Filed 3/17/03
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S046117
v.
ERNEST DWAYNE JONES,
Los Angeles County
Defendant and Appellant. )
Super.Ct.No.
BA063825
A jury convicted defendant Ernest Dwayne Jones of the first degree murder
(Pen. Code,1 §§ 187, 189) and rape (§ 261) of Julia Miller, and it found true the
special circumstance allegation that the murder was committed in the commission
of the rape. The jury found that defendant was not guilty of burglary (§ 459) or
robbery (§ 211) of Mrs. Miller, and it found not true the special circumstance
allegations that the murder of Mrs. Miller was committed in the commission of
burglary or robbery. Finally, the jury found true the allegations that defendant
personally used a deadly weapon, i.e., a knife, to commit the crimes (§ 12022,
subd. (b)) and that he had served a prior prison term (§ 667.5). The jury set the
penalty at death. The trial court denied defendant’s motion for a new trial (§ 1179
1
All further statutory references are to the Penal Code unless otherwise
designated.
1
et seq.) and his motion for modification of the sentence (§ 190.4, subd. (e)). This
appeal is automatic. (§ 1239.)
We conclude the judgment should be affirmed in its entirety.
I. FACTS
A. Guilt Phase
1. The People’s Case
Shortly after midnight on August 25, 1992, in Los Angeles, Chester Miller
returned home from work and noticed the family station wagon was missing from
the driveway. Mr. Miller went into his house and found his wife, Julia, lying dead
at the foot of their bed. Mrs. Miller’s robe was open, her nightgown was bunched
above her waist, and she was naked from the waist down. A telephone cord and a
purse strap had been used to tie Mrs. Miller’s arms over her head, and a nightgown
had been used to loosely tie her ankles together. Mrs. Miller had been gagged
with two rags, one in her mouth and another around her face. Two kitchen knives
were sticking out of her neck. Pieces of three other knives were found on or
around her body.
Defendant and the Millers’ daughter, Pam, lived together in an apartment
about two and one-half miles from the Millers. Around 6:00 p.m. on the previous
day, August 24, 1992, Pam had been on the phone with her mother. Defendant
had interrupted Pam to ask her whether her parents were at home. Pam told
defendant that her father was at work, but that her mother was home.
Around 7:40 p.m. the same evening, defendant left the apartment. Pam
later noticed defendant had apparently switched off the ringer on their phone,
something he had never done before. At 9:30 p.m., defendant returned to the
apartment, smoked a joint of marijuana and cocaine, and then left again at 10:00
p.m. He had again switched off the phone ringer. Defendant returned in 20
minutes and rolled some more “joints.”
2
Pam always slept with the television on, but this night defendant told her to
turn it off because he had things on his mind. Around midnight she woke up and
saw defendant looking out the window. At some point in the evening he had
changed clothes. At 1:00 a.m., their doorbell rang. Defendant told Pam not to
answer it. Hearing her name called, Pam looked out of the bedroom window and
saw her grandmother, who told her to open the apartment door. When defendant
did so, Pam’s grandfather said her mother had been killed. Pam repeatedly asked
defendant to accompany her to her grandparents’ house, but defendant refused,
saying he would come when he got his sister’s car.
When Pam arrived at her grandparents’ house, she called her friend
Shamaine Love. Pam told Love that Mrs. Miller had been killed. Love, a
childhood friend of Pam’s, as well as a drug dealer who regularly sold cocaine to
her and to defendant, lived near Mr. and Mrs. Miller. Love told Pam that several
times during the day Mrs. Miller had been murdered defendant had been to Love’s
house to buy drugs from her. Two of defendant’s trips to Love’s house were in
the afternoon; on both occasions he paid for the drugs in cash. Shortly after
sunset, which would have been sometime between 7:30 and 7:55 p.m., defendant
had again visited Love, this time paying for cocaine and marijuana with a gold
chain. Later that night defendant again bought cocaine from Love, paying for it
with a pearl necklace, pearl earrings, and a pearl bracelet. Pam identified the pearl
jewelry, and later the gold chain, as Mrs. Miller’s. Pam took the pearl jewelry to
the Miller house and showed it to detectives there. Pam told the officers that she
knew who had killed her mother and that they should go to the apartment.
At 3:00 a.m., police officers staked out the Millers’ station wagon, which
they found parked around the corner from the apartment. Shortly thereafter
defendant got into the station wagon and drove away. The officers followed in
their marked patrol car. Defendant looked back in the officers’ direction, reached
3
into the back seat, and brought a rifle into the front seat. Defendant then sped up,
and the officers gave chase, their lights and sirens on. Defendant ran red lights
and stop signs. Other patrol cars joined in pursuit. Defendant hit a traffic island
and blew out the tires on the driver’s side of the station wagon. He continued
driving on the rims, however, and entered a freeway. First the wheels, and then
the rims on the station wagon disintegrated, forcing defendant to stop. The pursuit
lasted 40 minutes. Defendant was ordered out of the station wagon, but instead he
placed the rifle to his chest and shot himself. A subsequent search of the
apartment revealed that the front and back doors had been barricaded with
furniture.
The deputy medical examiner with the Los Angeles County Coroner’s
Office who performed the autopsy on Mrs. Miller’s body concluded, on the basis
of the following evidence, that she had been stabbed to death: Two knives were
sticking out of Mrs. Miller’s neck. She also had 14 stab wounds in her abdomen
and one in her vagina, but the fatal stab wound, which penetrated to the spine, was
the one in the middle of her chest. Aside from the stab wound, there was no
evidence of trauma to the vaginal region.
At the crime scene, a criminalist with the Los Angeles County Coroner’s
Office took swabs of Mrs. Miller’s vagina. Another criminalist found a great
abundance of intact spermatozoa on the vaginal swab, leading him to conclude
that ejaculation occurred no more than five to 10 hours before Mrs. Miller’s death.
A blood sample was taken from defendant. A molecular biologist for Cellmark
Diagnostics performed deoxyribonucleic acid (DNA) testing on the blood sample
taken from defendant and on the vaginal swabs taken from Mrs. Miller. This
testing yields banding patterns that are, with the exception of identical twins,
unique to every individual. There is only one chance in 78 million that a random
individual would have the same DNA banding pattern as defendant. The tests
4
showed that the banding pattern in the DNA from defendant’s blood sample
matched the banding pattern of the semen on the vaginal swab taken from Mrs.
Miller.
Defendant’s prior conviction for sexually assaulting
Dorothea
H.
Previously, defendant had lived with Glynnis H. and their infant son in a
garage behind the home of Glynnis’s mother, Dorothea H. (Mrs. H.). After
defendant and Glynnis broke up and Glynnis moved away, Mrs. H. told defendant
to move out of the garage. On March 29, 1985, around 6:30 a.m., Mrs. H. heard
the gate to her backyard rattle and then heard a window in the bedroom nearest the
garage, the bedroom Glynnis had used, break. Mrs. H. investigated and found
defendant standing in her hallway. Appearing desperate, defendant asked Mrs. H.
where Glynnis and the infant were. When he learned they were not there,
defendant, telling her not to scream, took Mrs. H. into her bedroom. Defendant
gagged Mrs. H. and bound her arms and legs. The binding permitted Mrs. H.’s
legs to be separated a bit. Defendant then raped and sodomized her.
After the assault, while defendant was resting on the bed, the doorbell rang.
After peeking outside, defendant untied Mrs. H., told her not to say anything, and
stood behind her as she opened the door. It was a delivery from the United Parcel
Service—a package from Glynnis containing a photograph of Glynnis, defendant
and their infant. When he saw the photograph, defendant began crying. He told
Mrs. H. he was not going to kill her because Mrs. H., who was a teacher, could
take care of the baby financially.
Defendant then took a knife from the kitchen drawer, placed it against his
stomach, and asked Mrs. H. to kill him. When Mrs. H. said she couldn’t, that it
would be against her religion, defendant bound her to her bed, took $40 dollars
from her purse, and asked her for her neighbor’s phone number, saying that after
5
he left he would call her neighbor. Defendant did so, and the neighbor released
Mrs. H.
As a result of this incident, defendant was convicted of first degree burglary
(§§ 459, 460, subd. (a)), residential robbery (former § 213.5, repealed by Stats.
1986, ch. 1428, § 5, p. 5124; see now § 213), assault with a deadly weapon (§ 245,
subd. (a)(1)), rape (§ 261, subd. (a)(2)), and sodomy (§ 286, subd. (c)(2)). In April
1986, defendant was sentenced to prison for 12 years, and he was paroled in 1991,
10 months before the murder of Mrs. Miller.
2. The Defense Case
Defendant testified as follows: Around 3:00 p.m. on the day he killed Mrs.
Miller, defendant, feeling depressed, bought rock cocaine and marijuana from
Shamaine Love, paying $20 in cash. He went to the apartment and smoked some
of the drugs, and not having used drugs for seven years, became very high and
paranoid. Pam came home to the apartment around 5:30 p.m. She was also high
on drugs. Giving defendant a gold chain, pearl necklace, pearl earrings, and a
pearl bracelet, Pam told defendant to use the jewelry to buy drugs from Shamaine
Love. Defendant had seen Pam with Mrs. Miller’s jewelry before, but he did not
recognize this jewelry as belonging to Mrs. Miller. After Pam spoke on the phone
with her mother, defendant took the bus to Shamaine Love’s house, arriving
around 7:30 p.m., and bought cocaine from her, paying $125 in cash plus the
jewelry.
After waiting at a bus stop for 30 or 40 minutes, defendant decided to walk
to the Millers’ nearby home and ask Mrs. Miller for a ride back to the apartment.
He did so for two reasons: He was feeling the effects of the drugs and liquor he
had consumed throughout the day, and Love had told him police were patrolling
the neighborhood. Mrs. Miller invited defendant into her house and agreed to give
him a ride to the apartment.
6
A few weeks earlier, defendant had broken his thumb in six places.
Defendant had previously given Mrs. Miller a more innocuous explanation—that
he had broken it in the course of horseplay with Pam—but now Mrs. Miller asked
him how he had really broken it. Defendant admitted that when Pam had come
home late one night, he had confronted her, she had walked away from him, and
he had grabbed at her waist and missed, jamming his thumb into the door frame.
Upon hearing this, Mrs. Miller became very angry. She told defendant she
would kill him if he hurt Pam, and that she would lie to his parole officer to get
him sent back to prison, a threat she had made on a previous occasion. Mrs.
Miller took a knife from the kitchen drawer. Defendant pushed her. “You
bastard,” Mrs. Miller said, “My husband don’t put his hands on me.” As Mrs.
Miller came at defendant with the knife, defendant responded by grabbing a knife
out of the kitchen drawer himself. Defendant told Mrs. Miller he did not want to
hurt her. Mrs. Miller swung at defendant with her knife, missing him. Defendant
swung back at her, cutting her arm. “Just wait until I get my gun,” Mrs. Miller
said, running to her bedroom. Defendant followed Mrs. Miller and as she was
taking a rifle out of the bedroom closet, defendant grabbed her from behind and
spun her around. Mrs. Miller lost her grip on the rifle and fell to the floor. As
defendant stood over her, Mrs. Miller said, “Give it to me.”
Defendant then “kind of slipped back into [his] childhood” and had a vision
of walking into a room where his mother was with a man “who wasn’t [his]
father.” He picked up a knife and began stabbing Mrs. Miller. The next thing
defendant knew he was curled up in a ball, crying, and Mrs. Miller was tied up on
the floor with knives sticking out of her neck. Defendant remembered nothing
after the first few stabs, but he admitted that he must have been the one who tied
Mrs. Miller up, sexually assaulted her, and killed her. He insisted he had not come
to the Miller house with the intention of robbing, raping, or killing Mrs. Miller.
7
After the killing, defendant “started experiencing things that [he] had not
experienced for a while.” He was “hearing . . . things in [his] head telling [him] to
do certain things. [He] guess[ed] you could call it paranoia, thinking someone was
coming to kill [him].” He grabbed a second rifle and bullets from the bedroom
closet with the intention of taking his life. Defendant drove the Millers’ station
wagon to the apartment and parked around the corner, leaving the rifle in the
station wagon. He locked all the windows and doors in the apartment, believing
someone was coming to kill him, yet he went outside later to smoke some of the
drugs he had purchased from Shamaine Love. When Pam’s grandparents
informed her of Mrs. Miller’s death, and she left with them, defendant barricaded
the doors of the apartment.
When defendant left the apartment he intended to drive the station wagon
off a cliff and kill himself. Following the police chase, after the station wagon
was disabled, a voice inside his head said, “They’re going to kill you.” Defendant
then put the rifle to his chest and pulled the trigger. He was hospitalized for three
weeks, recovering from the wound, and for the first week he was unconscious and
on a respirator.
With regard to his prior conviction for sexually assaulting Mrs. H.,
defendant testified he was “not denying any of that.”
B. Penalty Phase
1. The People’s Case
Mr. and Mrs. Miller were married for 30 years, and he died eight months
after Mrs. Miller was murdered. In Pam’s opinion, Mr. Miller “grieved himself to
death.”
Gloria Hanks, defendant’s sister, testified that defendant told her he “didn’t
give a fuck about Pam or her family.”
8
During the entire year they lived together, defendant did not tell Pam he
heard voices; he did not, in Pam’s opinion, act like someone who was hearing
voices; and he did not display such behavior when he returned to the apartment
after killing Mrs. Miller.
The rape of Kim, J.
On May 28, 1984, Kim J. attended a barbecue party given by defendant’s
sister, Gloria Hanks. Kim and defendant smoked marijuana together at the party,
and then they went to Kim’s house and smoked some more. Kim considered
defendant to be like a brother. However, when she suggested it was time for him
to leave, defendant grabbed her by the throat, told her he would kill her if she
screamed, and then raped her at knifepoint. While defendant was attacking Kim
“he seemed to be in a trance. His eyes got big and glassy and his whole demeanor
changed. [¶] It was like he took on a new person, like he was in a trance, and then
afterwards, he seemed to snap back.” Defendant apologized and asked Kim
whether she was going to tell anyone. She said she would not, but later, urged by
her mother to do so, Kim called the police. She testified against defendant at a
preliminary hearing, but then dropped the charges because she had known
defendant “practically all of his life” and she was “best friends with two of his
sisters.” “[F]or whatever reason I was thinking he needs a second chance.”
2. The Defense Case
In the words of an aunt, defendant’s home life was a “living hell.”
Defendant’s father and mother were alcoholics. They also used marijuana in front
of their children. The father and mother had “pretty rough fights” with one
another, and on one occasion the mother stabbed the father in the hand. The
mother had numerous affairs. Once, the father caught the mother in bed with one
of the father’s friends, and defendant and his sister were in the bed at the time.
After that incident, the father began beating the mother and “stomped her in her
9
vagina.” When the father left the family, the mother and her boyfriend drank
heavily and often the family had no money for food. The mother beat the
children. “Whatever she had in her hands, she might hit them with it.” In
defendant’s presence, defendant’s mother told his father that defendant was not in
fact his child.
In the opinion of James Park, a corrections consultant and retired
Department of Corrections employee, defendant was likely to be a good prisoner
and unlikely to become involved in violence. Mr. Park based his opinion on the
following factors: Younger prisoners are more likely to be violent, and at 30,
defendant was older; during his previous eight-year prison term, defendant had
relatively few infractions, and only one for fighting; finally, defendant had
completed the requirements for a high school degree.
In the opinion of Dr. Claudewell S. Thomas, a psychiatrist appointed by the
court at the request of the defense, defendant suffered from schizoaffective
schizophrenia, a major psychiatric disorder. In reaching his diagnosis, Dr.
Caldwell interviewed defendant and reviewed various documents: A 1985 report
by a psychologist concluding that defendant’s mental processes were intact and he
was not psychotic; a 1985 report by a psychiatrist concluding defendant suffered
from a chronic underlying depressive mental illness exacerbated by alcohol and
drug abuse; a report by a psychologist who examined defendant in 1994
concluding that defendant was schizophrenic.
II. DISCUSSION
A. Pretrial Issues
1. Marsden Motion
Pursuant
to
People v. Marsden (1970) 2 Cal.3d 118 (Marsden), defendant
moved to have substitute trial counsel appointed. Defendant contends the trial
court failed to conduct an adequate inquiry into the grounds for the motion before
10
denying it. The court’s inquiry was adequate, and it did not abuse its discretion in
denying the motion.
In
Marsden, we said: “[A] judge who denies a motion for substitution of
attorneys solely on the basis of his courtroom observations, despite a defendant’s
offer to relate specific instances of misconduct, abuses the exercise of his
discretion to determine the competency of the attorney. A judicial decision made
without giving a party an opportunity to present argument or evidence in support
of his contention ‘is lacking in all the attributes of a judicial determination.’
(Spector v. Superior Court (1961) 55 Cal.2d 839, 843.)” (Marsden, supra, 2
Cal.3d at p. 124.)
A defendant is entitled to have appointed counsel discharged upon a
showing that counsel is not providing adequate representation or that counsel and
defendant have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result. (People v. Earp (1999) 20 Cal.4th
826, 876 (Earp); People v. Memro (1995) 11 Cal.4th 786, 857 (Memro).)
In this case, defendant interrupted pretrial proceedings to declare a conflict
of interest with counsel. The court construed defendant’s remarks as a Marsden
motion, and defendant was given an adequate opportunity, before the court ruled
on his motion, to explain why he was dissatisfied with his attorney.
Defendant stated the following grounds for the motion: (1) Defendant and
counsel were not “getting along”; (2) counsel did not visit defendant prior to an
earlier hearing in municipal court; (3) counsel did not do everything on the “long
list” of tasks defendant had assigned him; and (4) counsel believed defendant
guilty, as was evidenced by his discussion of a possible plea bargain.
Defense counsel addressed each of defendant’s complaints: (1) Although
defendant and counsel had had some disagreements, counsel saw “no reason” why
he could not continue to represent defendant; (2) defendant was in local custody
11
and counsel had visited him on “numerous occasions”; (3) counsel had prepared
“lengthy and detailed investigations requests,” and counsel had informed
defendant that he would visit defendant the following week “to cover any areas
that were not covered in the requests”; and (4) counsel had discussed possible
sentences with defendant at defendant’s request, but no offer of a plea bargain had
been made by the prosecution.
At the conclusion of the hearing, the court denied the Marsden motion.
Defendant continued to express his dissatisfaction with counsel; he would be
“happy,” defendant said, if the court would appoint the lawyer of his choice to
represent him. The court explained to defendant that “[i]t doesn’t work that way.”
We review a trial court’s decision declining to relieve appointed counsel
under the deferential abuse of discretion standard. (People v. Silva (2001) 25
Cal.4th 345, 367; Marsden, supra, 2 Cal.3d at p. 123.) No abuse of discretion has
been shown here, as defendant failed to demonstrate either inadequate
representation or irreconcilable conflict. (Earp, supra, 20 Cal.4th at p. 876.) “To
the extent there was a credibility question between defendant and counsel at the
hearing, the court was ‘entitled to accept counsel’s explanation.’ (People v.
Webster [(1991)] 54 Cal.3d [411,] 436.)” (People v. Smith (1993) 6 Cal.4th 684,
696.) If a defendant’s claimed lack of trust in, or inability to get along with, an
appointed attorney were sufficient to compel appointment of substitute counsel,
defendants effectively would have a veto power over any appointment, and by a
process of elimination could obtain appointment of their preferred attorneys,
which is certainly not the law. (Memro, supra, 11 Cal.4th at p. 857; People v.
Berryman (1993) 6 Cal.4th 1048, 1070 (Berryman), overruled on other grounds in
People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
12
2. Excusal of Prospective Jurors
Defendant
contends
that
the trial court erred in sustaining the prosecutor’s
challenges for cause to two prospective jurors based on their views with regard to
the death penalty, and that this error violated defendant’s right to an impartial jury
under the Sixth and Fourteenth Amendments to the federal Constitution.
The United States Supreme Court has held that a prospective juror may be
excluded for cause without compromising a defendant’s rights under the Sixth and
Fourteenth Amendments to trial by an impartial jury if the juror’s views on capital
punishment “ ‘would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt
(1985) 469 U.S. 412, 424, fn. omitted; see Darden v. Wainwright (1986) 477 U.S.
168, 175-178.) We apply the same standard to claims under our state Constitution.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1146 (Rodrigues); People v. Guzman
(1988) 45 Cal.3d 915, 955 (Guzman).) A prospective juror is properly excluded if
he or she is unable to conscientiously consider all of the sentencing alternatives,
including the death penalty where appropriate. (People v. Barnett (1998) 17
Cal.4th 1044, 1114; Rodrigues, at p. 1146.)
Generally, the qualifications of jurors challenged for cause are matters
within the wide discretion of the trial court, seldom disturbed on appeal.
(Rodrigues, supra, 8 Cal.4th at p. 1146; People v. Kaurish (1990) 52 Cal.3d 648,
675.) There is no requirement that a prospective juror’s bias against the death
penalty be proven with unmistakable clarity. (Wainwright v. Witt, supra, 469 U.S.
at p. 424; People v. Carpenter (1999) 21 Cal.4th 1016, 1035; Guzman, supra, 45
Cal.3d at p. 954.) Rather, it is sufficient that the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully and impartially
apply the law in the case before the juror. (Rodrigues, at p. 1147; People v. Hill
(1992) 3 Cal.4th 959, 1003.) “On review, if the juror’s statements are equivocal or
13
conflicting, the trial court’s determination of the juror’s state of mind is binding.
If there is no inconsistency, we will uphold the court’s ruling if it is supported by
substantial evidence. [Citations.]” (People v. Carpenter (1997) 15 Cal.4th 312,
357 (Carpenter).)
Defendant challenges the excusal of Prospective Jurors U. and R. While U.
ultimately stated, in response to a question from defense counsel, that he could
vote to impose the death penalty “in the right case,” U. earlier gave sharply
conflicting statements,2 and so the trial court’s determination of U.’s state of mind,
i.e., that U. would be substantially impaired in the performance of his duties as a
juror in this case, is binding on us. (Carpenter, supra, 15 Cal.4th at p. 357.)
By contrast, almost all of Prospective Juror R.’s answers to the questions
asked in the juror questionnaire and on voir dire with regard to his views on the
death penalty were entirely unexceptionable.3 Only two of his answers were
problematic, and R. claimed that he had been confused when he gave those
answers. Nevertheless, the trial court excused him, finding that he was
2
For example, in his juror questionnaire, U. stated he was “[a]gainst capital
punishment,” and, in response to a follow-up question, U. stated he would “always
vote for life without parole and reject death” if a defendant were “found guilty of
intentional, deliberate first degree Murder and at least one of the ‘special
circumstances’ were found to be true.”
3
R. indicated on the juror questionnaire that he strongly disagreed with the
statement that anyone who intentionally kills another should never get the death
penalty, explaining that the propriety of imposing the death penalty depended on
the events leading up to and surrounding the killing. At the beginning of the voir
dire, R. responded affirmatively when asked by the court whether he felt that “the
death penalty has a place in our society today as a punishment for special
circumstance Murder.” R. again responded affirmatively when asked by the court
whether he could personally impose the death penalty if he felt it was factually
warranted. R. also responded affirmatively when asked by the court whether, in a
case involving murder in the course of forcible rape, burglary and robbery, he
could vote for either the death penalty or life imprisonment without possibility of
parole, depending on the evidence.
14
substantially impaired. The court did so because it did not find R.’s explanations
credible. Based on R.’s “body language,” on “something that doesn’t come out in
the transcript,” the court concluded R. was tailoring his answers to stay on the
jury.
Both of R.’s problematic statements had to do with the standard of proof to
which he would hold the prosecution, i.e., whether he would require defendant’s
guilt to have been proven to an absolute certainty before he would vote to impose
the death penalty. On the juror questionnaire, in response to a question with
regard to his “general feelings” concerning the death penalty, R. stated that it
should be imposed only when there is “no doubt” as to a defendant’s guilt.
However, in response to a follow-up question asked by the prosecutor on voir dire,
R. sought to clarify that statement by saying that he understood that the
prosecutor’s burden in the guilt phase of the trial would be proof beyond a
reasonable doubt, and that he further understood that proof beyond a reasonable
doubt did not mean proof beyond all possible doubt.
The following colloquy then occurred:
“[Prosecutor]: Now, would you require at the penalty phase before you
brought in a verdict of death[,] would you require absolute certainty that the
defendant committed the crime?
“[Prospective Juror R.]: Could you rephrase that again?
“[Prosecutor]: Yes, certainly. I know it’s kind of confusing and I know it’s
the first time you have been confronted with this. [¶] But the guilt phase is the
proof beyond a reasonable doubt stage. . . . In [the] penalty phase, as the judge
indicated to you, we don’t give you a standard of proof. It’s more open-ended
than that. [] And we tell you and the other 11 jurors to go back and discuss the
case and come out and tell us your recommendation of death or life without the
possibility of parole. [¶] My question to you is: Before you return a verdict of
15
death, would you require that I as the prosecutor prove my case beyond all
possible doubt as you’ve indicated—appear to indicate here?
“[R.]:
Yes.
“[Prosecutor]: Would you require that?
“[R.]:
Yes.
“[Prosecutor]: Okay. Thank you very much.”
In response to follow-up questions by defense counsel, R. said that he
understood “that it’s impossible to absolutely prove anything. That’s why the
word reasonable comes in.”
At the conclusion of voir dire, the court observed: “I am a little confused
now because as to the questions of one attorney you’ve given an answer one way
and [to] the questions of the other attorney you have given just the opposite
[answer]. [¶] In answer to the prosecutor’s question, you said you would require
in order to return a death verdict . . . that the person’s guilt be proved to an
absolute certainty.
“[R.]: When he asked me that question, I was thinking he meant . . .
beyond a reasonable doubt. The terminology is a little confusing, to tell you the
truth.
“The court: It certainly is.
“[R.]: I am trying to understand, give you the honest answer that I feel, but
it’s a little confusing to me.
“The court: All right. Keeping in mind that nothing can be proved to an
absolute certainty.
“[R.]:
Right.
“The court: Are you saying that even though you are not convinced to an
absolute certainty of someone’s guilt that you still could[,] if the facts warranted
it[,] you could return the death penalty?
16
“[R.]:
Yes.”
The prosecutor then challenged R. for cause, arguing that R. was
substantially impaired, that he had indicated he would require proof to an absolute
certainty before he would return a death penalty verdict, and that his explanations
to the contrary simply showed that he was “savvy enough” to give answers he
thought would keep him on the jury.
The court accepted the prosecutor’s argument and excused R. “My feeling
is he got dragged back across the line. Quite frankly, I have the feeling from the
body language[,] the way the questions were answered[,] something that doesn’t
come out in the transcript[,] that he was trying to tailor his answers to come out
with the correct answers. I am going to sustain the challenge of substantial
impairment.”
The explanations that Prospective Juror R. offered for his conflicting and
problematic answers may well have been entirely sincere. However, “[o]n review,
if the juror’s statements are equivocal or conflicting, the trial court’s determination
of the juror’s state of mind is binding.” (Carpenter, supra, 15 Cal.4th at p. 357.)
It is sufficient that the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially apply the law in the
case before the juror. (Rodrigues, supra, 8 Cal.4th at p. 1147; People v. Hill,
supra, 3 Cal.4th at p. 1003.) No error appears in the excusal of R.
B. Guilt Phase Issues
1. Kelly Hearing
Defendant’s next assignment of error is related to a question we decided in
People v. Venegas (1998) 18 Cal.4th 47 (Venegas). In Venegas, “we recognized
the general scientific acceptance of restriction fragment length polymorphism
(RFLP) analysis as a means of comparing the DNA in a known sample (e.g., blood
from a suspect) with the DNA in a questioned sample (e.g., blood or semen taken
17
from a crime scene). Venegas further found general scientific acceptance of the
modified ceiling principle, recommended for use by the National Research
Council (NRC) in 1992,[4] as a forensically reliable method of calculating the
statistical probabilities of a match between the evidentiary samples and the DNA
of an unrelated person chosen at random from the general population. We
determined that calculations made under the modified ceiling approach—which
modifies the product rule[5] in such a way as to select random match probability
figures most favorable to the accused from the scientifically based range of
probabilities—qualify for admission under the Kelly test.[6] (Venegas, supra, 18
Cal.4th at pp. 84-90.)” (People v. Soto (1999) 21 Cal.4th 512, 514-515 (Soto).)
In this case, in ruling on the question whether the prosecution had carried
its burden under Kelly, supra, 17 Cal.3d at page 30, of establishing that RFLP
analysis and the modified ceiling principle were generally accepted in the
scientific community, the trial court, at the request of the prosecution, took judicial
notice of, among other things, the testimony given by an expert witness, Dr.
4
“See National Research Council (1992) DNA Technology in Forensic
Science (hereafter 1992 NRC Report) at pages 91-93.”
5
“The product rule states that the probability of two events occurring
together is equal to the probability that the first event will occur multiplied by the
probability that the second event will occur. (See Kaye, DNA Evidence:
Probability, Population Genetics, and the Courts (1993) 7 Harv. J.L. & Tech. 101,
127-128 (hereafter Kaye, DNA Evidence); Freund & Wilson, Statistical Methods
(1993) p. 62.) Coin-tossing is illustrative—the probability of two successive coin
tosses resulting in ‘heads’ is equal to the probability of the first toss yielding heads
(50 percent) times the probability of the second toss yielding heads (50 percent),
or 25 percent. (See Johnson, Elementary Statistics (4th ed. 1984) p. 143.)”
6
“See People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly) and Frye v. United
States (D.C. Cir. 1923) 293 F. 1013 . . . . In Daubert v. Merrell Dow (1993) 509
U.S. 579, the high court held, as a matter of federal jurisprudence, that Frye had
been superseded by the Federal Rules of Evidence. The foundational requirement
for admission of new scientific evidence in California is now referred to as the
Kelly test or rule. (People v. Leahy (1994) 8 Cal.4th 587, 612.)”
18
Patrick Michael Conneally, in an earlier, unrelated trial in the same county (Los
Angeles). This, defendant contends, was error. In making a Kelly ruling,
defendant argues, a trial court may not, consistent with the hearsay rule and the
constitutional right of confrontation, take judicial notice of expert testimony given
in another case.
We need not reach the question whether it is error for a trial court to take
judicial notice, over objection, of an expert’s testimony in another Kelly hearing,
for any error in this regard was clearly harmless here.
First and foremost, the trial court’s conclusion—that RFLP analysis and the
modified ceiling principle were generally accepted in the scientific community by
the time the hearing was held in this case—was correct. In Venegas, we held that
RFLP analysis and the modified ceiling principle were generally accepted in the
scientific community in 1992, when the trial court in that case made its Kelly
ruling (Venegas, supra, 18 Cal.4th at p. 57), and this case was tried two years
later. Second, when the trial court granted the prosecution’s motion that it take
judicial notice of Dr. Conneally’s testimony in the earlier case, the grant was
expressly conditioned on defendant’s having an opportunity to call and cross-
examine Dr. Conneally. Defendant chose not to take advantage of that
opportunity. Therefore, defendant effectively waived the confrontation issue.
Finally, had the trial court declined to take judicial notice of Dr. Conneally’s
testimony in the earlier case, and thus forced the prosecution to call him in this
case, there is no reason to believe his testimony would have differed in any
significant respect from his earlier testimony. Defense counsel apparently came to
that conclusion for he declined the trial court’s invitation to call Dr. Conneally and
cross-examine him.
Defendant
contends
he
received ineffective assistance of counsel because
his counsel did not call live witnesses to refute the expert Kelly testimony that was
19
given in the other case and judicially noticed in this case. Defense counsel gave a
coherent explanation as to why he chose not to call live witnesses—he was
satisfied that the evidence already in the record adequately demonstrated a lack of
consensus in the scientific community. (We reiterate that this case was tried four
years before we held in Venegas, supra, 18 Cal.4th 47, that RFLP analysis and the
modified ceiling prinicple were generally accepted in the scientific community.)
Accordingly, defendant’s ineffective assistance of counsel claim lacks merit. (See
People v. Bolin (1998) 18 Cal.4th 297, 334 [whether to call certain witnesses is a
matter of trial tactics, unless the decision results from unreasonable failure to
investigate].)
The remaining arguments defendant makes with regard to the Kelly
question also lack merit.
Defendant contends the trial court “candidly admitted that it had not even
read” the 1992 NRC Report.7 To the contrary, the record reveals the court had
reviewed the report before making its ruling.
Defendant contends the trial court did not understand that in a Kelly
hearing, the prosecution has the burden of proving that a new scientific technique
has gained general acceptance in a particular field. The source of the confusion
here was the trial court’s statement that it would “bifurcate” the Kelly hearing,
looking first to the evidence offered by the prosecution to see whether, standing on
its own, it demonstrated the requisite general acceptance, and then the burden
would shift to the defense to rebut that evidence. However, as the Attorney
General points out, the court clarified that it did not mean that “in any way I feel
the burden has shifted to the defendant. The burden has always been [on] the
People.” Rather, by bifurcating the process, the court was merely trying to
7
See footnote 5, ante.
20
expedite it, by pointing out if the prosecution had failed to make a prima facie case
as to general acceptance, there would have been “no need for the defense to go any
further.” However, having concluded that the prosecution had carried its burden
of proving general acceptance, the court wished the defense to understand that,
“[f]rom a practical standpoint, you are faced with a situation of going forward or
losing the issue.”
2. Exclusion of Defense Evidence
Defendant contends the trial court erred by precluding him from testifying
that he “had an extensive history of hearing voices, flashbacks, and blackouts.”
The testimony he was precluded from giving would have been critical, defendant
asserts, to the question whether he was capable of forming the specific intent to
rape Mrs. Miller. (See post, at p. 27.) Without the precluded testimony, defendant
contends, the testimony he was permitted to give—that he experienced similar
symptoms when he murdered Mrs. Miller—appeared “both contrived and
fabricated, and as such was likely dismissed by the jury.” Therefore, defendant
argues, preclusion of the testimony violated his Fifth, Sixth, and Fourteenth
Amendment rights by “den[ying] him the opportunity to present a complete
defense to the capital charge.”
Defendant’s proposed testimony with regard to his alleged history of
hearing voices, experiencing flashbacks, and suffering blackouts was jumbled
deep inside an extraordinary grab bag of a proffer that included such disparate
allegations as that defendant “attended many schools” and that “Aunt Jackie shot
herself to death.”8 The prosecution objected that defendant was seeking to
8
Defense counsel: “I would just like to generally outline for the record the
areas that I would like to get into that at this point at least the court has barred me
from getting into.
(footnote continued on next page)
21
introduce, through his own testimony, family and personal history that suggested
he was mentally ill, and so could not have formed the requisite specific intent to
rape Mrs. Miller, without any foundational testimony from a mental health
professional as to the relevance of his testimony. The trial court inquired whether
defense counsel intended to call “a psychiatrist, psychologist, or whatever to
discuss those matters.” Defense counsel stated he did not. Based on defense
counsel’s representation, the trial court excluded defendant’s proffered testimony.
There was no error. Defendant testified he heard voices after he murdered
and raped Mrs. Miller. He did not testify that the voices told him to attack her.
Therefore, any prior history of hearing voices would not have been relevant to the
question whether he specifically intended to rape Mrs. Miller.
Moreover, any error in this regard was harmless. As the Attorney General
points out, Dr. Thomas, the court-appointed psychiatrist, interviewed defendant at
“The problems at school. [Defendant] was in special education. Attended
many schools. . . .
“Drug use; marijuana at 15, alcohol at 15; cocaine about 25 times; some
evidence of LSD; family history of mental illness; Aunt Jackie shot herself to
death; grandfather had delusions, ran down the street with a gun; and a cousin and
a son on ritalin for A.D.D, attention deficit disorder.
“No food; no electricity many times because the family was spending the
money on alcohol; both parents were alcoholics; a series of beatings with
extension cords; brother who was killed, and the defendant saw the brother in the
street; a mother who was promiscuous.
“And I believe the defendant already testified to, when he was about seven
or eight, opening the door and seeing her in bed with another man.
“Other incidents of other men, dizzy spells, blackouts, hearing voices,
screaming at night—this is all the defendant—and also being told by his mother
that . . . his father was not really his father.
“Also the fact that he was afraid to discuss his problems with others
because he felt cut off already, and he felt that would make him more cut off.
“And then the incidents which even the D.A. wants to get into, the incidents
with both Glynnis and Pam, and particularly Pam’s mother; the drug use which all
led to the explosion.”
22
least three times, and he reviewed reports on defendant’s background prepared by
defendant’s relatives, as well as the reports of numerous experts who had
examined defendant. Therefore, if defendant had a history of flashbacks and
blackouts, Dr. Thomas should have been aware of it. Accordingly, the fact that
Dr. Thomas, when called by the defense in the penalty phase, failed to mention
any such history suggests that defendant’s proposed testimony concerning such a
history would have been a recent fabrication.
3. Alleged Ineffective Assistance of Counsel
Defendant
contends
his
trial counsel was ineffective because he failed to
call his court-appointed psychiatrist, Dr. Thomas, in the guilt phase of the trial to
testify as to whether defendant had the capacity to form the specific intent to rape
Mrs. Miller. “Counsel’s failure to put the court-appointed expert on the stand after
[defendant] himself had been prohibited from presenting testimony about his past
mental condition was incomprehensible and indefensible.” The contention lacks
merit.
“ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel (see People v. Wright
(1990) 52 Cal.3d 367, 412), and there is a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” ’
(People v. Lucas (1995) 12 Cal.4th 415, 436-437, quoting Strickland v.
Washington [(1984)] 466 U.S. [668,] 689.) ‘[W]e accord great deference to
counsel’s tactical decisions’ (People v. Frye (1998) 18 Cal.4th 894, 979), and we
have explained that ‘courts should not second-guess reasonable, if difficult,
tactical decisions in the harsh light of hindsight’ (People v. Scott (1997) 15 Cal.4th
1188, 1212). ‘Tactical errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available facts.’ (People v.
Bolin (1998) 18 Cal.4th 297, 333.) [¶] In the usual case, where counsel’s trial
23
tactics or strategic reasons for challenged decisions do not appear on the record,
we will not find ineffective assistance of counsel on appeal unless there could be
no conceivable reason for counsel’s acts or omissions. (People v. Earp[, supra,]
20 Cal.4th [at p.] 896; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on
appeal, a conviction will be reversed on the ground of ineffective assistance of
counsel ‘only if the record on appeal affirmatively discloses that counsel had no
rational tactical purpose for his act or omission’].)” (People v. Weaver (2001) 26
Cal.4th 876, 925-926 (Weaver).)
As the Attorney General points out, the record suggests defense counsel
may have had several sound tactical grounds, of which we will mention only two,
for not calling Dr. Thomas in the guilt phase of the trial. First, Dr. Thomas’s
diagnosis of defendant was based on, among other things, information in
defendant’s probation report that he had raped and threatened to kill Kim. Had the
defense called Dr. Thomas in the guilt phase, the prosecution would have been
entitled to cross-examine him regarding the foundation for his opinion. (See Evid.
Code, § 721, subd. (a); People v. Coddington (2000) 23 Cal.4th 529, 614-615.)
Defense counsel may well have concluded, reasonably, that the potential benefit of
Dr. Thomas’s testifying in the guilt phase, namely, making defendant’s self-
serving statements regarding his personal and familial history admissible, was
outweighed by the damage that would ensue from the revelation of defendant’s
attack on Kim. Second, defense counsel may have decided against calling Dr.
Thomas in the guilt phase because the revelation of statements defendant made to
Dr. Thomas would have undermined the credibility of defendant’s own guilt phase
testimony. For example, defendant initially told Dr. Thomas that he had
consensual sex with Mrs. Miller, while he testified at trial that he had no memory
of having sex with her.
24
4. Prior Crimes Evidence
Defendant contends the trial court erred by admitting, in the guilt phase of
the trial, evidence relating to defendant’s prior offenses associated with the rape of
Dorothea H. in 1985. Defense counsel twice expressly withdrew his objections to
the introduction of the evidence. Therefore, defendant has waived this issue on
appeal. (See, e.g., People v. Robertson (1989) 48 Cal.3d 18, 44 [“Defendant,
having withdrawn his objection to the evidence, cannot now complain of its
admission”].)
Defendant
contends
that, because of the waiver, he was deprived of the
effective assistance of counsel guaranteed by the Sixth Amendment to the United
States Constitution and by article I, section 15 of the California Constitution. This
contention also lacks merit. Defense counsel stated on the record that he was,
after extensive discussion with defendant, withdrawing his objections for a tactical
reason: The other crimes evidence would be admissible in the penalty phase of the
trial and, if the jury heard it for the first time then, it might have a “devastating
effect on my chances” of convincing the jury to return a verdict of life
imprisonment without the possibility of parole. We will not “ ‘second-guess
reasonable, if difficult, tactical decisions in the harsh light of hindsight.’ (People
v. Scott[, supra,] 15 Cal.4th [at p.] 1212).” (Weaver, supra, 26 Cal.4th at p. 926.)
Citing
People v. Frank (1985) 38 Cal.3d 711, defendant argues that,
because this is a capital case, we should disregard counsel’s waiver of this issue
and, instead, examine the whole record to determine whether there has been a
miscarriage of justice. (See id. at p. 729, fn. 3 [“On an appeal from a judgment
imposing the penalty of death, a technical insufficiency in the form of an objection
will be disregarded and the entire record will be examined to determine if a
miscarriage of justice resulted”].) The argument is meritless. “We previously
have noted that ‘[t]he lead opinion in Frank was not signed by a majority of the
25
court, and although later cases from this court have never disapproved its
language, they have cited it only for the purpose of distinguishing it.’ (People v.
Diaz (1992) 3 Cal.4th 495, 527.)” (People v. Williams (1997) 16 Cal.4th 153,
209.) Moreover, defendant’s reliance on the Frank footnote is misplaced, as his
waiver consisted not merely in raising technically insufficient objections, but in
expressly withdrawing his objections. (See Williams, at p. 209; People v. Poggi
(1988) 45 Cal.3d 306, 331.)
Defendant contends his counsel was “prompted” to withdraw his objection
to the other crimes evidence because the trial court improperly deferred ruling on
the admissibility of the evidence under Evidence Code section 352. The trial court
did not err in deferring its ruling under Evidence Code section 352 until the
prosecution had presented the rest of its evidence. (See People v. Williams (1988)
44 Cal.3d 883, 912-913.) Moreover, the fact that the court deferred its ruling was
really irrelevant to the concern expressed by defense counsel in withdrawing his
objection to the admissibility of the evidence, namely, that it might have more
impact on the jury if it were heard by them for the first time in the penalty phase.
5. Instructions Regarding the Specific Intent for Rape Felony
Murder
Defendant contends the instructions given with regard to rape and rape
felony murder were “conflicting, inaccurate, and confusing,” with the result that
defendant was deprived of his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, as well as the corresponding
provisions of the California Constitution.
The jury found defendant guilty of first degree murder and found true the
special circumstance that the murder was committed during the commission of a
rape. The jury’s first degree murder finding could have been based on one or both
of the following theories: (1) that the murder was willful, deliberate and
26
premeditated; or (2) that it was committed during the perpetration of, or attempt to
perpetrate, rape, i.e., that it was rape felony murder. (See § 189.)
Under the felony-murder doctrine, the perpetrator must have the specific
intent to commit the underlying felony. (Berryman, supra, 6 Cal.4th at p. 1085.)
Thus, although rape itself is a general intent crime, the jury here was required to
find that defendant had the specific intent to rape in order to find him guilty of first
degree felony murder. (People v. Osband (1996) 13 Cal.4th 622, 685-686.)
The jury was so instructed. In accordance with CALJIC No. 8.21, the court
instructed the jury: “The unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs during the commission or attempted
commission of a crime as a direct causal result of Burglary, Rape and/or Robbery
is murder of the first degree when the perpetrator had the specific intent to commit
such crime. [¶] The specific intent to commit Burglary, Rape and/or Robbery and
the commission or attempted commission of such crime must be proved beyond a
reasonable doubt.”
The lesson of the instruction that is pertinent to this discussion—that rape
felony murder requires a specific intent to rape—was reinforced by a modified
version of CALJIC No. 4.21.1 on the significance of voluntary intoxication for
general and specific intent crimes. The instruction given provided in pertinent
part: “In order to find the defendant guilty of First Degree Murder on a Felony-
Murder theory, of which the defendant is accused in Count[] 1, a necessary
element is the existence in the mind of the defendant of the specific intent to
commit the crime of Burglary, Rape and/or Robbery.”
Defendant contends that the jury was likely confused by having been
instructed that while rape is a general intent offense, rape felony murder requires
a specific intent to rape. We rejected much the same contention in People v.
Ramirez (1990) 50 Cal.3d 1158. “In accord with the general CALJIC
27
instructions, the trial court instructed the jury that rape and sodomy are general
intent crimes, but that rape-felony-murder requires a finding that defendant had
the specific intent to commit rape. Although defendant does not contend that
the instructions erroneously stated the applicable legal principles, he maintains
that the combination of general and specific intent elements could only have
been confusing to the jury, requiring ‘proof of contradictory mental states.’ The
Attorney General responds that the instructions were not misleading and did not
require proof of contradictory mental states, but rather accurately set forth the
different elements of the separate crimes with which defendant was charged. [¶]
The Attorney General’s position is well taken. The instructions did not require
proof of contradictory mental states. Under the instructions, if the jury found
that defendant did not act with the specific intent to rape, it could have found
him guilty of rape but not of rape-felony-murder. If the jury found that
defendant did act with the specific intent to rape, it could have found him guilty
of both rape and rape-felony-murder. There was no inconsistency in the
instructions.” (Id. at pp. 1177-1178, fn. omitted.)
Moreover, both the prosecutor and defense counsel in their arguments to
the jury emphasized repeatedly that rape felony murder requires a specific intent
to rape, and a question asked by the jury revealed that the jurors understood this
point perfectly well.
Defendant next contends that the modified version of CALJIC No. 4.21.1
given here told the jury, in effect, that voluntary intoxication or mental disorder
could not be considered in determining whether defendant had the specific intent
to commit rape. However, the language with which defendant specifically finds
fault was not included in the instruction given. Instead, the jury was instructed
that rape felony murder requires the specific intent to rape, and that where
specific intent is an essential element of a crime, the defendant’s voluntary
28
intoxication or mental disorder should be considered in determining whether he
possessed the requisite specific intent.
Again, in his arguments to the jury, the prosecutor emphasized that
voluntary intoxication and mental disease could negate the specific intent
required for rape felony murder. “You got instructions on voluntary intoxication
and the effect that could have on lessening a mental state, on lessening a specific
intent. [¶] If you are so high you don’t know what you’re doing or you couldn’t
form an intent to kill or an intent—specific intent to burglarize or specific intent
to rape for the purposes of felony rape murder, that can make—that can knock
out that specific intent.” “Let’s make it real clear. He raped her and he killed
her. We know he raped her. Did he have the specific intent to rape her. If yes,
it’s felony murder, first degree, just on that basis, and the special circumstance of
rape is true. [¶] The only way to get rid of that specific intent is . . . with the . . .
mental defect or disorder or the voluntary intoxication. Neither flies.”
Moreover,
defendant
waived any objection to the modified version of
CALJIC No. 4.21.1 given here by expressly agreeing to the modifications.9 (See
Rodrigues, supra, 8 Cal.4th at p. 1192 [“[I]f defendant believed the instruction
was unclear, he had the obligation to request clarifying language”].)
Finally, defendant contends the trial court should have instructed the jury
that the specific intent to rape must be formed before or during the act of violence.
The claim lacks merit. “[A]n after-formed intent instruction is a pinpoint
9
As the Attorney General points out, during discussion of the proposed
instructions, defense counsel expressed his concern that the standard version of
CALJIC No 4.21.1 failed to make it clear that voluntary intoxication could negate
the specific intent required for rape felony murder. After considering a
modification suggested by defense counsel, the court suggested the modification
actually given. Defense counsel stated that he “would be happy to use the court’s”
instruction and that the instruction was “agreeable.”
29
instruction that a trial court has no obligation to give when neither party has
requested that it be given. (People v. Webster (1991) 54 Cal.3d 411, 443.)”
(People v. Silva (2001) 25 Cal.4th 345, 371.) Moreover, the trial court here gave
the standard jury instruction on felony murder and burglary, rape, and robbery,
which stated that a killing “which occurs during the commission or attempted
commission of a crime as a direct causal result of Burglary, Rape and/or Robbery
is murder of the first degree when the perpetrator had the specific intent to commit
such crime.” A reasonable juror would necessarily have understood from this
instruction that defendant was guilty of rape felony murder only if the intent to
rape was formed before the murder occurred. (Silva, at p. 372; People v. Hayes
(1990) 52 Cal.3d 577, 629.)
6. Verdict Form for Rape-felony-murder Special Circumstance
The jury found true the allegation that “[t]he crime of murder of the first
degree of which you have found the defendant guilty was a murder committed in the
commission of rape.” Defendant contends the verdict form was fatally ambiguous
because it is unclear whether the jury was finding defendant guilty of first degree
murder on a rape-felony-murder theory (§ 189), or whether it was finding true the
rape-felony-murder special circumstance (§ 190.2, subd. (a)(17)(C)).
As the Attorney General points out, defendant waived this issue by failing
to object to the form of the verdict when the court proposed to submit it or when
the jury returned its finding. (People v. Bolin, supra, 18 Cal.4th at p. 330.)
In any event, “ ‘[t]echnical defects in a verdict may be disregarded if the
jury’s intent to convict of a specified offense within the charges is unmistakably
clear, and the accused’s substantial rights suffered no prejudice. [Citations.]’ ”
(People v. Bolin, supra, 18 Cal.4th at p. 331.) Here, the jury’s intentto find true
the rape-felony-murder special circumstanceis unmistakably clear because the
jury was instructed: “If you find the defendant in this case guilty of murder of the
30
first degree, you must then determine if one or more of the following special
circumstances are true or not true: Murder during the commission of a Burglary,
Rape and/or Robbery. . . . You will state your special finding as to whether this
special circumstance is or is not true on the form that will be supplied.” In his
closing argument the prosecutor reiterated that the jury was to indicate on the
verdict form whether it found the special circumstances allegations true or not
true. Finally, in its verdict in the penalty phase of the trial, the jury stated that it
had “found the special circumstance true.”
Moreover, any error in this regard was harmless beyond a reasonable doubt.
The jury found in its verdict that defendant committed the murder in the
commission of rape. To find the rape-felony-murder special-circumstance
allegation true, they needed to find that defendant had an independent purpose for
the commission of the rape, that is, that the commission of the rape was not merely
incidental to the murder. (People v. Mendoza (2000) 24 Cal.4th 130, 182.) The
evidence is overwhelming that defendant had an independent purpose to rape Mrs.
Miller. He tied her hands and feet, had intercourse with her, and ejaculated inside
her. He had previously done the same thing to Mrs. H., whom he did not kill.
Clearly, defendant obtained perverse sexual gratification from raping the mothers
of his girlfriends, whether or not he killed them. There can be no reasonable doubt
that the rape of Mrs. Miller was not merely incidental to her murder. (See People
v. Williams, supra, 44 Cal.3d at p. 929 [“[T]he omission of an instruction that an
independent felonious purpose is an element of the kidnapping special
circumstance was harmless beyond a reasonable doubt since no rational jury could
have failed to find that a purpose other than and in addition to killing [the victim]
precipitated the kidnapping”].)
31
C. Penalty Phase Issues
1. Future Dangerousness
James Park, a defense expert witness, testified that, based on his review of
defendant’s prison records, defendant was not in his opinion likely to be violent if
again sentenced to prison. On direct examination, defense counsel elicited the fact
that defendant had been involved in one fight while previously imprisoned.
However, defendant contends the trial court prejudicially erred in overruling his
objection to the prosecution’s cross-examination of the expert. The cross-
examination concerned three other disciplinary infractions defendant committed
while in prison, which are characterized by defendant as a “yelling match in a food
line with another inmate that never escalated into a fight” and two attempts by
defendant “to manufacture a crude form of alcohol in his cell.”
“While the prosecution is prohibited from offering expert testimony
predicting future dangerousness in its case-in-chief ([People v.] Adcox [(1988)] 47
Cal.3d [207,] 257), it may explore the issue on cross-examination or in rebuttal if
defendant offers expert testimony predicting good prison behavior in the future.
(People v. Gates [(1987)] 43 Cal.3d [1168,] 1211]; People v. Coleman (1989) 48
Cal.3d 112, 150.) As we said in Gates: ‘If the defense chooses to raise the subject,
it cannot expect immunity from cross-examination on it.’ ([Gates, supra,] 43
Cal.3d at p. 1211.)” (People v. Morris (1991) 53 Cal.3d 152, 219, overruled on
another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; see People
v. Seaton (2001) 26 Cal.4th 598, 679.)
Defendant is wrong when he says the three incidents were irrelevant to the
question whether he was likely to be violent if he were again sentenced to prison.
At first, the expert minimized the incident in the food line, characterizing it as
“childish.” “[Defendant] wanted another man’s crackers and somehow they
wouldn’t give it to him, and he ended up yelling a lot. [¶] And again, he was kind
32
of young and nothing developed other than there was kind of a shouting match.”
However, he later admitted that when defendant started yelling, other inmates
joined in, and a guard had to intervene because of the danger that the incident
would escalate into violence. Defendant’s attempts to make alcohol in his cell
were also clearly relevant because defendant’s murder of Julia Miller was
preceded by alcohol, as well as drug, abuse, and there was expert testimony that
defendant had a mental illness in which drug and alcohol abuse was a “major
exacerbating factor, meaning those things made the mental illness worse.”
Defendant contends that the court compounded its asserted error in
permitting this line of cross-examination by precluding the defense expert from
testifying that, if defendant were sentenced to imprisonment without possibility of
parole, he would be confined in such a secure setting that he would be unlikely to
engage in violence. The contention lacks merit. “[E]vidence of the conditions of
confinement that a defendant will experience if sentenced to life imprisonment
without parole is irrelevant to the jury’s penalty determination because it does not
relate to the defendant’s character, culpability, or the circumstances of the offense.
(People v. Daniels (1991) 52 Cal.3d 815, 876-878; People v. Thompson (1988) 45
Cal.3d 86, 138-139.) Its admission is not required either by the federal
Constitution or by Penal Code section 190.3. (People v. Daniels, supra, 52 Cal.3d
at pp. 876-878; People v. Thompson, supra, 45 Cal.3d at pp. 138-139.)” (People
v. Quartermain (1997) 16 Cal.4th 600, 632.) “Moreover, ‘[d]escribing future
conditions of confinement for a person serving life without possibility of parole
involves speculation as to what future officials in another branch of government
will or will not do. [Citation.]’ (People v. Thompson, supra, 45 Cal.3d at p. 139.)
Although defendant argues that ‘this logic is incorrect and the matter should be
revisited, at least as to the question of the admissibility of evidence about how a
life without parole prisoner would live,’ he advances no persuasive reason as to
33
why this is so.” (People v. Majors (1998) 18 Cal.4th 385, 416.) We have been
given no reason to reconsider our holdings in this regard. (See People v. Ervin
(2000) 22 Cal.4th 48, 97.)
2. Alleged Prosecutorial Misconduct
Defendant
contends
the
prosecutor committed misconduct insofar as he
implied that defendant was a member of a prison gang.
The alleged misconduct occurred during the prosecutor’s cross-examination
of the defense expert witness, Mr. Park. On direct examination, Mr. Park testified
that defendant’s records indicated that he had been disciplined for a fight while he
was previously imprisoned, and that the person with whom defendant had fought
was a gang member. “[Defendant] got into a fight with a prison gang member
who—somebody who was identified by the staff as a gang member, and
[defendant] was disciplined, not severely, but disciplined for that.” On cross-
examination, the prosecutor, after he had Mr. Park refresh his recollection by
reviewing the disciplinary report on the fight, asked Mr. Park: “Now, actually
what it says here is that Mr. Jones admits the charges and that he stated that he
started the fight over Crip business. [¶] Isn’t that what it says here?” Mr. Park
responded, “That was his statement, yes, sir.” The prosecutor pursued the point.
“Okay. So doesn’t that—I mean you said he got in a fight with another gang
member. [¶] Wouldn’t that indicate that he actually was fighting over gang
business that he was involved in?” Mr. Park demurred. “Not necessarily.
Because Mr. Jones would have to guard his reputation. He could have been
fighting with this alleged Crip for a lot of reasons and he is not going to say.”
Later, the prosecutor asked, “And isn’t it true in your experience that gang
members actually get involved in a greater number of violent altercations than
other inmates in the facility?” Again, Mr. Park demurred. “I couldn’t say that
independently now.”
34
It is, of course, the general rule that a defendant cannot complain on appeal
of misconduct by a prosecutor at trial unless in a timely fashion—and on the same
ground—the defendant made an assignment of misconduct and requested that the
jury be admonished to disregard the impropriety. (People v. Ayala (2000) 23
Cal.4th 225, 284; Berryman, supra, 6 Cal.4th at p. 1072; People v. Ashmus (1991)
54 Cal.3d 932, 976 (Ashmus).) Defendant concedes that defense counsel did not
make a timely objection to the questions of which he now complains. However,
defendant notes that defense counsel later requested that “all the testimony be
stricken from the cross-examination about that,” and defendant argues that that
referred to the prosecutor’s cross-examination of Mr. Park with regard to
defendant’s fight with the prison gang member. To the contrary, viewed in
context, defense counsel’s motion to strike was directed at questions asked by the
prosecutor suggesting that a person imprisoned for crimes of violence is more
likely than a person imprisoned for nonviolent offenses to commit acts of violence
while in prison. It is true that the rule in question does not apply when the harm
could not have been cured. (Ashmus, at p. 976; see Memro, supra, 11 Cal.4th at
pp. 873-874.) Such a situation, however, was not present here; any harm
threatened was certainly curable.
Defendant contends that defense counsel was ineffective in failing to
preserve this issue for appeal. As the record on appeal does not reveal why
defense counsel chose not to object to this line of questioning, this ineffective
assistance of counsel claim would be more appropriately raised in a habeas corpus
petition. (People v. Hart (1999) 20 Cal.4th 546, 619, fn. 21.)
Defendant further contends that, in referring to defendant as having fought
with “another gang member,” the prosecutor falsely implied that the disciplinary
report on this incident indicated that defendant, as well as the prisoner with whom
he fought, was a member of a prison gang. “[T]he inference raised by the line of
35
questioning was unwarranted—there was no evidence of gang membership other
than the insinuations of the prosecutor.” Again, this is a matter better raised on
habeas corpus because the disciplinary report in question was not entered into
evidence in this trial.
3. Privilege Against Self-Incrimination
Defendant
contends
that
the trial court, by ordering the defense to provide
the prosecution with unredacted copies of the reports prepared by the court-
appointed psychiatrist, Dr. Thomas, before the doctor testified for the defense in
the penalty phase of the trial, violated defendant’s privilege against self-
incrimination under the Fifth, Sixth and Fourteenth Amendments to the United
States Constitution, as well as the work-product and attorney-client privileges.
Prior to the penalty phase of the trial, defense counsel gave the prosecutor
copies of reports that had been prepared by Dr. Thomas. The defense had redacted
from Dr. Thomas’s reports statements that defendant had made to the doctor, as
well as conclusions that the doctor had drawn from defendant’s statements to him.
The prosecution moved that the defense be ordered to provide the prosecution with
unredacted copies of Dr. Thomas’s reports so that he might be effectively cross-
examined. The defense opposed the motion on the ground that such an order
would violate defendant’s privilege against self-incrimination, his right to counsel,
and the work-product and attorney-client privileges. Before ruling, the court
inquired whether the defense “definitely” intended to call Dr. Thomas as a witness
in the penalty phase, and the defense responded that it did. The court then ordered
the defense to turn over the unredacted reports, explaining that providing them to
the prosecution prior to Dr. Thomas’s testimony would obviate the necessity of
granting the prosecution a continuance to review the unredacted reports after Dr.
Thomas testified. Dr. Thomas subsequently testified as a defense witness.
36
There was no error. By injecting his mental state as an issue in the case,
and calling Dr. Thomas to testify, defendant waived any challenge to the contents
of the interviews on which Dr. Thomas relied. (See People v. Coleman, supra,
48 Cal.3d at pp. 151-152.) Moreover, any error in this regard was clearly harmless
under either the reasonable possibility standard or the beyond a reasonable doubt
standard.10 Challenged by the Attorney General to identify any harm resulting
from the prosecution’s having received Dr. Thomas’s unredacted reports,
defendant asserts that he was prejudiced by the revelation in Dr. Thomas’s reports
that defendant initially told Dr. Thomas that the victim, Julia Miller, consented to
have sex with him. This revelation, defendant contends, “cut deep into the heart
of his defense, specifically that he blacked out and did not recall the events prior to
and during the murder.” However, the significance of defendant’s claim that he
blacked out prior to killing and raping Mrs. Miller was the implication that he was
therefore incapable of the deliberation required for first degree murder. The jury,
by returning its verdict of first degree murder, had already clearly rejected that
claim before Dr. Thomas testified in the penalty phase. Moreover, Dr. Thomas
testified that he considered defendant’s statement that Mrs. Miller consented to
have sex with him a “delusional belief.”
4. Lack of Remorse
During the penalty phase of the trial, in its case-in-chief, the prosecution
called Gloria Hanks, defendant’s sister, who testified that after the murder
10
State law error occurring during the penalty phase will be considered
prejudicial when there is a reasonable possibility such an error affected a verdict.
(People v. Jackson (1996) 13 Cal.4th 1164, 1232; People v. Brown (1988) 46
Cal.3d 432, 447.) Our state reasonable possibility standard is the same, in
substance and effect, as the harmless beyond a reasonable doubt standard of
Chapman v. California (1967) 386 U.S. 18, 24. (People v. Ochoa (1998) 19
Cal.4th 353, 479; Ashmus, supra, 54 Cal.3d at p. 965.)
37
defendant told her he “didn’t give a fuck about [the victim’s daughter] Pam or her
family.” Defendant contends this evidence of his lack of remorse was improperly
used by the prosecution as an aggravating factor.
A prosecutor may not present evidence in aggravation that is not relevant to
the statutory factors enumerated in section 190.3. (People v. Crittenden (1994) 9
Cal.4th 83, 148; People v. Boyd (1985) 38 Cal.3d 762, 772-776.) “A murderer’s
attitude toward his actions and the victims at the time of the offense is a
‘circumstance[] of the crime’ (§ 190.3, factor (a)) that may be either aggravating
or mitigating. [Citations.]” (People v. Cain (1995) 10 Cal.4th 1, 77, fn. omitted.)
However, a lack of remorse expressed afterwards, as is the case here, is not an
aggravating factor under the statute. (Crittenden, at p. 150, fn. 17.) On the other
hand, “the absence of remorse is relevant to the determination whether the
mitigating factor of remorse is present; thus, the prosecutor properly may suggest
that an absence of evidence of remorse weighs against a finding of remorse as a
mitigating factor. [Citations.]” (Id. at p. 148, italics omitted.)
As defendant points out, when counsel were arguing to the court the
admissibility of Ms. Hanks’s testimony, one of the remarks made by the
prosecutor suggests that he considered defendant’s lack of remorse an aggravating
factor. “Clearly it increases the heinousness of the crime and it refutes what he
does at the guilt phase which is to mitigate it, and I think it’s clearly relevant for
that.” However, the second half of the prosecutor’s statement reveals that he was
really offering Ms. Hanks’s testimony to rebut evidence of remorse that defendant
had introduced in the guilt phase. Indeed, the prosecutor informed the court that
he had originally intended to reserve Ms. Hanks as a rebuttal witness in the
penalty phase in the event that defendant put on evidence of remorse in that phase,
but then decided it would be more appropriate to call her in his case-in-chief in the
38
penalty phase because defendant had already presented evidence of remorse in the
guilt phase.11
The defense evidence in the guilt phase of the trial as to defendant’s
conduct following the murder may, as defendant now argues, have been “offered
as evidence of defendant’s mental state at the time of [the] killings,” i.e., that he
“lacked the specific intent to rape,” and not as evidence of remorse. However,
defendant’s testimony that he shot himself in an attempt to commit suicide was
also susceptible of interpretation by the jury as an expression of remorse when, as
defense counsel put it in his argument to the jury at the conclusion of the guilt
phase of the trial, defendant “realized the terrible thing that he had done.”
Therefore, Ms. Hanks’s testimony was properly admitted to assist the jury in
determining whether defendant truly felt remorseful for his crimes. In argument to
the jury at the conclusion of the penalty phase of the trial, the prosecutor cast Ms.
Hanks’s testimony in this light, and not as evidence in aggravation.
Defendant
contends
the prosecution failed to give him notice of Ms.
Hanks’s testimony required by section 190.3. Section 190.3 provides in pertinent
part: “Except for evidence in proof of the offense or special circumstances which
subject a defendant to the death penalty, no evidence may be presented by the
prosecution in aggravation unless notice of the evidence to be introduced has been
11
“As I thought about that [—reserving Ms. Hanks as rebuttal witness in the
penalty phase—] over the weekend, I thought . . . actually I don’t know if Mr.
Jones is going to get on the stand and express remorse. I don’t know if [Ms.
Hanks’s testimony] would be relevant as a rebuttal witness [to testimony given in
the penalty phase], and clearly in the guilt phase, I think there is a sense of
remorse that the defendant put on.
“He woke up next to the victim. He testified he was crying. All he wanted
to do was kill himself, and I think he has wanted to have all his actions after this
incident taken as remorse for the victim.
“I think that what [Ms. Hanks’s testimony] does is show clearly that the
defendant doesn’t feel remorse towards the victim or the family.”
39
given to the defendant within a reasonable period of time as determined by the
court, prior to trial. Evidence may be introduced without such notice in rebuttal to
evidence introduced by the defendant in mitigation.” Here, defendant did not
make his statement to Ms. Hanks until the trial started, and, as defense counsel
acknowledged and the trial court found, the prosecution disclosed the statement to
the defense as soon as the prosecution learned of it. Therefore, defendant received
timely notice. Moreover, Ms. Hanks’s testimony was introduced in rebuttal to
mitigation evidence introduced by the defendant in the guilt phase. Therefore,
notice was not required by section 190.3 in any event.
Finally, defendant contends Ms. Hanks’s testimony should have been
excluded on the ground that it was “confusing, misleading, and highly prejudicial
while bereft of probative value.” Defendant claims Ms. Hank’s testimony was
unreliable because she “was ‘a bottle and a half ’ into her New Year’s celebration”
when she had the telephone conversation with defendant. Ms. Hanks admitted she
could not remember the entirety of the conversation, “just bits and pieces of it,”
because she had been drinking. However, the fact that Ms. Hanks had been
drinking when the conversation occurred goes to the weight of the evidence, not
its admissibility. Pursuant to Evidence Code section 352, the trial court ruled the
probative value of Ms. Hanks’s testimony was not outweighed by its prejudicial
effect. We find no error.
5. Constitutionality of the Death Penalty
Defendant contends the statutory scheme governing the death penalty in
California is unconstitutional on several grounds. We have repeatedly rejected
similar contentions and do so again here. Specifically, the death penalty law is
constitutional though it (1) does not require the jury to make specific written
findings as to aggravating factors (see, e.g., People v. Lewis (2001) 25 Cal.4th
610, 677 [“Written findings by the penalty phase trier of fact are not
40
constitutionally required”]); (2) does not require that the jury return unanimous
written findings as to the aggravating factors (see, e.g., People v. Seaton, supra,
26 Cal.4th at p. 688; People v. Taylor (1990) 52 Cal.3d 719, 749 [“We have
consistently held that unanimity with respect to aggravating factors is not required
by statute or as a constitutional procedural safeguard”]); (3) does not require that
the jury be instructed on the presumption of life (see, e.g., People v. Arias (1996)
13 Cal.4th 92, 190 [rejecting the contention that the death penalty statute is
“constitutionally deficient because it ‘fails to require a presumption that life
without parole is the appropriate sentence’ ”]); (4) does not provide for intercase
proportionality review (see, e.g., People v. Anderson (2001) 25 Cal.4th 543, 602
[rejecting the contention that intercase proportionality review is required “as a
matter of due process, equal protection, fair trial, or cruel and/or unusual
punishment concerns”]).
Defendant’s argument that “one under judgment of death suffers cruel and
unusual punishment by the inherent delays in resolving his appeal is untenable. If
the appeal results in reversal of the death judgment, he has suffered no conceivable
prejudice, while if the judgment is affirmed, the delay has prolonged his life.
[Citation.]” (People v. Anderson, supra, 25 Cal.4th at p. 606.) Finally, death by
lethal injection does not constitute cruel or unusual punishment. (See, e.g., People
v. Samayoa (1997) 15 Cal.4th 795, 864.)
8. International Law
Defendant
contends
“[t]he due process violations and racial discrimination
that [he] suffered throughout his trial and sentencing phase are prohibited by
customary international law.” Because defendant has entirely failed to establish
the predicates of his argument—that he suffered prejudicial violations of due
process or racial discrimination during his trialwe have no occasion to consider
41
whether such violations would also violate international law. (People v. Bolden
(2002) 29 Cal.4th 515, 567.)
6. Cumulative Prejudice in Guilt and Penalty Phases
Defendant contends the cumulative effect of asserted errors denied him his
federal constitutional rights to a fair trial and a reliable penalty determination, thus
requiring reversal of both the guilt and penalty judgments. Our careful review of
the record convinces us the trial was fundamentally fair and the penalty
determination reliable. No basis for reversal appears.
III. DISPOSITION
The judgment is affirmed in its entirety.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
42
CONCURRING OPINION BY KENNARD, J.
I concur generally with the majority opinion. I disagree, however, with its
analysis of one issue, which I discuss below.
Defendant was charged with the first degree murder and rape of Julia
Miller, and there was a special circumstance allegation that the murder occurred
during a rape. In defendant’s testimony at the guilt phase of his capital trial, he
did not deny killing Miller and having sexual intercourse with her before she died.
He testified, however, while struggling with Miller, he “kind of slipped back into
[his] childhood.” He had no recollection of having intercourse with Miller, but he
remembered picking up a knife and stabbing her, and then “being curled up in a
ball crying.” When he looked at Miller, he realized she was dead. While driving
away from Miller’s house, he began “hearing certain little things in my head”
which he described as “paranoia, thinking someone was coming to kill me.”
Based on this testimony, the defense argued that defendant lacked the specific
intent to rape, a necessary element when, as here, the prosecution alleges under the
felony-murder rule that an unlawful killing is first degree murder because it took
place during a rape.
To support his claim that he lacked this intent, defendant sought to testify
that he had a long history of untreated psychiatric problems. At a hearing to
consider the admissibility of this testimony, defense counsel stressed that
defendant had heard voices, that as a child he was placed in special education
1
classes, that other members of his family were mentally ill, that he had abused
drugs, and that he was an abused child who grew up in poverty. Counsel also
mentioned defendant’s “dizzy spells, blackouts, [and] screaming at night . . . .”
The trial court excluded the testimony on the ground that it was not supported by
expert psychiatric testimony.
Defendant now claims the trial court prevented him from testifying that “he
had an extensive history of hearing voices, flashbacks, and blackouts.” The
majority holds that the trial court properly excluded defendant’s testimony, but it
relies on a different ground than the trial court. The majority points out that
defendant testified he heard voices only after he had intercourse with and killed
Miller, so his previous history of hearing voices was irrelevant to his intent to rape
her. (Maj. opn., ante, at p. 22.) True. But defendant testified that he blacked out
and had a flashback to his childhood before he had sex with Miller, so the
majority’s reasoning does not address his claim that the court erroneously
excluded testimony about his alleged history of blackouts and flashbacks. I would
reject this claim because defense counsel’s passing reference to blackouts, without
any information as to when and how often they had occurred, was insufficient to
show that the blackouts were probative on the question of whether defendant
intended to rape Miller. Also, the trial court did not prevent defendant from
testifying about flashbacks because defense counsel did not mention flashbacks in
his offer of proof.
The majority also finds any error harmless. It reasons that at the penalty
phase, a defense psychiatrist who had interviewed defendant did not mention
defendant’s history of blackouts or flashbacks. This, according to the majority,
implies that defendant’s proposed testimony was a recent fabrication. In my view,
the expert’s testimony has no bearing on whether the trial court’s exclusion of
defendant’s testimony was harmless, because the expert testified at the penalty
2
phase, whereas defendant’s testimony was offered at the guilt phase.
Nevertheless, I agree with the majority that any error was harmless: defendant’s
offer of proof included nothing that could have altered the jury’s determination
that he intended to rape Miller when he had sexual intercourse with her before
killing her.
KENNARD,
J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Jones
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S046117
Date Filed: March 17, 2003
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Edward A. Ferns
__________________________________________________________________________________
Attorneys for Appellant:
H. Mitchell Caldwell and Jan J. Nolan, under appointments by the Supreme Court, for Defendant and
Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R Gorey and Herbert S. Tetef, Deputy Attorneys General, for
Plaintiff and Respondent.
4
Counsel who argued in Supreme Court (not intended for publication with opinion):
H. Mitchell Caldwell
24737 Laurel Ridge Drive
Malibu, CA 90265
(310) 456-4669
Jan J. Nolan
23522 Longmeadow
Mission Viejo, CA 92692
(949) 830-9879
Herbert S. Tetef
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2712
5
Opinion Information
| Date: | Docket Number: |
| Mon, 03/17/2003 | S046117 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Herbert S. Tetef, Deputy Attorney General 300 South Spring Street, 5th Floor Los Angeles, CA |
| 2 | Jones, Ernest Dwayne (Appellant) San Quentin State Prison Represented by Harry Mitchell Caldwell Attorney at Law 24737 West Laurel Ridge Drive Malibu, CA |
| 3 | Jones, Ernest Dwayne (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Michael Laurence, Executive Director 50 Fremont St., Suite 1800 San Francisco, CA |
| Disposition | |
| Mar 17 2003 | Opinion: Affirmed |
| Dockets | |
| Apr 7 1995 | Judgment of death |
| Apr 21 1995 | Filed certified copy of Judgment of Death Rendered 4-7-95. |
| Apr 12 1999 | Filed: Applt's Applic. for appointment of Counsel. |
| Apr 13 1999 | Counsel appointment order filed Harry M. Caldwell Is appointed as Lead Counsel, & Jan J. Nolan Is appointed as Associate Counsel, to represent Applt for the direct Appeal. |
| Jun 16 1999 | Compensation awarded counsel |
| Jun 16 1999 | Compensation awarded counsel |
| Jul 8 1999 | Note: Superior Court mailed Record to Applt's Counsel on 4-20-99. (Superior Court to Send Written Confirmation of this Date.) |
| Jul 8 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 12 1999 | Filed: Suppl Proof of Service of request for Eot. |
| Jul 12 1999 | Received letter from: L.A. County Clerk, dated 7-6-99, Advising that Record Was mailed to Appellant's Counsel on 4-20-99. |
| Jul 12 1999 | Extension of Time application Granted To Applt To 9-22-99 To request Corr. of Record. |
| Aug 11 1999 | Compensation awarded counsel |
| Sep 20 1999 | Received: Copy of Applt's request to correct, Augment Record, Examine Sealed Transcripts & Settle the Record. (7 Pp.) |
| Sep 21 1999 | Compensation awarded counsel Atty Caldwell |
| Nov 15 1999 | Compensation awarded counsel |
| Jan 13 2000 | Compensation awarded counsel Atty Caldwell |
| Feb 16 2000 | Compensation awarded counsel Atty Caldwell |
| Apr 28 2000 | Record on appeal filed C-27 (6,924 Pp.) and R-33 (4,803 Pp.) Including Material Under Seal; Clerk's Transcript includes 4,806 pages of Juror Questionnaires. |
| Apr 28 2000 | Appellant's opening brief letter sent, due: 6/7/2000 |
| May 1 2000 | Compensation awarded counsel Atty Caldwell |
| Jun 5 2000 | Application for Extension of Time filed To file Aob. |
| Jun 8 2000 | Extension of Time application Granted To 8/7/2000 To file Aob. |
| Aug 4 2000 | Counsel's status report received (confidential) |
| Aug 4 2000 | Application for Extension of Time filed to file AOB. (second request) |
| Aug 7 2000 | Extension of Time application Granted to 10-6-2000 to file AOB. |
| Oct 2 2000 | Counsel's status report received (confidential) |
| Oct 6 2000 | Application for Extension of Time filed To file AOB. (3rd request) |
| Oct 6 2000 | Counsel's status report received (confidential) from atty Caldwell. |
| Oct 17 2000 | Extension of Time application Granted To 12/5/2000 to file AOB. |
| Oct 20 2000 | Order filed appointing H.C. Resource Center Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Ernest Dwaye Jones for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. |
| Dec 12 2000 | Counsel's status report received (confidential) from atty Caldwell. |
| Dec 12 2000 | Application for Extension of Time filed To file AOB. (4th request) |
| Dec 13 2000 | Extension of Time application Granted To 2/5/2001 to file AOB. |
| Jan 5 2001 | Counsel's status report received (confidential) from HCRC. |
| Feb 6 2001 | Application for Extension of Time filed To file AOB. (5th request) |
| Feb 6 2001 | Counsel's status report received (confidential) from atty Caldwell. |
| Feb 13 2001 | Extension of Time application Granted To 4/6/2001 to file AOB. |
| Feb 15 2001 | Counsel's status report received (confidential) from HCRC. |
| Apr 6 2001 | Counsel's status report received (confidential) from atty Caldwell. |
| Apr 6 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| Apr 12 2001 | Extension of Time application Granted To 6/5/2001 to file AOB. No further extensions of time are contemplated. |
| Apr 19 2001 | Counsel's status report received (confidential) from HCRC. |
| May 29 2001 | Counsel's status report received (confidential) from atty Nolan. |
| May 29 2001 | Application for Extension of Time filed To file AOB. (7th request) |
| Jun 4 2001 | Extension of Time application Granted To 8/6/2001 to file AOB. No further extensions of time will be granted. |
| Jun 19 2001 | Counsel's status report received (confidential) from HCRC. |
| Jun 19 2001 | Appellant's opening brief filed (255 pp.) |
| Jun 27 2001 | Compensation awarded counsel Atty Caldwell |
| Jul 13 2001 | Filed: letter from resp requesting copy of sealed transcript (of proceedings held on 4-14-93), and missing pages of unsealed R.T. |
| Jul 16 2001 | Application for Extension of Time filed To file resp.'s brief. (1st request) |
| Jul 17 2001 | Extension of Time application Granted To 9/17/2001 to file resp.'s brief. |
| Aug 1 2001 | Filed: Resp.'s request for a copy of the reporter's transcript of an in camera hearing held on April 14, 1993, is granted. The clerk is directed to transmit a copy of pages 21 through 24 of the reporter's transcript of April 14, 1993 to resp. |
| Aug 17 2001 | Counsel's status report received (confidential) from HCRC. |
| Sep 12 2001 | Application for Extension of Time filed to file resp's brief faxing to SF. (2nd request) |
| Sep 18 2001 | Extension of Time application Granted To 11/16/2001 to file resp.'s brief. |
| Oct 17 2001 | Counsel's status report received (confidential) from HCRC. |
| Nov 6 2001 | Respondent's Brief filed. (146 pp.) |
| Dec 4 2001 | Request for extension of time filed To file reply brief. (1st request) |
| Dec 12 2001 | Extension of time granted To 1/25/2002 to file reply brief. |
| Dec 12 2001 | Filed: Declaration of service of respondent's brief on HCRC. |
| Dec 27 2001 | Counsel's status report received (confidential) from HCRC. |
| Jan 18 2002 | Request for extension of time filed to file repy brief. (2nd request) |
| Jan 28 2002 | Extension of time granted To 3/25/2002 to file reply brief. Counsel anticiates filing the brief by 3/25/2002. No further extension is contemplated. |
| Feb 19 2002 | Counsel's status report received (confidential) from HCRC. |
| Feb 26 2002 | Appellant's reply brief filed (102 pp.) |
| Mar 6 2002 | Compensation awarded counsel Atty Caldwell |
| Jun 17 2002 | Counsel's status report received (confidential) from HCRC. |
| Aug 19 2002 | Counsel's status report received (confidential) from HCRC. |
| Oct 21 2002 | Related habeas corpus petition filed (concurrent) (Filed by HCRC - no. S110791) |
| Nov 4 2002 | Counsel's status report received (confidential) from HCRC. |
| Nov 7 2002 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the January calendar, to be held in S.F. the week of 1-6-2003. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" is due no later than 10 days after the case has been set for oral argument. |
| Nov 27 2002 | Case ordered on calendar 1-7-03, 1:30pm, S.F. |
| Dec 5 2002 | Filed letter from: Respondent, dated 12/4/2002, re focus issues for oral argument and requesting 45 minutes for argument. |
| Dec 9 2002 | Filed: Notice from appellant re focus issues for oral argument and request for 45 minutes for argument and to be represented by two counsel. |
| Dec 10 2002 | Order filed The request of appellant for 45 minutes for argument and to be represented by two counsel are granted. |
| Dec 10 2002 | Order filed The request of respondent for 45 minutes for oral argument is granted. |
| Dec 12 2002 | Received letter from: Respondent, dated 12/12/2002 re additional authorities for oral argument. |
| Dec 17 2002 | Received letter from: Appellant's counsel, dated 12/17/2002, re substitution of focus issue for oral argument. |
| Dec 18 2002 | Counsel's status report received (confidential) from HCRC. |
| Dec 20 2002 | Received letter from: Appellant's counsel, dated 12/20/2002, re additional authorities for oral argument. |
| Jan 7 2003 | Cause argued and submitted |
| Jan 24 2003 | Compensation awarded counsel Atty Caldwell |
| Feb 24 2003 | Counsel's status report received (confidential) from HCRC. |
| Mar 17 2003 | Opinion filed: Judgment affirmed in full Majority Opinion by Brown, J. -- joined by George C.J., Baxter, Werdegar, Chin & Moreno JJ. Concurring Opinion by Kennard, J. |
| Apr 1 2003 | Request for modification of opinion filed Office of Public Defender of Los Angeles [non-party] |
| Apr 7 2003 | Order filed The finality of the opinion in the above-eititled matter is hereby extended to and including 5/16/2003. |
| Apr 30 2003 | Opinion modified - no change in judgment |
| Apr 30 2003 | Remittitur issued (AA) |
| May 2 2003 | Order filed (150 day statement) |
| May 12 2003 | Received: Acknowledgment of receipt of remittitur. |
| Aug 12 2003 | Received letter from: U.S.S.C., dated 8-7-03, advising that cert petn was filed on 5-23-03 and placed on the docket on 8-7-03 as No. 03-5701. |
| Oct 14 2003 | Certiorari denied by U.S. Supreme Court |
| Oct 16 2007 | Related habeas corpus petition filed (post-judgment) no. S159235 |
| Briefs | |
| Jun 19 2001 | Appellant's opening brief filed |
| Nov 6 2001 | Respondent's Brief filed. (146 pp.) |
| Feb 26 2002 | Appellant's reply brief filed |
