Filed 2/4/08
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S029489
v.
ALPHONSO HOWARD,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A646953-01
Defendant Alphonso Howard was sentenced to death after a jury convicted
him of first degree murder, rape, and a forcible lewd act upon a child under the age
of 14. The jury found that he personally used a firearm during the offenses,1 and
that he caused bodily injury to the child while committing the lewd act.2 The
special circumstances supporting the imposition of the death penalty were that the
rape and forcible lewd act upon a child occurred while defendant committed the
murder.3 We affirm the judgment.
1
Penal Code sections 1203.06, subdivision (a)(1)(A) and 12022.5,
subdivision (a). Statutory references are to the Penal Code unless otherwise
stated.
2
Section 1203.066, subdivision (a)(2).
3
Section 190.2, subdivision (a)(17)(C) and (E).
1
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt
Phase
1. Prosecution
Evidence
a.
Wendy’s
disappearance
Eleven-year-old Wendy Bustamante lived with her parents, Carlos and
Soila Bustamante, in Compton. On April 2, 1988, at 4:30 p.m., Wendy went
outside to play. Five minutes later, Mrs. Bustamante realized she was missing and
began searching for her.
One of Wendy’s playmates was K., defendant’s younger sister. K. and
their mother, Mary Williams, lived several doors down from the Bustamante
family. Mrs. Williams called the police for Mrs. Bustamante, who did not speak
English.
Defendant had a room in the back of a converted garage located on Mrs.
Williams’s property, but detached from her house.
b.
The investigation and defendant’s statements
Defendant made five statements to the police. He began by denying any
involvement in the disappearance.
On April 3, the day after Wendy was reported missing, Officer Louis
Mendez interviewed defendant as part of the ongoing investigation of the
disappearance. Defendant said that Wendy had come to the Williams residence
seeking $5 in payment for earrings she had sold defendant’s mother. 4 Mrs.
4
The record is in conflict as to who sold the earrings to whom. Mrs.
Bustamante testified that she sold the earrings to K. and that K. owed her for them.
Mrs. Williams and K. testified that Wendy sold the earrings to Mrs. Williams, and
that Mrs. Williams told Wendy she would pay her for them after she came home
from work on Saturday, the day Wendy disappeared.
2
Williams was not home, so defendant gave Wendy $3 and told her to come back
later to see Mrs. Williams for the balance. Wendy left. Defendant did not say
whether he had seen her again.
On the morning of April 4, Detective Gilbert Cross interviewed defendant
and his family. Defendant repeated that he had paid Wendy $3 for the earrings
and added that he had not seen her again.
That same morning, after defendant’s statement to Detective Cross,
Wendy’s father found her body in a vacant garage. When Mr. Bustamante
climbed through a loosely boarded window, he tripped over Wendy’s body in the
darkness. Thinking she might still be alive, he removed a ball of black material
from her mouth and ran to summon the police. The vacant garage was separated
from defendant’s room by a low brick wall. Marks consistent with the dragging of
a body led from the wall to the garage.
On April 5, defendant was arrested and waived his Miranda5 rights in
writing. He told Detective Cross that he had seen Wendy on April 2, between
4:00 p.m. and 4:30 p.m., while she was playing with his sister, K. Wendy told him
his mother owed her $5 for a pair of earrings. Defendant gave her $3 and said he
would not have the rest until his mother returned from work. Wendy continued to
play with K. and defendant paid little attention to them.
Fifteen minutes after paying Wendy, defendant took his mother’s car in for
servicing.6 He returned home, then walked to his friend Desron Kimbell’s house.
Mr. Kimbell was not present, but defendant stayed at the house for an hour, having
a drink with Kimbell’s brother, Anthony. Later, defendant and his mother went to
5
Miranda v. Arizona (1966) 384 U.S. 436.
6
Originally, defendant told Detective Cross he had done so before giving
Wendy the money.
3
visit his brother, Richard. They returned home at 11:00 o’clock that evening and
he went to bed.
Detective Cross told defendant he did not believe him. Defendant was
silent for 30 or 40 minutes. During that time he did not request counsel or decline
to talk anymore. Finally, defendant asked Cross for shoes to replace those that had
been taken from him for comparison with footprints found in the garage. When
Cross gave him some shoes, defendant began to cry and asked Cross, “What do
you want to know?” Cross replied, “Start from the beginning and tell me what
happened.”
Defendant then told Cross a story that implicated his friend Desron
Kimbell. He said Wendy came to his room about 5:00 p.m. and asked for the
remaining $2. Wendy entered the room, and as defendant started to lock the door,
Kimbell arrived. Kimbell came in and locked the door. The men, who were
already high on marijuana, drank malt liquor. Defendant told Wendy to take off
her clothes. Wendy was unwilling, but complied when the men “raised their
voices.” Defendant said, “I told her to get on the bed and I got on her.”
Defendant accomplished intercourse, but did not ejaculate. Defendant dressed,
and Kimbell began touching Wendy’s breasts. Defendant went to his mother’s
house. When he returned 10 minutes later he saw a small black and silver revolver
on the bed. Wendy’s body was in the closet with something in her mouth.
Defendant knew she was dead, although he had not heard a shot. As Kimbell
began to tie her hands, defendant asked what happened. Kimbell responded, “She
wouldn’t shut up.”
They bound Wendy’s body in an old sheet and Kimbell suggested hiding it
in the vacant garage. Defendant knew a board covering the garage window was
loose. While they were moving the body defendant thought he heard someone
coming. He told Kimbell to go ahead while he checked the noise. Minutes later
4
Kimbell told him he had put the body in the garage. They disposed of the carpet
from defendant’s closet floor in a trash bin in a nearby park. Kimbell took the
gun; defendant did not know what became of it. While Wendy was still alive,
defendant took her gold necklace and put it in his dresser drawer.
Cross prepared a written account of defendant’s statement, which defendant
signed.
After further investigation, Detective Cross told defendant his mother and
sister did not remember seeing Desron Kimbell that day. Defendant retracted his
previous statement insofar as it involved Kimbell. He now said, “Desron didn’t
have nothing to do with this.” Defendant gave a final Mirandized statement that
was videotaped.
According to this version, Wendy returned to defendant’s room at 5:30
p.m.. He and the 11 year old had consensual sexual intercourse and he did not
ejaculate. Defendant’s Colt .380 “was on the table all the time” and Wendy might
have seen it. As he was putting the gun in his drawer, it went off accidentally,
striking Wendy. The safety was off and the hammer cocked because earlier in the
day he had fired the gun at a refrigerator in the yard. Before the shooting, Wendy
let defendant wear her gold necklace. After the shooting, he put the necklace in
his dresser.
Defendant went outside to check whether anyone had heard the shot.
Satisfied that no one had, he went back to the room “to see if she was breathing or
not.” He put a black “head rag” in or on Wendy’s mouth, tied her hands, and
bundled her into a sheet. He knew the garage on the adjoining lot was vacant and
that the board covering the window was loose. After dark he hid Wendy’s body
there. He threw the gun into the ocean.
5
c.
The
forensic
evidence
Criminalist Heidi Robbins examined the garage where Wendy’s body was
found. The clothed body was wrapped in newspaper and then a sheet, which was
knotted at both ends. In Ms. Robbins’s opinion, the sheet was knotted so that it
could be used as a sling to carry the body. Wendy’s hands were tied behind her
back. A damp, wadded-up paper bag was found stuffed into her mouth, possibly as
a gag. A black “head cap” or scarf was wrapped tightly around Wendy’s face and
covered her mouth.
Seminal fluid matching defendant’s DNA was recovered from Wendy’s
vagina. Under the “ceiling” method of calculation, the likelihood of a match was
1 in 980,000. Defendant’s fingerprints were found on the newspapers that lined
the sheet containing Wendy’s body.
The cause of death was a gunshot that passed through Wendy’s heart, liver,
and aorta, finally lodging in her spine. Soot particles around the rim of the
entrance wound indicated that the muzzle of the gun had been pressed against
Wendy’s blouse. Whether Wendy’s hands were tied before or after her death was
not determined. There was hemorrhaging or internal bleeding at the entrance of
her vagina, consistent with sexual intercourse.
The extent of the hemorrhaging at Wendy’s vaginal entrance was disputed.
The coroner characterized it as “minor” or “minimal.” However, Dr. Carol
Berkowitz, a professor of pediatrics who specialized in child abuse cases, reached
a different conclusion. Having reviewed the autopsy report and examined the
coroner’s photographs, Dr. Berkowitz described the hemorrhaging as “moderate to
severe.” “[M]ost often in the case of a sexual assault you see small microscopic
injuries that are difficult to see without assistance. It is distinctly unusual . . . to
see this degree of injury following a sexual assault [upon a child].” In Dr.
Berkowitz’s opinion, the injury was caused by “blunt force trauma,” by which she
6
meant that it was a “collision-type injury, a collision between two bodies and two
tissues.” This type of injury would be consistent with rape.
Pursuant to a warrant, Detective Cross searched defendant’s room. In
defendant’s dresser he found Wendy’s gold chain and a holster for a small caliber
pistol, like a .380. In the yard outside defendant’s room Cross found a shell casing
near a refrigerator. The shell casing was compared with a bullet recovered from
Wendy’s body. Both were .380-caliber, but without a gun to test fire, the firearms
expert could not say more. A pubic hair removed from Wendy’s left middle finger
was physically and microscopically similar to a pubic hair taken from defendant.
d.
The question of Desron Kimbell’s involvement
Both the prosecutor and defense counsel gave opening statements at the
outset of the trial. In her opening statement, defendant’s attorney said, without
elaboration, “there is evidence that will suggest that [Desron Kimbell] may have
been involved in this incident.”
As earlier noted, defendant gave contradictory statements regarding
Kimbell. In his third statement to Detective Cross, defendant claimed that Wendy
was shot while she was alone in defendant’s room with Kimbell. However, in his
fourth and final statement to Cross, defendant asserted, “Desron didn’t have
nothing to do with this.”
Defendant’s sister K. placed Kimbell at the scene of the crime. K. testified
that while she was playing outside the garage, defendant told her to go to the store
for change so he could pay Wendy what Mrs. Williams owed her. When she left,
Wendy remained and Kimbell was in defendant’s room.
Kimbell was arrested for Wendy’s murder on April 6, after defendant
implicated him. When arrested Kimbell wore a bloody T-shirt and blood-spotted
sneakers. He had an alibi covering the time in question and an innocent
explanation for the blood on his clothes. His testimony was supported by that of
7
his mother, Gwendolyn Myles, and his friend, Jerome Govan, an employee of the
Los Angeles County Probation Department. Forensic evidence also pointed to his
innocence.
Kimbell was called by the prosecution and testified that when Wendy was
murdered he was watching televised basketball games with Jerome Govan. They
started watching the two games at 1:00 p.m. When the second game was over,
sometime after dark, Govan gave him a ride home. Kimbell’s mother testified
that he spent the day at Govan’s house.
Jerome Govan testified that he and Kimbell watched two basketball
tournament games at his home that day. It was stipulated that the games started at
2:30 p.m. and 4:30 p.m., respectively. Kimbell did not leave Govan’s home until
8:00 p.m.
Kimbell provided the following explanation for his bloodstained clothes:
The day after Wendy’s murder he got into a fight with a friend named Lee
Clayton. A police officer breaking up the fight “busted me in the head with a billy
club. And that is how I got the blood all over me.” His mother took him to a
Kaiser hospital for stitches. Jerome Govan was present during the fight.
Defendant’s mother and Govan corroborated Kimbell’s testimony on this point.
No DNA evidence linked Kimbell to the crime. The DNA on Wendy’s
vaginal swab did not match Kimbell’s. His fingerprints did not match those found
on the newspapers that lined the sheet containing Wendy’s body. DNA testing
established that the blood on Kimbell’s shoes could have been Kimbell’s, but not
Wendy’s. Kimbell gave no testimony about defendant, his activities, or
whereabouts on the day of the murder.
2. Defense
Evidence
The defense re-called Detective Cross and established that he arrested
Kimbell based on defendant’s statement implicating him. Kimbell told Cross that
8
he went to his friend Jerome’s house about 9:00 a.m. or 10:00 a.m. the day Wendy
was murdered. His account of their activities earlier in the day differed somewhat
from his trial testimony. He told Cross they had driven to Long Beach, played
basketball, and returned to Jerome’s between 5:30 p.m. and 6:00 p.m. He said
they watched basketball on television until 8:00 p.m., when Jerome drove him
home. On cross-examination, Detective Cross testified that Kimbell was calm and
exhibited none of the anxious behavior that in Cross’s experience suspects tend to
display when lying.
In addition to the T-shirt Kimbell was wearing when arrested, a second
bloodstained T-shirt was found in his room. The rest of the defense case was
devoted to trying to demonstrate that there was confusion about which of the T-
shirts was tested for blood type. However, in her closing argument to the jury,
defense counsel made no reference to this issue.
Defense counsel’s closing argument regarding Kimbell boiled down to the
bare assertion that he was “a fact in this case.”
B.
Penalty Phase
1.
Prosecution Evidence
The prosecution established that in the three years before Wendy’s murder
defendant had committed an assault and a burglary. While incarcerated awaiting
this death penalty trial he also committed two assaults, a robbery, and an
attempted extortion, and he possessed a “shank.”
a.
The assault on Maria Velez
Maria Velez lived across the street from defendant and had known him a
long time. On September 10, 1985, he knocked on her door, holding a pair of
pliers. Ms. Velez knew he had borrowed pliers from her husband, so she assumed
9
he was returning them. When she opened the door defendant grabbed her, pulled a
gun, and tried to push her back into the house.7 As Ms. Velez broke free,
defendant pulled her blouse off, severely bruising her arms. Ms. Velez ran outside
screaming to her neighbor, Maurelio Sanchez. Mr. Sanchez armed himself and
entered Ms. Velez’s house. He saw a gun on the floor and the shadow of a man
running outside the backdoor. In the house the investigating officer found pliers
and a BB gun that looked like a .45-caliber automatic.
b.
The burglary of the Dodson residence
On January 10, 1987, Virginia Dodson returned home to find that her video
cassette recorder was missing. Defendant stipulated that he was convicted of
burglarizing the Dodson residence.
c.
The assault and robbery of Lorenzo Lewis
On January 10, 1990, Lorenzo Lewis was in a Los Angeles County jail cell
with defendant and others. Someone said Lewis belonged to the Bloods gang.
Defendant asked if it were true. Lewis denied it, but defendant hit him in the left
eye, causing permanent scarring. Defendant also took money from Lewis’s
pocket. After Lewis reported the incident, two sheriff deputies saw small cuts on
his left eye and cheek.
d. Attempted
extortion of La Wong Ellison
On October 29, 1990, defendant told La Wong Ellison, another county jail
inmate, that “they” were going to “jack” him. Ellison understood “they” to refer
to defendant’s “homies.” Defendant said he could prevent the attack if Ellison
paid him. Defendant admitted to Deputy Sheriff Steven Johnson that he told
Ellison that people intended to rob him.
7
Ms. Velez did not see the gun, but she felt it when he pressed it against her.
10
e.
Possession of a deadly weapon in jail
On January 30, 1992, Deputy Sheriff Gary Gerlach discovered a makeshift
knife, or “shank,” in defendant’s mattress. The shank was a long metal screw filed
to a point, with plastic and cloth melted around it to serve as a handle. Defendant
was in a single cell he had been occupying for a month. Everything in the cell,
including the mattresses, would have been searched before he was housed there.
The bunk was six feet inside the cell, so it would have been impossible for anyone
to reach inside and hide the shank in the mattress. Jail security procedures made it
unlikely that another inmate could have entered the cell. Two thin foam
mattresses, one on top of the other, a total of two inches of foam padding, were on
defendant’s metal bunk. The shank was hidden inside a slit in the middle of the top
mattress, so “[s]omebody laying [sic] on that would have definitely felt it.”
f.
Assault on Manuel Toscano
On May 14, 1992, inmate Manuel Toscano was assaulted by defendant and
two other men who accused him of stealing their candy. Hector Camarena, a jail
inmate, saw the assault and told the guards. Toscano received medical treatment
for a bloody nose, a bloody mouth, and a black eye. Deputy Sheriff Ronald Smith
interviewed defendant and the other two suspects. One of the others told Deputy
Smith that the “esse,” a slang term for “Hispanic,” had taken his candy.
2. Defense
Evidence
a.
The testimony of defendant’s family
Defendant’s mother Mary Williams had nine children by four men by the
time she was 29. Defendant, her first child, was born when she and the father,
Jesse Howard, were 15. Five of Mrs. Williams’s other children were fathered by
Jeffrey Williams. Mrs. Williams lived with him periodically from the time
defendant was two until he was 15.
11
Mr. Williams would frequently get drunk and fight with Mrs. Williams. At
the age of six or seven defendant was too young to protect his mother, so he would
sneak out of the house, sometimes at night, and walk a mile to his maternal
grandmother’s house for help. Mr. Williams physically abused defendant, once
trying to whip him with an extension cord. When Mrs. Williams grabbed the cord
Mr. Williams started fighting with her.
When not living with Mr. Williams, Mrs. Williams and her children resided
with her mother and father, the Greens. Four of the Green’s own children were
still at home at that time, so there were eight children in the two-bedroom house.
Mr. Green had a good relationship with both Mrs. Williams and defendant. One
of Mrs. Williams’s adult brothers once tied defendant’s hands and feet and beat
him with a fan belt, raising welts on his back and legs. Mrs. Williams called the
police, which angered her mother.
While awaiting trial defendant wrote affectionate letters to his mother;
when they spoke on the phone he always asked about his siblings. His oldest
sister and a younger brother visited him and stayed in touch by mail.
b.
The testimony of Dr. James Bush
Dr. James Bush held a doctorate in social work, was a professor in the
California State University system and also maintained a private practice. He was
retired from the Los Angeles County Department of Mental Health, the Charles
Drew Medical School, and Martin Luther King, Jr., hospital. Dr. Bush
interviewed defendant and his mother twice. He also interviewed Mrs. Green and
defendant’s siblings. He reviewed defendant’s probation file and school records,
along with the welfare files of defendant’s mother and her parents, the Greens.
Dr. Bush noted that it is very difficult for a young mother to carry out her
parenting responsibilities while still a child herself. This would be especially true
if the mother were to have nine children in 14 years. Mrs. Williams remained
12
dependent on her parents as well as on the welfare system. The Greens, in turn,
were also dependent on welfare because Mr. Green was disabled by arthritis. At
one point Mrs. Williams was living with the Greens in their two-bedroom home
along with her seven children, two of her uncles, and others. On one occasion,
two of defendant’s siblings were removed by the authorities from Mrs. Williams.
She later took parenting classes.
Though Mrs. Williams told Dr. Bush that defendant had no serious illness,
in fact he suffered from anemia and asthma. Defendant received B’s and C’s in
the 9th and 10th grades, but earned failing grades the next year.
Defendant’s father, Jesse Howard, wanted to marry defendant’s mother, but
her parents prevented it. They also prevented Mr. Howard from having any
contact with defendant as a child. Mr. Howard managed to establish contact with
defendant as he grew older. When defendant was 16, a probation officer reported
that he would have recommended that defendant be returned to camp but for his
father’s “genuine concern regarding his son’s future.” When defendant was in
juvenile hall, Mr. Howard would visit. He told defendant’s probation officer that
he wanted defendant to come live with him in Washington state and that his wife
was completely supportive. Defendant did spend several summers with his father,
a self-employed mechanic, and his stepmother, a transit authority bus driver.
Defendant said he left their home because he saw Mr. Howard using
phencyclidine, but Mr. Howard thought it was because defendant was young and
homesick.
On direct examination, Dr. Bush questioned the generally positive picture
defendant, his mother, and grandmother painted of their family life. However, on
cross-examination, Dr. Bush admitted he did not have any information to prove or
disprove their descriptions.
13
c.
The testimony of Wendy’s principal
Peter Thomas Danna, Jr., was the principal of the elementary school
Wendy attended. She was “a little ahead” of girls her age in terms of physical
maturity. Her reading and math scores were not at grade level. However, Wendy
demonstrated leadership potential, and Mr. Thomas anticipated that she might
soon have become a class or student body president.
II. DISCUSSION
A. Pretrial
Issues
1.
Notice of Aggravating Evidence
Defendant contends the notice of aggravating evidence involving certain
crimes he committed while in jail was statutorily defective and violated his rights
under the federal Constitution. (U.S. Const., 5th, 6th, 8th & 14th Amends;
§ 190.3.)
Section 190.3 bars presentation of any evidence in aggravation, except
when offered in rebuttal, “unless notice of the evidence to be introduced has been
given to the defendant within a reasonable period of time as determined by the
court, prior to trial.”
On June 21, 1991, nearly a year before jury selection began, the prosecutor
filed a notice of penalty phase evidence pursuant to section 190.3. The notice did
not include any misconduct by defendant in jail.8
On June 3, 1992, jury selection began.
8
Rather, it included two of the six incidents that were eventually admitted as
aggravating evidence, namely, the assault on Maria Velez and the burglary of the
Dodson residence. (See ante, at pp. 9-10.)
14
On June 5, the prosecutor conducted a computer search and became aware
for the first time of violent acts defendant committed while incarcerated. She gave
defense counsel a computer printout of this information the same day.
On June 15, the jury was sworn.
On June 16, the prosecutor orally advised the court that she intended to
introduce in the penalty phase “four incidents of criminal behavior in the jail.”
On June 18, defendant’s public defender objected to the introduction of 18
additional jailhouse incidents of which she had been informed by the prosecutor
only the day before. Defendant’s attorney told the court: “If counsel is now
saying there are some 18 other incidents she may be bringing up, I haven’t
investigated those; I am not ready. I would have considered how I picked a jury if
I knew about all this stuff. I haven’t even received all the material yet. I don’t
know who these potential witnesses are or their criminal background[s]. And
probably the thing that is the biggest sense of urgency for me right now is if you
have got some 18 incidents from jail and a bunch of jail inmates, you are going to
hit other public defender clients and I am going to end up in a conflict
situation . . . .” Defense counsel argued that defendant would be prejudiced, being
forced to start all over again with new counsel, if she had to withdraw because of
conflicts.
The court commented that defense counsel had received notice.
Defense counsel replied: “All right. As far as notice, I was given a two-
page printout with like three or four names about June 3rd [sic]—I can’t remember
when—and I started checking on those names. But what counsel is now saying,
she is going to give me a whole lot more names . . . .” (Italics added.)
The court responded to defense counsel’s concerns by advising the
prosecutor: “[W]hatever you have now, that is what you are stuck with. No
further investigation. No other names will be added to the list.” Defense counsel
15
asked, “Can I assume . . . there would not be any other witnesses that I need to
worry about in terms of a conflict or them testifying in this case?” The court
responded, “That is my ruling.” Defense counsel thanked the court.
The four jail incidents eventually introduced into evidence at the penalty
phase were the same four incidents of which defendant was informed on June 5,
not any of the 18 additional incidents raised by the prosecution at the June 18
hearing. Defendant does not contend otherwise.
Defendant’s failure to object to the notification of these four incidents on
June 5, or during the prosecution’s subsequent effort to introduce the 18 additional
incidents, bars him from challenging the adequacy of the notification on appeal.
(People v. Medina (1995) 11 Cal.4th 694, 771.)
Moreover, the purpose of the notice requirement is to allow a defendant
sufficient opportunity to prepare a defense to the aggravating evidence. (People v.
Blair (2005) 36 Cal.4th 686, 751; People v. Smith (2003) 30 Cal.4th 581, 619
(Smith).) Here, defendant had ample opportunity to prepare. The penalty phase
trial began on July 20, 1992, more than a month and a half after he received notice
of the four jail incidents.
Defendant counters that the prosecution’s failure to inform him of this
evidence until after jury selection had begun prejudiced his ability to conduct an
effective voir dire. This argument rests on a false premise. “The purpose behind
the notice requirement . . . is to permit the defendant to prepare a defense at the
penalty trial, not to question prospective jurors about every bit of evidence they
might hear. Defendant’s argument would mean that no evidence discovered after
the beginning of trial would ever be admissible, which is not the law.” (Smith,
supra, 30 Cal.4th at p. 620.)
16
2.
Wheeler/Batson Motions
Defendant contends that the prosecutor exercised three peremptory
challenges on racial grounds, in violation of his right to trial by a jury drawn from
a representative cross-section of the community under article I, section 16 of the
California Constitution, and his right to equal protection under the Fourteenth
Amendment to the United States Constitution. (See Batson v. Kentucky (1986)
476 U.S. 79, 97 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277
(Wheeler).)9 The dispositive question here is whether defendant made a prima
facie case of group bias. To do so, the defendant must make a “ ‘showing that the
totality of the relevant facts gives rise to an inference of discriminatory purpose.’
[Citations.]” (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson); see also
People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) Where, as here, it is not
clear whether the trial court used the reasonable inference standard, rather than the
recently disapproved “ ‘strong likelihood’ standard,” we review the record
independently. (Bonilla, at p. 342.) We have done so here. Defendant fails to
meet the reasonable inference standard.
Defendant is an African-American. The peremptory challenges in question
were to: (1) P.T., an African-American woman, (2) A.A., an Hispanic man, and
(3) D.M., an African-American man. The court expressly found there was no
prima facie case of discrimination against P.T. or D.M. It impliedly, but
nonetheless clearly, found there was no prima facie case of discrimination in the
excusal of A.A.
9
We do not treat defendant’s federal claim as waived by his failure to raise it
below because the state and federal standards and the factual inquiry are
essentially the same. (People v. Panah (2005) 35 Cal.4th 395, 438, fn. 13; People
v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
17
The prosecutor excused eight potential jurors: four Caucasians, two
African-Americans, one Hispanic, and one Asian-American. The jury as sworn,
including alternates, was comprised of eight African-Americans, five Hispanics,
three Caucasians, one Asian-American, and one person of mixed race.
Defense counsel objected to the exclusion of Prospective Juror P.T. solely
on the ground that both P.T. and defendant were African-Americans. The
prosecutor pointed out that she had excused three prospective jurors and P.T. was
the first African-American excused. She argued, “There has been no prima facie
showing of a pattern of discrimination on the excuse of one person, particularly
one who indicated so much reluctance to follow the court’s instructions.” Defense
counsel asked that the prosecutor state her reasons for challenge. The prosecutor
responded by asking the court to rule, first, on whether a prima facie case of
discrimination had been made. The court ruled the defense had not made a prima
facie case. It characterized the motion as “groundless” and as supported by “no
reason at all.” The court observed that the prosecutor had at that point excused
“one female Caucasian [and] one male Japanese.”
Both the prosecutor and the court referred to Prospective Juror P.T.’s
apparent reluctance to follow the law as stated by the court. The prosecutor was
referring to an answer that P.T. gave on the juror questionnaire. Question No. 89
asked, “If the judge gives you an instruction in law that you feel is different from a
belief or opinion that you have, how will you deal with that conflict?” P.T.
responded, “My opinion is important to me, so I would talk to the judge. We will
have an [sic] discussion about the differences we have[,] to come to some
agreement.” On voir dire, the court pursued the matter at some length. The
exchange left the court feeling that P.T. “didn’t want to follow the law” and was
“arrogant, flippant.” We note that the court resolves legal questions and does not
negotiate them with individual jurors.
18
Defense counsel next objected to the excusal of Prospective Juror A.A. She
noted that A.A., a 19-year-old Hispanic male, was a “person of color.” The court
observed, “I don’t know what you are talking about, but I am going to let [the
prosecutor] respond to this.” Defense counsel repeated her concern that the
prosecutor was exercising her peremptories on the basis of race. The court noted
that before the prosecutor challenged A.A., “she excused a female Caucasian,
male Japanese, female [B]lack, male [W]hite, [and] a female Caucasian . . . .” The
court asked the prosecutor, “Do you want to respond?” Apparently, the jury pool
was quite diverse. The prosecutor noted that because the panel was largely
comprised of ethnic minorities, any peremptory challenges would likely be made
to minorities. The prosecutor continued, “I don’t think I have to make the
showing. I don’t think the court has made the finding that there is a prima facie
pattern. In fact, the court’s finding is to the contrary. [¶] But I will be happy to
put on the record—” The court interjected, “Please put the court and the defense
counsel at ease here.” In this context the court did not make a finding of prima
facie discrimination, but accepted the prosecution’s offer to make a record.
When the trial court expressly states that it does not believe a prima facie
case has been made, and then invites the prosecution to justify its challenges for
the record on appeal, the question whether a prima facie case has been made is not
mooted, nor is a finding of a prima facie showing implied. (People v. Welch
(1999) 20 Cal.4th 701, 746; People v. Turner (1994) 8 Cal.4th 137, 167.) Under
such circumstances, we sustain the trial court if, upon independently reviewing the
record, we conclude the totality of the relevant facts does not give rise to an
inference of discriminatory purpose. (Johnson, supra, 545 U.S. at p. 168.)
Here, the trial court did not expressly rule that defendant had failed to make
a prima facie case. However, by reciting the races of the prospective jurors
19
excused by the prosecutor, the court clearly implied that a prima facie case of
discrimination had not been made.10 We agree it had not been.
The voir dire here provided the prosecutor with ample grounds for
reasonably challenging A.A. Two of prosecutor’s concerns, with which the court
ultimately agreed, were that A.A.’s answers on the juror questionnaire revealed a
flippant attitude toward the proceeding and suggested he was trying to avoid jury
service. Question No. 60 asked prospective jurors for their thoughts about, among
others, prosecutors and defense attorneys. A.A. wrote that prosecutors “are trickly
[sic] people,” and that defense attorneys “will say anything.” Question No. 82
asked whether the prospective jurors had any problems that “might interfere with
your ability to concentrate on the case or might cause you to ‘hurry-along’ your
deliberations.” A.A. checked “Yes.” He explained: “I’m a student and this is my
summer vacation[.] I want to have fun and relax and not think about school.”
On voir dire, the prosecutor asked A.A., “I kind of had the impression that
you enjoyed writing about prosecutors and defense attorneys and all with an eye
towards . . . the fact that you would rather not serve on a long case. [¶] Am I right
about that?” A.A. answered yes, although he went on to say that if selected, he
would not, in fact, rush to judgment. The prosecutor pursued the point.
“[Prosecutor]: So you are sort of having fun with us a little?” [¶] [A.A.]: Sort of.
10
Defendant contends the trial court improperly required defendant to show a
pattern, rather than a single instance, of discrimination. The exercise of even a
single challenge based on race is constitutionally proscribed. (Bonilla, supra, 41
Cal.4th at p. 343.) However, the existence of a discernible pattern in the use of
challenges remains a factor a court may consider when determining whether a
prima facie showing has been made. The challenge of one or two jurors, standing
alone, can rarely suggest a pattern of impermissible exclusion. (Ibid.; People v.
Bell (2007) 40 Cal.4th 582, 598 (Bell)). Because defense counsel provided no
other basis for inferring discriminatory intent, the absence of a pattern was
significant here.
20
[¶] [Prosecutor]: Letting us know you would rather have fun this summer? [¶]
[A.A.]: Yeah.”
The court agreed with the prosecutor. “I found [A.A.] to be
. . . flippant in his answers on his questionnaire. He was trying to get off the jury
panel.”
Finally, defense counsel asserted that the prosecutor had challenged
Prospective Juror D.M., an African-American man, on the basis of his race. The
court ruled that defense counsel had not made a prima facie showing. The court
noted that D.M. was one of six prospective alternates and that four of the six were
persons of color: three African-Americans and one Hispanic. The court also
observed that D.M. declined to fill out substantial portions of the jury
questionnaire, marking “confidential” on “almost all of his answers.” Again, upon
an independent review of the record, we find no error. An advocate may
legitimately be concerned about a prospective juror who will not answer questions.
We decline defendant’s invitation to engage in comparative juror analysis.
Like Bonilla, supra, 41 Cal.4th 313, this is a “first-stage” Wheeler/Batson case, in
that the trial court denied defendant’s motions after concluding he had failed to
make out a prima facie case. It is not a “third-stage” case, in which a trial court
concludes a prima facie case has been made, solicits an explanation of the
peremptory challenges from the prosecutor, and only then determines whether
defendant has carried his burden of demonstrating group bias. “We have
concluded that Miller-El v. Dretke (2005) 545 U.S. 231 does not mandate
comparative juror analysis in these circumstances (Bell, supra, 40 Cal.4th at p.
601), and thus we are not compelled to conduct a comparative analysis here.
Whatever use comparative juror analysis might have in a third-stage case for
determining whether a prosecutor’s proffered justifications for his strikes are
pretextual, it has little or no use where the analysis does not hinge on the
21
prosecution’s actual proffered rationales, and we thus decline to engage in a
comparative analysis here.” (Bonilla, at p. 350.)
We have encouraged trial courts to ask prosecutors to give explanations for
contested peremptory challenges, even in the absence of a prima facie showing.
(Bonilla, supra, 41 Cal.4th at p. 343, fn. 13.) We emphasize that if a court
ultimately concludes that a prima facie showing has not been made, the request for
and provision of explanations does not convert a firststage Wheeler/Batson case
into a thirdstage case.
Defendant’s claim that the trial court did not make “a sincere and reasoned
effort” to evaluate the nondiscriminatory justifications proffered by the
prosecutor11 is unsupported by the record.
B.
Guilt Phase Issues
1. Flight
Instruction
The jury was instructed that evidence of flight alone is insufficient to
establish guilt, but may be considered along with other facts in deciding the
question of guilt or innocence. (See CALJIC No. 2.52.) The giving of such an
instruction is statutorily required when flight evidence is relied upon by the
prosecution. Section 1127c provides: “In any criminal trial or proceeding where
evidence of flight of a defendant is relied upon as tending to show guilt, the court
shall instruct the jury substantially as follows: [¶] The flight of a person
immediately after the commission of a crime, or after he is accused of a crime that
has been committed, is not sufficient in itself to establish his guilt, but is a fact
which, if proved, the jury may consider in deciding his guilt or innocence. [¶]
11
See, e.g., People v. Jackson (1996) 13 Cal.4th 1164, 1197 (Jackson).
22
The weight to which such circumstance is entitled is a matter for the jury to
determine. [¶] No further instruction on the subject of flight need be given.”
Defendant contends there was no factual basis for the instruction, so it
violated his rights under the federal and California Constitutions to due process of
law and a fair trial. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art I, §§ 7,
15, 16 & 17.)
The instruction is properly given if the jury could reasonably infer that the
defendant’s flight reflected consciousness of guilt. (People v. Visciotti (1992) 2
Cal.4th 1, 60.) Such an inference was reasonable here. After Wendy’s body was
discovered in the vacant garage across the wall from his room, defendant did not
come home that night or the next day. At nearly midnight on the second evening
he was arrested at his aunt’s house.
Defendant objects that the flight instruction was nevertheless improper
because he had remained at home for two days after Wendy disappeared.
Certainly the discovery of Wendy’s body was a significant new development.
Further, by its own terms, section 1127c addresses instances in which flight is not
immediate. In People v. Carter (2005) 36 Cal.4th 1114, 1182, we upheld a flight
instruction where the defendant left California for Las Vegas days after the crimes.
(See People v. Abilez (2007) 41 Cal.4th 472, 522.) The jury here could reasonably
infer that defendant fled when he concluded that suspicion had focused on him.
Defendant next contends that the flight instruction is an improper pinpoint
instruction. We rejected this argument in People v. Mendoza (2000) 24 Cal.4th
130. “The instruction informs the jury that it may consider flight in connection
with all other proven facts, giving the fact of flight the weight the jury deems
appropriate. [Citation.] The instruction is not argumentative; it does not
impermissibly direct the jury to make only one inference. Finally, defendant
23
contends the instruction unconstitutionally lessens the prosecution’s burden of
proof. It does not. [Citation.]” (Id. at pp. 180-181.)
Finally, defendant contends that consciousness of guilt instructions like
CALJIC No. 2.52 (and see CALCRIM No. 362) invite the jury to draw irrational
and impermissible inferences with regard to a defendant’s state of mind at the time
the offense was committed. We have repeatedly rejected this argument (see, e.g.,
Jackson, supra, 13 Cal.4th at pp. 1222-1224), and do so here.
2.
Accomplice Testimony
Defendant contends the trial court, sua sponte, should have given the jury
accomplice testimony instructions with regard to Desron Kimbell.
The general rule is that the testimony of all witnesses is to be judged by the
same legal standard. In the case of testimony by one who might be an accomplice,
however, the law provides two safeguards. The jury is instructed to view with
caution testimony of an accomplice that tends to incriminate the defendant. It is
also told that it cannot convict a defendant on the testimony of an accomplice
alone. (Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No.
334.) 12
12
At the time of defendant’s trial the accomplice testimony instructions did
not specify that it was accomplice testimony that tended to incriminate a defendant
that was to be viewed with caution. The current accomplice testimony instructions
were drafted in light of People v. Guiuan (1998) 18 Cal.4th 558 (Guiuan). There,
the defendant’s three accomplices testified for the prosecution, but some of their
testimony was possibly favorable to the defense. The trial court, without
objection, instructed the jury that an accomplice’s testimony should be viewed
with distrust. On appeal, the defendant contended that the trial court erred in
failing, sua sponte, to modify the then-standard jury instruction to say that only
those portions of the accomplice testimony that tended to incriminate the
defendant were to viewed with distrust. We held that in the absence of any
objection, the trial court was not required, sua sponte, to so modify the instruction.
(18 Cal.4th at pp. 569-570.) We went on to hold that “the instruction concerning
(footnote continued on next page)
24
The Attorney General argues that Kimbell’s testimony did not tend to
incriminate defendant. Kimbell’s testimony only served to establish his own alibi
and was consistent with defendant’s final statement that Kimbell had nothing to do
with Wendy’s death. Defendant responds that whenever the evidence shows that a
crime was committed by one of two persons, X or the defendant, testimony that X
was not present when the crime was committed tends to incriminate the defendant.
We need not resolve the question whether Kimbell’s testimony tended to
incriminate defendant. Any error in failing to give a “view with caution”
instruction here was clearly harmless. Defendant retracted his statement
implicating Kimbell, and the other evidence against defendant was overwhelming.
Any error in failing to instruct the jury that it could not convict defendant
on the testimony of an accomplice alone was also clearly harmless. Section
111113 “serves to ensure that a defendant will not be convicted solely upon the
testimony of an accomplice because an accomplice is likely to have self-serving
motives.” (People v. Davis (2005) 36 Cal.4th 510, 547; see People v. Rodrigues
(1994) 8 Cal.4th 1060, 1132; People v. Belton (1979) 23 Cal.3d 516, 526.) One of
those “self-serving motives” would be to shift blame to someone else. But that did
(footnote continued from previous page)
accomplice testimony should henceforth refer only to testimony that tends to
incriminate the defendant.” (Id. at p. 569.) We also said the term “care and
caution” should be substituted for “distrust.” (Ibid.)
13
Section 1111 provides: “A conviction can not be had upon the testimony of
an accomplice unless it be corroborated by such other evidence as shall tend to
connect the defendant with the commission of the offense; and the corroboration is
not sufficient if it merely shows the commission of the offense or the
circumstances thereof. [¶] An accomplice is hereby defined as one who is liable
to prosecution for the identical offense charged against the defendant on trial in
the cause in which the testimony of the accomplice is given.”
25
not happen here. Because Kimbell merely denied involvement in the offenses
charged, and did not testify that defendant sexually assaulted or killed Wendy, the
jury could not have based a conviction solely on his testimony.
3. Photographic
Evidence
Defendant contends that the admission of a color autopsy photograph
depicting hemorrhaging at the entrance of Wendy’s vagina was state law error and
violative of his rights under the federal Constitution. (U.S. Const., 5th, 6th, 8th &
14th Amends.; Evid. Code, § 352). The contention lacks merit.
As earlier noted (ante, at pp. 6-7), the extent of Wendy’s vaginal
hemorrhaging was disputed. The coroner characterized it as “minor” or
“minimal,” while another prosecution witness, Dr. Carol Berkowitz, described it
as “moderate to severe.” Initially, the trial court excluded the challenged 16-by-
20-inch print because it determined that an 8-by-10-inch print of the same
photograph was sufficiently clear. However, it said it would reconsider the matter
if a question arose as to whether the 8-by-10-inch print, which it had admitted
without objection, adequately depicted the extent of Wendy’s injuries. Later the
court did reverse itself, as a consequence of defense counsel’s cross-examination
of Dr. Berkowitz. Defense counsel asked Dr. Berkowitz whether she was “able to
form any opinion as to the size of this apparent injury or trauma.” Dr. Berkowitz
responded that she would have to refer again to the larger print, which the court
had permitted her to consult earlier in the cross-examination. The prosecutor
again moved to admit the larger print, noting that the jury should be permitted to
see it since Dr. Berkowitz relied upon it. The court granted the motion, noting that
defense counsel “brought into issue the size of the trauma . . . and got [Dr.
Berkowitz] into the position where she is relying on [the larger photograph].”
The admission of photographs lies within the broad discretion of the trial
court under Evidence Code section 352 when a claim is made that they are unduly
26
inflammatory. The court’s exercise of its discretion will not be disturbed on
appeal unless the probative value of the photographs is clearly outweighed by their
prejudicial effect. (See, e.g., People v. Zambrano (2007) 41 Cal.4th 1082, 1149
(Zambrano).)
The admission of the larger print was not an abuse of the trial court’s
discretion, nor did it violate defendant’s federal constitutional rights. Like all
other relevant evidence, photos are generally admissible so long as their probative
value is not substantially outweighed by their prejudicial effect. (Zambrano,
supra, 41 Cal.4th at p. 1150, fn. 23.) We have examined the larger photograph. It
is not gruesome. The hemorrhaging of Wendy’s vagina was internal and
manifested only as a dark reddening of a portion of the outer rim of her vagina.
Autopsy photographs are seldom pleasant, but they are often highly relevant. The
admissibility of the smaller print was undisputed, and defense counsel’s cross-
examination of Dr. Berkowitz revealed the larger print’s probative value because it
better depicted the extent of Wendy’s injuries. There was no error.
Finally, the record does not support defendant’s contention the trial court
failed to exercise its discretion in admitting the larger photograph because it felt
“bound” to do so when Dr. Berkowitz referred to it. Dr. Berkowitz was properly
allowed to refer to the photo because of defendant’s chosen line of cross-
examination. The record demonstrates that the court knew the nature of its
discretionary role and properly exercised it as the presentation of evidence
evolved.
4.
Motive Instruction
Over defense objection, the court gave the standard instruction that motive
was not an element of the offense, but that the jury might consider, and assign
whatever weight it found appropriate to the presence or absence of motive as
27
tending to establish guilt or innocence. (CALJIC No. 2.51; see CALCRIM No.
370.)
Defendant contends this instruction was constitutionally defective because
it (1) allowed the jury to determine guilt based on motive alone; (2) lessened the
People’s burden of proof; and (3) shifted the burden of proof to imply that he had
to prove his innocence. (U.S. Const., 5th, 6th, 8th & 14th Amends.)
We have repeatedly rejected these arguments (People v. Cleveland (2004)
32 Cal.4th 704, 750) and defendant gives us no reason to reconsider our views.
5.
Consciousness of Guilt Instruction
Defendant gave five statements to the police. In his first three statements,
he claimed he had not seen Wendy again after giving her a partial payment for the
earrings. In his fourth statement, he admitted having intercourse with Wendy, but
claimed Desron Kimbell shot her. In his final statement, defendant completely
exonerated Kimbell. He admitted shooting Wendy, but claimed he did so
accidentally. (Ante, pp. 2-5.)
In light of these discrepancies, the court instructed the jury that it could
consider any false statements made by defendant as evidence of his consciousness
of guilt. It also instructed that such conduct alone is insufficient to prove guilt,
and that its weight and significance, if any, were matters for the jury to determine.
(See CALJIC No. 2.03; CALCRIM No. 362.)
Defendant contends the instruction was impermissibly argumentative and
encouraged the jury to irrationally conclude that false statements may manifest a
consciousness of guilt, thereby violating his state and federal constitutional rights
to due process, a jury trial before a properly instructed jury, and a fair and reliable
capital trial. (U.S. Const., 6th, 8th & 14th Amends; Cal. Const., art. I, §§ 7, 15, 16
& 17.)
28
The instruction was properly given here. Contrary to defendant’s claim, the
jury could quite reasonably conclude that defendant made a series of false
statements to deflect suspicion from himself. (People v. Barnwell (2007) 41
Cal.4th 1038, 1057 (Barnwell).) We have repeatedly rejected arguments attacking
the instruction (ibid.; People v. Nakahara (2003) 30 Cal.4th 705, 713 (Nakahara),
and cases cited) and do so again.
6.
Murder Instructions
The jury was instructed on both premeditated murder and felony murder.
(See CALJIC Nos. 8.20 & 8.21; CALCRIM Nos. 520, 540A.) Defendant
contends the instructions should have required the jury to agree unanimously, and
beyond a reasonable doubt, upon a single theory. This alleged error, defendant
argues, denied him due process, a verdict rendered beyond a reasonable doubt, and
a reliable guilt determination under the California and federal Constitutions. We
have repeatedly rejected this contention for the reasons stated in Nakahara, supra,
30 Cal.4th at page 712, and the cases cited therein. Defendant makes no
persuasive argument to overturn settled authority on this point.
7.
Lesser Included Offenses Instruction
Defendant contends that CALJIC No. 17.10, the instruction that requires a
unanimous acquittal of the greater offense before returning a verdict on a lesser
included offense, violated his rights under several provisions of the federal
Constitution. (U.S. Const., 5th, 6th, 8th & 14th Amends.) This precise issue has
been repeatedly rejected by this court, and defendant makes no persuasive counter
argument. (See, e.g., People v. Cox (2003) 30 Cal.4th 916, 967.)
29
8.
Reasonable Doubt
Defendant contends that various standard instructions14 undermined the
requirement of proof beyond a reasonable doubt. We have repeatedly rejected
these arguments. (See, e.g., People v. Crew (2003) 31 Cal.4th 822, 847-848.)
Each of these instructions “is unobjectionable when, as here, it is accompanied by
the usual instructions on reasonable doubt, the presumption of innocence, and the
People’s burden of proof.” (Nakahara, supra, 30 Cal.4th at p. 715.) We note
again that jurors are told to consider the instructions as a whole. (See CALJIC No.
1.01; CALCRIM No. 200.) Nothing in the instructions undermines this central
premise of criminal law.
C.
Penalty Phase Issues
1.
Evidence of Other Crimes
In the penalty phase, the jury was instructed that before it could consider
defendant’s prior criminal activities as aggravating circumstances (§ 190.3, factor
(b)), it had to be satisfied beyond a reasonable doubt that he was convicted of the
crime or committed the criminal acts. (CALJIC Nos. 8.86 & 8.87.) The court
defined reasonable doubt in the guilt phase, but failed to do so again in the penalty
phase.
This error was harmless. “The court should have redefined reasonable
doubt at the penalty phase. However, as in People v. Holt (1997) 15 Cal.4th 619,
685 [(Holt)], ‘[a]ny possible error arising from the court’s failure to [do so] was
harmless.’ Absent any suggestion to the contrary, the jury would likely have
assumed the reasonable doubt the court referred to at the penalty phase had the
same meaning as the term had during the guilt phase. There is no reasonable
14
CALJIC Nos. 2.01, 2.02, 2.21.1, 2.21.2, 2.22, 2.27, 2.51, 8.83, and 8.83.1.
30
likelihood (People v. Kelly (1992) 1 Cal.4th 495, 525) the jury would have
believed the reasonable doubt analysis it was required to engage in at the penalty
phase was somehow different than the reasonable doubt analysis it had already
engaged in at the guilt phase. That the court would not have changed the meaning
of such an important term without saying so is ‘commonsense understanding of
the instructions in the light of all that has taken place at the trial [that is] likely to
prevail over technical hairsplitting.’ (Boyde v. California (1990) 494 U.S. 370, 381
[108 L. Ed. 2d 316, 110 S. Ct. 1190].)” (People v. Chatman (2006) 38 Cal.4th
344, 408 (Chatman).)
Defendant contends these penalty phase instructions were also defective
because they failed to clarify that it was the People’s burden to prove the prior
criminal activity beyond a reasonable doubt. This argument also lacks merit. The
only reasonable interpretation of the challenged instructions is that the party
presenting evidence of defendant’s prior criminal activity bore the burden of
proving it beyond a reasonable doubt. Certainly the jury could not have
understood that defendant had the burden to prove his own criminal conduct.
Finally, defendant urges us to reconsider our holding in Holt, supra, 15
Cal.4th 619, in light of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
and Ring v. Arizona (2002) 536 U.S. 584 (Ring). In Apprendi, the United States
Supreme Court found a constitutional requirement that any fact, other than a prior
conviction, which increases the maximum penalty for a crime, must be formally
charged, submitted to the fact finder, treated as a criminal element, and proved
beyond a reasonable doubt. (Apprendi, at pp. 476-490.) Nothing in Apprendi
causes us to doubt our conclusion that, “[a]bsent any suggestion to the contrary,
the jury would likely have assumed the reasonable doubt the court referred to at
the penalty phase had the same meaning as the term had during the guilt phase.”
(Chatman, supra, 38 Cal.4th at p. 408.)
31
2.
Possession of a Deadly Weapon in Jail
As earlier noted (ante, p. 11), a “shank” was discovered in defendant’s jail
cell.15 During the penalty phase, the jury was instructed that “possession of a
deadly weapon in a jail, which involved the . . . threat of force or violence” could
be considered as an aggravating factor, if a juror was satisfied beyond a reasonable
doubt that defendant committed that criminal act. (See CALJIC No. 8.87.)16
Defendant contends the instruction was constitutionally defective because it did
not define deadly weapon. (U.S. Const., 6th, 8th & 14th Amends.) The
contention lacks merit. (People v. Cook (2006) 39 Cal.4th 566, 611.)
“Instructions to the jury on the elements of unadjudicated crimes are not required
by logic or by the constitutional guarantees of due process, fundamental fairness,
right to a fair trial, equal protection, or reliability of penalty. [Citations.]” (People
v. Lewis (2001) 25 Cal.4th 610, 668.)
Defendant also contends the trial court’s instruction “improperly directed
the jury to presume that possession of a weapon in jail involved . . . the threat of
force or violence.” He urges that whether the offense involved the threat of force
or violence was a question for the jury to decide. To the contrary, it was a legal
issue to be decided by the court, as we have repeatedly held. (See, e.g., People v.
Gray (2005) 37 Cal.4th 168, 235.)
15
Section 4574, subdivision (a), makes it a felony for a county jail inmate to
possess a deadly weapon. Within the meaning of this section, an object is a deadly
weapon if it has a reasonable potential of inflicting great bodily injury or death.
(People v. Pollock (2004) 32 Cal.4th 1153, 1178, and cases cited.)
16
Section 190.3, factor (b), permits a jury to consider as an aggravating
circumstance “[t]he presence . . . of criminal activity by the defendant which
involved the use or attempted use of force or violence or the express or implied
threat to use force or violence.”
32
Finally, we reject defendant’s contention that possession of a deadly
weapon by a jail inmate (§ 4574) is “an unconstitutionally overbroad aggravating
factor” in the circumstances of this case. Defendant notes that “a chain necklace
with a religious medal could be used as a garrote . . . .” That may be true.
However, the fact that the weapon here was a long metal screw filed to a point and
affixed with a handle to facilitate its use for stabbing is sufficient to distinguish
defendant’s hypothetical.
3. Alleged
Coercion
of Deadlocked Jury
After more than two weeks of penalty deliberations, when only one
alternate juror remained available, two of the deliberating jurors, M.H. and the
foreperson, R.T., asked to be discharged because of family vacation plans. The
court discharged M.H., but retained R.T. The jury reached its verdict after
deliberating for two more days. Defendant contends that under the circumstances
the verdict was coerced, violating his right to due process under the California and
federal Constitutions and rendering the verdict unreliable under the Eighth
Amendment to the United States Constitution. The contention fails.
The jury began its deliberations on Monday, July 27, 1992, with five
alternate jurors available. Two days later, the jury was given the balance of the
week off because of the medical needs of one juror and the speaking engagement
of another. On Tuesday, August 4, Juror I.D. was excused because of a death in
the family and Alternate Juror C.W. was discharged because of vacation plans.
On Friday, August 7, Juror J.G was discharged because of vacation plans. On
Tuesday, August 11, Juror H.B. was discharged because the prolonged
deliberations were exacerbating his post traumatic stress disorder. When each of
the three alternate jurors was seated, the jury was instructed to begin their
deliberations anew.
33
On Friday, August 14, Juror M.H. and the foreperson R.T. both asked to be
discharged because of prepaid family vacations. Juror M.H. had already forfeited
a nonrefundable airline ticket to accompany her daughter and grandchild on a
vacation. She wished to be discharged so she could take a bus and join them.
Foreman R.T. had already forfeited prepaid campground reservations for a two-
week family vacation in Sequoia National Park because the court had declined to
discharge him. He was about to forfeit a prepaid campground reservation for
another week of vacation with them in Yosemite National Park.
The court faced a dilemma because only one alternate remained. If both
M.H. and R.T. were excused, a mistrial would ensue. The court asked whether
there was “any likelihood” a verdict could be reached if deliberations continued.
Ten of the 12 jurors believed there was.
The court then asked the jury to confer and respond to two more questions:
(1) What was the numerical breakdown of its nine ballots?17 (2) In light of the
fact that only one alternate remained, would one of the two jurors seeking
discharge be willing to remain?
The note sent in response to these questions requested that of the two jurors
seeking discharge, M.H. be the one released. It also informed the court that the
original jury had split three to nine, two to 10, three to nine, and two to 10. The
substitution of the first alternate produced a vote of two to 10. The vote remained
two to 10 after the second alternate was seated. With the third alternate, the vote
was one to 11, two to 10, and one to 11.
The jurors returned to the courtroom and the court asked whether the note
indicated that Juror R.T. was “willing to stay for an additional day, until Monday
17
The court cautioned that it was not asking whether the majorities were “for
or against” death.
34
or so. Is that what this indicates?” R.T. responded, “I don’t think it was a
question of willing to stay, Your Honor.” He continued, “I would be willing to go.
But you asked us to make a decision between two jurors that had requested
vacation, and we made that decision as you asked.”
The court denied defendant’s motion for a mistrial on the ground that the
circumstances had become coercive.18 The court seated the last alternate and
instructed the jury to begin its deliberations anew again on the following Monday
morning. The court concluded by saying that both counsel had asked him to say
“that you guys are doing a job above and beyond; and this court agrees.”
On Monday, August 17, the testimony of Dr. James Bush, the defense
penalty phase expert, was read to the jury at its request. At 4:00 p.m. on Tuesday,
August 18, the jury reached its verdict.
A trial court may ask jurors to continue deliberating when, in the exercise
of its discretion, it finds a “reasonable probability” they will be able to reach
agreement. (§ 1140;19 People v. Pride (1992) 3 Cal.4th 195, 265, and cases cited.)
We find no abuse of discretion here. The record amply supports the trial court’s
decision. Ten of the 12 jurors responded positively to the court’s question whether
there was any likelihood of reaching agreement.20
18
The grounds stated were: “The fact that there has not been any significant
change in the balloting, that the jurors have been deliberating at length, that they
have sacrificed personal vacations and they are continuing to be put in a position
that that is what they are doing.”
19
Section 1140 provides: “Except as provided by law, the jury cannot be
discharged after the cause is submitted to them until they have agreed upon their
verdict and rendered it in open court, unless by consent of both parties, entered
upon the minutes, or unless, at the expiration of such time as the court may deem
proper, it satisfactorily appears that there is no reasonable probability that the jury
can agree.”
20
Juror R.T. was one of the 10 holding that belief.
35
Defendant contends Juror R.T. was coerced into continuing to deliberate.
While the court asked whether one of the two jurors seeking to be discharged
would be “willing to stay,” defendant argues that R.T.’s response “can only be
interpreted” as saying: “I want to go on vacation but you said that only one of us
could leave. I got the short end of the stick.” It is clear R.T. would have preferred
to be excused. Nevertheless, we find no abuse of discretion in denying R.T.’s
request. There was no evidence that he would be unable to perform his duties if
he stayed. To the contrary, he was clearly prepared to continue doing his duty as a
juror, even though it continued to entail personal sacrifice.
Defendant asks us, in effect, to conclude as a matter of law that the holdout
juror was coerced into returning a verdict of death because Juror R.T. was going to
lose another week’s campground fee. This we will not do. (See People v. Beeler
(1995) 9 Cal.4th 953, 990 (Beeler).)21 Jury service is a demanding but important
part of civic responsibility. It almost always involves a level of sacrifice. But
simply because the undertaking is difficult, or because many people would rather
avoid it, does not make the conscientious discharge of this duty coerced.
Moreover, the facts belie defendant’s position. The week at the campground for
which Juror R.T. had prepaid began on August 16, 1992. Nevertheless, the jury
deliberated all day on the 17th and 18th before reaching its verdict.
Finally, defendant contends that the court coerced the jurors by simply
inquiring into the numerical divisions of their votes, even though it was careful not
to ask whether the votes had favored life or death. We have repeatedly rejected
this contention. (People v. Proctor (1992) 4 Cal.4th 499, 538; People v.
21
In Beeler, supra, 9 Cal.4th 953, this court declined to assume as a matter of
law that the death of a parent would be so debililitating that a juror would be
presumptively unable to deliberate. (Id. at p. 990.)
36
Rodriguez (1986) 42 Cal.3d 730, 776; People v. Carter (1968) 68 Cal.2d 810,
815.) We have done so in recognition of the fact that the federal procedural rule is
otherwise. (Proctor, at p. 539.) We find the federal rule, which is not binding on
us, unpersuasive because this information obviously bears on the question the
court is obliged to address: whether there is a reasonable probability the jury will
be able to reach a verdict if it continues to deliberate.
4. Constitutionality
of
Death Penalty Statute
Defendant mounts a number of challenges to California’s death penalty
statute. We recently rejected the very same set of arguments in Barnwell, supra,
41 Cal.4th at pages 1058-1059.
The death penalty law adequately narrows the class of death-eligible
offenders. (See, e.g., People v. Dickey (2005) 35 Cal.4th 884, 931 (Dickey).)
Consideration of the circumstances of the crime under section 190.3, factor
(a) does not result in arbitrary or capricious imposition of the death penalty. (See,
e.g., People v. Brown (2004) 33 Cal.4th 382, 401 (Brown).)
The death penalty is not unconstitutional for failing to impose a specific
burden of proof as to the existence of aggravating circumstances, the greater
weight of aggravating circumstances over mitigating circumstances, or the
appropriateness of a death sentence. (See, e.g., Brown, supra, 33 Cal.4th 382,
401.) Nor do the high court’s decisions in Apprendi, supra, 530 U.S. 466, Ring,
supra, 536 U.S. 584, or Blakely v. Washington (2004) 542 U.S. 296, alter this
conclusion, either with respect to the existence of an aggravating factor or as to the
determination whether aggravating factors outweigh mitigating factors. (See, e.g.,
People v. Cornwell (2005) 37 Cal.4th 50, 104.)
The jury need not make written findings, or achieve unanimity as to
specific aggravating circumstances, or find beyond a reasonable doubt that an
37
aggravating circumstance is proved (except for other crimes). (See, e.g., People v.
Morrison (2004) 34 Cal.4th 698, 730.)
Intercase proportionality review is not constitutionally required. (Dickey,
supra, 35 Cal.4th at p. 931.)
A penalty phase jury may consider prior unadjudicated criminal conduct
under section 190.3, factor (b), and the jury need not make a unanimous finding
that the defendant was guilty of the unadjudicated crimes. (See, e.g., People v.
Elliot (2005) 37 Cal.4th 453, 488 (Elliot).)
Section 190.3’s use of adjectives such as “extreme” (id., factors (d), (g))
and “substantial” (id., factor (g)) in describing mitigating circumstances does not
impermissibly limit consideration of such factors. (See, e.g., Elliot, supra, 37
Cal.4th at p. 488.)
A penalty phase jury need not be instructed that section 190.3, factors (d),
(e), (f), (g), (h), and (j) can only mitigate, and not aggravate, the crime. (See, e.g.,
Elliot, supra, 37 Cal.4th at p. 488.)
The death penalty law does not deny capital defendants equal protection
because it provides a different method of determining the sentence than is used in
noncapital cases. (See, e.g., People v. Smith (2005) 35 Cal.4th 334, 374.)
The death penalty as applied in this state is not rendered unconstitutional
through operation of international law and treaties. (See, e.g., Elliot, supra, 37
Cal.4th at p. 488.)
5.
Intracase
Disproportionality Review
Upon request, we review the facts of a case to determine whether a death
sentence is so disproportionate to a defendant’s culpability as to violate the
California Constitution’s prohibition against cruel or unusual punishment. (People
v. Leonard (2007) 40 Cal.4th 1370, 1426-1427, and cases cited.) Defendant’s
death sentence does not shock the conscience or offend fundamental notions of
38
dignity. (See, e.g., People v. Ramos (1997) 15 Cal.4th 1133, 1182.) He raped an
11-year-old child, bound her, and shot her to death at point-blank range. He then
hid her body, which went undetected for almost two days. He lied repeatedly to
avoid responsibility. In addition, he committed other crimes of violence both
before and after murdering Wendy.
6. Alleged
Cumulative
Error
Finally, there was no cumulative prejudice.
III. DISPOSITION
We affirm the judgment.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
39
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
I join the majority in affirming the judgment. I disagree, however, with the
majority’s analysis of defendant’s claim that the prosecution’s challenges to three
prospective jurors were made on the impermissible basis of their race or ethnicity.
I
During jury selection, defendant objected to the prosecution’s peremptory
challenges to three prospective jurors. Two of those jurors, P.T. and D.M., were
African-American (as was defendant), and defense counsel asserted that the
prosecution had challenged them because of their race. The third prospective
juror, A.A., was Hispanic, and defense counsel contended that he was challenged
because he was a “person of color.” In each instance, the trial court concluded
that the defense had not made a prima facie showing that the prosecution’s
peremptory challenges were made for a discriminatory purpose, but it invited the
prosecution to give reasons for the three challenges. The prosecution did so, and
in each instance the trial court evaluated these reasons and then overruled the
defense objection. On this appeal, defendant faults those rulings, contending that
the prosecution’s peremptory challenges violated his right under the California
Constitution to a jury drawn from a representative cross-section of the community
(see People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)), as well as his right to
equal protection under the Fourteenth Amendment to the federal Constitution (see
Batson v. Kentucky (1986) 476 U.S. 79 (Batson)).1
1
At trial, defendant cited only to this court’s decision in Wheeler, supra, 22
Cal.3d 258, which is based on the state Constitution. On appeal, however, this
court may properly consider his federal constitutional claim as well, because it is
(footnote continued on next page)
1
As the United States Supreme Court has explained, a three-step procedure
applies when, as here, a party argues in the trial court that the opposing party is
exercising a peremptory challenge for constitutionally impermissible reasons.
First, the party attacking the peremptory challenge “must make out a prima facie
case ‘by showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.’ ” (Johnson v. California (2005) 545 U.S. 162, 168.)
Once that showing is made, the burden shifts to the party who exercised the
challenge to give its reasons. Then the trial court must decide whether the
challenge was based on constitutionally permissible grounds. (Ibid.; see also
People v. Johnson (2006) 38 Cal.4th 1096, 1099.)
Applying here the first of that three-part test, the majority concludes that
defendant failed to make a prima facie showing that any of the prosecution’s
challenges were based on group bias. The majority reaches that conclusion after
an independent review of the juror questionnaires and the prospective jurors’
answers to questions asked on voir dire. Because defendant did not make the
requisite prima facie showing, the majority holds, the trial court properly denied
his Wheeler motion. (Maj. opn., ante, at pp. 19-22.)
I question the majority’s mode of analysis. “Once a prosecutor has offered
a race-neutral explanation for the peremptory challenges and the trial court has
ruled on the ultimate question of intentional discrimination, the preliminary issue
of whether the defendant had made a prima facie showing becomes moot.”
(Hernandez v. New York (1991) 500 U.S. 352, 359 (plur. opn. of Kennedy, J.); see
(footnote continued from previous page)
substantially similar to his claim under the state Constitution. (People v. Panah
(2005) 35 Cal.4th 395, 438, fn. 13.)
2
also People v. Boyette (2002) 29 Cal.4th 381, 469 (dis. opn. of Kennard, J.).)
Here, the prosecution gave reasons for the three peremptory challenges, and the
trial court found no showing of intentional group discrimination. Thus, the
preliminary issue of whether the defense made the requisite prima facie showing
became moot. What does need to be decided, however, is whether the trial court
was right in ruling that the prosecution’s three peremptory challenges were not
impermissibly motivated by group bias. That determination requires an
examination of the prosecution’s reasons for those peremptory challenges, a
process in which the majority has not engaged.
The following illustration shows the inadequacy of the majority’s approach:
A defendant objects at trial to the prosecution’s peremptory challenge to a
prospective juror, asserting it is motivated by group bias. The trial court correctly
concludes that the defense has not made the requisite prima facie showing but, out
of an abundance of caution, asks the prosecution to state the reasons for the
challenge. The prosecution responds that the challenge was made because of the
prospective juror’s religious affiliation, unaware, as is the trial court, that this is a
constitutionally impermissible reason. (See People v. Bell (2007) 40 Cal.4th 582,
596.) The trial court overrules the defendant’s objection. Because in this example
the defense had not made a prima facie showing of impermissible group bias
before the prosecution gave its religion-based reason, the majority’s approach,
when applied to this example, would ignore the fact that the prosecution’s stated
reason for the peremptory challenge was religion-based, in violation of the
defendant’s right under the California Constitution to a jury drawn from a fair
cross-section of the population. This is wrong. When the prosecution’s stated
reasons for a peremptory challenge are improper, “ ‘courts cannot effectively close
their eyes to that fact by simply deciding that the defendant has not made out a
prima facie case.’ ” (Holloway v. Horn (3d Cir. 2004) 355 F.3d 707, 724.) Thus,
3
to evaluate defendant’s claim here of Wheeler/Batson error, there needs to be an
examination of the prosecution’s reasons for peremptorily challenging the three
prospective jurors. Only then can it be determined whether the challenges were
based on constitutionally permissible or impermissible grounds.
The prosecution said that its challenge to Prospective Juror P.T. was based
on the juror’s attitude. In responding to the juror questionnaire, the juror said that
if she disagreed with the judge’s instructions she would discuss the matter with the
judge and they would “have to come to some agreement.” The prosecution
considered that response “arrogant” and described the juror’s answers to voir dire
questions as “flip” and the juror’s attitude in court as “smarty.” The trial court
agreed.
The prosecution said it peremptorily challenged Prospective Juror D.M., a
former professional football player, because “[t]here was a swagger to his walk
and a bravado in his style” that caused the prosecution to be concerned “about his
ability to reach a consensus or to consider the matter carefully.” Defense counsel
responded that D.M. “moved like an athlete,” a fact that counsel said had no
bearing on his attitude toward the case. The trial court agreed with the
prosecution’s concern, noting that the juror had refused to answer most of the
inquiries on the jury questionnaire, writing the word “confidential” instead of an
answer.
The prosecution challenged Prospective Juror A.A. because he had
displayed in court a “flip attitude” by “swinging in his seat” during voir dire and
“smirking at” the prosecutor, because he felt that child molesters who kill should
“get treatment,” and because he strongly disagreed with the view that “an eye for
an eye would be a fair and proper rule in the administration of the criminal justice
system.” The trial court agreed, describing the juror as “immature, moving in his
4
chair, flippant in his answers on the questionnaire . . . [and] trying to get off the
jury panel.”
Substantial evidence supports the trial court’s ruling that the prosecution’s
reasons for the peremptory challenges to the three prospective jurors in question
were genuine and were neutral as to race and ethnicity. (See People v. Alvarez
(1996) 14 Cal.4th 155, 196 [“An appellate court reviews a trial court’s ruling on a
motion under Wheeler and/or Batson for substantial evidence.”].) Because the
trial court observed the demeanor of these prospective jurors, its findings are
entitled to great deference. (People v. Reynoso (2003) 31 Cal.4th 903, 926.)
Defendant insists that the prosecution’s reasons were pretextual, stating that
the three challenged jurors’ answers to the jury questionnaires and their responses on
voir dire did not differ significantly from those given by other prospective jurors.
Assuming for the sake of argument that, when a defendant raises this issue for the first
time on appeal, this court must undertake a comparative juror analysis (see People
v. Zambrano (2007) 41 Cal.4th 1082, 1109), defendant’s argument here is
unpersuasive. There is no evidence that the other prospective jurors displayed the sort
of demeanor that caused the prosecution to be concerned that the three challenged
jurors might not fairly consider the evidence presented by the prosecution.
To summarize, the majority is wrong in rejecting defendant’s claim of
Wheeler error based on his failure to make a prima facie showing that the
prosecution’s peremptory challenges were motivated by a discriminatory purpose.
Instead, the majority should have examined the prosecution’s stated reasons for
the challenges. Nevertheless, as explained above, I agree with the majority’s
conclusion that the trial court properly rejected defendant’s Wheeler claim.
KENNARD,
J.
I CONCUR:
MORENO, J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Howard
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S029489
Date Filed: February 4, 2008
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: J. D. Smith
__________________________________________________________________________________
Attorneys for Appellant:
Lynne S. Coffin, State Public Defender, Andrew S. Love and Alison Pease, Deputy State Pubic Defenders;
and David S. Adams, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorney Generals, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
David S. Adams
P.O. Box 1670
Hood River, OR 97031
(541) 386-5716
David E. Madeo
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-4925
2
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 02/04/2008 | 42 Cal.4th 1000 original opinion | S029489 | Automatic Appeal | closed; remittitur issued | HOWARD (ALPHONSO) ON H.C. (S144008) |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office David Madeo, Deputy Attorney General 300 S. Spring Street, Suite 1702 Los Angeles, CA |
| 2 | Howard, Alphonso (Appellant) San Quentin State Prison Represented by David S. Adams Attorney at Law P.O. Box 1670 Hood River, OR |
| 3 | Howard, Alphonso (Appellant) San Quentin State Prison Represented by Jan B. Norman Attorney At Law 1000 Wilshire Boulevard, Suite 600 Los Angeles, CA |
| Disposition | |
| Feb 4 2008 | Opinion: Affirmed |
| Dockets | |
| Oct 20 1992 | Judgment of death |
| Oct 29 1992 | Filed certified copy of Judgment of Death Rendered 10-20-92. |
| Nov 9 1992 | Received letter from: Dated 11-4-92, from Carol Pollack, Senior Asst. Atty General. |
| Mar 6 1998 | Order appointing State Public Defender filed Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant on his automatic appeal now pending in this court. |
| Mar 30 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 31 1998 | Filed: Suppl Decl of Service of Eot Request. |
| Apr 1 1998 | Extension of Time application Granted To Applt To 6-5-98 To request Corr. of Record. |
| May 28 1998 | Application for Extension of Time filed By Applt to request Record correction |
| Jun 2 1998 | Extension of Time application Granted To 8-4-98 To request Record correction |
| Jul 24 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 28 1998 | Extension of Time application Granted To 10-5-98 To request Record correction |
| Sep 23 1998 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Jan B. Norman is hereby appointed to represent appellant Alphonso Howard for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. |
| Oct 5 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 13 1998 | Extension of Time application Granted To 12-04-98 To request Record correction |
| Dec 3 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 9 1998 | Extension of Time application Granted To 2-2-99 To request Record correction no further Extensions of time Are Contemplated |
| Jan 29 1999 | Application for Extension of Time filed To request Record correction |
| Feb 2 1999 | Extension of Time application Granted To 4-5-99 To request Record correction no further Extensions of time will be granted |
| Apr 6 1999 | Received copy of appellant's record correction motion applt's request for correction and completion of record. (80 pp.) |
| Jun 3 1999 | Compensation awarded counsel |
| Feb 1 2000 | Change of Address filed for: Atty Jan B. Norman |
| Aug 3 2000 | Counsel's status report received (confidential) from State Public Defender. |
| Sep 29 2000 | Counsel's status report received (confidential) from State P.D. |
| Dec 1 2000 | Counsel's status report received (confidential) from State P.D. |
| Jan 26 2001 | Counsel's status report received (confidential) from State P.D. |
| Feb 21 2001 | Counsel's status report received (confidential) from atty Norman. |
| Mar 27 2001 | Counsel's status report received (confidential) from State P.D. |
| Apr 16 2001 | Counsel's status report received (confidential) from atty Norman. |
| May 29 2001 | Counsel's status report received (confidential) from State P.D. |
| Jun 15 2001 | Counsel's status report received (confidential) from atty Norman. |
| Jul 25 2001 | Counsel's status report received (confidential) from State P.D. |
| Aug 21 2001 | Counsel's status report received (confidential) from atty Norman. |
| Sep 24 2001 | Counsel's status report received (confidential) from State P.D. |
| Oct 29 2001 | Counsel's status report received (confidential) from atty Norman. |
| Nov 27 2001 | Counsel's status report received (confidential) from State P.D. |
| Jan 23 2002 | Counsel's status report received (confidential) from atty Norman. |
| Jan 25 2002 | Counsel's status report received (confidential) from State P.D. |
| Mar 25 2002 | Counsel's status report received (confidential) from State P.D. |
| Apr 17 2002 | Counsel's status report received (confidential) from atty Norman. |
| Apr 19 2002 | Motion filed (in non-AA proceeding) Motion by appellant to disqualify the Office of the Attorney General from representing the state in the instant action and request for stay of record correction proceedings. |
| Apr 22 2002 | Opposition filed To applt.'s motion to disqualify Office of Atty. General from representing the state in the instant action and opposition to stay further proceedings. |
| May 2 2002 | Filed: Appointed habeas corpus counsel's joinder in motion by the Office of the State Public Defender to disqualify Office of the Atty. General from representing the state in the instant action. |
| May 9 2002 | Order filed Appellant's request, filed April 19, 2002, for a stay of record correction proceedings is denied. Appellant's motion to disqualify the Office of the Attorney General remains under consideration. |
| May 28 2002 | Counsel's status report received (confidential) from State P.D. |
| Jun 4 2002 | Record on appeal filed C-47 (11539 pp.) and R-47 (2966 pp.) including material under seal. Clerk's transcript includes 4238 pp. of juror questionnaires. |
| Jun 4 2002 | Appellant's opening brief letter sent, due: July 15, 2002. |
| Jun 12 2002 | Order filed Appellant's motion, filed April 19, 2002, to disqualify the Attorney General from representing the People in this action is denied without prejudice to renewing such motion upon a more specific showing. Kennard, J., would disqualify the Los Angeles Office of the Attorney General. |
| Jul 1 2002 | Counsel's status report received (confidential) from atty Norman. |
| Jul 10 2002 | Request for extension of time filed To file AOB. (1st request) |
| Jul 10 2002 | Counsel's status report received (confidential) from State P.D. |
| Jul 18 2002 | Extension of time granted To 9/16/2002 to file AOB. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inform his assisting attorney or entity, if any and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Sep 9 2002 | Counsel's status report received (confidential) from atty Norman. |
| Sep 13 2002 | Request for extension of time filed To file appellant's opening brief. (2nd request) |
| Sep 13 2002 | Counsel's status report received (confidential) from State P.D. |
| Sep 18 2002 | Extension of time granted To 11/15/2002 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Nov 13 2002 | Counsel's status report received (confidential) from State P.D. |
| Nov 13 2002 | Request for extension of time filed To file appellant's opening brief. (3rd request) |
| Nov 19 2002 | Extension of time granted To 1/14/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Jan 10 2003 | Counsel's status report received (confidential) from State P.D. |
| Jan 10 2003 | Request for extension of time filed to file AOB. (4th request) |
| Jan 14 2003 | Extension of time granted To 3/17/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of htis schedule, and to take all steps necessary to meet it. |
| Feb 19 2003 | Counsel's status report received (confidential) from atty Norman. |
| Mar 13 2003 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Mar 13 2003 | Counsel's status report received (confidential) from State P.D. |
| Mar 17 2003 | Extension of time granted to 5/16/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender David S. Adams's representation that he anticipates filing that brief by 9/15/2003. |
| May 12 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| May 13 2003 | Counsel's status report received (confidential) from atty Norman. |
| May 14 2003 | Extension of time granted to 7/15/2003 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender David S. Adam's representation that he anticipates filing that brief by 9/15/2003. |
| Jul 10 2003 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Jul 10 2003 | Counsel's status report received (confidential) from State P.D. |
| Jul 16 2003 | Extension of time granted to 9-15-2003 to file AOB. After that date, no further extension will be granted. Extension granted based upon Deputy State P.D. David Adams's representation that he anticipates filing AOB by that date. |
| Aug 18 2003 | Counsel's status report received (confidential) from atty Norman. |
| Sep 15 2003 | Appellant's opening brief filed (272 pp. - excluding attached appendix A) |
| Sep 15 2003 | Counsel's status report received (confidential) from State P.D. |
| Oct 6 2003 | Request for extension of time filed to file respondent's brief. (1st request) |
| Oct 15 2003 | Extension of time granted to 12/15/2003 to file respondent's brief. |
| Dec 8 2003 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Dec 12 2003 | Extension of time granted to 2/13/2004 to file the respondent's brief. Extension is granted based upon Deputy Attorney General David E. Madeo's representation that he anticipates filing that brief by 2/13/2004. After that date, no further extension is contemplated. |
| Dec 15 2003 | Counsel's status report received (confidential) from atty Norman. |
| Dec 23 2003 | Compensation awarded counsel Atty Norman |
| Jan 29 2004 | Respondent's brief filed (122 pp.; 35,323 words) |
| Feb 17 2004 | Counsel's status report received (confidential) from State P.D. |
| Feb 17 2004 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Feb 18 2004 | Extension of time granted to 4/19/2004 to file appellant's reply brief. |
| Feb 20 2004 | Counsel's status report received (confidential) from atty Norman. |
| Mar 1 2004 | Filed: Declaration of attorney Jan B. Norman (confidential). |
| Mar 10 2004 | Compensation awarded counsel Atty Norman |
| Apr 13 2004 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Apr 19 2004 | Extension of time granted to June 18, 2004 to file appellant's reply brief. The court anticipates that after that date, only four further extensions totaling about 240 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it. |
| May 19 2004 | Request for extension of time filed to file reply brief. (3rd request) |
| May 21 2004 | Extension of time granted to 8-17-2004 to file reply brief. The court anticipates that after that date, only three further extensions totaling about 180 additional days will be granted. Counsel is ordered to inform his or supervising attorney, if any, of this schedule, and to take all steps necessary to meet it. |
| Jun 14 2004 | Counsel's status report received (confidential) from atty Norman. |
| Jul 30 2004 | Motion to withdraw as counsel filed Motion of State Public Defender to withdraw as counsel of record for appellant. |
| Jul 30 2004 | Motion for appointment of counsel filed Application of attorney David S. Adams for appointment as counsel for appellant. |
| Aug 12 2004 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Aug 16 2004 | Extension of time granted to 10/18/2004 to file appellant's reply brief. After that date, only three further extensions totaling about 180 additional days will be granted. Exltension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by 4/15/2005. |
| Aug 18 2004 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant Alphonso Howard, filed July 30, 2004, is granted. The order appointing the State Public Defender as counsel of record for appellant Alphonso Howard, filed March 6, 1998, is hereby vacated. David S. Adams is hereby appointed as counsel of record to represent appellant Alphonso Howard for the direct appeal in the above automatic appeal now pending in this court. Chin, J., was absent and did not participate. |
| Sep 20 2004 | Counsel's status report received (confidential) from atty Norman. |
| Oct 15 2004 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Oct 19 2004 | Extension of time granted to 12/17/2004 to file appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by 4/15/2005. |
| Dec 14 2004 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Dec 16 2004 | Extension of time granted to 2/15/2005 to file appellant's reply brief. After that date, only one further extension totaling about 75 additional days will be granted. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by 4/30/2005. |
| Jan 25 2005 | Counsel's status report received (confidential) from atty Norman. |
| Feb 7 2005 | Request for extension of time filed to file appellant's reply brief. (7th request) |
| Feb 10 2005 | Extension of time granted to 4/29/2005 to file appellant's reply brief. Extension is granted based upon counsel David S. Adams's representation that he anticipates filing that brief by 4/29/2005. After that date, no further extension will be granted. |
| Apr 27 2005 | Appellant's reply brief filed (20,326 words; 99 pp.) |
| May 18 2005 | Compensation awarded counsel Atty Adams |
| Jun 8 2005 | Compensation awarded counsel Atty Adams |
| Jul 5 2005 | Counsel's status report received (confidential) from atty Norman. |
| Jul 25 2005 | Filed: Declaration of attorney Jan B. Norman (confidential). |
| Jul 27 2005 | Compensation awarded counsel Atty Norman |
| Oct 31 2005 | Counsel's status report received (confidential) from atty Norman. |
| Jan 19 2006 | Counsel's status report received (confidential) from atty Norman. |
| Feb 15 2006 | Filed: declaration of attorney Jan B. Norman (confidential). |
| Feb 16 2006 | Compensation awarded counsel Atty Norman |
| Apr 25 2006 | Counsel's status report received (confidential) from atty Norman. |
| Jun 5 2006 | Related habeas corpus petition filed (concurrent) No. S144008 |
| Jun 14 2006 | Compensation awarded counsel Atty Norman |
| Feb 7 2007 | Change of contact information filed for: attorney David S. Adams. (Notice of temporary change of address for the month of February 2007: counsel will be at 839 1st Street West, Sonoma, CA 95476). |
| Jun 22 2007 | Exhibit(s) lodged People's exhibit #22 (photograph). |
| Sep 10 2007 | Oral argument letter sent advising counsel that the court could schedule this case for oral argument as early as the November calendar, to be held the week of November 5, 2007, 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 2 2007 | Case ordered on calendar to be argued on Tuesday, November 6, 2007, at 1:30 p.m., in Sacramento. |
| Oct 11 2007 | Received: appearance sheet from Deputy AG David Madeo, indicating 30 minutes for oral argument for respondent. |
| Oct 11 2007 | Filed: Respondent's focus issue letter; dated October 9, 2007. |
| Oct 12 2007 | Received: appearance sheet from David S. Adams, indicating 30 mintues for oral argument for appellant. |
| Oct 22 2007 | Filed: "Modified" respondent's focus issue letter; dated October 19, 2007. |
| Oct 25 2007 | Filed letter from: atty David S. Adams, dated October 22, 2007, re appellant's focus issues for oral argument and request for 45 minutes for argument. |
| Nov 6 2007 | Stipulation filed Counsel for the parties in the above-entitled action, having been informed by the Clerk of the Court that Justice Corrigan will not be present at oral argument because of illness, but will review the tape recording of the oral argument, hereby stipulate that they have no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. (stipulation signed by attorney David Adams and Deputy Attorney General David Madeo) |
| Nov 6 2007 | Cause argued and submitted |
| Dec 7 2007 | Compensation awarded counsel Atty Adams |
| Dec 19 2007 | Compensation awarded counsel Atty Adams |
| Feb 4 2008 | Opinion filed: Judgment affirmed in full Majority opinion by Corrigan, J. ----- joined by George, C.J., Baxter, Werdegar, Chin JJ. Concurring and Dissenting Opinion by Kennard, J. -- joined by Moreno, J. |
| Feb 8 2008 | Exhibit(s) returned the Los Angeles Office of the Supreme Court for pick up by the superior court. (People's exhibit-22 photograph) |
| Feb 14 2008 | Exhibit(s) returned |
| Feb 19 2008 | Received: acknowledgment of receipt of exhibit. |
| Feb 19 2008 | Rehearing petition filed by appellant. (5,932 words; 28 pp.) |
| Feb 21 2008 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including May 19, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Mar 12 2008 | Compensation awarded counsel Atty Adams |
| Mar 20 2008 | Compensation awarded counsel Atty Adams |
| Mar 26 2008 | Rehearing denied The petition for rehearing is denied. |
| Mar 26 2008 | Remittitur issued (AA) |
| Apr 4 2008 | Received: receipt for remittitur. |
| Jun 26 2008 | Received: copy of appellant's petition for writ of certiorari, dated June 24, 2008. (22 pp. excluding appendices.) |
| Jul 2 2008 | Compensation awarded counsel Atty Adams |
| Jul 16 2008 | Compensation awarded counsel Atty Adams |
| Oct 14 2008 | Certiorari denied by U.S. Supreme Court |
| Briefs | |
| Sep 15 2003 | Appellant's opening brief filed |
| Jan 29 2004 | Respondent's brief filed |
| Apr 27 2005 | Appellant's reply brief filed |
