Filed 1/26/06
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S037302
v.
ERIC LAMONT HINTON,
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.
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
This appeal is automatic. We affirm the judgment.
I. BACKGROUND
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
lot.
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
2
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.
3
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.
4
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
5
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.
6
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
7
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
2
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.
8
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
9
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
neighborhood.
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
3
Miranda v. Arizona (1966) 384 U.S. 436.
10
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.
4
The record does not reflect whether this interview ever took place.
11
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
12
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
13
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
5
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.
14
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,
15
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.
16
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.
II. JURY-SELECTION ISSUES
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
6
Hovey v. Superior Court (1980) 28 Cal.3d 1.
17
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
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)
18
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.)
19
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
out.
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
20
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
21
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
instructions].)
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.)
III. GUILT PHASE ISSUES
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.’ ” ’
22
[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
23
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.
24
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
25
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
Code.”
Two portions of the cross-examination merit closer attention, however.
26
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
27
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.
8
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.
28
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
9
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.”
29
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
10
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.
30
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,”
31
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
32
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
33
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
34
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.
35
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
allegations.
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
36
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
37
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
38
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
defendant.12
11
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.
12
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)
39
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
conviction.
“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.)
40
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
conviction.
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
41
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
42
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,
415.)
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
43
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
13
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.)
44
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
Amendments.
45
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
46
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.
370.)
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
Roberson.
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
47
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
48
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
49
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.)
50
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)
51
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
52
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
53
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,
14
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.)
54
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
15
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.
16
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.
55
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
evidence.
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.
56
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
57
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
17
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.
58
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.
59
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
60
(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
61
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
62
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.)
63
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
18
At trial, defendant admitted that these statements were lies.
64
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
murders.
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
untrue.
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
19
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.
65
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
20
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.
66
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
67
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
occurred.
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
68
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
merits.
“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,
21
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.
69
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
70
(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
labors.
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
71
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.
IV. PENALTY PHASE ISSUES
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
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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,
12.)
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.
73
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
phase.”
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
aggravation.
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
74
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.
75
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,
76
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.”
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“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
78
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]
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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
80
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
factors.
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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
82
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
83
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.
498.)
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
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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” ’ ”].)
85
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
86
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
Defendant
claims
that
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,
87
“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
phase.”
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.”
88
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
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)
89
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.
90
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.”
91
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
92
(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.
93
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.
V. POSTVERDICT ISSUES
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
disagree.
94
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.)
95
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
fake.
96
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
23
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)
97
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.
98
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
matter.”
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.
99
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.
100
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
101
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].)
102
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.
VI. DISPOSITION
The judgment is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CURRY, J.*
________________________________________________
* 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.
103
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. S037302
Date Filed: January 26, 2006
__________________________________________________________________________________
Court: Superior
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
Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Gary A. Lieberman, Deputy Attorneys General,
for Plaintiff and Respondent.
1
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
2
Opinion Information
| Date: | Docket Number: |
| Thu, 01/26/2006 | S037302 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Gary A. Lieberman, Deputy Attorney General 300 South Spring Street, 5th Floor Los Angeles, CA |
| 2 | Hinton, 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 |
| 3 | Hinton, Eric Lamont (Appellant) San Quentin State Prison Represented by Tracy J. Dressner Attorney at Law 3115 Foothill Blvd., #M-172 La Crescenta, CA |
| Disposition | |
| Jan 26 2006 | Opinion: Affirmed |
| Dockets | |
| Dec 10 1993 | Judgment of death |
| Jan 12 1994 | Filed certified copy of Judgment of Death Rendered 12-10-93. |
| Aug 10 1998 | Filed: Request by Counsel for Dual representation appointment. |
| Aug 10 1998 | Filed: Request by Inmate for Dual representation. |
| Aug 19 1998 | Compensation awarded counsel |
| Aug 19 1998 | Counsel 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 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 15 1998 | Extension of Time application Granted To Applt To 11-19-98 To request Corr. of Record. |
| Sep 17 1998 | Filed: Suppl Proof of Service of request for Ext. of Time. |
| Nov 16 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 17 1998 | Extension of Time application Granted To 1-19-98 To request Record correction |
| Jan 15 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jan 19 1999 | Extension of Time application Granted To Applt To 3-22-99 To request Corr. of Record. |
| Mar 18 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 24 1999 | Compensation awarded counsel |
| Mar 26 1999 | Extension of Time application Granted To 5-21-99 To request Record correction no further Extensions of time Are Contemplated |
| May 25 1999 | Received 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 1999 | Compensation awarded counsel |
| Jun 30 1999 | Compensation awarded counsel |
| Oct 27 1999 | Compensation awarded counsel Atty Lichtman |
| Jul 10 2000 | Counsel's status report received (confidential) |
| Sep 11 2000 | Counsel's status report received (confidential) |
| Nov 30 2000 | Counsel's status report received (confidential) |
| Jan 16 2001 | Counsel's status report received (confidential) |
| Mar 8 2001 | Record 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 2001 | Appellant's opening brief letter sent, due: 4/17/2001 |
| Mar 14 2001 | Counsel's status report received (confidential) from atty Lichtman. |
| Apr 4 2001 | Filed: RT dated 2/23/2001 (4 pp.) |
| Apr 10 2001 | Application for Extension of Time filed To file AOB. (1st request) |
| Apr 12 2001 | Extension of Time application Granted To 6/18/2001 to file AOB. |
| May 3 2001 | Compensation awarded counsel Atty Lichtman |
| May 14 2001 | Counsel's status report received (confidential) |
| Jun 11 2001 | Application for Extension of Time filed To file AOB. (2nd request) |
| Jun 14 2001 | Filed: Supplemental declaration to application for extension of time to file AOB. |
| Jun 15 2001 | Extension of Time application Granted To 8/17/2001 to file AOB. |
| Jul 16 2001 | Counsel's status report received (confidential) |
| Aug 14 2001 | Application for Extension of Time filed To file AOB. (3rd request) |
| Aug 15 2001 | Extension of Time application Granted To 10/16/2001 to file AOB. |
| Sep 17 2001 | Counsel's status report received (confidential) |
| Sep 17 2001 | Motion filed to appoint Tracy J. Dressner as associate counsel for the direct appeal and habeas corpus/executive clemency proceedings. |
| Oct 9 2001 | Filed: Request by attorney, Tracy Dressner, for dual representation appointment. |
| Oct 15 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Oct 15 2001 | Filed: Suppl. declaration of Tracy J. Dressner in support of applcation for appointment as associate counsel. |
| Oct 17 2001 | Extension of Time application Granted To 12/17/2001 to file AOB. |
| Oct 17 2001 | Order 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 2001 | Counsel's status report received (confidential) from atty Lichtman. |
| Dec 13 2001 | Request for extension of time filed To file AOB. (5th request) |
| Dec 21 2001 | Extension of time granted To 2/15/2002 to file AOB. Only two further extensions totaling 94 additional days are contemplated. |
| Jan 7 2002 | Change of Address filed for: Atty. Jay L. Lichtman. |
| Jan 15 2002 | Counsel's status report received (confidential) from atty Lichtman. |
| Feb 13 2002 | Request for extension of time filed To file AOB. (6th request) |
| Feb 20 2002 | Extension 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 2002 | Counsel's status report received (confidential) from atty Lichtman. |
| Apr 15 2002 | Request for extension of time filed To file AOB. (7th request) |
| Apr 18 2002 | Extension 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 2002 | Counsel's status report received (confidential) from atty Lichtman. |
| Jun 14 2002 | Request for extension of time filed To file AOB. (8th request) |
| Jun 21 2002 | Extension 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 2002 | Counsel's status report received (confidential) from atty Lichtman. |
| Aug 14 2002 | Request for extension of time filed to file AOB. (9th request) |
| Aug 19 2002 | Extension 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 2002 | Request for extension of time filed to file AOB. (10th request) |
| Sep 3 2002 | Extension 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 2002 | Counsel's status report received (confidential) from atty Lichtman. |
| Oct 15 2002 | Application to file over-length brief filed (647 pp. opening brief filed under separate cover) |
| Oct 21 2002 | Order filed Appellant's application for leave to file oversized opening brief is granted. |
| Oct 21 2002 | Appellant's opening brief filed (647 pp.) |
| Nov 19 2002 | Request for extension of time filed to file respondent's brief. [1st. request] |
| Nov 21 2002 | Extension of time granted to 1-21-2003 to file resp's brief. |
| Dec 26 2002 | Counsel's status report received (confidential) |
| Jan 17 2003 | Request for extension of time filed to file respondent's brief. [2nd. request] |
| Jan 21 2003 | Filed: Declaration of attorney Jay L. Lichtman (confidential). |
| Jan 23 2003 | Extension 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 2003 | Compensation awarded counsel Atty Lichtman |
| Feb 18 2003 | Change of Address filed for: Appellant's counsel Jay L. Lichtman. |
| Feb 24 2003 | Counsel's status report received (confidential) |
| Mar 24 2003 | Respondent's brief filed (200 pp.) |
| Mar 24 2003 | Request for judicial notice filed (in AA proceeding) by respondent. |
| Apr 18 2003 | Request for extension of time filed to file appellant's reply breif and request for relief from default. (1st request) |
| Apr 21 2003 | Extension 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 2003 | Counsel's status report received (confidential) |
| May 6 2003 | Compensation awarded counsel Atty Lichtman |
| Jun 11 2003 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Jun 16 2003 | Extension 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 2003 | Counsel's status report received (confidential) |
| Aug 7 2003 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Aug 12 2003 | Extension 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 2003 | Counsel's status report received (confidential) |
| Oct 9 2003 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Oct 17 2003 | Extension 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 2003 | Compensation awarded counsel Atty Lichtman |
| Oct 30 2003 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Oct 30 2003 | Counsel's status report received (confidential) |
| Nov 4 2003 | Extension 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 2003 | Filed: appellant's application for leave to file oversized reply brief. (brief submitted under separate cover) |
| Dec 10 2003 | Order filed Appllant's "Application for leave to file oversized reply brief" is granted. |
| Dec 10 2003 | Appellant's reply brief filed (152 pp.) |
| Jan 20 2004 | Filed: Notice of Errata to appellant's reply brief. |
| Mar 23 2004 | Letter sent to: |
| Mar 29 2004 | Counsel's status report received (confidential) |
| May 3 2004 | Habeas funds request filed (confidential) |
| Jun 2 2004 | Related habeas corpus petition filed (concurrent) case no. S125276. |
| Jun 23 2004 | Order filed re habeas funds request (confidential) |
| Jun 23 2004 | Compensation awarded counsel Atty Lichtman |
| Aug 5 2004 | Compensation awarded counsel Atty Lichtman |
| May 2 2005 | Habeas funds request filed (confidential) Second verified request. |
| Aug 10 2005 | Order filed re habeas funds request (confidential) Werdegar, J., was absent and did not participate. |
| Sep 22 2005 | Oral 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 2005 | Case ordered on calendar 11-09-05, 1:30 p.m., in Sacramento |
| Oct 17 2005 | Filed: 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 2005 | Filed: 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 2005 | Filed 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 2005 | Filed letter from: respondent, dated 10-24-05, re focus issues for oral argument and request for 45 minutes for argument. |
| Oct 24 2005 | Order filed The request of appellant for permission to be represented by two counsel at oral argument is granted. |
| Oct 26 2005 | Received: letter from respondent, dated 10/26/2005, re additional authorities for oral argument. |
| Oct 26 2005 | Request for judicial notice granted Respondent's request for judicial notice, filed March 24, 2003, is granted. |
| Nov 9 2005 | Cause argued and submitted |
| Jan 9 2006 | Compensation awarded counsel Atty Lichtman |
| Jan 9 2006 | Compensation awarded counsel Atty Lichtman |
| Jan 26 2006 | Opinion 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 2006 | Rehearing petition filed by appellant. (9589 words; 46 pp. - pursuant to rule 40.1(b)(3)(A)) |
| Feb 21 2006 | Time 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 2006 | Rehearing 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 2006 | Opinion modified - no change in judgment |
| Apr 12 2006 | Remittitur issued (AA) |
| Apr 12 2006 | Order filed (150 day statement) |
| Apr 20 2006 | Received: receipt for remittitur. |
| Aug 15 2006 | Received: 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 2006 | Received: letter from U.S.S.C., dated November 13, 2006, advising that cert. petition was denied that date. |
| Briefs | |
| Oct 21 2002 | Appellant's opening brief filed |
| Mar 24 2003 | Respondent's brief filed |
| Dec 10 2003 | Appellant's reply brief filed |
