Filed 2/5/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S110206

v.

Los Angeles County

MICHAEL ANTHONY JACKSON,

Super. Ct. No. A530714

Defendant and Appellant.

___________________________________ )




In 1984, defendant Michael Anthony Jackson was convicted and sentenced

to death for murdering a police officer who was engaged in the performance of his

duties. This court affirmed the judgment in People v. Jackson (1989) 49 Cal.3d

1170, but the Ninth Circuit Court of Appeals set aside the penalty verdict and

death sentence, finding defendant had received ineffective assistance of counsel.

(Jackson v. Calderon (9th Cir. 1998) 211 F.3d 1148.) Following a penalty phase

retrial, a judgment of death again was imposed on September 20, 2002. This

appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) As

explained below, we affirm the judgment.

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I. FACTS

A. Prosecution Evidence

Shortly after noon on August 31, 1983, West Covina Police Officer Ken

Wrede radioed that he had been told by a citizen of an intoxicated person in the

area and would “be checking.” A few minutes later, Edward Butler,1 who was

working in the area, noticed defendant walking toward the corner of Glenview

Road and Francisquito Avenue. Defendant was walking “kinda crooked.” Officer

Wrede arrived, made a U-turn, and pulled to the curb at an angle. He radioed that

defendant was “possibly dusted,” meaning under the influence of phencyclidine

(PCP), and requested backup. Officer Wrede got out of the vehicle, asked

defendant where he was going, and told defendant to sit down on the curb.2

Defendant began to walk away and the officer used his walkie-talkie to again

request backup.3 The officer again told defendant to sit down on the curb, but

defendant continued walking. The officer approached defendant “and kind of

tapped him in the back of the knees with the billy club.” Defendant “turned

around and he started fighting.”4

Defendant and the officer fell to the ground and began “tussling” and

fighting. Defendant was punching and kicking the officer. Officer Wrede tried to

defend himself and struck defendant in the midsection with his baton several


1

Butler had died prior to the penalty phase retrial. His testimony at the prior

trial was read to the jury.
2

About this time, Robert Dunham (who was 19 years old at the time) drove

by on his way to a gas station and saw defendant and the victim engaged in a
“heated discussion.”
3

Over the next several minutes, Officer Wrede radioed twice more asking

for assistance.
4

When Dunham returned after buying gasoline, defendant and the victim

were fighting on the front lawn of a residence.

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times, to no effect. Officer Wrede sprayed mace in defendant’s face several times,

with no apparent effect. Defendant pulled a wooden tree stake out of the ground,

uprooting the tree it was supporting, and swung the stake at the officer, who

blocked it with his baton, causing the stake to fly into the street. During the

altercation, defendant ripped the officer’s badge from his uniform and broke his

sunglasses.

Officer Wrede ran to the driver’s side door of the police vehicle and

defendant ran to the opposite side of the vehicle, opened the passenger side door

and grabbed a shotgun that was secured in a rack. Officer Wrede broadcast, “he’s

got my shotgun rack,” and then pushed defendant and they struggled over the

shotgun until defendant ripped the shotgun and the rack from the vehicle.5 Officer

Wrede broadcast, “he pulled it out,” and then pointed his handgun at defendant

over the roof of the vehicle. The shotgun was kept in the rack at “patrol ready,”

meaning there were four rounds of ammunition in the magazine and the safety was

on. To fire the shotgun, the safety must be off and a round must be moved from

the magazine to the firing chamber by sliding the pump action. Defendant

attempted to load a round into the shotgun by sliding the pump. He pointed the

weapon at the victim and appeared to pull the trigger, but the shotgun did not fire.

Defendant again tried to load the weapon, which was still in the rack. This time,

defendant was able to move the slide and Dunham heard the sound of a load

entering the firing chamber of the shotgun. Officer Wrede crouched down behind

the vehicle, still pointing his gun at defendant. Defendant then laid the shotgun on


5

In a later experiment, a police officer was able to quickly rip a similar

shotgun and rack from another patrol car. The rack was affixed to the metal
floorboard of the vehicle by two machine screws. A third screw went into the
foam dashboard.

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the roof of the vehicle and placed his hands on the roof of the vehicle, appearing to

give up. Officer Wrede pointed his gun up, above defendant, and started to walk

around the vehicle when defendant picked up the shotgun and shot the officer in

the head.

Los Angeles Deputy Sheriff Stephen Vine was told by a passing motorist

that a fight was occurring and arrived at the scene just after Officer Wrede was

shot. Deputy Vine pulled his vehicle next to Officer Wrede’s vehicle and saw

Officer Wrede’s body on the ground. As Deputy Vine left his vehicle, defendant

stood up from behind Officer Wrede’s vehicle and pointed the shotgun at Deputy

Vine. Deputy Vine ducked back into his vehicle, backed away from defendant a

couple of hundred feet, and jumped back out of the vehicle with his gun drawn.

Defendant was walking toward the deputy, pointing the shotgun at him.

Defendant appeared to be trying to both pull the trigger and move the slide to load

a round into the shotgun.

West Covina Police Officer Arthur Marinello and his police dog came up

behind defendant. Deputy Vine yelled for Officer Marinello to shoot defendant or

release his dog. Defendant responded by repeating “I’ll shoot you” and “I will kill

all you fucking pigs,” as he continued to point the shotgun at the deputy while

both pulling at the trigger and trying to load a round into the chamber. Officer

Marinello released his dog. Defendant struck the dog with the butt of the shotgun,

stunning the animal, but the dog recovered and bit defendant, causing him to fall

to the ground and drop the shotgun. West Covina Police Officer Christopher

Mohler, who had arrived on the scene on his motorcycle just after Deputy Vine,

ran into the street, kicked the shotgun to the side and grabbed defendant’s arm as

Officer Marinello grabbed defendant’s other arm. Defendant struggled and tried

to grab Officer Marinello’s gun and Officer Mohler’s gun. Deputy Vine

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approached and struck defendant in the stomach with his baton three or four times,

subduing defendant enough to permit the other officers to handcuff defendant.

Deputy Sheriff Sabino Muniz arrived at the West Covina Police Station

shortly after defendant was arrested and accompanied defendant as paramedics

transported him to a hospital for treatment. The parties stipulated that a blood

sample taken from defendant shortly after the crime revealed the presence of PCP.

At the hospital, defendant answered the deputy’s preliminary questions, stating his

name, age, birthday, address and other information without difficulty or apparent

confusion. A couple of hours later, after defendant had been treated, defendant

asked Deputy Muniz: “Why am I under arrest? Am I being charged for killing a

cop?” To Deputy Muniz’s knowledge, no one had mentioned in defendant’s

presence that a police officer had been killed.

Los Angeles County Sheriff Detective Sergeant Michael Lee, a homicide

investigator, later questioned defendant in his hospital room in the jail ward. He

advised defendant of his rights, which defendant waived. Defendant was

responsive and appeared to understand. Defendant asked Sergeant Lee what he

was being arrested for, and Sergeant Lee answered, “murder.” Defendant asked,

“I killed a policeman?” The next day, Sergeant Lee and his partner returned and

asked defendant if he remembered them. Defendant replied, “Yeah, you’re the

cops that said I shot that officer with a shotgun.” To Sergeant Lee’s knowledge,

no one had told defendant that Officer Wrede had been killed with a shotgun.

Sergeant Lee asked defendant how he knew Officer Wrede had been killed with a

shotgun. Defendant replied he had read it in the newspaper, but newspapers were

not available in the jail ward and defendant’s wrists were secured to the sides of

his bed.

George T. testified that seven years earlier on June 18, 1976, when he was

17 years old and in the Army, defendant and another man entered his barracks at

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11 p.m. and climbed into his bunk. Defendant’s accomplice struck the witness in

the face and defendant sodomized him, causing his rectum to bleed.

Raul Curiel testified that on April 16, 1969, when he was 18 years old, he

was walking with a friend in West Covina when they were summoned by

defendant, who was 15 years old, and an accomplice. Defendant’s accomplice

poked a knife in Curiel’s stomach and demanded money. Curiel responded that he

had no money, turning his pockets inside out and throwing to the ground his

wallet and a Department of Motor Vehicles (DMV) application for a driver’s

license. Defendant then took the knife and demanded Curiel’s cigarettes. Curiel

handed defendant his cigarettes and defendant poked him in the stomach with the

knife. Defendant then returned the pack of cigarettes and he and his accomplice

ran off. Curiel encountered a police officer and reported that he had been robbed.

Defendant and another man were arrested a short time later and Curiel’s wallet

and DMV application were recovered. Two knives were recovered from

defendant.

George Dorta testified that on July 5, 1983 he was a West Covina police

officer and conducted a traffic stop of a vehicle that was weaving. The vehicle

stopped in a gas station with a minimarket and Officer Dorta approached the

driver and asked for his driver’s license. Defendant, who was a passenger in the

vehicle said “you don’t have to do that” and got out of the vehicle and walked

toward the officer with clenched fists. The driver also left the vehicle and began

walking toward the officer, who retreated behind the pumps, drew his gun and

ordered them to stop. Defendant cursed at Officer Dorta, but withdrew to the

minimarket.

Officer Gregory Bennallack arrived in response to a request by Officer

Dorta for backup and learned from Officer Dorta that defendant was in the

minimarket and possibly was under the influence of PCP. Officer Bennallack

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entered the market and told defendant to come outside. Defendant said “Fuck you,

I don’t want to talk to you” and began to walk away. Officer Bennallack put his

hand on defendant’s shoulder and said they needed to go outside and talk.

Defendant again refused and then grabbed the officer with one hand and ripped his

badge from his shirt with the other. Officer Bennallack struck defendant in the

legs several times with his baton, which had no effect. Defendant again grabbed

for the officer’s badge, which was hanging from the officer’s shirt and reached for

the officer’s gun. Officer Bennallack punched defendant in the face, causing him

to fall on his face, kneeled on top of him, and handcuffed him. After defendant

was booked, he threaten to rape Officer Bennallack’s wife and kill his children.

Friends who knew and worked with the deceased described kind and heroic

acts Officer Wrede had performed and recalled how highly people thought of him.

Officer Wrede’s sisters testified about his childhood, his devotion to his family

and his profession, and the impact of his death on his family. The victim’s wife

described their life together and the impact his death had on her. His parents

testified about their love for their son and how much they missed him.

Evidence was introduced that defendant had suffered a felony conviction

for burglary in 1974.

B. Defense Evidence

The defense read to the jury the prior testimony of Lucinda Smith, who had

died prior to the penalty phase retrial. She had seen defendant on the street shortly

before noon on August 31, 1983. He had socks on, but no shoes, and appeared

disoriented. She continued down the street and encountered Officer Wrede and

told him about defendant. Officer Wrede said he would take care of it.

James Butler testified he had been defendant’s friend since 1983 and they

would smoke PCP together several times a week. About 10 a.m. on August 31,

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1989, defendant came to Butler’s house with two young women and Butler gave

defendant a PCP-laced cigarette. At some point, defendant kicked off his sandals

and ran off.

Defendant’s mother, Lillian Williams, testified that defendant was one of

her six children, fathered by three different men, two of whom were deceased at

the time of trial. Defendant’s father, Tamridge Jackson, was a “bookie” who

never lived with or supported defendant. Williams supported her family on

“county aid.” They lived in “shacks.” Defendant was born in March 1954. The

next year, Williams met and later moved in with Arthur Morrissette, until he left

her for another woman five years later.

Williams admitted that she “whooped” all of her children, meaning that

when angered she would strike the children with whatever object was handy. On

one occasion, she choked defendant. Two of defendant’s sisters and one of his

brothers confirmed this.

In 1960, Lillian Williams met Mr. Williams. The next year, he and five of

his six children moved in with her, so they had 11 children living in a two-

bedroom house. Defendant had played sports and wanted to be a professional

athlete, but around the age of 14 or 15 he began using drugs; first sniffing glue and

later using PCP.

Pamela Jackson, defendant’s sister, described how, as children, she and

defendant would go looking for their father in “bookie joints.” Although he was

happy to see them, he would make them leave and never spent time with them. At

home, their mother would administer whippings using a belt or extension cord, but

only if they misbehaved.

Defendant’s 28-year-old daughter, Shameka Dahlberg, testified that

defendant has been in custody since she was eight years old but she has visited

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him and he calls her on the telephone every few months. She thinks of him more

as a friend than as a parent.

Defendant’s wife, Sabrina Jackson, testified. Defendant married Sabrina

when he was in his “early 20’s.” She had a child when they met and she and

defendant had two more children. On cross examination, Sabrina testified that

defendant was capable of taking care of himself and his family, when he was not

taking drugs. Defendant “wasn’t the greatest writer the greatest reader,” but he

could read and write.

Dr. Dale Watson, a psychologist specializing in neuropsychology, tested

defendant and testified that defendant has “borderline intellectual abilities. His

intelligence quotient (IQ) is in what is called the borderline range. It is just about

retarded.” Defendant had a “moderate degree of impairment of the brain

functions.” Defendant’s “full scale IQ, which is a combination of both verbal and

non-verbal abilities, was 79. And his verbal IQ, which is simply his ability to deal

with verbal information, was also 79. His non-verbal or performance IQ was 83.

All of these scores fall within what is called the borderline range.” An average IQ

is 100. Defendant’s IQ was tested on numerous occasions between 1967 and 1980

and varied between a low of 72 and a high of 90. Defendant displayed several

types of brain impairment. Outside the presence of the jury, Dr. Watson told the

court that the term “mentally retarded” meant “a score of approximately 70,” but

that could mean an IQ of up to 75 because there was up to a five-point margin of

error in testing. Defendant never had received an IQ score below 70.

Dr. Jay Jackman, a forensic psychiatrist, testified that the beatings inflicted

by defendant’s mother “severely impaired his development.” Defendant “has

borderline intelligence and he has brain impairment.” “PCP is classed as a

dissociative anesthetic. And what that means is that it will reduce people’s level

of sensation to such a degree that they can have surgical anesthesia and be alert

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and awake and not feel pain.” The amount of PCP measured in defendant’s blood

following the crime “would result in a significant intoxication and impairment.”

James Esten, a “correctional consultant,” examined defendant’s prison

records and testified that he would not pose a threat to inmates or staff if he was

sentenced to life in prison without parole.

C. Prosecution’s Rebuttal Evidence

On rebuttal, Daniel Smith testified that on July 27, 1969, he was returning

home from the store with loaves of bread and some food stamps while running an

errand for his mother. As he rode through an alley on his bicycle, several people,

led by defendant, jumped out of an automobile and ordered him to stop. When he

did not stop, one of them threw a rock, which hit him on the arm, causing him to

fall off his bicycle. Defendant and another person grabbed Smith and threw him

up against a wall. One person threatened Smith with a rock while defendant

emptied his pockets and ripped a St. Christopher medal from his neck. They took

everything he had, including the bread and the food stamps. Smith later told his

family, who notified the police, and defendant was arrested.

Dr. Terrence McGee, a physician specializing in addiction medicine,

testified that the high level of PCP in defendant’s blood at the time of the crime

indicated defendant had developed a tolerance for the drug. Dr. McGee opined

that although defendant was under the influence of PCP, “it was a very minor

pattern.”

II. DISCUSSION

A. Denial of Continuance to Prepare Atkins Defense

On March 13, 2001, pursuant to the decision of the Ninth Circuit Court of

Appeals, the federal district court denied defendant’s petition for writ of habeas

corpus “as to the guilt phase” and granted his petition “as to the penalty phase of

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that proceeding.” On April 24, 2001, the case was called in the Los Angeles

Superior Court. Defendant was not present but was represented by the public

defender. The public defender declared a conflict of interest and was relieved as

counsel and the case was continued to April 30, 2001.

On April 30, 2001, defendant was present in court and counsel was

appointed to represent him. Defendant waived the statutory time for trial and the

case was continued numerous times. On February 27, 2002, the trial court granted

defendant’s request to continue the trial to May 29, 2002, but noted that no further

continuances would be granted and trial would commence on that date.

On May 6, 2002, defense counsel filed a written motion for continuance,

stating that obligations in other cases had prevented him from adequately

preparing for the penalty phase retrial. On May 10, 2002, the trial court granted

the motion and continued the trial to July 1, 2002.

On June 20, 2002, the United States Supreme Court held in Atkins v.

Virginia (2002) 536 U.S. 304, 321, that executing a mentally retarded defendant is

prohibited by the Eighth Amendment to the United States Constitution as “cruel

and unusual” punishment. The high court noted that “clinical definitions of

mental retardation require not only subaverage intellectual functioning, but also

significant limitations in adaptive skills such as communication, self-care, and

self-direction that became manifest before age 18.”6 (Id. at p. 318.) The high


6

The court quoted definitions of mental retardation by the American

Association on Mental Retardation and the American Psychiatric Association,
both of which required significantly subaverage intellectual functioning with
related limitations in two or more of the following applicable adaptive skill areas:
communication, self-care, home living, social skills, community use, self-
direction, health and safety, functional academics, leisure, and work that manifests
before age 18. The court described “ ‘[m]ild’ mental retardation” as “an IQ level

(Footnote continued on next page.)

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court, however, left to the states the task of establishing procedures to determine

which offenders were retarded. (Id. at p. 317.)

On June 24, 2002, defendant filed a written motion to continue the trial

“due to the decision of the Supreme Court of the United States in Atkins v.

Virginia.” The motion stated that the high court had ruled “that mentally retarded

people could not receive the death penalty,” but defendant’s motion acknowledged

that “[t]he issue that is not clear is what constitutes being mentally retarded.”

Defendant stated: “The Supreme Court has decided that the individual States

should define what Mental Retardation means. There is no definition of Mental

Retardation for this purpose in California Law. The Supreme Court does not

define Mental Retardation in this decision.”

The motion for continuance stated that a week earlier (three days prior to

Atkins) defendant had been tested to determine if he “was a ‘brain damaged’

person” and he was determined to have an IQ of 79, which defense counsel

described as “borderline for retardation.” Defense counsel requested a 60-day

continuance, stating he could not be ready for trial until he investigated “the

adaptive functioning factors that are mentioned in the Atkins v. Virginia opinion.”

At a hearing on the motion conducted that day, the trial court indicated it

was not inclined to continue the case, asking defense counsel what he hoped to

learn. Defense counsel responded that he hoped the Legislature would define

mental retardation. The trial court stated: “I’m not going to continue the case

based on what the Legislature may or may not do. The period of time for a bill to



(Footnote continued from previous page.)

of 50-55 to approximately 70.” (Atkins v. Virginia, supra, 536 U.S. at p. 308, fn.
3.)

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get through our legislature at a minimum you are talking months, counsel. It is

speculative and I will not do it. I cannot see any reason at all to continue the

matter. None at all. If you have evidence that your client is mentally retarded,

that is evidence that you would put on in any event. The record will be clear that

it is an issue and both sides should be prepared to put on whatever they have in the

issue. These cases are not going to be resolved at the trial level. Not for many

years will there be given a standard to give to the jurors. I’m not going to try to

explain to the jury that if the person is ‘mentally retarded’ they should not impose

the death sentence. I don’t feel equipped to do that. There would be no guidance

here for this court to do it and it would be an exercise in futility.” The penalty

phase retrial commenced on July 1, 2002.

Defendant contends the trial court deprived him of his rights to the

assistance of counsel and due process of law under the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution by denying his motion

to continue the trial. “The determination of whether a continuance should be

granted rests within the sound discretion of the trial court, although that discretion

may not be exercised so as to deprive the defendant or his attorney of a reasonable

opportunity to prepare.” (People v. Sakarias (2000) 22 Cal.4th 596, 646.)

The trial court did not abuse its discretion in denying defendant a

continuance to investigate “the adaptive functioning factors that are mentioned in

the Atkins v. Virginia opinion” and to wait for the Legislature to define mental

retardation. Defendant asserts: “The trial court was required to follow the law set

forth in Atkins.” The trial court did so. Atkins simply held that mentally retarded

defendants could not be executed and left it to the states to define mental

retardation and establish procedures to determine which defendants were mentally

retarded. The trial court was correct that it would be months, at least, before the

Legislature would define mental retardation and establish the necessary

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procedures for determining which defendants were mentally retarded. In fact, it

was not until the following year that the Legislature enacted Penal Code section

1376,7 which defines “mentally retarded” and establishes procedures for

determining whether a defendant is mentally retarded.8 The trial court, therefore,

did not violate the holding in Atkins by proceeding to trial in the absence of

guidance from the Legislature on how to implement the holding in that case and

did not abuse its discretion in denying defendant’s motion to continue the trial.

Even had defendant established that the trial court abused its discretion in

denying his motion to continue the trial in light of the high court’s decision in

Atkins, the record before this court does not establish that defendant was

prejudiced. (People v. Zapien (1993) 4 Cal.4th 929, 972 [“ ‘In the lack of a

showing of an abuse of discretion or of prejudice to the defendant, a denial of his

motion for a continuance cannot result in a reversal of a judgment of

conviction.’ ”].) Nothing in the record before us suggested that defendant would

have been able to show that he was retarded had the trial court granted his request

for a continuance. Defendant’s expert did not testify he was retarded, but rather

that he was in “the borderline range” and “just about retarded.” Defendant does

not argue in this court that he is retarded. He argues only that “the question of

whether [defendant] is mentally retarded has never been adequately investigated as

a discrete and decisive issue.”


7

Further undesignated statutory references are to the Penal Code.

8

Section 1376 defines “mentally retarded” to mean “the condition of

significantly subaverage general intellectual functioning existing concurrently
with deficits in adaptive behavior and manifested before the age of 18.” (Stats.
2003, ch. 700, § 1.) If the prosecution seeks the death penalty, the defendant may
elect to have the court determine whether the defendant is mentally retarded prior
to trial, or have the jury determine the issue following a conviction of murder with
special circumstances. (§ 1376, subd. (b)(1).)

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Defendant contends he must be granted a new penalty phase trial at which

jurors have the opportunity to decide whether he is mentally retarded. Defendant

asserts that he has a right to have a jury determine whether he is mentally retarded

under Ring v. Arizona (2002) 536 U.S. 584, which held that the Sixth Amendment

to the United States Constitution requires that a jury must determine all facts that

make a defendant eligible for the death penalty. Defendant asserts that “Atkins

expressly transformed mental retardation from solely a mitigating factor into a

‘narrowing’ circumstance that determines a defendant’s eligibility for the death

penalty.”

As noted above, the Legislature in 2003 enacted section 1376, which grants

a defendant “[i]n any case in which the prosecution seeks the death penalty . . . a

jury hearing to determine if the defendant is mentally retarded” if the defendant

first submits “a declaration of a qualified expert stating his or her opinion that the

defendant is mentally retarded.” Two years later, this court held that section 1376

applied only to preconviction proceedings and adopted a similar procedure for

defendants challenging a judgment of death. (In re Hawthorne (2005) 35 Cal.4th

40, 47.) We held that such a postconviction claim of mental retardation “should

be raised by petition for writ of habeas corpus . . . . To state a prima facie claim for

relief, the petition must contain ‘a declaration by a qualified expert stating his or

her opinion that the [petitioner] is mentally retarded . . . .’ [Citation.]” (Ibid.) We

did not, however, grant a similar right to a jury trial, deeming it “inappropriate to

extend the jury trial option to postconviction claims.” (Id. at p. 49.) We held

there was “no constitutional mandate” to have a jury determine whether a

defendant facing a judgment of death is mentally retarded, noting that the high

court in Atkins “expressly left to the states the responsibility of ‘ “developing

appropriate ways to enforce the constitutional restriction upon [their] execution of

sentences.” [Citation.]’ [Citation.]” (Id. at p. 50.)

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In Schriro v. Smith (2005) 546 U.S. 6, the high court reaffirmed that its

decision in Atkins does not give a capital defendant a right to have a jury

determine whether he or she is mentally retarded. The defendant in Schriro was

sentenced to death in Arizona and filed a petition for writ of habeas corpus in

federal court. After Atkins was decided, the defendant asserted that he was

mentally retarded. The Ninth Circuit Court of Appeals suspended the proceedings

and directed the defendant to “ ‘institute proceedings in the proper trial court of

Arizona’ ” and further ordered that whether Smith is mentally retarded must “ ‘be

determined . . . by a jury trial unless the right to a jury is waived by the parties.’ ”

(Id. at p. 7.) The high court reversed, holding that “[t]he Ninth Circuit erred in

commanding the Arizona courts to conduct a jury trial to resolve [defendant]’s

mental retardation claim. Atkins stated in clear terms that ‘ “we leave to the

State[s] the task of developing appropriate ways to enforce the constitutional

restriction upon [their] execution of sentences.” ’ [Citations.] . . . Arizona had

not even had a chance to apply its chosen procedures when the Ninth Circuit pre-

emptively imposed its jury trial condition.” (Id. at pp. 7-8.) Accordingly, even if

defendant had met the threshold requirement imposed in Hawthorne of submitting

a declaration from a qualified expert stating that he is mentally retarded, he would

not have a constitutional right to have a jury determine whether he is mentally

retarded.

Defendant claims he “is entitled to the statutory procedural protections of

section 1376.” As noted above, we held in Hawthorne that, “[b]y its terms,

section 1376 applies only to preconviction proceedings.” (In re Hawthorne,

supra, 35 Cal.4th at p. 44.) Defendant argues that our decision in Hawthorne does

not apply because his trial was conducted after Atkins was decided. Defendant

asserts he “had a right to have Atkins applied to his death penalty trial.” Defendant

is incorrect. The decision in Atkins did not require that defendant’s trial be

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conducted in any particular fashion. The decision in Atkins simply held that

defendant could not be executed if he is mentally retarded. Under our decision in

Hawthorne, defendant still may raise that claim in a petition for writ of habeas

corpus.

Citing Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439,

defendant contends that failing to grant him the procedural protections of section

1376 would deny him equal protection of the law, because he is similarly situated

“to a preconviction defendant.” Defendant is not now similarly situated “to a

preconviction defendant” because he is facing a judgment of death. Nor was he

similarly situated “to a preconviction defendant” for purposes of section 1376 just

prior to the second penalty phase trial, because section 1376 was not enacted until

after the judgment of death was entered.

Defendant claims he must be granted a new penalty phase trial, “as opposed

to remand for an after-the-fact determination of mental retardation only” because

“[s]eparate from the issue of his eligibility for the death penalty, a defendant . . .

must be allowed the opportunity to present evidence of his mental retardation as

mitigation . . . .” Defendant reasons that “Atkins’ holding that the Eighth

Amendment restricts the states from imposing death sentences on the mentally

retarded necessarily changed the mitigating significance of mental retardation

evidence in a capital penalty trial” because a state may not permit an individual

juror “to vote for the death penalty if that juror believes . . . the defendant is

mentally retarded.” Defendant argues that “after Atkins, the extenuating force of a

defendant’s mitigating evidence of mental retardation must be deemed absolute.”

The decision in Atkins does not say that. The decision in Atkins does not discuss

or alter the mitigating effect of evidence of mental retardation or discuss or alter

the circumstances under which an individual juror may vote for a sentence of

death. As noted above, the decision in Atkins simply held that a defendant could

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not be executed if he or she is mentally retarded and left to the states the tasks of

defining mental retardation and establishing procedures to determine which

defendants are mentally retarded.

Defendant contends he must be granted a new penalty phase trial so that the

prosecution can decide whether to seek the death penalty in light of “the factors

and principles identified in the Atkins decision.” There is no need to do so. The

People point out that after the parties discussed the then-recent decision in Atkins,

the prosecutor stated: “I don’t think he is mentally retarded. I’m ready to go

forward.”

B. Marsden Error

Defendant asserts that the trial court did not conduct an adequate inquiry

into the reasons for his repeated requests to discharge his appointed counsel,

violating his Sixth and Fourteenth Amendments rights to counsel and his Eighth

Amendment “heightened need for reliability in a capital case.”

We held in People v. Marsden (1970) 2 Cal.3d 118, 123, that “the decision

whether to permit a defendant to discharge his appointed counsel and substitute

another attorney during the trial is within the discretion of the trial court.” The

defendant in Marsden told the trial court he did not feel he was being adequately

represented and moved for “ ‘proper counsel.’ ” (Id. at p. 121.) The court denied

the motion, noting that appointed counsel had been “ ‘alert and has raised

questions during the course of this hearing.’ ” (Id. at p. 122.) The defendant

asked whether he could “ ‘bring up some specific instances,’ ” but the court

refused, saying “ ‘I don’t want you to say anything that might prejudice you

before me as to the case . . . .’ ” (Ibid.)

This court reversed the defendant’s subsequent judgment of conviction,

ruling that the trial court could not “thoughtfully exercise its discretion in this

18

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matter without listening to [the defendant]’s reasons for requesting a change of

attorneys” because “[t]he defendant may have knowledge of conduct and events

relevant to the diligence and competence of his attorney which are not apparent to

the trial judge from observations within the four corners of the courtroom.”

(People v. Marsden, supra, 2 Cal.3d 118, 123.) We held, therefore, that “a judge

who denies a motion for substitution of attorneys solely on the basis of his

courtroom observations, despite a defendant’s offer to relate specific instances of

misconduct, abuses the exercise of his discretion to determine the competency of

the attorney.” (Id. at p. 124.)

“A defendant ‘may be entitled to an order substituting appointed counsel if

he shows that, in its absence, his Sixth Amendment right to the assistance of

counsel would be denied or substantially impaired.’ [Citations.] The law

governing a Marsden motion ‘is well-settled. “When a defendant seeks to

discharge his appointed counsel and substitute another attorney, and asserts

inadequate representation, the trial court must permit the defendant to explain the

basis of his contention and to relate specific instances of the attorney’s inadequate

performance. [Citation.] A defendant is entitled to relief if the record clearly

shows that the first appointed attorney is not providing adequate representation

[citation] or that defendant and counsel have become embroiled in such an

irreconcilable conflict that ineffective representation is likely to result [citations].”

[Citations.]’ [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 857; see

People v. Panah (2005) 35 Cal.4th 395, 431.)

As noted above, the present case returned to the Los Angeles Superior

Court from the federal court of appeals for a new penalty phase trial on April 24,

2001. The public defender declared a conflict of interest and Anthony Robusto

was subsequently appointed as counsel. Following numerous continuances,

Robusto agreed to a trial date, which led defendant to request cocounsel status.

19

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The court denied defendant’s request for cocounsel status, but invited him to

renew his request in writing.

On February 27, 2002, defendant gave the court a three-page handwritten

motion to appoint him as cocounsel. Defendant stated that when he was returned

to county jail on April 26, 2001, following the reversal of his death sentence by

the Ninth Circuit, he was “allowed access to the telephone” to contact his attorney,

family members, and potential witnesses. On October 13, 2001, however, he was

transferred to another section of the jail where he was “restricted.” Defendant

wrote: “These restriction[s] interfere with my right to a fair and impartial trial

because [I cannot] help my attorney prepare a defense or aid in my own defense.

. . . I am force[d] to go co-counsel to prepare a strong defense on my behalf.” The

court read the motion, asked defendant if he had anything to add, and again denied

defendant’s motion for cocounsel status, later adding: “I know you are not happy

with [your] current[] housing situation. I am not going to remedy that by granting

[you] co-counsel [status].”

After a short discussion about jury selection, Robusto moved to continue

the trial, prompting defendant to say, “If that’s the case, I need another attorney. I

request another attorney,” representing that he had “lined up” another attorney

named Allen Gluck. The following exchange then occurred:

“The Court: Did you hire them.

“The Defendant: No. I would like for the court to hire them.

“The Court: You want me to hire them. I don’t intend to hire Mr. Gluck.

We already got a[n] attorney on the case.

“The Defendant: I prefer to have two.

“The Court: You would probably like three or four and be co-counsel

to[o]. Your request for another attorney at this point based on this attorney’s

request for continuance is denied.”

20

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Defendant argues that his “statement, ‘I request another attorney,’ . . . could

not have been clearer, and the trial court[] obviously understood [defendant] was

asking for a substitute attorney.”9 But defendant disregards the fact that when the

court stated it would not appoint Gluck because defendant already had an attorney,

defendant clarified that he was not asking to discharge Robusto as his counsel, but

was asking for another attorney in addition to Robusto, explaining “I prefer to

have two.” The court demonstrated that it understood defendant was asking for an

additional attorney by replying: “You would probably like three or four . . .”

before denying defendant’s request for another attorney. Unlike the situation in

Marsden, defendant said nothing to indicate he was dissatisfied with Robusto’s

representation, or wished to relate specific instances of misconduct. (See People

v. Mendoza (2000) 24 Cal.4th 130, 157.) The trial court did not err in denying

defendant’s request for another attorney without further inquiry.

Defendant contends he “made a second request to substitute counsel on

May 10, 2002.” The record does not support this description of defendant’s

request. On May 10, 2002, the court granted Robusto’s motion to continue the

trial. Defendant asked the court to “reconsider my request about counsel or co-

counsel.” The trial court agreed and defendant complained about “all these

delays” and said that the attorney that had represented him on appeal “is very

capable of handling the experts, PCP experts and get the job done real quick.”

The court denied defendant’s request, stating: “Your request for co-counsel has


9

The court later indicated its understanding that defendant was asking for an

additional attorney rather than substitute counsel, in the following exchange: “The
Defendant: . . . when I asked for another attorney, you denied it. [¶] The Court:
You mean an additional — [¶] The Defendant: Yes.”

21

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been ruled upon and I haven’t heard anything today to make me change my mind

on that.”

Defendant claims the court erred by failing to make “a thoughtful

determination of [defendant]’s request for substitute counsel.” But as before, the

record is clear that defendant did not ask to substitute Robusto as counsel, but

rather to appoint defendant’s former appellate counsel as cocounsel in addition to

Robusto. As before, defendant was given an ample opportunity to state the

reasons for his request and said nothing to indicate he wished to relate specific

instances of misconduct.

Two months later, defendant again asked the court to reconsider his request

for cocounsel and, for the first time, appeared to ask that Robusto be replaced. On

July 1, 2002, while a jury was being selected, Robusto stated: “My client has

asked me, and I have told him that this request will be denied, that during the voir

dire process that we would address the jury with respect to sleep walking.” The

court declined “to question the jury about sleep walking for the obvious reason

that nothing that I have read about in this case, including the supreme court’s

rather detailed recitation of facts, at all touches upon the issue” but permitted

counsel to do so.

One week later, on July 8, 2002, defendant filed a two-page handwritten

motion entitled “Motion for Reconsideration of Co-counsel or Appoint Another

Lawyer to Assist Me,” which stated, in part: “I was shock[ed] by the court and my

lawyer on July 1 – 02 when I had my lawyer to [sic] address the juror

questionnaire about asking the jury do they believe in sleep walking or do they

know someone that do. My lawyer abandon[ed] me on that issue.” Defendant

explained that sleepwalking, or “non-insane automatism, is both significant and

relevant to the present case because it shows that an individual can engage in serial

activities while in an unconscious state and such individual will be amnesic [sic]

22

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as to these actions. The only difference between the unconscious states of the

patient and petitioner[’s] unconscious state at the time of the incident is that these

individuals were in a state of unconsciousness due to the internal workings of the

human mind while petitioner was in a state of unconsciousness due to gross PCP

intoxication.” In addition to asking the court to reconsider his request for

cocounsel, defendant, for the first time appeared to ask, in the alternative, for the

court to replace Robusto, stating: “The reaction you the court and my lawyer

displayed on July 1 02 cause[d] me to take action on my own defense.” Defendant

asked the court to appoint a lawyer who was “familiar with this area of PCP who

can ask the right questions to the experts for the jurors understanding.” He

provided the names of three attorneys, adding: “Anyone of these lawyers is

capable of schooling the whole courtroom including the judge through the help of

experts.”

After taking a recess to read the document, the court denied defendant’s

request. Defendant responded, “Okay.”

Defendant contends “the trial court failed to conduct any type of on-the-

record inquiry to assess [defendant]’s complaints.” No such inquiry was required.

Defendant filed a written motion that explained in some detail that he was

unhappy with Robusto’s representation because Robusto had declined to question

the prospective jurors about sleepwalking. Defendant said nothing to indicate he

wished to relate any other instances of misconduct.

On July 10, 2002, the court denied defendant’s request to represent himself.

Defendant’s claim that the trial court erred in denying this request is discussed

separately below, but defendant further argues that the trial court committed

Marsden error because it “failed to explore [defendant]’s more fundamental

complaints with counsel, as the court failed to target specific questions to

[defendant], and made no inquiry whatsoever of appointed counsel.” An

23

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examination of the proceedings, including those that occurred the day before

defendant’s motion to proceed in propria persona, reveal no error.

On July 9, 2002, following the noon recess, the recorded proceedings

outside the presence of the jury began with defendant asking to address the court.

The court told defendant to “say it through your counsel.” Defendant replied:

“He don’t want to say it,” and Robusto explained that defendant had “indicated

something he wants me to address the court about. In my professional opinion,

I’m not going to do it.” Defendant then asked “to go pro per.” The court told

defendant to make a written motion.

The court resumed and completed selecting a jury and the prosecutor made

his opening statement.

On July 10, 2002, defendant filed a handwritten “Motion to Proceed in Pro

Per,” which stated that defendant had “lost all confidence and respect” for defense

counsel because he had refused “to speak on my behalf many times.” Defendant

stated he had brought to defense counsel’s attention that, during jury selection, the

bailiff had indicated defendant “was a threat and dangerous” by “grabbing his gun

in his holster.” Defendant declared: “For my lawyer to say he [is] not going to

speak on my behalf on that issue is the last straw. . . . I want to put on my defense,

not his. I had no part in his defense.” Robusto confirmed that defendant had

raised this issue the day before, but defense counsel “was not going to waste the

court’s time with raising an issue that is a waste of time, had no force and effect,

and has nothing to do with the trial before the court.”

In response to questions from the court, defendant explained that the bailiff

in the courtroom the previous day had made “a move for his gun” every time

defendant moved in his seat. The court replied that he had “a pretty good view of

24

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what goes on in the courtroom” and had seen “nothing of the type you’re

describing.”10 Defendant responded: “I still have a right to go pro per,” adding

he felt he had “a conflict” with his attorney, stating: “My defense, it’s not his

defense. We got two different defense.” Defendant complained that “the expert

he got me ain’t the expert that need to be presented in this court. The PCP expert.

I need a neurology. Not a PCP. . . . This neurology can explain all the movements

that I made that day on PCP.” The court noted that defendant’s request to

represent himself had not been raised “in a timely fashion,” recounting that the

case had been returned to superior court more than a year earlier and defendant did

not ask to represent himself until the final day of jury selection. The court added

that “it’s up to the attorney to select the witnesses.” The court denied the request

on the grounds that it was not timely, that permitting defendant to represent

himself would disrupt the trial, and defendant had not shown an irreparable

conflict with his attorney.

Defendant is incorrect that the court committed Marsden error by failing

“to target specific questions” to defendant or inquire further of defense counsel.

Defendant was given an ample opportunity to explain his dissatisfaction with

defense counsel and the trial court conducted a rather extensive examination of

defendant’s complaint and determined that it had no basis. No further inquiry was

required.


10

The court held a hearing the following day at which the bailiff stated he

never had reached for his weapon or touched his gun in response to anything done
by defendant during jury selection, but explained that, when he stood, he usually
placed his right hand on top of his gun. The court stated it was “convinced that
there was nothing inappropriate that went on. . . . I don’t believe the deputy
touched his weapon or did anything of that sort.” Over defendant’s personal
objection, the court declined to question the jurors.

25

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On July 11, 2002, the court inquired further about defendant’s assertion the

day before that defense counsel planned to call an expert on PCP rather than a

neurologist, clarifying that defendant had not subpoenaed the neurology expert he

wished to call and had never spoken to the witness. The court stated: “The

court’s ruling will stand. I made some assumptions yesterday I believe are correct

and I just wanted to make sure. I assumed the defendant was not ready to put

forth a witness. And you haven’t even spoken to this person.”

A few days later, defendant filed a two-page handwritten document entitled

“Motion for Removal of Counsel.” In a paragraph bearing the heading “Conflict

of Interest,” defendant claimed that his rights to question jurors and to cross-

examine witnesses had been violated. Defendant stated he wished to testify, but

had “no counsel to question[] me on the stand” because his “own appointed

attorney [had] become a helper of the District Attorney.” Defendant stated he had

asked Robusto “to get [a] neuropsychologic assessment [of] motor function, which

is a lower-level function [that] can be carried out by a person whose higher-level

cogniti[on] is inactive.” In a paragraph bearing the heading “Breach of Attorney-

Client Privilege Section 954,” defendant asked that Robusto be “remove[d]”

because he had disclosed at a sidebar conference a confidential communication

regarding defendant’s “intention for my defense.” In his conclusion, defendant

stated: “I am the invisible man in your courtroom. I want to be heard through

a[n] attorney [I] can trust. You see every day at trial the relationship me, Michael

Anthony Jackson and Attorney Anthony R. Robusto have? It[’]s nonexistent and

the jurors know this. Robusto must be remove[d] today. Am [I] entitled to a

defense? Robusto ha[s taken] that right away from me. Its his defense not mine.

Once again [I] ask this court to remove Robusto at once. So [I] can repair the

damage Robusto allow[ed] to inflict on me by the People. So the PCP expert

won’t be ambush[ed] by Robusto.”

26

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The trial court read the document and asked defendant whether he had

anything to add. Defendant replied: “Not unless you have any comments, no.”

Robusto represented that he had prepared a defense, that he intended to call about

a dozen witnesses, including two expert witnesses, and that defendant would

testify in his own behalf. Defendant asked, “May I comment on that?” The trial

court said “no” and denied defendant’s motion to remove counsel, stating: “You

don’t have any grounds.” The exchange continued and the trial court had

defendant removed from the courtroom when he refused to be quiet,11 explaining:

“I’m not going to try to get into a shouting contest with the defendant in open

court so since he will not be quiet and allow the court to make a ruling, he has

been removed for the purpose of simply making the ruling.” Defendant then

returned to the courtroom and trial resumed after the trial court warned defendant

that he would be removed whenever he attempted to “talk over the court.”

Defendant contends the trial court committed Marsden error because it

“made no inquiry into . . . [defendant]’s complaint that there was a breakdown in

the attorney-client relationship that was apparent to those in the courtroom” and

failed to “inquire into [defendant]’s complaints that he did not trust his appointed

counsel.” This claim is belied by the record before us. The trial court read

defendant’s motion to remove counsel and asked defendant if he had anything to


11

“The Defendant: Can I comment? [¶] The Court: I don’t want to argue

with you. [¶] The Defendant: It is not an argument. Something I want to put on
the record. [¶] The Court: Put your comments in writing. [¶] The Defendant:
Still, if he made a comment about why he should do something — [¶] The Court:
Quiet. [¶] The Defendant: Can I speak? [¶] The Court: The answer is no. [¶]
The Defendant: So this is just a frame-up courtroom. I can’t sit here — [¶] The
Court: Do you want to be present during the balance of the case? [¶] The
Defendant: That’s on you, your honor. [¶] The Court: That is on you. [¶] The
Defendant: I’m an invisible male right now. I can’t speak my mind.”

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add. The court permitted defense counsel to comment and then denied

defendant’s motion. The trial court was not required to inquire further. The fact

that defendant did not trust his attorney did not establish a conflict that required

that appointed counsel be removed. “ ‘[I]f a defendant’s claimed lack of trust in,

or inability to get along with, an appointed attorney were sufficient to compel

appointment of substitute counsel, defendants effectively would have a veto power

over any appointment and by a process of elimination could obtain appointment of

their preferred attorneys, which is certainly not the law.’ ” (People v. Berryman

(1993) 6 Cal.4th 1048, 1070; see People v. Memro, supra, 11 Cal.4th 786, 857.)

Neither did defendant’s disagreement with counsel’s choice of expert

witnesses and his disagreement with the defense Robusto planned to present

indicate a conflict that required that Robusto be removed as counsel. “A

defendant does not have the right to present a defense of his own choosing, but

merely the right to an adequate and competent defense. [Citation.] Tactical

disagreements between the defendant and his attorney do not by themselves

constitute an ‘irreconcilable conflict.’ ‘. . . [C]ounsel is “captain of the ship” and

can make all but a few fundamental decisions for the defendant.’ [Citation.]”

(People v. Welch (1999) 20 Cal.4th 701, 728-729; People v. Nakahara (2003) 30

Cal.4th 705, 719.)

Defendant claims the trial court erred in refusing to permit him to respond

to defense counsel’s comments. It is apparent that the trial court considered

defendant’s conduct to be disruptive, causing the court to remove defendant from

the courtroom in order to state its ruling. While a trial court must permit a

defendant a reasonable opportunity to relate specific instances of misconduct, the

court is not required to permit a defendant to disrupt courtroom proceedings.

Here, defendant was given an ample opportunity to express his concerns about

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counsel and was invited by the court to respond in writing to defense counsel’s

comments. No error occurred.

C. Defendant’s Request to Represent Himself

Defendant contends the trial court violated his rights under the Sixth and

Fourteenth Amendments to the United States Constitution by denying his request

to represent himself. As noted above, on July 9, 2001, defendant asked “to go pro

per.” The court instructed him to put his request in writing, and the next day

defendant filed a written motion to represent himself that asserted he had “lost all

confidence and respect” for his attorney and wished to represent himself so he

could “put on my defense, not his.” The court noted that defendant’s request to

represent himself had not been raised “in a timely fashion,” recounting that the

case had been returned to superior court more than a year earlier and defendant did

not ask to represent himself until the final day of jury selection. When asked why

he wished to represent himself, defendant explained that defense counsel was not

presenting the defense defendant wanted, stating: “My defense, it’s not his

defense. We got two different defense[s].” The trial court denied defendant’s

request to represent himself because it was untimely and granting the request

would disrupt the trial proceedings.

“ ‘A criminal defendant has a right to represent himself at trial under the

Sixth Amendment to the United States Constitution. [Citations.] A trial court

must grant a defendant’s request for self-representation if three conditions are met.

First, the defendant must be mentally competent, and must make his request

knowingly and intelligently, having been apprised of the dangers of self-

representation. [Citations.] Second, he must make his request unequivocally.

[Citations.] Third, he must make his request within a reasonable time before trial.

[Citations.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 931-932.)

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Once trial has commenced, the trial court has discretion to deny a request

for self-representation. “[O]nce a defendant has chosen to proceed to trial

represented by counsel, demands by such defendant that he be permitted to

discharge his attorney and assume the defense himself shall be addressed to the

sound discretion of the court.” (People v. Windham (1977) 19 Cal.3d 121, 128.)

Defendant argues that his request was timely because he made it before the jury

was sworn and, thus, “the court had no choice but to grant [defendant]’s request

for self-representation.” Defendant is incorrect. This court never has

“establish[ed] a hard and fast rule that any motion made before trial — no matter

how soon before — was timely.” (People v. Clark (1992) 3 Cal.4th 41, 99.) In

Clark, we held that the trial court did not abuse its discretion in denying a request

for self-representation made three weeks before trial commenced. (Id. at p. 101.)

Defendant cites three decisions of the Ninth Circuit Court of Appeals for

the proposition that “a request for self-representation made prior to jury

impanelment is per se timely ‘unless it is shown to be a tactic to secure delay.’

(Avila v. Roe (9th Cir. 2002) 298 F.3d 750, 753, quoting Fritz v. Spalding (9th Cir.

1982) 682 F.2d 782, 784; see also Amant v. Marquez (9th Cir. 1985) 772 F.2d

552, 555.)” In Fritz, the Ninth Circuit held that a defendant’s request to represent

himself made on the day of trial is timely unless it can be established that the

request is merely “a tactic to secure delay” (Fritz v. Spalding, supra, 682 F.2d at

p. 784), even if granting the request would delay the trial and prejudice the

prosecution: “Delay per se is not a sufficient ground for denying a defendant’s

constitutional right of self-representation. Any motion to proceed pro se that is

made on the morning of trial is likely to cause delay; a defendant may nonetheless

have bona fide reasons for not asserting his right until that time, [citation], and he

may not be deprived of that right absent an affirmative showing of purpose to

secure delay.” (Ibid.)

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As defendant acknowledges, this is not, and never has been, the law in

California. (People v. Rudd (1998) 63 Cal.App.4th 620, 628.) Under California

law, “once a defendant has chosen to proceed to trial represented by counsel,

demands by such defendant that he be permitted to discharge his attorney and

assume the defense himself shall be addressed to the sound discretion of the

court.” (People v. Windham, supra, 19 Cal.3d 121, 128.)

The trial court did not abuse its discretion in denying defendant’s request to

represent himself. The court correctly stated the request was “just too late, made

after a full day of voir dire and at the tail end of jury instruction,” further noting

that granting defendant’s request would “disrupt the orderly presentation of the

case.” The court reasonably was concerned that it “would have to in all likelihood

reopen voir dire [to] query the jury as to their thoughts and feelings about a capital

defendant going pro per” and noted that defendant had not “subpoenaed witnesses

of [his] own.” The court denied the request, because permitting defendant to

represent himself at that late date “would have made a fair trial impossible for both

sides.” No error occurred.

D. Prosecutorial Argument

Defendant contends the death judgment must be reversed because the

prosecutor asked the jurors during argument to think of how they would feel if

someone they loved dearly died “in a gutter” like the victim did, “choking on his

own blood.” Defendant later asked for a limiting jury instruction telling the jurors

“not to put yourself in the place of the victim’s family; or to consider how you

would feel under such circumstances.”12 The trial court refused the instruction.


12

The proposed instruction read: “There was some argument by counsel to

the effect that you were to think about what you might feel if you lost a loved one.
The arguments of counsel are not evidence. You are not to put yourself in the

(Footnote continued on next page.)

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Defendant argues that the prosecutor’s argument improperly asked the

jurors to consider facts ― “the juror’s emotional reactions to the murder of a loved

one” ― that were irrelevant, not in the record, and were “inflammatory and highly

prejudicial.” Defendant acknowledges that jurors may be urged to consider the

impact of the murder on the victim’s family, but asserts this must be “tethered” to

the evidence in the case. According to defendant, “[v]ictim impact evidence does

not open the door to urging the jurors to subjectively analyze a case from the

viewpoint of how they themselves would react if the defendant murdered their own

loved one.”

During the guilt phase of a capital trial, it is misconduct for a prosecutor to

appeal to the passions of the jurors by urging them to imagine the suffering of the

victim: “We have settled that an appeal to the jury to view the crime through the

eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy

for the victim is out of place during an objective determination of guilt.

[Citations.]” (People v. Stansbury (1993) 4 Cal.4th 1017, 1057; People v.

Mendoza (2007) 42 Cal.4th 686, 704.)

The situation is different, however, during the penalty phase. “ ‘Unlike the

guilt determination, where appeals to the jury’s passions are inappropriate, in

making the penalty decision, the jury must make a moral assessment of all the

relevant facts as they reflect on its decision. [Citations.] Emotion must not reign

over reason and, on objection, courts should guard against prejudicially emotional

argument. [Citation.] But emotion need not, indeed, cannot, be entirely excluded



(Footnote continued from previous page.)

place of the victim’s family; or to consider how you would feel under such
circumstances. You are to base your decision on the facts and law as instructed.”

32

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from the jury’s moral assessment.’ [Citation.]” (People v. Leonard (2007) 40

Cal.4th 1370, 1418.)

The prosecutor in People v. Haskett (1982) 30 Cal.3d 841, 863, invited the

jurors to put themselves in the victim’s shoes “and imagine suffering the acts

inflicted on her.” We held this comment “was insufficiently inflammatory to

justify reversal,” (id. at p. 864) but cautioned against excessive appeals to passion:

“at the penalty phase the jury decides a question the resolution of which turns not

only on the facts, but on the jury’s moral assessment of those facts as they reflect

on whether defendant should be put to death. It is not only appropriate, but

necessary, that the jury weigh the sympathetic elements of defendant’s

background against those that may offend the conscience. [Citations.] In this

process, one of the most significant considerations is the nature of the underlying

crime. [Citation.] Hence assessment of the offense from the victim’s viewpoint

would appear germane to the task of sentencing. [¶] Nevertheless, the jury must

face its obligation soberly and rationally, and should not be given the impression

that emotion may reign over reason. [Citation.] In each case, therefore, the trial

court must strike a careful balance between the probative and the prejudicial.

[Citations.] On the one hand, it should allow evidence and argument on emotional

though relevant subjects that could provide legitimate reasons to sway the jury to

show mercy or to impose the ultimate sanction. On the other hand, irrelevant

information or inflammatory rhetoric that diverts the jury’s attention from its

proper role or invites an irrational, purely subjective response should be curtailed.”

(Id. at pp. 863-864; see People v. Wrest (1992) 3 Cal.4th 1088, 1108 [“the jury can

be urged to put itself in the shoes of the victim.”]; People v. Garceau (1993) 6

Cal.4th 140, 206, [proper “for the prosecutor to ask the jury to imagine the crimes

from the victims’ perspective.”)

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A jury properly may consider the impact of the crime on the victim’s

family. (People v. Zamudio (2008) 43 Cal.4th 327, 364.) Such victim-impact

evidence assists the jury in assessing “evidence of the specific harm caused by the

defendant[’s]” crime by “demonstrating the loss to the victim’s family and to

society which has resulted from the defendant’s homicide.” (Payne v. Tennessee

(1991) 501 U.S. 808, 825, 822.) Accordingly, just as a prosecutor may ask the

jurors to put themselves in the shoes of the victim, a prosecutor may ask the jurors

to put themselves in the place of the victim’s family to help the jurors consider

how the murder affected the victim’s relatives. (People v. Fierro (1991) 1 Cal.4th

173, 235 [ proper to ask the jurors “ ‘to think a little bit about your own family and

your own friends’ ”].) The prosecutor in People v. Ghent (1987) 43 Cal.3d 739,

772, argued to the jury during the penalty phase of a capital trial “ ‘to think about

how you would feel if [the victim] were your baby, your daughter, your wife, your

sister.’ ” Noting that the comments “were brief and mild,” we held the prosecutor

did not commit misconduct. (Ibid.)

The prosecutor did not commit misconduct by inviting the jurors to put

themselves in the shoes of the victim’s family and imagine the impact of the

crime. And a prosecutor is “entitled to present his argument in colorful terms.”

(People v. Zambrano (2007) 41 Cal.4th 1082, 1179.) While we do not encourage

prosecutors to use such graphic and dramatic images, the prosecutor’s comments

in the present case were brief (see People v. Stankewitz (1990) 51 Cal.3d 72, 112;

People v. Ghent, supra, 43 Cal.3d at p. 772) and “did not exceed the bounds of

propriety.” (People v. Medina (1995) 11 Cal.4th 694, 778.)

E. Evidence of Other Crimes

Among the aggravating factors a jury may consider during the penalty

phase of a capital trial is evidence of prior “criminal activity by the defendant

34

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which involved the use or attempted use of force or violence or the express or

implied threat to use force or violence.” (§ 190.3, factor (b).) Defendant contends

the trial court erred in instructing the jury that it could consider “[t]he alleged

robbery of Edward [sic: Tony] Ochoa on 4/19/69” in violation of his rights under

the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and article I, sections 7, 15, 16 and 17 of the California Constitution.

As noted above, Raul Curiel testified that in 1969 he was walking with

Tony Ochoa when defendant and another man poked a knife in Curiel’s stomach

and demanded money. Curiel responded that he had no money, turning his

pockets inside out and throwing to the ground his wallet and a DMV application

for a driver’s license. Defendant took the knife and demanded Curiel’s cigarettes.

Curiel handed defendant his cigarettes and defendant poked him in the stomach

with the knife. Defendant then returned the pack of cigarettes; he and his

accomplice ran off but were apprehended a short time later.

During the discussion of jury instructions, the prosecutor asserted that both

Curiel and his friend (whom the prosecutor erroneously called Edward Ochoa)

were victims of the robbery described by Curiel. Defendant did not object. The

court agreed but noted it made only a “slight difference” because “for all practical

purposes if one was a victim they both were.” The prosecutor agreed this was

“[j]ust a technicality.” The court instructed the jury: “Evidence has been

introduced for the purpose of showing that the defendant has committed the

following criminal activity which involved the express or implied use of force or

violence or the threat of force or violence: [¶] 1. The alleged robbery of Raul

Curiel on 4/19/69 [¶] 2. The alleged robbery of Edward Ochoa on 4/19/69 . . . .

Before a juror may consider any criminal activity as an aggravating circumstance

in this case, a juror must first be satisfied beyond a reasonable doubt that the

defendant did in fact commit the criminal activity . . . .”

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Defendant argues that the trial court erred in instructing the jury it could

consider the alleged robbery of Ochoa because “there was no evidence that any

property was taken from Ochoa.” Any such error was harmless. The jurors were

instructed not to consider any criminal activity as an aggravating factor unless

they were “satisfied beyond a reasonable doubt that the defendant did in fact

commit the criminal activity.” Also, there was ample evidence that defendant

robbed Curiel during the same incident; whether defendant and his accomplice

robbed both Curiel and Ochoa, or only Curiel, could not have affected its

determination of the proper penalty, especially in light of the grievous

circumstances of the charged murder and the presence of other more egregious

prior criminal acts.

F. Lack of Instruction to View Defendant’s Admissions with Caution

As noted above, police officers testified that defendant made several

statements following his arrest that indicated his knowledge of details of the

crime, including that the victim was a police officer and the murder weapon was a

shotgun. Defendant argues the trial court erred in failing to instruct the jury sua

sponte to view defendant’s out-of-court admissions with caution.

“ ‘When evidence is admitted establishing that the defendant made oral

admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that

such evidence must be viewed with caution. [Citation.]’ ” (People v. Williams

(2008) 43 Cal.4th 584, 639.) But this general rule does not apply in the penalty

phase of a capital trial. We held in People v. Livaditis (1992) 2 Cal.4th 759, 783,

“that the court is required to give the cautionary instruction at the penalty phase

only upon defense request,” explaining that because guilt is already established at

the penalty phase, “[t]he only relevance of the defendant’s extrajudicial statements

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is as either aggravating or mitigating evidence” and “[w]hether a particular

statement is aggravating or mitigating is often open to interpretation.”

Defendant argues that our decision in Livaditis should be distinguished

because the statements in the present case, unlike those at issue in Livaditis, were

solely inculpatory. We never have so limited the rule we announced in Livaditis.

(People v. Carter (2003) 30 Cal.4th 1166, 1220 [“ ‘because capital sentencing is a

moral and normative process, it is not necessary to give instructions associated

with the usual factfinding process’ ”]; People v. Slaughter (2002) 27 Cal.4th 1187,

1201; see People v. Dunkle (2005) 36 Cal.4th 861, 898 [no sua sponte duty to

instruct competency phase jury].)

Because defendant did not request a jury instruction to view his admissions

with caution, there was no error.

G. Considering Absence of Mitigating Factors as an Aggravating

Factor

Defendant asserts that the trial court erred in refusing his request to instruct

the jury that the absence of a particular mitigating factor could not be weighed as

an aggravating circumstance. Defendant acknowledges that we repeatedly have

held that a trial court is not required “to give a jury instruction that a lack of

mitigating evidence does not constitute aggravation. [Citations.]” (People v.

Carey (2007) 41 Cal.4th 109, 133.) “ ‘A jury properly advised about the broad

scope of its sentencing discretion is unlikely to conclude that the absence of

[mitigating] factors . . . is entitled to significant aggravating weight.’ [Citation.]”

(Id. at p. 134.)

Defendant challenges the assumption that juries understand how to evaluate

the absence of particular mitigating factors by citing several journal articles that

purportedly demonstrate that juries often misunderstand mitigating and

aggravating circumstances. (Haney et al., Deciding to Take a Life: Capital Juries,

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Sentencing Instruction, and the Jurisprudence of Death (1994) 50 J. Soc. Issues

149, 169; Haney & Lynch, Comprehending Life and Death Matters: A

Preliminary Study of California’s Capital Penalty Instructions (1994) 18 Law &

Hum. Behav. 411, 422-424; Haney & Lynch, Clarifying Life and Death Matters:

An Analysis of Instructional Comprehension and Penalty Phase Closing

Arguments (1997) 21 Law & Hum. Behav. 575, 582-583, 589-591; Eisenberg &

Wells, Deadly Confusion: Juror Instructions in Capital Cases (1993) 79 Cornell

L.Rev. 1.) We rejected a similar argument in People v. Welch, supra, 20 Cal.4th

701, 773, stating: “The presumption that the jurors in this case understood and

followed the mitigation instruction supplied to them is not rebutted by empirical

assertions to the contrary based on research that is not part of the present record

and has not been subject to cross examination. [Citation.]”

H. Automatic Application to Modify the Verdict

Defendant argues the trial court “failed to properly exercise its

responsibilities under section 190.4, subdivision (e)” in denying his automatic

application to modify the verdict of death in violation of the statute and the Eighth

and Fourteenth Amendments to the United States Constitution.

Section 190.4, subdivision (e), requires that in ruling on an automatic

application to modify a death verdict, “the judge shall review the evidence,

consider, take into account, and be guided by the aggravating and mitigating

circumstances referred to in Section 190.3, and shall make a determination as to

whether the jury’s findings and verdicts that the aggravating circumstances

outweigh the mitigating circumstances are contrary to law or the evidence

presented. The judge shall state on the record the reasons for his findings.”

In the present case, defendant argued to the trial court that the appropriate

penalty was life in prison without the possibility of parole because defendant had

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performed well in prison, had been intoxicated when he committed the offense,

had a low IQ and brain defects and had “a problematic childhood.” The trial court

denied the motion, stating: “Notwithstanding the best efforts that the defense was

able to muster in this case, the reality is, in the court’s opinion, that the mitigating

factors are scant at best, the aggravation rather overwhelming.” In addition, the

court adopted the judgment prepared by the prosecutor, which stated, in part, that

after independently reviewing the evidence and assessing the credibility of the

witnesses, the court found “that the jury’s finding that the aggravating

circumstances so substantially outweigh the mitigating circumstances so as to

make death the appropriate penalty to be fully supported by the evidence and the

law.”

Defendant argues that the trial court treated the automatic motion to modify

the verdict as a “mere formality” and had “already made up its mind” because the

court had asked the prosecutor nearly a month earlier to prepare a judgment of

death and death warrant. Defendant acknowledges that this court long ago

recognized that the circumstance that a court “had prepared a written statement of

reasons in advance of the hearing” on the automatic motion to modify the verdict

“does not mean that the court’s views as expressed in the writing were other than

tentative or that the argument was a pointless ritual,” because “[t]o do so does not

mean that the court is unalterably bound by the writing or that it will not amend or

even discard the writing if counsel’s arguments persuade the court that its tentative

views were incorrect.” (People v. Hayes (1990) 52 Cal.3d 577, 645; People v.

Seaton (2001) 26 Cal.4th 598, 695-696.)

Defendant contends the present case differs from Hayes because the record

in this case “overwhelmingly suggests the trial court had in fact prejudged the

motion to modify the sentence, thereby rendering the hearing on the automatic

motion a sham” because the trial court did not announce that the previously

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prepared judgment was “tentative.” We do not agree. Our holding in Hayes

applies fully here. The mere fact that the court asked the prosecutor to draft a

judgment in advance of the hearing does not indicate that the court had already

made up its mind. To the contrary, the court described the draft judgment he

asked the prosecutor to prepare as “a working copy that the court will in all

likelihood modify.” And the court was under no obligation to announce that the

previously prepared judgment was tentative. (People v. Dennis (1998) 17 Cal.4th

468, 550.)

Defendant argues we should not consider the language in the judgment

because after denying the automatic motion, but before reading into the record the

above quoted language in the judgment, the court heard statements from the

victim’s parents. The claim lacks merit. The trial court already had denied the

automatic motion to modify the verdict and briefly stated the reasons for that

ruling before the victim’s parents made their statements. There was nothing

improper in thereafter reading into the record the language of the judgment that

included a more detailed statement of the reasons for the court’s previous ruling.

(People v. Seaton, supra, 26 Cal.4th at pp. 694-695.)

Defendant also asserts that the judgment of death must be vacated because

the trial court failed to state sufficient reasons for denying the automatic motion to

modify the verdict. Defendant forfeited this claim by failing to object in the trial

court. (People v. Mungia (2008) 44 Cal.4th 1101, 1140-1141.)

I. Sentencing Hearing

Defendant argues he was denied his right to due process and “his rights

under the Fourteenth Amendment and California law to address the court and

present evidence as to why a death judgment should not be pronounced” because

the trial court denied his request to continue the sentencing hearing.

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After the jury returned its verdict, the court and counsel agreed to meet on

August 26, 2002 to begin correcting the record on appeal and set September 23,

2002 as the date for sentencing. The prosecutor and defense counsel met with the

judge as planned on August 26 and again on September 4 to begin correcting the

record on appeal. Defendant was not present on either occasion. At the

conclusion of the hearing on September 4, the prosecutor indicated he might be

out of town on September 23, 2002 and asked if the sentencing hearing could be

rescheduled for the preceding Friday. Defense counsel stated he had no objection,

and the sentencing hearing was advanced to September 20, 2002.

On September 20, 2002, the court denied the automatic application to

modify the verdict and was about to impose sentence when the prosecutor

interrupted and asked the court to permit the victim’s parents to address the court.

The victim’s parents described the effect their son’s murder had had on them and

asked the court to impose the death penalty. Defendant then asked if he could

speak and said that had not been aware until that day that the sentencing hearing

had been advanced and he had arranged for people to appear on September 23 to

speak on his behalf. The court noted that the date for sentencing had been

changed weeks earlier, adding: “If that is a motion for continuance, it will be

denied.” The court invited defendant to make a statement, but defendant said

only, “I want my people.” The court then imposed sentence.

Defendant contends he was denied his “statutory right to present testimony

and evidence from family members at the sentencing hearing,” but cites in support

only section 1204 and our decision in People v. Chi Ko Wong (1976) 18 Cal.3d

698, 725, which address correcting or explaining materials in the probation report.

Defendant did not challenge the contents of the probation report and thus has no

basis upon which to argue that he was denied a right to present witnesses for this

purpose. Even assuming, without deciding, that defendant had a right to present

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witnesses at the sentencing hearing, the court did not prevent him from doing so.

The court only declined to continue the hearing. Defendant does not argue that

the trial court abused its discretion in declining to continue the sentencing hearing.

Nor does defendant argue that his attorney was ineffective because he failed to

inform defendant that the date of the sentencing hearing had been advanced.

Defendant does argue that he was denied his right to allocution, because he

was unprepared for the sentencing hearing. Recently, we held in People v. Evans

(2008) 44 Cal.4th 590, that a defendant in a noncapital case has a “right at

sentencing to make a sworn personal statement in mitigation that is subject to

cross-examination by the prosecution.” (Id. at p. 600.) Even if a defendant in a

capital case had a similar right (but see People v. Lucero (2002) 23 Cal.4th 692,

717 [“we have repeatedly held there is no right of allocution at the penalty phase

of a capital trial”]), defendant in the present case was invited by the court to make

a statement, but declined to do so, stating only that he wanted his witnesses to be

present. Defendant did not state he was unprepared to make a statement on his

own behalf.

J. Challenges to the Death Penalty Statutes

Defendant argues that application of section 190.3, factor (a), which

permits the penalty phase jury to consider the “circumstances of the crime,” leads

to “arbitrary and capricious decision making” in violation of the Eighth

Amendment to the United States Constitution, because “[p]rosecutors throughout

California have argued that the jury could weigh in aggravation almost every

conceivable circumstance of the crime, even those that ― from case to case ―

reflect starkly opposite circumstances.”

In Tuilaepa v. California (1994) 512 U.S. 967, 971, the high court

distinguished between two aspects of the capital punishment scheme: “the

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eligibility decision and the selection decision.” In California, a defendant

convicted of first degree murder is eligible for the death penalty if the jury finds

true an alleged “special circumstance” enumerated in section 190.2, subdivision

(a). The special circumstance must satisfy two requirements: “First, the

circumstance may not apply to every defendant convicted of a murder; it must

apply only to a subclass of defendants convicted of murder. [Citation.] Second,

the aggravating circumstance may not be unconstitutionally vague.” (Tuilaepa v.

California, supra, 512 U.S. at pp. 972-973.)

Once the finder of fact has determined that the defendant is eligible for the

death penalty by convicting the defendant of first degree murder and finding true

an alleged special circumstance, a separate penalty phase is conducted to

determine whether the finder of fact will select the defendant to receive the death

penalty. The high court “imposed a separate requirement for the selection

decision, where the sentencer determines whether a defendant eligible for the

death penalty should in fact receive that sentence. ‘What is important at the

selection stage is an individualized determination on the basis of the character of

the individual and the circumstances of the crime.’ [Citations.] That requirement

is met when the jury can consider relevant mitigating evidence of the character

and record of the defendant and the circumstances of the crime. [Citations.]”

(Tuilaepa v. California, supra, 512 U.S. at p. 972.)

There are important differences between the eligibility decision and the

selection decision: “The eligibility decision fits the crime within a defined

classification. Eligibility factors almost of necessity require an answer to a

question with a factual nexus to the crime or the defendant so as to ‘make

rationally reviewable the process for imposing a sentence of death.’ [Citation.]

The selection decision, on the other hand, requires individualized sentencing and

must be expansive enough to accommodate relevant mitigating evidence so as to

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assure an assessment of the defendant's culpability.” (Tuilaepa v. California,

supra, 512 U.S. 967, 972.)

Defendant acknowledges that the high court has approved of section 190.3,

factor (a): “Petitioners’ challenge to factor (a) is at some odds with settled

principles, for our capital jurisprudence has established that the sentencer should

consider the circumstances of the crime in deciding whether to impose the death

penalty. [Citation.] We would be hard pressed to invalidate a jury instruction that

implements what we have said the law requires. In any event, this California factor

instructs the jury to consider a relevant subject matter and does so in

understandable terms. The circumstances of the crime are a traditional subject for

consideration by the sentencer, and an instruction to consider the circumstances is

neither vague nor otherwise improper under our Eighth Amendment

jurisprudence.” (Tuilaepa v. California, supra, 512 U.S. at p. 976.)

But defendant maintains that section 190.3, factor (a) is improper because

prosecutors have used it in various cases to argue that “starkly opposite

circumstances” were aggravating, asserting, for example, that some prosecutors

have argued that a defendant deserves the death penalty because the defendant

“struck many blows and inflicted multiple wounds” while others have argued that

the death penalty was warranted because the defendant “killed with a single

execution-style wound.” We are not convinced. In making the individualized

determination required at the penalty phase of whether a defendant who is eligible

for the death penalty deserves the death penalty, the jury must consider the

circumstances of the crime, among other factors. While all murders are morally

repugnant, some are worse than others. And murders at either end of the spectrum

may be particularly egregious. Thus, one prosecutor validly may argue that a

defendant who killed the victim in an unusually savage attack involving multiple

wounds deserves the ultimate penalty, while another prosecutor may argue with

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equal validity that an execution-style murder committed in cold blood stands apart

and warrants the death penalty. The fact that those arguments highlight divergent

circumstances does not affect the validity of factor (a).

Section 190.3, factor (b), permits the penalty phase jury to consider “[t]he

presence or absence 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.” Defendant argues that the failure to require the jury to find

unanimously that defendant committed a particular prior act under factor (b)

denied him his right to a jury trial under the Sixth Amendment to the United States

Constitution. We previously have rejected this contention, and recent United

States Supreme Court decisions do not undermine this conclusion. (People v.

Valencia (2008) 43 Cal.4th 268, 311; People v. Schmeck (2005) 37 Cal.4th 240,

304.)

We reject defendant’s argument that the trial court erred in failing to delete

inapplicable sentencing factors from its instructions to the jury. (People v.

Schmeck, supra, 37 Cal.4th at p. 305.)

Contrary to defendant’s argument, the trial court did not err in failing to

identify for the jury which statutory sentencing factors were mitigating and which

were aggravating. (People v. Schmeck, supra, 37 Cal.4th at p. 305.)

Defendant is incorrect in asserting that the use of the adjectives “extreme”

and “substantial” “acted as a barrier to the consideration of mitigation in violation

of the Sixth, Eighth, and Fourteenth Amendments.” (People v. Schmeck, supra,

37 Cal.4th at p. 304.)

The trial court did not err, as defendant contends, in failing to “require the

jurors to make written or other specific findings about the aggravating factors they

found and considered in imposing a death sentence.” (See People v. Ramirez

(2006) 39 Cal.4th 398, 476; People v. Hillhouse (2002) 27 Cal.4th 469, 510.)

45

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We reject defendant’s argument that he was denied equal protection of the

law because defendants charged with capital crimes are afforded “significantly

fewer procedural protections” than defendants charged with noncapital crimes.

(People v. Harris (2005) 37 Cal.4th 310, 366.) And the failure to require intercase

proportionality review does not render unconstitutional the California death

penalty statutory scheme. (People v. Geier (2007) 41 Cal.4th 555, 618; People v.

Harris, supra, 37 Cal.4th at p. 366.)

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The death penalty scheme does not, as defendant argues, violate the Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution because

juries are not instructed on any burden of proof and do not have to find beyond a

reasonable doubt that aggravating circumstances outweigh the mitigating

circumstances and that death is the appropriate penalty. (People v. Ramirez,

supra, 39 Cal.4th at p. 475; People v. Harris, supra, 37 Cal.4th at p. 365; People

v. Schmeck, supra, 37 Cal.4th at p. 304.)

We decline defendant’s invitation to reconsider our holding that

“ ‘ “[b]ecause the determination of penalty is essentially moral and normative

[citation], and therefore different in kind from the determination of guilt,” ’ ” there

is no burden of proof or burden of persuasion. (People v. Rundle (2008) 43

Cal.4th 76, 199.) We repeatedly have reaffirmed that holding.

Contrary to defendant’s argument, the jury is not required to agree

unanimously on any particular aggravating factor. (People v. Harris, supra, 37

Cal.4th at p. 366.) Nor must the jury be instructed that there is a presumption in

favor of a sentence of life imprisonment without the possibility of parole. (People

v. Rundle, supra, 43 Cal.4th at p. 199.)

Defendant contends that the court’s concluding jury instruction, based on

CALJIC No. 8.88, violated his rights to due process, a fair trial, and a reliable

penalty determination under the Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution. We disagree. CALJIC No. 8.88 is defective, in

defendant’s view, because it 1) uses the allegedly vague term “so substantial” in

the instruction that each juror must be “persuaded that the aggravating

circumstances are so substantial in comparison with the mitigating circumstances

that it warrants death instead of life without parole”; 2) instructs the jurors to

determine whether the death penalty is “warrant[ed]” rather than “appropriate”;

3) fails to instruct the jury that it “shall” impose a sentence of life imprisonment

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without parole if the mitigating circumstances outweigh the aggravating

circumstances; and 4) fails to instruct the jury that neither party bore the burden of

persuasion. We consistently have rejected each of these arguments. (People v.

Geier, supra, 41 Cal.4th at p. 619.)

We also consistently have rejected defendant’s contention that the

California death penalty statutes violate international law. (People v. Geier,

supra, 41 Cal.4th at p. 620.)

K. Cumulative Error

Defendant contends that his “death sentence must be reversed due to the

cumulative effect of the numerous errors in this case.” We discern no errors,

considered either individually or cumulative, that warrant reversal of the

judgment.

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III. DISPOSITION

The judgment is affirmed.

MORENO, J.

WE CONCUR: GEORGE, C. J.
KENNARD,

J.

BAXTER,

J.

WERDEGAR,

J.






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CONCURRING OPINION BY CHIN, J.

I agree with the majority’s result and most of its reasoning. I write

separately to disassociate myself from the first portion of the final sentence of part

II., D., page 34, of the majority opinion: “While we do not encourage prosecutors

to use such graphic and dramatic images, the prosecutor’s comments in the present

case were brief (see People v. Stankewitz (1990) 51 Cal.3d 72, 112; People v.

Ghent [(1987) 43 Cal.3d 739], 772) and ‘did not exceed the bounds of propriety.’

(People v. Medina (1995) 11 Cal.4th 694, 778.)” I agree that the prosecutor’s

comments did not exceed the bounds of propriety. Because the evidence

supported the comments, they were entirely proper.

The cases cited for the proposition that the comments were brief and,

presumably, appropriate for that reason (People v. Stankewitz, supra, 51 Cal.3d

72, and People v. Ghent, supra, 43 Cal.3d 739) are irrelevant to this issue. They

were decided when the United States Supreme Court had prohibited victim impact

evidence and argument. (See Booth v. Maryland (1987) 482 U.S. 496.) Today, as

the majority recognizes, victim impact evidence and argument are permitted.

(Maj. opn., ante, at p. 33; see Payne v. Tennessee (1991) 501 U.S. 808.)

We have no reason either to encourage or discourage any particular

argument that is otherwise proper. We should simply reject defendant’s

contention that the prosecutor’s comments were improper and stop there.

CHIN,

J.

I CONCUR:

CORRIGAN, J.

1

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

Name of Opinion People v. Jackson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S110206
Date Filed: February 5, 2009
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Charles E. Horan

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Jay Colangelo,
Assistant State Public Defender, Mark Hammond and Craig Buckser, Deputy State Public Defenders, for
Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Donald E. de Nicola, Deputy State Solicitor
General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney
General, and Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Craig Buckser
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676

Donald E. de Nicola
Deputy State Solicitor General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2388


2

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Document Outline

Automatic appeal from a judgment of death.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 02/05/2009	45 Cal. 4th 662, 199 P.3d 1098, 88 Cal. Rptr. 3d 558	S110206	Automatic Appeal	closed; remittitur issued	PEOPLE v. JACKSON (MICHAEL ANTHONY) (S004615)

Disposition
Feb 5 2009	Opinion: Affirmed

Dockets
Sep 20 2002	Judgment of death
Sep 27 2002	Filed certified copy of Judgment of Death Rendered   9-20-2002.
Sep 27 2002	Penal Code sections 190.6 et seq. apply to this case
Oct 3 2002	Filed:   Application for appointment of counsel. (IFP form)
Dec 20 2002	Record certified for completeness
Sep 25 2003	Order appointing State Public Defender filed   Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant Michael Anthony Jackson for the direct appeal in the above automatic appeal now pending in this court.
Oct 2 2003	Received:   notice from superior court that 5,053 page record was sent to appellant's counsel on 9-30-2003.
Oct 2 2003	Appellant's opening brief letter sent, due:   May 3, 2004.
Oct 6 2003	Date trial court delivered record to appellant's counsel   (5,053 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.)
Nov 25 2003	Counsel's status report received (confidential)   from State P.D.
Jan 27 2004	Counsel's status report received (confidential)   from State P.D.
Feb 17 2004	Received copy of appellant's record correction motion   (13 pp.)
Mar 24 2004	Counsel's status report received (confidential)   from State P.D.
Apr 26 2004	Record certified for accuracy
Apr 30 2004	Counsel's status report received (confidential)   from State P.D.
Apr 30 2004	Request for extension of time filed   to file appellant's opening brief. (1st request)
May 7 2004	Extension of time granted   to 7-2-2004 to file AOB.
Jun 21 2004	Record on appeal filed   14 vols. clerk's transcript (2,873 pp.) and 29 vols. reporter's transcript (2,398 pp.), including material under seal and ASCII disks. Clerk's transcript includes 2,239 pp. of juror questionnaires.
Jun 21 2004	Letter sent to:   counsel advising that record, certified for accuracy, was filed this date.
Jul 1 2004	Counsel's status report received (confidential)   from State P.D.
Jul 1 2004	Request for extension of time filed   to file appellant's opening brief. (2nd request)
Jul 7 2004	Extension of time granted   to 8-31-2004 to file AOB. After that date, only five further extensions totaling about 300 additional days are contemplated. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Aug 30 2004	Request for extension of time filed   to file appellant's opening brief. (3rd request)
Aug 30 2004	Counsel's status report received (confidential)   from State P.D.
Sep 7 2004	Extension of time granted   to 10/29/2004 to file appellant's opening brief. After that date, only four further extensions totaling about 240 additional days are contemplated. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Oct 25 2004	Counsel's status report received (confidential)   from State P.D.
Oct 25 2004	Request for extension of time filed   to file appellant's opening brief. (4th request)
Oct 29 2004	Extension of time granted   to 12/28/2004 to file appellant's opening brief. After that date, only four further extensions totaling about 210 additional days will be granted. Extension is granted based upon Deputy State Public Defender Mark Hammond's representation that he anticipates filing that brief by 7/2005.
Dec 22 2004	Request for extension of time filed   to file appellant's opening brief. (5th request)
Dec 22 2004	Counsel's status report received (confidential)   from State P.D.
Dec 30 2004	Extension of time granted   to 2/25/2005 to file appellant's opening brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon Deputy State Public Defender Mark Hammond's representation that he anticipates filing that brief by 7/2005.
Feb 22 2005	Request for extension of time filed   to file appellant's opening brief. (6th request)
Feb 22 2005	Counsel's status report received (confidential)   from State P.D.
Feb 24 2005	Extension of time granted   to 4/27/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy State Public Defender Mark Hammond's representation that he anticipates filing that brief by 7/2005.
Apr 21 2005	Counsel's status report received (confidential)   from State P.D.
Apr 21 2005	Request for extension of time filed   to file appellant's opening brief. (7th request)
Apr 27 2005	Extension of time granted   to 6/27/2005 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 Mark Hammond?s representation that he anticipates filing that brief by 10/2005. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Jun 20 2005	Counsel's status report received (confidential)   from State P.D.
Jun 20 2005	Request for extension of time filed   to file appellant's opening brief. (8th request)
Jun 23 2005	Extension of time granted   to 8/26/2005 tof ile 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 Mark Hammond's representation that he anticipates filing that brief by 10/2005.
Aug 22 2005	Counsel's status report received (confidential)   from State P.D.
Aug 23 2005	Request for extension of time filed   to file appellant's opening brief. (9th request)
Aug 25 2005	Extension of time granted   to 10/25/2005 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Mark Hammond's representation that he anticipates filing that brief by 10/25/2005. After taht date, no further extension is contemplated.
Oct 19 2005	Counsel's status report received (confidential)   from State P.D.
Oct 19 2005	Request for extension of time filed   to file appellant's opening brief. (10th request)
Oct 24 2005	Extension of time granted   to 12/23/2005 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Mark Hammond's representation that he anticipates filing that brief by 12/23/2005. After that date, no further extension will be granted.
Dec 16 2005	Appellant's opening brief filed   (65,739 words; 226 pp.)
Dec 19 2005	Respondent's brief letter sent; due:   April 14, 2006
Apr 10 2006	Request for extension of time filed   respondent's brief. (1st request)
Apr 13 2006	Extension of time granted   to June 13, 2006 to file respondent's brief.
Jun 2 2006	Request for extension of time filed   to file respondent's brief. (2nd request)
Jun 6 2006	Extension of time granted   to August 14, 2006 to fle respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Solicitor General Donald E. de Nicola's representation that he anticipates filing that brief by September 15, 2006.
Aug 10 2006	Request for extension of time filed   to file respondent's brief. (3rd request)
Aug 21 2006	Extension of time granted   to September 13, 2006 to file respondent's brief. Extension is granted based upon Deputy Solicitor General Donald E. De Nicola's representation that he anticipates filing that brief by September 13, 2006. After that date, no further extension will be granted.
Sep 13 2006	Respondent's brief filed   (22,043 words; 78 pp.)
Sep 13 2006	Request for judicial notice filed (AA)   respondent's request.
Sep 15 2006	Note:   This is an AB 195 case - appellant's reply brief due: November 13, 2006.
Sep 22 2006	Filed:   amended aroof of service of respondent's brief.
Sep 22 2006	Received:   amended Proof of Service to Respondent's Motion for Judicial Notice
Nov 7 2006	Request for extension of time filed   to file appellant's reply brief. (1st request)
Nov 9 2006	Extension of time granted   to January 12, 2007 to file the appellant's reply brief.
Jan 5 2007	Request for extension of time filed   to file reply brief. (2nd request)
Jan 9 2007	Extension of time granted   to March 13, 2007 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Mark Hammond's representation that he anticipates filing that brief by May 2007.
Mar 9 2007	Request for extension of time filed   to file reply brief. (3rd request)
Mar 14 2007	Extension of time granted   to May 11, 2007 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Mark Hammond's representation that he anticipates filing that brief by May 2007.
May 7 2007	Appellant's reply brief filed   (16,952 words; 61 pp.)
Sep 14 2007	Filed:   letter from Chief Assistant State Public Defender Donald Ayoob, dated September 14, 2007, advising that due to the separation from service of the previously assigned Deputy State Public Defender, the case has been reassigned to Deputy SPD Craig Buckser.
Aug 19 2008	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the November calendar, to be held the week of November 3, 2008, 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.
Aug 21 2008	Received:   letter from Asst. State Public Defender Craig Buckser, dated August 20, 2008, requesting that the court schedule oral argument in December 2008. He has plans to be out of state the week of November 3, 2008.
Aug 22 2008	Received:   copy of letter with proof of service to appellant from Asst. State Public Defender, dated August 20, 2008, requesting that the court schedule oral argument in December 2008.
Aug 29 2008	Received:   letter from Deputy SPD Craig Buckser, dated August 28, 2008, regarding the scheduling of oral argument.
Sep 15 2008	Order filed   Appellant having filed no objection, the request for judicial notice filed by the Attorney General on September 13, 2006 is granted.
Oct 22 2008	Case ordered on calendar   to be argued on Wednesday, December 3, 2008, at 1:30 p.m., in Los Angeles.
Oct 29 2008	Received:   appearance sheet from Deputy State Public Defender, Craig Buckser, indicating 45 minutes for oral argument for appellant.
Nov 3 2008	Received:   appearance sheet from Deputy Attorney General, Donald E. Denicola, indicating 45 minutes for oral argument for respondent.
Nov 3 2008	Filed:   respondent's focus issues letter, dated November 3, 2008.
Nov 14 2008	Filed:   appellant's focus issues letter, dated November 13, 2008.
Nov 21 2008	Received:   letter from appellant, dated November 20, 2008, with additional authorities.
Dec 3 2008	Cause argued and submitted
Feb 4 2009	Notice of forthcoming opinion posted
Feb 5 2009	Opinion filed: Judgment affirmed in full   Majority opinion by Moreno, J. ----- joined by George, C.J., Kennard, Baxter and Werdegar, JJ. Concurring opinion by Chin, J. ----- joined by Corrigan, J.
Feb 19 2009	Rehearing petition filed   by appellant, "Petition for Rehearing and Request for Modification" (1,162 words; 7 pp.)
Feb 23 2009	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including May 6, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Mar 25 2009	Rehearing denied   The petition for rehearing and request for modification, filed with this court on February 19, 2009, is denied.
Mar 25 2009	Remittitur issued (AA)
Apr 1 2009	Received:   acknowledgment for receipt of remittitur.
Jun 17 2009	Related habeas corpus petition filed (post-judgment) Appellant: Jackson, Michael Anthony   by Michael Millman, California Appellate Project, San Francisco.
Jun 22 2009	Certiorari denied by U.S. Supreme Court   (U.S.S.C. case No. 08-9727)

Briefs
Dec 16 2005	Appellant's opening brief filed
Sep 13 2006	Respondent's brief filed
May 7 2007	Appellant's reply brief filed

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