Filed 8/12/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S081148
v.
MARTIN CARL JENNINGS,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. FVI-04195
A San Bernardino County jury found defendant Martin Carl Jennings guilty
of the first degree murder of his five-year-old son, Arthur Jennings. (Pen. Code,
§ 187.)1 The jury further found true the special circumstance that the murder was
intentional and involved the infliction of torture (§ 190.2, subd (a)(18)), but found
not true the special circumstance that defendant intentionally killed Arthur by the
administration of poison (§ 190.2, subd. (a)(19)). Following the penalty phase of
the trial, the jury returned a verdict of death. After denying defendant‟s motion for
a new trial and his application for modification of the judgment (§ 190.4, subd.
(e)), the trial court sentenced defendant to death. This appeal is automatic.
(§ 1239, subd. (b).) We affirm the judgment in its entirety.
1
All further statutory references are to the Penal Code, unless otherwise
noted.
1
I.
FACTS
A. Guilt Phase Evidence
1. The prosecution’s case
a) The torture and murder of Arthur Jennings
Defendant was tried together with his wife, Michelle Jennings.2 Defendant
and Michelle had been together since Michelle ran away from home in 1989, when
she was 14 years of age and defendant was 29. Arthur Jennings was born
prematurely to defendant and Michelle on November 16, 1990. Shortly after
Arthur‟s birth, defendant and Michelle placed Arthur in the care of defendant‟s
mother, who soon thereafter became terminally ill. Subsequently, defendant‟s half
sister, Wilma S., who resided in Montana, began caring for Arthur when he was
four months old. Although Arthur had several medical problems when he was
born, most seemed resolved by the time he was five years of age.
In early November 1995, defendant telephoned Wilma to tell her that he
wanted Arthur back. He informed Wilma that the couple had a newborn daughter,
Pearl, that he had obtained employment, that the family had moved into a trailer
2
The jury found codefendant Michelle Jennings guilty of first degree
murder, found not true the murder-by-poisoning special circumstance, but was
unable to reach a verdict on the torture-murder special circumstance. The trial
court declared a mistrial with regard to the latter special circumstance alleged as to
Michelle, and later retried that matter without a jury based upon the transcript of
the proceedings at the first trial. On retrial, the court found the torture-murder
special circumstance not true, concluding that Michelle did not possess the
requisite intent to kill. (See People v. Jennings (2003) 112 Cal.App.4th 459, 470-
471 (Jennings).) Michelle Jennings ultimately was sentenced to state prison for a
term of 25 years to life. Her conviction and sentence were affirmed on appeal.
(Id. at p. 462.)
2
near Apple Valley adjacent to the Mojave Desert, and that he and Michelle were
prepared to raise the children together.
Defendant paid for Wilma and Arthur to travel by bus from Montana to
California. During Wilma‟s 10-day visit, she warned defendant that Arthur wet
the bed, was afraid of the dark, and could be difficult when he did not get his way.
Wilma additionally told defendant and Michelle that she would take Arthur back if
he proved to be too much of a problem, but she never heard from them again.
When Wilma left to return to Montana, Arthur weighed approximately 64
pounds. He was happy and in good health. Within a few weeks, however,
defendant and Michelle began to abuse Arthur. During late 1995 and early 1996, a
number of neighbors noticed signs of abuse.
Approximately two weeks before Christmas in 1995, Phillip and Kevin
Orand visited the Jenningses‟ home. Phillip saw Arthur with two black eyes and a
mark on his mouth. Arthur was making an odd sound, rocking back and forth but
staring straight ahead. When Phillip inquired what was wrong with Arthur,
defendant said Michelle had “knocked him out.” Michelle confirmed to Kevin
that she had “socked the damn little brat between the eyes, knocked him out.”
On Christmas day in December 1995, Louis Blackwood went to the
Jenningses‟ residence for dinner. Blackwood saw Arthur eat two full plates of
food and ask for a third, only to be reprimanded. Blackwood also noticed that
Arthur‟s hand was bandaged. When he asked what had happened to Arthur‟s
hand, Blackwood was told that Arthur had burned himself by touching the wood
stove. On a separate occasion about two weeks later, Blackwood saw Arthur with
a bruise on the side of his face from the hairline down to the jaw line, which
Blackwood described as “not a normal injury.” Michelle told Blackwood that
Arthur had fallen. Blackwood described Arthur as looking “whipped” and
unhappy. In February 1996, a few days before the police started searching for
3
Arthur, defendant told Blackwood that Arthur had gone missing in the middle of
the night and that he and Michelle had spent three hours looking for Arthur before
they finally found him hiding behind a bush in the desert.
Bernard Romaine saw Arthur in early January 1996 and recounted that he
looked “pretty beat up.” At the time, Arthur had two black eyes — one in
particular that was “real bad” and appeared to require medical attention because it
was swollen shut and seeping blood — and a bandaged hand that appeared to have
been burned. Arthur also appeared very thin and undernourished.
Pauline Morris, an acquaintance of the Jenningses‟, saw Arthur in early
January 1996. Arthur had bandages on his head and hands, dried blood on his
face, and blood in the whites of his eyes. Defendant‟s father, Art, Sr., told Morris
that Arthur was injured when he fell against a wood stove. According to Morris,
Arthur was very thin and, when offered milk, “swigged it down.” Morris made a
report to child protective services (CPS), but CPS apparently did not follow up on
the complaint.
On January 5, 1996, Michelle telephoned CPS to report that her neighbors
were abusing their 18-month-old son. During a subsequent telephone
conversation on January 8, Michelle asked the CPS worker, Betty Hocking, if
Hocking could find an adoptive home for Arthur. Michelle told Hocking that
Arthur had been with them for two months and that she could not manage him.
Hocking asked whether Michelle could return Arthur to the relative with whom he
previously resided. Michelle responded that was not an option. Hocking then
suggested parenting classes and therapy. As a last resort, she gave Michelle an
adoption worker‟s telephone number. On January 15, the Jenningses went to
Hocking‟s office to speak with her in person about the neighbors‟ situation. With
them was Arthur‟s baby sister, Pearl, who appeared to be well taken care of and
happy. At the end of the conversation, Michelle said, “I wish there was something
4
we could do with our son,” and again inquired whether Hocking might have an
adoptive home for Arthur. The Jenningses explained that they could not control
Arthur and that they had many concerns about his behavior. Hocking again
suggested parenting classes and therapy and gave them the adoption worker‟s
phone number. Before leaving, Michelle inquired whether anyone had reported
the Jenningses to CPS. When asked why anyone would report them, Michelle
claimed she was worried about possible allegations by jealous neighbors.
On February 4, 1996, while Michelle was away, Cora Grein, a neighbor,
visited the Jenningses‟ home. Defendant and Arthur were watching a television
program, and Grein joined them. Defendant instructed Arthur to go to his
bedroom. Defendant then attempted to kiss Grein, but she resisted. During this
attempt, Arthur reentered the room and subsequently was instructed by defendant
to return to his bedroom. Grein testified that as Arthur began walking away,
defendant grabbed him and struck him on the back of his head with a fireplace
shovel. Defendant then picked up Arthur and threw him on the bed. He told
Grein that if she said anything she would “see the bottom of a mine shaft.” Grein
told defendant she would remain quiet, and left.3
Arthur died within an hour of being struck on the head with the shovel.
The Jenningses initially buried Arthur‟s body in a shallow grave inside an old
chicken coop. A few hours later, however, they unearthed Arthur‟s body and
threw it down a nearby desert mine shaft. The Jenningses then attempted to scrub
the blood off Arthur‟s bedroom walls. Defendant also burned Arthur‟s sheets and
3
When asked whether she had ever previously witnessed either of the
Jenningses strike Arthur, Grein recounted an incident in which defendant had
Arthur stand in the front yard of their house holding a wooden beam over his head
and then struck Arthur when he dropped it.
5
the gloves used to bury him, and placed Arthur‟s diaper, clothes, and glasses in the
trash.
b) The Sheriff’s investigation
On February 6, 1996, two days after Arthur‟s death, the Jenningses reported
Arthur missing to the San Bernardino County Sheriff‟s station. Defendant stated
that he last saw Arthur in his bed at about 2:00 a.m., and noticed he was missing at
6:00 a.m. Michelle said she last saw Arthur about 10:30 p.m. Both defendant and
Michelle claimed they tried to find Arthur but were unable to locate him. A search
subsequently was initiated by law enforcement officers.
When the search party was unable to find Arthur or any indication of recent
activity by Arthur, the authorities began to treat the case as a homicide and
summoned the Jenningses for questioning. In separate interviews, defendant and
Michelle admitted that Arthur had been dead since February 4. They also
independently led officers to the mine shaft in the desert where Arthur‟s unclothed
body was found wrapped in a blanket.
On February 8, 1996, detectives conducted a joint interview of defendant
and Michelle, in which the Jenningses detailed their abuse of Arthur.4 Defendant
acknowledged that at various times he pushed, elbowed, kicked, shook, and hit
Arthur. After initially blaming Michelle and then Grein, defendant eventually
admitted striking Arthur on the back of his head with the fireplace shovel on the
day he died. Defendant did state, however, that he did not want Arthur to die.
Nevertheless, when later asked whether he ever had attempted to suffocate Arthur,
defendant responded, “I don‟t know, maybe.”
4
At trial, two videotapes and an audiotape of the joint interview were played
to the jury. Each juror also was given a copy of a transcript of the interview.
6
During the interview, the detectives posed questions regarding incidents
that had occurred prior to Arthur‟s death. Defendant acknowledged he and
Michelle had discussed “killing” and “getting rid of” Arthur. Michelle said
defendant wanted to shoot Arthur in the head, but she suggested returning him to
Wilma or giving him to Art, Sr. Defendant admitted that two days prior to
Arthur‟s death, he and Michelle drove around the desert looking for a place to
“dump the body.”
Detectives also confronted defendant with a statement, made by defendant
to Michelle, declaring that they did not need to list Arthur on their insurance
policy because Arthur “wouldn‟t be in the house long enough to need it.”
Defendant claimed he “had a change of heart about killing [Arthur]” and that his
statement had referred to the idea of returning Arthur to Wilma.
The Jenningses also admitted giving Arthur the drug Unisom, an over-the-
counter sleep aid, as well as Vicodin and Valium, both prescription pain-killers
that had been prescribed to defendant for a work-related injury. Michelle admitted
that on the day Arthur died, she gave him one Vicodin and two sleeping pills at
defendant‟s behest, but claimed any other pills were given to Arthur by defendant.
A detective asked defendant, “Did you tell her to give [Arthur] medication, that it
would help him?” Defendant responded, “Yeah. I honestly thought it would. We
was trying to get him better and he died.” Although acknowledging that Vicodin
and Valium made defendant feel “sleepy” and “numb” and claiming that he cut the
pills in halves or in quarters before giving them to Arthur, when defendant was
asked what he thought the pills would do to “a five-year old that weigh[ed] 35, 40
pounds,” defendant maintained he “didn‟t think about it.”
At one point during the interview, defendant acknowledged he was going
“to have to pay” for what had happened to Arthur. Defendant admitted he knew
he “had to finish [Arthur] off” once Arthur saw him kissing Cora Grein. When the
7
detectives questioned who killed Arthur, defendant stated “I probably did” by
“abusing him and the medication and stuff.” Nevertheless, defendant claimed he
“did not mean to actually kill Arthur” and tried to save Arthur‟s life by
administering cardiopulmonary resuscitation (CPR) to him.
Following defendant‟s and Michelle‟s arrests, officers searched their home
and found, among other items, a loaded .32-caliber pistol; a fireplace shovel; a box
of Unisom; and bottles of the prescription medications Carisoprodol, Darvocet,
Vicodin, and Valium, as well as prescription-strength Ibuprofen. In the course of
his testimony, a detective involved in the search showed the jury photographs of
the many perishable and nonperishable food items observed in defendant‟s home,
and of the bloodstains found in Arthur‟s bedroom. A criminologist testified that
the blood spatter patterns found in 12 areas of the bedroom came from several
separate events — most the result of medium-energy impact and a few from low-
energy incidents and smearing.
c) The autopsy
Dr. Frank Sheridan, a forensic pathologist, performed the autopsy on
Arthur‟s body. Dr. Sheridan testified that at the time of his death, Arthur was 3
feet 10 inches tall, and weighed only 35 pounds. His body as a whole was
“severely emaciated and malnourished”; he had almost no body fat or fatty tissue,
his muscles were wasted, and he had no food in his stomach when he died.5 Dr.
Sheridan‟s examination of Arthur revealed no medical reason why Arthur would
5
Dr. Sheridan explained that a healthy person normally stores a layer of
subcutaneous fat beneath the skin and that Arthur “had essentially none, or
extremely little.” He defined “wasting” as the process of a starving person‟s body
breaking down muscle for energy after the body fat has been depleted. He further
explained that it normally takes a person‟s stomach “a period of hours” after
eating to be emptied of food.
8
not have been eating or gaining weight. The severity of Arthur‟s condition
indicated it was not something that had occurred over a short period of time.
Dr. Sheridan also testified concerning Arthur‟s numerous physical injuries,
which he described as “generally painful to varying degrees” and as having
required force to inflict. Visible injuries to Arthur‟s body included a bruise and an
abrasion on the tip of Arthur‟s nose, bruising and a laceration in the area between
the nose and the upper lip, bruises on the inside of his lips and gums, a lacerated
oral frenulum (between the gum and the upper lip), and a slight bruise on the tip of
his tongue. These injuries occurred shortly before death and were most consistent
with smothering.
Arthur also had two injuries to the back of his head — one injury on the
right side that was a few weeks old and had been sutured,6 and a second “fresh”
injury on the left side that had occurred no more than six hours prior to his death,
and possibly as recently as immediately preceding the time of death, but that was
not itself life threatening. The remainder of Arthur‟s external injuries included a
severe burn on his right hand, covering half of the palm and most of the fingers,
that probably was several weeks old; abrasions on his left hand and arm, right
elbow, and left buttock; “rug burn” abrasions and bruising on his left back; bruises
on his chest, shoulders, right elbow and arm, left arm, and left buttock; a major
hemorrhage to the right shoulder blade area; and a scar on the back of his lower
right thigh.
An internal examination revealed extensive hemorrhaging to the deeper
layers of Arthur‟s scalp that extended across the entire front of his forehead,
6
Defendant admitted in the joint interview with the detectives that he
personally had sutured a cut on Arthur‟s head.
9
indicating some kind of blow or impact to the area. This injury occurred shortly
before Arthur‟s death but separately from his other recent head injury. Arthur also
had a subdural hemorrhage on the left side of his head that was at least 10 days
old, and hemorrhaging around the optic nerves of the back of the eyes from the
same injuring event. Dr. Sheridan referred to this as an “acceleration/deceleration
injury” consistent with a child who had been shaken violently, possibly causing
permanent brain damage.7
A microscopic examination of Arthur‟s lung tissue indicated he had acute
pneumonia at the time of his death. Dr. Sheridan attributed this infection to the
breakdown of Arthur‟s immune system and his overall failure to thrive.
Toxicology tests revealed that Arthur had three drugs in his blood system,
all central nervous system depressants. The first drug was a significant amount of
Unisom consistent with the administration of two sleeping pills. The dose was
sufficient to cause seizures and cessation of breathing. The second drug was a
small amount of Vicodin, a prescription painkiller, which would have added to the
sedative or depressive effect of the Unisom. The third drug was a small amount of
Valium, which would have played a minor contributing role in Arthur‟s condition.
When asked whether he had determined “a cause of death or causes of
death,” Dr. Sheridan replied, “Causes.” On the death certificate, he listed the
“main cause of death” as “combined drug toxicity,” because although the level of
Unisom alone was potentially fatal and the levels of Vicodin and Valium alone
were not toxic, the three drugs together had a certain “additive effect” on sedation.
7
Dr. Sheridan explained that in the case of an infant, it requires “quite a bit
of violence” to produce the amount of injury Arthur had suffered and that with
regard to a child who is five years of age, “it would take a little bit more” because
they would have good control of their neck and the neck muscles would resist the
backward and forward motion of the head.
10
Under the heading “Contributing Causes” — which Dr. Sheridan explained is
“where you can list something else that contributed to death but is separate from
the main one” — he listed “acute and chronic physical abuse and neglect.” The
term “acute” referred to Arthur‟s injuries inflicted shortly before death, and the
term “chronic” referred to Arthur‟s older injuries as well as to the “very, very
severe” emaciation and malnutrition. Also listed as a contributing cause was the
acute pneumonia, which was a complication of Arthur‟s emaciated state.
Questioned further, Dr. Sheridan gave the cause of death as “the entire
problem” — the drugs, the physical injuries, and the malnutrition and
emaciation — “all working together,” that brought about the resulting death. He
described Arthur as in a “downhill slide” and “very near to the end of his life”
because of malnutrition and “the whole body not functioning properly.” Dr.
Sheridan testified that even without the ingestion of drugs, Arthur likely would
have died within a fairly short period of time if he were not given medical
attention and food. Without the positive toxicology results, Dr. Sheridan would
have concluded that acute abuse was the primary cause of death, most likely by
smothering.
d) Stipulation regarding expert toxicologist
The parties entered into a stipulation concerning the testimony of
Dr. Randall C. Baselt, a toxicologist, which was read into the record. According
to the stipulation, if called as a witness Baselt would have testified that the drug
concentrations found in the autopsy blood specimen of five-year-old, 35-pound
Arthur Jennings, “when taken at face value, were sufficient to account for [his]
death.” The Unisom “played the most important role in this drug combination,
and, in fact, could have caused death in the absence of the other two agents.” He
noted, however, that without analyzing other autopsy specimens, such as liver,
11
brain, urine or stomach contents, “it would be difficult for a forensic toxicologist
to offer any definitive opinions as to the timing of the drug administration, the size
of the dose or doses and the exact role that the [Unisom] played in the death.”
2. The defense’s case
Neither defendant nor Michelle testified at trial. Defendant called
Dr. Joseph Lantz, a licensed clinical psychologist, who testified concerning the
results of tests he administered to determine defendant‟s cognitive ability,
intelligence, and personality profile. Lantz opined that defendant possessed
limited intelligence, was severely impaired in his problem-solving ability, had a
personality disorder consisting of narcissism and antisocial behavior, and had been
abused by his parents. Lantz further explained that a person who is severely
abused as a child is much more at risk as an adult to perpetuate a pattern of abuse.
He concluded that defendant was angry, hostile, explosive, impulsive, and difficult
to deal with.
Additionally, Lantz noted that defendant‟s personality problems increased
when he lost his job due to a back and shoulder injury. Defendant was in pain, not
working, and short of money. When defendant was employed, he was a regular
methamphetamine user, but later quit. As Lantz explained, those who quit use of
that drug “generally go through a period of agitation.” Defendant stopped using
methamphetamine when he developed nausea due to the interaction between the
methamphetamine and his prescription medications.
Lantz further testified that the Jenningses had no concept of how to deal
with Arthur‟s needs. He also opined that Arthur‟s behavior had deteriorated to
that of a child of lesser age after he was returned to his parents‟ care, and that the
Jenningses responded by reverting to the disciplinary techniques that had been
used upon them. Lantz concluded, however, “that things had gone so far out of
12
line that even [defendant] and Michelle could understand that . . . they needed to
do something to help the child.” Lantz believed the Jenningses gave Arthur pills
to “provide some mercy to the child.” In Lantz‟s opinion, in light of the
circumstance that “[the Jenningses] were not holding back” when they abused
Arthur, defendant demonstrated some restraint by administering only two pills to
Arthur. He acknowledged, however, that defendant lacked empathy and that
neither defendant nor Michelle seemed to care about Arthur‟s death.
Michelle called Dr. Nancy Kaser-Boyd, a licensed clinical psychologist,
who testified concerning her testing and evaluation of Michelle. The psychologist
related Michelle‟s history of rape and abuse by her father (resulting in pregnancy
and an abortion), betrayal by an older sister and her mother, molestation by a
teacher, and abuse by defendant. Kaser-Boyd stated that Michelle was fearful,
depressed, and lacked insight, was socially isolated and felt helpless, had difficulty
controlling her impulses, had a dependent and schizophrenic personality, and
possessed an IQ in the bottom fifth percentile. Kaser-Boyd explained that the
characteristics displayed by Michelle are typical of abused and battered women.
Kaser-Boyd further testified that Michelle did not understand Arthur‟s
seizures — which defendant told her were temper tantrums but Kaser-Boyd, based
on her own experience and training, viewed as epileptic — and that Michelle‟s
response to the seizures was to slap Arthur. Kaser-Boyd explained that Michelle
wanted to obtain medical care for Arthur, but did not do so because he had bruises
and she was afraid of losing custody of her baby, Pearl. Michelle also told Kaser-
Boyd that defendant suggested withholding food from Arthur because hitting him
“was not working,” and that Michelle went along with defendant‟s plan, but
sometimes would sneak food to Arthur.
An adoption social worker, Margret Thomas, testified regarding a
telephone call she received on January 18, 1996, from Michelle discussing
13
adoption options for Arthur. During the call, Michelle said Arthur was recently
returned to her home, but she was unable to handle him and therefore was
considering placing him for adoption. By the end of the conversation, Michelle
agreed to consider returning Arthur to Wilma, the paternal aunt with whom he had
resided in Montana before being returned to the Jenningses. Michelle never
followed up with Thomas.
3. The prosecution’s rebuttal
Sheriff‟s investigator Kathleen Cardwell interviewed Michelle on
February 6, 1996, and asked her about her relationship with defendant. Michelle
responded that she had an excellent relationship with him, stating they got along
fine and defendant treated her well. When Cardwell inquired whether defendant
ever physically abused her, Michelle said he hit her when they first married. She
had threatened to leave him, and since 1990 he never struck or mistreated her
again. Cardwell did not notice any visible injuries on Michelle.
B. Penalty Phase Evidence
1. The defense’s case8
Dr. Geraldine Stahly, a social psychologist, testified concerning the history
of defendant‟s family. Most of defendant‟s relatives suffered from mental illness
and low intelligence, many had criminal histories, and two half brothers were in
prison for murder, one on death row. Defendant‟s mother, Pearl Jennings, was
reported to have suffered from heroin addiction and at some point to have been
placed in a mental hospital for schizophrenia. She had 11 children with her first
husband, Raymond Foster. The Foster children were sexually abused by their
8
During the penalty phase of the trial, defendant presented his evidence and
arguments prior to the prosecution‟s.
14
father and physically abused by both parents. Later, however, the Foster sons
came to idealize their father because they “remembered him as not being so bad.”
The Foster children also were sexually molested and physically abused by
their mother‟s second husband, Art, Sr., who was defendant‟s biological father.
Art, Sr., allegedly killed Helen, one of the Foster children, by smothering her with
a pillow when she was five years of age. In 1957, after approximately two years
together, the Foster children, as well as Pearl‟s and Art‟s newborn baby, were
taken from them by the state. The baby was adopted, and the other children were
placed in foster homes and orphanages.
Defendant was born in 1960. He was much younger than the Foster
children and was raised as if he were an only child. At that time, the economic
circumstances of the Jennings family had improved considerably. Art, Sr., once
forced defendant to steal but subsequently did not press him to engage in such
activity again, because defendant proved to be an inept thief. The Foster children
perceived that defendant was “spoiled” and “had it good.” But defendant reported
to Stahly that his mother forced him to orally copulate her when defendant was
nine years of age and demanded during the ensuing year that he perform this act a
couple of times a week. He also told Stahly that before attaining the age of 13
years, he was forced to orally copulate Art‟s girlfriend. Both parents also
physically abused defendant, although apparently not to the extent they abused the
Foster children.
In Stahly‟s opinion, defendant and his siblings suffered not only from
sexual and physical abuse, but also from emotional and “moral” abuse. Stahly
discussed various factors that placed Arthur at risk for being abused when he was
returned to defendant‟s care. She stated that violence was defendant‟s way of
coping with stress and that he “never saw any other coping style.” According to
Stahly, individuals are “children of our parents” and parents will shape the lives of
15
their children absent outside intervention, which did not occur in defendant‟s case.
Stahly also acknowledged, however, that if victims are able to recognize that their
experiences and patterns of behavior are abnormal, they can end the cycle of abuse
as they mature.
Joseph Lantz, the psychologist who testified on defendant‟s behalf at the
guilt phase of the trial, testified again at the penalty phase. In Lantz‟s opinion,
defendant was seriously affected by the environment in which he was raised.
Lantz agreed with Stahly‟s testimony, adding that there would have to be “very
active intervention both with the child and with the family” for someone who had
been seriously damaged by abuse as a child “to turn their life around.” Lantz
stated that social isolation, coupled with severe and ongoing physical, emotional,
and sexual abuse and neglect, left defendant “to drift” without normal
development.
Lantz referred to an incident in which defendant‟s arm was broken when
his father attacked him with a baseball bat, and another event when defendant was
shot during a hunting accident and his father tied him down at home while
removing the bullet fragments. Lantz also testified that defendant was incapable
of deciding to take Arthur‟s life and did not intend to kill Arthur.
James Park, a retired employee of the California Department of
Corrections, testified regarding the situation defendant would encounter if
sentenced to life imprisonment without the possibility of parole. In Park‟s
opinion, defendant was unlikely to be a danger to anyone inside the prison.
2. The prosecution’s case
The prosecution presented one rebuttal witness, defendant‟s half sister,
F.E., who testified that she was sexually and physically abused by her father,
16
Raymond Foster. Her mother Pearl, whom F.E. described as cold and distant, was
not abusive, although Pearl knew about the abuse and did nothing to stop it.
F.E. ran away and in 1954 was placed in a home for girls. Nevertheless,
F.E. saw Pearl and Art, Sr., on various occasions. In 1960, F.E. visited her
mother, who was pregnant with defendant, but left after Art, Sr., beat and raped
her. She again visited her mother and Art for approximately six weeks in 1971,
when defendant was 10 or 11 years of age. On that occasion, she observed that
Pearl adored defendant and Art was very good to him. Beginning in 1973, F.E.
saw the family regularly and observed normal parent-child relationships between
defendant and his parents.
Wilma S., defendant‟s half sister who raised Arthur until he was five years
of age, testified again at the penalty phase as a victim-impact witness. Wilma
explained that she was given custody of Arthur when he was four and a half
months old and that she loved him very much. She had not wanted to return
Arthur to defendant and Michelle, but when she sought legal advice, she was told
she could not keep him. Wilma further testified that although Art, Sr., sexually
molested her and physically abused her and all of her siblings, her mother did not
beat her.
II.
DISCUSSION
A. Guilt Phase Issues
1. Sufficiency of the evidence
Defendant contends that the evidence presented at the guilt phase was
insufficient to establish first degree murder or the torture-murder special
circumstance. He further asserts that basing a conviction or special circumstance
finding on the insufficient evidence presented at his trial violated the “narrowing”
principle of the Fifth, Eighth, and Fourteenth Amendments of the United States
17
Constitution and his right to due process of law under the Fifth and Fourteenth
Amendments.
The law governing sufficiency-of-the-evidence challenges is well
established and applies both to convictions and special circumstance findings.
(People v. Valdez (2006) 32 Cal.4th 73, 104; People v. Elliot (2005) 37 Cal.4th
453, 466 (Elliot).) In reviewing a claim for sufficiency of the evidence, we must
determine whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime or special circumstance beyond a reasonable doubt. We review the
entire record in the light most favorable to the judgment below to determine
whether it discloses sufficient evidence — that is, evidence that is reasonable,
credible, and of solid value — supporting the decision, and not whether the
evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2
Cal.4th 408, 432.) We neither reweigh the evidence nor reevaluate the credibility
of witnesses. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We presume in
support of the judgment the existence of every fact the jury reasonably could
deduce from the evidence. (Ibid.) If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. (Ibid.)
In the present case, the trial court instructed the jury concerning three
alternative theories of first degree murder advanced by the prosecution — murder
by poison, murder by torture, and premeditated murder — and the verdict does not
specify which theory the jury relied upon in finding defendant guilty. “A jury may
convict a defendant of first degree murder, however, without making a unanimous
choice of one or more of several theories proposed by the prosecution.” (People v.
Beardslee (1991) 53 Cal.3d 68, 92.) As we explain below, the record discloses
18
sufficient evidence to support the jury‟s finding that defendant was guilty of first
degree murder on each of these three theories. There also is sufficient evidence to
support the torture-murder special-circumstance finding. Because defendant‟s
corresponding constitutional claims rely upon the alleged insufficiency of the
evidence and related arguments that we reject, they necessarily must fail as well.
a) Sufficiency of the evidence to establish first degree murder
by poison
Defendant contends he could not have been convicted of first degree
murder by poison, because the jury found the poison-murder special circumstance
“not true,” and because Michelle, not defendant, administered “the fatal poison”
and there is “no evidence” she intended to kill Arthur. We disagree. Reviewing
the record in the light most favorable to the judgment, there is ample evidence to
support defendant‟s first degree murder conviction on the basis of murder by
poison.
As we previously have noted, “it is not the case that the elements of the
murder-by-poison special circumstance merely repeat the elements that render a
homicide a first degree murder when committed by means of poison.” (People v.
Catlin (2001) 26 Cal.4th 81, 158 (Catlin); see § 189 [“All murder which is
perpetrated by means of . . . poison . . . is murder of the first degree.”], § 190.2,
subd. (a)(19) [defining the poison-murder special circumstance as a first degree
murder in which “[t]he defendant intentionally killed the victim by the
administration of poison”].) “The special circumstance allegation, unlike the
definition of first degree murder by poison, requires proof that the defendant
intentionally killed the victim. For the purpose of a first degree murder conviction
based upon an unlawful killing by means of poison, proof of implied malice would
suffice . . . .” (Catlin, supra, 26 Cal.4th at p. 158.) Therefore, even if we were to
assume the jury rejected the murder-by-poison special circumstance because it was
19
not persuaded beyond a reasonable doubt that either defendant or Michelle
intended to kill Arthur by means of the drugs, the jury still could have reasonably
found defendant guilty of first degree murder by poison if it found that either
codefendant acted with implied malice. (People v. Diaz (1992) 3 Cal.4th 495, 568
[“A defendant acting with implied malice who kills his or her victim with poison
is guilty of first degree murder even if the defendant lacks the intent to kill.”].)
The trial court instructed the jury pursuant to CALJIC No. 8.11 concerning
implied malice, as follows: “Malice is implied when: [¶] 1. The killing resulted
from an intentional act; [¶] 2. The natural consequences of the act are dangerous
to human life; and [¶] 3. The act was deliberately performed with knowledge of
the danger to, and with conscious disregard for, human life.”
Defendant does not dispute that the natural consequences of administering
three powerful sedatives to a five-year-old child are dangerous to human life, or
that furnishing the drugs to Arthur was a cause of his death. The only issue in
terms of implied malice, therefore, is whether there was sufficient evidence for a
reasonably jury to have found that defendant “ „had full knowledge that his
conduct endangered the life of decedent, but that he nevertheless deliberately
administered the poison with conscious disregard for that life.‟ [Citation.]”
(People v. Blair (2005) 36 Cal.4th 686, 745.)
The evidence presented at trial reasonably established the following
sequence of events. On the morning of February 4, 1996, defendant directed
Michelle to go to the store to purchase over-the-counter sleeping pills to give to
Arthur.9 When she returned, Michelle gave Arthur two Unisom sleeping pills, as
9
The transcript of the joint interview of defendant and Michelle quotes
Michelle as stating: “Martin had to go to the store and get some Sominex to put
[Arthur] to sleep.” The People contend, and defendant does not dispute, that
(Footnote continued on next page)
20
well as one Valium, at defendant‟s direction. Defendant gave Arthur additional
pain pills, which included Vicodin. Arthur died later that day as a result of
combined drug toxicity and acute and chronic abuse and neglect.
A box of Unisom sleeping pills in child-resistant packaging found at
defendant‟s home was entered into evidence. In response to a juror question,10 the
instructions on the back of the package were read out loud by Dr. Sheridan. The
instructions indicated that the proper adult dosage was one tablet daily and warned
in pertinent part: “Do not take this product if presently taking any other drug
without consulting your physician or pharmacist. . . . For adults only. Do not give
to children under age twelve years. Keep this and all medications out of the reach
of children.” (Italics added.) Multiple childproof containers of Vicodin and
Valium that had been prescribed to defendant also were entered into evidence and
shown to the jury.
In the joint interview, defendant altered his story several times and admitted
lying to the detectives on numerous occasions. In evaluating the evidence
pertaining to poisoning, the jury was not required to accept, and was entitled to
reject, the claims that defendant administered the drugs to Arthur in an effort “to
(Footnote continued from previous page)
Michelle in fact stated, “Martin had me go to the store . . . .” The court has
reviewed the videotape exhibit of the joint interview that was played for the jury,
and it supports the People‟s contention. That it was Michelle, and not defendant,
who went to the store and bought the sleeping pills, furthermore is consistent with
the testimony of the detective who conducted the separate interview of Michelle.
Additionally, although Michelle refers to the Sominex brand of sleeping pills in
the interview, other evidence presented during the trial established that the pills
actually were the Unisom brand.
10
Juror No. 1371 submitted a question that read in relevant part: “I would be
interested to know what were the dosage instructions printed on the Unisom box
used by the Jenningses.”
21
get him better,” that defendant did not “know much” about the drugs, and that he
“didn‟t think” about what effect the drugs would have on Arthur. To the contrary,
the jury could have inferred exactly the opposite from defendant‟s remarks about
killing Arthur, the acknowledgement that Vicodin and Valium made defendant
feel “sleepy” and “numb,” his claim that he halved or quartered the prescription
pain pills before giving them to Arthur, and the admission by defendant that he
“probably” killed Arthur by “[a]busing him and the medication and stuff like
that.” This evidence was sufficient for a reasonable jury to find that defendant
deliberately administered the drugs to Arthur, and directed Michelle to do the
same, with full knowledge that such conduct endangered Arthur‟s life and with
conscious disregard for that life.
Defendant attempts to parse his involvement from Michelle‟s role in the
administration of the drugs, ignoring the circumstance that he was charged and
tried as an aider and abettor, as well as a direct perpetrator.11 “Aider and abettor
11
The trial court instructed the jury pursuant to CALJIC No. 3.00 (principals
defined), CALJIC No. 3.01 (aiding and abetting defined), and CALJIC 3.04
(compelling another to commit a crime), as follows: “Persons who are involved in
committing a crime are referred to as principals in that crime. Each principal,
regardless of the extent or manner of participation, is equally guilty. Principals
include: [¶] (1) Those who directly and actively commit the act constituting the
crime; or, [¶] (2) Those who aid and abet the commission of the crime. [¶] A
person aids and abets the commission of a crime when he or she: (1) With
knowledge of the unlawful purpose of the perpetrator and (2) With the intent or
purpose of committing or encouraging or facilitating the commission of the crime
and, (3) By act or advice aids, promotes, encourages or instigates the commission
of the crime. [¶] A person who aids and abets the commission of a crime need not
be present at the scene of the crime. [¶] Mere presence at the scene of a crime
which does not itself assist the commission of the crime does not amount to aiding
and abetting. [¶] Mere knowledge that a crime is being committed and the failure
to prevent it does not amount to aiding and abetting. [¶] A person who by threat,
menace, command or coercion compels another to commit any crime is guilty of
that crime.”
22
liability is premised on the combined acts of all the principals, but on the aider and
abettor‟s own mens rea. If the mens rea of the aider and abettor is more culpable
than the actual perpetrator‟s, the aider and abettor may be guilty of a more serious
crime than the actual perpetrator. [¶] Moreover, the dividing line between the
actual perpetrator and the aider and abettor is often blurred. It is often an
oversimplification to describe one person as the actual perpetrator and the other as
the aider and abettor. When two or more persons commit a crime together, both
may act in part as the actual perpetrator and in part as the aider and abettor of the
other, who also acts in part as an actual perpetrator.” (People v. McCoy (2001) 25
Cal.4th 1111, 1120.)
The evidence described above was sufficient for a reasonable jury to have
found that defendant poisoned Arthur, or that he aided and abetted Michelle in
poisoning Arthur, or that both occurred. Therefore, even assuming for purposes of
argument that the sleeping pills administered by Michelle were the sole cause of
Arthur‟s death, and that the additional drugs and torture were not concurrent
causes, a reasonable jury still could have found defendant guilty of first degree
murder by poison as an aider and abettor. In any event, there is sufficient
evidence to support defendant‟s conviction of first degree murder on the theory of
murder by poison.
b) Sufficiency of the evidence to establish first degree murder
by torture
Defendant claims the evidence was insufficient to support his conviction of
first degree murder on a murder-by-torture theory. (See § 189 [“All murder which
is perpetrated by means of . . . torture . . . is murder of the first degree.”].) He does
not contend that the evidence of his physical abuse of Arthur — which included
burning Arthur‟s hand on the stove, giving him black eyes, hitting him with a two-
by-four, violently shaking and banging Arthur‟s head against the wall, kicking him
23
in the midsection, duct-taping his mouth and hands, smothering him, and hitting
Arthur in the back of the head with a fireplace shovel — was insufficient to
establish torture. Rather, defendant contends that even assuming he tortured
Arthur, there is insufficient evidence that his torture was the “but for” cause of
Arthur‟s death, which defendant attributes to the drugs. We disagree. There was
sufficient evidence presented at trial from which a reasonable juror could have
found that defendant‟s acts of physical violence and deliberate starvation of Arthur
were concurrent causes of Arthur‟s death.12 As such, the evidence is sufficient to
support a conviction of first degree murder by torture.
The elements of first degree murder by torture are: “(1) acts causing death
that involve a high degree of probability of the victim‟s death; and (2) a willful,
deliberate, and premeditated intent to cause extreme pain or suffering for the
purpose of revenge, extortion, persuasion, or another sadistic purpose.
[Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 602.) The prosecution need
not establish that the defendant intended to kill the victim (ibid.), but must prove a
causal relationship between the torturous acts and the death. (People v. Chatman
(2006) 38 Cal.4th 344, 392 (Chatman).) “The finding of murder-by-torture
encompasses the totality of the brutal acts and the circumstances which led to the
victim‟s death. [Citations.] The acts of torture may not be segregated into their
12
The trial court instructed the jury pursuant to CALJIC No. 3.41 concerning
concurrent causation, as follows: “There may be more than one cause of the
death. When the conduct of two or more persons contributes concurrently as a
cause of the death, the conduct of each is a cause of the death if that conduct was
also a substantial factor contributing to the result. A cause is concurrent if it was
operative at the moment of the death and acted with another cause to produce the
death. [¶] If you find that the defendant‟s conduct was a cause of death to another
person, then it is no defense that the conduct of some other person contributed to
the death.”
24
constituent elements in order to determine whether any single act by itself caused
the death; rather, it is the continuum of sadistic violence that constitutes the
torture.” (People v. Proctor (1992) 4 Cal.4th 499, 530-531.)
If a defendant‟s acts of torture were a concurrent cause of the death, it is no
defense that the conduct of some other person contributed to the death. “ „ “When
the conduct of two or more persons contributes concurrently as the proximate
cause of the death, the conduct of each is a proximate cause of the death if that
conduct was also a substantial factor contributing to the result. A cause is
concurrent if it was operative at the time of the death and acted with another cause
to produce the death.” ‟ [Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834,
847; see also 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements,
§ 37, p. 243 [“The defendant may also be criminally liable for a result directly
caused by his or her act, even though there is another contributing cause.”].) “To
be considered the proximate cause of the victim‟s death, the defendant‟s act must
have been a substantial factor contributing to the result, rather than insignificant or
merely theoretical.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 583-584.)
“[A]s long as the jury finds that without the criminal act the death would not have
occurred when it did, it need not determine which of the concurrent causes was the
principal or primary cause of death.” (Catlin, supra, 26 Cal.4th at p. 155.)
For this reason, defendant‟s focus upon “but for” causation, and whether
the drugs were the “primary cause” of Arthur‟s death, is misplaced. “But for” or
“sine qua non” causation provides that “[t]he defendant‟s conduct is a cause of the
event if the event would not have occurred but for that conduct; conversely, the
defendant‟s conduct is not a cause of the event, if the event would have occurred
25
without it.” (Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 266, fn. omitted.)13
By comparison, the “substantial factor” rule for concurrent causes “was developed
primarily for cases in which application of the but-for rule would allow each
defendant to escape responsibility because the conduct of one or more others
would have been sufficient to produce the same result.” (Ibid.) As we have stated
in the civil context, the tests for “but for” and “substantial factor” causation
usually produce the same result, but the “substantial factor” standard states a
clearer rule that subsumes and reaches beyond the “but for” test to more accurately
address situations in which there are independent concurrent causes of an event.
(Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415; see also
Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1240.)
In the present case, there was sufficient evidence from which a reasonable
jury could have concluded that defendant‟s torture was at least a substantial factor
in Arthur‟s death. Dr. Sheridan testified that the cause of Arthur‟s death was
attributable to “the entire problem” — that it, the drugs, the physical injuries, and
the malnutrition and emaciation — “all working together” to bring about the
resulting death. (Italics added.) Additionally, the expert toxicologist and Dr.
Sheridan both concluded that the dosage of Unisom that was administered to
Arthur was sufficient to account for Arthur‟s death in light of his age and weight.
The jury reasonably could have inferred from this evidence that defendant‟s
physical abuse and purposeful starvation of Arthur contributed to the lethal effect
of the pills, and therefore was a substantial factor in his death.
13
It is well established that the principles of causation, as they apply to tort
law, are equally applicable to criminal law. (See, e.g., People v. Roberts (1992) 2
Cal.4th 271, 318-319 [relying upon tort cases for authority on the issue of
causation in a homicide case]; People v. Schmies (1996) 44 Cal.App.4th 38, 46-47
[relying upon Rest.2d Torts, § 442A, for definition of superseding cause].)
26
Defendant contends, however, that the jury could not properly consider
starvation as an aspect of torture, because there was insufficient evidence that
defendant deliberately withheld nourishment from Arthur. We disagree. Wilma
S., Arthur‟s aunt, testified that when she returned Arthur to his parents in
November 1995, he weighed 64 pounds and was in good health. In the weeks
leading up to his death, neighbors reported that Arthur appeared thin and
undernourished, despite the circumstance that the Jenningses had ample food in
their home. When offered food or drink, Arthur “gulped” it down and asked for
additional portions, suggesting he had not eaten recently. When he died on
February 4, 1996, Arthur weighed only 35 pounds, having lost nearly half of his
body weight in less than three months. Dr. Sheridan, who conducted the autopsy,
testified that Arthur‟s body had almost no fat beneath the skin, had broken down
muscle tissue for energy, and lacked food in the stomach at the time of death.
Arthur also suffered from acute pneumonia and from a breakdown of his immune
system due to emaciation. The jury was shown photographs of Arthur taken
between November 1995 and February 1996, including some taken at the autopsy,
which demonstrated his decline. Dr. Sheridan further testified there was no
medical reason for Arthur‟s dramatic weight loss over this short a period of time.
The foregoing constitutes substantial evidence from which the jury reasonably
could find that the Jenningses deliberately starved Arthur. This evidence, along
with the evidence of chronic and acute physical abuse, is sufficient to support
defendant‟s first degree murder conviction on the basis of murder by torture.
c) Sufficiency of the evidence to establish first degree
premeditated murder
Defendant contends that he was improperly convicted of first degree
premeditated murder, because there is “no evidence” he killed Arthur by means of
a deliberate and premeditated act. (See § 189 [“All murder which is perpetrated
27
. . . by any other kind of willful, deliberate, and premeditated killing . . . is murder
of the first degree.”].) As demonstrated above in response to defendant‟s claims
related to murder by torture and murder by poison, however, there is sufficient
evidence from which the jury reasonably could have found that defendant caused
Arthur‟s death. Additionally, as demonstrated below in response to defendant‟s
torture-murder special-circumstance claim, there is sufficient evidence from which
the jury could have found that defendant intended to kill Arthur. The only
remaining question for purposes of the present claim is whether there is sufficient
evidence of deliberation and premeditation.
“An intentional killing is premeditated and deliberate if it occurred as the
result of preexisting thought and reflection rather than unconsidered or rash
impulse.” (People v. Stitely (2005) 35 Cal.4th 514, 543.) In this context,
“ „premeditated‟ means „considered beforehand,‟ and „deliberate‟ means „formed
or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.‟ ” (People v.
Mayfield (1997) 14 Cal.4th 668, 767.) We normally consider three kinds of
evidence to determine whether a finding of premeditation and deliberation is
adequately supported — preexisting motive, planning activity, and manner of
killing — but “[t]hese factors need not be present in any particular combination to
find substantial evidence of premeditation and deliberation.” (Stitely, supra, at
p. 543.) If the evidence of preexisting motive and planning activity by itself is
sufficient to support the first degree murder conviction on a theory of
premeditation and deliberation, we need not review the evidence concerning the
manner of killing. (People v. Jurado (2006) 38 Cal.4th 72, 119.)
In the case before us, the evidence of preexisting motive clearly supports a
finding of premeditation and deliberation. After returning to the Jennings
residence, Arthur soon proved to be a difficult child with significant problems, and
28
defendant and Michelle quickly found themselves ill-equipped to handle Arthur‟s
“fits” and were unable to manage or control his behavior. Although Wilma S.
clearly had said she would take Arthur back at any time, defendant did not pursue
this option, nor did he pursue the course of giving Arthur up for adoption. Instead,
he attempted to “discipline” Arthur by inflicting repeated physical punishment that
left Arthur‟s body covered in bruises, and by purposefully withholding food to the
extent that Arthur lost nearly half his body weight in less than three months. The
situation quickly deteriorated to the point that defendant spoke about “getting rid
of,” “shooting,” or otherwise “killing” Arthur.
The evidence of planning activity also supports a finding of premeditation
and deliberation. On the day Arthur was killed but before he was dead, Michelle
and Art, Sr., went out at defendant‟s behest to survey the mine shaft where Arthur
later was found. Two days before Arthur‟s death, defendant and Michelle had
driven around the desert looking for a place to dump Arthur‟s body. A few days
before that, defendant devised the story he later would use to explain Arthur‟s
disappearance, telling a neighbor that Arthur got up in the middle of the night and
ran out into the desert, and that defendant and Michelle had spent three hours
looking for Arthur before finding him hiding behind a bush. After killing Arthur,
the Jenningses went to the sheriff‟s station with a similar story, claiming that
Arthur had run away in the middle of the night. Moreover, in the days leading up
to Arthur‟s death, defendant refused to add Arthur to the family‟s medical
insurance policy, stating “he wouldn‟t be in the house long enough to need it.”
Finally, the manner of killing supports the conclusion that Arthur‟s death
was the result of preexisting thought and reflection rather than unconsidered or
rash impulse. Arthur was systematically starved and continuously abused, and a
potentially lethal dose of prescription and over-the-counter sedatives was
deliberately administered. This conduct is entirely consistent with a preconceived
29
design to kill, and the jury was not required to accept defendant‟s claims to the
contrary.
In light of the foregoing, we conclude the evidence presented at trial was
sufficient for a reasonable jury to have found that the killing of Arthur was
premeditated and deliberate. As such, there is sufficient evidence to support
defendant‟s first degree murder conviction on the basis of premeditated murder.
d) Sufficiency of the evidence to establish the torture-murder
special circumstance
Defendant claims there is insufficient evidence to support the jury‟s torture-
murder special-circumstance finding. Reviewing the entire record in the light
most favorable to the prosecution, we conclude a rational trier of fact could have
found true beyond a reasonable doubt the essential elements of the torture-murder
special-circumstance allegation.
Under the applicable statute, first degree murder is punishable by death or
life in prison if the murder “was intentional and involved the infliction of torture.”
(§ 190.2, subd. (a)(18).) Proof of a murder committed under the torture-murder
special circumstance requires (1) proof of first degree murder, (2) proof that the
defendant intended to kill and torture the victim, and (3) proof of the infliction of
an extremely painful act upon a living victim. (People v. Davenport (1985) 41
Cal.3d 247, 271.) The torture-murder special circumstance thus is distinguished
from first degree murder by torture in that it requires defendant to have acted with
the intent to kill and applies where the death involved the infliction of torture,
regardless of whether the acts constituting the torture were the cause of death.
(See § 190.2, subd. (a)(18); People v. Bemore (2000) 22 Cal.4th 809, 842-843
(Bemore).)
Defendant, focusing entirely on Michelle‟s allegedly innocuous intent in
giving Arthur the sleeping pills, argues there was insufficient evidence of his
30
intent to kill. The relevant inquiry, however, is whether defendant harbored an
intent to kill when he tortured Arthur. The nature of the torture inflicted upon
Arthur — the continuous infliction of serious and possibly life-threatening
physical injuries while deliberately and systematically starving Arthur to the point
of emaciation — is sufficient to suggest that defendant had such intent. In
evaluating the evidence regarding intent to kill, the jury was not required to credit,
and was entitled to reject, defendant‟s repeated claims to the contrary. Defendant
admitted that one of his last acts of torture — hitting Arthur on the back of the
head with a shovel so hard that it caused a large, gaping wound — might have
killed Arthur, suggesting this was his intent. Defendant also admitted he was
“more than angry” that Arthur had witnessed defendant kissing a neighbor, and
when asked by a detective, “You had to finish him off. True or not true?,”
defendant responded, “I guess true.” The evidence further established that prior to
the incident involving the shovel, defendant on more than one occasion spoke
about killing Arthur, kept him off the family‟s medical plan “because he wouldn‟t
be in the house long enough to use it,” searched the desert for a place to dispose of
Arthur‟s body two days before his death, and went to great lengths to conceal
Arthur‟s death, including planning the “runaway” story he would tell the
authorities. This evidence is sufficient to support a finding, in connection with the
torture-murder special circumstance, that defendant intended to kill Arthur.
Defendant also argues there is insufficient evidence that Arthur‟s murder
“involved the infliction of torture.” (§ 190.2, subd. (a)(18).) In resolving above
the claim by defendant that the evidence was insufficient to sustain his conviction
of first degree murder under a theory of murder by torture, we found sufficient
evidence to establish that the torture perpetrated by defendant was a concurrent
cause of Arthur‟s death. Unlike first degree murder by torture, however, the
special circumstance does not require that the acts constituting the torture cause
31
the death. (Bemore, supra, 22 Cal.4th at p. 843.) Rather, “ „some proximity in
time [and] space between the murder and torture‟ ” will suffice. (Ibid.) Whatever
the “ „outer limits‟ ” of the torture-murder special circumstance might be in this
regard, the proximity requirement is satisfied when the acts of torture also were a
cause of death. (Chatman, supra, 38 Cal.4th at p. 394.) Even absent the evidence
of concurrent causation, the record in this case discloses a “close connection
between the torture and the murder.” (Bemore, supra, 22 Cal.4th at p. 843.)
Arthur had received several “fresh” injuries — including the head wound
defendant admitted to inflicting with a shovel and the facial injuries consistent
with a smothering attempt — shortly before his death.
Finally, defendant argues that the torture-murder special circumstance is
unconstitutional because the acts of torture are not required to be the sole or
primary cause of the victim‟s death. As he acknowledges, however, we previously
have rejected this argument. (Bemore, supra, 22 Cal.4th at p. 843.) We find no
compelling reason to revisit the issue.
e) Constitutional challenges to sufficiency of the evidence
Defendant claims that even if there is sufficient evidence to support his
conviction for first degree murder, the conviction violates his rights under the
Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. We
conclude that the jury‟s first degree murder verdict did not violate any of
defendant‟s constitutional rights.
Defendant argues that his first degree murder conviction makes him “death
eligible” in a case in which he did not cause the death and the death was
unintentional, in violation of the principle that a state‟s death penalty scheme must
meaningfully narrow the class of persons eligible for the death penalty. (See, e.g.,
Zant v. Stephens (1983) 462 U.S. 862; Beck v. Alabama (1980) 447 U.S. 625;
32
Godfrey v. Georgia (1980) 446 U.S. 420; Lockett v. Ohio (1978) 438 U.S. 586;
Gardner v. Florida (1977) 430 U.S. 349.) This argument fails for three reasons.
First, there is sufficient evidence, as outlined above, from which a rational trier of
fact could have found beyond a reasonable doubt that the torture inflicted by
defendant caused Arthur‟s death. Second, we have held that imposition of the
death penalty upon one who lacks the intent to kill is not cruel and unusual
punishment in violation of the Eighth Amendment. (See, e.g., People v. Diaz,
supra, 3 Cal.4th at p. 569; see also Tison v. Arizona (1987) 481 U.S. 137, 157-
158.) Third, it was defendant‟s first degree murder conviction in conjunction with
the jury‟s true finding on the torture-murder special circumstance — which
required an intent to kill — that ultimately made defendant eligible for the death
penalty. The United States Supreme Court has held that California‟s requirement
of a special circumstance finding adequately “limits the death sentence to a small
sub-class of capital-eligible cases.” (Pulley v. Harris (1984) 465 U.S. 37, 53.)
More specifically, we have held that “[t]he special circumstance of intentional
murder involving the infliction of torture sufficiently channels and limits the jury‟s
sentencing discretion consistent with Eighth Amendment principles [citation], and
meaningfully narrows the group of persons subject to the death penalty [citation].”
(People v. Barnett (1998) 17 Cal.4th 1044, 1162-1163; see also People v. Raley
(1992) 2 Cal.4th 870, 900 [torture murder is “particularly reprehensible because
the defendant intends to cause cruel suffering”].)
Defendant next argues that any interpretation of the evidence in this case
that renders him guilty of first degree murder violates the well-settled
constitutional principle prohibiting punishment determined under vague, arbitrary,
or illegitimate standards. (See, e.g., Kolender v. Lawson (1983) 461 U.S. 352,
357; Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) The existence of substantial
evidence from which a rational trier of fact could find beyond a reasonable doubt
33
the essential elements of first degree murder, as well as the torture-murder special
circumstance, satisfies the due process clause of the United States Constitution, as
well as its counterpart in article I, section 15, of the California Constitution. (See
Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Berryman (1993) 6
Cal.4th 1048, 1083.)
2. Admission of out-of-court statements by Michelle Jennings
a) Statements made to expert witness
Defendant claims that it was reversible error for the trial court to admit
certain out-of-court statements that were made by his wife and codefendant,
Michelle, during her interview with the clinical psychologist who testified on
Michelle‟s behalf as an expert witness at trial. We disagree. Even assuming error,
the admission of this evidence was harmless beyond a reasonable doubt in light of
the record in this case.
(1) Factual background
Nancy Kaser-Boyd, a clinical psychologist who evaluated Michelle,
testified as an expert witness in support of Michelle‟s defense that she lacked the
specific intent to kill or torture Arthur. In the course of Kaser-Boyd‟s direct
examination, after she had testified concerning Michelle‟s statements regarding
defendant‟s spousal abuse but before recounting Michelle‟s description of
Arthur‟s seizures, counsel for defendant objected to the admission of any
testimony regarding what Michelle told Kaser-Boyd regarding defendant‟s actions
or statements. This objection was based on Sixth Amendment confrontation
grounds. (Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v.
Aranda (1965) 63 Cal.2d 518 (Aranda).) Michelle‟s counsel countered that
experts are allowed to base their opinion on hearsay and that this testimony
34
therefore was admissible because Kaser-Boyd relied on the information in
question in forming her opinion. The court overruled defendant‟s objection.
As is relevant to defendant‟s claim, Kaser-Boyd testified concerning
Michelle‟s account of physical and sexual abuse that occurred during the earlier
years of her relationship with defendant. When she was 14 years of age, Michelle
ran away from home and went to stay with defendant, who was 29 at the time.
Michelle said defendant was nice to her at the beginning of their relationship, but
after about three or four months “he forced sexual attention on her and he also
began to be physically violent with her.” During a large portion of their time
together, defendant worked as a truck driver and Michelle was with him on the
road. She did not attend school and did not contact her parents, because she did
not want to be turned in as a runaway. Michelle told Kaser-Boyd that the abuse
continued: “She talked about being hit and slapped and punched, having her hair
pulled, being choked on several occasions. Being battered until the point at which
she told me she no longer — well, I will phrase that a different way. She always
did what [defendant] said and then some of the battering eased up . . . about the
last two years before Arthur died.”
Next, Kaser-Boyd testified that Michelle admitted she hit and slapped
Arthur when he had “fits.” Michelle told Kaser-Boyd that Arthur would fall
down, act as if he were unconscious although his eyes would be open, and shake
and bite his tongue. Based on her training and experience, Kaser-Boyd viewed
these “fits” as epileptic seizures, but Michelle explained that defendant had told
her Arthur “was doing that on purpose, that it was like a temper tantrum,” and
Michelle believed him.
Kaser-Boyd also testified concerning defendant‟s and Michelle‟s
withholding food from Arthur as a form of discipline. Michelle told Kaser-Boyd
“that [defendant] told her that hitting Arthur wasn‟t working and they needed to
35
try something else, and that if they didn‟t feed him, maybe he would do the things
that they were asking him to do.” Michelle said “sometimes she went along with
that, but there were other times when she agreed to sneak him food.”
Finally, Kaser-Boyd testified concerning Michelle‟s statement that
“[defendant] was talking about killing Arthur, shooting him in the head.”
At the end of the direct examination of Kaser-Boyd, she gave her opinion,
based in part upon her interviews with Michelle, that Michelle was fearful, felt
helpless, had problems with impulse control, was socially isolated and distrustful,
and suffered from dependent personality, posttraumatic stress, anxiety, and major
depressive disorders. Kaser-Boyd also testified that in her opinion, the reason
Michelle failed to protect Arthur was that, as a result of the extreme child abuse
she herself had suffered, she lacked a good role model to follow.
(2) Analysis
Defendant claims that the admission of the out-of-court statements made by
Michelle to Kaser-Boyd as described above violated his confrontation rights under
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).14 The United States
Supreme Court held in Crawford that the confrontation clause of the Sixth
Amendment of the federal Constitution prohibits “testimonial hearsay” from being
admitted into evidence against a defendant in a criminal trial unless (1) the
declarant is unavailable as a witness and the defendant has had a prior opportunity
to cross-examine him or her, or (2) the declarant appears for cross-examination at
trial. (Crawford at pp. 53, 59 & fn. 9.) Defendant contends that the admission of
these statements also violated his confrontation rights under Aranda, supra, 63
14
Although Crawford was decided after defendant‟s trial and while his appeal
was pending, the high court‟s ruling applies retroactively to his case. (People v.
Cage (2007) 40 Cal.4th 965, 975 fn. 4.)
36
Cal.2d 518, and Bruton, supra, 391 U.S. 123. Aranda and Bruton stand for the
proposition that a “nontestifying codefendant‟s extrajudicial self-incriminating
statement that inculpates the other defendant is generally unreliable and hence
inadmissible as violative of that defendant‟s right of confrontation and cross-
examination, even if a limiting instruction is given.” (People v. Anderson (1987)
43 Cal.3d 1104, 1120-1121.) The People respond that no confrontation-clause
violation occurred, because Michelle‟s statements were not offered for their truth
but rather as a basis for the expert‟s opinion regarding Michelle‟s state of mind.
(See generally Evid. Code, §§ 801, subd. (b), 802.)
We need not resolve the constitutional claims raised by defendant, because
even assuming it was error under Crawford or Aranda and Bruton to admit the
disputed statements made by Michelle to Kaser-Boyd, such error was harmless
beyond a reasonable doubt. (People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016
[finding it unnecessary to examine a “complex constitutional question,” because
any error was harmless]; see also Delaware v. Van Arsdall (1986) 475 U.S. 673,
681 (Van Arsdall) [an otherwise valid conviction should not be set aside for
confrontation clause violations if, on the whole record, the constitutional error was
harmless beyond a reasonable doubt]; Harrington v. California (1969) 395 U.S.
250, 253-254 (Harrington) [Aranda-Bruton error subject to harmless error
analysis under the rule of Chapman v. California (1967) 386 U.S. 18]
(Chapman).)
Defendant focuses almost exclusively on the alleged prejudice he suffered
from the admission of Michelle‟s statement to Kaser-Boyd concerning defendant‟s
having withheld food from Arthur as a form of punishment, which he contends is
the only evidence indicating that he deliberately starved Arthur. He argues that
without this statement, there is insufficient evidence to establish that defendant
tortured Arthur by starving him, that without proof of torture by starvation, there is
37
insufficient evidence to support the guilty verdict and special circumstance
finding, and hence the judgment must be reversed.
This argument is contradicted by the record. There was overwhelming
circumstantial evidence apart from Michelle‟s statement, and described in detail
above, from which a reasonable jury could have found that the Jenningses
deliberately starved Arthur. This includes evidence establishing that in less than
three months, Arthur deteriorated from a healthy 64 pounds to a severely
emaciated 35 pounds, which Dr. Sheridan testified was “a dramatic weight loss
over a short period of time;” that at the time of his death, Arthur had no food in his
stomach, almost no body fat — including in the areas where bodies normally store
a layer of fat — and his muscles were wasting; that there was no medical reason
Arthur‟s body would not have been able to absorb food; and that the
malnourishment suffered by Arthur occurred despite the circumstances that the
Jenningses had ample food in their home and that other family members, including
Arthur‟s baby sister, appeared physically healthy and well-fed.
Defendant‟s argument, moreover, ignores the circumstance that his entire
course of conduct, and not just the act of starvation, constituted torture. There was
overwhelming direct and circumstantial evidence establishing that, in addition to
purposefully depriving Arthur of food for an extended period of time, defendant
also brutally and continuously physically abused Arthur. This includes evidence
demonstrating that defendant burned Arthur‟s hand on the stove, gave him black
eyes on multiple occasions, hit him with a two-by-four, violently shook and
banged Arthur‟s head against the wall, kicked him in the midsection, duct-taped
his mouth and hands, attempted to smother him, and hit Arthur on the back of the
head with a fireplace shovel shortly before he died.
Defendant‟s trial strategy further contradicts his claim that he was
prejudiced by the admission of Michelle‟s statement concerning defendant‟s
38
withholding of food as punishment. Defendant did not dispute that he starved and
physically abused Arthur; instead his defense was that he intended only to
discipline the child and did not intend to kill him. In support of this argument,
defense counsel specifically alluded to Michelle‟s statement about withholding
food from Arthur as a form of punishment: “And when the child is misbehaving
according to [defendant] — I mean, see, in order to determine state of mind,
intent, you‟ve got to get into this. So I‟m using „misbehaving‟ in quotes, because
that‟s what [defendant] is perceiving, the child is misbehaving. What do you do?
Well — based upon his personality disorders and his upbringing, what do you do?
Well, that‟s clear what you do, and that‟s what happened to the child. That‟s what
you do. You spank. If that doesn‟t work, you beat. If he‟s peeing, pooping,
whatever, you withhold food. When nothing else works, you — you heard that
Michelle said he said, [defendant] said, „I‟m going to,‟ you know, „end this now,‟
and he puts the kid‟s hand on the flame. Okay? He‟s upping the ante to try and —
he keeps battering this little child to try to force him into compliance to behave, to
behave. And that’s awful child abuse without, you know, any excuse, and he
should be convicted of it. The difference, the difference, is, you know, for all
those other crimes, it doesn‟t require a premeditated, malice intent to kill, a
specific intent to kill for those other crimes. Okay? That‟s the difference.” If
anything, the exclusion of Michelle‟s statement concerning defendant‟s
withholding of food as punishment would have harmed defendant, as it was the
only direct evidence supporting his defense.
In light of the totality of the record concerning defendant‟s severe and
chronic physical abuse and starvation of Arthur, we are persuaded beyond a
reasonable doubt that Michelle‟s statement regarding defendant‟s withholding of
food as punishment did not contribute to the verdict or special circumstance
finding. (Yates v. Evatt (1991) 500 U.S. 391, 403.) Accordingly, even if we were
39
to assume a confrontation-clause violation occurred with respect to the admission
of this statement, reversal of the judgment would not be warranted. (Van Arsdall,
supra, 475 U.S. at p. 681; Harrington, supra, 395 U.S. at pp. 253-254.)
Alternatively, defendant claims the admission of Michelle‟s statement to
Kaser-Boyd concerning defendant‟s withholding of food violated the Evidence
Code prohibition against hearsay evidence. (See Evid. Code, § 1200.) This claim
was forfeited, however, by defendant‟s failure to make a hearsay objection at
trial.15 Even if we were to assume it was not forfeited and also that the statement
was offered for the truth of the matter asserted, any presumed error in admitting
this alleged hearsay evidence was not prejudicial, for the same reasons that any
presumed Crawford or Aranda-Bruton error was harmless beyond a reasonable
doubt. (Accord, People v. Gutierrez (2009) 45 Cal.4th 789, 813 (Gutierrez)
[although child‟s improper hearsay testimony provided the only direct evidence
implicating the defendant in a murder, there was “profuse circumstantial
evidence” of defendant‟s guilt].)
Finally, because we conclude that defendant suffered no prejudice from the
admission of Michelle‟s statements to Kaser-Boyd regarding defendant‟s
withholding of food from Arthur, we also reject defendant‟s related claim that the
15
Anticipating that we would find this claim forfeited, defendant contends it
is still cognizable on appeal under the rubric of ineffective assistance of counsel,
based upon his counsel‟s failure to object. Defendant may not, however,
transform a forfeited claim into a cognizable claim merely by asserting ineffective
assistance of counsel. (People v. Riel (2000) 22 Cal.4th 1153, 1202-1203 (Riel).)
Such a claim is different from a claim of the underlying forfeited error. (Ibid.) In
any event, we need not address defendant‟s ineffective-assistance-of-counsel
claim in light of our conclusion that any error in admitting Michelle‟s statements
to Kaser-Boyd was harmless beyond a reasonable doubt. (See, e.g., People v.
Huggins (2006) 38 Cal.4th 175, 249 [constitutionally deficient representation
cannot be established if error was harmless beyond a reasonable doubt].)
40
judgment must be reversed on the grounds that the trial court erred in denying his
pretrial severance motion and that defendant suffered “important prejudice” and
“gross unfairness” because of the joint trial and the resulting admission of this
statement.
With respect to Michelle‟s statements to Kaser-Boyd regarding spousal
abuse, Arthur‟s “tantrums,” and defendant‟s wanting to shoot and kill Arthur, any
presumed error in admitting this evidence was harmless beyond a reasonable
doubt for the additional reason that these statements were merely cumulative of
actual and adoptive admissions made by defendant during the videotaped joint
interview that the detectives conducted with the two suspects, as demonstrated
below.
b) Statements made during joint interview with detectives
Defendant also claims that the trial court committed reversible error under
Crawford, as well as under Aranda and Bruton, by admitting numerous statements
made by Michelle during the joint interview the detectives conducted with
defendant and Michelle. As we explain below, because the statements qualify as
adoptive admissions, their admission into evidence did not violate defendant‟s
Sixth Amendment confrontation rights under Crawford, or under Aranda and
Bruton. Even assuming for purposes of argument that it was error to admit some of
Michelle‟s statements from the joint interview as adoptive admissions, any
presumed error was harmless beyond a reasonable doubt in the context of the entire
joint interview and the record as a whole.
(1) Factual background
After obtaining separate statements from defendant and Michelle and being
led to Arthur‟s body in the mine shaft, the detectives decided to interrogate the
two suspects together. At the outset of the joint interview, the detectives obtained
41
Miranda waivers (Miranda v. Arizona (1966) 384 U.S. 436) and told defendant
and Michelle that the detectives wanted to explore inconsistencies between the
separate statements made by the suspects.
The detectives commenced by focusing on the physical abuse inflicted on
the victim, asking defendant about his separate statement that Michelle began
“beating on” Arthur shortly after the child arrived at their home and that Michelle
was more abusive than defendant, who merely disciplined Arthur with spankings
and “time-outs.” Michelle interjected to deny that she ever hurt Arthur, claiming
that all she did was spank him. Defendant responded that both he and Michelle
probably were “overzealous” in inflicting punishment.
Later in the interview, Michelle accused defendant of dragging Arthur
home, throwing him onto the porch, and bruising his forehead. Defendant
conceded that on one occasion he had dragged Arthur home, but claimed Arthur
hit his head after tripping over a step on the porch.
Michelle subsequently admitted that she disciplined Arthur by spanking
him, sending him to the corner, and “smack[ing] him” to bring him out of his
“fits,” but claimed that defendant recently had gotten “carried away” and began
hitting Arthur with his fist, including in the face. Defendant conceded he probably
had been abusive, but could not remember punching Arthur in the face with his
fist.
Michelle further accused defendant of knocking Arthur down with
defendant‟s elbow, kicking him in the midsection, making Arthur hold a two-by-
four over his head and knocking him down when he dropped the beam, and
holding his hand over the stove and burning it. At first, defendant reluctantly
admitted committing some of these abuses, conceding that he was “abusive” and
that “most” of Arthur‟s injuries were caused by defendant. But when Michelle
pleaded with defendant “[p]lease tell them” and “[d]on‟t do this to me,” defendant
42
admitted to all of the abuse Michelle had described — to “everything she‟s
saying.” Nevertheless, defendant continued to assert that Michelle also was
abusive, although not “overly” so, and that some of her conduct may have
contributed to Arthur‟s injuries, but only in a “very minor” way. Later in the
interview, defendant specifically admitted burning Arthur‟s hand on the stove and
pushing him to the ground.
Defendant also admitted that during one of Arthur‟s seizures that took place
a few days before he died, defendant shook Arthur so hard that Arthur‟s head hit
the wall. When Michelle tried to stop defendant, defendant pushed her away.
Defendant stated he “caught [his] senses” and only stopped when Michelle began
“screaming” that defendant was about to kill Arthur.
Defendant further admitted placing a sock in Arthur‟s mouth and also using
duct tape to silence Arthur, and conceded he may have used duct tape to bind
Arthur‟s hands. Defendant claimed he took these actions to keep Arthur from
biting his tongue or gouging himself with his fingers during his seizures.
The detectives next confronted defendant regarding his prior statement that
he and Michelle, on more than one occasion, had spoken about “killing” or
“get[ting] rid of” Arthur. At that point, Michelle interrupted, stating that she never
wanted to kill Arthur and that she told defendant they could not take such action.
Michelle claimed she proposed sending Arthur back to defendant‟s sister, Wilma,
or leaving him with his paternal grandfather, Art, Sr. She asked defendant, “Did I
kill Arthur? Please. Did I kill him?,” to which defendant responded, “No.” When
the detectives then asked defendant how he planned to kill Arthur, he responded
that he did not know. Michelle again interjected, volunteering that defendant
talked about shooting Arthur, but that she had responded negatively, stating they
should send him to his aunt or grandfather. Defendant admitted that Michelle‟s
account was accurate. He further conceded that he had spoken about killing
43
Arthur, but claimed he had changed his mind, did not mean to kill Arthur, and did
not want Arthur to die.
The detectives inquired concerning defendant‟s prior statement that two
days before Arthur‟s death, defendant and Michelle had gone to the desert to look
for a place to dump Arthur‟s body. Michelle admitted they drove around in the
desert, but claimed she did not know they were looking for a place to dump a
body. Defendant agreed, stating that looking for a dumping site was only “in the
back of my mind.” Defendant said his father had told him about the mine shaft
during a discussion with some neighbors, and Michelle claimed that defendant had
his father take her to the mine shaft on the day Arthur died because she had never
seen one before. Michelle indicated that before she left to look at the mine shaft
with Art, Sr., she administered CPR to Arthur “cause he was breathing kind of . . .
hard.” Defendant also claimed to have administered CPR to Arthur when he later
stopped breathing, admitting that at that time Arthur‟s head still was bleeding from
the shovel incident.
The detectives next addressed the efforts to conceal Arthur‟s death, asking
defendant about his prior statements that Michelle had dug the original hole for the
body and subsequently had moved the body to the mine shaft. Michelle turned to
defendant, asking him, “why are you doing this to me,” and pleading for defendant
to tell the detectives who had done these things. Defendant eventually admitted
that he did “all of it,” conceding that he had moved the body to the mine shaft
because he was afraid that someone would find it, and that he had planned to
throw old tires on top of the body to hide it. Defendant and Michelle also
admitted having cleaned up Arthur‟s bedroom after disposing of his body.
Defendant related that there had been blood on the walls, possibly on the floor as
well, and admitted that the blood may have been from when he shook Arthur and
Arthur‟s head hit the wall. He also admitted to burning Arthur‟s bed sheets and
44
the gloves used to bury him, and hiding Arthur‟s bloody clothes and glasses in a
trash dumpster. Defendant said, “I know what I [did] is wrong” and “I know I‟m
going to have to pay for this.”
Michelle claimed she wanted to report Arthur‟s death, but defendant would
not let her, claiming they would go to jail for child abuse. When she asked
defendant, “Why didn‟t you let me report it when I told you I was going to?,”
defendant replied, “Because I was scared. I was scared of losing everything that
we have.” When Michelle further claimed it was defendant‟s idea to bury Arthur,
defendant confirmed Michelle “went along with everything I said.” Michelle
indicated she acceded to defendant out of fear, because defendant once told her he
would kill her if she caused him to be arrested. Defendant admitted making that
statement, but claimed that was “a long time ago” and that he did not mean it.
Michelle also indicated that defendant threatened to hurt her and baby Pearl if she
told anyone about what had happened to Arthur, and that defendant had brought a
gun when they went to move Arthur‟s body. Defendant denied that allegation,
claiming, “what I said was, that if we got caught, it would hurt all of us[,] . . . it
would hurt you and Pearl ‟cause you‟d be separated.” After additional pleas from
Michelle, defendant eventually admitted that he threatened to “beat her ass up” in
order to force her to go along with his actions. In summary, he admitted, “I used
all kind of tactics and everything else,” that Michelle “went along with everything
I did” most likely out of fear, and that “she only did what I told her to do.” He
repeated this sentiment several times and did not disagree when Michelle said she
went along with defendant‟s efforts to conceal Arthur‟s death because she was
threatened, although he remained adamant that he did not threaten her with the
gun.
At one point, defendant volunteered that he and Michelle had administered
prescription drugs to Arthur, such as Vicodin, in order to “heal him up” so they
45
could send him back to Wilma. The detectives then inquired concerning
defendant‟s prior statement that Michelle had administered medication to Arthur,
that defendant had attempted to stop her by hiding the medication, but that she had
found it and continued to administer the medication to Arthur. Defendant
admitted that this story was not true, that they both gave Arthur medication, and
that he had told Michelle to do so because he thought it would help make Arthur
better. Although claiming he did not consider what the pills would do to a child
who weighed 35 pounds, defendant also claimed to have cut the pills in halves or
quarters. For her part, Michelle admitted that, in order to protect defendant, she
previously had lied to the detectives about administering several pills to Arthur.
Michelle claimed she actually gave Arthur only one Valium that defendant
instructed her to administer to Arthur to relax his muscle spasms, and two sleeping
pills at defendant‟s direction in order to put Arthur to sleep.
The detectives inquired why defendant told Michelle that the couple did not
need to list Arthur on their medical insurance policy because Arthur “wouldn‟t be
in the house long enough to need it.” Defendant claimed he “had a change of
heart about killing [Arthur]” and was referring to the idea of returning Arthur to
Wilma.
The detectives also confronted defendant concerning his prior assertion that
Michelle had hit Arthur with a fireplace shovel on the day he died. Michelle again
objected, asking defendant whether that was true. Defendant admitted that was a
lie, asserting that no one had hit Arthur with a shovel but instead Arthur had hit his
head on the kitchen table. Defendant explained that he did not tell Michelle about
this incident, because he was afraid to do so. After the detectives persisted,
defendant again changed his story, claiming that he was holding the shovel when
he sat Arthur down against a wall and that Arthur landed against the shovel. The
detectives also refused to believe this story and, after trying to explain how Arthur
46
fell on the shovel, defendant eventually said he could not remember how Arthur
hit his head.
At one point, Michelle asked to leave the interview room and was escorted
outside. In her absence, defendant admitted he “used [Michelle‟s] love against
her,” as well as fear and intimidation. He admitted he was afraid that without
having Michelle “under [his] thumb or without intimidating her or putting fear in
her[,] that she would tell on [him.]” When Michelle returned to the room, the
detectives left the two of them alone but continued to record their conversation.
Defendant insisted that Arthur‟s death was partly Michelle‟s fault but said he was
going to take the blame for it: “I‟ll sign a confession and everything.” They
spoke about defendant‟s likely punishment and about how much they loved each
other. Defendant mentioned that he had led the officers to Arthur‟s body,
“otherwise they‟d never found that son of [a] bitch.” Michelle sought to confirm
that defendant would confess so she could go home to care for Pearl, to which
defendant replied, “I will. I‟ll do it. . . . I‟ll just have them type it up and I‟ll sign
it.”
When the detectives returned, they immediately asked who had killed
Arthur. Both defendant and Michelle initially denied killing Arthur, but defendant
eventually admitted, “I probably did” by “abusing him and [giving him] the
medication and stuff like that,” but again claimed he did not intend to kill Arthur.
The detectives then resumed questioning the two suspects concerning the
shovel incident. Defendant finally admitted that a female neighbor, Cora Grein,
had been in the house while Michelle was out with Art, Sr. At this time, one of
the detectives took Michelle outside again. In her absence, defendant admitted
that Arthur saw him kissing Grein. Defendant claimed that Grein became angry
and hit Arthur with the shovel in order to keep Arthur from telling her husband.
Defendant claimed that he kicked Grein out of the trailer and tried to help Arthur
47
by cleaning the wound and giving him some drugs, but that Arthur died within an
hour.
Under further questioning, however, defendant‟s story changed again, and
he finally confessed that he hit Arthur with the shovel after Arthur saw him kissing
Grein and admitted that he then believed he “had to finish [Arthur] off.”
Nevertheless, defendant claimed he did not intend to kill Arthur and, indeed, had
attempted to save Arthur‟s life by administering CPR, because defendant had
experienced a “change of heart.” Defendant further admitted that he caused all the
bruises on Arthur‟s body, that Michelle never beat Arthur, that defendant was
abusive toward Michelle and coerced her into going along with his actions, that
Michelle did not have “much” involvement, and that he was responsible for
Arthur‟s death.
After defendant‟s confession, Michelle was brought back into the room and
defendant told her about hitting Arthur in the head with a shovel. Michelle
expressed shock and wanted to know why defendant had done this. The detectives
again left the two alone together and recorded their conversation. In the absence
of the detectives, Michelle pleaded with defendant to sign a confession so that she
could continue to care for Pearl. The two pledged their love for each other, and
defendant asked Michelle to take care of their baby girl. The joint interrogation
ended at that point.
Prior to trial, defendant moved to sever his trial from Michelle‟s trial on the
grounds of incompatible defenses and Aranda-Bruton issues. (See Bruton, supra,
391 U.S. 123; Aranda, supra, 63 Cal.2d 518.) When the motion was discussed at
a June 1997 status conference, the prosecutor told the court that his intent at that
point was to introduce only the joint interview of the two codefendants with the
detectives and not defendant‟s and Michelle‟s statements from their separate
interviews with the officers. At a February 1998 hearing on the motion, defendant
48
argued that the alleged “admissions” from the joint interview were inherently
untrustworthy under the facts presented and that a joint trial would violate
defendant‟s confrontation rights under the Sixth Amendment of the United States
Constitution as interpreted by the Aranda and Bruton decisions. The trial court
noted, and defendant apparently conceded, that the joint interview would be
admissible at any separate trial. The prosecutor also argued that the joint
interview consisted of a combination of adoptive admissions, declarations against
interest, and confessions, all of which were admissible. At a March 1998 hearing,
the trial court denied defendant‟s severance motion, concluding that the joint
interview contained party admissions as well as adoptive admissions, all of which
were trustworthy.
During the trial, before the videotape of the joint interview was shown to
the jury, defendant renewed his continuing objection to its admission. The court
overruled the objection, incorporating its earlier ruling. The prosecutor then
played the entire joint interview for the jury.
(2) Analysis
It is undisputed that defendant‟s own statements made during the joint
interview were admissible against him, as admissions of a party, under Evidence
Code section 1220. (See People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5
[“section 1220 covers all statements of a party, whether or not they might
otherwise be characterized as admissions”].) Defendant contends, however, that
the concurrent admission of numerous “essential” statements made by Michelle
during the joint interview violated his right to confrontation under Crawford and
the Aranda-Bruton line of cases. (See Crawford, supra, 541 U.S. 36; Bruton,
supra, 391 U.S. 123; Aranda, supra, 63 Cal.2d 518.) We conclude there was no
49
violation of defendant‟s confrontation rights, because Michelle‟s disputed
statements qualify as “adoptive admissions” under Evidence Code section 1221.
The law pertaining to adoptive admissions is well settled. “Evidence of a
statement offered against a party is not made inadmissible by the hearsay rule if
the statement is one of which the party, with knowledge of the content thereof, has
by words or other conduct manifested his adoption or his belief in its truth.”
(Evid. Code § 1221.) As this court has explained, “[i]f a person is accused of
having committed a crime, under circumstances which fairly afford him an
opportunity to hear, understand, and to reply, and which do not lend themselves to
an inference that he was relying on the right of silence guaranteed by the Fifth
Amendment to the United States Constitution, and he fails to speak, or he makes
an evasive or equivocal reply, both the accusatory statement and the fact of silence
or equivocation may be offered as an implied or adoptive admission of guilt.”
(People v. Preston (1973) 9 Cal.3d 308, 313-314 (Preston).)
“ „[A] typical example of an adoptive admission is the accusatory statement
to a criminal defendant made by a person other than a police officer, and
defendant‟s conduct of silence, or his words or equivocal and evasive replies in
response. With knowledge of the accusation, the defendant‟s conduct of silence or
his words in the nature of evasive or equivocal replies lead reasonably to the
inference that he believes the accusatory statement to be true.‟ [Citation.]”
(People v. Silva (1988) 45 Cal.3d 604, 623-624 (Silva).) “For the adoptive
admission exception to apply, however, a direct accusation in so many words is
not essential.” (People v. Fauber (1992) 2 Cal.4th 792, 852 (Fauber).) “ „When a
person makes a statement in the presence of a party to an action under
circumstances that would normally call for a response if the statement were
untrue, the statement is admissible for the limited purpose of showing the party‟s
reaction to it. [Citations.] His silence, evasion, or equivocation may be
50
considered as a tacit admission of the statements made in his presence.‟
[Citation.]” (People v. Riel, supra, 22 Cal.4th at p. 1189.)
“Moreover, it is well settled that an adoptive admission can be admitted
into evidence without violating the Sixth Amendment right to confrontation „on
the ground that “once the defendant has expressly or impliedly adopted the
statements of another, the statements become his own admissions, and are
admissible on that basis as a well-recognized exception to the hearsay rule.” ‟
[Citations.]” (People v. Cruz (2008) 44 Cal.4th 636, 672.) “Being deemed the
defendant‟s own admissions, we are no longer concerned with the veracity or
credibility of the original declarant. Accordingly, no confrontation right is
impinged when those statements are admitted as adoptive admissions without
providing for cross-examination of the declarant.” (Silva, supra, 45 Cal.3d at
p. 624.) Stated another way, when a defendant has adopted a statement as his
own, “the defendant himself is, in effect, the declarant. The „witness‟ against the
defendant is the defendant himself, not the actual declarant; there is no violation of
the defendant‟s right to confront the declarant because the defendant only has the
right to confront „the witnesses against him.‟ [Citations.]” (United States v. Allen
(7th Cir. 1993) 10 F.3d 405, 413.)
It follows that the admission of an out-of-court statement as the predicate
for an adoptive admission does not violate the principles enunciated in Crawford
or in Aranda and Bruton. (People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25
[“admission of defendant‟s adoptive admissions did not violate the confrontation
clause as interpreted in Crawford”], disapproved on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421; People v. Combs (2004) 34 Cal.4th 821, 841-
843 (Combs) [no Crawford violation when incriminating statements made during
joint interrogation were admitted as adoptive admissions]; Preston, supra, 9
Cal.3d at p. 315 [admission of evidence under the adoptive-admission exception to
51
the hearsay rule does not violate the Aranda rule]; People v. Osuna (1969) 70
Cal.2d 759, 765 [there is no Aranda-Bruton error when conversation among
codefendants was admitted under adoptive-admission rule].)
Instructive on this point is People v. Castille (2005) 129 Cal.App.4th 863
(Castille), which involved a situation almost identical to the one presented here —
a jointly conducted law enforcement interview of three defendants, which was
admitted at their joint trial for murder with special circumstances and attendant
enhancements. Relying upon many of the authorities discussed above, the
appellate court held that the admission in evidence of adoptive admissions made
during the joint interview did not violate the principles enunciated in Crawford, or
in Aranda and Bruton. The court included a detailed discussion of our decision in
Combs, supra, 34 Cal.4th at pages 841-843, citing it for the proposition that
“adoptive admissions, elicited during a joint police interrogation, do not implicate
the Sixth Amendment and thus do not constitute Crawford error.” (Castille,
supra, 129 Cal.App.4th at pp. 877-878.) The defendants in Castille argued that
Combs was distinguishable, however, because the declarant and the defendant in
Combs were tried separately. The defendants reasoned that adoptive admissions
are not properly admitted at a joint trial, because admission of the codefendant‟s
statement, necessary to establish the content of the adoptive admission, runs afoul
of the Aranda-Bruton rule, which “addresses the situation in which a
codefendant‟s out-of-court confession incriminates not only himself, but also
another defendant” and which holds that “[w]hen such a confession is introduced
at a joint trial, the defendant is deprived of his Sixth Amendment confrontation
clause rights, even when the jury is instructed to consider the confession only as to
the codefendant. [Citation.]” (Castille, supra, 129 Cal.App.4th at p. 878.) The
Court of Appeal rejected the defendant‟s argument: “In such a situation, the
statement of defendant A implicating defendant B is admitted not for its truth, but
52
to supply meaning to B‟s response adopting A‟s statement as his own.”16
(Castille, supra, at p. 878; see also Combs, supra, 34 Cal.4th at p. 842 [“Purcell‟s
statements incriminating defendant were not admitted for purposes of establishing
the truth of the matter asserted, but were admitted to supply meaning to
defendant‟s conduct or silence in the face of Purcell‟s accusatory statements.”].)
With these principles in mind, we turn to defendant‟s claim that the court
erred in admitting several statements made by Michelle during the joint interview.
Michelle‟s disputed statements can be grouped into three general categories that
cover all of defendant‟s allegations of error in this respect. Because Michelle
repeated many statements during the course of the interview, some may fall into
more than one category, although they are listed below only once.
The first category consists of statements, made by Michelle during the joint
interview, that defendant expressly admitted or accepted at the time the statement
16
The jury in Castille was instructed pursuant to CALJIC No. 2.71.5, as
follows: “ „If you should find from the evidence that there was an occasion when
a defendant, one, under conditions which reasonably afforded him an opportunity
to reply, two, failed to make a denial or made false, evasive or contradictory
statements in the face of an accusation expressed directly to him or in his
presence, charging him with the crime for which the defendant is now on trial or
tending to connect him with its commission; three, he heard the accusation and
understood its nature, then the circumstances of the silence and/or conduct on that
occasion may be considered against him as indicating an admission that the
accusation thus made is true. [¶] Evidence of an accusatory statement is not
received for the purpose of proving its truth, but only as it supplies meaning to the
silence and/or conduct of the accused in the face of it. Unless you find that the
defendant‟s silence and/or conduct at the time indicated an admission that the
accusatory statement was true, you must entirely disregard the statement.‟ ”
(Castille, supra, 129 Cal.App.4th at p. 878, fn. 7.) In defendant‟s case, the jury
was not instructed pursuant to CALJIC No. 2.71.5. Defendant, however, did not
request such an instruction, and the trial court was under no duty to so instruct
absent a request from counsel. (People v. Carter (2003) 30 Cal.4th 1116, 1197-
1198.)
53
was made. These statements are clearly admissible as adoptive admissions and
include the following: that Michelle did not kill Arthur; that Michelle did not hit
Arthur on the head with the fireplace shovel; that defendant had not told Michelle
about the shovel incident; that defendant talked about shooting Arthur in the head
but Michelle told him not to kill Arthur, that they should return Arthur to
defendant‟s sister or give him to defendant‟s father; that defendant, not Michelle,
dug the hole where they first buried Arthur and then moved his body to the mine
shaft; that Michelle did not know that when they were driving in the desert two
days before Arthur died, they were scouting for a place to dump his body; that
defendant had threatened in the past to kill Michelle if she ever did anything that
sent him to jail; that most of Arthur‟s injuries were caused by defendant; that
defendant made Arthur hold a two-by-four over his head and hit him with it when
Arthur dropped the board; that defendant “shook the hell out of” Arthur, making
his head hit the wall, and that when Michelle tried to stop defendant, he pushed
her away; that defendant put duct tape over Arthur‟s mouth and possibly around
his hands, and that Michelle removed the tape; and that defendant put a sock in
Arthur‟s mouth during one of Arthur‟s “fits.”
The second category consists of statements, made by Michelle during the
joint interview, that defendant failed to deny or to which he furnished an equivocal
or evasive response at the time the statement was made. With respect to these
statements, we observe that defendant waived his right to remain silent at the
beginning of the interview and never indicated an intention to invoke that right at
any point during the interview. In fact, defendant continuously made new
admissions throughout the interview. Additionally, on numerous occasions during
the interview, defendant clearly voiced disagreement with statements made by
Michelle. For example, defendant repeatedly denied ever threatening Michelle
with a gun.
54
Under these circumstances, we conclude statements made by Michelle that
were met by defendant‟s silence, or by equivocal or evasive responses on his part,
properly are viewed as adoptive admissions, and therefore were admissible in
evidence.17 (Fauber, supra, 2 Cal.4th at p. 852; Preston, supra, 9 Cal.3d at
pp. 314-315; accord, People v. Hurd (1998) 62 Cal.App.4th 1084, 1093-1094
[“Once a defendant elects to speak after receiving a Miranda warning, his or her
refusal to answer questions may be used for impeachment purposes absent any
indication that such refusal is an invocation of Miranda rights.”].) Defendant‟s
implied adoptive admissions include the following: that Michelle was not home
when Arthur received the head wound or when he died; that Michelle never
injured Arthur; that defendant spoke before Arthur‟s death of killing him; that
Michelle did not want to kill Arthur or for him to die; that although Michelle gave
Arthur prescription pain medication because defendant told her to do so, she gave
him only one Valium and defendant gave him the remainder of the pain pills; that
defendant had Michelle go to the store to acquire sleeping pills in order to put
Arthur to sleep; that on various occasions defendant dragged, hit, slapped,
17
In People v. Jennings, supra, 112 Cal.App.4th 459, involving the appeal of
Michelle‟s conviction, the appellate court held that silence during a post-Miranda
custodial interrogation generally is interpreted to be an assertion of the right to
remain silent and therefore cannot be used to prove an adoptive admission. (Id. at
pp. 472-474.) Jennings, however, was decided before our decision in Combs,
supra, 34 Ca1.4th 821, which ruled that a declarant‟s accusatory statements made
during a joint police interview properly may be brought before a jury “to supply
meaning to defendant‟s conduct or silence in the face of [the accusations],” and
that receiving such adoptive admissions in evidence does not implicate the Sixth
Amendment. (Id. at pp. 842-843 italics added.) We disapprove People v.
Jennings, supra, 112 Cal.App.4th 459, to the extent it is inconsistent with Combs
or our decision in the present case. (Accord, Castille, supra, 129 Cal.App.4th at
p. 880 [opining that Combs cast doubt upon the continued viability of Jennings on
this question].)
55
punched, kicked, pushed, and knocked down Arthur; that defendant burned
Arthur‟s hand by holding it over the stove; that Michelle was not responsible for
Arthur‟s death; and that defendant told Michelle he was not going to put Arthur on
their medical insurance policy, because Arthur was not going to “be around long
enough.” In many instances, later during the course of the interview and in
response to the detectives‟ questioning or other statements made by Michelle,
defendant affirmatively admitted the substance of many of these statements, thus
expressly adopting them as his own.
The third and smallest category are statements made by Michelle during the
joint interview that defendant initially denied at the time the statements were
made. An examination of the entire interview reveals, however, that when the
same or similar statements were repeated later on during the interview, defendant
admitted the substance of these statements as well. Although, for obvious reasons,
a statement that is expressly denied by a defendant does not qualify as an adoptive
admission, we conclude that any error from the admission of such statements in
this case was harmless beyond a reasonable doubt, because these statements were
consistent with, and cumulative to, other admissions made by defendant during the
course of the interview, and thus could not have damaged defendant‟s case more
than his own admissions. (Accord, People v. Davis (2009) 46 Cal.4th 539, 620
[even assuming there was a Crawford violation in allowing the prosecution to
introduce hearsay statements describing defendant‟s involvement in previous
robberies, any error was harmless beyond a reasonable doubt, because the
prosecution also introduced defendant‟s admissions to the commisson of each of
the robberies].) For example, Michelle repeatedly accused defendant of having
lied to the detectives in his separate interview about things she was supposed to
have said or done, and pleaded with defendant, “Please . . . don‟t drag me down.”
Defendant at first responded, “I‟m not trying to drag anybody down,” but during
56
the course of the interview admitted to having lied to the detectives in several
instances about Michelle‟s involvement in the abuse suffered by Arthur, in his
death, and in the efforts to conceal his death. Defendant also initially denied
threatening to harm Michelle or Pearl in the event Michelle ever told anyone what
had happened to Arthur or did not go along with the efforts to conceal Arthur‟s
death, but defendant later conceded, among other things, that “I told her that I‟d
beat her ass up and I told her not only that, but if we didn‟t do what we needed to
do, we were gonna lose Pearl . . . .”
Defendant alternatively argues that Michelle‟s statements cannot constitute
adoptive admissions, because defendant‟s conduct at most demonstrates that he
was taking the blame for Arthur‟s death in order to spare Michelle. In this respect,
we agree with the People that defendant benefited from the jury‟s having seen the
entire interview. If the jury had heard only defendant‟s admissions, it would not
have witnessed Michelle‟s behavior and her efforts to have defendant minimize
her role in Arthur‟s abuse and death and in the efforts to conceal his death.
3. Admission of out-of-court statements made by Mary Dobson
Defendant asserts a due process violation occurred based upon the allegedly
unfair impact of Kaser-Boyd‟s testimony concerning an out-of-court statement
made by Mary Dobson, a neighbor of the Jenningses‟, to investigators. This
statement related Dobson‟s view “that Martin Jennings controlled Michelle
Jennings.” Defense counsel‟s objection to the admission of this evidence on the
basis of the Sixth Amendment confrontation clause of the United States
Constitution was overruled. Defendant claims the trial court erred prejudicially,
because Dobson‟s secondhand or thirdhand hearsay was contrary to other evidence
that suggested Michelle dominated defendant. We conclude any claimed error
was harmless beyond a reasonable doubt. Dobson‟s statement was cumulative to,
57
and consistent with, admissions made by defendant during the joint interview,
from which a reasonable jury could have concluded that defendant controlled
Michelle. For example, defendant admitted that he physically threatened Michelle
and had threatened to kill her in the past if she ever did anything that sent him to
jail, that he manipulated Michelle with love as well as with fear and intimidation,
that he was afraid that without having Michelle “under [his] thumb or without
intimidating her or putting fear in her . . . she would tell on [him],” and that he was
abusive toward Michelle and coerced her into going along with his actions. The
single statement attributed to Dobson could not have damaged defendant‟s case
more than his own admissions.
4. Alleged instructional errors
a) Failure to instruct the jury concerning accessory liability
pursuant to a modified version of CALJIC No. 6.40
Defendant claims the trial court erred in failing to instruct the jury on its
own motion concerning accessory liability pursuant to a modified version of
CALJIC No. 6.40.18 He concedes there might have been “some” evidence
18
Section 32, which defines the crime of being an accessory to a felony,
provides: “Every person who, after a felony has been committed, harbors,
conceals or aids a principal in such felony, with the intent that said principal may
avoid or escape from arrest, trial, conviction or punishment, having knowledge
that said principal has committed such felony or has been charged with such
felony or convicted thereof, is an accessory to such felony.” Prior to the 2005
adoption of the CALCRIM instructions, CALJIC No. 6.40 was the recommended
instruction for cases in which a defendant was charged under section 32. The
instruction provides: “Defendant is accused [in Count[s] _______ ] of having
committed the crime of being an accessory to a felony in violation of section 32 of
the Penal Code. [¶] Every person who, after a felony has been committed,
harbors, conceals, or aids a principal in that felony, with the specific intent that the
principal may avoid or escape from arrest, trial, conviction or punishment, having
knowledge that the principal has committed that felony or has been charged with
that felony or convicted thereof, is guilty of the crime of accessory to a felony in
(Footnote continued on next page)
58
suggesting that defendant‟s conduct in aiding and abetting occurred either before
and during the commission of the murder, or after it, or both, but asserts there was
“good reason” for the jury to conclude that defendant did not aid and abet in the
act that directly caused Arthur‟s death. He argues that the trial court therefore had
a duty to instruct on its own motion concerning accessory liability, as a general
principle of law relevant to the issues, so the jury could have the option of
convicting defendant only of the crime of being an accessory after the fact.
Defendant contends the failure to give this instruction is reversible error that
further violated his constitutional right to due process guaranteed under the Fifth
and Fourteenth Amendments of the United States Constitution. We conclude this
claim is without merit.19
Defendant is correct in observing that “the trial court normally must, even
in the absence of a request, instruct on general principles of law that are closely
(Footnote continued from previous page)
violation of Penal Code section 32. [¶] In order to prove this crime, each of the
following elements must be proved: [¶] 1. A felony, namely, ______________
was committed; [¶] 2. Defendant harbored, concealed or aided a principal in that
felony with the specific intent that the principal avoid or escape [arrest] [trial]
[conviction or punishment]; and [¶] 3. Defendant did so with knowledge that the
principal [committed the felony] [was charged with having committed the felony]
[was convicted of having committed the felony].”
19
Defendant acknowledges that his trial counsel did not request a jury
instruction concerning accessory liability. Anticipating that we might find this
claim of error to have been forfeited, defendant argues that the failure to request
an accessory-liability instruction constituted ineffective assistance of counsel. We
need not address defendant‟s ineffective-assistance-of-counsel claim, in light of
our conclusion that the trial court was not required to give a jury instruction
concerning accessory liability. (Accord, People v. Kraft (2000) 23 Cal.4th 978,
1065 (Kraft) [because trial court correctly declined to instruct on accessory
liability, defendant‟s related claim of ineffective assistance of counsel also must
fail].)
59
and openly connected to the facts and that are necessary for the jury‟s
understanding of the case.” (People v. Carter, supra, 30 Cal.4th at p. 1219.) The
obligation to instruct includes giving instructions on lesser included offenses when
warranted by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142,
162.) “Under California law, a lesser offense is included in a greater offense if
either the statutory elements of the greater offense, or the facts actually alleged in
the accusatory pleading, include all the elements of the lesser offense, such that
the greater cannot be committed without also committing the lesser.” (People v.
Birks (1998) 19 Cal.4th 108, 117 (Birks).)
To the extent defendant claims the trial court had a duty to instruct the jury
on its own motion concerning the crime of being an accessory after the fact as a
lesser included offense of murder, however, his claim necessarily fails. It is well
settled that “ „murder can be committed without the murderer being an accessory
after the fact,‟ ” and “ „[t]he latter offense, therefore, is not necessarily included in
the former.‟ [Citations.]” (People v. Majors (1998) 18 Cal.4th 385, 408.)
To the extent defendant contends the accessory instruction was required
because the crime of being an accessory after the fact is a lesser related offense of
murder, his claim fails as well. A defendant has no right to instructions on lesser
related offenses, even if he or she requests the instruction and it would have been
supported by substantial evidence, because California law does not permit a court
to instruct concerning an uncharged lesser related crime unless agreed to by both
parties. (Kraft, supra, 23 Cal.4th at pp. 1064-1065; Birks, supra, 19 Cal.4th at
pp. 136-137.) Therefore, the trial court was not required to instruct the jury on its
own motion concerning the lesser related offense of being an accessory after the
fact, whether or not there was substantial evidence supporting a theory of
accessory liability.
60
To the extent defendant argues the trial court should have given an
accessory instruction on the theory that being an accessory after the fact is a
defense to the prosecution‟s theory that defendant aided and abetted Michelle in
murdering Arthur, his argument still fails. Being an accessory to murder is not a
defense to aiding and abetting the commission of murder — it is a separate
criminal offense. (See § 32; cf. People v. Valentine (2006) 143 Cal.App.4th 1383,
1388 [“the offense of receiving stolen property is not a defense to robbery; rather,
it is a theory of criminal liability based on a different offense”].) A defendant can
be convicted of both murder and being an accessory to murder if the defendant
aids the principal both before and during, as well as after, the murder is
committed. (E.g., People v. Riley (1993) 20 Cal.App.4th 1808, 1815 [“The
conviction of accessory is based on defendant‟s act, the following day, of
attempting to dispose of the gun.”]; People v. Mouton (1993) 15 Cal.App.4th
1313, 1324-1325 [“defendant‟s responsibility both as an accomplice to the murder
and for the separate and distinct crime of acting as an accessory to a felony was
neither logically inconsistent nor legally prohibited,” because “in substance he was
convicted for two different sets of actions”]; see also People v. Wallin (1948) 32
Cal.2d 803, 806-807 [actual killer also could be liable as accessory on theory that,
after completion of the murder, she encouraged another to help her avoid arrest].)
b) Instruction pursuant to CALJIC No. 3.41 concerning
concurrent causation, and failure to instruct pursuant to
CALJIC No. 3.40 concerning “but for” causation
Defendant argues that the trial court failed to instruct the jury properly
concerning causation, and that this failure requires reversal. Defendant further
contends the jury instructions concerning causation violated his rights under the
Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. We
conclude this claim is without merit. As demonstrated below, the instructions
61
given in this case correctly stated the law pertaining to causation, were responsive
to the evidence, and fully equipped the jury to address the issues presented.
Over defense objection, the trial court instructed the jury concerning
concurrent causation pursuant to CALJIC No. 3.41, as follows: “There may be
more than one cause of the death. When the conduct of two or more persons
contributes concurrently as a cause of the death, the conduct of each is a cause of
the death if that conduct was also a substantial factor contributing to the result. A
cause is concurrent if it was operative at the moment of the death and acted with
another cause to produce the death. [¶] If you find that the defendant‟s conduct
was a cause of death to another person, then it is no defense that the conduct of
some other person contributed to the death.”
Defendant argues this instruction incorrectly stated the law concerning
causation because it informed the jury that if the torture that defendant committed
merely was “operative at the moment of” Arthur‟s death, he was guilty of first
degree murder even if the torture did not cause the death. The challenged
instruction, however, “is not reasonably susceptible to defendant‟s interpretation.”
(People v. Jackson (1996) 13 Cal.4th 1164, 1221-1222, fn. 11.) CALJIC No. 3.41
informed the jury (1) that “[t]here may be more than one cause of the death,”
(2) that “[w]hen the conduct of two or more persons contributes concurrently as
the cause of the death, the conduct of each is a [proximate] cause of the death if
that conduct was also a substantial factor contributing to the result” (italics
added), and (3) that a “cause is concurrent if it was operative at the time of the
death and acted with another cause to produce the death.” This instruction did not
allow the jury to convict defendant of first degree murder solely on the basis that
the torture committed by defendant was “operative at the moment of” Arthur‟s
death. Rather, it required the jury to find that the torture committed by defendant
also was a “substantial factor contributing to” Arthur‟s death. Accordingly, there
62
is “no reasonable likelihood” that the jury understood the instruction in the manner
asserted by defendant. (People v. Cain (1995) 10 Cal.4th 1, 36; People v. Clair
(1992) 2 Cal.4th 629, 662-663.)
Moreover, instructing the jury pursuant to CALJIC No. 3.41 was
responsive to the evidence and to the arguments made at trial. A concurrent-cause
instruction is required when the evidence places at issue two or more causes of the
result of the crime. (People v. Bland (2002) 28 Cal.4th 313, 338 (Bland) [trial
court should have given an instruction such as CALJIC No. 3.41, because the
evidence suggested more than one cause of the harm].) As discussed above, the
facts established that both defendant and Michelle personally engaged in, as well
as aided and abetted, conduct that substantially contributed to Arthur‟s death.
Thus, as we have explained, there was sufficient evidence from which the jury
could have found, as the prosecutor expressly argued, that defendant‟s acts of
torture were a concurrent cause of Arthur‟s death.
Defendant alternatively contends that the trial court should have amplified
its concurrent causation instruction by defining “operative” and “substantial
factor” as those words are used in CALJIC No. 3.41. We disagree. “When a word
or phrase „ “is commonly understood by those familiar with the English language
and is not used in a technical sense peculiar to the law, the court is not required to
give an instruction as to its meaning in the absence of a request.” ‟ [Citations.]”
(People v. Estrada (1995) 11 Cal.4th 568, 574.) It is only when a word or phrase
has a “technical, legal meaning” that differs from its “nonlegal meaning” that the
trial court has a duty to clarify it for the jury. (Ibid.) Defendant proffers no
technical, legal definition for the words “operative” and “substantial factor,” nor
does he cite any authority for the proposition that those terms carry a meaning that
differs from their nonlegal meaning. We agree with the People that these words
have no special meaning in CALJIC No. 3.41 beyond the common meaning of the
63
terms themselves. (Compare Bland, supra, 28 Cal.4th at p. 335 [“proximate
cause” has a meaning peculiar to the law that a jury would have difficulty
understanding without guidance] with Estrada, supra, 11 Cal.4th at p. 578
[“reckless indifference to human life” does not have a technical meaning peculiar
to the law], People v. Raley, supra, 2 Cal.4th at p. 901 [there is no special legal
definition of “sadistic purpose”], and People v. Richie (1994) 28 Cal.App.4th
1347, 1360 [“willful” and “wanton” are not technical terms with a particular legal
meaning].) The trial court therefore had no duty to give, on its own motion,
instructional definitions for “operative” and “substantial factor.”
Finally, defendant argues the trial court should have instructed the jury
pursuant to CALJIC No. 3.40 concerning “but for” causation, in order to provide
the jurors with “more accurate information” about the decision they had to make.
CALJIC No. 3.40 provides in relevant part as follows: “[To constitute the crime
of ______ there must be in addition to the (result of the crime) an unlawful [act]
[or] [omission] which was a cause of that ______ (result of the crime).] [¶] The
criminal law has its own particular way of defining cause. A cause of the ______
(result of the crime) ______is an [act] [or] [omission] that sets in motion a chain
of events that produces as a direct, natural and probable consequence of the [act]
[or] [omission] the ______ (result of the crime) and without which the ______
(result of the crime) would not occur.”20 (Italics added.)
20
Defendant additionally claims that CALJIC No. 3.40 should have been
modified pursuant to People v. Cervantes (2001) 26 Cal.4th 860, in order to
instruct the jury with the “precise legal principles” describing the link between
defendant‟s act(s) and Arthur‟s death that was required in order to find defendant
guilty of the homicide. We previously have held, however, that CALJIC 3.40
correctly defines proximate causation. (Bland, supra, 28 Cal.4th at p. 338.)
Therefore, this component of defendant‟s claim also lacks merit.
64
We note that the jury was instructed pursuant to CALJIC No. 8.55, as
follows: “To constitute murder or manslaughter there must be, in addition to the
death of a human being, an unlawful act which was a cause of that death.”21
(Italics added.) This instruction is substantively identical to the first sentence of
CALJIC No. 3.40.
To the extent defendant argues that the jury additionally should have been
instructed pursuant to the second sentence in CALJIC No. 3.40, the failure to
request this instruction on causation forfeited any claimed error. “A party may not
complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 1024.)
This principle is demonstrated aptly by People v. Alvarez (1996) 14 Cal.4th 155, a
homicide case in which the defendant contended the trial court should have
clarified its instruction defining murder, by referring to and explaining proximate
cause. We concluded: “Had [defendant] desired such an amplification, he should
have requested it of the superior court. He made no request of this sort. . . .
Because defendant did not request amplification of the otherwise adequate
instructions below, he may not complain here. [Citation.]” (Id. at p. 222 (fn.
21
The jury also was instructed pursuant to CALJIC No. 8.58, concerning
unlawfully accelerating death, as follows: “If a person unlawfully inflicts a
physical injury upon another person and that injury is a cause of the latter‟s death,
that conduct constitutes an unlawful homicide even though the injury inflicted was
not the only cause of the death. Moreover, that conduct constitutes unlawful
homicide, even if: [¶] 1. The person injured had been already weakened by
disease, injury, physical condition or other cause; or [¶] 2. It is probable that a
person in sound physical condition injured in the same way would not have died
from the injury; or [¶] 3. It is probable that the injury only hastened the death of
the injured person; or [¶] 4. The injured person would have died soon thereafter
from another cause or other causes.”
65
omitted.).) As demonstrated above, the instructions on causation that were given
were legally correct and responsive to the evidence and counsel‟s arguments. The
burden thus was upon defendant to request a clarifying or amplifying instruction
concerning causation.22
Defendant contends the trial court had a duty to instruct the jury on its own
motion pursuant to the second sentence of CALJIC No. 3.40, as a general principle
of law relevant to the issues raised by the evidence in this case. We disagree. The
sentence instructs that a cause of death is an act that sets in motion a chain of
events that produces death as a natural and probable consequence of the act, and
without which death would not occur. (CALJIC No. 3.40.) This instruction is
required in cases in which one cause of death is alleged but the evidence suggests
that an independent supervening act, separate from the defendant‟s act, may have
brought about the death. (People v. Pock (1993) 19 Cal.App.4th 1263, 1276.) In
cases in which there may be concurrent causes of death, however, the substantial
factor test embodied by CALJIC No. 3.41 provides the accurate standard, because
22
The cases cited by defendant do not support his contention that CALJIC
No. 3.41 is a proper instruction only when given in conjunction with CALJIC No
3.40. In Bland, supra, 28 Cal.4th at pages 334-335, for example, we held that the
trial court had a duty to provide, on its own motion, a definitional instruction when
using the term “proximate causation” in instructing the jury concerning sentence
enhancements. In analyzing which proximate cause instruction should have been
given, we concluded that CALJIC Nos. 3.40 and 3.41 both correctly define
proximate causation and, because the evidence suggested more than one cause of
death, the trial court should have given an instruction similar to CALJIC No. 3.41
along with an instruction such as CALJIC No. 3.40. (Bland, supra, 28 Cal.4th at
pp. 335-338; see also People v. Autry (1995) 37 Cal.App.4th 351, 363 [there was
no merit to the claim that giving both CALJIC Nos. 3.40 and 3.41 in the same case
improperly lessened the prosecution‟s burden of proof].) This in no way implies
that a trial court instructing a jury pursuant to CALJIC No 3.41 always must give
CALJIC No 3.40 as well.
66
it avoids the possibility of jury confusion and prevents each defendant from
escaping responsibility when the conduct of one or more others would have been
sufficient to produce the same result. (Pock, supra, 19 Cal.App.4th at p. 1276.) In
Pock, for example, the Court of Appeal held that CALJIC No. 3.41 properly was
given and that the trial court was not required to give CALJIC No. 3.40 when the
causation issue was not whether an unforeseen supervening cause resulted in the
victim‟s death, but rather whether defendant‟s participation in the underlying
felony coupled with his shooting of the victim — whether fatal or not — operated
as a substantial factor in bringing about the victim‟s death. (Pock, supra,
19 Cal.App.4th at p. 1276.)23
In the present case, the prosecution argued that the torture inflicted by
defendant was an intentional, direct, substantial, and contributing cause of
Arthur‟s death. Defendant‟s main defenses were that he lacked the specific intent
to kill Arthur and that the drugs were the primary cause of death. The causation
issue, therefore, was not whether the torture committed by defendant set in motion
a chain of events that led to Arthur‟s death, or whether giving Arthur a fatal
combination of pills was a natural and probable consequence of the torture. The
causation issue was whether defendant‟s acts of torture, consisting of severe and
23
We similarly have observed that the equivalents of CALJIC No. 3.40 and
CALJIC No. 3.41 in the civil context, BAJI Nos. 3.75 and 3.76, “are alternative
instructions that should not jointly be given in a single lawsuit.” (Mitchell v.
Gonzales (1991) 54 Cal.3d 1041, 1049 [“ „but for‟ test contained in BAJI No. 3.75
should not be used when two „causes concur to bring about an event‟ ”; the
“ „proper rule‟ ” in concurrent independent cause situations is that “ „the
defendant‟s conduct is a cause of the event, because it is a material element and a
substantial factor in bringing it about,‟ ” as instructed in BAJI No. 3.76]; see also
Maupin v. Widling (1991) 192 Cal.App.3d 568, 575 [“the jury may have faced
more than the usual confusion over proximate cause, because it was instructed to
apply both the „but for‟ and the „substantial factor‟ tests”].)
67
chronic physical abuse coupled with deliberate and prolonged deprivation of
nourishment, were a concurrent cause of Arthur‟s death along with the drugs. The
evidence at trial thus necessitated instructing the jury pursuant to CALJIC
No. 3.41, and did not prompt a duty to instruct on the court‟s own motion pursuant
to CALJIC No. 3.40.
c) Failure to instruct concerning the “defense” of accident
pursuant to CALJIC No. 4.45, and concerning criminal
negligence pursuant to CALJIC No. 3.36
Defendant claims that the trial court committed reversible error by failing to
instruct the jury pursuant to CALJIC No. 4.45, concerning the “complete defense”
of accident, in violation his rights under the Fifth, Sixth, and Eighth Amendments
of the United States Constitution.24 He further asserts that CALJIC No. 3.36,
defining criminal negligence, should have been given along with CALJIC No.
4.45.
As the People observe, the trial court did instruct the jury concerning
criminal negligence, pursuant to CALJIC No. 3.36.25 The court also instructed the
24
CALJIC No. 4.45 provides: “When a person commits an act or makes an
omission through misfortune or by accident under circumstances that show [no]
[neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she]
does not thereby commit a crime.” The related instruction on excusable homicide,
CALJIC No. 5.00, more specifically provides: “The unintentional killing of a
human being is excusable and not unlawful when (1) committed by accident and
misfortune in the performance of a lawful act by lawful means and (2) where the
person causing the death acted with that care and caution which would be
exercised by an ordinarily careful and prudent individual under like
circumstances.”
25
The jury was instructed concerning criminal negligence pursuant to
CALJIC No. 3.36, as follows: “Criminal negligence means conduct which is more
than ordinary negligence. Ordinary negligence is the failure to exercise ordinary
or reasonable care. [¶] Criminal negligence refers to negligent acts which are
aggravated, reckless or flagrant and which are such a departure from what would
(Footnote continued on next page)
68
jury concerning involuntary manslaughter, pursuant to CALJIC No. 8.45.26
Therefore, contrary to defendant‟s claim, the jury in essence was instructed that if
it concluded Arthur‟s death was the product of gross or criminal negligence, a
culpable homicide occurred — but that such homicide would constitute
involuntary manslaughter.
With respect to CALJIC No. 4.45, although acknowledging that he did not
request this instruction, defendant contends the trial court had a duty to instruct on
its own motion concerning accident as an “affirmative defense.” (See People v.
Breverman, supra, 19 Cal.4th at p. 157 [discussing the limited duty of a trial court
to instruct on its motion concerning defenses].) A claim of accident in response to
(Footnote continued from previous page)
be the conduct of an ordinarily prudent, careful person under the same
circumstances as to be contrary to a proper regard for human life or to constitute
indifference to the consequences of those acts. The facts must be such that the
consequences of the negligent acts could reasonably have been foreseen, and it
must appear that the death was not the result of inattention, mistaken judgment or
misadventure but the natural and probable result of an aggravated, reckless or
flagrantly negligent act.”
26
The jury was instructed concerning involuntary manslaughter, pursuant to
CALJIC No. 8.45, as follows: “Every person who unlawfully kills a human being
without malice aforethought and without an intent to kill is guilty of the crime of
involuntary manslaughter . . . . [¶] A killing is unlawful within the meaning of
this instruction if it occurred: [¶] 1. During the commission of an unlawful act
not amounting to a felony which is dangerous to human life under the
circumstances of its commission; or, [¶] 2. In the commission of an act ordinarily
lawful which involves a high degree of risk of death or great bodily harm without
due caution and circumspection. [¶] An unlawful act not amounting to a felony
consists of a violation of corporal injury to a child, Penal Code Section 273(d). [¶]
The commission of an unlawful act without due caution and circumspection would
necessarily be an act that was dangerous to human life in its commission. [¶] In
order to prove this crime, each of the following elements must be proved: [¶]
1. A human being was killed; and, 2. The killing was unlawful.”
69
a charge of murder, however, is not an affirmative defense that can trigger a duty
to instruct on the court‟s own motion.
Generally, the claim that a homicide was committed through misfortune or
by accident “amounts to a claim that the defendant acted without forming the
mental state necessary to make his or her actions a crime.” (People v. Lara (1996)
44 Cal.App.4th 102, 110.) In People v. Saille (1991) 54 Cal.3d 1103 (Saille), we
held that evidence “proffered in an attempt to raise a doubt on an element of a
crime which the prosecution must prove beyond a reasonable doubt” may, but
only upon request, justify the giving of a pinpoint instruction that “does not
involve a „general principle of law‟ as that term is used in the cases that have
imposed a sua sponte duty of instruction on the trial court.” (Id. at p. 1120.)
“Such instructions relate particular facts to a legal issue in the case or „pinpoint‟
the crux of a defendant‟s case, such as mistaken identification or alibi. [Citation.]
They are required to be given upon request when there is evidence supportive of
the theory, but they are not required to be given sua sponte.” (Id. at p. 1119.)
In the present case, the claim that Arthur was killed by accident through an
overdose of sleeping pills amounts to a claim that defendant and Michelle lacked
the intent to kill necessary for first degree premeditated murder and the torture-
murder and murder-by-poison special circumstances. As such, instructing the jury
pursuant to CALJIC No. 4.45 would have constituted a pinpoint instruction
highlighting a defense theory that attempted to raise a doubt concerning an
element (intent) of a crime that the prosecution must prove beyond a reasonable
doubt. The burden therefore was upon defendant to request that the jury be
instructed pursuant to CALJIC No. 4.45, and his failure to do so forfeited any
claim of error in this regard. (See, e.g., Gutierrez, supra, 45 Cal.4th at p. 824 [the
court has no duty to give a pinpoint instruction on its own motion concerning third
party culpability to support a defense theory that such a party committed the
70
murder]; Saille, supra, 54 Cal.3d at p. 1120 [the court has no duty to give, on its
own motion, a voluntary-intoxication instruction relating the evidence of the
defendant‟s intoxication to an element of a crime, such as premeditation and
deliberation].)
d) Omission of the actus reus element, for torture-murder
special circumstance, from CALJIC No. 8.81.18
Defendant claims we must set aside the torture-murder special-
circumstance finding, because the trial court erred by deleting certain language
from CALJIC No. 8.81.18, thereby omitting the requirement that the jury find that
defendant did in fact inflict an act of torture upon Arthur. Although the
modification was agreed to by counsel and was recommended by the Use Note to
the instruction, it had the effect of eliminating an element of the special
circumstance. This omission, however, did not prejudice defendant.
The trial court instructed the jury concerning the elements of the special
circumstance of murder involving the infliction of torture, pursuant to a revised
version of CALJIC No. 8.81.18, as follows: “To find that the special circumstance
referred to in these instructions as murder involving infliction of torture is true,
each of the following facts must be proved: [¶] 1. The murder was intentional;
and [¶] 2. The defendant intended to inflict extreme cruel physical pain and
suffering upon a living human being for the purpose of persuasion, or for any
sadistic purpose. [¶] Awareness of pain by the deceased is not a necessary
element of torture.” Purposefully deleted from standard CALJIC No. 8.81.18 was
element No. 3 regarding proof of an act of torture, namely, the requirement that
71
“[t]he defendant did in fact inflict extreme cruel physical pain and suffering upon
a living human being no matter how long its duration.”27
This omission is directly attributable to the Use Note accompanying
CALJIC 8.81.18, which states: “Torture murders committed on or before June 5,
1990 will require proof and instruction on element number 3. However, for
crimes committed after that date, delete element number 3.” The Use Note, in
turn, appears to reflect a misunderstanding of the effect of Proposition 115, passed
by the voters on June 5, 1990, upon the torture-murder special-circumstance
statute.
The applicable statute provides that the special circumstance applies if
“[t]he murder was intentional and involved the infliction of torture.” (§ 190.2,
subd. (a)(18).) Prior to June 6, 1990, the statute further required “proof of the
infliction of extreme physical pain no matter how long its duration.” Proposition
115, however, eliminated this language. Thus, for all homicides committed after
June 6, 1990, there is no requirement under the torture-murder special
circumstance that the victim actually suffer pain. (See People v. Crittenden (1994)
9 Cal.4th 83, 140 & fn. 14.) Proposition 15 had no effect, however, upon the basic
actus reus required for the special circumstance — that the murder involve the
infliction of torture.28
27
Defense counsel acquiesced in the trial court‟s deletion of element number
three from CALJIC No.8.81.18. Because the alleged instructional error involves
the omission of an element of the special circumstance, however, an objection or
request for clarification is not a prerequisite to preserving the issue on appeal.
(People v. Catlin, supra, 26 Cal.4th at p. 149.)
28
This change in the law is accurately reflected in the CALCRIM instruction
concerning the torture-murder special circumstance, CALCRIM No. 733, which
provides in relevant part: “To prove that this special circumstance is true, the
People must prove that: [¶] 1. The defendant intended to kill _______<insert
(Footnote continued on next page)
72
Although the trial court erred in deleting the actus reus requirement from
the torture-murder special-circumstance instruction that it gave to the jury, we
conclude the omission was harmless beyond a reasonable doubt. (See People v.
Bolden (2002) 29 Cal.4th 515, 560 [failure to instruct on an essential element of a
special circumstance is subject to a harmless error analysis under Chapman, supra,
386 U.S. 18].) In light of defendant‟s admissions, the arguments of counsel, the
totality of the jury instructions, and the overwhelming evidence on this point, there
simply is no possibility that the jury‟s special circumstance finding was based on a
mere intent to torture unrealized by an act of torture.
“When an appellate court addresses a claim of jury misinstruction, it must
assess the instructions as a whole, viewing the challenged instruction in context
with other instructions, in order to determine if there was a reasonable likelihood
the jury applied the challenged instruction in an impermissible manner.
[Citations.]” (People v. Wilson (2008) 44 Cal.4th 758, 803-804.) In the present
case, the totality of the jury instructions clearly communicated that in order to find
the torture-murder special circumstance true, the jury had to find that the murder
involved an act or acts of torture. For example, the jury was instructed that the
information alleged that the “murder was intentional and involved the infliction of
(Footnote continued from previous page)
name of decedent>; [¶] 2. The defendant also intended to inflict extreme physical
pain and suffering on _______<insert name of decedent> while that person was
still alive; [¶] 3. The defendant intended to inflict such pain and suffering on
_______<insert name of decedent> for the calculated purpose of revenge,
extortion, persuasion, or any other sadistic reason; [¶] AND [¶] <Alternative A—
on or after June 6, 1990> [4. The defendant did an act involving the infliction of
extreme physical pain and suffering on _______<insert name of decedent>.] [¶]
<Alternative B—before June 6, 1990> [4 The defendant in fact inflicted extreme
physical pain on _______<insert name of decedent>.] [¶] There is no
requirement that the person killed be aware of the pain.”
73
torture within the meaning of Penal Code section 190.2, [subdivision] (a),
subparagraph (18).” (Italics added.) In an introductory instruction pertaining to
the special circumstances, the trial court stated: “If you find a defendant in this
case guilty of murder of the first degree, you must then determine if one or more
of the following circumstances are true or not true. And the special circumstances
are, one, that the defendant intentionally killed the victim by the administration of
poison, and then the other is the murder was intentional and involved the infliction
of torture.” The written version of CALJIC No. 8.81.18 given to the jury included
a caption, “Special Circumstances — Murder Involving: Infliction of Torture.”
The instructions concerning first degree murder by torture and the crime of torture
further confirmed an actus reus requirement. Pursuant to CALJIC No. 8.24, the
jury was instructed that in order to find murder by torture, it had to find, among
other things, “acts or actions taken by the perpetrator to inflict extreme and
prolonged pain.” Pursuant to CALJIC No. 9.90, the jury was instructed that
“[e]very person who, with the intent to cause cruel or extreme pain and suffering
for the purpose of persuasion, or for any sadistic purpose, inflicts great bodily
injury on the person of another is guilty of the crime of torture.” No reasonable
juror could have misunderstood these instructions to mean that a murder involving
the infliction of torture could lack an act or acts of torture.
Removing an element of the crime from the jury‟s consideration also will
be deemed harmless when the defendant concedes or admits that element. (People
v. Flood (1998) 18 Cal.4th 470, 504.) In the joint interview with the detectives,
defendant admitted having inflicted serious physical injuries upon Arthur on
several occasions. At trial, defense counsel did not attempt to argue to the jury
that Arthur had not been tortured and, in fact, in closing arguments candidly told
the jury that defendant was responsible for “horrible,” “awful,” “terrible, terrible
child abuse.” Rather, defendant defended against the torture-murder special
74
circumstance solely upon the basis that defendant did not intend to kill Arthur and
that the torture was not a concurrent cause of Arthur‟s death. Nor does defendant
suggest there existed any favorable evidence bearing upon the actus reus issue that
possibly could have resulted in a different outcome on the torture-murder special-
circumstance allegation. (See, e.g., Neder v. United States (1999) 527 U.S. 1, 15
[omission of the element of “materiality” did not warrant reversal where defendant
did not contest materiality at trial and did not suggest he would introduce any
evidence bearing upon the issue of materiality on retrial].) The record, moreover,
is replete with evidence of defendant‟s acts of torture, which included deliberately
starving Arthur to the point of emaciation at the same time as severely physically
abusing him and inflicting numerous painful injuries in the less-than-three-month
period that culminated in Arthur‟s death.
Finally, at no time was it suggested to the jury that the torture-murder
special circumstance could be established without first proving an act of torture.
To the contrary, the prosecutor‟s closing argument confirmed that the torture-
murder special circumstance required the infliction of an act or acts of torture: “If
you find a first degree murder, and only if you find a first degree murder, then you
look to the two special circumstances, and that‟s that the murder was intentional
and done with either poison or involved torture. And I say involved torture. It
doesn‟t imply torturous acts killed the child but they are a cause. . . . To find a
special circumstance true, you have to find there was an intent to kill coupled with
the poison or coupled with the torture. That‟s the difference.” (See People v.
Wade (1988) 44 Cal.3d 975, 994 [the jury was not misled by omission of the
intent-to-torture element in the torture-murder special-circumstance instruction, in
part because the prosecution specifically explained to the jury that the special
circumstance required an intent to kill].)
75
In light of these circumstances, we are satisfied beyond a reasonable doubt
that the trial court‟s error in omitting the actus reus requirement from the torture-
murder special-circumstance instruction did not contribute to the jury‟s true
finding on this issue. (People v. Mayfield, supra, 14 Cal.4th at p. 774 [“ „To say
that an error did not contribute to the verdict is . . . to find that error unimportant in
relation to everything else the jury considered on the issue in question, as revealed
in the record.‟ [Citation.]”].)
e)
Failure to give unanimity instruction for torture-murder
special circumstance
Defendant claims the trial court failed to instruct the jury that it had to find
unanimously beyond a reasonable doubt that defendant committed a particular act
or acts of torture with the requisite intent, in order to find the torture-murder
special circumstance true, and that this failure violated his federal constitutional
right to a jury trial on each element of the charge.29 In support of this argument,
defendant invokes Apprendi v. United States (2000) 530 U.S. 466 (Apprendi),
which held that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) This
claim is without merit.
29
Defendant does not identify the unanimity instruction that he asserts should
have been given. CALJIC No. 17.01, the standard CALJIC unanimity instruction,
provides in relevant part: “The defendant is accused of having committed the
crime of _____ [in Count ____]. The prosecution has introduced evidence for the
purpose of showing that there is more than one [act] . . . upon which a conviction
[on Count ____ ] may be based. Defendant may be found guilty if the proof
shows beyond a reasonable doubt that [he] . . . committed any one or more of the
[acts] . . . . However, in order to return a verdict of guilty [to Count ____ ], all
jurors must agree that [he] . . . committed the same [act] [or] . . . [acts] . . . . It is
not necessary that the particular [act] . . . agreed upon be stated in your verdict.”
76
As a general rule, when violation of a criminal statute is charged and the
evidence establishes several acts, any one of which could constitute the crime
charged, either the state must select the particular act upon which it relied for the
allegation of the information, or the jury must be instructed that it must agree
unanimously upon which act to base a verdict of guilty. (People v. Diedrich
(1982) 31 Cal.3d 263, 281.) There are, however, several exceptions to this rule.
For example, no unanimity instruction is required if the case falls within the
continuous-course-of-conduct exception, which arises “when the acts are so
closely connected in time as to form part of one transaction” (People v. Crandell
(1988) 46 Cal.3d 833, 875), or “when the statute contemplates a continuous course
of conduct or a series of acts over a period of time.” (People v. Thompson (1984)
160 Cal.App.3d 220, 224.) There also is no need for a unanimity instruction if the
defendant offers the same defense or defenses to the various acts constituting the
charged crime. (People v. Carrera (1989) 49 Cal.3d 291, 311-312.)
Even if we were to assume, without deciding, that the unanimity
requirement applies to special circumstance findings,30 the trial court still would
not have been required to give a unanimity instruction in the present case. The
prosecutor proceeded on a “course of conduct” theory, arguing that the cumulative
30
We previously have assumed, without deciding, that the unanimity
requirement applies to special circumstance findings. (See, e.g., People v. Davis
(2005) 36 Cal.4th 510, 563 [finding harmless beyond a reasonable doubt any
possible error in failing to instruct that the jury must agree unanimously upon a
theory of robbery with respect to the robbery-murder special circumstance];
People v. Sapp (2003) 31 Cal.4th 240, 283-285 [rejecting, on the particular facts, a
claim that the trial court was required to give a unanimity instruction as to the
financial-gain special circumstance]; People v. Mickle (1991) 54 Cal.3d 140, 178
[rejecting claim that unanimity instruction given on lewd and lascivious act special
circumstance allegation did not result in a valid unanimous verdict].)
77
effect of the torture that began in November 1995 and continued until Arthur
finally died in February 1996 was a concurrent cause of death. (See, e.g, People v.
Hamlin (2009) 170 Cal.App.4th 1412, 1429 [“Where (as here) torture is charged
and tried as a course of conduct crime, no single act in the perpetrator‟s course of
conduct may result in great bodily injury. But where the cumulative result of the
course of conduct is great bodily injury, and the requisite intent can be found, then
the crime of torture has been committed under the course of conduct exception to
the election/unanimity requirement.”].) In response, defendant consistently argued
that he lacked the specific intent to kill Arthur and that the drugs were the primary
cause of death. Therefore, the course-of-conduct exception to the unanimity
requirement would apply, as would the same-defense exception noted above.
Accordingly, defendant‟s claim of error fails.
5. Jury’s mid-deliberation question regarding torture
Defendant claims he was denied his constitutional and statutory right to be
present while the court and counsel discussed how to respond to the jury‟s guilt-
phase question as to whether starvation could “be construed as extreme physical
pain under the legal definition of torture.” As discussed below, because defendant
had no right to be present during these informal discussions, we conclude this
claim is without merit. Defendant further argues that the court substantively erred
in responding to the jury‟s question. We conclude defendant waived this claim by
consenting to the response given by the court to the inquiry. Even if the claim
were not waived, we would conclude it lacks merit.
a)
Factual background
After the jury had been deliberating for several days, it sent the following
question to the court: “Can starvation be construed as extreme physical pain under
[the] legal definition of torture?” The court and counsel discussed the matter in
78
chambers outside the presence of the two defendants. Subsequently, in open court
with the defendants present, the court read the response to which counsel and the
court had agreed: “Only if the required mental state for the lesser offense of
torture or the Special Circumstance — Murder Involving Infliction of Torture is
proved, see California Jury Instruction 9.90 and 8.81.18, then it is up to the jury
and each of you to decide whether or not starvation may constitute extreme
physical pain under the law.” All counsel confirmed that the response was
acceptable. The court then had the response typed and given to the jury.
Approximately one hour after the court sent its answer to the jury, the jury
alerted the court that it was unable to reach a verdict concerning the torture-
murder special circumstance with respect to Michelle. The jury then returned its
verdicts on the substantive crimes and the remaining special circumstance
allegations, including a true finding on the torture-murder special circumstance
with respect to defendant.
b)
Analysis
Defendant contends he was denied his constitutional and statutory right to
be present while the court and counsel discussed in chambers how to respond to
the jury‟s question. “Broadly stated, a criminal defendant has a right to be
personally present at certain pretrial proceedings and at trial under various
provisions of law, including the confrontation clause of the Sixth Amendment to
the United States Constitution, the due process clause of the Fourteenth
Amendment to the United States Constitution, section 15 of article I of the
California Constitution, and sections 977 and 1043. [Citation.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1230 (Cole); see, e.g., United States v. Gagnon (1985)
470 U.S. 522, 526; People v. Lucero (2000) 23 Cal.4th 692, 716 (Lucero); People
v. Jones (1991) 53 Cal.3d 1115, 1140-1141;.) “A defendant, however, does
79
not „have a right to be present at every hearing held in the course of a trial.‟
[Citation.]” (Lucero, supra, 23 Ca1.4th at p. 716.)
For example, under the Sixth Amendment, a criminal defendant has the
right to be personally present if his or her appearance is necessary to prevent
interference with the defendant‟s opportunity for effective cross-examination.
(Kentucky v. Stincer (1987) 482 U.S. 730, 740, 744, fn. 17; People v. Waidla
(2000) 22 Cal.4th 690, 741 (Waidla).) The right to be present arises under the
Fourteenth Amendment if the defendant finds himself or herself at a “stage . . .
that is critical to [the] outcome” and the defendant‟s “presence would contribute to
the fairness of the procedure.” (Stincer, supra, 482 U.S. at p. 745; see Waidla,
supra, 22 Ca1.4th at p. 742, quoting Stincer.)
Similarly, under the California Constitution, a defendant has no right to be
present at discussions that occur outside the jury‟s presence, whether in chambers
or at the bench, concerning questions of law or other matters that do not bear
“ „ “ „a reasonably substantial relation to the fullness of his opportunity to defend
against the charges.‟ ” ‟ ” (Cole, supra, 33 Cal.4th at p. 1231.) “Thus a defendant
may ordinarily be excluded from conferences on questions of law, even if those
questions are critical to the outcome of the case, because the defendant‟s presence
would not contribute to the fairness of the proceeding. Examples include the
exclusion of a defendant from a conference on the competency of child witnesses
[citation], a conference on whether to remove a juror [citation], and a conference
on jury instructions [citation].” (People v. Perry (2006) 38 Cal.4th 302, 312,
italics added.) Additionally, a defendant‟s statutory right pursuant to sections
97731 and 104332 to be personally present during certain proceedings does not
31
Section 977, subdivision (b )(1), provides in pertinent part: “In all cases in
which a felony is charged, the accused shall be present at the arraignment, at the
(Footnote continued on next page)
80
apply to such conferences, even absent a waiver, where the defendant has no such
right under the California Constitution. (Cole, supra, 33 Cal.4th at p. 1231;
People v. Bradford (1997) 15 Cal.4th 1229, 1357.) Finally, the burden is on the
defendant to demonstrate that his or her absence prejudiced the defense or denied
the defendant a fair trial. (Lucero, supra, 23 Cal.4th at p. 716; Bradford, supra, 15
Cal.4th at p. 1357.)
With these principles in mind, we conclude that defendant did not have a
constitutional or statutory right to be personally present during the in-chambers
discussion regarding how to respond to the jury‟s question concerning whether
“starvation [can] be construed as extreme physical pain under [the] legal definition
of torture.” (Italics added.) The formulation of an appropriate response to this
question was a legal matter, and, as noted, a defendant does not have the right to
be personally present during proceedings, held in-chambers and outside of the
jury‟s presence, concerning questions of law. (Waidla, supra, 22 Cal.4th at
p. 742.)
Fisher v. Roe (9th Cir. 2001) 263 F.3d 906, cited by defendant in support of
his claim, is inapposite. There, the United States Court of Appeals for the Ninth
Circuit granted a habeas corpus petition because neither the defendant nor his
counsel was present when the trial court responded to a jury request for a readback
(Footnote continued from previous page)
time of plea, during the preliminary hearing, during those portions of the trial
when evidence is taken before the trier of fact, and at the time of the imposition of
sentence. The accused shall be personally present at all other proceedings unless
he or she shall, with leave of court, execute in open court, a written waiver of his
or her right to be personally present . . . .”
32
Section 1043, subdivision (a), provides: “Except as otherwise
provided in this section, the defendant in a felony case shall be personally present
at the trial.”
81
of testimony. (Id. at p. 912; accord, Shields v. United States (1927) 273 U.S. 583,
584-585, 588-589 [defendant‟s right to be present was violated when court
responded to a jury question ex parte without defendant or counsel present].) In
contrast, in the present case, defense counsel participated in the in-chambers
discussion and was fully in a position to represent defendant‟s interests.
We additionally note that defendant‟s right to be present during the
discussion regarding the jury‟s question never was affirmatively asserted, nor was
any objection posed to his absence. “[T]he fact that counsel did not think
defendant‟s presence was necessary strongly indicates that [his] presence did not,
in fact, bear . . . a substantial relation” to the fullness of his opportunity to defend.
(People v. Cleveland (2004) 32 Cal.4th 704, 741.) Moreover, before any response
was provided to the jury, the jury‟s question and the proposed response were read
in open court with defendant present, thus affording defendant ample opportunity
to raise any issue or concern. (See Cole, supra, 33 Cal.4th at p. 1232 [“when
defendant arrived during the in-court hearing, the court summarized that it was
currently hearing a defense continuance motion” and “[p]resumably defendant
could have given the court or counsel any information he had at that time”].)
Defendant also claims the trial court‟s response to the jury‟s question was
erroneous, because starvation cannot constitute torture under section 190.2,
subdivision (a)(18), as a matter of law and even if it could, the court should have
instructed the jury that the prosecution had to prove beyond a reasonable doubt
that the acts of starvation were capable of causing extreme physical pain. Any
claim of error with respect to the trial court‟s response to the jury‟s question has
been waived, however, because defense counsel both participated in the
formulation of a response and affirmatively approved of the response ultimately
given. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [claim of error waived
when defendant both suggested and consented to the responses given by the court
82
to the jury‟s questions]; People v. Bohana (2000) 84 Cal.App.4th 360, 373
[same].) Even if the claim were not waived, we would conclude it is without
merit.
`
First, defendant argues that starvation cannot constitute torture as a matter
of law, because it involves the passive withholding of nourishment instead of the
affirmative infliction of external injury. In support of this argument, defendant
quotes from People v. Barrera (1993) 14 Cal.App.4th 1555, 1564 (Barrera),
which stated: “Torture combines a specific state of mind with a particular type of
violent conduct causing significant personal injury.” (Italics added.) The issue of
whether torture requires violent conduct inflicting external injury, however, never
was raised or considered in Barrera.33 “It is axiomatic that cases are not authority
for propositions not considered.” (People v. Gilbert (1969) 1 Cal.3d 475, 482,
fn. 7.) “The holding of a decision is limited by the facts of the case being decided,
notwithstanding the use of overly broad language by the court in stating the issue
before it or its holding or in its reasoning.” (McGee v. Superior Court (1985) 176
Cal.App.3d 221, 226.) In light of the failure of the Barrera opinion to discuss the
issue, it is doubtful that the court in that case intended to strictly require “a
33
Rather, the issue addressed by the court in Barrera was whether section
206, defining the crime of torture, was vague and overbroad. (Barrera, supra, 14
Cal.App.4th at pp. 1562-1564.) In rejecting this challenge, the Court of Appeal
concluded that section 206 embodied the long-standing, judicially recognized
meaning of torture set forth in People v. Tubby (1949) 34 Cal.2d 72: “Torture has
been defined as the „act or process of inflicting severe pain, especially as a
punishment in order to extort a confession, or in revenge.‟ [Citation.] . . .
„Implicit in that definition is the requirement of an intent to cause pain and
suffering in addition to death. That is, the killer is not satisfied with killing alone.
He wishes to punish, execute vengeance on, or extort something from his victim,
and in the course, or as the result of inflicting pain and suffering, the victim dies.
That intent may be manifested by the nature of the acts and circumstances
surrounding the homicide.‟ [Citation.]” (Id. at pp. 76-77.)
83
particular type of violent conduct” for the crime of torture, let alone for torture
murder or the torture-murder special circumstance. Nor has Barrera ever been
cited in a published opinion for this proposition.
By contrast, the argument now made by defendant was considered and
rejected in People v. Lewis (2004) 120 Cal.App.4th 882, 887-888 in an analogous
context. In that case, the People argued that “battery is not a lesser included
offense of torture because torture can be committed without touching, force, or
violence, which are required elements of battery. For example, torture exists not
only where there is direct infliction of injury, but also where injury results from
enforced deprivation, such as withholding food and water, causing starvation.”
(Id. at p. 887, italics added.) The court agreed: “The statutory definition of torture
does not require a direct use of touching, physical force, or violence, but instead is
satisfied if the defendant, directly or indirectly, inflicts great bodily injury on the
victim. Thus a defendant may commit torture without necessarily committing a
battery.” (Id. at p. 888, italics added.)
Second, defendant asserts that the act of starvation cannot constitute torture
as a matter of law, because it is incapable of causing extreme physical pain.34 To
34
In support of the argument that starvation is incapable of causing extreme
physical pain, defendant refers to certain medical research, accounts of wilderness
survival, accounts of war survival, and recorded observations of individuals
involved in hunger strikes. The studies and anecdotal evidence that defendant
cites, however, are not part of the record before us and were not offered into
evidence. Nor are these materials embraced by both parties as accurate, or as
something that we properly might judicially notice. Even assuming for purposes
of argument that we could take judicial notice of the existence, content, and
authenticity of these secondary materials, doing so would not establish the truth of
critical factual matters asserted therein. (See, e.g., Mangini v. R.J. Reynolds
Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064 [“ „[T]he taking of judicial notice
of the official acts of a governmental entity does not in and of itself require
acceptance of the truth of factual matters which might be deduced therefrom, since
(Footnote continued on next page)
84
the contrary, we believe the court and counsel properly concluded that whether the
starvation in this case constituted torture was not a legal determination to be made
by the court, but instead was a question of fact for the jury to decide. The jurors
were entitled to evaluate the evidence presented at trial in the context of their
general knowledge and experience to determine whether the prolonged and
purposeful deprivation of food and other nourishment, resulting in Arthur‟s losing
nearly half his body weight, was capable of causing extreme physical pain and
suffering. The evidence moreover established that Arthur suffered significant
physical injury as a result of the starvation — Dr. Sheridan testified that Arthur
had almost no fat beneath his skin, that his body was breaking down his muscles
for energy, and that he had acute pneumonia as a part of his overall failure to
thrive and the breakdown in his immune system from severe emaciation. The jury
reasonably could conclude from this evidence that, for purposes of the torture-
murder special circumstance, the starvation in this case involved the infliction of
“extreme physical pain and suffering.” (See also ante, pp. 23-27, 30-32 [rejecting
defendant‟s related claims that there was insufficient evidence to establish first
degree murder by torture and the torture-murder special circumstance].) We
further note that a torture victim need not have been subjectively aware of the pain
inflicted by the torturous acts, so long as the defendant intended to cause such
pain. (See Chatman, supra, 38 Cal.4th at p. 389; Elliot, supra, 37 Cal.4th at
pp. 466-467.) Here, defendant essentially admitted that he intended the deliberate
(Footnote continued from previous page)
in many instances what is being noticed, and thereby established, is no more than
the existence of such acts and not, without supporting evidence, what might
factually be associated with or flow therefrom.‟ ”].) In any event, in resolving this
issue we confine ourselves to the record on appeal.
85
act of starving Arthur to be painful, because defendant was using starvation as a
behavior-modification technique.
We further reject defendant‟s contention that the trial court was required, in
its response to the jury‟s question, to instruct the jury that the prosecution had to
prove beyond a reasonable doubt that the acts of starvation were capable of
causing extreme physical pain. The jury properly was instructed concerning the
prosecution‟s burden of proof pursuant to CALJIC No. 2.90 (Presumption of
Innocence—Reasonable Doubt—Burden of Proof )35 and CALJIC No. 8.80.1
(Special Circumstances—Introductory).36 The trial court was not required to
remind the jury of the prosecution‟s burden of proof in its response to the jury‟s
question, and this is particularly so in the absence of such a request from defense
counsel.
35
The trial court instructed the jury pursuant to CALJIC No. 2.90, as follows:
“A defendant in a criminal action is presumed to be innocent until the contrary is
proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily
shown, he or she is entitled to a verdict of not guilty. This presumption places
upon the People the burden of proving him or her guilty beyond a reasonable
doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible
doubt, because everything relating to human affairs is open to some possible or
imaginary doubt. It is that state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction of the truth of the charge.”
36
The trial court instructed the jury pursuant to CALJIC No. 8.80.1, in
pertinent part, as follows: “The People have the burden of proving the truth of the
special circumstances. If you have a reasonable doubt as to whether a special
circumstance is true, you must find it to be not true.”
86
B. Penalty Phase Issues
1. Intracase proportionality review.
Defendant argues that intracase proportionality review should result in the
reversal or modification of his judgment of death. This court conducts intracase
proportionality review to determine whether the penalty is disproportionate to the
defendant‟s personal culpability. (E.g., Riel, supra, 22 Cal.4th at p. 1223.) “To
determine whether a sentence is cruel or unusual as applied to a particular
defendant, a reviewing court must examine the circumstances of the offense,
including its motive, the extent of the defendant‟s involvement in the crime, the
manner in which the crime was committed, and the consequences of the
defendant‟s acts. The court must also consider the personal characteristics of the
defendant, including age, prior criminality, and mental capabilities. [Citation.]”
(People v. Hines (1997) 15 Cal.4th 997, 1078.) The disposition that a codefendant
received, however, is not a factor to be considered in that review. (Riel, supra, 22
Cal.4th at p. 1223.) “If the court concludes that the penalty imposed is „grossly
disproportionate to the defendant‟s individual culpability‟ [citation], or, stated
another way, that the punishment „ “ „shocks the conscience and offends
fundamental notions of human dignity‟ ” ‟ [citation], the court must invalidate the
sentence as unconstitutional.” (Hines, supra, 15 Cal.4th at p. 1078.)
Defendant‟s sentence of death in this case is not disproportionate to his
personal culpability in light of the evidence that defendant intended to kill Arthur
and that the torture inflicted by defendant on his five-year-old son — violently
abusing the child and systematically starving him to the point of emaciation —
was a concurrent cause of Arthur‟s death. The evidence refutes defendant‟s
contention that the death sentence is disproportionate.
87
2. Reduction of Sentence
Defendant argues that, under the authority of section 1181, subdivision 7,37
we should reduce his sentence to one of life imprisonment without the possibility
of parole. As we previously have held, however, section 1181 does not confer
upon this court the power to substitute its judgment as to choice of penalty for that
of the trier of fact. We thus may not reduce a capital defendant‟s sentence from
death to life imprisonment, unless that sentence is contrary to the law or to the
evidence, even if we were to disagree with the jury‟s penalty determination. (E.g.,
Hines, supra, 15 Cal.4th at pp. 1078-1080.) Rather, “[a]bsent prejudicial error or
legal insufficiency of evidence, this court must uphold the jury‟s verdict of death.”
(Id. at pp. 1080.)
3. Challenges to California’s Death Penalty Scheme
Defendant raises a number of challenges to the constitutionality of
California‟s death penalty scheme, based upon the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution. As defendant
acknowledges, we have considered and rejected these contentions in prior cases.
Defendant presents no persuasive reason in the present case to reconsider the
conclusions we previously reached. We therefore adhere to those decisions as
follows.
37
Section 1181, subdivision 7, provides: “[W]hen a verdict has been
rendered or a finding made against the defendant, the court may, upon his
application, grant a new trial . . . [¶] . . . [¶] [W]hen the verdict or finding is
contrary to law or evidence, but in any case wherein authority is vested by statute
in the trial court or jury to recommend or determine as a part of its verdict or
finding the punishment to be imposed, the court may modify such verdict or
finding by imposing the lesser punishment without granting or ordering a new
trial, and this power shall extend to any court to which the case may be
appealed[.]”
88
Capital punishment is not per se unconstitutional in all cases. (E.g., People
v. Moon (2005) 37 Cal.4th 1, 48 (Moon).) Nor does the death penalty constitute
cruel and unusual punishment in violation of the Eighth Amendment. (E.g.,
People v. Fairbank (1997) 16 Cal.4th 1223, 1255 (Fairbank).)
Defendant contends that the Hovey voir dire procedure (Hovey v. Superior
Court (1980) 28 Cal.3d 1), by which prospective jurors are asked individually
about their views concerning the death penalty and may be excused if they would
not vote to impose the death penalty under any circumstances, violated his rights
under the state and federal Constitutions to a fair and impartial jury and to a jury
reflecting a fair cross-section of the community. As a threshold matter, the People
argue this claim has been forfeited by defendant‟s failure to make a timely and
specific objection on this ground in the trial court.38 We agree. (People v. Gurule,
supra, 28 Cal.4th at p. 597.) Even if we were to assume defendant had preserved
this claim on appeal, it is without merit. (People v. Mills (2010) 48 Cal.4th 158,
171-173 [rejecting the identical claim].) It is well established that the death
qualification of a jury using the Hovey voir dire procedure, and the resulting
excusal of prospective jurors for cause based upon their views concerning the
38
Anticipating we would find this claim forfeited, defendant contends it is
still cognizable on appeal under the rubric of ineffective assistance of counsel
based upon his attorney‟s failure to object. As noted, defendant may not transform
a forfeited claim into a cognizable claim merely by asserting ineffective assistance
of counsel. (Riel, supra, 22 Cal.4th at pp. 1202-1203 [noting that a claim of
ineffective assistance of counsel is very different from a claim based upon the
underlying forfeited error].) In any event, “[w]e need not address this contention
because even assuming for argument that the [Hovey] issue is properly before us,
we find no error . . . .” (People v. Gurule (2002) 28 Cal.4th 557, 597, fn. omitted
(Gurule); see also Kraft, supra, 23 Cal. 4th p. 1065 [because trial court properly
declined to instruct on principles of aider-abettor and accessory liability,
defendant‟s related claim of ineffective assistance of counsel also must fail].)
89
death penalty, does not violate a defendant‟s right to a fair and impartial jury and
to a jury reflecting a fair cross-section of the community. (See, e.g., People v.
Jackson, supra, 13 Cal.4th at p. 1198 [“The exclusion of those categorically
opposed to the death penalty at the guilt phase of the trial does not offend either
the United States Constitution [citation] or the California Constitution
[citation].”].)
Section 190.2 is not impermissibly overbroad in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States Constitution.
Specifically, the various special circumstances are not so numerous as to fail to
perform the constitutionally required narrowing function, and the special
circumstances are not unduly expansive, either on their face or as interpreted by
this court. (E.g., People v. Jenkins (2000) 22 Cal.4th 900, 1050.) Nor did the
1978 death penalty law — enacted by the voters by way of initiative in November
1978 — have the intended or practical effect of making all murderers death
eligible. (E.g., People v. Gray (2005) 37 Cal.4th 168, 237, fn. 23.)
Section 190.3, factor (a), does not, on its face or as interpreted and applied,
permit arbitrary and capricious imposition of a sentence of death in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution. (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1066; see also
Tuilaepa v. California (1994) 512 U.S. 967, 976 [“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.”].) “Defendant‟s argument that a seemingly
inconsistent range of circumstances can be culled from death penalty decisions
proves too much. What this reflects is that each case is judged on its facts, each
defendant on the particulars of his offense. Contrary to defendant‟s position, a
statutory scheme would violate constitutional limits if it did not allow such
90
individualized assessment of the crimes but instead mandated death in specified
circumstances.” (People v. Brown (2004) 33 Cal.4th 382, 401 (Brown).)
Neither the federal nor the state Constitution requires that the penalty phase
jury make unanimous findings concerning the particular aggravating
circumstances, find all aggravating factors beyond a reasonable doubt, or find
beyond a reasonable doubt that the aggravating factors outweigh the mitigating
factors. (E.g., Fairbank, supra, 16 Cal.4th at p. 1255.) The United States
Supreme Court‟s recent decisions interpreting the Sixth Amendment‟s jury-trial
guarantee (see Cunningham v. California (2007) 549 U.S. 270; United States v.
Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v.
Arizona (2002) 536 U.S. 584; Apprendi, supra, 530 U.S. 466) do not alter these
conclusions. (E.g., People v. Bramit (2009) 46 Cal.4th 1221, 1249 & fn. 22.)
“The death penalty scheme is not unconstitutional because it fails to
allocate the burden of proof — or establish a standard of proof — for finding the
existence of an aggravating factor. [Citations.]” (People v. Friend (2009) 47
Cal.4th 1, 89.) “Unlike the guilt determination, „the sentencing function is
inherently moral and normative, not factual‟ [citation] and, hence, not susceptible
to a burden-of-proof quantification.” (People v. Hawthorne (1992) 4 Cal.4th 43,
79.) We additionally reject defendant‟s alternative argument that even if it is
permissible not to impose any burden of proof at the penalty phase of a capital
trial, it nevertheless was prejudicial error for the trial court to fail to instruct the
jury that neither party bears a burden of proof at that phase of the trial. “[E]xcept
for prior violent crimes evidence and prior felony convictions under section 190.3,
factors (b) and (c), the court need not instruct regarding a burden of proof, or
instruct that there is no burden of proof at the penalty phase. [Citations.]” (People
v. Cruz, supra, 44 Cal.4th at p. 681 (Cruz); see also Tuilaepa v. California, supra,
91
512 U.S. at p. 979 [jury “need not be instructed how to weigh any particular fact in
the capital sentencing decision”].)
Written or other specific findings by the jury regarding the aggravating
factors are not constitutionally required. (E.g., People v. Friend, supra, 47 Cal.4th
at p. 90.)
The use of adjectives such as “extreme” in section 190.3, factors (d)
and (g), or “substantial” in section 190.3, factor (g), do not serve as an improper
barrier to the consideration of mitigating evidence. (E.g., Cruz, supra, 44 Cal.4th
at p. 681.)
The trial court was not constitutionally required to instruct the jury as to
which of the listed sentencing factors are aggravating, which are mitigating, and
which could be either mitigating or aggravating, depending upon the jury‟s
appraisal of the evidence. (E.g., People v. Manriquez (2006) 37 Cal.4th 547, 590;
see also People v. Hillhouse (2002) 27 Cal.4th 469, 509 (Hillhouse) [“The
aggravating or mitigating nature of the factors is self-evident within the context of
each case.”].) Additionally, “the statutory instruction to the jury to consider
„whether or not‟ certain mitigating factors were present did not unconstitutionally
suggest that the absence of such factors amounted to aggravation. [Citation.]”
(People v. Whisenhunt (2008) 44 Cal.4th 174, 228.) Rather, we repeatedly have
held that “CALJIC No. 8.85 is both correct and adequate.” (People v. Valencia
(2008) 43 Cal.4th 268, 309.)
Because capital defendants are not similarly situated to noncapital
defendants, California‟s death penalty law does not deny capital defendants equal
protection by providing certain procedural protections to noncapital defendants but
not to capital defendants. (E.g., Cruz, supra, 44 Cal.4th at p. 681.)
We again reject the argument that California‟s death penalty scheme is
contrary to international norms of humanity and decency, and therefore violates
92
the Eighth and Fourteenth Amendments of the United States Constitution. (People
v. Avila (2009) 46 Cal.4th 680, 725.) “International law does not prohibit a
sentence of death rendered in accordance with with state and federal constitutional
and statutory requirements.” (Hillhouse, supra, 27 Cal.4th at p. 511.) Because we
conclude that defendant‟s sentence was rendered in accordance with those
requirements, we need not consider whether alleged violations of such
requirements also would violate international law. (Brown, supra, 33 Cal.4th at
pp. 403-404; People v. Bolden, supra, 29 Cal.4th at p. 567.) We also reject the
argument that the use of capital punishment “as regular punishment” violates
international norms of humanity and decency and hence violates the Eighth
Amendment of the United States Constitution. “California does not employ
capital punishment in such a manner. The death penalty is available only for the
crime of first degree murder, and only when a special circumstance is found true;
furthermore, administration of the penalty is governed by constitutional and
statutory provisions different from those applying to „regular punishment‟ for
felonies. [Citations.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 43-44.)
Prosecutorial discretion in deciding whether to seek the death penalty in a
particular case does not render the law unconstitutional. (People v. Kraft, supra,
23 Cal.4th at p. 1078.)
There is no constitutional requirement that California‟s death penalty
sentencing scheme provide for intercase proportionality review. (Moon, supra, 37
Cal.4th at p. 48; see also Pulley v. Harris, supra, 465 U.S. at pp. 50-51 [federal
Constitution does not require state courts to conduct intercase proportionality
review in the administration of the death penalty].)
Finally, we consistently have held that the delay between the time of
judgment and the time of any execution that might occur does not render the death
judgment unconstitutional. (E.g., People v. Lenart (2004) 32 Cal.4th 1107, 1131-
93
1132.) “The mere possibility defendant may someday no longer pose a threat to
society is an insufficient reason for this court to revisit its prior holding that delay
between sentencing and execution does not make a death sentence cruel and
unusual.” (Ibid.)
C. Asserted Substantial Cumulative Effect of Errors
Defendant contends the substantial cumulative effect of the asserted guilt
and penalty phase errors requires reversal of his conviction and death sentence,
even if none of the errors individually is prejudicial. Contrary to defendant‟s
contention, and as discussed above, this was not a close case concerning the issues
of whether defendant caused the death of his son, or whether the homicide was a
first degree murder or qualified for a special circumstance. We have found only a
few nonprejudicial errors, and no prejudice where error has been assumed in other
instances. In light of the extensive and overwhelming evidence of defendant‟s
guilt and the aggravating circumstances of his crime, we conclude that there was
no substantial error and that the cumulative effect of any possible errors does not
warrant reversal of the judgment. Contrary to defendant‟s assertion, the length of
the jury‟s deliberations during the guilt phase (seven days) and the penalty phase
(three days), and the circumstance that the jury requested that the testimony of
certain witnesses be read back to it during these deliberations, does not compel a
different conclusion.
94
III.
DISPOSITION
For the forgoing reasons, the judgment is affirmed in its entirety.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
95
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Jennings
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S081148
Date Filed: August 12, 2010
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: Rufus L. Yent
__________________________________________________________________________________
Attorneys for Appellant:
Gregory Marshall, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Kristine
A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Gregory Marshall
P.O. Box 995
Palo Cedro, CA 96073
(530) 549-4836
Kristine A. Gutierrez
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2028
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Docket Number: | Category: | Status: |
| Thu, 08/12/2010 | S081148 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Kristine A. Gutierrez, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Jennings, Martin Carl (Appellant) San Quentin State Prison Represented by Eric Stephen Multhaup Attorney at Law 20 Sunnyside Avenue, Suite A Mill Valley, CA |
| 3 | Jennings, Martin Carl (Appellant) San Quentin State Prison Represented by Gregory R. Marshall Attorney at Law P.O. Box 996 Palo Cedro, CA |
| Dockets | |
| Jul 22 1999 | Judgment of death |
| Aug 5 1999 | Filed certified copy of Judgment of Death Rendered 7/22/99 |
| Aug 5 1999 | Penal Code sections 190.6 et seq. apply to this case |
| Aug 13 1999 | Filed: appellant's application for appointment of counsel (IFP form). |
| Sep 27 1999 | Record certified for completeness |
| Mar 4 2004 | Counsel appointment order filed appointing Gregory Marshall to represent appellant for the direct appeal. |
| Mar 17 2004 | Received: notice from superior court that 11,919 pp. record was transmitted to appellant's counsel on 3-15-2004. |
| Mar 22 2004 | Date trial court delivered record to appellant's counsel (11,919 pp. record) (see Calif. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days.) (Note: the record was mailed on 3-15-2004.) |
| Mar 22 2004 | Appellant's opening brief letter sent, due: Nov. 2, 2004. |
| May 6 2004 | Counsel's status report received (confidential) from atty Marshall. |
| May 12 2004 | Compensation awarded counsel Atty Marshall |
| Jul 2 2004 | Counsel's status report received (confidential) from atty Marshall. |
| Jul 28 2004 | Compensation awarded counsel Atty Marshall |
| Sep 7 2004 | Counsel's status report received (confidential) from atty Marshall. |
| Oct 29 2004 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Nov 3 2004 | Extension of time granted to 1/3/2005 to file appellant's opening brief. |
| Nov 4 2004 | Counsel's status report received (confidential) from atty Marshall. |
| Dec 6 2004 | Counsel's status report received (confidential) from atty Marshall. |
| Jan 3 2005 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Jan 12 2005 | Filed: Supplemental declaration in support of application for extension of time to file appellant's opening brief. |
| Jan 13 2005 | Extension of time granted to 3/4/2005 to file appellant's opening brief. |
| Feb 3 2005 | Counsel's status report received (confidential) from atty Marshall. |
| Mar 3 2005 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Mar 4 2005 | Extension of time granted to 5-3-2005 to file AOB. |
| May 2 2005 | Counsel's status report received (confidential) from atty Marshall. |
| May 2 2005 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| May 3 2005 | Extension of time granted to 7/5/2005 to file appellant's opening brief. |
| Jun 30 2005 | Request for extension of time filed to file AOB. (5th request) |
| Jun 30 2005 | Counsel's status report received (confidential) from atty Marshall. |
| Jul 5 2005 | Extension of time granted to September 6, 2005 to file appellant's opening brief. |
| Jul 11 2005 | Counsel's status report received (confidential) (supplemental) from atty Marshall. |
| Jul 11 2005 | Received copy of appellant's record correction motion request for correction/augmentation of the record, filed in the superior court on 3-17-2005. (9 pp.) |
| Sep 1 2005 | Record certified for accuracy |
| Sep 6 2005 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Sep 6 2005 | Counsel's status report received (confidential) from atty Marshall. |
| Sep 13 2005 | Extension of time granted to 11/7/2005 to file appellant's opening brief. Extension is granted based upon counsel Gregory Marshall's representation that he anticipates filing that brief withing 60 days. After that date, no further extension will be granted. |
| Sep 22 2005 | Note: record arrived from superior court. |
| Nov 3 2005 | Received: Appellant's opening brief. (62732 words; 257 pp.) |
| Nov 8 2005 | Compensation awarded counsel Atty Marshall |
| May 3 2006 | Letter sent to: superior court advising clerk's "Master Index" index and sealed volume containing unredacted juror information being returned to correct deficiencies. Record to be corrected and returned on or May 22, 2006. |
| May 24 2006 | Record on appeal filed clerk's transcript 32 volumes (8038 pp.) and reporter's transcript 18 volumes (3805 pp.), including material under seal; ASCII disks. Clerk's transcript includes 6496 pp. of juror questionnaires. |
| May 24 2006 | Letter sent to: counsel advising record on appeal certified for accuracy filed this date. |
| May 24 2006 | Appellant's opening brief filed (62,732 words; 257 pp.) |
| May 24 2006 | Respondent's brief letter sent; due: October 6, 2006 |
| Aug 17 2006 | Compensation awarded counsel Atty Marshall |
| Sep 20 2006 | Compensation awarded counsel attorney Marshall. |
| Oct 4 2006 | Respondent's brief filed (29920 words; 97 pp.) |
| Oct 4 2006 | Note: appellant's reply brief due: December 4, 2006. (pursuant Calif. Rules of Court rule 36(c)(1)(D)) |
| Dec 4 2006 | Request for extension of time filed to file appellant's reply. (1st request) |
| Dec 8 2006 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief is extended to and including February 2, 2007. |
| Feb 2 2007 | Note: received appellant's reply brief. (note: not filed) |
| May 17 2007 | Compensation awarded counsel Atty Multhaup |
| Jun 18 2007 | Filed: appellant's request to file supplemental opening brief. (brief submitted under separate cover) |
| Jun 22 2007 | Order filed The application of appellant for permission to file a supplemental opening brief is granted. Any response must be served and filed on or before July 23, 2007. Any reply must be served and filed within 20 days of the service and filing of the response. |
| Jun 22 2007 | Supplemental brief filed appellant's supplemental opening brief. (8,811 words; 42 pp.) |
| Jun 29 2007 | Filed: Errata letter in appellant's supplemental brief dated June 26, 2007. |
| Jul 12 2007 | Appellant's reply brief filed (13,417 words; 62 pp.) |
| Jul 12 2007 | Note: letter sent to counsel advising that reply brief was filed this date. |
| Jul 13 2007 | Received: respondent's application for extension of time to file respondent's supplemental brief. (not filed; declaration does not state where executed. Counsel to submit amended request for filing.) |
| Jul 18 2007 | Request for extension of time filed to file supplemental respondent's brief (amended application) (1st request) |
| Jul 20 2007 | Extension of time granted Good cause appearing, and based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing the supplemental respondent's brief by August 22, 2007, counsel's request for an extension of time in which to file that brief is granted to August 22, 2007. After that date, no further extension is contemplated. |
| Aug 16 2007 | Request for extension of time filed to file respondent's supplemental brief. (2nd request) |
| Aug 23 2007 | Extension of time granted Good cause appearing, and based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing the respondent's supplemental brief by September 21, 2007, counsel's request for an extension of time in which to file that brief is granted to September 21, 2007. After that date, no further extension is contemplated. |
| Sep 21 2007 | Supplemental brief filed by respondent. (6,010 words, 21 pp) |
| Oct 9 2007 | Request for extension of time filed to file supplemental reply to respondent's supplemental brief. (1st request) |
| Oct 11 2007 | Extension of time granted Good cause appearing, and based upon counsel Gregory Marshall's representation that he anticipates filing the supplemental reply brief by October 31, 2007, counsel's request for an extension of time in which to file that brief is granted to October 31, 2007. After that date, no further extension is contemplated. |
| Nov 5 2007 | Application to file over-length brief filed "Appellant's Request to File Supplemental Reply Brief Exceeding Page Length Limitation" |
| Nov 15 2007 | Order filed "Appellant's Request to File Supplemental Reply Brief Exceeding Page Length Limitation" is granted. |
| Nov 15 2007 | Supplemental reply brief filed (AA) by appellant. (6,008 words; 27pp) |
| Nov 28 2007 | Compensation awarded counsel Atty Marshall |
| Jan 20 2009 | Change of contact information filed for: attorney Eric S. Multhaup. |
| Mar 16 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the first May calendar, to be held the week of May 3, 2010, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Apr 8 2010 | Exhibit(s) lodged People's exhibits, nos. 132, 133 and 136. |
| May 5 2010 | Case ordered on calendar to be argued Wednesday, May 26, 2010, at 1:30 p.m., in San Francisco |
| May 11 2010 | Received: appearance sheet from Deputy Attorney General Kristine A. Gutierrez, indicating 30 minutes for oral argument for respondent. |
| May 13 2010 | Filed: respondent's focus issues letter, dated May 11, 2010. |
| May 14 2010 | Stipulation filed Stipulation by counsel Kristine A. Gutierrez, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 17 2010 | Filed: Request to divide oral argument time, filed by Gregory Marshall, counsel for appellant, requesting to split time with assisting attorney Eric Multhaup. |
| May 18 2010 | Received: respondent's additional authorities letter, dated May 17, 2010. |
| May 20 2010 | Order filed The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to Gregory R. Marshall 15 minutes and Eric Stephen Multhaup 15 minutes of appellant's 30-minute allotted time for oral argument is granted. |
| May 20 2010 | Stipulation filed Stipulation by counsel Gregory Marshall, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 20 2010 | Filed: appellant's focus issues letter, dated May 17, 2010. |
| May 24 2010 | Received: appellant's additional authorities letter, dated May 24, 2010. |
| May 26 2010 | Stipulation filed Stipulation by counsel Gregory Marshall, that appellant has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 26 2010 | Stipulation filed Stipulation by counsel Kristine A. Gutierrez, that respondent has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 26 2010 | Cause argued and submitted |
| Jun 9 2010 | Compensation awarded counsel Atty Marshall |
| Jun 9 2010 | Compensation awarded counsel Atty Multhaup |
| Aug 11 2010 | Notice of forthcoming opinion posted To be filed Thursday, August 12, 2010 at 10 a.m. |
| Briefs | |
| May 24 2006 | Appellant's opening brief filed |
| Oct 4 2006 | Respondent's brief filed |
| Jul 12 2007 | Appellant's reply brief filed |
