of time granted To 3/29/2002 to file AOB. |
| Feb 11 2002 | Counsel's status report received (confidential) from atty Niemy. |
| Mar 26 2002 | Request for extension of time filed To file AOB. (2nd request) |
| Mar 28 2002 | Extension of time granted to 5-28-2002 to file AOB. |
| Apr 4 2002 | Compensation awarded counsel Atty Niemy |
| May 17 2002 | Counsel's status report received (confidential) from atty Niemy. |
| May 22 2002 | Request for extension of time filed To file AOB. (3rd request) |
| May 24 2002 | Extension of time granted To 7/26/2002 to file AOB. |
| Jun 12 2002 | Compensation awarded counsel Atty Niemy |
| Jul 15 2002 | Motion filed by applt., to augment record appeal pursuant to Rule of Court 12(a). |
| Jul 19 2002 | Compensation awarded counsel Atty Niemy |
| Jul 22 2002 | Request for extension of time filed To file AOB. (4th request) |
| Jul 24 2002 | Extension of time granted To 9/24/2002 to file AOB. |
| Sep 11 2002 | Filed: Ruling on the Statement of Melvin Walford. |
| Sep 11 2002 | Record augmentation granted Appellant's "Motion to Augment Record on Appeal Pursuant to Rule of Court 12(a)," filed on July 15, 2002, is granted The clerk is directed to label the document attached as "Exhibit 'A'" to appellant's motion as "Ruling on the Statement of Melvin Walford (see 15 R.T. 2168-2169), and to file that document so labeled as part of the record on appeal herein. |
| Sep 17 2002 | Counsel's status report received (confidential) from atty Niemy. |
| Sep 17 2002 | Request for extension of time filed To file appellant's opening brief. (5th request) |
| Sep 23 2002 | Extension of time granted To 11/25/2002 to file appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Glen Niemy's representation that he anticipates filing that brief by 11/23/2002. |
| Nov 13 2002 | Compensation awarded counsel Atty Niemy |
| Nov 19 2002 | Counsel's status report received (confidential) from atty Niemy. |
| Nov 21 2002 | Request for extension of time filed To file appellant's opening brief. (6th request) |
| Nov 26 2002 | Extension of time granted To 1/24/2003 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Glen Niemy's representation that he anticiaptes filing that brief by 2/23/2003. |
| Dec 2 2002 | Motion filed Appellant's "Motion to Augment Record on Appeal Pursuant to Rule of Court 12(a)". |
| Jan 17 2003 | Request for extension of time filed To file appellant's opening brief. (7th request) |
| Jan 21 2003 | Counsel's status report received (confidential) from atty Niemy. |
| Jan 22 2003 | Extension of time granted to 2/24/2003 to file appellant's opening brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Feb 11 2003 | Filed: Search Warrant No. 5137, including affidavit. |
| Feb 11 2003 | Record augmentation granted Appellant's "Motion to Augment Record on Appeal Pursuant to Rule of Court 12(a)," filed on December 2, 2002, is granted. The clerk is directed to file, as part of the record on appeal, "Search Warrant No. 5137," including affidavit, bearing page numbers 296 through 315, labeled "Exhibit A" to appellant's motion. |
| Feb 13 2003 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Feb 18 2003 | Extension of time granted to 4/15/2003 to file appellant's opening brief. Extension is granted based upon counsel Glen Niemy's representation that he anticipates filng that brief by 4/12/5003. After that date, no further extension will be granted. |
| Feb 25 2003 | Compensation awarded counsel Atty Niemy |
| Feb 26 2003 | Change of Address filed for: appellate counsel Glen Neimy. |
| Apr 1 2003 | Counsel's status report received (confidential) from atty Niemy. |
| Apr 21 2003 | Application to file over-length brief filed to file appellant's opening brief. (364 pp. brief submitted under separate cover) |
| Apr 22 2003 | Order filed Appellant's application to file over-length opening brief is granted. |
| Apr 22 2003 | Appellant's opening brief filed (364 pp. - perm) |
| May 15 2003 | Request for extension of time filed to file respondent's brief. [1st request] |
| May 21 2003 | Extension of time granted to 7/21/2003 to file respondent's brief. |
| Jun 5 2003 | Counsel's status report received (confidential) from atty Niemy. |
| Jun 25 2003 | Compensation awarded counsel Atty Niemy |
| Jul 16 2003 | Request for extension of time filed respondent's brief. (2nd request) |
| Jul 21 2003 | Extension of time granted to 9-19-2003 to file respondent's brief. |
| Sep 16 2003 | Request for extension of time filed respondent's brief (3rd request] |
| Sep 19 2003 | Counsel's status report received (confidential) from atty Niemy. |
| Sep 19 2003 | Extension of time granted to 11/18/2003 to file respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Rama R. Maline's representation that she anticipates filing that brief. by 12/21/2003. |
| Nov 13 2003 | Counsel's status report received (confidential) from atty Niemy. |
| Nov 14 2003 | Request for extension of time filed to file respondent's brief. (4th request) |
| Nov 25 2003 | Extension of time granted to 1/20/2004 to file respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Rama R. Maline's representation that she anticipates filing that brief by 1/17/2004. |
| Jan 9 2004 | Request for extension of time filed to file respondent's brief. (5th request) |
| Jan 15 2004 | Counsel's status report received (confidential) from atty Niemy. |
| Jan 16 2004 | Extension of time granted to 02/02/04 to file respondent's brief. After that date, no further extensions will be granted. Extension is granted based upon Deputy Attorney General Rama R. Maline's representation that she anticipates filing that brief by 02/01/04. |
| Jan 30 2004 | Respondent's brief filed (90,815 words - 315 pp.) |
| Feb 17 2004 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Feb 18 2004 | Extension of time granted to 4/19/2004 to file appellant's reply brief. |
| Mar 16 2004 | Compensation awarded counsel Atty Niemy |
| Mar 24 2004 | Compensation awarded counsel Atty Niemy |
| Apr 12 2004 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Apr 15 2004 | Extension of time granted to 6/18/2004 to file appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel Glen Niemy's representation that he anticipates filing that brief by 10/15/2004. |
| Jun 16 2004 | Compensation awarded counsel Atty Niemy |
| Jun 18 2004 | Request for extension of time filed to file reply brief. (3rd request) |
| Jun 23 2004 | Extension of time granted to 8/17/2004 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Glen Niemy's representation that he anticipates filing that brief by 10/15/2004. |
| Jun 25 2004 | Filed: Supplemental proof of service of request for extension of time to file appellant's reply brief. |
| Jun 30 2004 | Compensation awarded counsel Atty Niemy |
| Aug 12 2004 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Aug 12 2004 | Exhibits requested from Los Angeles County Superior Court: Defendant's B, C, D, E, F, I and J, and People's 1, 3-25, 28-33, 38-40, 43, 48-59, 61-64, 70-73, 74A, 75 and 80. |
| Aug 18 2004 | Extension of time granted to 10/15/2004 to file appellant's reply brief. Extension is granted based upon counsel glen Niemy's representation that he anticipates filing that brief by 10/15/2004. After that date, no further extension will be granted. |
| Aug 19 2004 | Exhibit(s) lodged People's: 1, 3-25, 28-33, 38-40, 43, 48-59, 61-64, 70-73, 74A, 75 and 80. |
| Aug 26 2004 | Exhibit(s) lodged Defendant's: B, C, D, E, F, I and J. |
| Oct 8 2004 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Oct 13 2004 | Extension of time granted to 11/17/2004 to file appellant's reply brief. Extension is granted based upon counsel Glen Niemy's representation that he anticipates filing that brief by 11/17/2004. After that date, no further extension will be granted. |
| Nov 5 2004 | Exhibits requested People's 74. |
| Nov 9 2004 | Exhibit(s) lodged exhibit 74 - Video Tape in case. |
| Nov 17 2004 | Appellant's reply brief filed (41,875 words; 191 pp.) |
| Dec 15 2004 | Compensation awarded counsel Atty Niemy |
| Feb 4 2005 | Exhibit(s) lodged People's exhibit 88. |
| Apr 14 2005 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 23, 2005, in San Francisco. 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 25 2005 | Received: letter from atty Niemy, dated 4-19-2005, requesting that oral argument be scheduled for no earlier in the week of May 23 than May 25. |
| May 3 2005 | Case ordered on calendar 6/2/05, 1:30pm, LA |
| May 16 2005 | Filed letter from: appellant, dated 5-13-2005, re oral argument focus issues and advising of 30 minutes for oral argument. |
| May 17 2005 | Filed: focus letter>>respondent People |
| May 23 2005 | Filed: appellant's proof of service of focus issues letter on CAP and appellant. |
| Jun 2 2005 | Cause argued and submitted |
| Jun 13 2005 | Compensation awarded counsel Atty Niemy |
| Jun 22 2005 | Compensation awarded counsel Atty Niemy |
| Aug 29 2005 | Opinion filed: Judgment affirmed in full Majority Opinion by Chin, J. -----joined by George, C.J., Baxter, Werdegar & Moreno, JJ. C&D Opinion by Kennard, J. |
| Sep 12 2005 | Rehearing petition filed by appellant. (18 pp. - 4152 words) |
| Sep 15 2005 | Time extended to consider modification or rehearing to 11/23/2005 or the date upon which rehearing is either granted ro denied, whichever occurs first. |
| Sep 23 2005 | Compensation awarded counsel Atty Niemy |
| Sep 28 2005 | Compensation awarded counsel Atty Niemy |
| Oct 19 2005 | Rehearing denied Kennard, J., was absent and did not participate. |
| Oct 19 2005 | Remittitur issued (AA) |
| Oct 27 2005 | Exhibit(s) returned People's 1, 3-25, 28-33, 38-40, 43, 48-59, 61-64, 70-73, 74, 74A 75, 80 and 88; Defendant's B, C, D, E, F, I and J. |
| Oct 31 2005 | Received: acknowledgment of receipt of remittitur. |
| Nov 3 2005 | Order filed (150 day statement) |
| Nov 7 2005 | Received: acknowledgment of receipt of exhibits. |
| Dec 21 2005 | Related habeas corpus petition filed (post-judgment) No. S139789 |
| Jan 5 2006 | Application to stay AA-related proceeding filed appellant's request for stay of Penal Code section 1193 proceedings. (note: hearing set in superior court on 1-9-2006.) |
| Jan 5 2006 | Order filed The "Request for Stay of Penal Code Section 1193 Proceedings," filed on January 5, 2006, is granted. Execution of the judgment of death entered against condemned inmate Maurice Lydell Harris by the Los Angeles Superior Court (No. YA020916) and affirmed by this court on August 29, 2005 (37 Cal.4th 310), is hereby stayed pending final determination of any timely filed petition for writ of certiorari in the United States Supreme Court. If a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting such petition has expired. |
| Jan 6 2006 | Order filed The order filed on January 5, 2006, granting the "Request for Stay of Penal Code Section 1193 Proceedings" is amended to read, in its entirety: The 'Request for Stay of Penal Code Section 1193 Proceedings,' filed on January 5, 2006, is granted. All proceedings to set the date for the execution of the judgment of death entered against condemned inmate Maurice Lydell Harris by the Los Angeles Superior Court (No. YA020916) and affirmed by this court on August 29, 2005 (37 Cal.4th 310), are hereby stayed pending final determination of any timely filed petition for writ of certiorari in the United States Supreme Court. If a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting such petition has expired." |
| Jan 20 2006 | Received: copy of appellant's cert petition filed in U.S.S.C. (34 pp. - excluding attached appendix) |
| Jan 27 2006 | Order appointing Habeas Corpus Resource Center filed Upon request of condemned prisoner Maurice Lydell Harris for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent Maurice Lydell Harris for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of condemned prisoner Maurice Lydell Harris. |
| Jan 31 2006 | Filed: applicaton for appointment of counsel (IFP form). |
| Feb 6 2006 | Received: letter from U.S.S.C. dated 1/31/2006, advising Cert Petn was filed on 1/12/2006, No. 05-8914. |
| Feb 8 2006 | Compensation awarded counsel Atty Niemy |
| Mar 30 2006 | Counsel's status report received (confidential) from HCRC. |
| Apr 3 2006 | Certiorari denied by U.S. Supreme Court Motion of Friends of Maurice Harris for leave to file brief as amici curiae is granted. Petition for writ of certiorari is denied. |
| Apr 5 2006 | Motion for access to sealed record filed Appellant's application for an order allowing HCRC to inspect and copy transcripts sealed for the benefit of appellant. |
| Apr 11 2006 | Filed: supplemental proof of service of application for order allowing HCRC to inspect and copy transcripts, filed on 4-5-2006. |
| May 10 2006 | Compensation awarded counsel Atty Niemy |
| May 26 2006 | Counsel's status report received (confidential) from HCRC. |
| Jul 5 2006 | Counsel's status report received (confidential) from atty Niemy. |
| Jul 12 2006 | Motion for access to sealed record granted Appellant's "Application for an Order Allowing Undersigned Counsel to Inspect and Copy Transcripts Sealed for the Benefit of Appellant," filed on April 5, 2006, is granted. Counsel must supply the personnel and equipment necessary to undertake this examination and copying of the records, which must occur on the premises of the court. |
| Jul 13 2006 | Order filed The order filed on July 12, 2006 is hereby amended to read in its entirety; "Appellant's 'Application for an Order Allowing Undersigned Counsel to Inspect and Copy Transcripts Sealed for the Benefit of Appellant,' filed on April 5, 2006, is granted. "The clerk is directed to provide the Habeas Corpus Resource Center with a copy of the sealed clerk's transcript, vol. VI, pages 1429 to 1594." |
| Jul 28 2006 | Counsel's status report received (confidential) from HCRC. |
| Sep 26 2006 | Counsel's status report received (confidential) from HCRC. |
| Nov 30 2006 | Counsel's status report received (confidential) from HCRC. |
| Jan 26 2007 | Counsel's status report received (confidential) from HCRC. |
| Mar 17 2008 | Application filed Application for an order allowing Habeas Corpus Resource Center counsel to inspect and copy clerk's transcripts sealed for the benefit of appellant. |
| Apr 16 2008 | Motion for access to sealed record granted Appellant's "Application for an Order Allowing Undersigned Counsel to Inspect and Copy Transcripts Sealed for the Benefit of Appellant," filed on March 17, 2008, in which appellant requests access to and permission to copy the Sealed Second Supplemental Clerk's Transcript, pages 16 through 224, of his record on appeal, is granted. (Cal. Rules of Court, rule 8.328 (c)(6).) Counsel must supply the personnel and equipment necessary to undertake this review and copying of the records, which must occur on the premises of the court. Use of such materials is limited to any petition for writ of habeas corpus challenging the lawfulness of confinement pursuant to the underlying judgment of death. To the extent the parties quote or describe such materials in court papers, those papers must themselves be filed or lodged under seal. The materials referred to above are to remain under seal. George, C.J., was absent and did not participate. |
| Briefs | |
| Apr 22 2003 | Appellant's opening brief filed |
| Jan 30 2004 | Respondent's brief filed |
| Nov 17 2004 | Appellant's reply brief filed |
