People v. Hawthorne
IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
CARLOS ANTHONY HAWTHORNE,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA137272
A jury convicted defendant Carlos Anthony Hawthorne of the first degree
murder of Vanessa Sells (Pen. Code, § 187),1 the attempted murder of Kristian F.
(§§ 187, 664), the first degree robbery of both Sells and Kristian (§ 211), and first
degree residential burglary (§ 459). It found true special circumstance allegations
of robbery murder (§ 190.2, subd. (a)(17)(A)) and burglary murder (§ 190.2, subd.
(a)(17)(G)). After a penalty trial, the jury returned a verdict of death, and the trial
court imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We
affirm the judgment.
All further statutory references are to the Penal Code unless otherwise
A. Guilt Phase
1. The Prosecution’s Case
a. The burglary, robbery, shootings, and defendant’s arrest
On August 25, 1996, 16-year-old Kristian and her mother Vanessa Sells
lived in a house on Sunlight Plaza in Los Angeles. In the early evening hours,
Kristian was in her bedroom and heard her mother scream from the vicinity of the
front door. When Kristian entered the hallway to check on her mother, she saw a
man with a revolver in his hand and a bandana covering the bottom of his face.
The masked man ordered her to lie on the floor; she complied. Sells then entered
the hallway followed by a different man, later identified by Kristian as defendant.
Defendant was also armed with a revolver, but was not wearing anything over his
face. Defendant ordered Sells, who was crying, to lie on the floor next to her
Defendant stood watch over the two women as the masked man went
through the house. Although Kristian tried to calm her crying mother, defendant
threatened to shoot them if they were not quiet and cocked the gun for emphasis.
He warned that they would be killed if they reported this incident to anyone. By
this time, Sells was crying “very hard” and praying aloud. Defendant ordered
Sells to go into her bedroom, followed her, and rummaged through her closet and
inside some drawers. As he was looking through everything, he yelled at Sells —
who was still crying — to be quiet.
Defendant returned to the hallway and yelled to the masked man to find
something to use to tie up the women. Defendant remarked to Kristian that she
was a “real pretty girl” and she was “lucky he [was] not Jeffrey Dahmer or he
would rape [her].” The masked man produced a T-shirt, but defendant used a
telephone cord instead to tie Kristian’s hands behind her back and her hands to her
feet. Defendant took a silver bracelet with the inscription “Jinneh” from Kristian’s
wrist and a silver necklace from her neck. He then carried her to her bedroom,
placed her on the bed, and searched through her belongings. He ordered the
masked man to unplug and take the radio. They then left the bedroom, leaving
From her bedroom, Kristian overheard defendant ask her mother about the
location of her money. Sells directed him to her purse on the kitchen table.
Shortly afterwards, defendant asked if there was any more money. Sells
responded no and explained that she had been laid off from her job two weeks
earlier. When defendant inquired about a cellular phone, Sells told him it was in
her car. Kristian then heard her mother say she had been cooking and asked
defendant to turn off the stove so that the house would not burn down. Defendant
retorted, “Do you think this is a fucking joke or something?” He yelled to his
masked accomplice, “She think we’re playing with her.”
Defendant returned to Kristian’s bedroom and searched through her closet
and dresser drawers. After a few minutes, defendant shouted to his accomplice to
check if anyone was outside. The man responded that he saw some neighbors
outside and told defendant to “hurry up.” Defendant left Kristian’s bedroom.
Kristian heard both men walking towards the front door and defendant say,
“Fuck that. They’re going to tell.” She then heard a set of footsteps coming back
into the house and the masked man say, “Hurry up.” Kristian heard her mother
scream “no,” followed by three gunshots. Defendant appeared in Kristian’s
bedroom with a gun. He directed her to turn her head away from him, shot her
once in the back of the head, and then shot her again. Pretending she was dead,
Kristian closed her eyes and held her breath. Defendant went to the side of the
bed where her head was facing and said “hey” to her, but she did not respond. He
left the bedroom.
After Kristian thought the two men had left, she untied herself and called
911. While she was speaking to the 911 operator, Jerold Smith, a family friend,
arrived and took the phone from her. Kristian tied a shirt around her head to
decrease the bleeding and checked her mother. She found her mother tied with a
telephone cord and lying motionless on the bedroom floor. Kristian began to cry
and told her mother to get up. Her mother did not respond. When Kristian went
outside to wait for the ambulance, she noticed that her mother’s Lexus automobile
was missing from the driveway.
At 7:17 p.m. the following evening, August 26, defendant made a 911 call.
He told the operator that he had some helpful information about “some lady
missing a Lexus” as had been reported on television and that he had found the
keys to that car. When asked how he found the keys, defendant claimed he saw
two men — who appeared to be “dope smokers” — switch the license plates on a
Lexus car. They abandoned the unlocked car; the keys were under the driver’s
seat. Defendant said he drove the car to a location near his house, claiming this
had occurred around 3:25 p.m. that day. When the operator asked defendant if he
would wait there for the police, he replied, “Hell no, they might kill my ass.”
Defendant related the car was silver/bronze in color, like “what they [had]
said on TV,” and provided some crude directions to its location. When asked for
better directions, defendant replied he could not stay there and said he would leave
the keys on the roof of the car. When the operator asked defendant to place the
keys under a mat instead, he refused, saying, “I ain’t touching that car no more.”
When the operator pointed out that defendant had already touched the car,
defendant responded, “I wiped my shit off.” When the operator suggested
defendant use his shirt sleeve to open the door handle and put the keys inside the
car, defendant agreed.
Defendant asked if he would be “getting something for this,” but refused to
give his telephone number for fear the police would come to his house. Although
defendant provided his name, race, and age, he refused to meet with the police and
explained he did not want to “get labeled as no informant.” Nevertheless, he
related he was at a pay telephone across the street from a Fedco store, described
his clothing, and added he had “real curly hair.”
In the meantime, police officers responded to a radio broadcast regarding
an auto theft and found the stolen Lexus car near Sunlight Plaza. The dispatcher
directed the officers to the pay telephone from which defendant was calling,
located about 10 blocks away. The officers found defendant — who was still
talking to the operator and holding the keys to the Lexus car — and arrested him.
They discovered Kristian’s silver necklace and bracelet in defendant’s pocket.
Five days after the shootings, Sells died from three gunshot wounds to the
head and base of her skull and neck. Kristian survived, with a bullet still lodged
inside her head at the time of trial.
b. Defendant’s tape-recorded confession
Shortly after defendant’s arrest, Detectives Ray Morales and Bill Smith
interviewed defendant. Initially, defendant denied any personal knowledge of, or
involvement in, the crimes against Sells and Kristian. He claimed that, while
walking around, he saw the Lexus car and recognized it from a television news
report of the robbery and shooting that occurred the night before. He saw three
“dope fiends” taking things from inside the car. After they left, defendant found
the car keys inside the unlocked car and drove the car home. His mother warned
defendant not to drive the car because the police were looking for it. Defendant
asserted that Kristian’s silver necklace and bracelet belonged to his sister.
When the detectives expressed disbelief at his story, defendant admitted he
was involved in the crimes, but claimed that the other man — whom he called
Charles Williams — was the mastermind. Although defendant did not want to be
involved in the incident, he went along because Williams was bigger, had a gun,
and had just gotten out of prison. At first, defendant asserted that Williams
ordered the women on the ground, demanded money, shot the women, and stole
their belongings. Defendant claimed that he was not armed and did not know
Williams was going to shoot the women, and that Williams later gave him the
stolen jewelry. Defendant volunteered that he turned off the stove when requested
by Sells and suggested that the fact he was unmasked supported his
When the detectives continued to express their disbelief, defendant began
admitting piecemeal his direct participation in the crimes. He maintained that
Williams shot the women, claiming he only held the gun “for a minute,” pointed it
at the women when they were on the floor, tied up Kristian after Williams ordered
him to do so, and carried Kristian into her bedroom. He admitted making a
comment about Jeffrey Dahmer, but asserted he had to persuade Williams not to
rape the victims.
Eventually defendant admitted he shot the victims, but claimed that
Williams “made” him after he threatened to “get” defendant if he did not shoot
them. He told the police he liked both women and did not want to shoot them.
2. The Defense’s Case
At defendant’s request, the trial court admitted a copy of a form defendant
signed consenting to a search of his home. Otherwise, he rested on the state of the
evidence and did not present any witnesses in the guilt phase.
B. The Penalty Phase
1. The Prosecution’s Case
In addition to relying on the circumstances of the charged offenses, the
prosecution introduced evidence that defendant committed two prior bicycle thefts
and presented the testimony of Kristian, as well as that of Sells’s father, regarding
the impact of Sells’s death.
The bicycle thefts occurred in 1991 and 1993. Defendant was 14 years old
at the time of the first theft and 17 years old at the time of the second. Humberto
Sanchez, whose bicycle was stolen in 1991, and the arresting officer testified.
Regarding the 1993 offense, the prosecution introduced documentary evidence to
establish that the case was certified to adult court, where defendant suffered a
conviction for second degree robbery with a finding that he used a BB gun during
its commission. The parties stipulated that defendant was released from the
former California Youth Authority (CYA) on July 9, 1996, less than two months
before the crimes in this case.
2. The Defense’s Case
The defense presented evidence relating to defendant’s history of emotional
and behavioral problems, his religious education, and his family background. The
evidence included testimony of an early childhood diagnosis of attention deficit
disorder (ADD) and the physical abuse inflicted on his mother by his stepfather.
Defendant testified about the physical abuse inflicted on him by his
stepfather and the violence inflicted on him outside of the home. He was
kidnapped and tortured when he was 12 years old, hit by a car when he was 13
years old, and shot in a drive-by shooting when he was 16 or 17 years old.
Regarding the crimes in this case, defendant essentially repeated the same
statements made to the police. He admitted that he shot the two victims, but
claimed that a man named “Lumpy” forced him to do so and to participate in the
robbery. Defendant, who was not armed, acted out of fear because “Lumpy” was
armed, had just been released from prison, and was older, physically bigger, and
stronger than he was. He stated he did not intend or plan to rob or kill anyone. He
apologized for what he did, but said there was nothing he could do to change it,
and asked for “a chance to do something good in [his] life.”
A. Jury Selection Issues
1. Peremptory Challenges
Defendant, who is African-American, claims the prosecutor improperly
exercised peremptory challenges against three African-American prospective
jurors on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson);
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) The applicable law is well
settled. Under Wheeler, supra, 22 Cal.3d 258 “[a] prosecutor’s use of peremptory
challenges to strike prospective jurors on the basis of group bias—that is, bias
against ‘members of an identifiable group distinguished on racial, religious,
ethnic, or similar grounds’—violates the right of a criminal defendant to trial by a
jury drawn from a representative cross-section of the community under article I,
section 16 of the state Constitution. [Citations.]” (People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1008.) “Such a practice also violates the defendant’s right
to equal protection under the Fourteenth Amendment. [Citations.]” (Ibid., citing
Batson, supra, 476 U.S. at p. 88.)
“The United States Supreme Court has recently reaffirmed that Batson
states the procedure and standard trial courts should use when handling motions
challenging peremptory strikes. ‘First, the defendant must make out a prima facie
case “by showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.” [Citations.] Second, once the defendant has made out a
prima facie case, the “burden shifts to the State to explain adequately the racial
exclusion” by offering permissible race-neutral justifications for the strikes.
[Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful racial
discrimination.” [Citation.]’ ” (People v. Lewis and Oliver, supra, 39 Cal.4th at
pp. 1008-1009, quoting Johnson v. California (2005) 545 U.S. 162, 168.)
Without objection from defense counsel, the prosecutor exercised her first
peremptory challenge to excuse Prospective Juror D.T. and her fourth peremptory
challenge to excuse Prospective Juror L.W. After the prosecutor used her 11th
peremptory challenge to excuse Prospective Juror C.C., defense counsel made “a
Wheeler motion” because the prosecutor had excused three prospective jurors who
were African-American. The trial court found that based on the circumstances
before it, it did “not find a prima facie case.”
Nevertheless, the trial court then asked the prosecutor if she wanted to give
an explanation “to protect the record.” The prosecutor explained that as to
Prospective Juror D.T., she “felt her answers here in court conflicted with her
answers on her jury questionnaire, which made me feel very uncomfortable about
her responses. That is why I kicked her.” Regarding Prospective Juror L.W., the
prosecutor recalled, “Her views on the death penalty were very weak. She seemed
very uncomfortable with that decision. I think she said she would prefer not to sit
on a death case.” The prosecutor continued, “[She] said she had a problem with
the death penalty. . . . [M]y feeling about her was because she said she had a
problem with it and she was uncomfortable with making this kind of a decision, I
didn’t think she would ever make this decision.” With respect to Prospective Juror
C.C., the prosecutor stated, “His personality is such that I didn’t think he would
mix with the rest of the jurors, and I also had him as a weak juror on the death
penalty. He wants to know everything. No one can know everything before
making this decision. And for that reason, I felt that he would be a weak juror on
death. In fact, I scored him low even before he took the box.”
The trial court denied defendant’s Wheeler motion, stating, “Again, the
court does not find a prima facie case,” without articulating the standard used in
finding that defendant failed to establish a prima facie case.2 Nevertheless,
defendant contends that reversal is required because the trial court presumptively
used the wrong standard, i.e., whether defendant established a “strong likelihood”
that a juror has been peremptorily challenged on the basis of group bias.
(Wheeler, supra, 22 Cal.3d at p. 280.) The high court later disapproved that
standard for purposes of a defendant’s establishing a prima facie case. (Johnson v.
California, supra, 545 U.S. at pp. 166-168.) Under Batson, the court stated, the
prima facie burden is simply to “produc[e] evidence sufficient to permit the trial
judge to draw an inference that discrimination has occurred.” (Johnson v.
California, at p. 170.)
Here, we cannot be sure the court used the correct standard as later
established by Johnson v. California. Regardless of the standard used by the trial
court, we have reviewed the record independently (applying the high court’s
Although the court asked the prosecutor for her reasons, the question
whether a prima facie case has been made is not mooted, nor is a finding of a
prima facie showing implied. (People v. Boyette (2002) 29 Cal.4th 381, 422;
People v. Welch (1999) 20 Cal.4th 701, 746.)
standard) to resolve the legal question whether the record supports an inference
that the prosecutor excused a juror on the basis of race. (People v. Bonilla (2007)
41 Cal.4th 313, 342.) We conclude that the record does not support such an
In establishing a prima facie showing, a defendant has the burden of
demonstrating that the facts and circumstances of the case raise an inference that
the prosecutor excluded prospective jurors based on race. (Batson, supra, 476
U.S. at p. 96.) In making such a showing, a defendant should make as complete a
record of the circumstances as is feasible. (Wheeler, supra, 22 Cal.3d at p. 280.)
Here, in support of his Wheeler/Batson motion, defendant relied solely on
the fact that, at that point, the prosecutor had used three of her 11 peremptory
challenges to excuse African-American prospective jurors. He never claimed that
the prosecutor used her peremptory challenges to strike most or all African-
American prospective jurors from the jury venire (Wheeler, supra, 22 Cal.3d at p.
280) or that there were no African-American prospective jurors remaining on the
jury panel —consisting generally of 18 prospective jurors — when the
Wheeler/Batson motion was made. Thus, the record is silent as to the number of
African-American prospective jurors, if any, that were included in the entire jury
venire or in the jury panel when the motion was made. Further, the record is silent
regarding the racial composition of the jury that ultimately tried and sentenced
defendant. (Contrast Johnson v. California, supra, 545 U.S. at pp. 164-165, 173
[of 43 eligible prospective jurors, only three were Black; prima facie case
established where prosecutor used three of his 12 peremptory challenges to
remove all Black prospective jurors and defendant was tried by all White jury].)
Defendant’s cursory showing (see People v. Yeoman (2003) 31 Cal.4th 93, 115
[cursory reference to prospective jurors by name, number, occupation, and race
insufficient]; People v. Farnam (2002) 28 Cal.4th 107, 136-137), along with the
relatively “small absolute size of this sample makes drawing an inference of
discrimination from this fact alone impossible.” (People v. Bell (2007) 40 Cal.4th
582, 598.) Moreover, the prosecutor’s race-neutral reasons for the excusals
confirmed the trial court’s finding that there was insufficient evidence to permit
the court to draw an inference that discrimination had occurred.3 Because
defendant failed to meet his burden of establishing a prima facie case of group
discrimination, the trial court correctly denied his Wheeler/Batson motion.
2. Challenges for Cause
Defendant contends that his right to an impartial jury under the federal and
state Constitutions was violated because the trial court erred in excusing two
prospective jurors for cause. (Wainwright v. Witt (1985) 469 U.S. 412, 424;
People v. Moon (2005) 37 Cal.4th 1, 13.) “A prospective juror may be challenged
for cause based upon his or her views regarding capital punishment only if those
views would ‘ “prevent or substantially impair” ’ the performance of the juror's
duties as defined by the court's instructions and the juror's oath.” (People v.
Cunningham (2001) 25 Cal.4th 926, 975, quoting Wainwright v. Witt, supra, 469
U.S. at p. 424.) “On review of a trial court's ruling, if the prospective juror's
statements are equivocal or conflicting, that court's determination of the person's
state of mind is binding. If there is no inconsistency, the reviewing court will
uphold the court's ruling if substantial evidence supports it.” (People v. Hillhouse
(2002) 27 Cal.4th 469, 488.)
For the first time on appeal, defendant argues that the prosecutor’s use of
strikes should be subjected to a comparative juror analysis. We decline to do so in
this “first stage” Wheeler/Batson case. (People v. Bonilla, supra, 41 Cal.4th at p.
350; cf. People v. Lenix (2008) 44 Cal.4th 602.)
The trial court excused two prospective jurors for cause. As will appear,
because the excused prospective jurors indicated either that they were not prepared
to impose the death penalty or were undecided as to their ability to do so, the trial
court did not err in excusing them. (People v. Cunningham, supra, 25 Cal.4th at p.
982.) Moreover, at the least, the potential jurors' statements were equivocal and
conflicting regarding their ability to render a death verdict. (People v. Moon,
supra, 37 Cal.4th at p. 14.) Thus, we must defer to the trial court's determination
of their states of mind.
a. Prospective Juror A.R.
In her questionnaire, Prospective Juror A.R. stated that she was generally
against the death penalty, but that her view might be impacted if her own family
member or friend had been murdered. She explained that she felt that way about
the death penalty because “I don’t believe anyone has the right to choose who
lives or dies, unless acting in self defense.” When asked if her feelings about the
death penalty were “very strong,” Prospective Juror A.R. responded, “yes” and
explained, “My feelings are pretty set — but I have no way to know if an
individual case m[a]y impact them.”
Prospective Juror A.R. agreed with the statements “you should hear all of
the circumstances surrounding a case” and “you should hear and review all of the
circumstances concerning the defendant and his background before deciding
between the penalties of life without parole and death.” On the other hand, when
asked, “in what cases do you believe the death penalty may be appropriate?” she
replied, “none.” When asked, “in what cases do you believe the death penalty
may not be appropriate?” she answered, “all.” Given two options in the
appropriate case, she could see herself rejecting the death penalty and choosing
life without the possibility of parole, but could not see herself rejecting life
imprisonment and choosing death.
The questionnaire further asked, if defendant was found guilty of first
degree murder and the felony-murder special circumstance allegation was found to
be true, would she always vote for death and reject life without parole, regardless
of the evidence at the penalty phase. Prospective Juror A.R. circled “no.”
However, when the same hypothetical was posed in terms of whether she would
always vote for life without parole and reject death regardless of the evidence at
the penalty phase, Prospective Juror A.R. circled “yes,” and wrote in, “I don’t
know.” Regarding the felony-murder special circumstance allegation, she
indicated that she “strongly disagree[d]” that “anyone who commits murder during
the course of a robbery or burglary should always get the death penalty,” but
“agree[d] somewhat,” that “anyone who commits murder during the course of a
robbery or burglary should never get the death penalty.”
In response to the trial court’s questions, Prospective Juror A.R. reiterated
that she was against the death penalty in theory, and that she could not see herself
rejecting life imprisonment and choosing the death penalty. She acknowledged
there may be cases in which she might vote for the death penalty, although she
would “still have great difficulty.” When asked to elaborate, she replied, “I guess
I don’t know the specifics. I guess I would have to be presented with the
information that would make me feel that way.” The court responded that it could
not present particular facts, but attempted to explore the topic further. In response
to more questions from the court, Prospective Juror A.R. indicated that certain
circumstances relating to malice, remorse, and life experiences might influence her
to choose the death penalty. The court then asked if she could “see [her]self
voting for death if [she] thought it was appropriate” in the following situation: she
found defendant guilty of first degree murder, determined the truth of the special
circumstance allegation, and decided that the aggravating factors outweighed the
mitigating factors. Prospective Juror A.R. stated she could not answer that
question, but assured the court she could give both sides a fair trial. Defense
counsel refused to stipulate to an excusal for cause.
Later, during questioning by the prosecutor, Prospective Juror A.R.
acknowledged that, although it was difficult for her to envision circumstances in
which she would vote for death, she asserted that she could vote for the death
penalty “if the circumstances would allow me to do that.” She would consider the
heinousness of the crime, the person who committed it, and whether the victim
had been tortured. But when the prosecutor asked, “When it comes right down to
it, do you really feel that you could ever say death?” Prospective Juror A.R.
answered, “I guess I don’t know.”
In granting the prosecutor’s challenge for cause, the trial court reasoned,
“She takes a long time in answering. She is obviously struggling; this is difficult
for her. It’s clear to me this is something that would be almost impossible. She
might come up with some imaginary situation, but I find she would be
substantially impaired and I do find cause.” In response to the court’s invitation
for further argument, defense counsel said, “submitted,” and the court reiterated,
“I do find cause.”
As in People v. Schmeck (2005) 37 Cal.4th 240, 262, defendant merely
submitted the question to the trial court. “Hence, as a practical matter, he ‘did not
object to the court's excusing the juror, but . . . also refused to stipulate to it.’
(People v. Cleveland (2004) 32 Cal.4th 704, 734.) Although ‘this failure to object
does not forfeit the right to raise the issue on appeal, . . . it does suggest counsel
concurred in the assessment that the juror was excusable.’ (Id. at pp. 734-735; see
Witt, supra, 469 U.S. at pp. 434-435 [in light of counsel's failure to question the
prospective juror or object to her excusal for cause, ‘it seems that . . . no one in the
courtroom questioned the fact that her beliefs prevented her from sitting’].)”
(People v. Schmeck, supra, 37 Cal.4th at p. 262.)
Moreover, as did the prospective juror in People v. Moon, supra, 37 Cal.4th
1, Prospective Juror A.R. gave equivocal answers and was “less than consistent in
her answers.” (Id. at p. 15.) “ ‘In many cases, a prospective juror's responses to
questions on voir dire will be halting, equivocal, or even conflicting. Given the
juror's probable unfamiliarity with the complexity of the law, coupled with the
stress and anxiety of being a prospective juror in a capital case, such equivocation
should be expected. Under such circumstances, we defer to the trial court's
evaluation of a prospective juror's state of mind, and such evaluation is binding on
appellate courts.’ (People v. Fudge (1994) 7 Cal.4th 1075, 1094.)” (People v.
Moon, supra, 37 Cal.4th at pp. 15-16.)
Here, the trial court found sufficient cause for excusal based on its
observation of Prospective Juror A.R.’s demeanor, her equivocal and conflicting
responses, and her inability to state her views. (People v. Schmeck, supra, 37
Cal.4th at p. 262 [excusals for cause proper where prospective jurors could not
state they would be able to consider imposing the death penalty, either in any case
or in the kind of case at issue there].) “ ‘ “[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.’ ” (Quoting Wainwright v. Witt, supra, 469 U.S. [at p.] 426.)’
(People v. Griffin, supra, 33 Cal.4th at p. 559.)” (People v. Moon, supra, 37
Cal.4th at p. 14; see also People v. Schmeck, supra, 37 Cal.4th at p. 263.)
Deferring to the trial court's assessment of her state of mind, we conclude that
Prospective Juror A.R. was properly excused.
b. Prospective Juror N.T.
Prospective Juror N.T.’s responses in her questionnaire and on voir dire
reflected that she had been a volunteer tutor and counselor at the CYA for five
years. She indicated that, because of her prior CYA experience, she tended to
favor the defense in terms of sympathy or compassion and had an “uneasy feeling”
about imposing “such a permanent punishment” as the death penalty.
Although Prospective Juror N.T. related in her questionnaire that she
believed she should hear all of the evidence before deciding the penalty, her
responses on voir dire reflected otherwise. She asserted she would be “more
inclined to vote for life instead of death.” When questioned by the trial court if
she could “ever vot[e] for death,” she replied, “I don’t believe I could.” When
asked if there was any circumstance in which she would vote for death, she
responded she would “lean towards dea[th]” in cases involving “serial killers.”
When questioned by the prosecutor, Prospective Juror N.T.’s responses became
more definitive. Initially, she stated it “would be very difficult” for her ever to
vote for death. When questioned again if she could see herself ever voting for the
death penalty, she responded, “In this case, knowing what I know, I don’t think
so.” She explained that, because the case did not involve “an extreme mass
murder,” she could not return a death verdict. As a final clarification, the
prosecutor asked, “As far as you are concerned, the only case you could see
yourself personally ever voting for the death penalty would be in a situation where
there was a mass murder?” Prospective Juror N.T. replied, “I would have to be
shown that, yes.” When the court asked defense counsel if he wanted to question
Prospective Juror N.T., counsel responded no.
The record here supports the trial court's decision to excuse Prospective
Juror N.T. for cause. (People v. Mendoza (2000) 24 Cal.4th 130, 169 [prospective
juror’s assertion he could never impose the death penalty in a case that did not
involve mass murder supported excusal for cause]; see also People v. Ochoa
(2001) 26 Cal.4th 398, 430-432 [prospective juror’s belief he could not consider
voting for death in case at hand supported excusal for cause].) Again, defense
counsel’s failure to object suggests counsel concurred in the assessment that the
juror was excusable. (People v. Schmeck, supra, 37 Cal.4th at p. 262.) To the
extent her responses could support multiple inferences, we defer to the trial court’s
determination of her unfitness to serve. (People v. Ochoa, supra, 26 Cal.4th at p.
B. Guilt Phase Issues
1. Suppression Motion
At trial, defendant moved to suppress evidence of his videotaped
confession to the police on the ground that he did not voluntarily, knowingly, and
intelligently waive his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436).
The trial court denied the motion, finding that defendant had impliedly waived
those rights. A redacted copy of defendant’s videotaped statement was played for
the jury. On appeal, he contends that the trial court erred in denying his
suppression motion. We conclude that the claim lacks merit.
Los Angeles Police Department Detectives Ray Morales and Bill Smith
interrogated defendant around 9:24 p.m. on the day of defendant’s arrest. At the
beginning of the interview, Detective Morales advised defendant of his Miranda
rights as follows:
“[Det. Morales:] Before we get started, I just want to go over some of your
rights, okay? It’s kind of important. I want you to pay attention to this, all right?
“[Det. Morales:] You have the right to remain silent.
If you give up the right to remain silent, anything you say can and will be
used against you in a court of law.
You have the right to speak with an attorney and to have the attorney
present during questioning.
If you so desire and cannot afford one, an attorney will be appointed for
you without charge before questioning.
Carlos, do you understand these rights I’ve explained to you?
“[Det. Morales:] Okay.
Now, uh, why don’t you tell me a little bit about how – what happened
tonight with this car?
“[Defendant:] Uh --
“[Det. Morales:] In your own words . . . .
As reflected above, Detective Morales advised defendant of his Miranda
rights and asked him if he understood them. After defendant answered in the
affirmative, Detective Morales immediately proceeded to question defendant
without requesting an oral or written waiver. Defendant renews his claim that his
Miranda rights were violated because he did not expressly or impliedly waive
those rights before the interview.
“In reviewing defendant's claim that his Miranda rights were violated, we
must accept the trial court's resolution of disputed facts and inferences, as well as
its evaluation of the credibility of witnesses where supported by substantial
evidence. [Citations.] Miranda makes clear that in order for defendant's
statements to be admissible against him, he must have knowingly and intelligently
waived his rights to remain silent, and to the presence and assistance of counsel.
“It is further settled, however, that a suspect who desires to waive his
Miranda rights and submit to interrogation by law enforcement authorities need
not do so with any particular words or phrases. A valid waiver need not be of
predetermined form, but instead must reflect that the suspect in fact knowingly
and voluntarily waived the rights delineated in the Miranda decision. [Citation.]
We have recognized that a valid waiver of Miranda rights may be express or
implied. [Citations.] A suspect's expressed willingness to answer questions after
acknowledging an understanding of his or her Miranda rights has itself been held
sufficient to constitute an implied waiver of such rights. [Citations.] In contrast,
an unambiguous request for counsel or refusal to talk bars further questioning.
“Although there is a threshold presumption against finding a waiver of
Miranda rights [citation], ultimately the question becomes whether the Miranda
waiver was knowing and intelligent under the totality of the circumstances
surrounding the interrogation. [Citations.]” (People v. Cruz (2008) 44 Cal.4th
Here, defendant testified at the suppression hearing. He stated that the
detective who interviewed him was not in uniform, did not have a gun, and was
“okay” to him. At the time defendant was advised of his Miranda rights, the
detective was speaking in a “regular tone of voice” and did not yell at defendant.
At that point, defendant was not scared or intimidated.
Although the officer gave him his Miranda rights and he said he understood
them, defendant claimed that he, in fact, did not understand he had the right to
remain silent, to speak with an attorney, to have one present during questioning,
and to have an attorney appointed if he could not afford one. Nevertheless, he did
not ask the detective for clarification. Defendant asserted that he spoke with the
police only because they promised him, once before the interview and several
times during the interview, that he could go home if he cooperated with them.
Although the police drew their guns and handcuffed him when they apprehended
him at the telephone booth, defendant claimed he did not believe he was under
arrest. The police never said he was under arrest or was a suspect in a
murder/robbery, but only told him he was being detained as a witness for the theft
of the Lexus automobile he possessed.
On cross-examination, defendant acknowledged that, as a juvenile, he had
been arrested many times before, had been represented by counsel in past juvenile
proceedings on more than one occasion, had pleaded guilty to criminal charges
several times while represented by counsel, and had been advised of his
constitutional rights during those prior arrests and guilty plea proceedings. He
asserted that he also did not understand his rights on those occasions, yet never
asked the police, his attorneys, or the court for an explanation. He also
acknowledged that during the interview, the police provided him food.
After watching defendant’s videotaped statement and listening to
defendant’s testimony at the suppression hearing, the trial court denied the
suppression motion. It determined that defendant had impliedly waived his
Miranda rights and that the waiver was voluntary and knowing. The court found
not credible defendant’s testimony that (1) he did not understand his Miranda
rights, (2) he believed he was detained and questioned only as a witness to the
theft of the Lexus automobile, and (3) the police repeatedly assured him he could
go home if he cooperated.
On the first finding, the court noted that the admonitions were simple and
straightforward and that defendant was “not unsophisticated with respect to his
contact with the [legal] system.” On the second finding, the court found that
defendant’s later statements during the interview reflected he clearly knew the
significance of his presence with the car, especially since defendant later admitted
“having been present and having done the shooting.” The court reasoned, “I think
he was, of course, hoping that they wouldn’t get to the other harder questions, but
that hope does not invalidate his voluntariness in responding to the questions.” On
the third finding, the court noted that the videotape of the interview showed that
the officers never assured defendant he could go home if he answered their
questions, thereby contradicting his testimony. The court observed from the
videotape that the interviewing detective’s demeanor was “low key,” he never cut
defendant off, and he gave defendant an opportunity to invoke his rights. The
court further observed that defendant “appeared to be quite eager to give his side.
He goes on and on and on in the initial statement. The officers hardly say
anything other than a word here or there as he is proceeding through the initial
presentation to the officers.”
Based on the totality of the circumstances surrounding the interrogation, we
find that defendant’s willingness to answer questions after expressly affirming his
understanding of his Miranda rights constituted a valid implied waiver of them.
(People v. Cruz, supra, 44 Cal.4th at pp. 668-669.) The record reflects that
defendant was aware of the rights he was abandoning and of the consequences of
his decision, and voluntarily waived his rights with the intention of deceiving the
officers. As the trial court observed, defendant had been admonished with his
Miranda rights during his prior experiences with the criminal justice system. As
the trial court further observed, defendant “appeared to be quite eager to give his
side.” Indeed, defendant admitted that, at the time of the Miranda admonitions, he
was not afraid of or intimidated by the police.
Defendant’s answers were clear and responsive to the questions asked of
him. (People v. Whitson (1998) 17 Cal.4th 229, 245.) Initially, he attempted to
deceive the officers by claiming that he took the Lexus car after three strange men
had abandoned it. Even while maintaining this story, defendant readily admitted
that he knew the car had been connected with an alleged murder/robbery, the
account of which he saw on the news the previous night. Because defendant knew
the connection between the Lexus car and the crimes, he could not have
reasonably believed the police were only interested in questioning him as a
witness regarding an auto theft. In any event, the Constitution does not require
“that the police supply a suspect with a flow of information to help him calibrate
his self-interest in deciding whether to speak or stand by his rights.” (Moran v.
Burbine (1986) 475 U.S. 412, 422.)
At no time did defendant request the presence of counsel or attempt to
terminate the detectives’ questioning. The police did not resort to physical or
psychological pressure or improper promises to elicit statements from defendant,
and did not wear defendant down by improper interrogation tactics. (People v.
Whitson, supra, 17 Cal.4th at pp. 248-250.) Although defendant testified that he
did not understand his Miranda rights, believed he was detained and questioned
only as a witness to the theft of the Lexus automobile, and the police repeatedly
assured him he could go home if he cooperated, the interview videotape and
defendant’s suppression hearing testimony supports the court’s rejection of that
testimony. Thus, we must accept the court’s evaluation of defendant’s credibility.
(People v. Whitson, supra, 17 Cal.4th at p. 248.)
Accordingly, we find that defendant’s Miranda waiver was knowing and
intelligent under the totality of the circumstances surrounding the interrogation.
2. Instructional Issues
a. First degree felony-murder instruction
Defendant contends that, because the information charged him only with
murder in violation of section 187, subdivision (a) (which defines second degree
murder), the trial court lacked jurisdiction to try him for first degree murder and
prejudicially erred in instructing the jury on the “uncharged crime” of first degree
felony murder. We reject this contention.
We have held for nearly a century that if the charging document charges the
offense in the language of the statute defining murder (§ 187), the offense charged
includes murder in the first degree and murder in the second degree. (People v.
Witt (1915) 170 Cal. 104, 107-108 (Witt).) Thus, defendant’s underlying premise
that the information charged him only with second degree murder is incorrect.
(People v. Zamudio (2008) 43 Cal.4th 327, 362; People v. Harris (2008) 43
Cal.4th 1269, 1294-1295; People v. Wilson (2008) 43 Cal.4th 1, 21.)
Defendant further argues that, under People v. Dillon (1983) 34 Cal.3d 441,
felony murder and premeditated murder are separate crimes, and that Dillon
implicitly overruled Witt, supra, 170 Cal. 104 (defendant may be convicted of
felony murder even though information charged only murder with malice). We
have consistently rejected that same claim (People v. Morgan (2007) 42 Cal.4th
593, 617; People v. Harris, supra, 43 Cal.4th at pp. 1294-1295; People v. Geier
(2007) 41 Cal.4th 555, 591; People v. Hughes (2002) 27 Cal.4th 287, 369) and
continue to do so. Thus, the trial court correctly instructed on felony murder and
the jury, in returning a general verdict for first degree murder, did not convict
defendant of an “uncharged” offense.
b. Failure to instruct that jurors must agree unanimously on
theory of first degree murder
The trial court instructed the jury on first degree premeditated murder and
on first degree felony murder predicated on the commission or attempted
commission of a robbery or a residential burglary. The court did not instruct the
jury that it must agree unanimously on a theory of first degree murder (i.e.,
premeditated murder or felony murder) to find him guilty of that charge.
Defendant argues that this instructional omission was prejudicial error. We have
repeatedly held that a unanimity instruction is not required. (People v. Zamudio,
supra, 43 Cal.4th at pp. 362-363; People v. Harris, supra, 43 Cal.4th at p. 1295;
People v. Morgan, supra, 42 Cal.4th at p. 617; People v. Cole (2004) 33 Cal.4th
1158, 1221; People v. Kipp (2001) 26 Cal.4th 1100, 1131; People v. Box (2000)
23 Cal.4th 1153, 1212.) In any event, the jury unanimously found to be true the
felony-murder special circumstance allegations. Therefore, the jury unanimously
agreed with a first degree felony-murder theory. (People v. Harris, supra, 43
Cal.4th at p. 1296; People v. Carpenter (1997) 15 Cal.4th 312, 395.)
C. Penalty Phase Issues
1. Alleged Prosecutorial Misconduct
Defendant claims that the prosecutor’s pervasive and egregious misconduct
during the penalty phase cross-examination of the defense expert, defendant’s
mother, and defendant deprived him of due process and a reliable sentence
determination. We disagree.
The standards governing review of misconduct claims are settled. A
prosecutor commits misconduct under the federal Constitution when his or her
conduct infects the trial with such ‘ “unfairness as to make the resulting conviction
a denial of due process.” ’ (Darden v. Wainwright (1986) 477 U.S. 168, 181; see
People v. Hinton (2006) 37 Cal.4th 839, 862.) Under state law, a prosecutor who
uses deceptive or reprehensible methods to persuade the jury commits misconduct
even when those actions do not result in a fundamentally unfair trial. (People v.
Frye (1998) 18 Cal.4th 894, 969.) In order to preserve a claim of misconduct, a
defendant must make a timely objection and request an admonition; only if an
admonition would not have cured the harm is the claim of misconduct preserved
for review. (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.)
The Attorney General argues that many of the prosecutorial misconduct
claims have been forfeited for failure to object. We have read the record and
determined that, except where we have found forfeiture, defendant made sufficient
a. Cross-examination of defense expert Dr. Adrienne Davis
Defendant claims that, during cross-examination of defense expert Dr.
Adrienne Davis, the prosecutor committed misconduct by questioning her about
the disciplinary violations reflected in defendant’s CYA and probation records.
On direct examination, Dr. Davis testified that she was retained by the
defense to examine defendant’s psychological history and to form an opinion
about aspects of his history important in understanding his commission of the
offenses in this case. In forming her opinion, Dr. Davis reviewed defendant’s
school records, juvenile records, and his videotaped interview with the police, and
conducted interviews of defendant, his parents, and his sister.
Dr. Davis noted that defendant had a history of behavioral and emotional
problems which stemmed largely from having ADD, a neurological condition he
was diagnosed with early in his childhood. Because it is believed that ADD is
caused by a chemical imbalance in the brain, ADD is often treated with
medication. She testified that children with ADD, such as defendant, are
hyperactive and very disruptive, have very little control over their behavior, have
difficulty learning, and are intrusive in their interactions with other people. They
are particularly impulsive in stressful situations. Dr. Davis opined that, because
ADD is a neurologically based disease, “a lot of this [negative] behavior the child
is exhibiting is not volitional, they are not doing it on purpose, they just don’t
really have control.”
Dr. Davis believed that a child with ADD is predisposed to aggressive and
delinquent behavior, especially if he or she is not treated with medication, there is
no family intervention, and there is aggressive behavior in the family and
community. Dr. Davis stated that, after defendant was diagnosed with ADD, he
did not receive proper treatment, was not given medication, and did not undergo
family or individual counseling. Dr. Davis noted that defendant was medicated
while housed at CYA, but believed that he stopped taking his medication after his
On cross-examination, Dr. Davis confirmed she had reviewed and
considered defendant’s CYA records. When asked if the records reflected that
defendant engaged in criminal conduct while he was incarcerated and receiving
treatment for his ADD, Dr. Davis answered that they did not and explained that
fighting with other minors was not a crime. Defense counsel objected to questions
about defendant’s criminal behavior in CYA on grounds of relevance and that the
questioning was argumentative. After argument outside the presence of the jury,
the trial court noted that Dr. Davis relied on the CYA reports in forming her
opinions and that the prosecutor’s questions regarding the contents of the reports
were proper rebuttal and impeachment.
In the presence of the jury, Dr. Davis confirmed that defendant’s records
reflected that defendant had been disciplined for theft, possession of a weapon,
sexual harassment, and engaging in two fights while in CYA. One report
indicated that, even while on medication, defendant was still a serious behavior
problem. Through further cross-examination, the prosecutor established that,
while medication and counseling were provided for defendant in CYA, he
generally did not respond to treatment.
Defendant argues that Dr. Davis’s testimony regarding the disciplinary
violations in CYA was improper nonstatutory aggravating evidence and exceeded
the scope of direct examination, and that the prejudicial effect of the evidence
outweighed its probative value. Defendant further argues that the prosecutor
failed to give proper notice of the nonstatutory aggravating evidence. Initially, we
note that defendant failed to object on the ground that the testimony was improper
nonstatutory aggravating evidence or that the prosecutor failed to give notice
regarding the evidence. Having made no objection, defendant has forfeited the
claims on appeal. (People v. Alfaro, supra, 41 Cal.4th at p. 1328.) In any event,
because the underlying arguments lack merit, the claim of prosecutorial
misconduct necessarily fails as well.
The prosecution may only present aggravating evidence that relates to
statutory factors enumerated in section 190.3. (People v. Boyd (1985) 38 Cal.3d
762, 772-776 (Boyd).) However, evidence offered to rebut defense mitigating
evidence need not relate to any specific aggravating factor listed in section 190.3.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 109.) On rebuttal, a
prosecutor may refer to prior conduct not admitted as evidence in aggravation
under section 190.3, if it relates to evidence offered by the defendant in mitigation.
(People v. Cunningham, supra, 25 Cal.4th at p. 1023.) A prosecutor does not
violate Boyd by showing that the evidence in mitigation offered by the defendant
fails to carry extenuating weight when evaluated in a broader factual context.
(People v. Frye, supra, 18 Cal.4th at p. 1021.)
Here, cross-examination was not conducted to establish evidence in
aggravation, but to impeach Dr. Davis’s opinions. On direct examination, Dr.
Davis suggested that, because of his ADD, defendant acted impulsively and did
not engage in volitional behavior during the commission of the crimes. In
rebuttal, the prosecutor properly showed that despite receiving treatment for his
ADD in CYA, defendant committed various disciplinary violations. This evidence
rebutted Dr. Davis’s opinion that defendant suffered from ADD and that the
disease contributed significantly to his criminal conduct in this case. In turn, it
was relevant to establish that, instead of acting impulsively and without volition
and control, defendant intentionally committed the offenses in this case. Thus, the
prosecutor did not commit misconduct in attempting to reduce the weight of Dr.
Davis’s expert opinion. (People v. Coffman and Marlow, supra, 34 Cal.4th at pp.
111-112; People v. Dennis (1998) 17 Cal.4th 468, 519; People v. Montiel (1993) 5
Cal.4th 877, 923-924.)
Because defendant’s assertion of Boyd error lacks merit, his related notice
claim also fails. (§ 190.3 [“Evidence may be introduced without such notice in
rebuttal to evidence introduced by the defendant in mitigation”]; People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 109.) Similarly, for the reasons
stated above, we reject defendant’s contention that evidence of the disciplinary
violations exceeded the scope of direct examination and was more prejudicial than
probative under Evidence Code section 352. (Evid. Code, § 721, subd. (a) [“[A]
witness testifying as an expert . . . may be fully cross-examined as to . . . the
subject to which his or her expert testimony relates, and . . . the matter upon which
his or her opinion is based and the reasons for his or her opinion”]; People v.
Gardeley (1996) 14 Cal.4th 605, 619 [courts have considerable discretion to
control the manner in which an expert is questioned and to weigh the probative
value of information relied on by an expert against the risks].)
Regarding the potential for undue prejudice or that the jury would consider
the evidence of defendant’s disciplinary violations as substantive evidence in
aggravation, any such danger was dispelled by the trial court’s admonition.
(People v. Montiel, supra, 5 Cal.4th at p. 919.) It admonished the jury that the
reports on which Dr. Davis’s opinions were based were hearsay and not offered
for their truth, but only admitted for the purpose of evaluating the expert
testimony. Moreover, the prior disciplinary violations were relatively tame given
the calculated, methodical, and callous nature of the crimes in this case, to which
defendant confessed. Because the trial court did not abuse its discretion in
permitting cross-examination as to the disciplinary violations, the prosecutor did
not commit misconduct.4
Defendant further contends that the prosecutor went outside the scope of
permissible cross-examination and thereby committed misconduct when she
questioned Dr. Davis about the factual inaccuracies in her report. On cross-
examination, Dr. Davis acknowledged her report inaccurately stated that the
charge was second degree robbery rather than first degree robbery, that Sells was
shot three times in the head and back when in fact she was shot three times in the
head, and that her assertion in the report that Kristian survived and is in good
physical condition was made without the knowledge that she still had a bullet in
her head. In offering an expert opinion, the expert invites investigation into the
extent of his knowledge, the reasons for his opinion, including facts and other
matters upon which it is based and which he took into consideration; he may be
In arguing that the trial court failed to exercise its discretion under
Evidence Code section 352, defendant points to a comment made by the court.
During its ruling, the court stated, “At some point I am going to be dealing with
352, but I’m going to overrule the objection at this point.” This ruling was made
before the prosecutor elicited evidence of the specific disciplinary violations
committed by defendant in CYA. Given the timing of the court’s ruling, the
court’s comment reflected it was exercising its discretion at that point, but it might
need to reweigh the evidence after it heard additional testimony.
subjected to the most rigorous cross-examination concerning his opinion and its
sources. (People v. Nye (1969) 71 Cal.2d 356, 374-375.) Because the report’s
inaccuracies tended to downplay the severity of the crimes, the prosecutor was
entitled to question Dr. Davis about those inaccuracies in attempting to rebut her
suggestion that defendant’s criminal conduct here was uncontrolled and not
Finally, defendant claims that the prosecutor committed misconduct in
cross-examining Dr. Davis regarding defendant’s lack of remorse for committing
the offenses in this case and in other cases. Regarding this case, the prosecutor
was entitled to develop and argue the lack of evidence of remorse. (People v.
Frye, supra, 18 Cal.4th at p. 1019; People v. Marshall (1996) 13 Cal.4th 799,
855.) Regarding the other cases, various statements in the reports indicated
defendant minimized his criminal behavior and showed little remorse towards his
victims. The prosecutor could have reasonably concluded that those statements
impeached Dr. Davis’s opinion regarding defendant’s emotional and behavioral
stability. In any event, because the trial court overruled defendant’s objection, the
prosecutor’s questions, in accord with the ruling, were not misconduct.
b. Cross-examination of defendant’s mother
On direct examination, defense counsel questioned Brenda Sampson,
defendant’s mother, about defendant’s behavior and progress in school. Sampson
testified that, during elementary school, defendant was not “really a bad child.”
When asked if some problems had been brought to her attention, Sampson replied,
“A little. Not much to really complain about.” When asked if defendant had been
disruptive and would cause trouble in school, she responded, “Not really.”
Instead, she blamed his problems in school on the other children who had picked
on him. When asked if defendant’s problems continued in junior high school,
Sampson stated, “A little, but I think they had put him in special education.”
Although it had been recommended that defendant undergo psychological
counseling, Sampson could only afford two or three counseling sessions.
When asked about the appropriate punishment for her son, Sampson
testified that she wanted him to live. She explained, “I don’t feel that he did it and
I don’t feel that he has no anger or nothing in his heart like he would want to hurt
anyone. I never had any problem with him, you know, wanting to hurt me or none
of my children or anyone that I know.”
Out of the presence of the jury, the prosecutor asked permission of the court
to question Sampson about defendant’s prior violent conduct. The prosecutor
sought to impeach Sampson by asking if she knew about the adult robbery
conviction and the juvenile robbery adjudication that the prosecution had
presented in aggravation. She also sought to use his admitted gang activity and a
“nondetained” petition for a robbery defendant was alleged to have committed at
age 12 — evidence which had not been presented by the prosecution in
aggravation. The trial court ruled that the prosecutor could not question Sampson
about the gang activity or about the nondetained juvenile petition.
In addition, the prosecution sought to question Sampson about her
knowledge of defendant’s involvement in the juvenile system since the age of 11,
having had a 90-day CYA diagnostic evaluation for petty theft. The prosecutor
argued that, although defendant had been in the juvenile justice system, Sampson
“makes it sound like he had some problems at school and that was it.” The trial
court allowed the prosecutor to question Sampson about the 90-day diagnostic
examination for petty theft. It explained, “I don’t think that is that damaging, but
it does show there are problems.”
On cross-examination of Sampson, the prosecutor referred to her testimony
on direct that “defendant had not been involved in any trouble to complain of” and
asked if she was aware of the 90-day CYA diagnostic evaluation. Initially,
Sampson stated she did not remember, but then recalled the incident after being
reminded that defendant had been gone from home for 90 days. The prosecutor
then questioned Sampson about her knowledge of the two robbery convictions that
the prosecution had presented in aggravation.
Defendant does not contest the cross-examination regarding the robbery
convictions. Rather, he argues that, by questioning Sampson about the 90-day
diagnostic examination, the prosecutor committed misconduct because the
questioning exceeded the scope of direct examination and constituted inadmissible
nonstatutory aggravating evidence of which he did not receive proper notice. We
A prosecutor may impeach evidence of the defendant’s good character with
rebuttal evidence of bad character, and is not bound by the statutory aggravating
factors or by the prosecutor’s statutory pretrial notice of aggravating evidence.
(People v. Fierro (1991) 1 Cal.4th 173, 237.) Here, the challenged cross-
examination was not offered as evidence in aggravation, but to impeach the
evidence presented in mitigation. Because Sampson characterized defendant as
not “really a bad child” and minimized any problems with defendant, the
prosecutor was entitled to impeach that testimony by questioning her about her
knowledge of defendant’s 90-day CYA diagnostic evaluation. (People v. Payton
(1992) 3 Cal.4th 1050, 1066; People v. Fierro, supra, 1 Cal.4th at pp. 238-239.)
Moreover, we reject defendant’s claim that the trial court “abdicated its duty to
control the introduction of unduly prejudicial evidence under Evidence Code
section 352.” In allowing questioning, the trial court commented that evidence
about the diagnostic evaluation was not that damaging. Also, by excluding
evidence about defendant’s nondetained petition for robbery and his gang
involvement, and by allowing questioning on the robberies of which the jury was
already aware, the trial court clearly engaged in the required weighing process.
Because we find no error, the related claim of prosecutorial misconduct
c. Cross-examination of defendant
Defendant complains of several instances of prosecutorial misconduct
committed during his cross-examination. First, defendant argues that, in
questioning him about the differences between his account of the 1991 bicycle
theft and that testified to by the arresting officer, the prosecutor improperly asked
him if the officer had lied during his testimony. Deputy Sheriff Tom Fortier
testified that he stopped defendant and another suspect together. Each of them had
a bicycle. Humberto Sanchez, the victim, identified defendant and the other
person as having stolen his and his friend’s bicycles. Defendant told Deputy
Fortier that he approached Sanchez, ordered him off his bicycle, and rode off with
it. But Sanchez told Fortier that defendant ordered him off the bicycle and
punched him in the face. After a brief fight, defendant rode off with Sanchez’s
During cross-examination, defendant admitted that he rode off with
Sanchez’s bicycle, but denied that he hit or punched Sanchez. He claimed that he
was only a bystander, having taken Sanchez’s bicycle after two other people —
whom defendant did not know — ordered Sanchez off. He rode off with the
bicycle while those two people fought with Sanchez. Contrary to Deputy Fortier’s
testimony, defendant claimed that he knew nothing about the second bicycle theft,
that he was arrested alone, and that the other suspect was arrested at another
location by a different officer.
The following testimony followed:
“Q. You heard Deputy Fortier testify here yesterday that he was directed to
a location where there were two suspects with bicycles, and he arrested both of
them there at that location, didn’t you?
“Q. Isn’t that how it happened?
“A. No, it’s not.
“Q. So Deputy Fortier lied?
“A. I’m not going to call him a liar, but I would say that that statement is
“Q. So the bottom line is you do not take full responsibility for what
occurred on that day in April when you took that bike?
“[Defense counsel]: Objection, argumentative.
“[Defendant]: Yes, I do.
“The Court: Overruled.
“A. Yes, I do.
“Q. Well, then how do you explain the difference between what you say
occurred and what Deputy Fortier said occurred with respect to your arrest?
“[Defense counsel]: Objection, speculation.
“The Court: Overruled. You can answer, sir. [¶] . . . [¶]
“A. It’s because I was the person who was arrested. He [Fortier] was not.”
Defendant claims that the prosecutor’s question as to whether Deputy
Fortier lied invaded the province of the jury regarding credibility determinations,
elicited improper lay opinion about the veracity of witnesses, and constituted
misconduct by attempting to induce defendant to call a law enforcement witness a
liar. We disagree.
Having made no objection to that particular question and having sought no
curative admonition, defendant has forfeited the claim on appeal. (People v.
Alfaro, supra, 41 Cal.4th at p. 1328.) In any event, the claim fails on the merits.
“Courts from various jurisdictions have treated ‘were they lying’ questions
differently. One line of cases concludes they are always improper, while another
concludes they are never so. (People v. Foster[ (2003)] 111 Cal.App.4th [379,]
384.) Zambrano joins a third line of cases that counsels a trial court to consider
these questions in context.” ([People v.] Zambrano[ (2004)] 124 Cal.App.4th
[228,] 239.)” (People v. Chatman (2006) 38 Cal.4th 344, 381-382.) In Chatman,
we followed the Zambrano approach and held that courts should carefully
scrutinize “were they lying questions” in context. (Chatman, at p. 384.)
“A defendant who is a percipient witness to the events at issue has personal
knowledge whether other witnesses who describe those events are testifying
truthfully and accurately. As a result, he might also be able to provide insight on
whether witnesses whose testimony differs from his own are intentionally lying or
are merely mistaken.” (People v. Chatman, supra, 38 Cal.4th at p. 382.) In asking
whether Deputy Fortier lied, the prosecutor sought to clarify defendant’s
testimony, giving him the opportunity to explain the divergent testimony.
Defendant explained that his version was more accurate because he, not Fortier,
was the person arrested. Thus, the cross-examination was legitimate inquiry to
clarify defendant’s position. (Id. at p. 383.)
Moreover, the prosecutor’s “was he lying” question did not constitute
misconduct. “ ‘Although it is misconduct for a prosecutor intentionally to elicit
inadmissible testimony [citation], merely eliciting evidence is not misconduct.’ ”
(People v. Chatman, supra, 38 Cal.4th at pp. 379-380.) Nothing in the record
suggests the prosecutor sought to present evidence she knew was inadmissible.
(Id. at p. 380.) The prosecutor only asked the question once and did not repeatedly
ask it to berate defendant or force him to call Deputy Fortier a liar in an attempt to
inflame the passions of the jury. (Contrast People v. Zambrano (2004) 124
Cal.App.4th 228, 242.) Indeed, defendant refused to call Detective Fortier a liar,
saying only that his testimony was incorrect. The prosecutor’s sole question was
neither deceptive nor reprehensible, and did not constitute misconduct.
Second, defendant asserts that the prosecutor engaged in misconduct by
asking argumentative and sarcastic questions. He argues that the sole purpose for
the prosecutor’s questions was “to put the facts and insinuations of the questions
before the jury without seeking new facts.” Again, we disagree.
During his confession to Detective Morales, defendant sought to minimize
his role in the crimes, claiming he was forced to participate in the robbery by a
man he called Charles Williams who was bigger, had a gun, and had just gotten
out of prison. Defendant characterized Williams as the mastermind of the crimes,
who possessed the only gun used to commit the crimes. According to defendant,
Williams ordered the victims to lie on the floor, ordered defendant to tie Kristian
up and shoot the victims, and decided what property to take, including the Lexus.
During direct examination, defendant reiterated that the other man instigated the
robbery, asked him if he wanted to “pull a lick” (i.e., commit a robbery), and
forced him to shoot the victims. Defendant’s account differed substantially from
the testimony of Kristian, who testified that defendant controlled the situation and
did most of the talking.
During cross-examination, the prosecutor questioned defendant about his
claim that the other man (whom defendant now referred to as “Lumpy”) was the
architect of the entire operation. As part of this questioning, the prosecutor asked
about Lumpy’s request to defendant to commit a “lick.” Defendant testified that
he asked Lumpy why he was asking him, and that Lumpy replied defendant
“looked like [he] was down.” Defendant explained Lumpy was “stereotyping me
as a type of individual that would do something like that.” In response, the
prosecutor asked if Lumpy had made an accurate character assessment of him.
After the trial court overruled defendant’s objection to the question as
argumentative, defendant replied, “I can’t say I agree, but it was a stereotype.”
Citing the two prior robberies and the robbery in this case, the prosecutor then
asked, “You do commit robberies?” Defendant responded yes, but made the
distinction that he only took small items and not valuables, in contrast to Lumpy’s
When questioned as to whether he tried to leave Lumpy, defendant
admitted that he had not tried and explained that he feared Lumpy because he was
bigger, had a gun, had just been released from prison, and had “the mentality that
he had.” When the prosecutor inquired, “and what mentality did he have?”
defendant replied, “[to] go and commit a robbery.” The prosecutor continued:
“Q. You have gone and committed a robbery, haven’t you?
“Q. So you have the same mentality as Lumpy, don’t you?
“A. No, I do not, no.”
The trial court admitted defendant’s testimony over defense counsel’s
objection to the question as argumentative.
Unless precluded by statute, any evidence is admissible to attack the
credibility of a witness if it has a tendency in reason to disprove the truthfulness of
the witness’s testimony. (Evid. Code, § 780; People v. Humiston (1993) 20
Cal.App.4th 460, 479.) Although a defendant cannot be compelled to be a witness
against himself, if he takes the stand and denies the evidence presented against
him, the permissible scope of cross-examination is “ ‘very wide.’ ” (People v.
Cooper (1991) 53 Cal.3d 771, 822.) A defendant cannot, by testifying to a state of
things inconsistent with the evidence presented by the prosecution, thereby limit
cross-examination to the precise facts concerning which he testifies. (People v.
Cooper, supra, 53 Cal.3d at p. 822.) Rather, when a defendant testifies, the
prosecutor “may fully amplify his testimony by inquiring into the facts and
circumstances surrounding his assertions, or by introducing evidence through
cross-examination which explains or refutes his statements or the inferences which
may necessarily be drawn from them.” (Ibid.)
Here, the prosecutor was entitled to impeach defendant’s statements —
inconsistent with the prosecution’s evidence — that Lumpy instigated the robbery
and forced him to participate in it. Thus, when defendant suggested that his
accomplice had unfairly stereotyped him as being “down” to commit a robbery
and that his accomplice had a “mentality” different from his own, the prosecutor
was free to confront him with evidence showing the contrary.
Also, contrary to defendant’s claim, the prosecutor did not commit
misconduct in questioning defendant about the differences between his account of
the events at issue and Kristian’s. (People v. Cunningham, supra, 25 Cal.4th at p.
1025 [“Evidence tending to contradict a witness’s testimony is relevant for
purposes of impeachment”].) Similarly, there was no impropriety in questioning
defendant about whether he knew how young Kristian was when he shot her, as
this went to the “circumstances of the crime.” (§ 190.3, factor (a).)
Finally, regarding his cross-examination, defendant contends that the
prosecutor committed misconduct by improperly suggesting he had fabricated his
trial testimony; she asked defendant if he had a year and a half to think about what
happened on the night in question and contrasted his purported inability to
remember what Kristian testified to only a few days before with his ability to
recollect details about his arrest in 1991. Defendant argues that the prosecutor
exacerbated the alleged misconduct by later arguing to the jury that defendant had
“proven himself to be a liar and untrustworthy,” had “proven himself to be
untruthful at best,” had “every reason to lie,” and “was not to be trusted.”
A prosecutor’s suggestion or insinuation that the defense has been
fabricated is misconduct only when there is no evidence to support such a claim.
(People v. Earp (1999) 20 Cal.4th 826, 862-863; People v. Pinholster (1992) 1
Cal.4th 865, 948.) Here, the prosecutor’s questions during cross-examination and
comments during argument were based on the inconsistencies between
defendant’s and Kristian’s testimony and the reasonable inferences drawn from
that evidence. No misconduct occurred.
2. Admission of 911 Tape as Victim Impact Evidence
Defendant contends that the trial court erred in admitting Kristian’s 911
tape as victim impact evidence during the penalty phase. After defendant shot
Kristian and her mother in the head and left the residence, Kristian called 911 for
help. Initially, afraid that defendant might still be present, Kristian whispered that
two Black males had shot her and her mother in the back of the head. Kristian
described the assailants and their clothing, and gave her address. While talking to
the dispatcher, her mother’s friend Jerold Smith arrived at the house and took the
telephone from Kristian. Kristian told Smith that someone had shot her and her
mother. As Smith spoke with the 911 dispatcher, Kristian went into her mother’s
bedroom and began screaming when she discovered her injured mother. Kristian’s
screaming is heard in the background of the tape. Smith urged the dispatcher to
send paramedics quickly because Kristian was becoming a “hysterical teenager.”
Over defendant’s objection, the trial court admitted the 911 tape as relevant
victim impact evidence relating to the circumstances of the crime (§ 190.3, factor
(a)) and further determined that its probative value outweighed its prejudicial
effect (Evid. Code, § 352). The prosecution played the 911 tape for the jury
during Kristian’s testimony.
On defendant’s request, the trial court then admonished the jury as follows,
“To the extent that your reaction may be emotional to the 911 tape, you are
permitted and it’s admissible for your consideration as part of the circumstances of
the crime, but I do want to caution you with respect to if you have [an] emotional
reaction, that your emotion doesn’t wipe out your evaluation of all the evidence.
You are to weigh all the factors, including the circumstances of the crime, but
emotion doesn’t control. You are judges. Your reactions are as human beings.
That is why we have human beings sitting on juries instead of computers. But it’s
not presented in order to have emotion control and weigh out all the other factors
presented to you.” The prosecution replayed the 911 tape at the end of its rebuttal
Defendant claims that admission of the 911 tape was error because (1) it
was nonstatutory aggravating evidence, (2) its prejudicial effect outweighed its
probative value (Evid. Code, § 352), and (3) it was so inflammatory that it
rendered his trial unreliable and unfair under the Eighth and Fourteenth
Amendments. We conclude that the trial court properly admitted the 911 tape as
victim impact evidence.
“ ‘In a capital trial, evidence showing the direct impact of the defendant's
acts on the victims' friends and family is not barred by the Eighth or Fourteenth
Amendment[ ] to the federal Constitution. [Citation.]’ [Citation.] ‘The federal
Constitution bars victim impact evidence only if it is “so unduly prejudicial” as to
render the trial “fundamentally unfair.” [Citation.] State law is consistent with
these principles. Unless it invites a purely irrational response from the jury, the
devastating effect of a capital crime on loved ones and the community is relevant
and admissible as a circumstance of the crime under section 190.3, factor (a).’
[Citations.]” (People v. Zamudio, supra, 43 Cal.4th at p. 364.) Victim impact
evidence is admissible under California law provided it “is not so inflammatory as
to elicit from the jury an irrational or emotional response untethered to the facts of
the case.” (People v. Pollock (2004) 32 Cal.4th 1153, 1180; see also People v.
Kelly (2007) 42 Cal.4th 763, 793.)
In People v. Mitcham (1992) 1 Cal.4th 1027, 1063, the defendant shot and
killed a jewelry store owner during a robbery and shot an employee, who survived.
At the penalty phase of the capital trial, the surviving employee described the
psychological and emotional trauma she suffered as a direct result of the
defendant’s homicidal conduct, as related to the nature and circumstances of the
capital offense. We held that the impact of the offense on the surviving victim
constituted a circumstance of the crime and was relevant under factor (a) of
Here, the 911 tape clearly showed the immediate impact and harm caused
by defendant’s criminal conduct on the surviving victim and was relevant because
it “ ‘could provide legitimate reasons to sway the jury to . . . impose the ultimate
sanction.’ ” (People v. Edwards (1991) 54 Cal.3d 787, 836.) The 911 tape here
was relevant under factor (a) of section 190.3. (People v. Mitcham, supra, 1
Cal.4th at p. 1063; see People v. Roybal (1998) 19 Cal.4th 481, 515-517
[husband’s 911 tape after discovery of wife’s body admissible as relevant to guilt
Defendant argues that, because the 911 tape was cumulative of Kristian’s
testimony at the guilt and penalty phases, the sole purpose of the 911 tape was to
inflame the jury. However, the trial court found otherwise. In weighing the
probative value and the prejudicial effect, the court agreed with defense counsel
that Kristian’s “hysteria is clear on the tape.” On the other hand, the court
determined that the tape showed the impact of the crimes on Kristian that was not
evident from the other evidence at trial. The court noted that on the tape Kristian
sounded “extremely calm in the beginning,” but “allow[ed] herself to let go” and
became hysterical only after someone “safe” had entered the house.
The trial court reasoned, “It’s not like the defendant is there and she has to
keep that lock on her emotions. I think it is relevant to the circumstances of the
crime to the extent that the trial itself reflected that she was the one that kept trying
to calm her mother down. I think it is consistent with the attempt on her part to
remain calm in spite of what was happening. The trial itself I think was very
sanitized and clinical. Her recitation was extremely clinical. And I think for the
benefit of [defendant] she did not display any emotion whatsoever. And I think to
the extent that the People have a right to show the real horror and the impact on
her, they theoretically could have had that presented at the trial itself, and I think
they restrained themselves by not. It does show the hysteria. I think the tape does
indicate the impact on the victim which is not reflected in the trial itself.”
The record supports the trial court’s finding that the 911 tape was not
cumulative of other evidence. Although Kristian testified about defendant’s and
his accomplice’s commission of the crimes during the guilt phase, and about the
longer-term impact of those crimes on her during the penalty phase, only the tape
conveyed the more immediate impact of the crimes on her. Although the 911 tape
“would naturally have tended to arouse emotion and evoke strong feelings of
sympathy for [Kristian’s] condition, it was not so inflammatory as to have diverted
the jury’s attention from its proper role or invited an irrational response.” (People
v. Mitcham, supra, 1 Cal.4th at p. 1063; see also People v. Jurado (2006) 38
Cal.4th 72, 133-134 [relevant though emotional victim impact testimony did not
surpass constitutional limits].) Indeed, the trial court admonished the jurors not to
let any emotional response subvert their reasoned evaluation of the evidence.
Nothing suggests the jury did not follow the court’s instruction. Moreover, the
jury did not ask to hear the 911 tape during deliberations, reflecting it did not place
undue emphasis on it.
Given the relevance of the 911 tape, the trial court did not abuse its broad
discretion in concluding the 911 tape was more probative than prejudicial.
(People v. Roybal, supra, 19 Cal.4th at pp. 515-517 [admission of 911 tape
showing husband’s distress in finding dead wife’s body not an abuse of discretion
under Evid. Code § 352].) Having concluded there was no error and no prejudice,
we also reject the claims that admission of the 911 tape deprived defendant of his
federal constitutional rights to due process, a fair trial, and a reliable and
nonarbitrary penalty determination. (People v. Boyette, supra, 29 Cal.4th at p.
3. Challenges to the Death Penalty Law and Penalty Phase Instructions
Defendant challenges California’s death penalty law and the standard
penalty phase instructions for reasons previously rejected by this court in other
cases. He raises no basis for reconsideration of these rulings.
Specifically, the death penalty law adequately narrows the class of death-
eligible defendants. (People v. Combs (2004) 34 Cal.4th 821, 868.) “ ‘The jury
need not make written findings, or achieve unanimity as to specific aggravating
circumstances, or find beyond a reasonable doubt that an aggravating
circumstance is proved (except for other crimes), that aggravating circumstances
outweigh mitigating circumstances, or that death is the appropriate penalty.
[Citations.] The death penalty statute is not unconstitutional for failing to provide
the jury with instructions of the burden of proof and standard of proof for finding
aggravating and mitigating circumstances in reaching a penalty determination.’ ”
(People v. Kelly, supra, 42 Cal.4th at p. 800.) Recent United States Supreme
Court decisions do not undermine these conclusions. (Ibid.; People v. Morgan,
supra, 42 Cal.4th at pp. 626-627; People v. Lewis and Oliver, supra, 39 Cal.4th at
p. 1068.) “Nor do our jury instructions require jury unanimity on mitigating
factors or mislead a jury into believing that such unanimity is required.” (People
v. Crew (2003) 31 Cal.4th 822, 860.) The use of such words in the sentencing
factors statute as “extreme” (§ 190.3, factors (d) & (g)), “reasonably believed”
(§ 190.3, factor (f)), and “impaired” (§ 190.3, factor (h)) is constitutional. (People
v. Kelly, supra, 42 Cal.4th at p. 801; People v. Crew, supra, 31 Cal.4th at p. 860.)
Section 190.3, factor (a) is not unconstitutionally overbroad, arbitrary, capricious,
or vague. (People v. Kelly, supra, 42 Cal.4th at p. 800; People v. Jenkins (2000)
22 Cal.4th 900, 1050-1053.) The “so substantial” standard for comparing
mitigating and aggravating circumstances in CALJIC No. 8.88 is not
unconstitutionally vague. (People v. Morgan, supra, 42 Cal.4th at p. 625.)
CALJIC No. 8.88 is not constitutionally defective for not instructing the jury to
return a verdict of life imprisonment if aggravating factors do not outweigh
mitigating ones. (People v. Morgan, supra, 42 Cal.4th at p. 625.) Intercase
proportionality review is not constitutionally required. (People v. Combs, supra,
34 Cal.4th at p. 868; People v. Griffin (2004) 33 Cal.4th 536, 596.) Equal
protection principles do not require this court to give capital defendants the same
sentence review afforded other felons under the determinate sentencing law.
(People v. Kelly, supra, 42 Cal.4th at p. 801.) Finally, we reject defendant’s claim
that a death sentence violates provisions of the International Covenant on Civil
and Political Rights, a treaty which the United States ratified in 1992, and violates
international norms of human decency reflected in the laws and practices of most
civilized nations. (People v. Morgan, supra, 42 Cal.4th at pp. 627-628.) “[A]
sentence of death that complies with state and federal constitutional and statutory
requirements does not violate international law.” (People v. Kelly, supra, 42
Cal.4th at p. 801.)
We affirm the judgment.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Hawthorne
Original Appeal XXX
Opinion No. S064769
Date Filed: April 23, 2009
County: Los Angeles
Judge: Jacqueline A. Connor
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court,
Arcelia Hurtado and Katherine Froyen, Deputy State Public Defenders, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and
Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Deputy State Public Defender
221 Main Street, Tenth Floor
San Francisco, CA 94105
Russell A. Lehman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 04/23/2009||46 Cal. 4th 67, 205 P.3d 245, 92 Cal. Rptr. 3d 330||S064769||Automatic Appeal||closed; remittitur issued|| |
HAWTHORNE (CARLOS ANTHONY) ON H.C. (S176951)
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Russell A. Lehman, Deputy Attorney General
300 S. Spring Street, 5th Floor
Los Angeles, CA
|2||Hawthorne, Carlos Anthony (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Arcelia L. Hurtado, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|Opinion||Justice Ming W. Chin|
|Apr 23 2009||Opinion: Affirmed|
|Sep 5 1997||Judgment of death|
|Oct 2 1997||Filed certified copy of Judgment of Death Rendered|
|Oct 2 1997||Penal Code sections 190.6 et seq. apply to this case|
|Feb 10 1998||Record certified for completeness|
|Sep 4 2001||Filed:|
appellant's application for appointment of counsel (IFP form).
|Sep 5 2001||Order appointing State Public Defender filed|
Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant Carlos Anthony Hawthorne for the direct appeal in the above automatic appeal now pending in this court.
|Sep 14 2001||Date trial court delivered record to appellant's counsel|
3,432 pp. record
|Sep 21 2001||Appellant's opening brief letter sent, due:|
4-17-2002. (pursuant to Calif. Rules of Court, rule 39.57(b))
|Nov 9 2001||Counsel's status report received (confidential)|
from State P.D.
|Jan 7 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 13 2002||Counsel's status report received (confidential)|
from State P.D.
|Apr 10 2002||Request for extension of time filed|
To file AOB. (1st request)
|Apr 24 2002||Filed:|
Suppl. declaration in support of application for extension of time to file AOB.
|Apr 30 2002||Extension of time granted|
To 6/17/2002 to file AOB. The court anticipates that after that date, only six further extensions totaling 360 additional days will be granted.
|May 14 2002||Counsel's status report received (confidential)|
from State P.D.
|Jun 14 2002||Request for extension of time filed|
To file AOB. (2nd request)
|Jun 21 2002||Extension of time granted|
to 8-16-2002 to file AOB. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
|Jul 3 2002||Counsel's status report received (confidential)|
from State P.D.
|Aug 14 2002||Request for extension of time filed|
to file AOB. (3rd request)
|Aug 19 2002||Extension of time granted|
to 10-15-2002 to file AOB. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting atty or entity, if any, and any assisting atty or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet this schedule.
|Aug 28 2002||Counsel's status report received (confidential)|
from State P.D.
|Sep 19 2002||Received copy of appellant's record correction motion|
Request for correction of record, application for settled statements, application for additional records, and request for documentary exhibits. (22 pp.) (note: filed in superior court on 1-16-2002)
|Oct 11 2002||Request for extension of time filed|
To file appellant's opening brief. (4th request)
|Oct 17 2002||Extension of time granted|
To 12/16/2002 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Nov 4 2002||Counsel's status report received (confidential)|
from State P.D.
|Nov 26 2002||Record certified for accuracy|
|Dec 18 2002||Request for extension of time filed|
To file appellant's opening brief. (5th request)
|Dec 23 2002||Counsel's status report received (confidential)|
from State P.D.
|Dec 23 2002||Extension of time granted|
To 2/14/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Jan 2 2003||Record on appeal filed|
Clerk's transcript - 12 volumes (2742 pp.) and reporter's transcript - 19 volumes (1453 pp.); including material under seal; ASCII disks. Clerk's transcript includes 1378 pp. of juror questionnaires.
|Feb 13 2003||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Feb 13 2003||Counsel's status report received (confidential)|
from State P.D.
|Feb 18 2003||Extension of time granted|
to 4/15/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet it.
|Feb 21 2003||Motion filed (in non-AA proceeding)|
pro se "Declaration of conflict of interest between attorney and client."
|Apr 8 2003||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Apr 8 2003||Counsel's status report received (confidential)|
from State P.D.
|Apr 10 2003||Request for extension of time filed|
to 6/16/2003 to file appellant's opening brief. After that date, only two further extensions totaling aoubt 90 additional days will be granted. Extension is granted based upon Deputy State Pubilc Defender James Ramos's representation that he anticipates filing that brief by 9/12/2003.
|Apr 18 2003||Motion to correct AA record filed|
"Supplemental Request to Correct the Record - Rule 12(c), Order, Stipulation of Counse."
|May 28 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|May 28 2003||Counsel's status report received (confidential)|
from State P.D.
|Jun 2 2003||Extension of time granted|
to 8/15/2003 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 Deputy State Public Defender James R. Ramos's representation that he anticipates filing that brief by 9/12/2003.
|Jul 14 2003||Letter sent to:|
State Public Defender requesting response to pro se "Declaration of conflict of interest between attorney and client," on or before 7-28-2003.
|Jul 25 2003||Letter sent to:|
counsel re: appellant's "Supplemental Request To Correct The Record -- Rule 12(c), Order, Stipulation Of Counsel," filed on 4-18-2003. The court requests that counsel specify each designated error and suggested correction by page and line in the certified record on appeal, by 8-14-2003.
|Jul 28 2003||Counsel's status report received (confidential)|
from State P.D.
|Jul 28 2003||Received letter from:|
the State Public Defender, dated 7-28-2003, in response to court's letter of 7-14-2003. Iconfidential)
|Aug 7 2003||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Aug 7 2003||Filed:|
letter from appellant, dated 8-7-2003, in response to court's letter of 7-25-2003.
|Aug 12 2003||Extension of time granted|
to 10/14/2003 to file appellant's opening brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon Assistant State Public Defender Andrew S. Love's representation that he anticipates filing that brief by 11/26/2003.
|Sep 15 2003||Motion filed (in AA proceeding)|
by appellant to settle the record on appeal.
|Sep 15 2003||Filed letter from:|
respondent; Dep. A.G. T. H. Tran, advising of their concurrance with appellant's designated error and suggested correction.
|Sep 24 2003||Opposition filed|
by respondent to appellant's motion to settle the record.
|Oct 1 2003||Motion denied|
Appellant's "Motion to Settle the Record on Appeal," filed on September 15, 2003, is denied.
|Oct 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Oct 9 2003||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|Oct 20 2003||Extension of time granted|
to 12/15/2003 to file appellant's opening brief. After that date, only one further extension totaling 40 additional days will be granted. Extension is granted based upon State Public Defender Lynne S. Coffin's representation that she anticipates filing that brief by 1/23/2004.
|Oct 22 2003||Record correction granted|
On stipulation by the parties, the certified trial record is corrected as follows: (1) page 247, line 4, which currently reads "juror 8180).", is replaced with "juror 6229)." and (2) page 247, line 8, which currently reads "juror 8180) number, number 8180." is replaced with "juror 6229) number, number 6229." Brown, J., was absent and did not participate.
|Oct 22 2003||Order filed|
Appellant's request for substitution of counsel, filed on February 21, 2003, is denied. Brown, J., was absent and did not participate.
|Dec 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Dec 12 2003||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Dec 18 2003||Extension of time granted|
to 1/23/2004 to file appellant's opening brief. Extension is granted based upon Assistant State Public Defender Andrew S. Love's representation that he anticipates filing that brief by 1/23/2004. After that date, no further extension will be granted.
|Jan 23 2004||Appellant's opening brief filed|
(215 pp. - 60,161 words)
|Feb 11 2004||Respondent's brief letter sent; due:|
May 24, 2004.
|Apr 20 2004||Motion filed (AA)|
Appellant's pro se declaration in support of Marsden Hearing and declarations in support of conflict of interest between attorney and client. appellant submitted three documents that are being treated as one motion.
|May 20 2004||Request for extension of time filed|
respondent. (1st request)
|May 24 2004||Extension of time granted|
to 7/23/2004 to file respondent's brief.
|Jun 9 2004||Motion denied|
Appellant's request for substitution of counsel, filed on April 20, 2004, is denied.
|Jul 22 2004||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Jul 28 2004||Extension of time granted|
to 9/21/2004 to file respondent's brief.
|Sep 17 2004||Request for extension of time filed|
respondent's brief. (3rd request)
|Sep 21 2004||Extension of time granted|
to 11/22/2004 to file respondent's brief. After that date, only one further exetnsion totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Russell A. Lehman's representation that he anticipates filing that brief by 1/19/2005.
|Nov 17 2004||Request for extension of time filed|
to file respondent's brief. (4th request)
|Nov 22 2004||Extension of time granted|
to 1/19/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Russell A. Lehman's representation that he anticipates filing that brief by 1/19/2005. After that date, no further extension will be granted.
|Jan 18 2005||Request for extension of time filed|
to file respondent's. (5th request)
|Jan 24 2005||Extension of time granted|
to 2-18-2005 to file respondent's brief. After that date, no further extension will be granted. Extension granted based upon Deputy AG Russell Lehman's representation that he anticipates filing the brief by 2-18-2005.
|Jan 24 2005||Respondent's brief filed|
(50,799 words; 171 pp.)
|Mar 17 2005||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Mar 21 2005||Extension of time granted|
to 5/24/2005 to file appellant's reply brief.
|May 17 2005||Request for extension of time filed|
to file reply brief. (2nd request)
|May 20 2005||Extension of time granted|
to 7/25/2005 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 Deputy State Public Defender Arcelia L. Hurtado's representation that she anticipates filing that brief by 9/21/2005.
|Jul 14 2005||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Jul 19 2005||Extension of time granted|
to 9/21/2005 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Arcelia L. Hurtado's representation that she anticipates filing that brief by 9/21/2005. After that date, no further extension will be granted.
|Sep 12 2005||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Sep 15 2005||Extension of time granted|
to 11/21/2005 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Arcelia L. Hurtado's representation that she anticipates filing that brief by 11/21/2005. After that date, no further extension will be granted.
|Nov 21 2005||Appellant's reply brief filed|
( 24,945 words; 92 pp.)
|Jul 31 2006||Marsden motion filed|
|Aug 16 2006||Marsden motion denied|
Appellant's request for substitution of counsel, filed on July 31, 2006, is denied.
|Feb 13 2007||Marsden motion filed|
appellant's "Declaration of Conflict of Interest."
|Apr 19 2007||Marsden motion filed|
appellant's "Declaration of Conflict of Interest Between Attorney and Client."
|May 4 2007||Filed:|
"Application for permission to file supplemental opening brief." Appellant's supplemental opening brief "under seperate cover" was received. (5,410 words; 20 pp.)
|May 10 2007||Order filed|
Appellant's "Application for Permission to File Supplemental Opening Brief" is granted. Any supplemental respondent's brief is to be served and filed on or before June 8, 2007.
|May 10 2007||Supplemental brief filed|
Appellant's supplemental opening brief. (5,410 words; 20 pp.)
|Jun 6 2007||Supplemental brief filed|
by respondent. (1,212 words; 6 pp.)
|Jun 13 2007||Marsden motion denied|
Appellant's request for substitution of counsel, filed on February 13, 2007, is denied.
|Jun 13 2007||Marsden motion denied|
Appellant's request for substitution of counsel, filed on April 19, 2007, is denied.
|Nov 25 2008||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the January calendar, to be held the week of January 5, 2009 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.
|Dec 1 2008||Received:|
letter dated November 26, 2008, from Deputy State Public Defender Arcelia Hurtado, requesting that oral argument be set after January.
|Jan 6 2009||Case ordered on calendar|
to be argued on Tuesday, February 3, 2009, at 2:00 p.m., in Sacramento
|Jan 13 2009||Filed:|
appellant's focus issue letter, dated January 8, 2009.
|Jan 15 2009||Received:|
appearance sheet from Deputy Attorney General, Russell A. Lehman indicating 30 minutes for oral argument for respondent.
|Jan 15 2009||Filed:|
respondent's focus issue letter, dated January 15, 2009.
|Jan 22 2009||Received:|
Exhbt 22 Transcript
|Jan 23 2009||Exhibit(s) lodged|
People's exhibit no. 22.
|Jan 29 2009||Exhibit(s) lodged|
People's exhibit no. 21
|Feb 4 2009||Cause argued and submitted|
|Apr 22 2009||Notice of forthcoming opinion posted|
|Apr 23 2009||Opinion filed: Judgment affirmed in full|
opinion by Chin, J -----joined by George C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.
|May 1 2009||Rehearing petition filed|
Appellant: Hawthorne, Carlos AnthonyAttorney: Office Of The State Public Defender-Sf by appellant. (1,156 words; 6 pp.)
|May 5 2009||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 22, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Jun 24 2009||Rehearing denied|
The petition for rehearing is denied.
|Jun 24 2009||Remittitur issued|
|Jun 29 2009||Received:|
copy of petition for a writ of certiorari. (16 pp. excluding appendices.)
|Jul 6 2009||Received:|
acknowledgment of receipt of remittitur from superior court
|Jul 9 2009||Received:|
letter from USSC, dated July 2, 2009, advising that a petition for writ of certiorari was filed on June 26, 2009 and placed on the docket July 2, 2009 as No. 09-5093
|Aug 14 2009||Exhibit(s) returned|
to the superior court.
|Aug 31 2009||Received:|
receipt for return of exhibits.
|Oct 7 2009||Related habeas corpus petition filed (post-judgment)|
|Oct 5 2009||Certiorari denied by U.S. Supreme Court|
|Jan 23 2004||Appellant's opening brief filed|
|Jan 24 2005||Respondent's brief filed|
|Nov 21 2005||Appellant's reply brief filed|
|May 2, 2010|
Annotated by gledeen
The men tied up the victims separately and went through the house, collecting items to take. Kristian heard both men walking towards the front door and defendant say, “F*** that. They're going to tell.” She then heard a set of footsteps coming back into the house and the masked man say, “Hurry up.” Kristian heard her mother scream “no,” followed by three gunshots. Defendant appeared in Kristian's bedroom with a gun. He directed her to turn her head away from him, shot her once in the back of the head, and then shot her again.
After Kristian thought the two men had left, she untied herself and called 911. While she was speaking to the 911 operator, Jerold Smith, a family friend, arrived and took the phone from her. She found her mother tied with a telephone cord and lying motionless on the bedroom floor. Her mother did not respond. When Kristian went outside to wait for the ambulance, she noticed that her mother's Lexus automobile was missing from the driveway.
The following evening, defendant made a 911 call. He told the operator that he had some helpful information about “some lady missing a Lexus,” which had been reported on television, and that he had found the keys to that car. Police officers responded to a radio broadcast regarding an auto theft and found the stolen Lexus car. The officers found defendant—who was still talking to the operator and holding the keys to the Lexus car—and arrested him. They discovered Kristian's silver necklace and bracelet in defendant's pocket.
Five days after the shootings, Sells died from three gunshot wounds to the head and base of her skull and neck. Kristian survived, with a bullet still lodged inside her head at the time of trial.
Shortly after defendant's arrest, Detectives Ray Morales and Bill Smith interviewed defendant. Eventually defendant admitted he shot the victims, but claimed that Williams “made” him after he threatened to “get” defendant if he did not shoot them.
The defendant unconvincingly relied solely on the fact that the prosecutor had used three of her 11 challenges to excuse African-American prospective jurors, without presenting any evidence that the prosecutor dismissed all or most of the prospective African-American jurors, or that there were no African-American jurors on the final jury.
Furthermore, the prosecutor presented compelling “race-neutral” reasons for dismissing the prospective jurors identified by the defendant, which further confirmed that there was not sufficient evidence to presume discrimination. The California Supreme Court agreed with the trial court that there was not sufficient evidence to support an inference or presumption that the prosecutor excused any juror on the basis of race.
In addition, “defendant claimed that his right to an impartial jury under the federal and state Constitutions was violated because the trial court erred in excusing two prospective jurors for cause.”
The trial court excused two prospective jurors for cause. A prospective juror may only be excused for cause on the basis of his or her views on the death penalty if those views would “prevent or substantially impair” that juror’s performance of his or her duties. In evaluating whether the trial court was right to excuse a juror challenged in this manner, a reviewing court must look at the juror’s statements. If they were “equivocal or conflicting,” the reviewing court will defer to the trial court’s judgment and uphold the juror’s dismissal.
The Supreme Court of California concluded that the trial court correctly excused the prospective jurors. The jurors had indicated either that they were not prepared to impose the death penalty or were undecided as to their ability to do so, and made equivocal and conflicting statements regarding their ability to render a death verdict.
In response to defendant’s claim that he did not understand his Miranda rights, the Court found that the police recitation of the defendant’s rights was simple and straightforward, and that the defendant was familiar with the process since he had prior experience with the justice system. The defendant also claimed that he believed he was detained and questioned only as a witness to the theft of the victim’s automobile. The Court found that “defendant's later statements during the interview reflected he clearly knew the significance of his being present with the car, especially since defendant later admitted having been present and having done the shooting.” The defendant further claimed that the police told him that he could go home if he cooperated, but the Court found that the videotape of the interview showed that the officers never gave him such assurance, directly contradicting and invalidating this claim.
The Court found that based on the “totality of the circumstances,” the defendant “knowingly and intelligently” (but impliedly) waived his Miranda rights. The Court also considered the defendant’s willingness to answer the officers’ questions after expressly affirming his understanding of his rights, his clarity and responsiveness, and the fact that he never requested a lawyer or tried to end the interview. In addition, the Court found that the police did not “resort to physical or psychological pressure or improper promises to elicit statements from defendant, and did not wear defendant down by improper interrogation tactics.”
Alleged Prosecutorial Misconduct
During cross-examination, the prosecutor showed that defendant continued to commit various disciplinary violations while undergoing treatment in the CYA for his ADD, undermining the expert’s testimony that the defendant’s ADD mitigated his behavior. The Court stated that when challenging defense testimony, the prosecutor can put the defense witness’s testimony in a “broader factual context” to show that it does not have the mitigating impact claimed by the defense. Since the prosecutor was challenging the expert’s opinion by putting it into a broader factual context, the Court found no misconduct.
In addition, the defendant alleged misconduct with regard to the prosecutor’s cross-examination of the defendant’s mother. In response to the mother’s testimony of her son’s good character, the prosecutor questioned her about her son’s prior disciplinary record and in particular, about a “90 day CYA diagnostic evaluation for petty theft.” The Court found that this questioning did not constitute misconduct because the prosecutor was entitled to present evidence of defendant’s bad character to contradict evidence of good character.
The defendant further alleged misconduct with regard to the prosecutor’s cross-examination of the defendant. In the first alleged instance of misconduct, the prosecutor asked whether the defendant thought that one of the testifying police officers had lied in his testimony. Technically, the Court found that since the defendant had not objected to this question on these grounds during the trial, he had forfeited the claim on appeal. However, the Court also found that the claim would fail on the merits as well. In this particular case, the Court found that the prosecutor was asking the defendant to explain why his testimony differed from that of the officer, and to clarify the defendant’s answer. The Court held that considering the context of the question and the prosecutor’s valid intent to clarify the defendant’s position, it did not constitute misconduct. In addition, the Court concluded that there was no indication that the prosecutor intentionally tried to elicit or present inadmissible evidence.
Additionally, the defendant alleged that “the prosecutor engaged in misconduct by asking argumentative and sarcastic questions.” However, the Court found that the prosecutor was entitled to confront the defendant with evidence that contradicted his testimony. In this case, the defendant claimed that his accomplice had unfairly labeled him as eager to commit the robbery, while the prosecutor properly presented evidence that supported the accomplice’s characterization of the defendant.
Finally, the Court held that since “a prosecutor's suggestion or insinuation that the defense has been fabricated is misconduct only when there is no evidence to support such a claim,” the inconsistencies between defendant’s and the victim’s testimony exonerated the prosecutor from this claim of misconduct.
Admission of 9-1-1 Tape
The California Supreme Court affirmed the judgment of the trial court.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Moreno, J., and Corrigan, J., concurred.
Appellant's petition for a rehearing was denied June 24, 2009.