Supreme Court of California Justia
Docket No. S037302
People v. Hinton

Filed 1/26/06



Plaintiff and Respondent,




Los Angeles County

Defendant and Appellant.

Super. Ct. No. TA011942

A Los Angeles County jury convicted defendant Eric Lamont Hinton of the

first degree murders of Landis Barnes, Albert Brown, and Tenoa Stevenson;

selling a substance in lieu of a controlled substance, while personally armed with a

firearm; and attempted robbery, with personal use of a firearm. (Pen. Code,

§§ 187, subd. (a), 664/211, 12022, subd. (a), 12022.5, subd. (a).)1 The jury also

found true the burglary-murder, robbery-murder, and prior-murder-conviction

special circumstances as to these three murders as well as a multiple-murder

special circumstance. (§ 190.2, subd. (a)(2), (3), (17)(A) & (G).) After a penalty

trial, the jury returned a verdict of death. The court denied defendant’s motions

for a new trial (§ 1181) and to modify the penalty verdict (§ 190.4, subd. (e)) and

sentenced defendant to death.


All further statutory references are to the Penal Code unless otherwise



This appeal is automatic. We affirm the judgment.


On May 24, 1988, Landis Barnes, Albert Brown, and Brown’s cousin

Tenoa Stevenson were shot in a Best Western motel room in Monterey Park

during a drug deal. Barnes and Brown died at the scene. Stevenson managed to

stagger outside but was chased by two men in a silver BMW, one of whom exited

the vehicle to pursue him on foot and shoot him again, fatally, in a nearby used car


Maribelle Santiago, who worked as a “runner” for Stevenson and who

testified under a grant of immunity, identified defendant and Steve Hicks as

having been with Barnes, Brown, and Stevenson at the motel shortly before the

murders. Joel Stephen Cunningham, a convicted felon who also testified under a

grant of immunity, confirmed that defendant and Hicks were in the motel room

with Barnes, Brown, and Stevenson when the shooting started. Brett Johansen,

who had just purchased some groceries at a nearby market, witnessed two men in

a BMW chase Stevenson down. Johansen’s description of the BMW’s driver was

consistent with Hicks’s appearance; his description of the passenger—and

shooter—was consistent with defendant’s appearance.

After a series of false statements to police following his arrest, defendant

eventually admitted being in the motel room with Hicks during the drug

transaction when the shooting started, but claimed Hicks was the shooter. He also

admitted pursuing Stevenson in the BMW, but claimed he did so only because

Hicks held him at gunpoint. He denied shooting anyone and claimed that Hicks

alone shot and killed Barnes, Brown, and Stevenson, using two different guns.

After these police interviews, defendant was released. On August 6, 1989,

he murdered Dwayne Reed at a gas station in Los Angeles. Defendant was

convicted of this murder, which was the basis for the prior-murder-conviction


special circumstance, on June 5, 1992. He was convicted of the Barnes, Brown,

and Stevenson murders and sentenced to death on February 25, 1993.

Murders of Barnes, Brown, and Stevenson

In May 1988, Tenoa Stevenson asked his friend Joel Stephen Cunningham

for help in finding a supplier of kilo-size quantities of cocaine. Cunningham

thought immediately of Landis Barnes, whom he had met a few days earlier. At

that time, Barnes had said he “had friends who could produce kilos of cocaine.”

Cunningham introduced Barnes to Stevenson and Stevenson’s cousin, Albert

Brown. Stevenson said he wanted to buy five kilos. Barnes said he would need to

find out the details—such as the price, the supplier, and the time and place of the

transaction—from “his people” and then arrange another meeting.

The next day, Barnes confessed to Cunningham that he was “having

problems connecting with the people that he gets his answers from” and suggested

they cruise the neighborhood to try to find “the person that [they] were looking

for.” Barnes explained that his suppliers would not allow him to deliver the

cocaine and that the cocaine would be delivered “personally” by these suppliers.

Barnes and Cunningham drove around Lynwood until Barnes pointed out

defendant and said, “That’s him over there.” Barnes stopped the car and got out to

talk to defendant while Cunningham stayed in the car. When Barnes returned

from talking with defendant, he told Cunningham that “things are going to work

out.” Barnes called Stevenson, told him he could supply four kilos (instead of the

five requested), and asked where he wanted the transaction to take place. After

Barnes hung up, he told Cunningham that Stevenson had asked to meet the next

day at a gas station in the Crenshaw area. Cunningham was to receive $8,000 for

his role in introducing the parties, and an additional $500 per kilo from Stevenson

if it worked out well.


Cunningham, Stevenson, Brown, and Barnes waited at the gas station the

next day, but no one showed up with the drugs. The principals then arranged to

meet at 11:00 p.m. the next night, May 24, 1988, at a 7-Eleven in Monterey Park.

When Cunningham arrived at the 7-Eleven, Stevenson and Brown were

sitting in Stevenson’s black dually truck. After Barnes drove up in his BMW,

defendant and Hicks arrived in defendant’s Volkswagen Beetle. Defendant spoke

first to Barnes and then to Stevenson. It appeared to Cunningham that defendant

was directing Barnes in the transaction. Stevenson told defendant that it was not

“cool” to conduct the transaction in the parking lot and suggested they go instead

to the nearby Best Western motel. After Hicks transferred a plastic shopping bag

of wrapped packages from defendant’s Beetle to Barnes’s BMW, defendant and

Hicks got in Barnes’s car, Cunningham got in his Jeep, and they all followed

Stevenson to the motel. Barnes obtained a key from the motel office, opened the

room, and entered it. Cunningham, Stevenson, and Brown (who carried a bottle of

Clorox bleach to test the purity of the cocaine) followed.

Barnes went back outside to see what defendant and Hicks were doing.

They said they wanted to see the money, so Stevenson called his “runner,”

Maribelle Santiago, and asked her to come to the motel. (Stevenson had

previously given Santiago a black nylon tennis bag with $57,000 in cash.)

When Santiago drove up, Stevenson and defendant walked up to her car.

Defendant said he wanted to see the money. Stevenson said he would show it to

him and unzipped the bag. Stevenson tossed one bundle of cash—$5,000—into

Maribelle’s car and took the bag, saying, “Go around. I’ll call you to come back.”

When Stevenson entered the room, Cunningham asked, “Is our girl here?”

Stevenson replied that he had sent her back. A short time later, defendant and

Hicks entered the room. Defendant was carrying the shopping bag with yellow

wrapped packages inside. He placed the bag on the dresser near the Clorox bottle.


Barnes and Brown set to work to test the cocaine, while defendant and Hicks stood

near the door.

Before the test could be completed, Cunningham heard gunfire. He

immediately rolled off the bed onto the floor. Stevenson screamed and landed on

top of Cunningham. Cunningham heard two quick shots, then six to eight more

shots, followed by the sound of footsteps running out the door. Stevenson got up

and exited the room, leaving blood on Cunningham’s shirt. When Cunningham

got up, he saw Brown sprawled halfway off the bed and Barnes on the floor. Both

had been shot. He went to the door to look for Stevenson and saw Barnes’s BMW

leaving the motel driveway instead. Cunningham went back in the room to gather

up his ring and his car keys and drove home in his Jeep. Before leaving, in “a kind

of panic,” he dropped the yellow wrapped packages into the trash can in the room.

Cunningham figured that if the shooters had left the packages in the room, they

did not contain cocaine.

Cunningham was correct. Police testing revealed that the powder in the

wrapped packages did not contain any controlled substance.

Meanwhile, Brett Johansen, who had been picking up some groceries at the

nearby Hughes Market, heard four “muffled booms” and, shortly thereafter, saw

Stevenson run out of the motel parking lot. Stevenson was yelling, “Somebody

help me. Please help me,” and trying to flag down a car for help. Johansen also

saw two African-American men in a silver BMW, tires screeching, come out of

the motel driveway towards Stevenson. Johansen, who was across Emerson

Avenue, backed up the hill behind the water machines to watch the events unfold.

The intersection was very well lit, and the water machines did not block his view

at all.

Some cars slowed down as though to help Stevenson, but they sped up and

fled when they saw what was going on. The BMW drove into oncoming traffic on


Emerson Avenue to chase Stevenson and try to cut him off. Stevenson reversed

field and fled, but the BMW executed a 180-degree turn and followed.

When a yellow station wagon slowed down, Stevenson ran up to the

driver’s window and asked for help. However, the BMW came sliding alongside

the station wagon, practically pinning Stevenson in between. The passenger

exited the BMW, with his gun in the air. The station wagon then took off, and

Stevenson ran away again. The passenger got back in the BMW, which continued

the pursuit. When the BMW cut Stevenson off again, he ran into a used car lot,

which had a 12-foot fence at the back. The passenger once again exited the BMW

and followed Stevenson into the used car lot. Stevenson pleaded, “Please don’t

kill me.” His shoulders were slumped, and it appeared to Johansen that he had

given up. The passenger reached out with his right hand and picked Stevenson up,

as if they were buddies, and straightened him up. The passenger pointed his gun

with his left hand at the center of Stevenson’s chest and shot him. Stevenson

dropped to the ground. The passenger went back to the BMW, which had been

waiting for him, and took off towards the freeway. Stevenson crawled towards the

street while Johansen called the police from a nearby gas station.

Although Johansen did not see the faces of the BMW’s occupants, he could

tell that the passenger was of average height, approximately six feet tall and 150 to

160 pounds. Defendant’s driver’s license indicated that he was six feet one inch

tall and 170 pounds. Johansen also described the passenger’s hair as being “about

an inch, inch and a half” long and “nappy”—as defendant’s hair was at the time.

Johansen testified that the driver was burlier than the passenger and had shorter

hair. This description was consistent with Hicks, who was five feet nine inches

tall and 310 pounds and had hair that was shorter than defendant’s.

Hicks, moreover, was right-handed. The parties stipulated that defendant

was left-handed.


Police Investigation

Officer Lori Fishburn of the Monterey Park Police Department arrived at

the intersection of Atlantic Boulevard and Emerson Avenue around midnight, one

to two minutes after receiving the dispatch. She was flagged down by Stevenson,

who came out of the used car lot and fell to the ground, bleeding. When Fishburn

asked what had happened, frothy blood came out of Stevenson’s mouth and then

he died. Johansen directed Fishburn to the Best Western motel, which was next to

the used car lot, and she followed the blood drops to room 120. The door was

open. Two African-American males, Landis Barnes and Albert Brown, were

dead. A Clorox bottle was on the dresser. There were bullet holes in the wall. A

white powdery substance packaged like cocaine was in the trash can. There was

no money in the room, other than the cash in the victims’ possession, and no black

athletic bag. Nor were there any guns.

Meanwhile, Maribelle Santiago had become concerned that Stevenson had

not called and decided to return to the motel. As she drove back, she saw

Stevenson’s body on the corner. She called Stevenson’s girlfriend and brother-in-

law while she watched from across the street and saw the police arrive.

Police investigators found expended bullets underneath the carpeting and

inside the wall of the motel room, a blood trail leading to a bullet near the motel

swimming pool, and a bullet in a puddle of blood in the used car lot. A firearms

expert examined the expended bullets and fragments and determined that at least

two different guns had been used in the motel room shooting.

An autopsy revealed that Albert Brown had suffered three gunshot wounds:

one in his head and two in his chest. The head wound had been caused by a

medium-caliber lead bullet. Stippling around the head wound indicated that the

gun had been fired within six to 18 inches of Brown’s face. The chest wounds

were caused by copper-jacketed lead bullets and exhibited no stippling. Landis


Barnes suffered a bullet wound to the brain, which was fatal, and two chest

wounds. Tenoa Stevenson suffered five gunshot wounds, three of them fatal.

The front chest wound exhibited markings consistent with a muzzle stamp.

During a police interview on June 1, 1988, Cunningham identified “Eric”

as having been present at the motel. Further police investigation uncovered

defendant’s last name. Cunningham then identified defendant’s photograph in a

“six-pack mug book show-up” and subsequently identified Hicks as well.

On June 8, 1988, police arrested defendant and interviewed him at the

Lynwood Sheriff’s station. Defendant denied being at the motel. He said that

Barnes had come by his house with what appeared to be four kilos of cocaine and

had offered him $3,000 to provide “protection” during the drug deal, but he had

refused to participate and heard later on the news that Barnes had been killed.

The next day, defendant was allowed to talk with his girlfriend, Tarsha

Smith, at the Monterey Park Police Department, but their conversation was

secretly taped. During this conversation, defendant discovered that Smith had

undermined his alibi by telling police that he had been at the motel during the

shootings. Defendant then requested to meet again with the police. During that

police interview, defendant admitted that he had not told the truth during the first

interview and offered a new account. He said that Barnes and a man named

“Steve”2 from Nickerson Gardens had asked him to accompany them to a drug

transaction and that Barnes had driven him to the motel and had rented a room.

Defendant denied ever entering the room and said he instead waited in a phone

booth across the courtyard while Barnes and some men who arrived in a black


When investigators asked defendant for “Steve’s” last name, defendant said

he thought he could obtain it if he was permitted to make some phone calls. After
some calls, defendant identified the man as Steve Hicks.


dually truck and a Jeep went into the motel room. He also said he fled after

hearing gunshots. Under further questioning, however, defendant admitted

entering the motel room to carry the drugs from Barnes’s car to the dresser.

Barnes then asked him to act as a lookout. After defendant heard the gunshots, he

saw one man run out of the motel room and drive off in Barnes’s BMW. He

denied seeing Santiago arrive with the money and denied driving off in the BMW.

Later in the interview, defendant admitted that he had stayed in the motel room

until the “girl” drove up with the money; that he had left when Stevenson and the

others discussed how to test the cocaine’s purity; that one man drove off in the

Jeep and one in the BMW after the shots were fired; and that he took the bus

home. He denied stopping at the 7-Eleven or accompanying Stevenson to

Santiago’s car. He also denied being in Barnes’s BMW.

After admitting that he still had not told the police the truth, defendant said

that he had seen the four wrapped packages in the trunk of Barnes’s car the night

before the murders; that Hicks had started shooting when Barnes cut into one of

the packages to test the cocaine; that Hicks had used two guns, a chrome one and a

blue steel one; that Hicks had made him drive Barnes’s BMW back to Lynwood;

and that Hicks had only then told him the packages contained flour, not cocaine.

But, under further questioning, defendant claimed that Barnes had offered him

$3,000 to assist in a drug deal, which he had declined because he did not have a

gun; that the next night Barnes nonetheless picked him up and brought him to a 7-

Eleven, where he saw Cunningham in a Jeep and two other men in a black dually

truck; that they all went to the Best Western motel, where Barnes rented a room;

and that Hicks told him at that point the packages contained flour. When Barnes

was about to cut open the packages, Hicks jerked defendant backwards, pulled out

a gun, and started shooting. Brown was the first one hit, then Cunningham fell to

the ground, followed by Stevenson. During the volley of shots, Hicks pulled out a


second gun, a chrome revolver. Defendant walked towards Barnes’s BMW, since

he still had the keys from opening the trunk, but Hicks got in the passenger’s side

and told defendant to get in the car and drive. On the way out, they saw Stevenson

running on the street. Hicks ordered defendant to follow Stevenson and try to cut

him off, and defendant did so. Eventually, Hicks got out of the car and chased

Stevenson into a used car lot. Defendant said he knew Hicks from the


On June 15, 1988, defendant again waived his Miranda3 rights and gave yet

another statement. In this one, he said that Barnes came to his house the night

before the murders and showed him the four wrapped packages in the trunk; that

they had a conversation as to whether the packages looked authentic; and that they

then rewrapped them with duct tape. He claimed that when he and Hicks were

retrieving the kilos from the trunk of Barnes’s car at the motel, Hicks said that he

was “fixing to jack those niggers.” Defendant also stated that after the shooting,

Hicks pointed the gun at him and said, “Drive the car, and do as I say, and you

will not get hurt.” Then, when Hicks saw Stevenson running away from the

motel, he said, “Drive and get him.”

Defendant told the police that he had previously been untruthful because he

was afraid of what Hicks might do to him or his family. But when he was

confronted by Cunningham’s statements, he eventually corroborated everything,

except “that he did not admit to having a gun in his hand.”

On August 8, 1989, Detective Larry Kallestad of the Los Angeles Police

Department received a phone call from a woman identifying herself as Eula

Roberson, who left her address and phone number. Roberson said she had some


Miranda v. Arizona (1966) 384 U.S. 436.


information to convey to police detectives. In particular, she said that she had

spoken to “E Money,” who had admitted killing three people in Monterey Park.

When Kallestad asked whether she knew this person by any other name, she

replied, “Eric.” She asked to be picked up in an unmarked car and interviewed

somewhere other than her home.

At trial, Roberson denied telling police that “E Money” had admitted

killing three people in Monterey Park and denied that she had ever had a

conversation with defendant about any murders in Monterey Park. On the other

hand, Roberson lived in Lynwood, knew defendant from the neighborhood, and

admitted that defendant and Barnes often visited her nephews and son. Hicks, too,

visited from time to time. She denied knowing defendant by the name “E

Money,” but admitted calling the police in August 1989, leaving her name,

address, and phone number, and asking to be interviewed away from her house.4

She also admitted that defendant was the only “Eric” she knew.

Defense Case

Defendant, who was 18 at the time of the murders, testified at trial.

Defendant said that he had known Barnes for 10 years and had known Hicks for

five, although he had generally tried to steer clear of Hicks.

Defendant said that Barnes came to his house on the evening of May 23,

1988, to ask defendant to transport the goods for a drug deal. Cunningham was

also present, but defendant did not know who he was at that time. Defendant,

himself a drug dealer, told Barnes to come back when he was ready. Barnes

returned around 4:00 p.m. the next day and told defendant the deal was still “on”

for that night and said he would pay defendant $3,000 for transporting the drugs.


The record does not reflect whether this interview ever took place.


When defendant asked why Barnes wanted him to drive his Beetle, Barnes

explained that an African-American male driving a BMW, like Barnes’s car, was

more likely to be pulled over than an African-American male driving a Beetle, like

defendant’s car. Barnes showed defendant the wrapped packages in the trunk.

They looked “funny” to defendant and felt softer than other kilos he had seen.

Barnes said they had been opened once and needed to be rewrapped.

Barnes returned to defendant’s house around 10:30 p.m. Defendant asked

whether Barnes had a gun. Barnes said he did not. Defendant said he was not

going to go, but Barnes said “everybody knows one another, and it’s not like that.”

When defendant came outside, he saw that Hicks was in Barnes’s car and assumed

that Hicks must be the supplier of the drugs. Barnes brought the wrapped

packages over to defendant’s Beetle and drove off. Defendant followed.

When they arrived at the 7-Eleven, Barnes parked next to Stevenson and

Brown, who were next to Cunningham’s Jeep. Barnes got out to talk to

Stevenson, while defendant stayed in his car. Hicks and Barnes then came to

defendant’s car and told him that Stevenson wanted to conduct the transaction at

the motel. Barnes told defendant to leave his car at the 7-Eleven and to ride with

Cunningham. Hicks took the wrapped packages out of the car.

During the ride with Cunningham to the motel, Cunningham told defendant

that if they kept doing business together, defendant would make a lot of money.

After Barnes got the room key from the office, he entered room 120, followed by

Stevenson, Brown, and Cunningham. Hicks remained inside Barnes’s BMW,

while defendant stood in front of it. After Barnes conferred separately with Hicks

and Stevenson, Stevenson said he needed to make a phone call. When he came

back, he said the money was “on the way.” A car then pulled up, and Stevenson

talked to the woman who was driving. Stevenson pulled out a black bag of

money, showed it to Barnes, then put it back in the car. After the car left, Barnes


gave defendant his car keys to take the wrapped packages from the trunk to the

motel room.

Defendant set the bag on the dresser. Brown and Barnes were discussing

who was going to test its purity. As the testing was about to begin, Hicks pulled

defendant back by his collar and shot Brown. Hicks had a black revolver in his

left hand, even though he was right-handed. Defendant turned around and ran

away as the gunfire continued. Defendant was heading towards the front of the

motel when he realized he had Barnes’s car keys, so he went back to the parking

lot. As he was opening the car door, Hicks jumped in the passenger side. He had

a different gun in his hand this time, a chrome one. He pointed the gun at

defendant and told him to drive. Defendant drove out of the motel lot, against

traffic, in pursuit of Stevenson, who was standing near a big yellow car. Hicks

made defendant pursue Stevenson in the car until Stevenson ran into the used car

lot, at which point Hicks got out of the car and told defendant to stay put. Hicks

returned to the car about 45 seconds later and directed defendant to drive to the 7-

Eleven, where defendant got into his own car and drove home. Defendant talked

on the phone to his girlfriend, Tarsha Smith, about what had happened until 5:00

a.m. He claimed he discovered the drugs were fake only when a friend told him so

after the incident.

Defendant admitted that he had been untruthful in his police interviews on

June 8 and 9, 1988, and that the officers had testified accurately at trial as to his

prior statements. He also admitted that he had known all along that “Steve’s” last

name was Hicks and that he had not needed to make any phone calls to discover

that fact. He further admitted leading police on a wild goose chase and falsely

claiming he had sold his Beetle when they asked to inspect it. He lied to the police

because he figured the less he told them, “the less they would know, and they


would just let me go.” Defendant also was impeached with his prior convictions

for murder, attempted murder, and assault with a firearm.

Defendant also admitted being untruthful with his girlfriend, Tarsha Smith,

in telling her that he did not know who the shooter was and in telling her, after his

initial police interview on June 8, that he had told the police everything he knew.

When Smith informed defendant that she had already told police that defendant,

contrary to his original statement, had been at the motel, defendant asked to meet

with police investigators again.

Smith testified that defendant and Barnes were friends.

The defense sought to impeach Cunningham’s testimony by reference to his

denial to police of any knowledge about Stevenson’s death when questioned on

May 25, 1988. The defense sought to impeach Santiago’s testimony by reference

to her initial statements denying any knowledge of what happened at the motel and

her description of herself in a police interview as Stevenson’s lover. And the

defense sought to impeach Johansen’s testimony by reference to his earlier

estimate that the BMW’s passenger was five feet seven inches tall and by

reference to the written report of the investigating officer, Detective David

Corrigan, that Johansen had said the passenger grabbed Stevenson with his left

hand and held the gun in his right.5

A defense investigator took photographs of the intersection of Atlantic and

Emerson on January 9, 1993, about four and one-half years after the crime. He

was three inches shorter than Johansen, and his photographs therefore did not


Corrigan explained that he spoke with Johansen for only fifteen minutes at

the scene, when things were “very hectic,” prepared his report 30 to 48 hours later,
and did not show the report to Johansen until December 1992, at which point
Johansen informed him the report was in error and that the passenger had shot the
victim with his left hand.


reflect what Johansen saw. The investigator nonetheless believed that Johansen’s

view could have been blocked by the water machines, cars in the parking lot,

vehicular traffic, and trees. Detective Corrigan, however, testified that the

structure surrounding the water machines had not been in existence at the time of

the murder, that the water machines themselves were much smaller at that time,

that there were no cars in the parking lot a few hours after the murder, that the

trees had been much smaller and were more like shrubs at the time of the murder,

and that there would have been less traffic around midnight, the time of the

murder. Indeed, a videotape Corrigan made the morning after the murder showed

that there were very few obstructions.

Penalty Phase

Around 3:30 p.m. on August 6, 1989, defendant approached Dwayne Reed,

who was filling up his car at a gas station at the corner of Imperial and Main in

Los Angeles. Defendant, who was carrying a towel in his hand, said he had heard

that Reed was going to “smoke” him. Reed replied, “It’s not like that. Everything

is cool.” Defendant then said, “I can’t trust you” and pulled a gun out from under

the towel. Reed tried to flee but tripped over the hose and fell. Defendant shot

Reed fatally in the head at point-blank range.

Reed’s aunt, Eula Roberson, had believed defendant and Reed were friends,

since defendant used to come over to her house once or twice a week to see Reed

and her son.

Mitigating Evidence

Members of defendant’s family testified about the family’s history and

defendant’s childhood.

Defendant’s mother, Diane Hinton, started running away from home when

she was 15. Diane and her mother did not get along well. Some family members

testified that Diane was promiscuous from a young age. Jeanette Dozier,


defendant’s great-aunt, testified that Diane claimed to have been a prostitute.

When Diane became pregnant with defendant at the age of 17, while she was still

in high school, her mother beat her with an extension cord. Diane’s aunt, Jeanette

Dozier, testified that Diane did not want to have the baby, once tried to abort the

pregnancy herself, and did not take care of defendant after he was born. That

responsibility fell to her mother, Jessie Compton, and her sister, Joanne Merritt.

Defendant never knew who his father was.

Diane was described as “mean” and told defendant that she did not want

him. Compton and Merritt, on the other hand, loved defendant “to death.”

Defendant’s needs were provided for, he never needed to get a job while in school,

and he was even given a Volkswagen Beetle as a high school graduation present.

When defendant was four years old, Diane married William Heard, who

regularly beat her. Although the beatings did not occur in front of defendant, he

saw her bruises and welts. Jessie Compton testified that Heard also beat

defendant, but defendant’s favorite aunt, Joanne Merritt, denied it. Diane, who

soon divorced Heard, also beat defendant when she had been drinking too much.

Compton testified that the beatings were so severe that defendant sometimes lost

consciousness, but no one ever took him to the hospital.

Defendant’s uncle, Donald Dennis, was stabbed to death when defendant

was 15 years old. Defendant’s great-aunt, Mae Rossum, thought Donald might

have been dealing drugs. Defendant had been very close to his uncle, who had

been a role model for him, and some family members testified that defendant

changed for the worse after Donald died. Others said that defendant did not

change that much. Carlos Hilliard, another uncle, testified he had a sense that

defendant was “going the wrong way” after Donald’s death. Defendant was

spending time with drug dealers, and Hilliard did talk with defendant about it.

Various family members testified that defendant and Barnes were good friends.


Diane was raped in early 1988. She stopped working and developed a

drinking problem but never told defendant what had happened.

Defendant went to church every Sunday when he was in elementary school.

When he was in high school and getting beaten up and having his lunch money

taken, Jessie Compton’s husband, Charles Compton, showed defendant how to

defend himself. Neither Diane nor her mother had ever known defendant to carry

a gun or to act in a violent manner. However, Diane said she had been told by

police that defendant had a gun on his person when he was arrested.

When defendant was 17, he took care of his great-uncle, Jim Rossum, who

had suffered a stroke. For about three months, defendant went to the Rossum

home and stayed each day for four hours while his great-aunt was at work.

Defendant was skilled at drawing and sketched a portrait of his six-year-old

daughter, Erica Hinton, for his mother’s birthday while he was in jail awaiting

trial. Erica testified that she loved defendant and did not want him to die.

Defendant had suffered only one disciplinary violation during his

incarceration, and that was for being in an unauthorized area.


On their juror questionnaires, six members of the venire who eventually

served on the jury answered something other than an unqualified “yes” to

Question 93C (“Do you believe that if a person is sentenced to death, he will

actually be put to death?”) or Question 93D (“Do you believe that if a person is

sentenced to life without parole, he will actually spend the rest of his life in

prison?”). Following Hovey6 voir dire—in which each prospective juror stated

that, in the event the case proceeded to a penalty phase, he or she could assume


Hovey v. Superior Court (1980) 28 Cal.3d 1.


that the punishment selected would actually be carried out—these six were

allowed to remain in the venire. Defendant, who challenged only one of these

prospective jurors for cause below, now alleges the trial court erred in failing to

excuse all six of these jurors for cause. He also claims that defense counsel was

ineffective in failing to exercise a peremptory challenge to remove one of these

jurors, that the trial court erred in failing to instruct the jury in the penalty phase to

assume that the punishment selected would be carried out, and that defense

counsel was ineffective in failing to request such an instruction at the penalty

phase. His claims invoke the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the federal Constitution. We reject these claims in their entirety.

As to defendant’s claim that the trial court erred in failing to excuse the six

jurors for cause, we note that, with one exception, defendant failed to challenge

these jurors for cause at trial. Accordingly, defendant failed to preserve any

appellate challenge to five of these jurors. (People v. Coffman and Marlow (2004)

34 Cal.4th 1, 48; People v. Seaton (2001) 26 Cal.4th 598, 634.) Although

defendant did challenge Juror K.B. for cause below, he nonetheless failed to

preserve this challenge for appeal. Defendant exercised only eight peremptory

challenges, leaving him with 12 remaining when he accepted the jury. (Code Civ.

Proc., § 231, subd. (a).) “ ‘To preserve a claim of error in the denial of a challenge

for cause, the defense must exhaust its peremptory challenges and object to the

jury as finally constituted.’ [Citation.] Defendant did neither.” (People v.

Hillhouse (2002) 27 Cal.4th 469, 487.)7


For the same reason, defendant failed to preserve for appeal his claim the

trial court erred in failing to excuse for cause two prospective jurors who did not
even serve on his jury. (People v. Hillhouse, supra, 27 Cal.4th at p. 487.) We also
reject this claim on the merits, since “ ‘[d]efendant could not possibly have

(footnote continued on next page)


Even if the claim were cognizable, defendant would not prevail. Each of

these six jurors stated that, in choosing between death and life imprisonment

without the possibility of parole, he or she could properly assume that the

punishment selected would actually be carried out. There is no conflict or

inconsistency between a juror’s statement of fact that the punishment selected may

not necessarily be carried out and the juror’s statement that, for purposes of the

trial, he or she would assume the punishment selected would be carried out.

(People v. Kipp (1998) 18 Cal.4th 349, 378.) The responses provided by each of

these jurors during voir dire thus supplied ample evidence of his or her

impartiality and capacity to serve.

We also reject, on this record, defendant’s claim that his attorney was

ineffective in failing to exercise a peremptory challenge against Juror K.B. once

the challenge for cause proved unsuccessful. “ ‘Because the use of peremptory

challenges is inherently subjective and intuitive, an appellate record will rarely

disclose reversible incompetence in this process.’ ” (People v. Freeman (1994) 8

Cal.4th 450, 485.) In this instance, we observe that Juror K.B. had himself been

the victim of an illegal police search. He also said that he would not be bothered

by viewing unpleasant photographs of the deceased, that he did not believe a

police officer’s testimony was necessarily more believable than that of any other

witness, and that he believed “mistakes do happen” in charging an individual with

a crime. (See People v. Bemore (2000) 22 Cal.4th 809, 839.)

(footnote continued from previous page)

suffered prejudice as a result of the court’s refusal to excuse them . . . .’ ” (Id. at
pp. 487-488.)


Defendant claims next the trial court erred in failing to instruct the jurors at

the end of the penalty phase to assume that the penalty selected will be carried out.

He acknowledges, as he must, that we have not required such an instruction in

every penalty phase because of the concern that such an instruction “may

unnecessarily raise questions in the jurors’ minds.” (People v. Kipp, supra, 18

Cal.4th at pp. 378-379.) He nonetheless urges that such an instruction should have

been given in this case because of the trial court’s awareness of the jurors’

concerns on this topic based on their responses to the jury questionnaire.

Although it would not have been improper to have so instructed the jury during the

penalty phase instructions (id. at p. 378), as defendant now urges, we find the trial

court did not abuse its discretion by ensuring the jurors were instead informed

during voir dire to assume that whatever penalty was selected would be carried


Defendant relies on People v. Hines (1997) 15 Cal.4th 997 (Hines) and

People v. Davis (1995) 10 Cal.4th 463 (Davis), but neither case helps him.

Indeed, in neither case was a cautionary instruction included among the penalty

phase instructions. In Hines, the jury submitted questions once deliberations had

already begun as to whether a sentence of death or of life imprisonment without

the possibility of parole could be reduced. (Hines, supra, 15 Cal.4th at p. 1071.)

The trial court consulted with counsel and then “correctly instructed the jury that

the Governor had the power to commute either a death sentence or a sentence of

life without possibility of parole, but that it would be ‘improper’ and ‘a violation

of your duty as jurors’ to consider the possibility of a pardon or commutation in

determining the appropriate penalty.” (Id. at p. 1073.) In Davis, the foreperson

submitted a note after the jury had been instructed (but before deliberations had

begun) as to whether either punishment, death or life imprisonment without the

possibility of parole, would actually be enforced. We found no error when the


court instructed the jury the next morning that it was to assume the punishment

selected would be carried out. (Davis, supra, 10 Cal.4th at pp. 546-548.)

What is significant in both cases for our purposes is that the trial court dealt

promptly with evidence that the jury had concerns whether either punishment,

death or life imprisonment without the possibility of parole, would actually be

carried out. Here, unlike in Hines and Davis, the trial court learned of the jurors’

concerns at an early stage, during voir dire. The jurors were then promptly

instructed, either by defense counsel or by the court itself, to assume that either

punishment would be carried out. (People v. Thompson (1988) 45 Cal.3d 86, 129

[“During voir dire virtually all the jurors were informed, either by defense counsel

or through general instructions from the court, that they should assume the

sentence they voted for, whether death or life without possibility of parole, would

be carried out”].) Indeed, several of the jurors also received an explanation why

the assumption was so important.

Moreover, nothing that occurred subsequently at the trial raised an issue as

to whether either punishment would actually be carried out. (People v. Hawthorne

(1992) 4 Cal.4th 43, 76.) Rather, the jury was instructed that it “must now

determine which of said penalties shall be imposed on the defendant”; that, in

doing so, it shall consider and be guided by the statutory aggravating and

mitigating factors; and that it was “not allowed to consider any other facts or

circumstances as the basis for deciding that the death penalty would be an

appropriate punishment in this case.” Also, both attorneys stressed the gravity of

the jury’s decision. Under these circumstances, the trial court did not abuse its

discretion in responding to the jurors’ concerns during voir dire rather than waiting

until the jury instructions at the end of the penalty phase. (See People v. Smithey

(1999) 20 Cal.4th 936, 1009 [trial court “has discretion to determine what

additional explanations are sufficient to satisfy the jury’s request for


information”]; State v. Anderson (Conn. 2001) 783 A.2d 517, 521-523; cf. Penry

v. Johnson (2001) 532 U.S. 782, 799-801 [expressing skepticism that

“convoluted” statements during voir dire could cure conflicting sets of


For the same reason, we reject defendant’s claim that trial counsel was

constitutionally ineffective for failing to request the jurors be reinstructed at the

end of the penalty phase. Additionally, as stated above, counsel may well have

wanted to avoid highlighting the possibility that a death sentence might not be

carried out. (People v. Kipp, supra, 18 Cal.4th at pp. 378-379.)


A. Alleged Prosecutorial Misconduct

Defendant contends that prosecutorial misconduct “permeated the guilt

phase trial” in violation of his due process right to a fair trial, privilege against

self-incrimination, right to an impartial jury, and right to a reliable determination

of guilt under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution and article I, sections 1, 7, and 15 of the state Constitution.

“A prosecutor’s conduct violates the federal Constitution when it ‘infects

the trial with such unfairness as to make the conviction a denial of due process.’

(People v. Morales (2001) 25 Cal.4th 34, 44; accord, Darden v. Wainwright

(1986) 477 U.S. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.)

‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair

is prosecutorial misconduct under [California] law only if it involves the use of

deceptive or reprehensible methods to attempt to persuade either the trial court or

the jury.’ (Morales, at p. 44.) In general, ‘ “ ‘a defendant may not complain on

appeal of prosecutorial misconduct unless in a timely fashion—and on the same

ground—the defendant [requested] an assignment of misconduct and [also]

requested that the jury be admonished to disregard the impropriety.’ ” ’


[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1184-1185.) “In the

absence of a timely objection the claim is reviewable only if an admonition would

not have otherwise cured the harm caused by the misconduct.” (People v.

Gutierrez (2002) 28 Cal.4th 1083, 1146.)

1. Opening Statement

Defendant argues first that the prosecutor’s opening statement was

improper in that it referred to inadmissible hearsay statements by Barnes and

Stevenson, misstated what the evidence would show, and was unduly

argumentative. We disagree. As to Barnes’s and Stevenson’s out-of-court

statements, the trial court appropriately warned the prosecutor that the

admissibility of that evidence was “an issue that we will resolve in this

proceeding.” Although we agree with the trial court that “the safer and preferred

path is to avoid making those references” until the issue was resolved, we discern

no possible prejudice when, as defendant concedes, these out-of-court statements

were ultimately admitted under the coconspirator exception at trial. As to whether

the prosecutor misstated the legal significance of defendant’s admissions to police,

defendant forfeited the claim by failing to object on this ground below. Moreover,

the trial court’s instructions before opening statement and again before closing

argument that the attorneys’ statements were not evidence would have dispelled

any prejudice. (People v. Wrest (1992) 3 Cal.4th 1088, 1109-1110.) As to the

allegation that the prosecutor’s opening statement was unduly argumentative in

invoking felony-murder and aiding-and-abetting theories, we note that the trial

court sustained the defense objections and admonished the prosecutor. In

addition, the prosecutor’s argument essentially tracked what was proved at trial.

(U.S. v. Panza (2d Cir. 1984) 750 F.2d 1141, 1153.) When combined with the fact

that the jury was repeatedly instructed the attorneys’ statements were not evidence

and the fact that the objectionable comments and jury deliberations were separated


by more than six weeks, defendant could not have been prejudiced. (Frazier v.

Cupp (1969) 394 U.S. 731, 736.)

2. Cunningham’s Testimony

Defendant quotes several passages from the prosecution’s direct

examination of witness Cunningham and complains the prosecution engaged in

prejudicial misconduct because the trial court sustained 34 defense objections,

admonished the prosecution 10 times, ordered a response stricken on five

occasions, and held nine sidebar discussions. But the critical inquiry on appeal is

not how many times the prosecutor erred but whether the prosecutor’s errors

rendered the trial fundamentally unfair or constituted deceptive or reprehensible

methods to attempt to persuade the jury. Defendant makes no effort to describe

the unfairness or deceptiveness of the prosecutor’s conduct, and our own review

does not detect any.

The trial court sustained the defense objection to Cunningham’s statement

that he “figured these people I didn’t know were shooting at us” and ordered it

stricken. Inasmuch as Cunningham admitted that he did not see who committed

the shooting, the jury would not have interpreted this statement as evidence that

defendant (as opposed to Hicks) was the shooter. We also presume the jury

obeyed the trial court’s admonition to disregard this response. (People v. Michaels

(2002) 28 Cal.4th 486, 528.)

Nor do we find it fatal that the prosecutor attempted, unsuccessfully, to

inquire into the subject matter of Cunningham’s conversation with Maribelle

Santiago two days after the murders. We presume the jury obeyed the trial court’s

instruction that questions posed by the attorneys are not evidence.

Finally, none of the questions to which the court sustained defense

objections of “asked and answered” could have prejudiced defendant.


3. Johansen’s Testimony

Over defense objection, the court permitted the prosecution to show

defendant’s photograph to witness Johansen for purposes of comparing the

hairstyle therein to that of the shooter Johansen observed at the scene. After

Johansen established that he never saw the shooter’s face but that his hair was

“nappy,” the prosecutor asked “How would you characterize the defendant’s hair

as it is today?” Johansen replied, “It looks a little better kept today, but it’s still

kind of nappy.” Defendant did not object to this response, nor did he object when

the prosecutor prefaced his next question by saying, “Now, you said that his hair

appears to be ‘better kept today.’ ” Defendant did successfully object when

Johansen was subsequently asked whether the photographs of defendant “more

closely resemble the nappy hair of the shooter.” Ultimately, Johansen testified

that the hair in the photographs of defendant was “[n]appy” and “[u]nkempt,”

unlike the hair in the photographs of Hicks.

Because defendant failed to object to Johansen’s answer or the prosecutor’s

follow-up question, he has forfeited the right to complain on appeal about either

one. We also find no reasonable likelihood that the jury would have interpreted

either comment as an identification of defendant by Johansen. (See People v.

Samayoa (1997) 15 Cal.4th 795, 841.) Rather, Johansen plainly was comparing

defendant’s hair “today” to the hair in the photographs he had been shown.

Defendant also complains that the prosecutor’s examination of Johansen

began with “a series of leading questions” on foundational matters. He does not

assign any prejudice to this sequence, and none can be imagined. (See People v.

Hayes (1971) 19 Cal.App.3d 459, 470.)

4. Cross-examination of Defendant

In a lengthy discussion with extensive quotations from the record,

defendant argues that his own cross-examination “was replete with objectionable


questions, misstatements of evidence, and attempts to further introduce

inadmissible evidence through misrepresentation.” As defendant acknowledges,

the trial court in each instance sustained the defense objection and admonished the

prosecutor. For example, the trial court corrected the prosecution’s assertion that

defendant had been dealing drugs for a few years (it had actually been only 18

months); deemed argumentative the prosecutor’s assertion that defendant had lied

when he told Barnes he was willing to be the driver despite not being sure he was

even going to participate in the transaction; and deemed speculative the

prosecutor’s question whether defendant had told the police that people in the

neighborhood were blaming him for Barnes’s murder. We find no reason to doubt

the jury followed the court’s instructions distinguishing between evidence and

counsel’s questions (People v. Mayfield (1997) 14 Cal.4th 668, 755), and (with

only two exceptions, discussed below) defendant does not even offer any. Instead,

he complains that if such instructions are deemed sufficient, then “as long as the

prosecutor did not get away with his misconduct, there can be no prejudicial

error.” If by “get away” with misconduct, defendant means that the prosecutor’s

actions did not render the trial fundamentally unfair or result in a miscarriage of

justice (see People v. Hill (1998) 17 Cal.4th 800, 844), then he is correct.

Whatever methods a trial or appellate court might otherwise use to bring to heel a

recalcitrant or incorrigible prosecutor, the federal Constitution does not require

(and the state Constitution does not permit) the reversal of a criminal conviction

unless the misconduct deprived defendant of a fair trial or resulted in a miscarriage

of justice. (See People v. Bolton (1979) 23 Cal.3d 208, 214.) Here, as the trial

court explained in denying defendant’s motion for a mistrial, the prosecutor’s

questions were not improper “over and above being in violation of the Evidence


Two portions of the cross-examination merit closer attention, however.


In exploring whether defendant could have obtained a gun after Barnes

invited him to participate in the drug deal, the prosecutor asked whether defendant

could have obtained a gun in his neighborhood. Defendant agreed that he could

have done so. The prosecutor then asked whether defendant could have obtained a

gun in “the area of [his] car” and, when defendant said, “no,” asked whether

defendant kept a gun in his car, had ever kept a gun there, and whether a gun had

been found in his car when he was arrested. At this point, the defense objected,

and the parties conferred at sidebar. The court observed that “there has to be some

evidence of the fact there was a gun in the car when he was arrested . . . for you to

be asking these questions” and asked for an offer of proof. After reviewing the

arrest report, defense counsel pointed out that the gun had actually been recovered

from defendant’s person. The court granted the defense motion to strike and

informed the jury that “the questions and answers related to a gun being found in

the defendant’s car have been stricken. You are instructed to disregard them as

though they were never asked or answered.” Although the prosecutor plainly

erred in posing the question, defendant was not prejudiced. Not only was the jury

promptly instructed to disregard the questions and answers, but defendant himself

admitted that a gun had been “available” to him “at a moment’s notice.”

Defendant also complains that while inquiring about his interview with

police on June 9, 1988, the prosecutor asked, “And you are saying, now, that all

those statements you gave were lies?” Defense counsel objected on the ground

that it misstated the evidence, in that “a great number of statements made in the

course of those interviews were perfectly true.” The trial court agreed that the

police witnesses had testified “that some of the statements were truthful” and that

characterizing them “in the argumentative way you have been doing with this

witness is not appropriate. Stop it, now.” When cross-examination resumed, the

prosecutor established without objection that defendant told the police “a whole


lot of lies.” The difference between the hyperbolic accusation that “all” of

defendant’s statements were lies and defendant’s concession that he told a “whole

lot of” lies could not have been prejudicial.8

5. Doyle Error

Defendant gave statements to police during an initial interview on the

morning of June 8, 1988, a lengthy interview on June 9, and an interview on June

15. The prosecutor elicited this sequence and the fact that, in each instance,

defendant was advised of his Miranda rights and waived them. The prosecutor

also elicited from Detective Corrigan the fact that police attempted to interview

defendant on the afternoon of June 8, but defendant refused to waive his rights. At

a sidebar immediately following that exchange, defense counsel asked for a

mistrial on the basis of Doyle v. Ohio (1976) 426 U.S. 610 (Doyle). The

prosecutor explained that he did not plan to “comment” on the invocation and had

brought it up only because defendant “gave so many statements and he was

Mirandized so many times” that defense counsel had earlier indicated “they were

confused as to which instance this witness is talking about.” The trial court took

the motion under submission and instructed the prosecutor not to ask any further

questions in this area. Later that day, the prosecutor asked the jury be admonished

concerning the invocation, but defense counsel complained that such an

admonition would only exacerbate the problem.


Defendant also complains that the prosecutor attempted in rebuttal to ask

Detective Corrigan about the lighting conditions at the used car lot during a recent
visit, even though the court had instructed him at sidebar not to explore that topic.
Inasmuch as defense counsel’s objection was sustained before the prosecutor was
even able to finish the question, and the prosecutor immediately moved on to a
different topic, it is difficult to discern any prejudice.


Later, in reviewing this sequence of interviews with Lieutenant Maynard

Merkt, the prosecutor asked about the interview on the afternoon of June 8 and

whether Merkt had obtained any information from defendant at that time. Merkt

said, “No, sir.” At sidebar, defense counsel again asked for a mistrial. The

prosecutor said the question was merely for purposes of “clarification.” The court

observed there was no relevance “to an interview that didn’t happen because the

defendant invoked his privilege” and warned it would consider this latest

exchange in connection with the original motion for a mistrial.

At the hearing on the motion for a mistrial, the People conceded that Doyle9

applied, but argued that defendant suffered no prejudice. Defendant continued to

insist that a jury admonition “would simply aggravate the problem.” The trial

court denied the motion for a mistrial, expressing doubt that the jurors “are going

to do much with it,” and directed counsel not to mention, refer to, or question any

witness about defendant’s invocation again.

We agree that the error was harmless. Although the jury could in theory

have relied on defendant’s unwillingness to speak to the police on the afternoon of

June 8 to infer that he was fabricating a defense, there is no reasonable possibility

the jury actually did so, inasmuch as defendant gave police concededly false

versions of the circumstances surrounding the murders both before and after his

invocation. The problem with defendant’s trial testimony was not that the jury

heard that he once invoked his Miranda rights, but that he repeatedly provided in


Doyle, supra, 426 U.S. at page 618, held that “while it is true that the

Miranda warnings contain no express assurance that silence will carry no penalty,
such assurance is implicit to any person who receives the warnings. In such
circumstances, it would be fundamentally unfair and a deprivation of due process
to allow the arrested person's silence to be used to impeach an explanation
subsequently offered at trial.”


the other interviews untrue accounts of his involvement in the murders. Indeed,

defendant’s invocation of his Miranda rights was both cumulative of—and inferior

to—the other evidence indicating that he had fabricated the account he eventually

provided during police interviews and reiterated at trial. For that reason, and

because the prosecutor never again mentioned the invocation during trial or

closing argument (see U.S. v. Whitehead (9th Cir. 2000) 200 F.3d 634, 639), we

conclude that these two fleeting references could not have affected the jury’s

verdicts in this case. (People v. Earp (1999) 20 Cal.4th 826, 857-858; cf. Gravley

v. Mills (6th Cir. 1996) 87 F.3d 779, 788 [“From the beginning of its own case,

through the cross examination of the defendant, up until the culmination of its

final argument, the state consistently and repeatedly sought to make impermissible

references to Gravley’s silence after his arrest”].)10 For the same reason, we find

the trial court did not abuse its discretion in denying a mistrial. (People v.

Williams (1997) 16 Cal.4th 153, 251.)

6. Opinion Testimony That Defendant Lied During His Interrogation

Detective Merkt recounted the statements defendant made during the

lengthy interview on June 9, 1988. At the outset of that interview, defendant

admitted that the version he had provided the previous day was untruthful. In


Although the trial court had stated its intention to instruct the jury

concerning defendant’s invocation of his Miranda rights in conjunction with
CALJIC No. 2.60 (Defendant Not Testifying—No Inference of Guilt May Be
Drawn), the prosecutor and defense counsel agreed at the instruction conference
that CALJIC No. 2.60 need not be given. No mention was made of a special
instruction concerning defendant’s Miranda invocation, nor was such an
instruction given to the jury. At the hearing on the new trial motion, defense
counsel testified that their decision to forgo a cautionary instruction was tactical.
Accordingly, any claim arising from the omission of such an instruction is barred
under the invited-error doctrine. (People v. Davis (2005) 36 Cal.4th 510, 567.)
Defendant also could not have been prejudiced by the omission.


particular, he admitted that he had accompanied Barnes to a motel in Monterey

Park, but he claimed that he waited at a phone booth across the courtyard while the

other men entered the room. He also said he fled on foot after the shots were fired

and went home. When the prosecutor asked Merkt how he would characterize this

new account, defendant objected that the question was “vague.” After the trial

court overruled the objection, Merkt testified that he believed this statement, too,

was untruthful, in that it was inconsistent with the statement of other witnesses and

with defendant’s earlier statement. Defendant now claims it was misconduct for

the prosecutor to solicit inadmissible opinion testimony from Merkt concerning

defendant’s truthfulness.

Defendant, who neither objected to the prosecutor’s question on this ground

below nor moved to strike Merkt’s response, has forfeited the claim of

prosecutorial misconduct. (Evid. Code, § 353, subd. (a).) Even if we were to

assume the claim was cognizable and Merkt’s opinion concerning the truthfulness

of defendant’s statement was inadmissible (see People v. Stitely (2005) 35 Cal.4th

514, 546-547), defendant could not possibly have been prejudiced, inasmuch as he

himself admitted this version was untruthful.

7. Closing Argument

Defendant challenges several statements made by the prosecutor in closing

argument, but none of them evidences misconduct warranting a new trial. Indeed,

except for one instance (which is identified below), defendant forfeited these

claims by failing to object or request an appropriate admonition.

a. The prosecutor’s closing argument focused on two questions: whether

defendant knew “the dope was bunk” and whether defendant fired a gun. In

arguing that the jury must convict defendant of the felonies and the murders if it

answered either of these questions in the affirmative, the prosecutor adopted a

strategy that was not difficult to follow: If defendant knew the drugs were “bunk,”


then he would have anticipated a confrontation with the buyers as soon as their

testing discovered that fact, would have understood that he needed to seize their

money before they could they could test the drugs, would have recognized that he

and Hicks would be outnumbered by the other parties to the transaction, and

therefore would have relied on the use of force (whether his or Hicks’s) to

complete the robbery of approximately $50,000. Under this scenario, which

depended only on the lone controversial assumption that defendant knew the drugs

were “bunk,” defendant was guilty either as a direct perpetrator or as an aider and

abettor of all charged crimes. Similarly, if defendant fired his weapon, then—in

the absence of any evidence that he fired it in self-defense, that he was provoked

to fire it by circumstances completely unrelated to the drug transaction, or that any

of the murders were unrelated to the others—he must have been aware the drugs

were “bunk” and he was once again guilty as either a direct perpetrator or as an

aider and abettor of all the crimes. Thus, in neither instance did the prosecutor

contend that either of these facts alone warranted a conviction, and we find no

reasonable likelihood the jury understood the prosecutor to make such an

argument. (People v. Clair (1992) 2 Cal.4th 629, 663.) Rather, the prosecutor

argued that either fact, combined mainly with uncontroverted facts in the record

and inferences therefrom, would lead to a guilty verdict. This was not error.

b. Defendant complains next that the prosecutor impermissibly relied twice

on defendant’s prior convictions for murder, attempted murder, and assault with a

firearm to argue his bad character and propensity to commit the offenses charged.

We disagree with defendant’s characterization of the argument.

One of the themes of the prosecutor’s opening summation was that

defendant was a liar. To support that allegation, the prosecutor pointed out that

defendant had lied to the police several times, that he had lied to his girlfriend, and

that he had lied on the stand as to why he had lied to the police. Finally, the


prosecutor relied on defendant’s prior convictions, which had been admitted for

purposes of impeachment: “He changes his story constantly. You can’t believe

him. [¶] He says he didn’t have a gun and he didn’t shoot anybody. Yet, you

know that when he was on the stand, he admitted he had been convicted of

murder. [¶] He has been convicted of attempted murder, and he has been

convicted of assault with a firearm, and he tells you that he did not have a gun that

night and he didn’t shoot anybody? [¶] You cannot believe him, ladies and

gentlemen.” In light of the court’s instruction to the jury that a witness’s prior

felony convictions could be “considered . . . only for the purpose of determining []

believability,” it is not reasonably likely the jury interpreted the prosecutor’s

argument to suggest that defendant was guilty merely because of his prior

crimes—a conclusion bolstered by the failure of defense counsel to object to it.

Such an omission indicates that the potential for prejudice that defendant has now

identified “was not apparent to one on the spot.” (Lowenfield v. Phelps (1988) 484

U.S. 231, 240.)

In closing argument, the prosecutor again brought up defendant’s prior

convictions: “And finally, after further argument, [defense counsel] says, ‘Well,

actually, the reason he lied to the police is because . . . he’s scared of Steve Hicks,

and he didn’t want to incriminate him.’ [¶] Now, come on. This guy is not afraid

of Steve Hicks. He’s not afraid of Steve Hicks. The defendant is a convicted

murderer. He has been convicted of attempted murder. He has been convicted of

assault with a firearm. He’s not afraid of Steve Hicks. Steve Hicks is probably

afraid of him.” Once again, we are skeptical that the jury would have understood

the prosecutor to urge them to convict “because Hinton had murdered before and,

therefore, he must have murdered again.” Rather, the prosecutor was plainly

relying on the prior convictions to rebut defendant’s claim that he had acted under

the duress of Hicks’s threats. But, as defense counsel recognized by promptly


objecting, this exceeded the purpose for which the prior convictions had been

admitted, and the trial court sustained the objection. The court also instructed the

jury that the argument had been stricken and admonished them to disregard it. We

presume the jury followed the court’s instructions. (People v. Michaels, supra, 28

Cal.4th at p. 528.)

c. Defendant then complains that the prosecutor’s argument misled the jury

as to the burden and standard of proof. We disagree.

The prosecutor began by explaining the purpose of closing argument:

“You have actually heard all the evidence in this trial, and we’re now at closing

argument. And what happens at closing argument is, you will hear argument from

both sides as to whether or not they feel they have proven their case. [¶] . . . . [¶]

What we have in argument is whether or not the points have been proven, and

each side have [sic] proven.” Defendant, who failed to object below, now argues

the jury would have understood this to mean that the defense had the burden of

producing evidence. Yet this ignores the fact that the prosecutor at no point ever

argued that the defense had failed to prove its case, that he instead went “through

each and every element of each and every allegation, just to show that we have

proven our case,” and that the court instructed the jury repeatedly that the People

had the burden of proof. Although the question may be close, we do not believe

the jury could have misunderstood its task.

The prosecutor also advised the jury that “you want to make sure that each

and every allegation against the defendant has been proven to your satisfaction.”

The jury plainly would have understood this to mean that the crimes must be

proven to its “satisfaction” under the appropriate standard of proof, inasmuch as

the trial court had repeatedly instructed the jury as to the reasonable-doubt

standard and had even explained during voir dire the prosecutor’s burden to prove

“to your satisfaction beyond a reasonable doubt the truth of those charges.” This


was not error. (See also People v. Posey (2004) 32 Cal.4th 193, 208, fn. 6 [“the

United States Constitution demands that the state prove every element of a crime

beyond a reasonable doubt to the satisfaction of the jury”]; accord, Turner v.

United States (1970) 396 U.S. 398, 405.)

d. The prosecutor also called defendant a liar based on his admitted lies to

the police and to his girlfriend and argued, in light of those lies, that defendant had

lied on the stand. This was fair comment on the evidence. (People v. Earp, supra,

20 Cal.4th at pp. 862-863; CALJIC No. 2.21.2.) Contrary to defendant’s

assertions, the prosecutor never hinted that he had special information that

defendant was a liar or that defense counsel was complicit in defendant’s lies.

8. Cumulative Error

Although our review has uncovered prosecutorial misconduct during the

cross-examination of defendant and closing argument as well as Doyle error, the

errors are relatively few and, as discussed above, the prejudicial effect was in each

instance minimal to nonexistent. As the Attorney General points out, defendant’s

own statements narrowed the field of possible suspects to two people: defendant

and Hicks. Defendant’s claim of limited involvement was contradicted by

Cunningham and Santiago, neither of whom had any reason to enhance

defendant’s role over that of Hicks. Defendant’s height, weight, build, hairstyle,

and handedness was quite distinct from Hicks’s—and, for each characteristic,

Johansen’s eyewitness description of the shooter was consistent with defendant

and inconsistent with Hicks. Defendant’s claim that he had been forced at

gunpoint to cooperate with Hicks was additionally undermined by the fact that

Hicks let defendant, who was apparently the only surviving witness to the

murders, live. Finally, defendant gave numerous conflicting, untrue statements to

the police and made a confession to Eula Roberson.


The errors discussed above did not undermine the facts supporting

defendant’s guilt, nor has defendant explained how or why these errors in

combination warrant a new trial. We therefore reject defendant’s claim of

prejudicial misconduct. Because we find that defendant was not prejudiced, it

follows that defense counsel was not constitutionally deficient in failing to object

to the asserted instances of misconduct.

B. The Prior-Murder-Conviction Special Circumstance

Defendant was charged with a prior-murder-conviction special

circumstance arising from his June 1992 conviction for the murder of Dwayne

Reed. Prior to opening statements, defendant admitted the special circumstance

and the trial court informed the jury of the stipulation to its truth. The jurors later

returned a guilty verdict and a found true all of the special-circumstance


On appeal, defendant contends that the trial court erred in failing to obtain a

personal waiver of his right under section 190.1, subdivision (b) to have the truth

of the prior-murder-conviction special circumstance determined in a separate

proceeding following the guilt phase; that the trial court erred in failing to instruct

the jury sua sponte on the limited purpose of the prior murder conviction; that

defense counsel was constitutionally ineffective in allowing the jury to learn of the

prior murder conviction during the guilt phase; and that the use of a murder that

postdated the current crime to establish the prior-murder-conviction special

circumstance violated the due process and ex post facto clauses and the Fifth,

Sixth, Eighth and Fourteenth Amendments of the federal Constitution.

1. Lack of Personal Waiver

Section 190.1, subdivision (b) provides that when a death penalty

prosecution includes a prior-murder-conviction special-circumstance allegation,

the truth of that allegation shall be determined in a separate proceeding following


a finding of first degree murder by the trier of fact. Thus, a defendant may not be

forced to undergo a unitary trial of the separate issues of the defendant’s guilt of

first degree murder and the truth of a prior-murder-conviction special

circumstance, since such evidence may have an inflammatory effect on jurors who

are asked to determine a defendant’s guilt or innocence on a current charge of

murder. Yet, as we held in People v. Farnam (2002) 28 Cal.4th 107 (Farnam),

defendants may waive this statutory right “if they believe it is in their best interests

to do so.” (Id. at p. 146.) Farnam relied on the broad principle that “[a] defendant

may waive a right that exists for his or her own benefit, where such waiver is not

against public policy.” (Ibid.)

Defendant asks us to decide, though, not whether the statutory right may be

waived, but who may waive it. In Farnam, the defendant filed a written motion to

waive the separate proceeding, including his own declaration and that of his

attorney, and reiterated the waiver on the record in open court and under the

examination of the prosecutor. (Farnam, supra, 28 Cal.4th at pp. 145-148.) We

thus considered there only the validity of a personal waiver. (Id. at pp. 147-148.)

Here, by contrast, defendant stipulated to the truth of the prior-murder-conviction

special circumstance in open court and stated that he had discussed the effect and

consequence of the stipulation with counsel but did not personally waive the

statutory right to a separate proceeding. Defendant was, however, present when

the trial court announced its intention to advise the jury of the stipulation and then

did so. Although defendant failed to object at either point, he now contends that,

under Farnam, trial counsel was without power to waive his statutory right to a

separate proceeding on his behalf.

Defendant misreads Farnam. We upheld the waiver presented in that case

but nowhere suggested that a waiver could be effected only under identical

circumstances or, in particular, that counsel could not waive the right to a separate


proceeding on a defendant’s behalf. Nor will we announce such a rule here.

“Counsel may waive all but a few fundamental rights for a defendant.” (People v.

Riel (2000) 22 Cal.4th 1153, 1196.) The reason is that when, as here, the accused

exercises his or her constitutional right to representation by professional counsel,

“ ‘it is counsel, not defendant, who is in charge of the case. By choosing

professional representation, the accused surrenders all but a handful of

“fundamental” personal rights to counsel’s complete control of defense strategies

and tactics.’ ” (In re Horton (1991) 54 Cal.3d 82, 95.) Included in that narrow

exception are such fundamental matters as whether to plead guilty, whether to

waive the constitutional right to trial by jury, whether to waive the right to

counsel, and whether to waive the privilege against self-incrimination. (Ibid.,

citing cases.) “As to these rights, the criminal defendant must be admonished and

the court must secure an express waiver; as to other fundamental rights of a less

personal nature, courts may assume that counsel’s waiver reflects the defendant’s

consent in the absence of an express conflict.” (Ibid.)

Defendant insists that the statutory right to a separate proceeding on the

prior-murder-conviction special-circumstance allegation falls within this narrow

category of fundamental rights that cannot be waived by counsel, but his argument

lacks legal support. Unlike the fundamental matters listed above, the right to a

separate proceeding is merely statutory, not constitutional. Even assuming that

this right is fundamental, we see no reason to treat it differently than the decision

whether to testify or whether to present a defense at the guilt phase of a capital

trial, either of which may be waived by counsel alone, unless the court is aware of

an express conflict between counsel and defendant. (In re Horton, supra, 54

Cal.3d at p. 95.) Indeed, defendant has not shown that this tactical decision differs

materially from the decision during voir dire to test prospective jurors’ views of

the defendant’s prior felony convictions, which we have likewise deemed a


decision counsel is entitled to make without defendant’s permission. (People v.

Freeman, supra, 8 Cal.4th at p. 485.) In our view, the weighing of the possible

prejudice of presenting the prior murder conviction at the guilt phase against the

possible prejudice of the jury’s hearing of it for the first time thereafter (Farnam,

supra, 28 Cal.4th at p. 150) is a quintessential question of evidentiary strategy and

thus, at least in the absence of an express conflict that comes to the attention of the

trial judge, certainly within the attorney’s “general authority to control the

procedural aspects of the litigation and, indeed, to bind the client in these matters.”

(In re Horton, supra, 54 Cal.3d at p. 94.)11 The trial court thus did not err in

failing to secure an express personal waiver of the separate proceeding from



At the hearing on his new trial motion, defendant testified that he had been

unaware of his statutory right to a separate proceeding and that he would not have
agreed to the stipulation had he been informed of his right to bifurcate the prior-
murder-conviction special circumstance. The trial court, however, rejected his
testimony. Moreover, defendant nowhere contends that the trial court was or
should have been aware of any conflict that may have existed between him and his
attorneys on this point.

Defendant also argues that, regardless of the validity of the waiver of his

statutory right to a separate proceeding on the prior-murder-conviction special
circumstance, his admission of the truth of the prior-murder-conviction special
circumstance was not voluntary and intelligent. We disagree. As we explained in
People v. Howard (1992) 1 Cal.4th 1132 in discussing the failure to provide
specific admonitions of the rights surrendered by the admission of a prior-prison-
term allegation, the validity of the admission depends not on express admonitions
and waivers but on whether the admission was “voluntary and intelligent under the
totality of the circumstances.” (Id. at p. 1178.) Although the trial court here did
not enumerate the constitutional rights surrendered by defendant’s plea, we cannot
agree that this case presents a “[t]ruly . . . silent record” (People v. Mosby (2004)
33 Cal.4th 353, 361), inasmuch as defendant stated that he had discussed the
matter with his attorney and understood “the effect and consequence of admitting
that prior conviction.” (See In re Patricia T. (2001) 91 Cal.App.4th 400, 405.)
Moreover, defendant was indisputably aware of his right to a jury trial, right to
confront witnesses, and privilege against self-incrimination with respect to the

(footnote continued on next page)


2. Failure to Give Limiting Instructions Sua Sponte

Defendant contends the trial court violated his Fifth, Eighth, and Fourteenth

Amendment rights by failing to instruct the jury that the prior murder conviction

could not be considered as proof that defendant was a person of bad character or

had a disposition to commit crimes. Defendant had originally requested a limiting

instruction patterned after CALJIC No. 2.50 (Evidence of Other Crimes) but later

withdrew that request. The question here, therefore, is whether the trial court had

a sua sponte duty to instruct the jury on the limited purpose of the prior murder


“We have long since held that ‘in general, the trial court is under no duty to

instruct sua sponte on the limited admissibility of evidence of past criminal

conduct.’ ” (People v. Padilla (1995) 11 Cal.4th 891, 950.) Defendant relies on

what we have sometimes referred to as the “possibility . . . that there might be ‘an

occasional extraordinary case in which unprotested evidence of past offenses is a

dominant part of the evidence against the accused, and is both highly prejudicial

and minimally relevant to any legitimate purpose,’ ” and urges that this is such an

(footnote continued from previous page)

three other special-circumstance allegations alleged in the information, and was in
fact about to exercise those rights. He was therefore aware that those rights
attached to the prior-murder-conviction special-circumstance allegation. (Cf.
Mosby, supra, 33 Cal.4th 353, 362 [“In all of the cases just discussed a jury trial
on a substantive offense preceded the defendants’ admissions of prior
convictions,” italics added].) Finally, defendant was present in court when the
trial court explained to the jury venire that if defendant were found guilty of first
degree murder, the jury “will then be asked to find whether or not any of the
special circumstances which are charged in this case are true.” We therefore find,
under the totality of the circumstances, that defendant’s admission of the prior-
murder-conviction special circumstance was voluntary and intelligent. (See
Mosby, supra, 33 Cal.4th at p. 365.)


exceptional case. (Ibid.) We disagree. Defendant’s guilt was amply supported by

the eyewitness testimony of Cunningham, Santiago, and Johansen; the testimony

of Eula Roberson; and defendant’s own untruthful statements to police.

Defendant’s prior murder conviction was hardly a dominant part of the evidence in

this case and, far from being minimally relevant to any legitimate purpose, was

admissible for impeachment and essential to proving the prior-murder-conviction

special circumstance. Moreover, the jury was instructed in accordance with

CALJIC No. 2.23 (Believability of a Witness—Conviction of a Felony) that “[t]he

fact that a witness has been convicted of a felony . . . may be considered by you

only for the purpose of determining the believability of that witness.” (Italics

added; see also Farnam, supra, 28 Cal.4th at p. 151, fn. 22.) Unlike defendant, we

do not find it reasonably likely the jury would have failed to view first degree

murder as a felony. We therefore find that the trial court had no sua sponte duty to

further instruct the jury on the limited purpose of defendant’s prior murder


3. Alleged Ineffective Assistance of Counsel

Defendant argues that his trial attorneys were constitutionally ineffective in

three respects: in allowing the jurors to learn of his prior murder conviction

during the guilt phase; in failing to request a limiting instruction once the jury

learned of the prior conviction; and in failing to inform him of his right to a

separate proceeding on the prior-murder-conviction special circumstance under

section 190.1, subdivision (b).

To demonstrate ineffective assistance of counsel, a defendant must show

that counsel’s action was, objectively considered, both deficient under prevailing

professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S.

668, 687.) To establish prejudice, a defendant must show a reasonable probability

that, but for counsel’s failings, the result of the proceeding would have been more


favorable to the defendant. (Id. at p. 694.) “ ‘Reviewing courts defer to counsel’s

reasonable tactical decisions in examining a claim of ineffective assistance of

counsel [citation], and there is a “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” ’ [Citation.] ‘[W]e

accord great deference to counsel’s tactical decisions’ [citation], and we have

explained that ‘courts should not second-guess reasonable, if difficult, tactical

decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally

not deemed reversible, and counsel’s decisionmaking must be evaluated in the

context of the available facts.’ [Citation.]” (People v. Weaver (2001) 26 Cal.4th

876, 925-926.)

Defense counsel testified at the hearing on the new trial motion that their

decision to waive the separate statutory proceeding was part of a reasoned,

deliberate strategy (1) to weed out prospective jurors who would automatically

vote for death based on defendant’s prior murder conviction, (2) to be candid and

forthright with the jury about the crimes (including the Reed murder) defendant

did commit, and (3) to minimize thereby the weight the jury would accord the

prior conviction as impeachment during the guilt phase and as an aggravating

factor during the penalty phase. Reviewing this strategy with appropriate

deference, we find no error.

The strategy assumed that defendant would testify, which he did. This

assumption was reasonable, inasmuch as any hope that defendant would be

acquitted of the murders rested on his credibility. His statements to police, while

contradictory, established that he had been present when the shooting began in the

motel room and in the car pursuing Stevenson before he was shot. Although

defendant denied to police that he was the shooter, counsel reasonably concluded

that the jury needed to hear this exculpatory account from defendant himself, that


his testimony was “absolutely essential” to establishing his role, and that there was

no realistic way around it.

If defendant testified, however, he was quite likely to be impeached with

his prior convictions, including his prior murder conviction. Such impeachment

would have nullified any benefit from a separate proceeding on the prior-murder-

conviction special circumstance. Although defendant now argues that the trial

court could have sanitized the priors, defense counsel were justifiably concerned

that, even if that were done, the jury would nonetheless speculate as to the nature

of the impeaching priors and conclude they were for similar or other heinous

offenses. (See People v. Massey (1987) 192 Cal.App.3d 819, 825.) The defense

was likewise concerned that the People might acquire stronger evidence to support

their claim that the same firearm had been used in these crimes and in the Dwayne

Reed murder and renew, as they eventually did, their pretrial motion to offer

evidence of the circumstances of that murder. Had that motion succeeded, the

benefit of the separate proceeding would once again have disappeared. Based on

the attorneys’ reasonable belief that the jury would thus become aware (or at least

suspect) that defendant had a prior murder conviction, defense counsel chose to

make the best of a bad situation by volunteering the fact of the prior murder

conviction and thus appearing to be completely candid and forthright in their

defense. This strategy was rational. (See People v. Wright (1990) 52 Cal.3d 367,


Additionally, defense counsel were concerned that if the jury were to

discover the prior murder conviction only in a bifurcated proceeding, “it would be

like hitting the jury in the face with a dead fish” as the case proceeded to the

penalty phase. Although counsel believed the guilt phase was “defensible,” they

also believed it “was going to be very difficult” and that a penalty phase was

therefore a real possibility. The defense strategy, which sought to neutralize the


prior murder conviction by bringing it up on counsels’ terms and at a time of their

choosing, at a minimum enabled the defense to eliminate those prospective jurors

who were likely to vote for death simply because of the Reed murder13 and

perhaps to mitigate its sting by the time the case proceeded to the penalty phase.

This strategy, too, was within constitutional limits. (Farnam, supra, 28 Cal.4th at

p. 150; People v. Freeman, supra, 8 Cal.4th at p. 484.)

Defendant also complains that counsel’s failure to request a limiting

instruction concerning his prior murder conviction demonstrated ineffective

assistance, but counsel may have deemed it unwise to call further attention to it.

(People v. Freeman, supra, 8 Cal.4th at p. 495; People v. Johnson (1993) 6

Cal.4th 1, 50.) Moreover, as discussed in the preceding section, the instructions

given were adequate to guide the jury’s use of the prior conviction.

Finally, defendant claims that counsel were incompetent in failing to advise

him of his right to a separate proceeding for the prior-murder-conviction special

circumstance. Assuming arguendo that defendant’s consent was necessary to

waive the separate statutory proceeding, the appellate record does not establish

that he did not in fact consent. Although defendant testified at the new trial

motion that he had never been advised of his right to a separate proceeding or the

reason for waiving one, he did not identify this as a basis for relief in his new trial


Defendant asserts that counsel could have used open-ended questions to

discover whether prospective jurors would automatically vote for the death penalty
when there was a prior murder conviction. Although we agree that such questions
are permissible (e.g., People v. Cash (2002) 28 Cal.4th 703, 719), counsel could
reasonably have preferred a more direct approach that guaranteed an accurate
assessment of the jurors’ views. The question here is not whether counsel might
have followed a different path, but whether the path that was followed was an
informed tactical choice within the range of professional competence. (Strickland
v. Washington
, supra, 466 U.S. at p. 689.)


motion and, consequently, his trial attorneys were never asked whether defendant

had been advised of this right and the consequences of waiving it. Inasmuch as

the trial court found defendant’s testimony not credible in general, the appellate

record does not support the factual predicate for this claim, and we therefore reject

it. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241; see People v. Michaels,

supra, 28 Cal.4th at p. 526, fn. 6.)

4. The Special Circumstance’s Reliance on Murder that Postdated

Current Crime

Defendant contends the prior-murder-conviction special circumstance must

be reversed because the underlying murder occurred after the three murders at

issue in this proceeding and thus does not qualify as a “prior” murder. As we

explained in People v. Gurule (2002) 28 Cal.4th 557, 635, “that fact does not

undermine the correctness of the special circumstance finding because, for

purposes of the prior-murder special circumstance, ‘[t]he order of the commission

of the homicides is immaterial.’ ” Inasmuch as the prior-murder-conviction

special circumstance was in effect at the time the current crimes were committed

and had already been interpreted to encompass all murders committed by a

defendant (see People v. Hendricks (1987) 43 Cal.3d 584, 595), there can be no

violation of the due process or ex post facto clauses. (Gurule, supra, 28 Cal.4th at

p. 637.) Nothing in Sattazahn v. Pennsylvania (2003) 537 U.S. 101, which

addressed whether a penalty retrial violated the double jeopardy clause, calls into

question our earlier analysis of those claims.

C. Alleged Instructional Error

Defendant claims a number of instructional errors deprived him of his

rights to due process, to a jury trial, to present a defense, to a reliable verdict, and

to state-created safeguards, in violation of the Fifth, Sixth, Eighth, and Fourteenth



1. Accomplice Instructions

Defendant requested that, with respect to the testimony of Cunningham and

Santiago, the jury be instructed that accomplice testimony must be corroborated

and should be viewed with distrust. The trial court refused the request.

An accomplice is “one who is liable to prosecution for the identical offense

charged against the defendant.” (§ 1111.) A witness is liable to prosecution

within the meaning of section 1111 if he or she is a principal in the crime. (People

v. Lewis (2001) 26 Cal.4th 334, 368-369 & fn. 31.) If there is evidence to permit a

jury to find by a preponderance of the evidence the witness was an accomplice,

“ ‘the trial court must instruct the jury that the witness’s testimony should be

viewed with distrust.’ ” (People v. Hernandez (2003) 30 Cal.4th 835, 874.) “ ‘But

if the evidence is insufficient as a matter of law to support a finding that a witness

is an accomplice, the trial court may make that determination and, in that situation,

need not instruct the jury on accomplice testimony.’ ” (People v Lewis, supra, 26

Cal.4th at p. 369.)

We find no error as to Santiago, who merely delivered the money to

Stevenson. Although Santiago certainly participated in the drug deal, there is

nothing to indicate that she was liable to prosecution for the sale of a nonnarcotic

in lieu of a narcotic under Health & Safety Code section 11355. (See People v.

Edwards (1985) 39 Cal.3d 107, 114, fn. 5.) Indeed, defendant does not claim that

Santiago could have been prosecuted under that provision but argues instead that

she, along with Cunningham, must have conspired to steal Stevenson’s money and

that both were thereby liable to prosecution for attempted robbery or even murder.

The record, however, offers no evidence that either Santiago or Cunningham stole

the money or, even if they did, that they formed the intent to do so prior to the

murders. Nor do we accept defendant’s suggestion that murder was a natural and


probable consequence of any drug deal “involving a large sum of money.” (Cf.

People v. Garceau (1993) 6 Cal.4th 140, 183-184.)

Cunningham, on the other hand, did introduce Stevenson to Barnes and

Brown and was to receive a commission for his role in locating the drug suppliers.

Yet, even assuming that the trial court erred in failing to instruct as to the

possibility that Cunningham was an accomplice in the sale of a nonnarcotic in lieu

of a narcotic, the error was harmless. “A trial court’s failure to instruct on

accomplice liability under section 1111 is harmless if there is sufficient

corroborating evidence in the record. [Citation.] ‘Corroborating evidence may be

slight, may be entirely circumstantial, and need not be sufficient to establish every

element of the charged offense. [Citations.]’ . . . The evidence ‘is sufficient if it

tends to connect the defendant with the crime in such a way as to satisfy the jury

that the accomplice is telling the truth.’ ” (People v. Lewis, supra, 26 Cal.4th at p.


Cunningham’s testimony was sufficiently corroborated. Defendant himself

testified that he brought the drugs into the motel room, was present when the

shooting began, and pursued Stevenson in the car. Johansen testified that the

shooter resembled defendant and did not resemble Hicks. Forensic evidence

indicated that more than one weapon was used in the motel room. Santiago

testified that defendant accompanied Stevenson to her car and asked to see the

money. Finally, defendant admitted his culpability for the murders to Eula


Moreover, the jury was instructed in accordance with a modified version of

CALJIC No. 2.20 that in assessing the credibility of a witness it may consider

“[t]he existence . . . of a bias, interest or other motive”; “[a] statement previously

made by the witness that is . . . inconsistent with the testimony of the witness”;

“[a]n admission by the witness of untruthfulness”; “[t]he witness’ prior conviction


of a felony”; and “the fact that the witness testified under a grant of immunity.”

Inasmuch as the most often cited rationale for the instruction to view accomplice

testimony with caution is “because he or she ‘usually testif[ies] in the hope of

favor or the expectation of immunity’ ” (People v. Tobias (2001) 25 Cal.4th 327,

331) and the jury knew that Cunningham had already been granted immunity,

there was no reasonable probability defendant would have obtained a more

favorable result had the trial court instructed the jury with the full complement of

accomplice instructions. (People v. Lewis, supra, 26 Cal.4th at p. 371; see also

People v. Box (2000) 23 Cal.4th 1153, 1208-1209.)

In addition, defendant nowhere contended that Cunningham helped him

commit the crimes, nor was there evidence they were working together. “Thus,

the instructions requested would have informed the jury to view [Cunningham’s]

testimony with distrust if the jury determined that [Cunningham]—and not

defendant—committed the crimes. Any reasonable juror would reach this

conclusion without instruction.” (People v. Lewis, supra, 26 Cal.4th at p. 371.)

We thus reject defendant’s state and federal claims of reversible error. (Ibid.)

Finally, we reject defendant’s claim that the absence of appropriate

instructions concerning accomplice testimony would have led the jury,

erroneously, to interpret CALJIC No. 2.11.5 to bar consideration of the fact that

Cunningham (or Santiago, for that matter) had testified under a grant of immunity.

CALJIC No. 2.11.5 provides: “There has been evidence in this case indicating

that a person other than the defendant was or may have been involved in the crime

for which the defendant is on trial. There may be many reasons why such person

is not on trial. [¶] Therefore, do not discuss or give any consideration as to why

the other person is not being prosecuted in this trial, or whether he has been or will

be prosecuted. Your duty is to decide whether the People have proved the guilt of

the defendant on trial.” Because the instruction applied to Hicks, it was properly


given in this case. Moreover, the jury was also instructed that it may consider “the

fact that the witness testified under a grant of immunity” in assessing that

witness’s credibility. We thus perceive no reasonable likelihood the jury would

have misconstrued the instruction in the manner defendant imagines. (People v.

Crew (2003) 31 Cal.4th 822, 845.)

2. Felony murder Instructions

Defendant next contends that the trial court erred in failing to instruct the

jury sua sponte that he could not be guilty of felony murder if he became an aider

and abettor to a robbery only after the motel victims had been fatally wounded.

He hypothesizes that the jury could have found that defendant, with no preexisting

knowledge that Hicks intended a robbery and murder, decided to assist Hicks after

the motel murders by acting only as a getaway driver, thereby facilitating the flight

from the burglary and robbery. He relies on People v. Pulido (1997) 15 Cal.4th

713, 723 (Pulido), in which we said that “[o]ur cases establishing the complicity

of a nonkiller in a felony murder have thus uniformly required, at a minimum, that

the accomplice have been, at the time of the killing, a conspirator or aider and

abetter in the felony.” His reliance is misplaced.

As in Pulido, we need not decide whether the trial court had any sua sponte

duty to instruct on the nonliability of late joiners, “because defendant cannot

demonstrate prejudice from the asserted instructional error.” (Pulido, supra, 15

Cal.4th at p. 726.) The jury found true that defendant personally used a firearm in

the commission of the attempted robbery at the motel, which meant that he could

not have formed the intent to rob only after the murders. Defendant speculates

that the jury might nonetheless have found that he used or menacingly displayed a

firearm during the flight following the robbery (see CALJIC No. 9.44), but the

record contains no evidence at all that the driver of the vehicle ever used or

menacingly displayed a weapon. The jury thus would not have relied on such a


theory. (See People v. Guiton (1993) 4 Cal.4th 1116, 1130.) In any event, the

jury also found that defendant was personally armed with a firearm in the

commission of the drug transaction, which again preceded the flight from the

motel room. Finally, the jury found true the burglary-murder special

circumstance, which necessarily included a finding that defendant committed a

burglary—i.e., that he formed the intent to rob before he entered the motel room.

In sum, defendant could not have been prejudiced. (See Hines, supra, 15 Cal.4th

at pp. 1049-1050.)

3. Duress Instructions

The trial court instructed the jury in accordance with CALJIC No. 4.40 that

a person is not guilty of a crime when he engages in conduct, otherwise criminal,

under the reasonable belief that his life would be in immediate danger if he did not

engage in the charged conduct. The trial court also used CALJIC No. 4.41, which

states: “When a person commits a crime punishable with death, it is not a defense

that he committed the act or made the omission under threats or menaces of

immediate death or bodily harm.” Defendant contends that these instructions

“prohibited the jury from considering that [his] honest belief that Hicks was

threatening his life could negate the specific intent requirements and mental state

elements of first-degree murder.” No error appears.

“[D]uress is not a defense to any murder” (People v. Maury (2003) 30

Cal.4th 342, 421) and, in particular, does not negate malice. (People v. Anderson

(2002) 28 Cal.4th 767, 783-784.) Duress likewise does not categorically negate

premeditation and deliberation, although “[i]f a person obeys an order to kill

without reflection, the jury might find no premeditation and thus convict of second

degree murder.” (Id. at p. 784.) Finally, “duress can, in effect, provide a defense

to murder on a felony-murder theory by negating the underlying felony.” (Ibid.)


The instructions thus correctly informed the jury that threats and menace do

not constitute a defense to murder. Nothing in these instructions barred the jury

from considering whether these threats—or any other facts—prevented defendant

from premeditating and deliberating or rendered noncriminal his participation in

the attempted robbery. Indeed, the jury’s finding that defendant was guilty of

attempted robbery reveals that the jury disbelieved defendant’s claim of duress.

(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 100, fn. 31.) Finally,

there is nothing in the record to suggest that defendant participated voluntarily in

the motel room robbery-murders but pursued Stevenson, who was then presumed

to be the only surviving witness to the motel murders, only under duress.

Defendant’s implied suggestion that the jury might have rejected duress as to the

motel crimes but have accepted it as to Stevenson’s murder thus fails.

4. Second Degree Murder Instructions

The jury was instructed with CALJIC No. 8.30 (Unpremeditated Murder of

the Second Degree) as well as No. 8.75 (Jury May Return Partial Verdict—

Homicide). Defendant contends the trial court prejudicially erred by failing

additionally to instruct sua sponte with CALJIC Nos. 8.70 (Duty of Jury as to

Degree of Murder), 8.71 (Doubt Whether First or Second Degree Murder), and

8.74 (Unanimous Agreement as to Offenses—First or Second Degree Murder).

Without these instructions, defendant argues, the jury would not have understood

“how doubts about the proper offense—first degree murder or second degree

murder—should be resolved.” We disagree. In addition to CALJIC No. 8.75,

which directed the jury to consider second degree murder if it was unable to find

defendant guilty unanimously and beyond a reasonable doubt of first degree

murder, the jury was instructed that a guilty verdict required unanimous agreement

that defendant’s guilt of the crime had been established beyond a reasonable

doubt. Considering these instructions as a whole (People v. Musselwhite (1998)


17 Cal.4th 1216, 1248), the jury was adequately instructed as to the significance of

a reasonable doubt as to defendant’s guilt of first degree murder and the

availability of second degree murder as a lesser offense.

Inasmuch as defendant’s sole basis for reducing the murders to second

degree was his claim of duress, which the jury necessarily rejected in convicting

him of attempted robbery, defendant also could not have been prejudiced by any

error. (See People v. Morris (1991) 53 Cal.3d 152, 211; People v. Kozel (1982)

133 Cal.App.3d 507, 528-529.)

D. Sufficiency of Evidence of Robbery and Burglary

Defendant contends the evidence was insufficient to sustain the murders to

the extent they relied on a robbery-murder theory or to sustain the robbery-murder

special circumstance or the attempted robbery. In the main, defendant’s

arguments rest on the assumption that no money was brought into the motel room.

Without the money, defendant reasons, no taking or attempted taking could have

been effected from the immediate presence of Brown or Stevenson (see People v.

Nguyen (2000) 24 Cal.4th 756, 764-765); without the money, defendant also

argues, he could not have formed the intent to steal at the requisite point (i.e.,

before or during the commission of the act of force). (People v. Marshall (1997)

15 Cal.4th 1, 34.) He thereby claims a violation of the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the federal Constitution as well as sections 7, 15, and

17 of article I and section 15 of article II of the California Constitution.

In reviewing a criminal conviction challenged as lacking evidentiary

support, “ ‘the court must review the whole record in the light most favorable to

the judgment below to determine whether it discloses substantial evidence—that

is, evidence which is reasonable, credible, and of solid value—such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt.’ ” (People v. Hillhouse, supra, 27 Cal.4th at p. 496.) The same standard of


review applies to special-circumstance allegations. (People v. Maury, supra, 30

Cal.4th at p. 396.)

There was sufficient evidence here to support a finding of robbery or

attempted robbery. Before he brought the packages into the motel room,

defendant knew that they contained flour and that Hicks was “fixing to jack” the

buyers. Defendant also demanded to see the money before he brought the

packages into the motel room. When Santiago drove up, Stevenson showed

defendant the money in the tennis bag. Stevenson tossed one bundle of cash into

the Santiago’s car and took the bag. The men then walked toward the motel.

Police found no tennis bag or bundles of money in the motel room.

Defendant challenges Santiago’s testimony on a number of grounds, but

none of them is persuasive. He points out first that Santiago did not see Stevenson

actually enter the room with money, but it strains credulity to suggest that

Stevenson would have left a bag containing in excess of $50,000 unattended

outside the motel room. Indeed, Santiago testified that Stevenson took the money

into the motel room “[t]o the best of [her] knowledge.” Defendant then cites the

testimony of Cunningham, who did not see Stevenson carry anything into the

motel room, and his own testimony that the bag stayed in Santiago’s car.

Conflicting evidence, however, does not establish that the evidence on one side or

the other was insufficient. (People v. Panah (2005) 35 Cal.4th 395, 489.)

Moreover, as the trial court noted in denying defendant’s motion for acquittal, the

bag was collapsible and “basically empty” and could have been stuffed inside

Stevenson’s long, thick coat.

Defendant asserts next that Stevenson “likely” would have left the cash

with Santiago after demonstrating to defendant that he had the cash. Although it

would certainly be logical to avoid bringing a large amount of cash into the motel

room before the narcotics had been tested, it is not the only possible way to


structure a transaction. Indeed, Santiago testified that, as Stevenson’s runner, she

routinely delivered the cash and then returned to pick up the drugs. Her testimony

that Stevenson carried the cash into the motel room is neither so inherently

incredible nor physically impossible as to be unworthy of belief. (People v.

Panah, supra, 35 Cal.4th at p. 489.)14

Defendant also claims the trial court erred in failing to instruct on the lesser

included offense of theft. He reasons that the jury could have found that Hicks

alone intended to steal before the shootings occurred, that Hicks got into the BMW

with the money, and that defendant merely assisted Hicks in his escape and thus

formed the intent to steal only after force was used. Defendant assumes, without

citation, that under this scenario he would be guilty only of theft, not robbery. He

is mistaken. In People v. Cooper (1991) 53 Cal.3d 1158, 1161, we held that a “a

getaway driver who has no prior knowledge of a robbery, but who forms the intent

to aid in carrying away the loot during such asportation, may properly be found

liable as an aider and abettor of the robbery.” Even if the trial court had erred in

failing to instruct on theft, however, the error would be harmless, inasmuch as the

jury necessarily rejected defendant’s claim that he was unaware of Hicks’s intent

prior to the shootings by finding the burglary-murder special circumstance true.

(People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086.)

Finally, defendant argues that the evidence of burglary was insufficient

because Barnes, sharing defendant’s felonious intent, had invited defendant into

the motel room. He relies on People v. Salemme (1992) 2 Cal.App.4th 775, 781,


Defendant also argues that even if Stevenson brought the money into the

motel room, there is no evidence that any property was taken from Brown. Not so.
Brown was Stevenson’s partner in the drug deal and thus had constructive
possession of the purchase money. (People v. Miles (1982) 43 Cal.App.4th 364,
369, fn. 5.)


in which the Court of Appeal said that a person who enters a structure with the

intent to commit a felony is guilty of burglary “except when he or she (1) has an

unconditional possessory right to enter as the occupant of that structure or (2) is

invited in by the occupant who knows of and endorses the felonious intent.”

Although Barnes unquestionably knew of and participated in the drug transaction,

the felonious intent underlying burglary-murder and the burglary-murder special

circumstance in this case was the intent to rob, and the record contains no

evidence that Barnes knew of and endorsed that felonious intent. In particular,

there was no evidence that Barnes was aware the packages contained flour,

inasmuch as he was in the process of testing the drugs at the time the shooting

began. There was also no evidence that he intended to rob Stevenson and Brown.

Indeed, Barnes was shot twice and killed in the course of the burglary-robbery.15

Because there was no evidence that Barnes knew of or endorsed defendant’s

intent, there was ample evidence to support the burglary-murder special

circumstance. (People v. Frye (1998) 18 Cal.4th 894, 954; People v. Matson

(1974) 13 Cal.3d 35, 41.) For the same reason, the trial court did not err in

refusing defendant’s instruction describing this exception to burglary. (People v.

Salemme, supra, 2 Cal.App.4th 775, 781; see generally People v. Memro (1995)

11 Cal.4th 786, 868 [“A party is not entitled to an instruction on a theory for

which there is no supporting evidence”].)16


Although defendant asserts Barnes “was likely shot by accident,” there is

no evidence that any accident occurred in firing on the unarmed men in the motel
room. Indeed, Barnes was shot more than once.

For the same reasons, we find that counsel was not deficient in failing to

file a motion to dismiss the burglary-murder special circumstance prior to trial.


E. Alleged Evidentiary Error

Defendant asserts the trial court violated state law and deprived him of due

process, a reliable guilt phase determination, and his right to confront witnesses

under the state and federal Constitutions by erroneously admitting certain

evidence. He also asserts that the trial court violated state law and deprived him of

due process, a reliable guilt phase determination, and his right to present a defense

under the state and federal Constitutions by erroneously excluding certain other


1. Admission of Defendant’s Prior Felony Convictions for Impeachment

Defendant challenges the use of his 1992 convictions for murder, attempted

murder, and assault with a firearm as impeachment on a variety of grounds: (a)

that they were inadmissible as a matter of law in that they related to an incident

that postdated the current murders; (b) that these violent offenses did not bear on

his veracity and were too similar to the charged crimes; (c) that the prior murder

conviction had already been admitted by stipulation and therefore did not need to

be “emphasize[d]” to the jury by the prosecutor in cross-examination; (d) that the

jury would have been under the misimpression that these prior convictions arose

from three separate incidents; and (e) that the attempted murder and assault

convictions were cumulative and unnecessary impeachment, given the

introduction of his prior murder conviction.

“[T]he trial courts have broad discretion to admit or exclude prior

convictions for impeachment purposes . . . . The discretion is as broad as

necessary to deal with the great variety of factual situations in which the issue

arises, and in most instances the appellate courts will uphold its exercise whether

the conviction is admitted or excluded.” (People v. Collins (1986) 42 Cal.3d 378,

389.) No abuse of discretion appears.


a. Defendant argues that he may be impeached only by conduct evincing

dishonesty or moral turpitude that predates the charged crime. He analogizes to

People v. Balderas (1985) 41 Cal.3d 144, 201, in which we said that “the ‘prior

felony conviction[s]’ described in subdivision (c) of section 190.3 are limited to

those entered before commission of the capital crime.” But the statute governing

impeachment, Evidence Code section 788, contains no such limitation. The

admission of a felony conviction for impeachment tests the defendant’s credibility

as a witness during trial. Whether the offense predated the charged crime has no

bearing on its relevance to that issue. We therefore hold that a prior felony

conviction for purposes of impeachment under Evidence Code section 788 means

any conviction suffered before trial, regardless of the offense date. (People v.

Halsey (1993) 21 Cal.App.4th 325, 328; cf. People v. Gurule, supra, 28 Cal.4th at

p. 635 [rejecting the defendant’s attempt to impose a similar limitation on the

prior-murder-conviction special circumstance].)

b. Defendant argues next that the convictions for the Reed murder,

attempted murder, and assault with a firearm did not bear directly on his veracity.

Relying on People v. Gurule, supra, 28 Cal.4th at page 608 and other cases

involving crimes committed prior to the passage of Proposition 8, he contends

these crimes of violence were not admissible for impeachment. But defendant

fails to acknowledge section 28(f) of article I of the California Constitution, which

was added by Proposition 8 and which provides in pertinent part that “[a]ny prior

felony conviction . . . shall subsequently be used without limitation for purposes of

impeachment . . . in any criminal proceeding. . . .” We held in People v. Castro

(1985) 38 Cal.3d 301, 306, “that—always subject to the trial court’s discretion

under [Evidence Code] section 352—[Proposition 8] authorizes the use of any

felony conviction which necessarily involves moral turpitude, even if the immoral

trait is one other than dishonesty.” Defendant’s convictions for murder, attempted


murder, and assault with a firearm denote moral turpitude and are therefore

admissible for impeachment. (Castro, supra, 38 Cal.3d at p. 315.)

Defendant’s objection that the priors ought to have been excluded as too

similar to the charged crime is likewise without merit. “While before passage of

Proposition 8, past offenses similar or identical to the offense on trial were

excluded, now the rule of exclusion on this ground is no longer inflexible.”

(People v. Tamborrino (1989) 215 Cal.App.3d 575, 590; see generally People v.

Gutierrez, supra, 28 Cal.4th at p. 1139, citing Tamborrino.) Inasmuch as

defendant had no other prior felony convictions available for impeachment, the

trial court did not abuse its discretion in admitting these crimes of violence.

(Tamborrino, supra, 215 Cal.App.3d at p. 590.) To do otherwise would have

given defendant a “ ‘false aura of veracity.’ ” (Ibid.; see also People v. Muldrow

(1988) 202 Cal.App.3d 636, 647.)17

c. Although defendant criticizes the trial court for allowing the prosecutor

to “emphasize” the prior murder conviction in cross-examination after the defense

had already stipulated to it, we see no abuse of discretion. Each side elicited the

fact of the three impeaching convictions in very summary fashion. Defendant

could not have been prejudiced by this procedure.

d. We reject as speculative defendant’s claim that the jury would have

mistakenly believed the three convictions arose from three separate incidents. The

jury was told that all three convictions occurred in one “case.”

e. We also reject defendant’s contention that impeachment with the

attempted murder and assault with a firearm were unnecessary and cumulative to

the murder conviction. We have noted that a series of relevant crimes is more


It therefore follows that defense counsel was not incompetent in failing to

file a motion in limine to prohibit the use of these convictions for impeachment.


probative of credibility than a single lapse. (People v. Holt (1984) 37 Cal.3d 436,

452.) Similarly, defendant’s firing four shots at the murder victim’s fleeing

companion, one of which hit a three-and-one-half-year-old girl, is more

aggravated than the murder itself and thus more illuminating as to his credibility.

The trial court therefore did not abuse its discretion in finding that admitting the

two other convictions would not be “unduly prejudicial.” (See People v. Smithey,

supra, 20 Cal.4th at p. 970.)

2. Admission of Cunningham’s Lay Opinion That Defendant Was

Directing Barnes in Drug Transaction

The prosecution elicited from Cunningham that Barnes was initially unable

to answer basic questions about the transaction (such as price, quantity, and the

time and place); that Barnes said he would need to contact “his people” to get that

information; that the next day Barnes said he had been having trouble contacting

those people; that Barnes had proposed driving around the neighborhood to find

the person with the answers; that during the drive Barnes pointed at defendant,

said “That’s him over there,” and talked to him for a few minutes; that Barnes

came back to the car after the conversation with defendant and told Cunningham

that “things are going to work out”; that Barnes immediately thereafter paged

Stevenson and gave him the details of the transaction; that Barnes said he could

not deliver the drugs himself and that his suppliers would be handling the delivery

personally; and that defendant and Hicks thereafter drove up with the wrapped

packages at the appointed day and time. The prosecutor then asked Cunningham,

over defendant’s objection, whether it appeared to him that defendant “was the

person who was directing Landis Barnes in this operation.” Cunningham testified

that it did so appear. On appeal, defendant renews the objection. We find no

prejudicial error.


A lay witness may express an opinion based on his or her perception, but

only where helpful to a clear understanding of the witness’s testimony (Evid.

Code, § 800, subd. (b)), “i.e., where the concrete observations on which the

opinion is based cannot otherwise be conveyed.” (People v. Melton (1988) 44

Cal.3d 713, 744.) It is certainly possible that Cunningham’s impression rested on

subtle or complex interactions between Barnes and defendant that were difficult to

put into words, which would render Cunningham’s opinion proper. (See People v.

Williams (1988) 44 Cal.3d 883, 915; cf. Melton, supra, 44 Cal.3d at p. 744 [lay

opinion of witness’s veracity is improper].) But, even if it did not, defendant

could not have been prejudiced, inasmuch as Cunningham was able to provide

concrete and compelling evidence that defendant was directing Barnes in this

transaction. Indeed, further evidence on this point was provided by Santiago, who

testified that defendant joined Stevenson to verify the money had arrived, and by

the fact that Barnes was shot in the motel room. There is no reasonable

probability of a different result even if Cunningham’s opinion had been omitted.

For the same reasons, defendant’s claim that the prosecutor committed

prejudicial misconduct in eliciting Cunningham’s opinion also fails.

3. Exclusion of Defendant’s Willingness to Take Polygraph Test

At trial, defendant sought to introduce evidence that he had agreed to the

district attorney’s request to submit to a polygraph examination. The court

sustained the People’s objection under Evidence Code section 351.1, subdivision

(a), which makes inadmissible “any reference to an offer to take, failure to take, or

taking of a polygraph examination.” Defendant contends the exclusion of this

evidence deprived him of due process and his right to present a defense at the guilt

phase and his right to a reliable verdict and to be free from cruel and unusual

punishment at the penalty phase. No error appears, because excluding this

evidence did not violate defendant’s constitutional rights. (People v. Samuels


(2005) 36 Cal.4th 96, 128; People v. Wilkinson (2004) 33 Cal.4th 821, 849-850.)

“A per se rule excluding polygraph evidence is a ‘rational and proportional means

of advancing the legitimate interest in barring unreliable evidence.’ ” (People v.

Maury, supra, 30 Cal.4th at p. 413.)

We also observe that defendant failed to offer any evidence that polygraph

examinations were reliable. (People v. Burgener (2003) 29 Cal.4th 833, 871; see

People v. Wilkinson, supra, 33 Cal.4th at p. 850.)

4. Admission of Eula Roberson’s Testimony Concerning Confession by

“E Money”

Eula Roberson testified not only at this trial but also at an earlier trial in

which defendant was convicted of murder, attempted murder, and assault with a

firearm arising from the murder of Dwayne Reed. Roberson, who was Reed’s

aunt, told the police that defendant, also known as “E Money,” had telephoned her

and admitted that he had killed her nephew. She also said that defendant was the

only “Eric” with whom she was acquainted. In this trial, the prosecution

successfully sought to introduce evidence that, during the same conversation,

defendant had also admitted killing three people in Monterey Park. Defendant

argues, as he did below, that the trial court erred in admitting evidence of E

Money’s confession to the three murders in Monterey Park in that there was

insufficient foundation that he was E Money and that the alleged confession was

more prejudicial than probative.

When the relevance of proffered evidence depends upon the existence of a

preliminary fact, the trial court must determine whether the evidence is sufficient

to permit the jury to find the preliminary fact true by a preponderance of the

evidence. (Evid. Code, § 403, subd. (a); People v. Marshall (1996) 13 Cal.4th

799, 832.) The record here, including the Evidence Code section 402 hearing and


the actual trial testimony, supports the trial court’s finding that an adequate

foundation had been established.

Detective Larry Kallestad testified that he received a call from a woman

identifying herself as Eula Roberson around 9:00 p.m. on August 8, 1989.

Roberson said she had some information she wanted to convey to detectives—i.e.,

that E Money recently told her he had killed three people in Monterey Park. When

Kallestad asked Roberson whether she knew E Money by another name, she said

“you know, Eric.” When Kallestad said he wanted her to talk to the detectives

involved in this investigation, Roberson said she wanted to be picked up in a

nondescript car and interviewed somewhere other than her home. Kallestad wrote

down her address and phone number and told her the detectives would contact her

the next day.

Roberson’s testimony at trial corroborated Kallestad’s testimony in some

respects and disagreed with it in others. Roberson admitted calling police to leave

a message for the detectives and to ask that any police interview be conducted

away from her home. She also testified that she knew defendant, who used to visit

her nephews and son once or twice a week. However, she denied that defendant

was E Money, even though she admitted that defendant was the only “Eric” she

knew; denied that defendant had ever mentioned anything to her about the

Monterey Park murders; and denied telling police that E Money had confessed to

killing three people in Monterey Park.

In admitting the evidence of Roberson’s statement, the trial court reasoned

that a trier of fact could find that Roberson called the police on August 8, 1989,

that Roberson told them of E Money’s confession to the three Monterey Park

murders, that E Money did in fact confess the murders to her, and that defendant—

who was the only Eric she knew—was E Money. No abuse of discretion appears.

Although defendant is correct that the relevance of Roberson’s statements


depended upon the preliminary fact that defendant was E Money and that

Roberson denied at trial that he was, the record also supported a finding that

Roberson’s in-court testimony was unreliable and that her prior inconsistent

statements were more accurate. (See Evid. Code, § 1236.) The latter evidence,

combined with her admission that defendant was the only Eric she knew, was

sufficient to establish the requisite preliminary fact. The existence of conflicting

evidence did not inexorably prevent a finding that an adequate foundation existed.

Nor do we find error in the trial court’s failure to instruct the jury to

determine whether the preliminary fact had been established and to disregard the

evidence unless it did so find. A trial court has no general sua sponte duty to

instruct on this point, and the trial court did not abuse its discretion in failing to do

so in this case. (People v. Marshall, supra, 13 Cal.4th at p. 833; Evid. Code, §

403, subd. (c)(1).) In any event, the jurors were instructed that they “are the

exclusive judges as to whether the defendant made an admission”; that if they find

defendant did not make the statement, they “must reject it”; and that “[e]vidence

of an oral admission . . . should be viewed with caution.” Moreover, defense

counsel expressed doubt in argument that defendant had told Roberson any such

thing or that Roberson had made such a statement to police, and urged the jury to

reject the evidence. We therefore see no possibility the jury could have

misunderstood its obligation to determine whether defendant was E Money before

considering the significance of Roberson’s statements. (People v. Marshall,

supra, 13 Cal.4th at pp. 833-834.)

Finally, we reject defendant’s substantive and procedural claim of error

under Evidence Code section 352. “[A] court need not expressly weigh prejudice

against probative value or even expressly state that it has done so, if the record as

a whole shows the court was aware of and performed its balancing functions under

Evidence Code section 352.” (People v. Taylor (2001) 26 Cal.4th 1155, 1169.)


Here, the court held a hearing outside the jury’s presence, at which defense

counsel objected on both foundational and section 352 grounds, and found that the

foundational requirements had been met, that the evidence had “some probative

value,” and that it was “an appropriate area to cover.” Furthermore, the court

ensured that the testimony was tailored so as to avoid any prejudicial references to

defendant’s involvement in the murder of Roberson’s nephew, and personally

instructed the witness not to make any mention of her nephew’s murder. The

record as a whole thus shows the trial court undertook a weighing of the probative

value and the prejudicial effect of the evidence in making its ruling. (Taylor,

supra, 26 Cal.4th at p. 1169.) Also, having limited the testimony in this fashion,

the trial court did not abuse its discretion in overruling the section 352 objection.

5. Admission of Defendant’s Statements to Tarsha Smith

During a police interview following his arrest on June 8, 1988, defendant

said that Barnes had offered him $3,000 to provide “protection” during a drug

deal. Defendant told police he did not have a gun and therefore refused to

participate. Defendant also said he learned only later, by watching the news, that

Barnes had been killed. Prior to the next round of interviews, in which defendant

admitted being present (albeit as a surprised bystander and a reluctant getaway

driver) during the murders, defendant’s girlfriend, Tarsha Smith, visited defendant

at the police station. Their conversation was secretly tape-recorded. During that

conversation, defendant at first told Smith he did not know who the shooter was.

Later, he told her the shooter was named “Steve” but that he did not know his last

name.18 He also claimed, falsely, that he had already told the police all he knew.

When Smith asked him what he had said to police about their being together on


At trial, defendant admitted that these statements were lies.


the day of the murders, defendant said he told police they had always been

together, “[d]ay and night.” This, too, was false, since he had left Smith long

enough to accompany Hicks to the drug transaction and participate in three


Defendant now claims these statements, elicited by the prosecution during

defendant’s cross-examination, were hearsay and ought to have been excluded.

Inasmuch as defendant offered no objection to most of these statements at trial—

and the objections he did make, most of which were sustained, related only to

vagueness—he has forfeited the claim. (Drake v. Dean (1993) 15 Cal.App.4th

915, 933.)19 We also reject the claim on the merits, since these statements were

not offered for their truth. Indeed, the statements were offered for their falsity to

rebut defendant’s claim that he had lied to the police only because he “figured the

less I tell them, the less they would know, and they would just let me go from

there.” The conversation with Smith showed that defendant continued to offer

many of the same lies to his girlfriend even when the stated reason was

inapplicable—and thus that defendant’s stated reason for lying to the police was


Defendant’s claim that the prosecutor committed misconduct when he

asked defendant whether Smith “was to be [his] alibi” was preserved by a timely

objection, but it is meritless, since the record supports the inference that defendant

did intend to use her as such. In his police interview, defendant had denied even

being present at the crime scene, telling them instead that he had been with Smith

the entire time, either in person or on the phone. Defendant changed his story only


Defendant’s claim, presented here for the first time, that the trial court erred

under Evidence Code section 352 in admitting these statements is likewise
forfeited. It is also meritless, for the reasons given in the text.


after learning that Smith had told the police he had been at the motel.20 Smith

thus had been his alibi up to that point. No misconduct appears. (People v.

Hughes (2002) 27 Cal.4th 287, 388.)

Finally, we discern no prejudicial error in the trial court’s decision to admit

into evidence only the transcript of the couple’s conversation and not the tape,

which both sides agreed was of poor quality, difficult to hear, and overlaid by the

comments of the police officers secretly listening to the conversation. Indeed,

defendant fails to identify any discrepancy between the tape and the transcript or

articulate any other way in which the jury’s failure to hear the tape prejudiced him.

Defendant instead asserts that the jury needed the tape to understand the voice

intonations indicating that Smith was angry with him and just wanted him to tell

the truth, but (as defense counsel admitted) her feelings were evident from the

transcript itself and (as the trial court pointed out) the defense could have brought

that point out more plainly on her redirect examination. Defendant’s contention

that the sotto voce comments of the eavesdropping officers were relevant to

establish their state of mind during their subsequent interviews with defendant is

undone by the fact that the state of mind of any officer was irrelevant.

6. Prosecution’s Refusal to Accept Defense Stipulation

When the prosecutor indicated that he intended to call Steve Hicks’s father,

Henry Hicks, to demonstrate that Steve Hicks was right-handed, defense counsel

offered to stipulate to that fact. The prosecutor declined to accept the stipulation,

the trial court declined to force it on the prosecution, and Henry Hicks then


Defendant did make a hearsay objection to Smith’s statement that she told

the police that defendant had been present, but the trial court properly overruled it
and instructed the jury that the statement was offered merely to show that
defendant heard the statement, not for its truth.


testified as to Steve Hicks’s height, weight, hairstyle, and handedness. We need

not decide whether the trial court ought to have compelled acceptance of the

stipulation because the father’s testimony that his son was right-handed certainly

“had no potential to inflame the jurors and hence could not have exposed

defendant to prejudice.” (People v. Bonin (1989) 47 Cal.3d 808, 849.)

7. Admission of Conversations Between Cunningham and Barnes Under

Coconspirator Hearsay Exception

Part of Cunningham’s testimony consisted of recounting his conversations

with Barnes and Stevenson concerning the drug deal. The trial court admitted

these statements under Evidence Code section 1223, the coconspirator exception

to the hearsay rule. Defendant contends the trial court erroneously admitted the

conversations between Cunningham and Barnes and thereby violated section 1223

as well as his rights under the Fifth, Sixth, and Fourteenth Amendments.

Although defendant objected successfully on hearsay grounds to the

prosecution’s inquiry into Cunningham’s first contact with Barnes, he made no

objection to any actual coconspirator statements once the prosecution elicited the

fact of the conspiracy through independent evidence. We thus conclude that

defendant has forfeited his objections. (Evid. Code, § 353.) Defendant also failed

to preserve his constitutional claims by failing to object on any of these grounds in

the trial court. (People v. Earp, supra, 20 Cal.4th at p. 893.)

Defendant’s claims fare no better on the merits. As best we can

understand, defendant has two objections: that his involvement in the conspiracy

had not yet been established at the time the prosecution sought to introduce the

statements under the coconspirator exception, and that the challenged statements

preceded defendant’s agreement to participate in the conspiracy. The objections

are legally meritless. Although coconspirator statements may be offered after the

admission of evidence sufficient to establish the conspiracy and the participation


of the declarant and the defendant, a trial court may also, in its discretion, admit

the statements subject to the establishment of the requisite foundation. (Evid.

Code, § 1223, subd. (c).) Defendant makes no claim the trial court abused its

discretion and, given defendant’s actual participation in the transaction as well as

his own testimony concerning his agreement to participate in it, no abuse of

discretion appears. In addition, the jury was instructed that the coconspirator

statements could not be considered without a determination, from independent

evidence, that a conspiracy existed.

Likewise, it is irrelevant that some of the coconspirator statements

allegedly preceded defendant’s involvement in the conspiracy. Once independent

evidence to establish the prima facie existence of the conspiracy has been shown,

all that is needed is a showing “ ‘that the declarant was participating in a

conspiracy at the time of the declaration,’ ” “ ‘that the declaration was in

furtherance of the objective of that conspiracy,’ ” and “ ‘that at the time of the

declaration the party against whom the evidence is offered was participating or

would later participate in the conspiracy.’ ” (People v. Hardy (1992) 2 Cal.4th

86, 139, italics added; Evid. Code, § 1223, subd. (b).) Defendant does not dispute

that Cunningham and Barnes were participants in the conspiracy at the time the

challenged statements were made, nor does he dispute that he joined the

conspiracy after the challenged statements were made. Accordingly, no error


8. Admission of Victim Photographs and Mannequins Used to Depict

Bullet Wounds

Prior to opening statements, defendant objected to some of the photographs

depicting the murder victims. Specifically, defendant objected to the admission of


three photographs of Brown (People’s exhibits 3-B, 3-C, 3-F),21 the admission of

three photographs of Barnes (People’s exhibits 4-B, 4-C, 4-G), and the admission

of more than two or three of eight autopsy photographs of Stevenson (People’s

exhibits 8-B through 8-I). As to the Brown photographs, the trial court sustained

the objection as to one photograph (exhibit 3-B) as duplicative but found the other

two were probative in that they showed where the bullets entered Brown’s

clothing and body. As to the Barnes photographs, the trial court again sustained

the objection as to one photograph (exhibit 4-B) as duplicative but found the other

two showed the entry wounds at different distances and were therefore sufficiently

probative. As to the Stevenson photographs, the trial court overruled the

objections, finding that they could assist the jury in understanding the testimony of

the coroner and were not particularly gruesome or offensive. Defendant renews

his objections here and, for the first time, adds that the photographs violated his

rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. The

constitutional claims, of course, are forfeited. Defendant’s claims also fail on the


“The admission of allegedly gruesome photographs is basically a question

of relevance over which the trial court has broad discretion. [Citation.] ‘A trial

court’s decision to admit photographs under Evidence Code section 352 will be

upheld on appeal unless the prejudicial effect of such photographs clearly

outweighs their probative value.’ ” (People v. Roldan (2005) 35 Cal.4th 646,


Defendant purported to “renew” his objection to an additional photograph

of Brown (People’s exhibit 3-E) at the close of the People’s case, but he had
explicitly refrained from making such an objection earlier and thereby forfeited
the objection. (People v. Boyette (2002) 29 Cal.4th 381, 423-424.) Inasmuch as
the jury had already seen the photograph, defendant also could not have been
prejudiced by its admission into evidence. The same is true of an additional
photograph (People’s exhibit 4-F) of Barnes.


713.) We have examined the photographs in question and conclude the trial court

did not abuse its discretion. They are not unduly bloody or gruesome and are

relevant to the manner in which each victim was killed. “As we have previously

noted, ‘ “murder is seldom pretty, and pictures, testimony and physical evidence in

such a case are always unpleasant.’ ” (Ibid.)

Nor is defendant’s claim of prejudice any stronger when combined with the

three mannequins, which were used to illustrate the coroner’s testimony and the

prosecution’s theory that Stevenson’s injuries were consistent with a left-handed

shooter. As the trial court observed, these were “waist-and-above mannequins that

look like mannequins from any department store,” provided a perspective

concerning the entry and exit wounds that could not be provided by the

photographs or the testimony, and were “not particularly gruesome in that they

don’t appear to be very realistic.” Once again, no error appears. (People v. Riel,

supra, 22 Cal.4th at p. 1195; see People v. Gurule, supra, 28 Cal.4th at p. 624.)

9. Admission of Detective Corrigan’s Testimony Concerning Absence of

Shell Casings

Detective Corrigan testified that the absence of shell casings at the crime

scenes was consistent with the use of a revolver and inconsistent with a

semiautomatic handgun, unless the shell casings had been gathered up.

Defendant, who objected only on the ground of “speculation” at trial, now argues

that there was an insufficient foundation that Corrigan had the requisite expertise

to offer such an opinion. Although the claim is forfeited because defendant did

not articulate this ground below (People v. Raley (1992) 2 Cal.4th 870, 892), we

also reject it on the merits. The prosecution established that Corrigan, a police

detective, was “familiar with the use of firearms,” which enabled him to offer this

opinion. (See State v. Bowles (Minn. 1995) 530 N.W.2d 521, 526; Fort v. State


(Miss.Ct.App. 1999) 752 So.2d 458, 460.) Moreover, defendant does not identify

any way in which this testimony could have prejudiced him.

10. Admission of Defendant’s Testimony Supplying Hicks’s Name

On June 9, the day after his arrest, defendant was re-advised of his Miranda

rights and waived them. During the interview, defendant told Detective Corrigan

that Barnes and a man named “Steve” had asked him to “go along” on a drug deal.

When Corrigan asked whether defendant could obtain Steve’s last name,

defendant said he thought he could if he made some phone calls. Defendant was

brought to a room with a phone. After he made a few calls, he told Corrigan the

man’s last name was “Hicks.” At trial, defendant admitted that he had known

Hicks’s name all along, since he had known Hicks for five years. Defendant

contends that Hicks’s name was obtained in violation of his Miranda rights and

was, in any event, irrelevant.

As to the Miranda claim, the trial court conducted a hearing as to the

circumstances of defendant’s identification of Hicks and determined that the

police conducted no interrogation of defendant and used no other tactics to elicit

the identification following the phone calls. This finding is amply supported by

the record. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Bradford

(1997) 14 Cal.4th 1005, 1033.) Detective Corrigan testified that defendant

identified Hicks after making a few phone calls and that no questions were asked

of him to elicit the identification. Whether viewed as a volunteered statement

(People v. Ray (1996) 13 Cal.4th 313, 337) or as a continuation of the prior

interview (People v. Visciotti (1992) 2 Cal.4th 1, 54), defendant was not entitled to

a re-advisement of his Miranda rights before he could announce the product of his


As to the claim that the evidence was irrelevant, we disagree. Defendant’s

knowledge that Hicks was present linked defendant more closely to the crimes


than did his original police statements—and his feigned ignorance of Hicks’s

identity cast doubt on his subsequent police statements admitting only limited

involvement in the murders.

11. Cumulative Error

As detailed above, we have found very few errors, and each of those is

clearly harmless. We therefore reject defendant’s claim of cumulative error.


A. Failure to Conduct Evidentiary Hearing Concerning Claim of

Alleged Spectator Misconduct

At the close of the prosecution’s case during the penalty phase, defense

counsel asked to put on the record a comment allegedly uttered by Tenoa

Stevenson’s mother two weeks earlier, when the guilt phase verdicts were

announced: “I wasn’t aware of it until today, but apparently I’m told at the time

after the jury had announced their verdict, that Mrs. Stevenson said something to

the effect of, ‘Thank you, Jesus. Kill him,’ or something like that in front of the

jury. [¶] I didn’t hear that myself. I had a report that that happened. I don’t

know if anybody else heard it or not.” Neither cocounsel, the prosecutor, nor the

court heard the alleged comment, either. No one asked the jurors be examined to

determine whether they heard the comment, nor did anyone ask the jury be

admonished about it.

Defendant now claims the trial court violated his rights under the Sixth and

Fourteenth Amendments in failing to conduct an evidentiary hearing to determine

whether the reported event occurred and, if so, the impact it had on each of the

jurors and the appropriateness of giving curative instructions. But defendant failed

below to object to the alleged comment, failed to request a hearing to determine

whether the jury heard any such comment, and failed to request a curative

admonition. He has thereby forfeited the claim of spectator misconduct. (People


v. Hill (1992) 3 Cal.4th 959, 1000, overruled on another point in Price v. Superior

Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Even assuming the claim had been

preserved—and even assuming the comment was made and was heard by the

jury—defendant cannot establish prejudice. The question here is whether what the

jury might have heard “was so inherently prejudicial as to pose an unacceptable

threat to defendant’s right to a fair trial; if the challenged [conduct] is not found

inherently prejudicial and if the defendant fails to show actual prejudice, the

inquiry is over.” (Holbrook v. Flynn (1986) 475 U.S. 560, 572.) Although Mrs.

Stevenson’s opinion was not admissible on the question of penalty (People v.

Smith (2003) 30 Cal.4th 581, 622), we are skeptical the jury would have paid any

mind to her brief and unsurprising comment. (Whitehead v. State (Ala.Crim.App.

1999) 777 So.2d 781, 848-849; Wood v. State (Okla.Crim.App. 1998) 959 P.2d 1,


Because defendant could not have been prejudiced, we also reject

defendant’s claim that his attorney was ineffective in failing to request an

evidentiary hearing to investigate the allegation. Moreover, defense counsel could

reasonably have decided to forgo a hearing to avoid calling attention to a comment

the jurors may not have even heard.

B. Lack of Notice of Factors in Aggravation Under Section 190.3

Following the guilt phase verdicts, defense counsel asked the trial court to

prohibit the People from offering any penalty phase evidence on the ground that

he had received “no formal notice of aggravated factors.” The prosecutor

responded that the only evidence the People intended to introduce was the Reed

murder, which was the basis for the prior-murder-conviction special circumstance

and for which Attorney Wehrmeister, defendant’s current attorney, was counsel of

record. The prosecutor also stated that he had supplied all the discovery “both for

the guilty phase and the penalty phase” prior to the commencement of the trial.


Defense counsel maintained this was inadequate since, in his view, “the law

requires that we be notified . . . in writing prior to the conclusion of the guilt


Two weeks later, before the penalty phase began, the prosecutor served

defendant with a written notice of the evidence to be introduced in aggravation.

The prosecutor added that he had had off-the-record discussions with both

attorneys for the defense before and during the guilt phase, that he had informed

them of his intent to introduce evidence of the Reed murder if the penalty phase

was reached, and that they had received actual notice of that crime because it had

been alleged as a special circumstance in the information. Defense counsel

continued to object to the admission of any evidence beyond the mere fact of the

conviction. The trial court denied the defense motion, relying on the “unusual”

circumstance that current defense counsel had been defendant’s counsel in the trial

on Reed’s murder and was therefore familiar with the facts of that case, the fact

the Reed murder had been charged as a special circumstance in the guilt phase,

and the resulting lack of prejudice to the defense. The trial court also stated that it

would grant a defense request for a continuance as the need arose. Finally, the

trial court barred the prosecution from presenting any other evidence in


On appeal, defendant renews his claim that the lack of adequate notice

violated state law and deprived him of fundamental due process under the federal

Constitution. The admission of the facts surrounding the Reed murder as

aggravating evidence is subject to the notice requirement in section 190.3:

“Except for evidence in proof of the offense or special circumstances which

subject a defendant to the death penalty, no evidence may be presented by the

prosecution in aggravation unless notice of the evidence to be introduced has been

given to the defendant within a reasonable period of time as determined by the


court, prior to trial.” We need not decide whether the prosecution’s notice was

timely under this provision because it is clear that defendant suffered no prejudice.

(People v. Wilson (2005) 36 Cal.4th 309, 357.)

“The purpose of the notice provision is to afford defendant an opportunity

to meet the prosecutor’s aggravating evidence.” (People v. Taylor, supra, 26

Cal.4th at p. 1182.) Defendant had that opportunity in the unusual circumstances

here, inasmuch as the Reed murder had been charged as a special circumstance,

defense counsel was familiar with the underlying facts because of his

representation of defendant in the prior case, and the defense was offered a

continuance as necessary to meet the aggravating evidence. (People v. Taylor

(1990) 52 Cal.3d 719, 737 [because the evidence in aggravation “consisted of

crimes charged in the information as prior convictions for enhancement purposes,”

defendant had “actual notice”].) Defendant did not request a continuance, nor

does he now explain how he could have rebutted or impeached any of the three

prosecution witnesses at the penalty phase had he received notice earlier. (People

v. Wilson, supra, 36 Cal.4th at p. 357; People v. Roldan, supra, 35 Cal.4th at p.

734.) Any delay in notifying the defense of the evidence in aggravation or in

identifying witnesses was therefore harmless. (People v. Mayfield, supra, 14

Cal.4th 668, 799.)

These circumstances are thus unlike those in Com. v. Wesley (Pa. 2000) 753

A.2d 204, on which defendant relies. In Wesley, defense counsel had no actual

notice the prosecution would rely on the circumstance of torture and the trial court

denied counsel’s request for a continuance to obtain an expert to testify about the

existence of torture. (Id. at pp. 212, 215-216.) Here, by contrast, defendant had

actual notice of the evidence in aggravation and never requested a continuance to

prepare to meet it.


C. Failing to Strike Evidence of Unadjudicated Violent Conduct

Defendant’s mother, Diane Hinton, and his grandmother, Jessie Compton,

testified that defendant was a nonviolent person. In seeking to impeach these

witnesses, the prosecutor inquired whether they had heard of acts or conduct

inconsistent with that character trait. Defendant claims this was an improper effort

to place before the jury unadjudicated violent conduct as an aggravating factor in

favor of death, in violation of the limits the trial court had imposed on evidence in

aggravation, and justifies reversal of the death sentence. We disagree.

Diane Hinton and Jessie Compton were offered as witnesses by the defense

to humanize defendant in the eyes of the jury. Each testified about the

disadvantages defendant had faced in his childhood and the good things he was

nonetheless able to accomplish. The prosecutor, on cross-examination, challenged

the portrait these witnesses sought to portray. For example, after Diane testified

that she had never known defendant to exhibit any violent behavior or to carry a

firearm, the prosecutor inquired whether Diane remembered “the date of August 6,

1988, about five or six weeks after the incident at the Monterey Park motel.”

Defendant objected and requested a sidebar, at which the prosecutor explained that

defendant had been arrested with a firearm on his person on that date in his

mother’s presence. Diane then testified, outside the presence of the jury, that she

did not see the gun on that occasion but had been told by the police that defendant

had one. After the trial court overruled the objection, Diane testified in front of

the jury that a sheriff’s deputy did tell her on that date that defendant had a gun on

his person when he was arrested.

Then, when Diane denied ever seeing defendant shoot anyone, the

prosecutor asked whether she remembered being assaulted and robbed outside a

store about two weeks before defendant’s arrest and whether she knew a man

named Irwin Jones. When the prosecutor asked what happened after the robbery,


defendant again objected. At sidebar, the prosecutor explained that Diane had

earlier told a detective that she drove back to the scene with defendant and pointed

out the robber and that defendant knocked him down with a shotgun and shot him

in the groin. Diane was then permitted to testify before the jury that she had been

robbed near a store in Long Beach, that she knew the robber from the

neighborhood, and that she went home and told defendant what had happened.

But, when the prosecutor asked Diane what happened after that, Diane claimed she

could not remember what occurred because of her drinking problem and denied, in

particular, pointing out the robber to defendant.

Similarly, after Jessie Compton testified that she had never known

defendant to show any signs of violence or to carry a gun, the prosecutor asked

Compton over defense objection whether she was “aware of an incident involving

your daughter, Diane Hinton, where she was robbed by a man and [defendant]

later allegedly knocked the man down and shot him.” Compton said she knew

Diane had been robbed but did not know what happened after that. When the

prosecutor sought to ask whether she had ever been contacted by Deputy Elizabeth

Smith on November 26, 1988, regarding the shooting of Joe Hawkins, the defense

objected and another sidebar was held. The prosecutor explained that Hawkins

was the victim of a drive-by shooting, that defendant was identified as one of the

shooters by eyewitnesses, that Compton had been told defendant was a suspect,

and that she supplied defendant with an alibi during the time of the shooting. The

trial court sustained the defense objection, struck the question, and directed the

jury to disregard it. The jury was also instructed at the end of the case that

evidence of other incidents when defendant “may have” possessed a firearm,

elicited during Diane Hinton’s testimony, “was allowed on the issue of the

witness’ credibility and not for any other purpose. You are not to consider it as an

aggravating factor on the issue of penalty.”


“When a defense witness gives character testimony, the prosecutor may

inquire of the witness whether he or she has heard of acts or conduct by the

defendant inconsistent with that testimony, so long as the prosecutor has a good

faith belief that such acts or conduct actually took place.” (People v. Barnett

(1998) 17 Cal.4th 1044, 1170.) Evidence of weapons possession, as well as

evidence of violent conduct, “would reasonably implicate a violent character.”

(People v. Ramos (1997) 15 Cal.4th 1133, 1173.) Once these witnesses testified

that, to their knowledge, defendant had never exhibited any violent behavior, the

prosecutor was entitled to cross-examine them about specific instances of

defendant’s violent behavior.

Significantly, defendant nowhere claims these incidents were not

admissible to impeach his character witnesses at the penalty trial. Nor does he

claim the prosecutor lacked a good-faith basis for inquiring about these incidents.

He claims instead that the prosecutor improperly elicited testimony from these two

witnesses with the sole intent of impeaching them with otherwise inadmissible

evidence. We note, preliminarily, that defendant failed to object on this basis

below and has thus forfeited the claim. We also reject the claim on the merits.

Defendant relies on U.S. v. Gomez-Gallardo (9th Cir. 1990) 915 F.2d 553, where

the court found error when the prosecution had called a codefendant for the sole

purpose of impeaching him with otherwise inadmissible evidence. (Id. at pp. 555-

556.) Here, by contrast, both witnesses were called by the defense. The

prosecution was entitled to counter the evidence of good character offered by these

witnesses by exploring evidence of defendant’s bad character, including

defendant’s violent character. (People v. Cunningham (2001) 25 Cal.4th 926,

1024.) Based on the crimes of which defendant had been convicted as well as the

evidence detailed above, the prosecutor had a reasonable basis for believing the

witnesses would acknowledge defendant’s violent character. It was only after the


witnesses denied this character trait that the prosecutor sought to impeach them

with specific instances of violent conduct. This was not improper, especially since

defendant did not object when the prosecution elicited his relatives’ beneficial

testimony denying that he had a violent character.

Defendant’s reliance on cases barring the prosecutor from impeaching a

witness on a collateral matter is inapposite, since defendant’s violent character was

not collateral to the issue being decided at the penalty phase. Defendant’s claim of

error based on a lack of notice is likewise without merit. “The prosecutor did not

engage in misconduct in failing to raise the issue in limine; the primary concern in

restricting impeachment inquiry of this nature is with the good faith belief in its

foundation.” (People v. Ramos, supra, 15 Cal.4th at p. 1173.) As stated above,

defendant does not challenge the prosecutor’s good faith.

Defendant also claims that these specific incidents were offered as

unadjudicated violent conduct under section 190.3, factor (b) without providing

the defense with the notice required by section 190.3 and without informing the

jury these incidents could be considered as evidence in aggravation only if it found

them true beyond a reasonable doubt. He claims a violation of his rights under the

Fifth, Sixth, and Eighth Amendments. We agree that these specific incidents were

not admissible as evidence in aggravation under section 190.3, but no error

appears. The jury was instructed specifically that these incidents could not be

considered as aggravating factors and might be considered only as impeachment.

Finally, even if error occurred, it was harmless. Other than Diane’s

recollection that a sheriff’s deputy had told her defendant had a gun on his person

when he was arrested, the witnesses denied knowledge of any of the facts the

prosecutor allegedly attempted to elicit. In addition to instructing the jury that

defendant’s alleged possession of a firearm could not be considered as an

aggravating factor, the trial court gave CALJIC No. 1.02, which states that “[a]


question is not evidence,” that the jury must not assume to be true any insinuation

suggested by a question, and that it must disregard any evidence ordered stricken

by the court. Furthermore, no reference was made to any of these incidents in

closing argument.

For the same reasons, we find the trial court did not abuse its discretion in

denying defendant’s motion for a mistrial.

D. Alleged Prosecutorial Misconduct During Closing Argument

Defendant assigns error to a variety of comments uttered by the prosecutor

during argument. As detailed below, a great number of these claims are not

cognizable on appeal because defendant failed to interpose a contemporaneous

objection. Defendant’s reliance on People v. Hill, supra, 17 Cal.4th 800 to excuse

his default is unavailing. “There the prosecutor subjected the defense ‘to a

constant barrage of . . . unethical conduct, including misstating the evidence,

sarcastic and critical comments demeaning defense counsel, and propounding

outright falsehoods,’ and the trial court consistently failed to curb the prosecutor’s

excesses. (Id. at p. 821.) Such egregious conduct did not occur here.” (People v.

McDermott (2002) 28 Cal.4th 946, 1002.)

We also find that these claims, singly or in combination, do not warrant a

new penalty trial.

1. Taking Into Account “Any Criminal Activity”

In discussing the aggravating factors the jury could consider, the prosecutor

stated that, under the second aggravating factor, the jury “can take into account

any criminal activity which the defendant has been involved in that came out

during the guilt phase or penalty phase of the trial.” This was inaccurate,

inasmuch as “[e]vidence of nonviolent criminal activity that did not result in a

felony conviction is, as defendant claims, inadmissible as an aggravating factor.”

(People v. Visciotti, supra, 2 Cal.4th at p. 72.) The jury could not have been


misled, however. Defendant promptly objected and, following a sidebar

conference, the prosecutor corrected himself and stated that “the second element is

presence or absence of criminal activity by the defendant, other than the crimes for

which the defendant has been tried in the present proceeding, which involve the

use or attempted use of force or violence or the express or implied threat to use

force or violence.” Also, by failing to request a curative admonition, defendant

has forfeited any further challenge to the prosecutor’s momentary misstatement.

2. Misstating Weighing Process

The prosecutor argued to the jury, correctly, that “before you can consider

the death penalty, you must find that the factors in aggravation substantially

outweigh the factors in mitigation.” The prosecutor then turned to the mitigating

factors: “If you find that mitigating factors as presented to you in the underlying

case, the guilt phase of this trial and the penalty phase, outweigh the aggravating

factors, then you cannot consider the death penalty.” Defense counsel objected to

this characterization, pointing out at sidebar that this description of the process

was incomplete. The prosecutor promptly agreed to and did clarify the point to

the jury: “Let me modify what I said before. [¶] . . . In order to find the death

penalty, you must find that the aggravating factors must substantially outweigh the

mitigating factors, and if you find that it does not, then you cannot consider the

death penalty.” Once again, the jury could not have been misled and, by failing to

request a curative admonition, defendant has forfeited any further challenge to the

original misstatement.

We also reject the contention that the prosecutor, in warning jurors that

defendant’s prior criminal conduct could not be counted twice under factors (b)

and (c) of section 190.3, urged the jury to perform a mechanical counting of



3. Basing Decision on a “Gut Reaction”

In explaining how the penalty jury should approach its task, the prosecutor

stated that “[t]he decision is really your discretion. The only criteria you need to

use is your view of the world, your heart, your soul, your gut reaction . . . . [¶]

You may also consider sympathy and mercy.” Defendant, who objected below,

argues that the reference to a “gut reaction” invited the jury to rest its decision on

the arbitrary and capricious basis condemned in Furman v. Georgia (1972) 408

U.S. 238. The prosecutor’s remarks, understood in context, do not support

defendant’s characterization. The prosecutor was describing the decision process

“once you make this initial determination” that the aggravating factors

substantially outweigh the mitigating factors and that such a decision would

depend on the jurors’ view of the world, their hearts, their souls, and their gut

reactions—in sum, that the jurors would need to make a profound decision in

consultation with their consciences. (See People v. Dennis (1998) 17 Cal.4th 468,

548; People v. Turner (1990) 50 Cal.3d 668, 710-711.) The prosecutor’s reference

to a “gut reaction,” in combination with the other factors, in no way suggested the

jurors should make a quick or arbitrary choice.

4. Alleged Caldwell Error

In Caldwell v. Mississippi (1985) 472 U.S. 320, the prosecutor argued to

the jurors that theirs was not the final decision as to life or death, but that the case

would be reviewed by an appellate court. The United States Supreme Court

reversed the penalty determination, holding that “it is constitutionally

impermissible to rest a death sentence on a determination made by a sentencer

who has been led to believe that the responsibility for determining the

appropriateness of the defendant’s death rests elsewhere.” (Id. at pp. 328-329.)

Defendant complains that the prosecutor violated Caldwell here by telling the jury

that the responsibility for imposing death rested not with the jurors but with the


law and defendant’s conduct in committing the murders. “ ‘In determining

whether Caldwell error has occurred, “[w]e do not reach our conclusion based on

any single statement uttered by the prosecutor. Rather, we consider the

instructions of the court and the arguments of both prosecutor and defense

counsel.” [Citation.] We also must consider the prosecution’s statements within

the overall context of its closing argument. [Citation.]’ ” (People v. Young, supra,

34 Cal.4th at p. 1221.)

Defendant focuses in particular on the prosecutor’s statements that the

death penalty is “on the books today, it’s the law in this state, it’s to be imposed in

this case, if you find that aggravating substantially outweigh the mitigating

factors” and that “[i]t was defendant’s decision and his actions which has led to

this. [¶] So don’t necessarily assume total and whole responsibility for your

decision. You are just interpreting the facts, applying the law, as it’s given to you

by the judge.” We have already held, however, that a prosecutor, without running

afoul of Caldwell, may suggest “ ‘that the moral blame for the crimes and their

consequences rests with defendant, not with the jurors.’ ” (People v. Clark (1993)

5 Cal.4th 950, 1036.)

Defendant contends that Clark is distinguishable in that the prosecutor here

“strongly implied . . . that in this case the law required imposition of the death

penalty,” but we do not accept defendant’s characterization of the prosecutor’s

argument. The prosecutor had already explained to the jury that a finding the

aggravating factors substantially outweighed the mitigating factors was

necessary—yet not sufficient—to warrant a death sentence and that the choice in

such a circumstance was left to their discretion. Accordingly, by saying “it’s to be

imposed in this case if you find that aggravating substantially outweigh the

mitigating factors,” the prosecutor was merely describing the People’s position as

to the appropriate penalty, not announcing a rule of law. There was thus no


reasonable likelihood the prosecutor’s argument misled the jury regarding its

responsibility in selecting an appropriate penalty. (People v. Young, supra, 34

Cal.4th at p. 1222; cf. People v. Milner (1988) 45 Cal.3d 227, 254 [prosecutor’s

argument “did not so much shift the jury’s responsibility as negate its existence”].)

5. Comparing this Case with Other Cases

The prosecutor’s argument contrasted the circumstances of defendant’s

crimes with a murder “where a person goes into a restaurant with a gun or

machine gun and opens fire on the people eating in the restaurant” or “where a

man who has been working and has no criminal history for a period of thirty years,

coming home one day and all of a sudden murdering his wife and children.” In

the latter instances, “where a person sort of snaps emotionally or mentally for no

cause at all,” the jury would know “that there must be something there, some form

of mitigation that you can consider in those types of crimes.” In this case, the

prosecutor continued, “[t]hese murders were committed with the base antisocial

aim,” “for the purpose of taking money from the victims,” and “required

substantial planning and premeditation.” The prosecutor’s characterization of

defendant’s purpose was a fair comment on the evidence, and his effort to

highlight the heinous and unjustifiable nature of defendant’s crimes by reference

to generic murders presenting different fact patterns was not improper. (People v.

Lucas (1995) 12 Cal.4th 415, 499.) The prosecutor nowhere asked the jury to

consider the punishment meted out to persons other than defendant. (Cf. id. at p.


6. Alleged Appeal to Passion and Emotion

Defendant contends the prosecutor improperly urged the jury to rely on

“just retribution” and “controlled vengeance” in arriving at a verdict of death. It is

true that the prosecutor mentioned those concepts, but not to justify imposition of

the death penalty. A review of the prosecutor’s comments reveals that his


reference to “just retribution” was a description of human nature, not the criminal

justice system. Indeed, the prosecutor went on to explain that “[r]etribution and

controlled vengeance should not be any longer the sole or the dominant objective

of the criminal law.”

Defendant also errs in contending that the prosecutor’s invocation of

“anarchy” and “vigilante justice” led the jury to base its decision on caprice or

emotion, rather than on reason. Defendant forfeited his challenge to these remarks

by failing to object below. In any event, the prosecutor did not argue that the jury

should find that death was an appropriate punishment because of these concerns.

Rather, the prosecutor briefly suggested that if the jury found that death was the

appropriate punishment, it should not be afraid to impose it. (See Garland v. Com.

(Ky. 2003) 127 S.W.3d 529, 542-543.) At one point the prosecutor did state that a

refusal to impose death for a case “as serious and aggravated as this one cheapens

all our lives across the board because society is full of morally deficient people

who are morally deficient, . . . who suffer no remorse for the suffering of other

people or concern for aggrieved survivors,” but defendant did not object and

thereby has forfeited the claim of error. (People v. Bittaker (1989) 48 Cal.3d

1046, 1106.) Moreover, the jury was informed, in response to a juror question,

that it could not consider whether the death penalty “will or will not deter present

or future criminal activity.” Thus, even assuming an improper reference there to

notions of general deterrence, we do not discern in this sentence any of the

aggravated features we have found prejudicial in other cases. (People v. Varnum

(1969) 70 Cal.2d 480, 488; see generally People v. Davenport (1995) 11 Cal.4th

1171, 1222 [“ ‘ “[i]solated, brief references to retribution or community vengeance

. . . , although potentially inflammatory, do not constitute misconduct so long as

such arguments do not form the principal basis for advocating the imposition of

the death penalty” ’ ”].)


Finally, the prosecutor’s reference to defendant’s failure to show remorse

did not constitute misconduct. “[T]he presence or absence of remorse is a factor

“ ‘ “universally” deemed relevant to the jury’s penalty determination.’ ” (People

v. Marshall, supra, 13 Cal.4th at p. 855.) The prosecutor nowhere asked the jury

to consider the lack of remorse to be an aggravating factor. We have also held that

remarks of this type did not constitute improper comment on a defendant’s

exercise of his privilege against self-incrimination. (See People v. Ghent (1987)

43 Cal.3d 739, 770-771.) Defendant, moreover, neither objected nor sought an

admonition to the jury to disregard the comment, and thereby cannot complain on

appeal about it. (Marshall, supra, 13 Cal.4th at p. 855.)

7. Stating That Defendant Deserved Same Sympathy and Mercy as He

Showed His Victims

The prosecutor told the jury that defendant had tried to offer evidence to

instill a sense of sympathy but argued that defendant instead deserved “the same

sympathy and mercy” that he had shown to each of his four murder victims.

Defendant now claims this was misconduct, but he forfeited the claim by failing to

object to the prosecutor’s remarks. In any event, this was proper argument.

(People v. Hughes, supra, 27 Cal.4th at p. 395; People v. Ochoa (1998) 19 Cal.4th

353, 464-465.)

8. Alleged Misuse of Character Evidence

Defendant next finds error in various comments by the prosecutor relating

to character evidence offered by the defense. Defendant forfeited each of these

claims by failing to object to these comments below. (People v. Wader (1993) 5

Cal.4th 610, 658-659.) Defendant’s claims are also without merit.

The defense offered some speculation that defendant’s uncle had been

killed because he was a drug dealer and that defendant had been affected

emotionally by his murder. In argument, the prosecutor reasoned that “if you were


close to a dope dealer and that dope dealer was stabbed to death, that should be a

deterrent to that type of lifestyle. [¶] That didn’t stop the defendant.” This was

not error, since the prosecutor was merely arguing that the evidence offered by the

defense had little mitigating value. (People v. Caro (1988) 46 Cal.3d 1035, 1062.)

Nor do we find error in the prosecutor’s assertion that the mitigating

evidence presented was insufficient and “a concoction of half-truths presented by

well-intentioned individuals who are caring but misguided,” that defendant would

not be entitled to mercy even if his mitigating evidence had been true, and that

defense counsel had no additional mitigating evidence. These remarks were fair

comment on the evidence, not an attack on defense counsel’s integrity. (People v.

Bemore, supra, 22 Cal.4th at p. 846.)

The prosecutor arguably did err, however, in stating that defendant was a

drug dealer with an “explosive” personality that he inherited from his mother and

in speculating about “the lives that must have been destroyed” by his drug dealing.

Although defendant forfeited his challenge to these statements by failing to object

below, we also find no reasonable possibility that either point could have affected

the penalty verdict in light of defendant’s responsibility for four murders and the

prosecutor’s prompt reminder to the jury that these murders were the sole

aggravating factors.

9. Alleged Misstatements of Record




portions of the prosecutor’s argument were not

supported by the record. He complains first that the prosecutor improperly invited

the jury to consider how Tenoa Stevenson felt and what he was thinking “as he

helplessly stood in front of the defendant begging for his life just before he was

killed by the defendant.” This was not speculation, inasmuch as the record

demonstrated that while Stevenson was running away from defendant and Hicks,

he was yelling for help and trying to flag down passing cars. He also shouted,


“Someone is trying to kill me.” When defendant cornered Stevenson in the used

car lot, Stevenson sank to the ground and begged defendant not to kill him. The

argument was therefore proper (People v. Jones (1997) 15 Cal.4th 119, 188-189),

as was the prosecutor’s argument that what Stevenson experienced in that final

minute “was worse than anything the defendant has presented to you during the

entire penalty phase as to his entire life.”

Defendant then claims the prosecutor erroneously sought to prevent the jury

from considering whether defendant had acted under extreme duress or substantial

domination by another person under section 190.3, factor (g). A review of the

prosecutor’s comments, however, reveals that he argued only that the jury

“apparently did not believe” defendant’s claim of duress by convicting him of the

charged felonies. The prosecutor went on to say that “[y]ou can consider it if you

wish, but I submit to you, you refuted that argument, that defense, at the guilt


Finally, defendant complains about the prosecutor’s argument that

defendant planned to kill Landis Barnes. Defendant forfeited this claim by failing

to object below, but we also find the challenged argument was fair comment on

the evidence. The record supported a finding that defendant knew the drugs were

fake and that Barnes, who was about to test the drugs in front of the would-be

buyers when he was killed, did not. Barnes was shot twice—in the head and in the

chest—under circumstances indicating an intentional shooting. Defendant may

also have been concerned, as the prosecutor suggested, that Barnes could lead the

buyers “back to the perpetrators of this robbery. So they had to kill Landis.” The

record thus supported the prosecutor’s claim that “the perpetrators of this crime,

this triple homicide, were planning to kill the setup man, Landis Barnes, their

friend, from the very beginning.”


E. Alleged Instructional Error

1. Instructions Concerning Factor (c) of Section 190.3

The People relied on defendant’s prior convictions for murder, attempted

murder, and assault with a firearm, entered on June 5, 1992, as evidence in

aggravation. This evidence was offered under section 190.3, factor (b), as

evidence of criminal activity involving the use or attempted use of force, and

under factor (c), as evidence of prior felony convictions other than the crimes for

which defendant has been tried in the current proceeding. As the Attorney

General now concedes, this evidence was not admissible under factor (c), which is

limited to those felony convictions “entered before commission of the capital

crime.” (People v. Balderas, supra, 41 Cal.3d at p. 201.) Defendant argues that

the trial court therefore erred by including factor (c) among the factors the jury

could consider under CALJIC No. 8.85 (Factors for Consideration). We discern

no prejudice.

Defendant’s prior convictions for murder, attempted murder, and assault

with a firearm were still admissible under section 190.3, factor (b) as proof of

criminal activity by defendant, other than that for which he was then on trial,

which involved the use or attempted use of force or violence. (People v. Bradford

(1997) 15 Cal.4th 1229, 1374.) The trial court allowed these convictions to be

used under factor (b) and so instructed the jury. Consequently, the prosecutor’s

argument and the instructions concerning factor (c) could not have prejudiced

defendant. It is inconceivable the jury could have found these convictions

qualified as aggravating evidence under factor (c) but would not have made such a

finding under factor (b). (Bradford, supra, 15 Cal.4th at p. 1374.) 22


We also reject defendant’s contention that his convictions for attempted

murder and assault with a firearm could not be considered as aggravating factors

(footnote continued on next page)


We are likewise unpersuaded by defendant’s contention that the trial court

erred prejudicially in failing to instruct the jury sua sponte that it may consider

evidence of other crimes in aggravation only if such other crimes are proved

beyond a reasonable doubt. As defendant concedes, the instruction is not required

where, as here, “the defendant has already been convicted of the crime in

question.” (People v. Ashmus (1991) 54 Cal.3d 932, 1000.) Defendant argues the

instruction was nonetheless necessary because the prosecution, by offering Eula

Roberson’s testimony that defendant and Dwayne Reed (the murder victim) were

friends, went beyond the least adjudicated facts of the murder conviction. We

have not yet decided whether a reasonable-doubt instruction is required where the

People seek to prove “conduct” underlying the conviction other than the facts

necessarily established (id. at p. 1001, fn. 25), but we need not resolve the matter

here. Here, as in Ashmus, the People did not seek to prove conduct underlying

defendant’s murder conviction that appreciably exceeded the least adjudicated

facts. (Id. at p. 1001.) We further note that defendant offered to stipulate to the

fact about which he is now complaining, i.e., that defendant and Reed were

friends. Defendant thus suffered no prejudice. (People v. Kaurish (1990) 52

Cal.3d 648, 707-708.)

Finally, we reject defendant’s claim that the trial court erred in allowing

Roberson to opine that her nephew and defendant appeared to be friends. He

(footnote continued from previous page)

under section 190.3, factor (b) because neither the convictions themselves nor
their underlying facts were introduced at the penalty phase. The jury was entitled
to rely on evidence admitted in the guilt phase, including these convictions, and
was therefore properly instructed that these convictions, along with the Reed
murder, constituted the aggravating factors.


offers no authority to suggest a lay witness is incompetent to offer an opinion as to

friendship. Indeed, the defense itself offered lay opinions from defendant’s

mother and grandmother that he and Barnes were friends. In any event, the

defense was allowed to cross-examine Roberson and expose the basis for her

opinion to the jury, and the jury was instructed that it need not accept a lay opinion

but should give it the weight, if any, to which it is entitled. Under these facts, her

opinion, even if error, could not have been prejudicial.

2. Instruction Concerning Sympathy

The defense requested the following special instruction: “If the mitigating

evidence gives rise to compassion or sympathy for the defendant, the jury may,

based upon such sympathy or compassion alone, reject death as a penalty.” The

court denied the request, finding that it was redundant of other instructions. We

find no error.

As defense counsel conceded, the role of sympathy is “said in many

different ways” in the instructions that were given—“some ways fairly direct and

some ways peripherally, but basically it talks about the sympathy thing.” In

CALJIC No. 8.85 (Penalty Trial—Factors for Consideration), the jury was

instructed to take into account and be guided by the statutory factors, including

factor (k) of section 190.3. This instruction allowed the jury to consider “any

sympathetic or other aspect of the defendant’s character or record that the

defendant offers as a basis for a sentence less than death, whether or not related to

the offense for which he is on trial.” At defendant’s request, the jury was further

instructed that they may “use mercy, sympathy and/or sentiment in deciding what

weight to give each mitigating factor.” In addition, the jurors were instructed, in

accordance with CALJIC No. 8.88 (Penalty Trial—Concluding Instructions) that

they were “free to assign whatever moral or sympathetic value [they] deem

appropriate to each and all of the various factors you are permitted to consider.”


The instructions given also explained the significance of a single mitigating

circumstance, which necessarily included sympathy or compassion. At

defendant’s request, the jury was instructed that any one mitigating circumstance

“may be sufficient, standing alone, to support a decision that death is not the

appropriate punishment in this case” and that “[a]ny mitigating circumstance

presented to you may outweigh all the aggravating factors.”

Because these instructions informed the jury that sympathy and compassion

were legitimate factors for its consideration and that either alone could justify a

sentence of life imprisonment without the possibility of parole, the trial court did

not err in rejecting the defense special instruction. (People v. Smith (2005) 35

Cal.4th 334, 371.)

3. Instruction Concerning Absence of Mitigating Factor

Defendant complains next that the trial court refused a special instruction

that would have informed the jury that “[t]he absence of a statutory mitigating

factor does not constitute an aggravating factor.” “But as we have held, ‘a

reasonable juror could not have believed ... that the absence of mitigation

amounted to the presence of aggravation.’ [Citation.] And, contrary to

defendant’s contention, nothing in the prosecution's argument noting the absence

of various mitigating factors would have misled the jury to consider them as

aggravating factors.” (People v. Vieira (2005) 35 Cal.4th 264, 299; see also

People v. Stitely, supra, 35 Cal.4th at p. 574.)

4. Instruction Concerning Defendant’s Background

The trial court also refused a special instruction concerning defendant’s

background, which in pertinent part provided that “the evidence which has been

presented regarding the defendant’s background may only be considered by you as

mitigating evidence.” We have rejected the contention that the instructions should

identify the various aggravating and mitigating evidence. (People v. Martinez


(2003) 31 Cal.4th 673, 701.) In any event, since the court correctly instructed the

jury on aggravating and mitigating factors, it was not error to refuse the special

instruction. (People v. Ochoa, supra, 26 Cal.4th at p. 457.)

F. Constitutionality of California’s Death Penalty Statute

Defendant contends that the 1978 death penalty law under which he was

sentenced violates the Fifth, Sixth, Eighth, and Fourteenth Amendments. As he

concedes, we have rejected these claims before. We do again here. Thus, we find

that California’s death penalty statute meaningfully narrows the pool of murderers

eligible for the death penalty (People v. Prieto (2003) 30 Cal.4th 226, 276; People

v. Burgener, supra, 29 Cal.4th at p. 884 & fn. 7); that neither the breadth of the

“circumstances of the crime” in factor (a) of section 190.3 nor disagreement about

which circumstances are aggravating results in arbitrary or capricious application

of the death penalty (People v. Smith, supra, 35 Cal.4th at p. 373); that jurors need

not find beyond a reasonable doubt that a particular factor in aggravation exists,

that the aggravating factors outweigh the mitigating factors, or that death was the

appropriate penalty (People v. Burgener, supra, 29 Cal.4th at p. 885); that jurors

need not make written jury findings or achieve unanimity as to aggravating

circumstances (People v. Bolden (2002) 29 Cal.4th 515, 566); and that the jury

need not be instructed as to any burden or standard of proof in selecting the

penalty to be imposed (People v. Jenkins (2000) 22 Cal.4th 900, 1053-1054). The

decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona

(2002) 536 U.S. 584 have not altered our conclusions regarding the standard of

proof or unanimity. (People v. Monterroso (2004) 34 Cal.4th 743, 796.)

We likewise find that prosecutorial discretion to determine which

defendants merit the death penalty does not render the scheme invalid (People v.

Koontz, supra, 27 Cal.4th at p. 1095); that the jury may consider unadjudicated

criminal conduct in fixing the penalty (People v. Kipp, supra, 26 Cal.4th at p.


1138; People v. Smith, supra, 35 Cal.4th at p. 374); that intercase proportionality

is not required (People v. Lenart (2004) 32 Cal.4th 1107, 1130-1131); that the jury

need not be instructed certain factors can only be mitigating (People v. Kraft

(2000) 23 Cal.4th 978, 1078); that the death penalty law does not deny capital

defendants equal protection (People v. Smith, supra, 35 Cal.4th at p. 374; People

v. Panah, supra, 35 Cal.4th at p. 500); and that “ ‘[i]nternational law does not

prohibit a sentence of death rendered in accordance with state and federal

constitutional and statutory requirements’ ” (People v. Smith, supra, 35 Cal.4th at

p. 375).

G. Cumulative Error

Defendant contends that the cumulative prejudice of the errors he alleges

occurred in the guilt and penalty phases requires reversal. Our review, however,

has disclosed only a few errors. For each error or possible error, we have

determined that the prejudicial effect was minimal or nonexistent. Considering

them together, we likewise conclude that their cumulative effect does not warrant

reversal of the judgment.


A. Denial of Motion for Modification of Verdict

The trial court denied defendant’s motion for modification of the death

verdict (§ 190.4, subd. (e)) from the bench. The court found that defendant

murdered Landis Barnes and Albert Brown coldly and calculatedly in the motel

room, that defendant murdered Tenoa Stevenson while was running for his life

and begging for mercy, and that the mitigating factors were substantially

outweighed by these cold and brutal murders. Defendant argues that two

procedural errors denied him his rights under the Fifth, Sixth, Eighth, and

Fourteenth Amendments and entitle him to a new modification hearing. We



Defendant complains first that the trial court prejudged his modification

motion because it directed the prosecution to prepare a commitment order for a

judgment of death prior to the hearing on the modification motion but did not

direct the defense to prepare a judgment of life without the possibility of parole.

As we explained in People v. Seaton, supra, 26 Cal.4th at page 696, “[t]he trial

court’s apparent goal was simply to ensure that, if it decided to sentence defendant

to death, it could do so without any technical omissions in the pronouncement of

sentence. Its request for the prosecutor’s assistance in achieving this goal does not

show that it prejudged the matter.” (See also People v. Dennis, supra, 17 Cal.4th

at p. 550.) That the trial court asked the prosecutor for a form of judgment without

making the same request of the defense is not suspicious, inasmuch as a judgment

of death is uniquely governed by the time limit set forth in section 1217.

Defendant also complains that the court violated the requirement that a

ruling on the modification motion be based entirely on the evidence at trial

(People v. Williams (1988) 45 Cal.3d 1268, 1329) because, before the hearing on

the modification motion, the court heard a plea for the death penalty from Joan

Stevenson, Tenoa’s mother. Although the court should not have heard that plea,

the record rebuts any inference that the trial court relied on it. The trial court

announced that it had reviewed the evidence and the penalty “within the meaning

of and pursuant to the dictates of” People v. Lang (1989) 49 Cal.3d 991, which

states plainly that “the trial court is prohibited by statute from considering, when

ruling on the modification motion, any evidence not presented to the jury during

the trial.” (Id. at p. 1044.) Then, in stating her reasons for denying the motion, the

trial judge referred only to the evidence presented to the jury. (People v. Seaton,

supra, 26 Cal.4th at p. 695.) We likewise find that defendant forfeited any

challenge to Ms. Stevenson’s statement by failing to object at the modification

hearing. (See People v. Riel, supra, 22 Cal.4th at p. 1220.)


B. Denial of New Trial Motion

The trial court conducted a hearing on defendant’s motion for new trial, at

which defendant was represented by new counsel, and denied the motion.

Defendant now claims the trial court erred in failing to grant his motion for new

trial to the extent it was based on ineffective assistance of counsel under the state

and federal Constitutions. No error appears.

1. Counsel’s Concession That Defendant Was Guilty of Violating Health

and Safety Code Section 11355

In addition to the murders and attempted robbery, defendant was charged

with and convicted of selling or furnishing a substance in lieu of a controlled

substance in violation of Health and Safety Code section 11355. In opening

statement, defense counsel told the jury that “you are going to convict [defendant]

on the drug charge. There’s no doubt about that. That’s a given.” In argument,

counsel reiterated that defendant was guilty of that count but not guilty of the

murders and attempted robbery. At the hearing on the motion for new trial,

counsel defended this concession by pointing out it was “clear” defendant had

been a participant in a drug transaction “and we were not trying to hide that.” (See

People v. Hart (1999) 20 Cal.4th 546, 630-631.) Defendant agreed with this

strategy at the time, but now contends that defense counsel’s concession fatally

undermined his testimony that he was unaware the drugs were bunk.

There is no inconsistency between counsel’s concession and defendant’s

testimony. (See People v. McDaniel (1979) 24 Cal.3d 661, 670.) As the jury was

instructed, the drug charge required proof only that a person agreed or offered to

sell a controlled substance and then “delivers another substance in lieu thereof.”

Accordingly, counsel nowhere conceded that defendant was aware the drugs were



Defendant appears to admit as much in his reply brief, but faults trial

counsel nonetheless for failing to emphasize to the jury that defendant could be

guilty of violating Health & Safety Code section 11355 even if he never knew the

drugs were fake. No further explanation was required. In addition to the

instructions that listed the elements of the crime, defense counsel told the jury that

defendant “wasn’t there to rip anyone off,” and the prosecutor told the jury that the

defense position concerning the charge of attempted robbery (and the subsequent

murders) was that “he didn’t know the dope was bunk. He thought it was real.”

Thus, it is not reasonably likely the jury misconstrued the defense argument to

constitute an admission that defendant knew the drugs were fake.

2. Allowing Defendant to Testify and Failing to Bifurcate Prior-murder-

conviction Special Circumstance

Defendant claims next that, in light of counsel’s failure to bifurcate the

prior-murder-conviction special-circumstance allegation, counsel was

constitutionally ineffective in calling defendant to testify. We have already

rejected defendant’s claim that counsel erred in failing to bifurcate this special-

circumstance allegation. (See pt. III.B.3., ante.) We likewise reject the claim that

calling defendant to testify was an unreasonable tactical choice.

The gist of defendant’s claim is that the beneficial parts of his in-court

testimony could have been (and were) presented through his police statements,

thus eliminating the need for him to testify at trial and the opportunity to impeach

him with his prior convictions. Although defendant’s final account to police often

tracked his in-court testimony,23 defendant completely ignores the difference


There were, nonetheless, notable differences. At trial, defendant denied

knowing the drugs were fake or hearing Hicks mention his plan to “jack” the
buyers before they entered the motel room. Defendant also denied remaining in

(footnote continued on next page)


between giving the jury a personal account of what happened and subjecting the

jury to the numerous contradictory versions as recounted by a police officer who

had heard it from defendant at an earlier time. This was a matter of grave concern

to defense counsel, who realized they could not use a strategy “that said Eric was

not present, or that the identification was wrong, or something of this nature.” In

light of defendant’s numerous contradictory statements to police, which the

prosecution intended to and did present to the jury, counsel concluded it was

“absolutely essential” that defendant testify in person, since “[w]ithout his

testimony, we felt we had absolutely no chance whatsoever at guilt phase.”

Counsel hoped thereby “to make him into a credible witness so the jury would

acquit him.” This could occur only by putting defendant on the stand.

Counsel’s fear “if we did not put him on the stand, that we were looking at

an absolutely certain guilty verdict” appears reasonable. Had the jury heard only

the contradictory versions recounted as hearsay by police witnesses, the jury

would likely have discounted his testimony entirely and convicted him based

solely on the testimony of Cunningham, Santiago, and Johansen. (Cf. Johnson v.

Baldwin (9th Cir. 1997) 114 F.3d 835, 840 [the evidence of guilt was so weak the

jury “probably” would not have convicted the defendant had he not testified

falsely].) If, on the other hand, the jury could be convinced by defendant’s

demeanor that his testimony was (or possibly could be) true, then defendant would

be acquitted. As counsel was aware, however, this strategy would allow the

prosecution to impeach defendant with his prior convictions. Thus, neither

(footnote continued from previous page)

the motel room during the entire shooting episode and, in particular, denied seeing
who was shot first or when Hicks switched weapons.


strategy was risk-free. We cannot say that, in making the difficult choice between

these unappealing alternatives, counsel’s selection was unreasonable.

Counsel also had to weigh the likelihood that the trial would proceed to a

penalty phase. In that circumstance, the jury would eventually hear about all of

defendant’s prior convictions. Counsel believed, however, that the way in which

the jury discovered the prior convictions would affect their evaluation of the

appropriate penalty, and that it was therefore preferable to disclose that

information at the outset of the case. On this record, the delicate issues of timing

were quintessential matters of strategy, and once again we cannot say that

counsel’s choices were unreasonable.

Defendant’s unprovable assertion that, in hindsight, he would have been

“better served” by not testifying does not establish a denial of the effective

assistance of counsel. As the trial court found, counsel’s choice “was reasonable,

based on the facts that were presented here, and certainly within the bounds of the

behavior a reasonable attorney would do under the circumstances, though not

necessarily the way any other individual attorney may have handled the particular


3. Failing to File Section 995 Motion to Dismiss Attempted Robbery

Charge and Felony-murder Special Circumstances

The second amended felony complaint charged defendant, inter alia, with

first degree robbery. At the preliminary hearing, the prosecutor amended the

count to charge an attempted robbery. So amended, the magistrate sustained the

charge as well as the robbery-murder and burglary-murder special circumstances.

Defendant now contends, as he did in his motion for new trial, that counsel was

constitutionally ineffective in failing to file a section 995 motion to dismiss the

attempted robbery charge and the felony-murder special circumstances. We find

that counsel was not deficient because such a motion would not have succeeded.


Defendant notes, correctly, that nothing elicited at the preliminary hearing

indicated that the money was present in the motel room at the time of the

murders—but (contrary to defendant’s assertion) the attempted robbery charge did

not depend on the money being present. As the magistrate found, defendant

believed the money was present. According to Cunningham’s testimony, Barnes

said that defendant and his “buddy” wanted to see the money. Unknown to

defendant, Stevenson said he wanted to test the cocaine first. About 15 minutes

later, after Stevenson returned to the room, defendant and his “buddy” brought in

the packages. Although Cunningham had earlier asked Stevenson if “our girl”

was here and Stevenson said he had sent her back, this was before defendant

entered the room. Moreover, the import of the statement that Stevenson had “sent

her back” was, as Cunningham conceded, ambiguous. Since defendant would not

have brought in the packages if he thought “there had been no money,” the

magistrate reasonably inferred that defendant believed the money was present

from the fact that defendant brought in the packages. Thus, even if the money was

not actually present at that point, this would not undermine the attempted robbery

charge or the felony-murder special circumstances, which were based on an

attempted robbery. (See People v. Beardslee (1991) 53 Cal.3d 68, 87.)

4. Introducing Videotape of Crime Scene

Defense counsel showed the jury a videotape of the crime scene at the used

car lot to demonstrate to the jury “what could have been seen by Mr. Johansen”

from his vantage point. This tape also included footage of the crime scene at the

motel room, including the bullet holes, the bodies, and some blood. Defense

counsel justified his failure to edit the videotape to eliminate the motel room

scenes by pointing out that “all of the goriness that had occurred in that room had

already been shown to them time and time again” by photographic evidence.


We recognize that cocounsel would have preferred that the videotape have

been edited before being shown to the jury and that while the tape was shown, an

alternate juror (who never participated in deliberations) averted her eyes when a

body was moved and kept them averted for the remainder of the tape. However, it

is also true, as cocounsel testified, “that everything that was shown on that portion

of the videotape had been admitted through still photographs by the prosecution”

and, as the trial court noted, the other jurors “seemed to be interested in [the

videotape] and watching it.” Because counsel’s failure to edit the videotape thus

does not undermine confidence in the outcome, the trial court did not err in

denying the motion for a new trial.

C. Record Correction Process

Defendant claims the record correction process revealed several significant

violations of his rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments, the corresponding provisions of the state Constitution, and Penal

Code sections 190.9 and 1138. He asserts the errors, which fall into three

categories, mandate a new trial. We disagree.

First, defendant complains the trial court consulted with the parties by

telephone, without a record being made, to discuss four requests by the jury. The

jury asked for a television with a videotape player to view a videotape exhibit and

for photographic exhibits of the victims; the jury also asked whether the verdicts

should be returned serially or all at once and whether it was permissible to

consider the deterrent effect of the death penalty.

Although the failure to transcribe these discussions was a violation of

section 190.9, which requires that all proceedings in a capital case be conducted

on the record with a reporter present and a transcript prepared, “ ‘[n]o presumption

of prejudice arises from the absence of materials from the appellate record

[citation], and defendant bears the burden of demonstrating that the record is


inadequate to permit meaningful appellate review.’ ” (People v. Wilson, supra,

36 Cal.4th at p. 325.) Defendant has not discharged his burden. He does not

contend that he objected to the responses the court gave, nor does he object to

them now. As the trial court found, these were “fairly mundane requests.”

Defendant has not demonstrated that the trial court responded to these requests

without notifying counsel (see People v. Carter (2003) 30 Cal.4th 1166, 1215) but,

even if the trial court did so, defendant has not demonstrated prejudice. (Ibid.)

Assuming arguendo the trial court also erred in conducting these proceedings

without obtaining a personal waiver of defendant’s right to be present, we do not

detect any prejudice or unfairness to defendant. (People v. Lucero (2000) 23

Cal.4th 692, 717; see also People v. Hawthorne, supra, 4 Cal.4th at pp. 67-69 &

fn. 13.)

Second, defendant complains that People’s exhibit 33, which consisted of

several photographs of the Dwayne Reed murder scene introduced at the penalty

phase, and the juror handbook were lost. As to the photographic exhibit, the

People produced the originals and color copies of the photographs during the

record correction process. The version of the juror handbook given to the

prospective jurors was not found. In neither instance has defendant demonstrated

an impairment of his right to meaningful appellate review. (Cf. People v. Heard

(2003) 31 Cal.4th 946, 969-971 [missing juror questionnaires].)


Third, defendant complains that the trial court erred in denying his request

to seal his attorney’s billing records, which had been included in the clerk’s

transcript, and asks us to order them sealed or, in the alternative, to direct that no

information contained therein may be used against him in this or future

proceedings. This contention, which does not involve the validity of the judgment

or the process leading to it and does not seek reversal or modification of any part

of the judgment, is not cognizable on appeal. Defendant may seek relief, if any,

by separate motion.


The judgment is affirmed.





* Associate Justice of the Court of Appeal, Second Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


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

Name of Opinion People v. Hinton

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: January 26, 2006

County: Los Angeles
Judge: Victoria Chavez


Attorneys for Appellant:

Jay L. Lichtman and Tracy J. Dressner, under appointments by the Supreme Court, for Defendant and


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.

Hamanaka, Assistant Attorney General, John R. Gorey and Gary A. Lieberman, Deputy Attorneys General,
for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Jay L. Lichtman
Law Offices of Jay L. Lichtman
3550 Wilshire Blvd., Suite 2000
Los Angeles, CA 90010
(213) 386-3878

Tracy J. Dressner
3115 Foothill Boulevard, #M-172
La Crescenta, CA 91214
(818) 248-2961

Gary A. Lieberman
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-6863


Opinion Information
Date:Docket Number:
Thu, 01/26/2006S037302

1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Gary A. Lieberman, Deputy Attorney General
300 South Spring Street, 5th Floor
Los Angeles, CA

2Hinton, Eric Lamont (Appellant)
San Quentin State Prison
Represented by Jay L. Lichtman
Law Offices of Jay L. Lichtman
3550 Wilshire Boulevard, Suite 2000
Los Angeles, CA

3Hinton, Eric Lamont (Appellant)
San Quentin State Prison
Represented by Tracy J. Dressner
Attorney at Law
3115 Foothill Blvd., #M-172
La Crescenta, CA

Jan 26 2006Opinion: Affirmed

Dec 10 1993Judgment of death
Jan 12 1994Filed certified copy of Judgment of Death Rendered
Aug 10 1998Filed:
  Request by Counsel for Dual representation appointment.
Aug 10 1998Filed:
  Request by Inmate for Dual representation.
Aug 19 1998Compensation awarded counsel
Aug 19 1998Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Jay L. Lichtman is appointed to represent appellant for noth the direct appeal and related state habeas corpus/executive clemency proceedings.
Sep 14 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Sep 15 1998Extension of Time application Granted
  To Applt To 11-19-98 To request Corr. of Record.
Sep 17 1998Filed:
  Suppl Proof of Service of request for Ext. of Time.
Nov 16 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Nov 17 1998Extension of Time application Granted
  To 1-19-98 To request Record correction
Jan 15 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jan 19 1999Extension of Time application Granted
  To Applt To 3-22-99 To request Corr. of Record.
Mar 18 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 24 1999Compensation awarded counsel
Mar 26 1999Extension of Time application Granted
  To 5-21-99 To request Record correction no further Extensions of time Are Contemplated
May 25 1999Received copy of appellant's record correction motion
  Request to correct, augment the record, seal documents, examine confidential documents and settle the record (23 pp.)
Jun 16 1999Compensation awarded counsel
Jun 30 1999Compensation awarded counsel
Oct 27 1999Compensation awarded counsel
  Atty Lichtman
Jul 10 2000Counsel's status report received (confidential)
Sep 11 2000Counsel's status report received (confidential)
Nov 30 2000Counsel's status report received (confidential)
Jan 16 2001Counsel's status report received (confidential)
Mar 8 2001Record on appeal filed
  C-30 (7521 pp.) and R-48 (5509 pp.) including material under seal; Clerk's Transcript includes 4,305 pages of Juror Questionnaires.
Mar 8 2001Appellant's opening brief letter sent, due:
Mar 14 2001Counsel's status report received (confidential)
  from atty Lichtman.
Apr 4 2001Filed:
  RT dated 2/23/2001 (4 pp.)
Apr 10 2001Application for Extension of Time filed
  To file AOB. (1st request)
Apr 12 2001Extension of Time application Granted
  To 6/18/2001 to file AOB.
May 3 2001Compensation awarded counsel
  Atty Lichtman
May 14 2001Counsel's status report received (confidential)
Jun 11 2001Application for Extension of Time filed
  To file AOB. (2nd request)
Jun 14 2001Filed:
  Supplemental declaration to application for extension of time to file AOB.
Jun 15 2001Extension of Time application Granted
  To 8/17/2001 to file AOB.
Jul 16 2001Counsel's status report received (confidential)
Aug 14 2001Application for Extension of Time filed
  To file AOB. (3rd request)
Aug 15 2001Extension of Time application Granted
  To 10/16/2001 to file AOB.
Sep 17 2001Counsel's status report received (confidential)
Sep 17 2001Motion filed
  to appoint Tracy J. Dressner as associate counsel for the direct appeal and habeas corpus/executive clemency proceedings.
Oct 9 2001Filed:
  Request by attorney, Tracy Dressner, for dual representation appointment.
Oct 15 2001Application for Extension of Time filed
  To file AOB. (4th request)
Oct 15 2001Filed:
  Suppl. declaration of Tracy J. Dressner in support of applcation for appointment as associate counsel.
Oct 17 2001Extension of Time application Granted
  To 12/17/2001 to file AOB.
Oct 17 2001Order filed:
  Good cause appearing, the application of appointed counsel Jay L. Lichtman for the appointment of associate counsel, filed September 17, 2001, is granted. Tracy J. Dressner is hereby appointed as associate counsel to represent appellant Eric Lamont Hinton for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court.
Nov 16 2001Counsel's status report received (confidential)
  from atty Lichtman.
Dec 13 2001Request for extension of time filed
  To file AOB. (5th request)
Dec 21 2001Extension of time granted
  To 2/15/2002 to file AOB. Only two further extensions totaling 94 additional days are contemplated.
Jan 7 2002Change of Address filed for:
  Atty. Jay L. Lichtman.
Jan 15 2002Counsel's status report received (confidential)
  from atty Lichtman.
Feb 13 2002Request for extension of time filed
  To file AOB. (6th request)
Feb 20 2002Extension of time granted
  To 4/16/2002 to file AOB. Lead counsel Jay L. Lichtman anticipates filing the brief by 5/20/2002. Only one further extension for 34 additional days is contemplated.
Mar 15 2002Counsel's status report received (confidential)
  from atty Lichtman.
Apr 15 2002Request for extension of time filed
  To file AOB. (7th request)
Apr 18 2002Extension of time granted
  To 6/17/2002 to file AOB. Counsel anticipates filing the brief by 7/22/2002. Only one further extension totaling 35 additonal days is contemplated.
May 20 2002Counsel's status report received (confidential)
  from atty Lichtman.
Jun 14 2002Request for extension of time filed
  To file AOB. (8th request)
Jun 21 2002Extension of time granted
  to 8-16-2002 to file AOB. After that date, only one further extension totaling 38 additional days will be granted. Extension granted based upon counsel Jay Lichtman's representation that he anticipates filing the brief by 9-23-2002.
Jul 15 2002Counsel's status report received (confidential)
  from atty Lichtman.
Aug 14 2002Request for extension of time filed
  to file AOB. (9th request)
Aug 19 2002Extension of time granted
  to 9-23-2002 to file AOB. After that date, no further extension is contemplated. Extension granted based upon counsel Lichtman's representation that he anticipates filing the brief by 9-23-2002.
Aug 29 2002Request for extension of time filed
  to file AOB. (10th request)
Sep 3 2002Extension of time granted
  to 10-15-2002 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Jay Lichtman's representation that he anticipates filing the brief by 10-14-2002.
Sep 16 2002Counsel's status report received (confidential)
  from atty Lichtman.
Oct 15 2002Application to file over-length brief filed
  (647 pp. opening brief filed under separate cover)
Oct 21 2002Order filed
  Appellant's application for leave to file oversized opening brief is granted.
Oct 21 2002Appellant's opening brief filed
  (647 pp.)
Nov 19 2002Request for extension of time filed
  to file respondent's brief. [1st. request]
Nov 21 2002Extension of time granted
  to 1-21-2003 to file resp's brief.
Dec 26 2002Counsel's status report received (confidential)
Jan 17 2003Request for extension of time filed
  to file respondent's brief. [2nd. request]
Jan 21 2003Filed:
  Declaration of attorney Jay L. Lichtman (confidential).
Jan 23 2003Extension of time granted
  to 3/24/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Gary A. Lieberman's representation that he anticipates filing that brief by 3/24/2003. After that date, no further extension is contemplated.
Jan 24 2003Compensation awarded counsel
  Atty Lichtman
Feb 18 2003Change of Address filed for:
  Appellant's counsel Jay L. Lichtman.
Feb 24 2003Counsel's status report received (confidential)
Mar 24 2003Respondent's brief filed
  (200 pp.)
Mar 24 2003Request for judicial notice filed (in AA proceeding)
  by respondent.
Apr 18 2003Request for extension of time filed
  to file appellant's reply breif and request for relief from default. (1st request)
Apr 21 2003Extension of time granted
  to 6/13/2003 to file appellant's reply brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension is granted based upon counsel Jay L. Lichtman's representation that he anticipates filing that brief by 8/12/2003.
Apr 25 2003Counsel's status report received (confidential)
May 6 2003Compensation awarded counsel
  Atty Lichtman
Jun 11 2003Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Jun 16 2003Extension of time granted
  to 8/12/2003 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Jay L. Licthman's representation that he anticipates filing that brief by 9/12/2003.
Jun 27 2003Counsel's status report received (confidential)
Aug 7 2003Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Aug 12 2003Extension of time granted
  to 10/14/2003 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Jay L. Lichtman's represenation that he anticipates filing that brief by 11/12/2003.
Aug 28 2003Counsel's status report received (confidential)
Oct 9 2003Request for extension of time filed
  to file appellant's reply brief. (4th request)
Oct 17 2003Extension of time granted
  to 11/12/2003 to file appellant's reply brief. Extension is granted based upon counsel Jay L. Lichtman's representation that he anticipates filing that brief by 11/12/2003. After that date, no further extension is contemplated.
Oct 21 2003Compensation awarded counsel
  Atty Lichtman
Oct 30 2003Request for extension of time filed
  to file appellant's reply brief. (5th request)
Oct 30 2003Counsel's status report received (confidential)
Nov 4 2003Extension of time granted
  to 12/5/2003 to file the appellant's reply brief. Extension is granted based upon counsel Jay L. Lichtman's representation that he anticipates filing that brief by 12/5/2003. After that date, no further extension will be granted.
Dec 5 2003Filed:
  appellant's application for leave to file oversized reply brief. (brief submitted under separate cover)
Dec 10 2003Order filed
  Appllant's "Application for leave to file oversized reply brief" is granted.
Dec 10 2003Appellant's reply brief filed
  (152 pp.)
Jan 20 2004Filed:
  Notice of Errata to appellant's reply brief.
Mar 23 2004Letter sent to:
Mar 29 2004Counsel's status report received (confidential)
May 3 2004Habeas funds request filed (confidential)
Jun 2 2004Related habeas corpus petition filed (concurrent)
  case no. S125276.
Jun 23 2004Order filed re habeas funds request (confidential)
Jun 23 2004Compensation awarded counsel
  Atty Lichtman
Aug 5 2004Compensation awarded counsel
  Atty Lichtman
May 2 2005Habeas funds request filed (confidential)
  Second verified request.
Aug 10 2005Order filed re habeas funds request (confidential)
  Werdegar, J., was absent and did not participate.
Sep 22 2005Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the November calendar, to be held the week of Nov. 7, 2005, in Sacramento. 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.
Oct 12 2005Case ordered on calendar
  11-09-05, 1:30 p.m., in Sacramento
Oct 17 2005Filed:
  Letter from Gary A. Lieberman, Deputy Attorney General, stipulating to Justice Kennard's participation in the case even though she will not be present at oral argument.
Oct 17 2005Filed:
  Letter from Jay L. Lichtman, counsel for Eric Lamont Hinton, stipulating to Justice Kennard's participation in the case even though she will not be present at oral argument.
Oct 24 2005Filed letter from:
  attorney Jay L. Litchman, dated 10/20/2005, re focus issues for oral argument, request for 45 minutes for argument and request that two counsel be permitted to argue.
Oct 24 2005Filed letter from:
  respondent, dated 10-24-05, re focus issues for oral argument and request for 45 minutes for argument.
Oct 24 2005Order filed
  The request of appellant for permission to be represented by two counsel at oral argument is granted.
Oct 26 2005Received:
  letter from respondent, dated 10/26/2005, re additional authorities for oral argument.
Oct 26 2005Request for judicial notice granted
  Respondent's request for judicial notice, filed March 24, 2003, is granted.
Nov 9 2005Cause argued and submitted
Jan 9 2006Compensation awarded counsel
  Atty Lichtman
Jan 9 2006Compensation awarded counsel
  Atty Lichtman
Jan 26 2006Opinion filed: Judgment affirmed in full
  Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno & Curry (CA 2/4 assigned) JJ.
Feb 14 2006Rehearing petition filed
  by appellant. (9589 words; 46 pp. - pursuant to rule 40.1(b)(3)(A))
Feb 21 2006Time extended to consider modification or rehearing
  The time for granting or denying rehearing is extended to and including April 26, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
Apr 12 2006Rehearing denied
  On the court's own motion the opinion is modified. Petition for rehearing DENIED. Werdegar, J., was absent and did not participate.
Apr 12 2006Opinion modified - no change in judgment
Apr 12 2006Remittitur issued (AA)
Apr 12 2006Order filed (150 day statement)
Apr 20 2006Received:
  receipt for remittitur.
Aug 15 2006Received:
  Letter from U.S.S.C., dated August 11, 2006, advising that the petition for writ of certiorari was filed on July 6, 2006, and placed on the docket on August 11, 2006 as No. 06-5852.
Nov 17 2006Received:
  letter from U.S.S.C., dated November 13, 2006, advising that cert. petition was denied that date.

Oct 21 2002Appellant's opening brief filed
Mar 24 2003Respondent's brief filed
Dec 10 2003Appellant's reply brief filed
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