Supreme Court of California Justia
Citation 46 Cal. 4th 67, 205 P.3d 245, 92 Cal. Rptr. 3d 330

People v. Hawthorne

Filed 4/23/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S064769

v.

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.


1

All further statutory references are to the Penal Code unless otherwise

indicated.

1


I. FACTS

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

daughter.

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

2

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

Kristian there.

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

3

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

4

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

5

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

nonculpability.

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.

6

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

7

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.”

II. DISCUSSION

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.)

8

“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

9

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


2

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.)

10

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

inference.

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

11

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.)


3

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.)

12

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

13

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

14

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

15

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.)

16

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.

17

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.

432.)

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?

18

“[Defendant:] Mmnh-mmnh.

“[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?

“[Defendant:] Yes.

“[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 . . . .

“[Defendant:] Okay.”

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

19

waived his rights to remain silent, and to the presence and assistance of counsel.

[Citation.]

“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.

[Citation.]

“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

636, 667-668.)

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

20

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

21

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

22

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.

23

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.

24

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

25

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

objections.

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

26

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

release.

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

27

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.

28

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

29

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


4

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.

30

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

volitional.

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,

31

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

32

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

disagree.

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

33

already aware, the trial court clearly engaged in the required weighing process.

Because we find no error, the related claim of prosecutorial misconduct

necessarily fails.

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

bicycle.

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:

34

“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?

“A. Yes.

“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

incorrect.

“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.

“[Prosecutor]: Pardon?

“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.

35

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

36

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

37

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

request.

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?

“A. Yes.

“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

38

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

39

“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

40

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

argument.

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).’

41

[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

section 190.3.

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

phase issues].)

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

42

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

43

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.

445.)

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,

44

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.)

45

III. DISPOSITION

We affirm the judgment.

CHIN, J.



WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.



46



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hawthorne
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S064769
Date Filed: April 23, 2009
__________________________________________________________________________________

Court:
Superior
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):

Arcelia Hurtado
Deputy State Public Defender
221 Main Street, Tenth Floor
San Francisco, CA 94105
(415) 904-5600

Russell A. Lehman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2280



Document Outline

Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 04/23/200946 Cal. 4th 67, 205 P.3d 245, 92 Cal. Rptr. 3d 330S064769Automatic Appealclosed; remittitur issued

HAWTHORNE (CARLOS ANTHONY) ON H.C. (S176951)


Parties
1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Russell A. Lehman, Deputy Attorney General
300 S. Spring Street, 5th Floor
Los Angeles, CA

2Hawthorne, 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 Authors
OpinionJustice Ming W. Chin

Disposition
Apr 23 2009Opinion: Affirmed

Dockets
Sep 5 1997Judgment of death
 
Oct 2 1997Filed certified copy of Judgment of Death Rendered
  9-5-97.
Oct 2 1997Penal Code sections 190.6 et seq. apply to this case
 
Feb 10 1998Record certified for completeness
 
Sep 4 2001Filed:
  appellant's application for appointment of counsel (IFP form).
Sep 5 2001Order 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 2001Date trial court delivered record to appellant's counsel
  3,432 pp. record
Sep 21 2001Appellant's opening brief letter sent, due:
  4-17-2002. (pursuant to Calif. Rules of Court, rule 39.57(b))
Nov 9 2001Counsel's status report received (confidential)
  from State P.D.
Jan 7 2002Counsel's status report received (confidential)
  from State P.D.
Mar 13 2002Counsel's status report received (confidential)
  from State P.D.
Apr 10 2002Request for extension of time filed
  To file AOB. (1st request)
Apr 24 2002Filed:
  Suppl. declaration in support of application for extension of time to file AOB.
Apr 30 2002Extension 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 2002Counsel's status report received (confidential)
  from State P.D.
Jun 14 2002Request for extension of time filed
  To file AOB. (2nd request)
Jun 21 2002Extension 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 2002Counsel's status report received (confidential)
  from State P.D.
Aug 14 2002Request for extension of time filed
  to file AOB. (3rd request)
Aug 19 2002Extension 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 2002Counsel's status report received (confidential)
  from State P.D.
Sep 19 2002Received 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 2002Request for extension of time filed
  To file appellant's opening brief. (4th request)
Oct 17 2002Extension 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 2002Counsel's status report received (confidential)
  from State P.D.
Nov 26 2002Record certified for accuracy
 
Dec 18 2002Request for extension of time filed
  To file appellant's opening brief. (5th request)
Dec 23 2002Counsel's status report received (confidential)
  from State P.D.
Dec 23 2002Extension 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 2003Record 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 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Feb 13 2003Counsel's status report received (confidential)
  from State P.D.
Feb 18 2003Extension 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 2003Motion filed (in non-AA proceeding)
  pro se "Declaration of conflict of interest between attorney and client."
Apr 8 2003Request for extension of time filed
  to file appellant's opening brief. (7th request)
Apr 8 2003Counsel's status report received (confidential)
  from State P.D.
Apr 10 2003Request 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 2003Motion to correct AA record filed
  "Supplemental Request to Correct the Record - Rule 12(c), Order, Stipulation of Counse."
May 28 2003Request for extension of time filed
  to file appellant's opening brief. (8th request)
May 28 2003Counsel's status report received (confidential)
  from State P.D.
Jun 2 2003Extension 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 2003Letter 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 2003Letter 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 2003Counsel's status report received (confidential)
  from State P.D.
Jul 28 2003Received letter from:
  the State Public Defender, dated 7-28-2003, in response to court's letter of 7-14-2003. Iconfidential)
Aug 7 2003Request for extension of time filed
  to file appellant's opening brief. (9th request)
Aug 7 2003Filed:
  letter from appellant, dated 8-7-2003, in response to court's letter of 7-25-2003.
Aug 12 2003Extension 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 2003Motion filed (in AA proceeding)
  by appellant to settle the record on appeal.
Sep 15 2003Filed letter from:
  respondent; Dep. A.G. T. H. Tran, advising of their concurrance with appellant's designated error and suggested correction.
Sep 24 2003Opposition filed
  by respondent to appellant's motion to settle the record.
Oct 1 2003Motion denied
  Appellant's "Motion to Settle the Record on Appeal," filed on September 15, 2003, is denied.
Oct 3 2003Counsel's status report received (confidential)
  from State P.D.
Oct 9 2003Request for extension of time filed
  to file appellant's opening brief. (10th request)
Oct 20 2003Extension 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 2003Record 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 2003Order 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 2003Counsel's status report received (confidential)
  from State P.D.
Dec 12 2003Request for extension of time filed
  to file appellant's opening brief. (11th request)
Dec 18 2003Extension 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 2004Appellant's opening brief filed
  (215 pp. - 60,161 words)
Feb 11 2004Respondent's brief letter sent; due:
  May 24, 2004.
Apr 20 2004Motion 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 2004Request for extension of time filed
  respondent. (1st request)
May 24 2004Extension of time granted
  to 7/23/2004 to file respondent's brief.
Jun 9 2004Motion denied
  Appellant's request for substitution of counsel, filed on April 20, 2004, is denied.
Jul 22 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Jul 28 2004Extension of time granted
  to 9/21/2004 to file respondent's brief.
Sep 17 2004Request for extension of time filed
  respondent's brief. (3rd request)
Sep 21 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (4th request)
Nov 22 2004Extension 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 2005Request for extension of time filed
  to file respondent's. (5th request)
Jan 24 2005Extension 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 2005Respondent's brief filed
  (50,799 words; 171 pp.)
Mar 17 2005Request for extension of time filed
  to file appellant's reply brief. (1st request)
Mar 21 2005Extension of time granted
  to 5/24/2005 to file appellant's reply brief.
May 17 2005Request for extension of time filed
  to file reply brief. (2nd request)
May 20 2005Extension 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 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jul 19 2005Extension 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 2005Request for extension of time filed
  to file appellant's reply brief. (4th request)
Sep 15 2005Extension 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 2005Appellant's reply brief filed
  ( 24,945 words; 92 pp.)
Jul 31 2006Marsden motion filed
 
Aug 16 2006Marsden motion denied
  Appellant's request for substitution of counsel, filed on July 31, 2006, is denied.
Feb 13 2007Marsden motion filed
  appellant's "Declaration of Conflict of Interest."
Apr 19 2007Marsden motion filed
  appellant's "Declaration of Conflict of Interest Between Attorney and Client."
May 4 2007Filed:
  "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 2007Order 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 2007Supplemental brief filed
  Appellant's supplemental opening brief. (5,410 words; 20 pp.)
Jun 6 2007Supplemental brief filed
  by respondent. (1,212 words; 6 pp.)
Jun 13 2007Marsden motion denied
  Appellant's request for substitution of counsel, filed on February 13, 2007, is denied.
Jun 13 2007Marsden motion denied
  Appellant's request for substitution of counsel, filed on April 19, 2007, is denied.
Nov 25 2008Oral 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 2008Received:
  letter dated November 26, 2008, from Deputy State Public Defender Arcelia Hurtado, requesting that oral argument be set after January.
Jan 6 2009Case ordered on calendar
  to be argued on Tuesday, February 3, 2009, at 2:00 p.m., in Sacramento
Jan 13 2009Filed:
  appellant's focus issue letter, dated January 8, 2009.
Jan 15 2009Received:
  appearance sheet from Deputy Attorney General, Russell A. Lehman indicating 30 minutes for oral argument for respondent.
Jan 15 2009Filed:
  respondent's focus issue letter, dated January 15, 2009.
Jan 22 2009Received:
  Exhbt 22 Transcript
Jan 23 2009Exhibit(s) lodged
  People's exhibit no. 22.
Jan 29 2009Exhibit(s) lodged
  People's exhibit no. 21
Feb 4 2009Cause argued and submitted
 
Apr 22 2009Notice of forthcoming opinion posted
 
Apr 23 2009Opinion filed: Judgment affirmed in full
  opinion by Chin, J -----joined by George C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.
May 1 2009Rehearing petition filed
Appellant: Hawthorne, Carlos AnthonyAttorney: Office Of The State Public Defender-Sf   by appellant. (1,156 words; 6 pp.)
May 5 2009Time 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 2009Rehearing denied
  The petition for rehearing is denied.
Jun 24 2009Remittitur issued
 
Jun 29 2009Received:
  copy of petition for a writ of certiorari. (16 pp. excluding appendices.)
Jul 6 2009Received:
  acknowledgment of receipt of remittitur from superior court
Jul 9 2009Received:
  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 2009Exhibit(s) returned
  to the superior court.
Aug 31 2009Received:
  receipt for return of exhibits.
Oct 7 2009Related habeas corpus petition filed (post-judgment)
  No. S176951.
Oct 5 2009Certiorari denied by U.S. Supreme Court
 

Briefs
Jan 23 2004Appellant's opening brief filed
 
Jan 24 2005Respondent's brief filed
 
Nov 21 2005Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 2, 2010
Annotated by gledeen

FACTS
In the early evening on August 25, 1996, 16 year old Kristian was in her bedroom and heard her mother, Vanessa Sells, 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 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.

PROCEDURAL POSTURE
A jury convicted defendant Carlos Anthony Hawthorne of the first degree murder of Vanessa Sells, the attempted murder of Kristian F., the first degree robbery of both Sells and Kristian, and first degree residential burglary. It also found true the special circumstance allegations of robbery murder and burglary murder. After a penalty trial, the jury returned a verdict of death, and the trial court imposed that sentence. This appeal is automatic.

DECISION
The defendant made a number of claims on this automatic appeal to the California Supreme Court. The first challenges were to the dismissal of prospective jurors prior to trial.

Juror Dismissal
The African-American defendant claimed the prosecutor improperly dismissed three African-American prospective jurors on the basis of race. As a matter of law, a prosecutor’s dismissal of jurors on the basis of any kind of group bias violates a defendant’s constitutional right to a jury drawn from a “representative cross-section of the community” and the right to the equal protection of the law under the 14th Amendment.

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.

Miranda Rights
At trial, the defendant claimed that he did not “voluntarily, knowingly, and intelligently waive his Miranda rights,” and moved to suppress evidence of his videotaped confession to the police. The trial court denied his motion, as it found that the defendant had impliedly waived his Miranda rights, and played a redacted copy of his videotaped statement for the jury. On this appeal to the California Supreme Court, the defendant challenged the trial court’s decision to deny his motion to suppress the tape.

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
The defendant claimed the prosecutor committed misconduct during the cross-examination of the defense expert Dr. Adrienne Davis by questioning her in front of the jury about defendant’s prior disciplinary history, including psychological and behavioral treatment in the custody of the California Youth Authority (CYA). Technically, the Court found that the defendant forfeited this claim by not raising the objection at the trial, but the Court also found that the defendant would have lost this claim on the merits anyway. The Court reasoned that the prosecutor questioned the defense expert about the defendant’s prior record of treatment solely to rebut the expert’s contention that the defendant did not act intentionally in this case because of his attention deficit disorder (ADD).

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 defendant also contested the admission of the 9-1-1 tape as evidence of the impact of the crime on the victims during the penalty phase of the trial. Despite the defendant’s objection during trial, the court allowed the 911 tape to be played for the jury during the victim’s testimony. The Court determined that the 9-1-1 tape was “not so inflammatory as to have diverted the jury's attention from its proper role or invited an irrational response.” It was not “so unduly prejudicial as to render the trial fundamentally unfair,” and so could be admitted to show the harm caused by the defendant’s actions.

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.