Filed 4/6/06
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
S042698
ROBERT JURADO, JR.,
San Diego County
Super. Ct. No. CR 124438
Defendant and Appellant.
Defendant Robert Jurado, Jr., appeals from a judgment of death upon his
conviction by jury verdict of one count of murder in the first degree (Pen. Code,
§ 187),1 with the special circumstance of intentionally killing while lying in wait
(§ 190.2, subd. (a)(15)), and one count of conspiracy to commit murder (§§ 182,
187). The jury found that defendant personally used a deadly and dangerous
weapon to commit the murder. (§ 12022, subd. (b).) The jury that returned these
verdicts as to guilt and special circumstance also returned a penalty verdict of
death for the murder. The trial court denied the automatic motion to modify the
penalty (§ 190.4, subd. (e)) and sentenced defendant to death.
This appeal from the judgment of death is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
I. FACTS AND PROCEEDINGS
On May 17, 1991, a stranded motorist saw the body of Teresa Holloway in
a culvert beneath Highway 163 in San Diego County. She had been strangled and
beaten to death two days earlier. As the prosecution’s evidence at trial
established, defendant killed Holloway, with the help of Denise Shigemura and
Anna Humiston, to prevent her from disclosing their plan to kill a drug dealer
named Doug Mynatt.2
A. Prosecution’s Guilt Phase Case-in-Chief
In October 1989, Brian Johnsen met Teresa Holloway; a month later, they
began living together and continued living together until late April 1991.
Throughout this time, Holloway was using methamphetamine on a regular basis.
In December 1989, Holloway met Doug Mynatt at a bar and introduced him to
Johnsen.
In July or August of 1990, Brian Johnsen met defendant and bought crystal
methamphetamine from him at Mark Schmidt’s house. Defendant was sharing an
apartment with Denise Shigemura, but his girlfriend was Anna Humiston, a high
school student who lived with her parents. Johnsen and Teresa Holloway
socialized and shared drugs with defendant, Shigemura, and Humiston. Johnsen
later introduced defendant to Mynatt.
In October 1990, Denise Shigemura was arrested and remained in federal
custody until April 1991, when she was released to a halfway house. During her
2
Shigemura pled guilty to first degree murder and was sentenced to 25 years
to life in state prison. Humiston, who was 17 years old at the time of the killing,
was tried as an adult, convicted of first degree murder and conspiracy to commit
murder, and sentenced to 25 years to life in state prison. (See People v. Humiston
(1993) 20 Cal.App.4th 460, 465.)
2
time in custody, Shigemura exchanged letters and telephone calls with Teresa
Holloway. When Shigemura obtained overnight passes from the halfway house,
she stayed at the house where Teresa Holloway lived with Brian Johnsen.
In February 1991, Teresa Holloway argued with defendant, and their
relationship became strained. Holloway’s relationships with Anna Humiston also
became strained, and on one occasion they had a quarrel that almost turned
violent. Around the same time, Doug Mynatt moved on a temporary basis into the
house that Brian Johnsen and Holloway shared. Johnsen had been buying
methamphetamine from Mynatt.
In late March 1991, defendant gave Doug Mynatt a .38-caliber handgun in
exchange for drugs. When Mynatt learned that defendant had stolen the gun, he
insisted that defendant take it back and instead pay money for the drugs. A few
weeks later, Mynatt and Johnsen took defendant from his apartment to Johnsen’s
house. Mynatt made him stay there overnight until defendant agreed to pay
Mynatt and to sell methamphetamine for him. Mynatt threatened to kill defendant
if he did not agree.
On April 11, 1991, Brian Johnsen was arrested during a drug raid and spent
five days in custody. He was arrested because drugs were found under a couch at
his house. Some of the drugs belonged to defendant, but defendant did not admit
they were his. Johnsen felt that defendant owed him something because of this
incident, and defendant agreed to compensate Johnsen with marijuana.
In late April 1991, Brian Johnsen made Teresa Holloway move out of the
house they had shared because of her continuing drug use, and he offered to let
Doug Mynatt remain in the house on a more permanent basis as his roommate.
Holloway approached Thomas Carnahan, who agreed to let her live in his
apartment temporarily. He did not give her a key, and he insisted that she either
3
be in the apartment by 11:00 p.m. or telephone him before that time to let him
know when she would be arriving.
On May 6, 1991, Brian Johnsen began serving a 14-day jail sentence for
driving with a suspended license. Doug Mynatt continued to live in Johnsen’s
house. Defendant still owed Mynatt money.
On May 13, 1991, during a telephone conversation, Denise Shigemura told
Brian Johnsen (who was still in custody) that Doug Mynatt had stolen her purse,
which contained $80, a key to the business where she was then working, and the
combination to the business’s safe. According to Shigemura, Mynatt admitted
taking the purse and said he did it because he suspected Shigemura of stealing
$450 from him. Shigemura seemed very upset about the incident and was worried
about what Mynatt might do with the business key and the safe combination.
During this conversation, defendant phoned Shigemura, and a three-way
conversation ensued between defendant, Shigemura, and Johnsen, during which
they discussed possibly killing Mynatt. They were worried about potential
retaliation, however, because Mynatt had claimed to have a friend who was
affiliated with the Hell’s Angels. They agreed to discuss the matter further the
next day. They decided not to tell Teresa Holloway about the plan to kill Mynatt
because of concern that she would reveal it to the police.
On the same day, Monday May 13th, defendant telephoned David Colson,
with whom he had used methamphetamine, and he asked to borrow a shotgun.
Defendant said he “needed to do somebody up,” which Colson understood to
mean that defendant intended to kill someone. Colson told defendant that he did
not own a shotgun, although his brother did, and he gave defendant his brother’s
telephone number. Defendant called Colson’s brother and asked to borrow his
shotgun, saying he “had a job to do,” but the brother refused to lend the shotgun to
defendant.
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Around the same time, Denise Shigemura asked Steven Baldwin if he could
get her a “gat” (a slang term for a gun). Shigemura explained that she had a
problem she needed to take care of. Baldwin told her he could not help her with
her problem.
On Tuesday, May 14th, Brian Johnsen telephoned his house from the
county jail and spoke to Denise Shigemura. They decided to contact defendant so
the three of them could discuss what to do about Doug Mynatt. Johnsen
telephoned Anna Humiston’s house and spoke briefly to defendant about the plan
to kill Mynatt. Defendant said he was still deciding whether to go through with it.
Later on the same day, Tuesday May 14th, Holloway was at the apartment
complex where defendant lived. Larissa Slusher and Ted Meier managed the
complex, and they occupied an apartment next to defendant’s. Slusher had known
Teresa Holloway as a casual acquaintance for seven or eight months. Holloway
asked Meier if she could spend the night in their apartment, because it was after
11:00 p.m., and she had been locked out of the apartment where she had been
staying. Meier agreed. The next morning, Holloway left the apartment around
8:00 or 9:00 a.m., taking with her a dress that Slusher had loaned her. Before she
left, Holloway said she would return later that day, May 15th, but she never did.
On Wednesday evening, May 15th, Brian Johnsen telephoned Mark
Schmidt and asked him to bring defendant and Denise Shigemura to Schmidt’s
house so he could talk to them. Schmidt ran about two and a half blocks to
defendant’s apartment, where he found Teresa Holloway and Shigemura with
defendant. Anna Humiston arrived in a blue Geo Metro while Schmidt was
speaking to defendant. Defendant agreed to take Johnsen’s call, and he came to
Schmidt’s apartment in Humiston’s car with Humiston, Shigemura, and Holloway.
At 8:17 p.m. that evening, Brian Johnsen telephoned Schmidt’s apartment.
Schmidt answered and passed the phone to Shigemura, who said she was still
5
unsure about the plan to kill Mynatt. Defendant then got on the phone and told
Johnsen that he could not wait and that it (meaning the killing of Mynatt) would
probably happen before Johnsen was released from jail. Johnsen said that was
fine with him. Teresa Holloway then got on the phone and asked whether there
was a plan to kill Mynatt. Johnsen told her not to get involved.
While Teresa Holloway was speaking on the telephone to Brian Johnsen,
defendant had a “forceful talk” with Anna Humiston; he seemed angry about
something; she seemed both angry and scared. Defendant then asked Schmidt for
a chain that defendant could use to tie up Johnsen’s motorcycle so Doug Mynatt
could not steal it. Schmidt offered defendant an 18-inch length of plastic weed-
eater cord. Defendant wrapped the cord around his own neck, with one end in
each fist clenched at shoulder height. He said: “It will do.” Denise Shigemura
needed to return to her halfway house by 9:00 p.m. At defendant’s request,
Schmidt told Holloway to get off the phone because he needed to leave the
apartment. They all left Schmidt’s apartment around 8:45 p.m.
At 9:31 p.m., defendant telephoned Christie Medlin at her apartment. He
told her that he was stranded and needed a ride, and that he was calling from a 7-
Eleven store. Medlin asked David Silva, her boyfriend, to pick up defendant and
his friends. Silva found defendant with Denise Shigemura and Anna Humiston at
the 7-Eleven store at Spruce and Fifth Streets. He drove them to Medlin’s
apartment; when they arrived, Humiston was holding her stomach and appeared to
be ill; she told Medlin she had an upset stomach. Defendant seemed bothered by
something, and Shigemura seemed agitated. Noticing what appeared to be blood
on defendant’s socks, Medlin asked him what had happened. Defendant said he
“got into a fight.” Humiston used Medlin’s telephone to call her father to tell him
that the blue Geo Metro had broken down. Silva drove Humiston home. Medlin
then drove defendant and Shigemura to defendant’s apartment.
6
On Thursday morning, May 16th, around 9:30, a tow truck driver met
defendant, Anna Humiston, and Denise Shigemura on Highway 163 near the
Quince Street Bridge, where the blue Geo Metro was parked. The driver towed
the car to the apartment complex where defendant lived. He observed nothing
unusual about their demeanor. Humiston signed the towing receipt.
On the afternoon of the same day, Thursday May 16th, defendant and
Denise Shigemura went to David Silva’s apartment, and the three shared pizza and
beer. Shigemura asked defendant and Silva to “bruise her up” so she could say
she had been beaten and would have an excuse for not returning to her halfway
house the previous night. Defendant and Silva then hit Shigemura with their fists.
When defendant and Shigemura later went to Mark Schmidt’s apartment,
Shigemura removed her shirt to show Schmidt the bruises or her chest and arms.
She told Schmidt that she had been “jumped” the previous night.
During the same day, defendant and Denise Shigemura went to Steven
Baldwin’s house with Mark Schmidt. They sat in the living room, with Baldwin
and Schmidt on one couch, defendant and Shigemura on another. Shigemura said
to Baldwin: “I no longer need what it was I asked you for. We took care of the
problem and we dumped the body at Balboa Park.” Defendant said nothing; his
face had what Baldwin described as an “empty look.”
On Friday morning, May 17th, Joseph Hedley experienced engine trouble
as he was driving a van on Highway 163 through Balboa Park. He parked the van
beside the freeway and began walking to a telephone call box about 100 yards
away. As he neared the call box, he noticed a human foot protruding from a
culvert that ran beneath the freeway. Approaching closer, he saw a woman’s body
inside the culvert, where it was not visible to persons traveling on the freeway. He
called to her but received no response. Using the call box, Hedley reported what
7
he had seen. Police officers arrived 15 minutes later and found that the body was
Theresa Holloway’s.
During the autopsy of Teresa Holloway’s body, Mark A. Super, a deputy
medical examiner employed by the San Diego County Medical Examiner’s Office,
saw many injuries on the face, torso, and extremities. Contusions and abrasions
were on the chest and on both legs and both arms, with the right hand being
particularly bruised and swollen. Some of the abrasions showed clusters of short
parallel linear marks suggesting they were made by an object with threads. There
were many bruises and abrasions on the neck, including some marks that could
have been made by ligature or manual strangulation. The hyoid bone was
fractured and there were hemorrhages in the eyeballs; both of these findings were
consistent with strangulation. There was a bite mark in the center of the back.
The most extensive injuries were to the face and head. The jaw and all the facial
bones were fractured and some had caved in. There were many deep lacerations
on the scalp, and the skull was fractured. In Super’s expert opinion, a scissor jack
had “all the characteristics that one would expect” in the weapon that inflicted the
injuries he observed. The cause of death was “blunt force head injuries and
strangulation.”
On Friday evening, May 17th, James R. Manis, a sergeant with the San
Diego Police, found defendant with Anna Humiston outside defendant’s apartment
complex. He told defendant he was investigating the death of Teresa Holloway.
Defendant said that he knew Holloway, that he had last seen her about three days
before at a party at the house of a man named Mark, that she was a drug user who
owed money to drug dealers, and that he did not trust her because she had stolen
from him. Defendant led Sergeant Manis to Holloway’s car, which was parked
about three or four blocks from defendant’s apartment.
8
On Saturday morning, May 18th, defendant and Anna Humiston arrived at
David Silva’s apartment in a new car that Humiston’s parents had just given her.
They then drove to defendant’s apartment, where Sergeant Manis arrested them.
Later that day, Sergeant Manis found a scissor jack in a tree midway between the
place where Teresa Holloway’s body was found and the 7-Eleven store at the
corner of Spruce and Fifth Streets where David Silva had found defendant,
Shigemura, and Humiston on the night of the murder. The jack was covered with
red stains and had hair attached to it. Denise Shigemura was arrested on the same
day.
After his arrest, defendant made telephone calls from the jail to Brian
Johnsen, Christie Medlin, and David Silva. When Johnsen asked defendant why
he had killed Teresa Holloway, defendant said it had to be done. To Medlin,
defendant sang “On, on, that bitch is gone.” According to Medlin’s trial
testimony, defendant said “something like he doesn’t really care if he has to spend
the rest of his life paying for this, the bitch is gone.” When Silva asked defendant
about Holloway’s death, defendant told him that Holloway was killed in a car, that
he had been sitting in the back seat with Humiston while Shigemura was driving
and Holloway was sitting in the front passenger seat, and that an argument “got
out of hand.”
Around May 19th, Larissa Slusher saw the dress she had loaned Teresa
Holloway in a dumpster about 100 feet from defendant’s apartment. With the
dress were Holloway’s purse, her wallet, her identification papers, photographs of
her daughter, a sandal that matched one found at the murder scene, and a pair of
shoes belonging to defendant.
Gary Mark Dorsett, an evidence technician for the San Diego Police
Department Crime Lab, examined the blue Geo Metro. He collected samples of
9
red stains from the front passenger seat cover and seatbelt harness and from the
rear floorboard carpet on the passenger side. There was no jack in the car.
Norman Donald Sperber, a forensic dentist, compared the bite mark on
Holloway’s back with dental impressions from defendant, Denise Shigemura, and
Anna Humiston. In Sperber’s opinion, defendant’s teeth were “highly consistent”
with the bite mark, but neither Shigemura nor Humiston could have made it.
At trial, as part of the prosecution’s case, the parties stipulated to the results
of blood analysis. The blood on the scissor jack and on the rear floorboard of the
blue Geo Metro was consistent with Teresa’s Holloway’s blood, but inconsistent
with the blood of defendant, Denise Shigemura, and Anna Humiston. Blood on
the sandal and purse found in the dumpster, and on the front passenger seat cover
of the blue Geo Metro, was consistent with the blood of all four of these
individuals.
The parties also stipulated to the results of hair comparison analysis. Ten
of the hairs found in Teresa Holloway’s hand were consistent with the hair of
Anna Humiston but not with the hair of defendant, Denise Shigemura, or Teresa
Holloway. Four of the hairs were consistent with the hair of both Humiston and
Holloway, but not with the hair of defendant or Shigemura, and three of the hairs
were inconsistent with Humiston’s hair and were not compared to the hair of
defendant, Shigemura, or Holloway.
B. Defense Case at the Guilt Phase
After defendant’s arrest, Brian Johnsen went to the house of Josephine
Jurado, defendant’s mother, and knocked on the door of her house one night
around 9:30. Without opening the door, she asked Johnsen who he was and what
he wanted. Johnsen said he wanted a helmet he had lent to defendant. She told
him she did not have the helmet and did not know where it was, but Johnsen
10
would not leave. She was frightened because she knew that Teresa Holloway had
been Johnsen’s girlfriend and that defendant had been charged with her murder.
Johnsen eventually left after defendant’s mother telephoned the police.
On May 19, 1991, during a 10-minute interview, San Diego Police Officer
David Swiskowski asked Mark Schmidt to describe what happened at Schmidt’s
apartment on the evening of May 15, 1991, before Teresa Holloway’s murder, but
Schmidt’s replies were vague and evasive. Schmidt said that defendant,
Holloway, Anna Humiston, and Denise Shigemura came to his apartment that
evening around 8 o’clock, and that he received a phone call from Brian Johnsen.
Schmidt told Swiskowski that he gave the phone to defendant, and that defendant
and Holloway were alone in his bedroom with the phone for about 10 minutes.
Schmidt did not say anything to Swiskowski about having to leave the apartment,
or making up a story about having to leave the apartment, or that defendant put a
cord around his neck.
On the same day, May 19th, during an interview that lasted 10 to 15
minutes, David Silva told Officer Swiskowski that defendant had called him from
jail after being arrested for Teresa Holloway’s murder. Silva told Swiskowski that
during that conversation defendant did not talk about the murder except to say that
he had been charged with it. Silva did not tell Swiskowski that defendant said
Holloway was killed because she was a snitch, nor did Silva say that defendant
had described where persons were seated in Humiston’s car before or during the
murder.
On September 10, 1991, Tony Bento, an investigator for the San Diego
District Attorney, interviewed David Silva for around 25 minutes. During the
interview, Silva said he had talked to defendant on several occasions after
defendant’s arrest, and that defendant had always denied killing Teresa Holloway
and never said that she had been killed because she had overheard a conversation,
11
or that she was killed because an argument got out of hand. At the end of the
interview, however, Silva mentioned a conversation with defendant before
Holloway’s death during which defendant had said that Holloway had overheard
something and she “was going to snitch him off about something.”
On September 16, 1991, Tony Bento interviewed Brian Johnsen for at least
an hour, during which Johnsen said that after defendant’s arrest, defendant called
and told him to stay away from defendant’s family or “the same thing would
happen to them.” Bento understood “them” as a reference to Johnsen and his
friends. In this interview, Johnsen never said that defendant told him that Terry
Holloway was killed because it had to be done. Johnsen also told Bento that he
had discussed with Jeffrey Latimer the plan to kill Doug Mynatt.
Jeffrey Latimer was a childhood friend of Brian Johnsen and through him
met defendant and Doug Mynatt. Latimer testified that he never discussed with
Johnsen a plan to kill Mynatt, and that to his knowledge Johnsen had “never really
been honest” and “was always the crook and the thief.”
In 1991, Richard Whalley, a forensic scientist and toxicologist, arranged to
have a private laboratory retest the urine sample taken from defendant after his
arrest. The urine was found to contain methamphetamine at a very low level (130
nanograms) that would not have caused any effect but which suggested that
defendant had probably used methamphetamine during the previous two to four
days.
In January 1992, Marion Louise Pasas, a licensed private investigator
whom Anna Humiston’s attorney had retained, interviewed Christie Medlin at her
apartment. Medlin told Pasas that after Teresa Holloway’s murder defendant had
called Medlin from jail on one occasion, but during that conversation defendant
did not talk about the murder. Medlin did not tell Pasas that defendant said he was
12
glad Holloway was dead or that he said he did not care whether he spent the rest of
his life in jail or in prison.
C. Prosecution’s Penalty Phase Case in Aggravation
Before August 1988, while defendant was living with his mother and his
sister in an apartment in San Marcos, he once became highly agitated and upset,
pushed his mother slightly against a bed, and spit in her face. Another incident
occurred later while defendant was living with his mother and sister in a house in
San Diego. On this occasion, defendant came home very upset after having
broken up with his girlfriend, threatened to obtain weapons and shoot up the
house, threatened to kill his mother, and advanced toward her with a raised hand
as if to strike her. Defendant’s friends restrained him and took him outside. When
defendant’s sister tried to telephone the police, defendant grabbed the phone from
her hand. After this incident, in December 1989, defendant’s mother applied for a
restraining order to have him removed from her house.
In October 1990, defendant was convicted of felony possession of
marijuana for sale.
In May 1991, during the autopsy of Teresa Holloway’s body, she was
found to have been pregnant. The fetus, which was around 17 weeks old, was too
young and too small to have survived outside the womb, but it showed no
evidence of traumatic injury or other condition that would have precluded its
survival to full term and birth had Holloway not died. Some weeks before her
death, Holloway had told defendant that she was pregnant, but defendant did not
believe her. Holloway said she was planning to get a pregnancy test and that
when she got the test result she would show it to defendant to prove she was
pregnant.
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On July 21, 1991, Steven Baldwin was booked into the county jail for a
probation violation. As a deputy was escorting him to a holding tank, defendant,
who was inside the tank, saw him and said to another inmate: “I know that dude.
He’s the reason I’m in here. He told the cops I killed that bitch.” After the deputy
had placed Baldwin in the tank, an inmate named Richard Janssen, whom Baldwin
did not know, approached him and struck him. Baldwin was then hit several
times, from different directions, on the back of the head and the side of the face.
Defendant did not strike him, but when the beating stopped, defendant came out of
a side cell and told Baldwin: “You can’t be in this cell. You got to roll up out of
this cell.” Baldwin lost consciousness, and the next thing he remembered was
being outside the tank on a gurney. As a result of the beating, Baldwin suffered
injuries to the left side of his face, including bruising and swelling both above and
below the eye, a laceration below the eye, and a nondisplaced fracture of the malar
bone.
On September 5, 1993, a fight broke out among inmates in module 5-B of
the county jail in San Diego. Deputies arriving at the module observed 15 to 20
Hispanic inmates on one side of the module faced off against eight to 10 Black
inmates on the other side of the module. The inmates were yelling and throwing
things back and forth, and some inmates had bloodstained towels wrapped on their
arms. Defendant was in the group of Hispanic inmates and was one of at least
four inmates holding metal bars, 12 to 18 inches in length and one-quarter inch in
diameter, that had been removed from inmate bunks. The inmates were slamming
these bars against bunks and making stabbing motions with them toward Black
inmates, although defendant was not seen to strike anyone. After the inmates were
removed, the deputies found many items that could be used as weapons scattered
throughout the module, including 13 metal bars, seven wooden mop handle pieces,
14
two razors, one razor blade attached to a comb, three wooden window grate
pieces, and two socks containing soap bars.
Teresa Holloway’s murder deeply affected her parents, James and Joan
Cucinotta, and her daughter, who at the time of Teresa Holloway’s death was four
years old and lived with her father. After the daughter learned of her mother’s
death, she became sad and withdrawn and cried a lot. She often said: “I want my
Mommy, I want my Mommy.”
A police detective came to the home of James and Joan Cucinotta to tell
them of Teresa Holloway’s death. At first Joan could not accept it; she was very
upset and angry, and she tried to hit the detective. When he said they had
identified Teresa Holloway’s body through fingerprints, Joan fell apart and
became hysterical. Some friends and family came over to be with her. That night
and for days afterwards, she was unable to eat or sleep. She just cried and smoked
cigarettes. She was unable to deal with making the funeral arrangements or
telephoning relatives, so James Cucinotta did those things.
James Cucinotta, Terry Holloway’s father, was also seriously affected by
her murder. At the time of her death, he worked in law enforcement as an
investigator, but within two weeks after learning of the murder, he lost his job
because he was no longer able to function. He began drinking heavily until
eventually he went into a treatment center. He and his wife Joan both received
treatment from psychiatrists for their grief. The murder also deeply affected their
two other children, Teresa Holloway’s brother and sister, and family holidays
became very painful. At the time of his testimony, more than four years after
Teresa Holloway’s death, James Cucinotta and his wife continued to visit Teresa’s
grave every week. Joan Cucinotta sometimes took Teresa’s daughter to the grave.
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D. Defense Penalty Phase Case in Mitigation
Calvin Bruce was one of the inmates in module 5-B of the county jail in
San Diego on September 5, 1993. He was talking on the phone to his wife when
he saw two inmates, one Black and the other Hispanic, have a confrontation that
became physical and resulted in a face-off between groups of Black and Hispanic
inmates during which inmates in both groups wielded and threw metal pipes.
According to Bruce, defendant was not one of the original combatants, he did not
have any weapon in his hand during the incident, and he tried unsuccessfully to
persuade other inmates to stop the fighting.
Defendant’s parents—Robert Jurado, Sr., and Josephine Jurado—married
in 1968. Defendant was born in June 1970, and his sister Oralia in November
1973. At that time, the family lived in Los Banos. Once, when he was around
four years old, defendant saw his father hit his mother. Defendant ran up to his
mother and hugged her.
In 1973, defendant’s parents separated, and defendant began to experience
“tremendous headaches that would make him cry a lot.” He also developed a fear
of sleeping in the dark, and he became more rebellious with his mother. After the
separation, defendant’s father saw his children no more than once or twice a year.
In 1977, defendant’s parents finalized their divorce. In 1984, defendant’s
mother moved to San Diego. His father never went there to visit, and he
telephoned very seldom. Around 1985, defendant’s father remarried. In 1986,
defendant’s grades began to fail and he began to use drugs. In 1987 or 1988,
defendant’s mother placed him in a drug treatment program. When he learned that
defendant was using illegal drugs, defendant’s father cut all ties with defendant.
Around this time, a psychiatrist told defendant’s mother that defendant was
suicidal and needed to be hospitalized right away. When defendant’s mother
telephoned his father to get some insurance papers to cover defendant’s
16
hospitalization, defendant’s father said something to the effect that it might be
better if defendant did commit suicide.
Defendant’s father testified that he had seen defendant once since his arrest
and could now form a relationship with him because defendant was no longer
using drugs.
Before moving to San Diego with his mother in 1984, defendant had close
relationships with his aunt, Patricia Camacho, and his two grandmothers, Josefina
Martinez and Paz Jurado. They each testified that they love defendant very much
and intended to visit him in prison. Defendant’s mother and his sister Oralia both
testified that they love defendant very much, that they had visited defendant
weekly since his arrest, and that they intended to continue visiting him in prison.
II. PRETRIAL AND JURY SELECTION ISSUES
A. Double Jeopardy
The District Attorney of San Diego County filed an amended information
charging defendant with murder (§ 187) and conspiracy to commit murder
(§§ 182, 187), and alleging a lying-in-wait special circumstance (§ 190.2, subd.
(a)(15)) making defendant eligible for the death penalty. Defendant filed a motion
under section 995 to set aside the conspiracy count and the lying-in-wait special
circumstance allegation on the ground that they were not adequately supported by
the evidence presented at the preliminary hearing. The prosecution filed written
opposition to the motion, and the trial court, after a hearing, denied the motion to
dismiss as to the conspiracy count, but the court granted the motion as to the
special circumstance allegation.
Immediately after the court made its ruling dismissing the special
circumstance allegation, defendant announced his intention to plead guilty to the
remaining charges. The prosecutor stated that his office might seek appellate
17
review of the ruling setting aside the special circumstance by petitioning the Court
of Appeal for a writ of mandate, and that for this reason he would not sign the
change of plea form if defendant pled guilty to the remaining charges. Defendant
then withdrew his previous not-guilty pleas and pled guilty to the remaining
charges.
To challenge the ruling setting aside the special circumstance allegation,
the prosecution petitioned the Court of Appeal for a writ of mandate. (See People
v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217.) The Court of Appeal
stayed defendant’s sentencing hearing, which had been scheduled for December
23, 1991. In his opposition to the writ petition, defendant argued that because he
had already pled guilty to the remaining charges, any further prosecution of the
special circumstance allegation would violate the double jeopardy clauses of the
federal and state Constitutions (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15),
and for this reason the special circumstance allegation could not be reinstated even
if the trial court had erred in dismissing it. (See People v. Superior Court
(Jurado), supra, at p. 1229.)
The Court of Appeal held that the trial court had erred in dismissing the
special circumstance allegation under section 995 (People v. Superior Court
(Jurado), supra, 4 Cal.App.4th at p. 1229) and also that there was no double
jeopardy bar to reinstatement and prosecution of the special circumstance
allegation (id. at pp. 1235-1236). In granting the petition for writ of mandate, the
Court of Appeal directed the trial court to enter a new order denying defendant’s
section 995 motion in its entirety, thereby reinstating the special circumstance
allegation. (People v. Superior Court (Jurado), supra, at p. 1236.) This court
denied defendant’s petition for review. (Ibid.) Defendant then withdrew his
guilty pleas, pled not guilty to the charges, and denied the special circumstance
allegation.
18
Defendant here raises the same double jeopardy issue he raised
unsuccessfully in opposing the prosecutor’s pretrial writ petition in the Court of
Appeal. The Attorney General argues that defendant’s claim is barred by the law
of the case doctrine.
Under the doctrine of the law of the case, a principle or rule that a
reviewing court states in an opinion and that is necessary to the reviewing court’s
decision must be applied throughout all later proceedings in the same case, both in
the trial court and on a later appeal. (People v. Turner (2004) 34 Cal.4th 406, 417;
People v. Barragan (2004) 32 Cal.4th 236, 246; People v. Stanley (1995) 10
Cal.4th 764, 786.) We apply the doctrine even in death penalty cases, and even
when the previous decision was rendered by a Court of Appeal, but we do not
apply it when an intervening decision has altered or clarified the controlling rules
of law, or when the rule stated in the prior decision was a “ ‘manifest
misapplication’ of the law resulting in ‘substantial injustice.’ ” (People v. Stanley,
supra, at p. 787; accord, People v. Gray (2005) 37 Cal.4th 168, 197.)
Defendant argues that both of the recognized exceptions to the doctrine of
the law of the case—intervening change in the law and manifest misapplication of
existing legal principles resulting in substantial injustice—are present here. To
evaluate his arguments, we begin by reviewing the Court of Appeal’s decision.
The Court of Appeal framed the issue this way: “Jurado’s response to the
People’s petition presents the question of whether the prejeopardy dismissal of the
special circumstance allegation pursuant to Jurado’s motion under section 995 and
his immediate guilty plea without the concurrence of the prosecutor and before the
prosecutor could seek pretrial review of that dismissal would result in a ‘second
prosecution’ for the same offense after ‘acquittal’ or ‘conviction.’ ” (People v.
Superior Court (Jurado), supra, 4 Cal.App.4th at pp. 1229-1230.) The court
concluded, first, that dismissal of the special circumstance allegation under section
19
995 was a prejeopardy rather than a postjeopardy determination. (People v.
Superior Court (Jurado), supra, at pp. 1230-1231.) The court concluded, second,
that the lying-in-wait special circumstance was not “an added element which
would create a greater offense out of the charged murder,” but instead was a
“penalty enhancement.” (Id. at p. 1231.) Third, the court concluded, after
distinguishing certain decisions that defendant cited, that this case “most closely
resembles” Ohio v. Johnson (1984) 467 U.S. 493 (Johnson). (People v. Superior
Court (Jurado), supra, at p. 1233.)
In Johnson, a defendant charged with four offenses arising from the same
incident pled guilty to two of the offenses—involuntary manslaughter and grand
theft—after which, on the defendant’s motion, the trial court dismissed the other
two charges—murder and aggravated robbery—“on the ground that because of his
guilty pleas, further prosecution on the more serious offenses was barred by the
double jeopardy prohibitions of the Fifth and Fourteenth Amendments.”
(Johnson, supra, 467 U.S. at p. 494.) The United States Supreme Court
concluded, to the contrary, that “prosecuting [the defendant] on the two more
serious charges would not constitute the type of ‘multiple prosecution’ prohibited
by the Double Jeopardy Clause.” (Ibid.)
The high court explained that the federal Constitution’s double jeopardy
clause protects against (1) a second prosecution for the same offense after acquittal
or conviction and (2) multiple punishment for the same offense. (Johnson, supra,
467 U.S. at p. 498.) The bar against a subsequent prosecution after acquittal or
conviction “ensures that the State does not make repeated attempts to convict an
individual, thereby exposing him to continued embarrassment, anxiety, and
expense, while increasing the risk of an erroneous conviction or an impermissibly
enhanced sentence,” while the bar against multiple punishment for a single offense
“is designed to ensure that the sentencing discretion of courts is confined to the
20
limits established by the legislature.” (Id. at pp. 498-499.) The court concluded
that the issue of multiple punishment was not yet presented because the defendant
had never been tried for, convicted of, or sentenced for the more serious offenses
of murder and aggravated robbery. (Id. at pp. 499-500.) “While the Double
Jeopardy Clause may protect a defendant against cumulative punishments for
convictions on the same offense, the Clause does not prohibit the State from
prosecuting respondent for such multiple offenses in a single prosecution.” (Id. at
p. 500.)
The court also rejected the argument that further prosecution of the murder
and aggravated robbery charges would violate the double jeopardy prohibition
against successive prosecutions: “No interest of respondent protected by the
Double Jeopardy Clause is implicated by continuing prosecution on the remaining
charges brought in the indictment. Here respondent offered only to resolve part of
the charges against him, while the State objected to disposing of any of the counts
against respondent without a trial. . . . There simply has been none of the
governmental overreaching that double jeopardy is supposed to prevent. On the
other hand, ending prosecution now would deny the State its right to one full and
fair opportunity to convict those who have violated its laws.” (Johnson, supra,
467 U.S. at pp. 501-502.)
Here, the Court of Appeal rejected defendant’s attempts to distinguish
Johnson, supra, 467 U.S. 493. Defendant argued that the prosecutor here did not
sufficiently object to defendant’s guilty pleas. As the Court of Appeal pointed out,
however, the prosecutor advised the trial court that his office might seek appellate
review of the dismissal of the special circumstance allegation, and the trial court
advised defendant of the possibility that the special circumstance would be
reinstated. (People v. Superior Court (Jurado), supra, 4 Cal.App.4th at pp. 1234-
1235.) The Court of Appeal concluded: “Jurado was never in jeopardy for the
21
special circumstance, nor was he ever convicted or acquitted of that charge. Since
the special circumstance is not in a lesser- or greater-offense relationship to the
murder, there is no reason to allow Jurado’s tactical maneuver to deny the People
the right to a trial on the merits of that allegation.” (Id. at pp. 1235-1236.)
Defendant argues, first, that the United States Supreme Court’s decision in
Ring v. Arizona (2002) 536 U.S. 584, constitutes an intervening change in the law
establishing that a special circumstance making a defendant eligible for the death
penalty is the functional equivalent of an element of a greater offense of capital
murder. We need not decide whether defendant is correct that a special
circumstance is, for double jeopardy purposes, the functional equivalent of an
element of a greater offense. Even if that is true, and the Court of Appeal erred in
stating otherwise, it does not assist defendant because it is not a basis for
distinguishing Johnson, supra, 467 U.S. 493. There, the high court accepted the
Ohio Supreme Court’s determination that the defendant could not be convicted of
both murder and involuntary manslaughter for the same killing, but it nonetheless
concluded that a guilty plea to involuntary manslaughter did not bar prosecution
for murder under the facts of that case. (Johnson, supra, 467 U.S. at pp. 496-497
& fn. 6.) So also here, for purposes of double jeopardy analysis under the facts
shown, it make no difference whether a special circumstance is or is not an
element, or the functional equivalent of an element, of a greater offense.
Defendant’s second argument is that Johnson, supra, 467 U.S. 493, is
distinguishable, and that the Court of Appeal’s reliance on that decision was a
manifest misapplication of the law, because unlike the defendant in Johnson, he
pled guilty to all charges then pending against him and the prosecutor openly and
actively participated in the taking of these pleas. We are unpersuaded that these
slight differences are significant. The prosecution charged defendant with murder
with a special circumstance allegation, it timely sought review of the trial court’s
22
erroneous dismissal of the allegation, and it did not acquiesce in defendant’s guilty
plea to the murder charge. The prosecutor’s participation in the taking of the
guilty plea, primarily in the form of insisting that an adequate factual basis be
demonstrated, was not an “effort to prosecute the charges seriatim” (Johnson,
supra, 467 U.S. at p. 500, fn. 9) and did not pose the risks that the successive
prosecution aspect of the double jeopardy bar was intended to guard against—
“repeated attempts to convict an individual, thereby exposing him to continued
embarrassment, anxiety, and expense, while increasing the risk of an erroneous
conviction or an impermissibly enhanced sentence” (id. at pp. 498-499). As in
Johnson, there was “none of the governmental overreaching that double jeopardy
is supposed to prevent,” and imposing a double jeopardy bar “would deny the
State its right to one full and fair opportunity to convict those who have violated
its laws.” (Id. at pp. 501-502.)
Because defendant has not shown that the Court of Appeal’s decision
rejecting his double jeopardy claim was a manifest misapplication of the law, that
it resulted in substantial injustice, or that there has been an intervening change in
the controlling law, the Court of Appeal’s decision is the law of the case on that
issue.
B. Vindictive Prosecution
On July 6, 1992, after the Court of Appeal’s decision reinstating the special
circumstance allegation became final, the prosecutor announced that his office had
decided to seek the death penalty against defendant. On August 20, 1992,
defendant filed a motion to bar the prosecutor from seeking the death penalty on
the ground that the decision to do so was vindictive. On September 4, 1992, the
prosecutor filed written opposition to the motion, and on September 11, 1992,
defendant withdrew his guilty pleas and entered pleas of not guilty. Also on
23
September 11, 1992, the trial court denied the motion alleging vindictive
prosecution. Defendant now claims the trial court erred in so ruling.
“Absent proof of invidious or vindictive prosecution, as a general matter a
defendant who has been duly convicted of a capital crime under a constitutional
death penalty statute may not be heard to complain on appeal of the prosecutor’s
exercise of discretion in charging him with special circumstances and seeking the
death penalty.” (People v. Lucas (1995) 12 Cal.4th 415, 477.) But the due
process clauses of the federal and state Constitutions (U.S. Const., 5th & 14th
Amends.; Cal. Const., art. I, §§ 7, 15) forbid the prosecution from taking certain
actions against a criminal defendant, such as increasing the charges, in retaliation
for the defendant’s exercise of constitutional rights. (United States v. Goodwin
(1982) 457 U.S. 368, 372; In re Bower (1985) 38 Cal.3d 865, 880, fn. 7.) It is not
a constitutional violation, however, for a prosecutor to offer benefits, in the form
of reduced charges, in exchange for a defendant’s guilty pleas, or to threaten to
increase the charges if the defendant does not plead guilty. (Bordenkircher v.
Hayes (1978) 434 U.S. 357, 365; see People v. Collins (2001) 26 Cal.4th 297,
309, fn. 4.) In the pretrial setting, there is no presumption of vindictiveness when
the prosecution increases the charges or, as here, the potential penalty. (United
States v. Goodwin, supra, at pp. 381-382; People v. Michaels (2002) 28 Cal.4th
486, 515.) Rather, the defendant must “prove objectively that the prosecutor’s
charging decision was motivated by a desire to punish him for doing something
the law plainly allowed him to do.” (United States v. Goodwin, supra, at p. 384,
fn. omitted; People v. Michaels, supra, at p. 515.)
The only evidence defendant submitted to the trial court to prove his claim
of vindictive prosecution was a declaration by his trial attorney recounting certain
events leading up to the prosecutor’s announcement of the decision to seek the
death penalty. On August 16, 1991, when defendant was arraigned on an
24
information charging him with the murder of Teresa Holloway and alleging the
special circumstance of lying in wait, the prosecutor, Deputy District Attorney
Mark Pettine, announced that his office was not seeking the death penalty. On
October 11, 1991, an amended information was filed adding the charge of
conspiracy to commit murder. On November 15 through 19, 1991, Brian Johnsen
testified at a conditional examination, describing how he and defendant had
discussed a plan to kill Doug Mynatt and how defendant later admitted killing
Teresa Holloway because “it had to be done.” Two days later, on November 21,
the trial court dismissed the special circumstance allegation and defendant pled
guilty to the remaining charges.
The prosecution then challenged the dismissal of the special circumstance
allegation by petitioning the Court of Appeal for a writ of mandate. In late March
or early April of 1992, after the Court of Appeal had granted the petition, but
before its decision had become final, Deputy District Attorney Pettine told
defendant’s trial attorney that if defendant withdrew his guilty pleas, Pettine
would talk to the District Attorney about whether to seek the death penalty, but if
defendant did not withdraw the guilty pleas it was likely that the death penalty
would not be sought.3 A few weeks later, however, Pettine advised defense
counsel that he intended to discuss the death penalty with the district attorney
3
On April 27, 1992, the trial court held a hearing to discuss the status of the
case. Defense counsel announced that defendant intended to petition this court for
review of the Court of Appeal’s decision reinstating the special circumstance
allegation, and that regardless of the outcome of that effort defendant did not
intend to withdraw his guilty pleas. Deputy District Attorney Pettine announced
that he had discussed with the district attorney whether to seek the death penalty,
and the district attorney said that no decision would be made until defendant
decided whether he would withdraw his guilty pleas. Pettine said he would
discuss the matter with the district attorney again in light of defendant’s decision
not to withdraw his guilty plea, but he explained that “all options are still open.”
25
whether or not defendant withdrew his guilty pleas, but he implied that the death
penalty might not be sought if defendant admitted the special circumstance
allegation. On July 6, 1992, at a hearing in superior court to discuss the status of
the case, after defense counsel announced that this court had denied defendant’s
petition for review of the Court of Appeal’s decision reinstating the special
circumstance allegation, Deputy District Attorney Pettine stated that he had again
met with the district attorney, who had decided to seek the death penalty against
defendant, and that he had immediately advised defense counsel of that decision.
Like the trial court, we see in this sequence of events no evidence that the
prosecution’s decision to seek the death penalty against defendant was motivated
by a desire to punish defendant for making the motion to dismiss the special
circumstance allegation under section 995, for pleading guilty and attempting to
assert a double jeopardy bar, for opposing the prosecution’s writ petition in the
Court of Appeal, or for petitioning this court to review the Court of Appeal’s
decision. Although the discussions between Deputy District Attorney Pettine and
defense counsel suggest that the decision to seek the death penalty may have been
influenced to some extent by defendant’s decision to deny the special
circumstance allegation, this was not an impermissible consideration.
(Bordenkircher v. Hayes, supra, 434 U.S. at p. 365; People v. Collins, supra, 26
Cal.4th at p. 309, fn. 4.)
Defendant argues, in substance, that the prosecution’s decision to seek the
death penalty against defendant must have been motivated by a desire to punish
him for challenging the validity of the special circumstance allegation through his
section 995 motion because nothing else of significance occurred between August
16, 1991, when the prosecutor said his office was not seeking the death penalty,
and July 6, 1992, when the prosecutor said it was. We disagree. In September
1991, Brian Johnsen told prosecution investigators of defendant’s involvement in
26
a plan to kill Doug Mynatt; in November 1991, the prosecutor conditionally
examined Brian Johnsen and assessed the credibility of his testimony; and, in early
1992, at Anna Humiston’s trial for the murder of Teresa Holloway, the
prosecution had an opportunity to assess the strength of its case. These events
could well have caused the prosecution to reassess its decision about the
appropriate penalty in this case.
Defendant argues that Brian Johnsen’s information could not have been
significant because the prosecution did not decide to seek the death penalty until
many months after receiving that information. We disagree. Because of its
concerns for the safety of Brian Johnsen and Doug Mynatt, the prosecution
decided to conditionally examine Johnsen immediately after disclosing the
information obtained from him. Two days after that conditional examination
ended, the trial court dismissed the special circumstance allegation. It was only
months later that the special circumstance was reinstated, and the prosecution then
immediately reassessed its decision and announced its intention to seek the death
penalty. Thus, the actual window of time for the prosecution to act on Brian
Johnsen’s information was not many months, as defendant asserts, but only a few
days. No inference of improper motive arises from the prosecution’s failure to act
during this brief period. Moreover, the decision to seek the death penalty
ultimately did not rest on Johnsen’s information alone, but also on the
prosecution’s opportunity to preview its case at the Humiston trial, including the
testimony of Denise Shigemura.
Because defendant did not present evidence of a vindictive motive for the
prosecution’s decision to seek the death penalty, the trial court did not err in
denying defendant’s motion to bar the prosecution from seeking that penalty.
27
C. Voir Dire Procedures
In Hovey v. Superior Court (1980) 28 Cal.3d 1, 80, this court decided that
in capital prosecutions the death-qualification portion of each prospective juror’s
voir dire should be sequestered, meaning that it should be conducted out of the
presence of other prospective jurors. This court did not hold that sequestered voir
dire was constitutionally required; instead, we mandated this practice as a rule of
procedure. (See People v. Vieira (2005) 35 Cal.4th 264, 286-287; People v. Cudjo
(1993) 6 Cal.4th 585, 628.) In 1990, however, the voters abrogated this aspect of
Hovey by enacting Proposition 115, which added section 223 to the Code of Civil
Procedure. That statute provides, in part, that “where practicable” the trial court
must conduct voir dire “in the presence of the other jurors in all criminal cases,
including death penalty cases.” (Code Civ. Proc., § 223.)
The jury selection process in this case began with hardship screening, after
which the remaining prospective jurors filled out a lengthy juror questionnaire. To
comply with the statutory mandate that voir dire occur in the presence of other
jurors “where practicable” (Code Civ. Proc., § 223), the trial court decided to
conduct voir dire, including questioning about the death penalty, with small
groups of 10 prospective jurors. Before the voir dire of the first small group, the
defense requested individual voir dire of five prospective jurors who, in the view
of defense counsel, had “expressed very strong attitudes toward the death penalty”
in their questionnaire responses. The trial court denied the request but stated that
it would reconsider the matter based on the individual jurors’ answers during voir
dire. Thereafter, however, the court agreed to separate4 or sequestered voir dire of
4
In some instances, jurors who expressed strong death penalty views on the
questionnaire responses were questioned with others who had expressed similar
views but out of the presence of jurors who had not expressed such views.
28
prospective jurors whose questionnaire responses indicated strong opposition to
the death penalty, and the court said that it would do the same if questionnaire
responses indicated a bias in favor of the death penalty. The court followed this
procedure during the remainder of the voir dire, providing sequestered death-
qualification voir dire for any juror who had expressed particularly strong views
about the death penalty, either for or against, in filling out the questionnaire, and
inviting counsel to assist in identifying the prospective jurors for whom
sequestered voir dire would be appropriate. After nearly 100 prospective jurors
had been questioned on voir dire in this manner, and challenges for cause had been
made and ruled upon, the jury selection process was completed by the exercise of
peremptory challenges. The defense expressed satisfaction with the jurors
selected, and they were sworn to try the case.
Defendant contends that the trial court’s failure to conduct sequestered
death-qualification voir dire—that is, to question each prospective juror on
subjects relating to the death penalty out of the presence of other prospective
jurors—violated his rights under the federal Constitution to due process, equal
protection, jury trial, effective assistance of counsel, and a reliable penalty verdict,
and his right under California law to individual juror voir dire when group voir
dire is not practical.
Insofar as defendant contends that the federal Constitution requires
sequestered death-qualification voir dire of every prospective juror in a capital
case, the claim has been frequently rejected by this court and is without merit.
(People v. Stitely (2005) 35 Cal.4th 514, 536-537; People v. Vieira, supra, 35
Cal.4th at pp. 286-287; People v. Box (2000) 23 Cal.4th 1153, 1180.)
29
Insofar as defendant contends that the trial court violated his rights under
the federal Constitution and under California law by failing to exercise its
discretion to consider whether group voir dire was “practicable,” the record in this
case does not support his claim. Rather, the trial court clearly understood it had
discretion to order individual voir dire, and it did so for those jurors whose
questionnaire responses suggested strong and possibly disqualifying views
regarding imposition of the death penalty. The trial court did not abuse its
discretion under Code of Civil Procedure section 223, nor did it violate
defendant’s constitutional rights. (People v. Box, supra, 23 Cal.4th at pp. 1180-
1181.)
D. Batson/Wheeler Claim
During jury selection, after the prosecution used its ninth peremptory
challenge to excuse B.J., a Black woman, the defense made an objection under
People v. Wheeler (1978) 22 Cal.3d 258. The trial court stated that it would hear
argument on the objection at the next recess. The prosecution then used its
eleventh peremptory challenge against N.M., another Black woman. After the
prosecutor had exercised 12 peremptory challenges and the defense had exercised
13 peremptory challenges, both sides expressed satisfaction with the jury as
constituted, and the jurors were sworn to try the case. Alternate jurors were then
selected and sworn.
30
During the next recess, the defense presented argument on the Wheeler
objection. Defense counsel stated that the objection was under Batson v. Kentucky
(1986) 476 U.S. 79 (Batson) as well as Wheeler and that “[t]he racial group we are
talking about in this instance is African American, specifically African American
women.” The court asked whether the challenge was “based on the race of the
two jurors who were excused.” Defense counsel replied that it was based on “race
and gender,” that the prosecutor had excused two of the three African-American
women who were on the jury panel, and that defense counsel believed this was
sufficient to raise an inference of impermissible discrimination.
In response, the prosecutor argued that the defense was improperly
“interrelating classes” and that the presence of seven women on the jury showed
there had been no discrimination against women. The prosecutor also noted that
of the four African-Americans on the initial panel, he had challenged two, the
defense had challenged one, and one was seated on the jury. Defense counsel
responded that, as to gender, the prosecution had used eight of 12 peremptory
challenges against women. The trial court stated that “out of an abundance of
caution” it was giving the prosecution “the opportunity to offer whatever
nongender-based or nonracially based rationale you care to offer for the
challenges.”
The prosecutor said he challenged N.M. because she “indicated that she
thought there was some problems with the district attorney’s office handling high-
profile cases” and because she “indicated that she had a brother that had been
arrested and prosecuted for drugs.” The prosecutor said he challenged B.J.
because her “son was prosecuted by our office, and she was an alibi witness in that
case” and because “she’s probably one of the most hostile jurors that I’ve ever
questioned.” The prosecutor added: “I think that she feels very, very upset with
the prosecution of her son.” Defense counsel declined the trial court’s invitation
31
to comment on these reasons, stating: “We would submit for the court’s ruling on
it.” The trial court then ruled on this aspect of the challenge, stating: “I think the
People—their explanation I think convinces me that the challenges to [B.J.] and
[N.M.] were not racially motivated or based upon their race.”
The trial court then “out of an abundance of caution” asked the prosecutor
to provide reasons for its peremptory challenges against the other six women. The
prosecutor asked for time to review his notes and papers, and the court agreed to
take up the matter later. The prosecutor noted that the defense had used most of
its peremptory challenges against men, possibly as many as 11 out of 13
challenges. The court replied, in substance, that it did not think that was relevant
in ruling on the defense challenge: “I’m not sure two wrongs make a right . . . .”
The next day, the prosecutor provided reasons for the remaining six
peremptory challenges to women. The prosecutor said he challenged L.J.
“because she indicated on five different places on the questionnaire that she was
against the death penalty.” He challenged J.O. because she “indicated on her
questionnaire that she felt she was a wishy-washy person,” that she “had
difficult[y] making up her mind,” that “pressure from other jurors might start her
to doubt herself,” and that “she thinks she is a bad judge of character.” He
challenged N.J. because she stated on her questionnaire that “the burden of
deciding a person’s life was really just too great a decision for her to make.” He
challenged F.C. because she stated on her questionnaire that she would “find it
difficult” to vote for death and the prosecutor thought she had “a clear leaning
against the death penalty.” He challenged L.H. because “a fair reading of her
questionnaire is that she hasn’t made up her mind” about the death penalty, and
because “a fair reading of her statements in court was that she really is much
opposed to the death penalty.” He challenged B.B. because she wrote on her
questionnaire that “she had religious and philosophical views so that she would
32
always vote against the death penalty” and because he thought she might have
difficulty understanding spoken English. Finally, he challenged M.B. because she
was 73 years old and appeared to be “basically overwhelmed” and because she
had apologized for believing in the death penalty.
After hearing defense counsel’s argument in response, the trial court
overruled the defense objection, stating: “I’m satisfied that the district attorney
has made an explanation for each of these challenges which persuades me that
they were not solely or sufficiently based on gender that they should be held to
have violated [defendant’s] constitutional rights.”
Defendant contends that the trial court erred in overruling the
Batson/Wheeler objection because the prosecutor’s reasons for the peremptory
challenges “found little or no support in the record” and because the trial court
“failed in its duty to seriously evaluate the credibility of the prosecutor’s excuses
and make a reasoned determination of whether purposeful discrimination existed.”
Defendant contends that this error violated his rights under the federal
Constitution to a fair trial, to due process of law, and to equal protection of the
law, and his rights under the state Constitution to trial by a jury drawn from a
representative cross-section of the community.
The use of peremptory challenges to remove prospective jurors because of
their race or gender violates both the federal and the California Constitutions.
(J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127, 129; Powers v. Ohio (1991)
499 U.S. 400, 409; Batson, supra, 476 U.S. at p. 89; People v. McDermott (2002)
28 Cal.4th 946, 969.) The United States Supreme Court has set out a three-step
process to be followed when a party claims that an opponent has improperly
discriminated in the exercise of peremptory challenges. First, the complaining
party must make out a prima facie case of invidious discrimination. Second, the
party exercising the challenge must state nondiscriminatory reasons for the
33
challenge. Third, the trial court must decide whether the complaining party has
proved purposeful discrimination. (Johnson v. California (2005) 545 U.S. __ [125
S.Ct. 2410, 2416]; Purkett v. Elem (1995) 514 U.S. 765, 767; People v. Silva
(2001) 25 Cal.4th 345, 384.)
By asking the prosecutor to explain the peremptory challenges, the trial
court here implicitly found that defendant had made a prima facie showing of
impermissible discrimination in the exercise of peremptory challenges. (People v.
Cash (2002) 28 Cal.4th 703, 723.) Once the trial court ruled on the credibility of
the prosecutor’s stated reasons, the issue of whether the defense had made a prima
showing became moot. (Hernandez v. New York (1991) 500 U.S. 352, 359;
People v. Arias (1996) 13 Cal.4th 92, 135.)
When a trial court has made a sincere and reasoned effort to evaluate each
of the stated reasons for a challenge to a particular juror, we accord great
deference to its ruling, reviewing it under the substantial evidence standard.
(People v. McDermott, supra, 28 Cal.4th at p. 971; People v. Cash, supra, 28
Cal.4th at p. 725.)
We consider each of the eight challenged jurors, taking them in the order in
which the prosecutor provided reasons for the peremptory challenges.
The prosecutor’s stated reasons for challenging N.M. were that she
“indicated that she thought there was some problems with the district attorney’s
office handling high-profile cases” and because she “indicated that she had a
brother that had been arrested and prosecuted for drugs.” These reasons are
neutral as to race and gender, they are not inherently implausible, and substantial
evidence supports the trial court’s finding on the credibility of this explanation. In
response to a question on the juror questionnaire asking whether she had “any
specific feeling for or against . . . prosecutors (district attorneys),” she marked
“yes” and explained: “There seems to be many problems with high-profile cases.”
34
In response to another question, she indicated that a close relative or friend had
been arrested, charged, and tried for a crime, and she explained: “Brother arrested
for possession of drugs.”
Defendant argues that the prosecutor’s reasons for challenging N.M. are not
credible because other jurors whom the prosecutor did not challenge, and who
were ultimately seated on the jury, also had relatives who had been arrested for
drug-related offenses. Even if we assume we must conduct a comparative juror
analysis for the first time on appeal (see Miller-El v. Dretke (2005) 545 U.S. ___,
fn. 2 [125 S.Ct. 2317, 2326, fn. 2]; People v. Schmeck (2005) 37 Cal.4th 240, 270;
People v. Gray, supra, 37 Cal.4th at pp. 188-189), defendant does not identify any
seated juror who gave responses similar to N.M.’s on both of the topics mentioned
by the prosecutor. Although some of the seated jurors had relatives who had been
arrested for drug-related offenses, none of these jurors also expressed any feelings
against prosecutors.
The prosecutor said he challenged B.J. because her “son was prosecuted by
our office, and she was an alibi witness in that case” and because “she’s probably
one of the most hostile jurors that I’ve ever questioned.” The prosecutor added:
“I think that she feels very, very upset with the prosecution of her son.” These
reasons are neutral as to race and gender, they are not inherently implausible, and
substantial evidence supports the trial court’s finding on the credibility of this
explanation. On voir dire, B.J. said that she had been an alibi witness in her son’s
trial in San Diego County, that the case was dismissed after two trials resulted in
hung juries, and that her experiences with the police in that case “were not very
favorable,” although she denied having negative feelings toward the prosecutor or
the criminal justice system. When the prosecutor stated that B.J. was “probably
one of the most hostile jurors” he had ever questioned, the trial court said, “I recall
having that same impression when we were talking to her.” Defense counsel did
35
not dispute this characterization of B.J.’s demeanor on voir dire, instead merely
submitting the matter.
The prosecutor’s stated reason for challenging L.J. was that “she indicated
on five different places on the questionnaire that she was against the death
penalty.” The record supports this statement, which provides a credible and
gender-neutral ground for challenge. Skepticism about the death penalty is a
permissible basis for a prosecutor’s exercise of a peremptory challenge. (People v.
Panah (2005) 35 Cal.4th 395, 441; People v. McDermott, supra, 28 Cal.4th at
pp. 970-971.)
The prosecutor’s stated reasons for challenging J.O. were that she
“indicated on her questionnaire that she felt she was a wishy-washy person,” that
she “had difficult[y] making up her mind,” that “pressure from other jurors might
start her to doubt herself,” and that “she thinks she is a bad judge of character.”
The record supports these reasons, which provide credible and gender-neutral
grounds for challenge. A prosecutor could reasonably be concerned about a juror
who said she was a bad judge of character because she would “believe any hard
luck story.”
The prosecutor’s stated reason for challenging N.J. was her questionnaire
response that “the burden of deciding a person’s life was really just too great a
decision for her to make.” This is an accurate description of one of N.J.’s
questionnaire responses, in which she marked the “no” response to a question
asking whether she would like to serve as a juror on this case, adding this
explanation: “The burden of decision for a person’s life—either the death
sentence or life imprisonment.” This response provides a legitimate and credible
reason for the challenge.
The prosecutor said he challenged F.C. because she stated on her
questionnaire that she would “find it difficult” to vote for death and the prosecutor
36
thought she had “a clear leaning against the death penalty.” In response to a
question asking for her “feelings about the death penalty,” F.C. wrote on her
questionnaire, “In a few cases it may be necessary, but in general I would find it
difficult to give this recommendation.” These reservations about the death penalty
provided a permissible basis for a prosecutor’s exercise of a peremptory challenge.
(People v. Panah, supra, 35 Cal.4th at p. 441; People v. McDermott, supra, 28
Cal.4th at pp. 970-971.)
The prosecutor said he challenged L.H. because “a fair reading of her
questionnaire is that she hasn’t made up her mind” about the death penalty, and
because “a fair reading of her statements in court was that she really is much
opposed to the death penalty.” In response to the question asking for her “feelings
about the death penalty,” L.H. wrote this response: “Well, it seems that killing a
person by the death penalty for killing someone else is confusing. What will
sentencing someone to die do for our society? I’m not sure of this ‘eye for an eye’
sentence.” In response to a question asking what purpose or purposes the death
penalty serves, she wrote: “I’m not sure it does serve a valid purpose.
Unfortunately, it seems to be disproportionately given to non-whites. Also,
there’s no going back once it’s done—what if new evidence comes to light?” Her
responses on voir dire also revealed skepticism about the death penalty. These
reservations about the death penalty provided a legitimate, credible, gender-neutral
basis for a prosecutor’s exercise of a peremptory challenge.
He challenged B.B. because she wrote on her questionnaire that “she had
religious and philosophical views so that she would always vote against the death
penalty” and because he thought she might have difficulty understanding spoken
English. The record supports these reasons. The questionnaire asked the
prospective jurors whether they had “any moral, religious, or philosophical
opposition to the death penalty so strong that [they] would be unable to impose the
37
death penalty regardless of the facts.” In response to this question, B.B. put a
check mark next to “yes,” with this explanation: “Thou shalt not kill, one of the
10 commandments of God.” She also indicated that she had been born in the
Philippines, thereby suggesting that English might not be her first language.
These are permissible, neutral, and credible reasons for the peremptory challenge
of B.B.
Finally, the prosecutor said he challenged M.B. because she was 73 years
old and appeared to be “basically overwhelmed” and because she had apologized
for believing in the death penalty. The record supports these reasons, which are
credible and gender neutral. The questionnaire asked the prospective jurors to
state their “feeling about the death penalty.” M.B. wrote in response: “I am sorry
to say but I am for the death penalty.” She also indicated on the questionnaire that
she would not like to serve as a juror on this case. On voir dire, when the
prosecutor asked her about this response, she said: “I have served on juries before
and I also been on election boards, I think somebody else should do it. You know,
my years living.”
We are unpersuaded by defendant’s argument that the trial court erred in
deferring argument on defendant’s Batson/Wheeler motion until the next recess,
which occurred after the jury selection process had been completed and a jury had
been sworn to try the case. Defense counsel did not object to this procedure at the
time, and in fact indicated that the defense was satisfied with the jury that was
sworn to try the case. Moreover, the swearing of the jury would not have made it
impossible for the trial court to grant effective relief in the event the court granted
the Batson/Wheeler motion. Although jeopardy attached with the swearing of the
jury, a Batson/Wheeler motion may be deemed a motion for mistrial and thus a
waiver of any double jeopardy defense. (See People v. Batts (2003) 30 Cal.4th
660, 679 [a defendant’s request for a mistrial waives any double jeopardy claim];
38
see also People v. Yeoman (2003) 31 Cal.4th 93, 115 [Wheeler motions often
termed motions for mistrial].)
We conclude that substantial evidence supports the trial court’s rulings
rejecting defendant’s Batson/Wheeler challenges on the basis of race and gender.
III. ISSUES RELATING TO GUILT AND SPECIAL CIRCUMSTANCES
A. Conditional Examination Testimony
Defendant contends that the trial court erred under state law in overruling
his objection to admission at trial of the conditional examination testimony of
Brian Johnsen, and that this error violated defendant’s constitutional rights to due
process, to counsel, to confrontation, and to fair and reliable determinations of
guilt and penalty under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution.
1. Factual background
On November 1, 1991, the trial court granted the prosecutor’s request under
section 1054.7 for an in camera hearing out of the presence of defendant and his
attorney to consider postponement or limitation of discovery. At the hearing, the
prosecutor told the court that in September 1991, during an interview with a
prosecution investigator, Brian Johnsen had said that defendant had killed
Holloway to prevent her from revealing a plan to kill a man named Doug Mynatt,
who was believed to have ties to the Hell’s Angels and whose whereabouts was
unknown. The prosecutor expressed concern that disclosure of this information to
the defense through the discovery process could endanger Mynatt’s life or cause
Mynatt to become a threat to the lives of Johnsen and Anna Humiston, who was
not then in custody. The prosecutor also stated his intention to secure Johnsen’s
testimony by conditional examination. The trial court granted the prosecutor a
39
one-week extension of the deadline for disclosure of the information obtained
during the September interview of Johnsen.
At a hearing on November 8, 1991, the prosecutor gave the defense an
investigator’s report of the September interview of Brian Johnsen, and the
prosecutor submitted a written motion for a conditional examination of Johnsen on
the ground that his life was in jeopardy (§ 1336, subd. (b)). Defendant’s attorney
asked for more time to study the report and the motion, but the trial court granted
the motion for conditional examination. The court observed, however, that under
section 1341, if the magistrate was convinced, on the date set for the conditional
examination, that Johnsen’s life was not in jeopardy, then the conditional
examination would not take place.
The conditional examination of Brian Johnsen, which was recorded on
videotape, began on November 15, continued on November 18, and concluded on
November 19, 1991. Thereafter, on July 6, 1992, the prosecutor announced that
he was seeking the death penalty against defendant, in part because of the
evidence disclosed at the conditional examination. On September 10, 1993, the
defense filed a motion to exclude the conditional examination at trial, primarily on
the ground that conditional examinations are not permitted in capital cases. After
receiving opposition to the motion from the prosecution, and holding a hearing,
the trial court denied the motion on October 29, 1993.
Defendant petitioned the Court of Appeal for a writ of mandate barring use
of the conditional examination at trial. The Court of Appeal denied the petition in
an unpublished opinion on December 2, 1993. This court granted defendant’s
petition for review of the Court of Appeal’s decision and transferred the matter
back to the Court of Appeal to reconsider in light of People v. Municipal Court
(Ahnemann) (1974) 12 Cal.3d 658 (stating that mandate is unavailable to resolve
40
an issue as to the admissibility of evidence). After reconsideration, the Court of
Appeal again denied the mandate petition, this time citing Ahnemann.
On March 22, 1994, defendant filed a motion asking the trial court to
reconsider his motion to exclude the conditional examination on the ground that
the controlling law had been clarified by the Court of Appeal’s decision in Dalton
v. Superior Court (1993) 19 Cal.App.4th 1506 (holding that in a capital case the
prosecution could not conditionally examine a witness whose life was in
jeopardy). The trial court agreed to reconsider its ruling, but after reconsideration
it again denied the motion to exclude the conditional examination.
Defendant sought appellate review of this ruling by again petitioning the
Court of Appeal for a writ of mandate. The Court of Appeal summarily denied the
petition, and this court denied defendant’s petition for review.
At trial, the parties stipulated to Brian Johnsen’s unavailability as a witness.
Over defendant’s continuing objection, the videotape of the conditional
examination was played for the jury. In his conditional examination testimony,
Johnsen described how he and Teresa Holloway had become acquainted with
defendant, Denise Shigemura, Anna Humiston, and Doug Mynatt, and how their
relationships had developed. His testimony provided the only evidence of the
telephone conversations in which the plan to kill Mynatt was discussed and
concern was expressed that Holloway not be told about the plan for fear she would
disclose it. His testimony also described a telephone conversation after
Holloway’s murder in which Johnsen asked defendant why he had killed
Holloway and defendant had replied that it had to be done.
2. Conditional examinations in capital cases
Defendant contends that conditional examinations are not permitted in
capital cases. He relies on section 1335, subdivision (a), which provides: “When
41
a defendant has been charged with a public offense triable in any court, he or she
in all cases, and the people in cases other than those for which the punishment
may be death, may, if the defendant has been fully informed of his or her right to
counsel as provided by law, have witnesses examined conditionally in his or her or
their behalf, as prescribed in this chapter.” (Italics added.) Defendant argues that
this provision bars the prosecution from conditionally examining any of its
witnesses in a capital case. In ruling the conditional examination admissible,
however, the trial court relied on subdivision (b) of the same section, which at the
time of defendant’s trial provided: “When a defendant has been charged with a
serious felony, the people may, if the defendant has been fully informed of his or
her right to counsel as provided by law, have a witness examined conditionally as
prescribed in this chapter if the people have evidence that the life of the witness is
in jeopardy.” (§ 1335, former subd. (b), as amended by Stats. 1985, ch. 783, § 2,
p. 2525.)5
On first reading, subdivision (a) and former subdivision (b) of section 1335
appear inconsistent. Subdivision (a) appears to generally prohibit the prosecution
from conditionally examining witnesses in cases “for which the punishment may
be death,” whereas former subdivision (b) appears to allow the prosecution to
conditionally examine a witness whose life is in jeopardy in any case in which the
defendant is charged with a serious felony.
5
The Legislature has since amended this subdivision to also allow a
defendant to take a conditional examination of a witness whose life is in danger.
(Stats. 2005, ch. 305, § 1.) It now reads: “When a defendant has been charged
with a serious felony, the people or the defendant may, if the defendant has been
fully informed of his or her right to counsel as provided by law, have witnesses
examined conditionally as prescribed in this chapter, if there is evidence that the
life of the witness is in jeopardy.” (§ 1335, subd. (b).)
42
To resolve this apparent inconsistency, we view the provisions in their
statutory context as part of an overall statutory scheme for conditional
examinations in criminal cases, seeking to harmonize the provisions in light of the
apparent legislative purpose. (Robert L. v. Superior Court (2003) 30 Cal.4th 894,
901; People v. Acosta (2002) 29 Cal.4th 105, 112; People v. Murphy (2001) 25
Cal.4th 136, 142.)
The statutory scheme for conditional examinations includes section 1336.
At the time of defendant’s trial, subdivision (a) of that section provided: “When a
material witness for the defendant, or for the people, is about to leave the state, or
is so sick or infirm as to afford reasonable grounds for apprehension that he or she
will be unable to attend the trial, the defendant or the people may apply for an
order that the witness be examined conditionally.” (Stats. 1985, ch. 783, § 3, p.
2525.) Subdivision (b) of section 1336 provided: “When the people have
evidence that the life of a prosecution witness is in jeopardy, the people may apply
for an order that the witness be examined conditionally.” (Stats. 1985, ch. 783,
§ 3, p. 2525.)6
Reading sections 1335 and 1336 together, it appears that the Legislature
may have intended to prohibit the prosecution in a capital case from taking a
6
Since defendant’s trial, the Legislature has amended section 1336 to
include witnesses 65 years of age or older and dependent adults, and to authorize
the defendant, as well as the prosecution, to take a conditional examination under
subdivision (b). (Stats. 2005, ch. 305, § 2.) Those subdivisions now read: “(a)
When a material witness for the defendant, or for the people, is about to leave the
state, or is so sick or infirm as to afford reasonable grounds for apprehension that
he or she will be unable to attend the trial, or is a person 65 years of age or older,
or a dependent adult, the defendant or the people may apply for an order that the
witness be examined conditionally. [¶] (b) When there is evidence that the life of
a witness is in jeopardy, the defendant or the people may apply for an order that
the witness be examined conditionally.” (§ 1336, subds. (a)-(b).)
43
conditional examination of a witness for any of the reasons stated in subdivision
(a) of section 1336—illness, dependency, age, or impending departure from the
state—but to permit the prosecution in a capital case to conditionally examine a
witness whose life is in jeopardy. This reading would resolve the apparent
inconsistency between subdivision (a) and former subdivision (b) of section 1335
and harmonize those provisions with section 1336.
Arguing against this construction, defendant relies on Dalton v. Superior
Court, supra, 19 Cal.App.4th 1506. The Court of Appeal there expressed the view
that allowing the prosecution to conditionally examine a witnesses in a death
penalty case only when the witness’s life was in jeopardy “would create a
distinction in the use of preserved testimony which seemingly would have no
justification” in that “the testimony of a witness who is to die before the death
penalty trial because of natural causes could not be preserved, while that same
witness’s testimony could be preserved if the threat of nonattendance at trial were
based upon possible kidnap or murder.” (Dalton, supra, at p. 1512.) We do not
view this distinction as irrational, however. When a prosecution witness may die
before trial from natural causes, the prosecution risks the loss of important
evidence. This same interest is at stake when the witness’s life is in jeopardy from
criminal violence, but there is in addition the strong public interest in deterring
criminal conduct in the form of an actual or attempted murder of the witness.
Recognizing the presence of this additional interest, the Legislature could
reasonably decide to authorize prosecutorial conditional examinations in capital
cases when the witness’s life is in jeopardy from criminal violence, to remove the
incentive a capitally charged defendant or his or her allies might otherwise have to
murder prosecution witnesses to prevent them from testifying.
This construction is also consistent with the history of conditional
examinations in criminal cases in California. As enacted in 1879, the California
44
Constitution granted the Legislature power to authorize prosecutorial conditional
examinations “in criminal cases, other than cases of homicide.” (Cal. Const.,
former art. 1, § 13, repealed Nov. 5, 1974.) In 1905, the Legislature exercised this
constitutionally granted authority by providing, in section 1335, for conditional
examinations of prosecution witnesses in cases “other than homicide.” (Stats.
1905, ch. 540, § 1, p. 702.) In 1951, section 1335 was amended to permit
conditional examinations of prosecution witnesses in cases other than “those for
which the punishment may be death.” (Stats. 1951, ch. 96, § 1, p. 354.) In 1974,
the state Constitution was amended to remove the prohibition on conditional
examinations in capital cases. The relevant provision now reads: “The
Legislature may provide for the deposition of a witness in the presence of the
defendant and the defendant’s counsel.” (Cal. Const., art. 1, § 15, cl. 4.) In 1985,
the Legislature amended section 1335 to permit the prosecution to take a
conditional examination when the defendant has been charged with a serious
felony and there is evidence the witness’s life is in jeopardy. (Stats. 1985, ch. 783,
§ 2, p. 2525.) We infer that, after the 1974 constitutional amendment removed the
blanket prohibition on conditional examinations by the prosecution in capital
cases, the Legislature used its new authority in 1985 to authorize the prosecution
to take conditional examinations in capital cases in the limited situation where the
witness’s life is threatened.
The 1985 amendment of sections 1335 and 1336 was included in Assembly
Bill No. 2059 (1985-1986 Reg. Sess.), which also added section 1350 to the
Evidence Code. That provision establishes an exception to the hearsay rule for a
statement by an unavailable declarant when, among other things, “[t]here is clear
and convincing evidence that the declarant’s unavailability was knowingly caused
by, aided by, or solicited by the party against whom the statement is offered for
the purpose of preventing the arrest or prosecution of the party and is the result of
45
the death by homicide or the kidnapping of the declarant.” (Evid. Code, § 1350,
subd. (a)(1).) Like the “life in jeopardy” provision for conditional examinations
(§ 1335, subd. (b)), the hearsay exception of Evidence Code section 1350 applies
in criminal proceedings in which a serious felony is charged (id., subd. (a)), and
“serious felony” is defined to include felonies listed in subdivision (c) of section
1192.7. (Compare Evid. Code, § 1350, subd. (d), with Pen. Code, § 1335, subd.
(c).) Those listed felonies include “any felony punishable by death . . . .”
(§ 1192.7, subd. (c)(7).) Because they were packaged together, it is reasonable to
infer that the adoption of the hearsay exception in Evidence Code section 1350
and the amendment of the conditional examination provisions of Penal Code
sections 1335 and 1336 address a common problem and result from a common
Legislative concern—criminal violence against prospective prosecution witnesses
to prevent their testimony. The risk that this will occur likely increases in
proportion to the potential punishment for the charged offense, and thus it is
greatest in capital cases. Absent language expressly barring application of these
provisions to capital cases, therefore, it is reasonable to infer that the Legislature
intended to permit the prosecution to conditionally examine witnesses in capital
cases when there is evidence that their lives are in serious danger.
We conclude, therefore, that under subdivision (b) of section 1335,
conditional examination of a prosecution witness is permitted in a capital case
when the witness’s life is in jeopardy.7
7
Dalton v. Superior Court, supra, 19 Cal.App.4th 1506, is disapproved.
46
3. Required showing for conditional examination
Defendant argues, next, that the prosecution should not have been allowed
to conditionally examine Brian Johnsen because there was no evidence that his life
was in jeopardy.
Section 1335, subdivision (b), permits the prosecution to conditionally
examine a witness “if there is evidence that the life of the witness is in jeopardy.”
(Italics added.) Section 1336, subdivision (b), similarly requires the prosecution
to produce evidence to support a claim that a witness’s life is jeopardy. Section
1337 provides that an application for conditional examination “shall be made upon
affidavit stating” among other things “that the life of the witness is in jeopardy.”
Section 1338 requires that the application be made on “three days’ notice to the
opposite party,” and section 1339 provides that “[i]f the court or judge is satisfied
that the examination of the witness is necessary, an order must be made that the
witness be examined conditionally, at a specified time and place, and before a
magistrate designated therein.”
Here, the prosecution’s application to conditionally examine Brian Johnsen
was supported by evidence in the form of a declaration of Deputy District
Attorney Pettine stating, in relevant part: “I am informed that witness Brian
Johnsen was directly involved with defendants Shigemura and Jurado in a plot to
kill Doug Mynatt. According to Mr. Johnsen, the defendants, acting on their own
and without the knowledge of Mr. Johnsen, killed victim Teresa Holloway so that
she would not disclose the plan to murder Mr. Mynatt. Mr. Mynatt’s current
whereabouts is unknown. Mr. Johnsen, who was in custody on the date of the
Holloway murder, is currently out of custody. [¶] Declarant believes that once
this information becomes known, witness Brian Johnsen’s life will be jeopardized
by Mr. Mynatt, the defendants, and/or their associates.”
47
The trial court granted the application without allowing the defense the
three days’ notice specified in section 1338, but the court said that under section
1341 the conditional examination would not take place if, on the day set for the
conditional examination, the defense was able to show to the magistrate’s
satisfaction that Johnsen’s life was not in danger.8 The conditional examination
began a week later. Before it began, defendant offered no evidence that Johnsen’s
life was not in danger.
The prosecution satisfied the requirements of sections 1335, 1336, and
1337 by submitting a declaration stating that Johnsen’s life was in danger from
Doug Mynatt, defendant and his codefendants, and their associates. In granting
the prosecutor’s application for a conditional examination, the trial court did not
abuse the broad discretion with which the statutory scheme vested it. In particular,
it was not necessary, under the circumstances of this case, for the prosecution to
present evidence that anyone had expressly threatened Johnsen or conspired to
harm him. Because of the evidence that defendant, Shigemura, and Humiston had
killed Holloway to prevent her from exposing a plot to kill Mynatt, the trial
court—who both granted the application for conditional examination and served
as magistrate in the taking of the examination—could justifiably conclude that
defendant and the persons with whom he associated would be likely to use deadly
force against anyone perceived as a threat, and that the substance of Johnsen’s
8
In full, at the time of defendant’s trial, section 1341 read: “If, at the time
and place so designated, it is shown to the satisfaction of the magistrate that the
witness is not about to leave the state, or is not sick or infirm, or that the life of the
witness is not in jeopardy, or that the application was made to avoid the
examination of the witness on the trial, the examination cannot take place.” (Stats.
1985, ch. 783, § 5, p. 2525.) Since defendant’s trial, section 1341 has been
amended to include witnesses 65 years of age or older and dependent adults.
(Stats. 2005, ch. 305, § 4.)
48
proposed testimony made him an actual or potential threat to defendant and his
codefendants, and also to Mynatt.
Although defendant did not receive the three days’ notice to which section
1338 entitled him, he was not prejudiced by the shortened notice because seven
days elapsed before the conditional examination began during which, under
section 1341, defendant could have presented evidence to contradict the
prosecutor’s declaration that Brian Johnsen’s life was in danger. We conclude that
defendant has failed to show that any prejudicial error occurred in the taking of
Brian Johnsen’s conditional examination.
4. Admission of conditional examination at trial
The prosecutor argued below, and the Attorney General argues in this
court, that even if the prosecution is prohibited from taking conditional
examinations in capital cases, that prohibition did not apply here because the
prosecutor had not yet decided to seek the death penalty, and indeed had
announced the death penalty would not be sought, when the trial court granted the
prosecution’s application for a conditional examination and when Brian Johnsen
was conditionally examined. In response to this argument, defendant argues that
even if it was proper to conditionally examine Johnsen because the prosecutor was
not then seeking the death penalty, it was error to admit Johnsen’s conditional
examination in evidence at defendant’s capital trial. Because we have concluded
that the prosecution in a capital case may conditionally examine a witness whose
life is in jeopardy, we need not address this issue.
Defendant also argues that admission of Brian Johnsen’s conditional
examination in evidence at trial denied him his rights under the federal
Constitution to due process, confrontation of adverse witnesses, and reliable guilt
and penalty determinations in a capital case. But Johnsen testified under oath at
49
the conditional examination, and defendant had a full and fair opportunity to
cross-examine him at that time. For purposes of due process, confrontation, and
reliability, the situation is no different than if Johnsen or any other witness had
testified at the preliminary hearing or at an earlier trial and then, because he had
become unavailable, his prior testimony was admitted at trial. When a defendant
has had an adequate opportunity for cross-examination and the witness is
unavailable at trial, use of prior testimony does not violate the defendant’s rights
under the federal Constitution. (People v. Wilson (2005) 36 Cal.4th 309, 343; see
Crawford v. Washington (2004) 541 U.S. 36, 55-57.)
Defendant asserts that he did not have an adequate opportunity to cross-
examine Brian Johnsen at the conditional examination because his attorneys later
acquired additional information that would have been useful in cross-examining
Johnsen. In particular, he calls our attention to the statements that Johnsen later
made, after he had been charged with capital murder,9 admitting that he was aware
of and agreed with defendant’s plan to kill Holloway. Again, however, the
situation is no different than if Johnsen had testified at defendant’s preliminary
hearing or at a prior trial of defendant on the same charges. Absent wrongful
failure to timely disclose by the prosecution, a defendant’s subsequent discovery
of material that might have proved useful in cross-examination is not grounds for
excluding otherwise admissible prior testimony at trial. (See People v. Samayoa
(1997) 15 Cal.4th 795, 851 [admission of prior testimony does not violate the right
of confrontation “regardless whether subsequent circumstances bring into question
the accuracy or the completeness of the earlier testimony.”].)
9
Brian D. Johnsen was sentenced to death on June 9, 1994, for crimes
committed in Stanislaus County.
50
B. Shigemura’s Out-of-court Statement
Defendant contends that the trial court erred in overruling defense hearsay
objections to the testimony of Steven Baldwin relating out-of-court statements by
Denise Shigemura. Baldwin testified that on the day after Holloway’s murder,
defendant and Shigemura came to his house with Mark Schmidt. As the four of
them sat together in the living room, Shigemura said to Baldwin: “I no longer
need what it was I asked you for. We took care of the problem and we dumped
the body at Balboa Park.” Baldwin testified that he thought Shigemura was
referring to a conversation a few days earlier during which she had asked him if he
could get her a “gat” because she had a problem she needed to take care of. The
trial court admitted this evidence under the adoptive admissions exception to the
hearsay rule.
“Evidence of a statement offered against a party is not made inadmissible
by the hearsay rule if the statement is one of which the party, with knowledge of
the content thereof, has by words or other conduct manifested his adoption or his
belief in its truth.” (Evid. Code, § 1221.) When a defendant remains silent after a
statement alleging the defendant’s participation in a crime, under circumstances
that fairly afford the defendant an opportunity to hear, understand, and reply, the
statement is admissible as an adoptive admission, unless the circumstances support
an inference that the defendant was relying on the right of silence guaranteed by
the Fifth Amendment to the United States Constitution. (People v. Riel (2000) 22
Cal.4th 1153, 1189; People v. Mayfield (1997) 14 Cal.4th 668, 741.)
Denise Shigemura’s out-of-court statement—“We took care of the problem
and we dumped the body at Balboa Park”—was admissible as an adoptive
admission by defendant. He must have heard and understood the statement
because he was sitting on the same couch with Shigemura, the circumstances
called for a denial or protest if the statement was inaccurate, nothing prevented
51
him from making a response, and nothing supports an inference that he was
relying on a constitutional right of silence. In this situation, the jury could
properly view defendant’s silence as adopting Shigemura’s statement.
Defendant claims that admission of this evidence violated his right of
confrontation under the Sixth Amendment to the federal Constitution. He did not,
however, make a specific objection on constitutional grounds at trial. Assuming
without deciding that the issue is preserved for appellate review (see People v.
Champion (1995) 9 Cal.4th 879, 908, fn. 6; see also People v. Partida (2005) 37
Cal.4th 428), the claim is without merit. The right of confrontation is not violated
when the jury hears evidence, from a witness subject to cross-examination,
relating a defendant’s own out-of-court statements and adoptive admissions.
(People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25; People v. Combs (2004) 34
Cal.4th 821, 842-843.)
As defendant points out, he was not present a few days before when
Shigemura asked Baldwin for a “gat” and said she needed it to take care of a
problem, so this earlier statement was not admissible as an adoptive admission.
The request for the gun, by itself, was not hearsay, however, because an out-of-
court statement is hearsay only when it is “offered to prove the truth of the matter
stated.” (Evid. Code, § 1200.) Because a request, by itself, does not assert the
truth of any fact, it cannot be offered to prove the truth of the matter stated. (See
People v. Mayfield, supra, 14 Cal.4th at p. 741 [pleas for help “were not hearsay
because they were not admitted for the truth of the matter stated”]; People v.
Bolden (1996) 44 Cal.App.4th 707, 714-715 [request that defendant “not come
around the house anymore” was not hearsay because it was not offered for the
truth of matter stated]; People v. Reyes (1976) 62 Cal.App.3d 53, 67 [“words of
direction or authorization do not constitute hearsay since they are not offered to
52
prove the truth of any matter asserted by such words”].) Thus, Shigemura’s
request for a gun was not hearsay.
Shigemura’s earlier out-of-court statement to Baldwin was hearsay insofar
as it asserted that Shigemura had a problem that she needed to take care of. The
Attorney General argues that it was admissible under the coconspirator exception
to the hearsay rule (Evid. Code, § 1223) because it was made to further a
conspiracy between defendant, Shigemura, and Brian Johnsen to kill Doug
Mynatt. There was no substantial evidence at trial, however, that these three
individuals reached any agreement to kill Doug Mynatt until the evening of May
15, 1991, shortly before Holloway’s murder, whereas Shigemura’s statement to
Baldwin occurred a day or two earlier. Accordingly, this statement was not
admissible under the coconspirator exception to the hearsay rule, and the trial
court erred in not excluding it.
Even if we assume this error violated defendant’s right of confrontation
under the federal Constitution, reversal is not required because defendant suffered
no prejudice. Shigemura repeated the substance of the earlier hearsay statement
(that she had a problem she needed to take care of) in defendant’s presence (“We
took care of the problem and we dumped the body at Balboa Park”) and defendant
by his conduct adopted that statement as his own. We conclude the error was
harmless beyond a reasonable doubt.
C. Sufficiency of the Evidence
Defendant contends that the evidence presented at the guilt phase was
insufficient to establish the premeditation element of first degree murder, the
lying-in-wait special circumstance, and the conspiracy conviction, and he asserts
that basing a conviction or special circumstance finding on insufficient evidence
violates his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
53
the federal Constitution to due process of law, a fair trial, and reliable verdicts in a
capital case.
“To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable, credible,
and of solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128;
accord, People v. Silva, supra, 25 Cal.4th at p. 368.)
A murder that is premeditated and deliberate is murder of the first degree.
(§ 189.) “In this context, ‘premeditated’ means ‘considered beforehand,’ and
‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course of
action.’ ” (People v. Mayfield, supra, 14 Cal.4th at p. 767.) “An intentional
killing is premeditated and deliberate if it occurred as the result of preexisting
thought and reflection rather than unconsidered or rash impulse.” (People v.
Stitely, supra, 35 Cal.4th at p. 543.) A reviewing court normally considers three
kinds of evidence to determine whether a finding of premeditation and
deliberation is adequately supported—preexisting motive, planning activity, and
manner of killing—but “[t]hese factors need not be present in any particular
combination to find substantial evidence of premeditation and deliberation.”
(Ibid.; see also People v. Combs, supra, 34 Cal.4th at p. 850; People v. Silva,
supra, 25 Cal.4th at p. 368.)
The evidence of preexisting motive was ample. During the days before
Holloway’s murder, defendant had talked to Brian Johnsen and Denise Shigemura
about whether they should kill Doug Mynatt, but they had decided not to tell
Teresa Holloway about this because of concern that she would reveal it to the
police. On the night of the murder, defendant told Johnsen that he had decided to
54
proceed with the plan to kill Mynatt and that it could not wait until Johnsen was
released from jail. Teresa Holloway then got on the phone and asked Johnsen
whether there was a plan to kill Mynatt. From this evidence, a rational juror could
infer that defendant had a motive to kill Holloway, to prevent her from revealing
his planned killing of Mynatt.
The evidence of planning activity was ample as well. Shortly before the
murder, defendant asked Mark Schmidt for a chain. When Schmidt offered
defendant an 18-inch length of plastic weed-eater cord, defendant wrapped the
cord around his own neck, with one end in each fist clenched at shoulder height,
and said: “It will do.” From these actions, a rational juror could infer that
defendant had already decided to use the cord to strangle Holloway. Defendant
then asked Schmidt to tell Teresa Holloway to get off the phone because he
(Schmidt) needed to leave the apartment. A rational juror could infer that
defendant made this request so that Holloway would be forced to leave Schmidt’s
apartment and then could be lured into Anna Humiston’s car, where the fatal
attack would take place. In the car, defendant positioned himself directly behind
Holloway. A rational juror could infer that defendant did so to facilitate his
planned strangulation of Holloway.
Because this evidence of preexisting motive and planning activity was by
itself sufficient to support the first degree murder conviction on a theory of
premeditation and deliberation, we need not review the evidence concerning the
manner of killing.
The lying-in-wait special circumstance requires proof of “an intentional
murder, committed under circumstances which include (1) a concealment of
purpose, (2) a substantial period of watching and waiting for an opportune time to
act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim
from a position of advantage.” (People v. Morales (1989) 48 Cal.3d 527, 557;
55
accord, People v. Combs, supra, 34 Cal.4th at p. 853; People v. Michaels, supra,
28 Cal.4th at p. 516.)
There is sufficient evidence that defendant concealed from Holloway his
purpose to kill her. As explained earlier, there is substantial evidence from which
a rational juror could infer that defendant had already formed this purpose when
he obtained a cord from Mark Schmidt that could be used to strangle Holloway.
He did not reveal that purpose to Holloway immediately by attacking her, but
instead lured her into Humiston’s car.
There is sufficient evidence of a substantial period of watching and waiting
for an opportune time to act. The place where Teresa Holloway’s body was found
was two to three miles from Mark Schmidt’s apartment. A rational juror could
infer that defendant did not attack Holloway immediately after luring her into
Humiston’s car, but instead waited for a substantial period while the car was
driven to a location where there was little risk that the attack would be observed
by other motorists or by pedestrians.
Finally, there is substantial evidence that once the car reached a suitable
location, defendant immediately launched a surprise attack on an unsuspecting
victim from a position of advantage. Defendant ensured a position of advantage
by occupying the back seat of Humiston’s car, directly behind Teresa Holloway.
From the blood evidence found in the car, the very nature of the planned attack,
and the lack of injury to defendant, Humiston, or Shigemura, a rational juror could
infer that Holloway was taken by surprise, with little or no opportunity to escape
or fight back.
In concluding that the evidence is sufficient to support the lying-in-wait
special circumstance, we are guided by this court’s decisions in People v. Combs,
supra, 34 Cal.4th 821, and People v. Morales, supra, 48 Cal.3d 527, which
involved nearly identical facts. In Combs and Morales, as here, the defendant
56
armed himself with a weapon suitable for use in strangulation, lured an
unsuspecting victim into the front seat of an automobile, positioned himself
directly behind the victim, waited until the car reached a suitable location, and
then launched a surprise attack on the unsuspecting victim. (People v. Combs,
supra, at p. 853; People v. Morales, supra, at p. 554.) In Morales, as here, the
defendant bludgeoned the victim to death after an initial attempt at strangulation
was unsuccessful. (People v. Morales, supra, at p. 554.)
We consider next defendant’s challenge to the sufficiency of the evidence
to support the conspiracy conviction.
“A conviction of conspiracy requires proof that the defendant and another
person had the specific intent to agree or conspire to commit an offense, as well as
the specific intent to commit the elements of that offense, together with proof of
the commission of an overt act ‘by one or more of the parties to such agreement’
in furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416;
accord, People v. Russo (2001) 25 Cal.4th 1124, 1131.) “Disagreement as to who
the coconspirators were or who did an overt act, or exactly what that act was, does
not invalidate a conspiracy conviction, as long as a unanimous jury is convinced
beyond a reasonable doubt that a conspirator did commit some overt act in
furtherance of the conspiracy.” (People v. Russo, supra, at p. 1135.)
Here, defendant’s plan to attack and kill Teresa Holloway in Anna
Humiston’s car required the cooperation of Humiston and Denise Shigemura.
There is ample evidence that one or both of them did agree or conspire to commit
the murder. Shigemura shared defendant’s motive to kill Holloway, because she
also had been part of the plot to kill Doug Mynatt and, like defendant, would be
put at risk if Holloway revealed that plot. Although there is no direct evidence
that defendant and Shigemura discussed in advance the killing of Holloway, there
was evidence that they were alone together at Mark Schmidt’s residence shortly
57
before the killing, during which a discussion and agreement could have taken
place. Shigemura’s later conduct provided additional evidence that she agreed to
the murder. She was driving Humiston’s car at the time of the fatal attack, she did
not separate herself from defendant or report the killing afterward, and with
defendant’s help she concocted a false story to explain why, on the night of
Holloway’s murder, she failed to return to the halfway house where she was then
required to live. As for Humiston, there was evidence that defendant engaged in
an intense conversation with her at Schmidt’s residence, that she allowed
Shigemura to drive her car, and that she did not report the murder afterward and
continued to associate with defendant. From this evidence, a rational juror could
conclude beyond a reasonable doubt that defendant and either Shigemura or
Humiston (or both) had the specific intent to agree or conspire to murder
Holloway, as well as the specific intent to commit the elements of murder.
The overt act requirement was also satisfied. The prosecution alleged five
overt acts in support of the conspiracy charge. Two alleged overt acts occurred
before Holloway’s murder (defendant, Denise Shigemura, and Anna Humiston
met with Teresa Holloway at Mark Schmidt’s residence and defendant,
Shigemura, Humiston, and Holloway left Schmidt’s residence in Humiston’s car);
two alleged acts occurred after the murder (defendant, Shigemura, and Humiston
placed Holloway’s body in the culvert and walked to a nearby phone from which
defendant called to request a ride); and one alleged act was the murder itself. The
jury returned “not true” findings on the preoffense overt acts allegations, but it
found each of the other overt act allegations to be true.
Commission of the target offense in furtherance of the conspiracy satisfies
the overt act requirement. (People v. Padilla (1995) 11 Cal.4th 891, 966.)
Because the jury found that defendant committed the murder itself in furtherance
of the conspiracy, and because substantial evidence supports that finding, the overt
58
act requirement is satisfied. Although defendant is correct that the overt act
requirement may not be satisfied by conduct occurring after the target offense is
complete (People v. Zamora (1976) 18 Cal.3d 538, 560), defendant was not
prejudiced by the jury’s consideration of the invalid postoffense overt act
allegations, and the valid finding of a single overt act is sufficient to support the
conspiracy verdict. (People v. Padilla, supra, at pp. 965-966.)
Defendant argues that the jury’s “not true” findings on the preoffense overt
act allegations conclusively demonstrate the jury’s rejection of the prosecution’s
theory that defendant had agreed with Shigemura or Humiston (or both) to kill
Holloway before Holloway was lured into Humiston’s car, and that this
inconsistency fatally undermines the conspiracy verdict. We disagree. An
inconsistency between a “not true” finding on an overt act and a verdict or another
finding is not a ground for overturning the inconsistent verdict or finding. (People
v. Hernandez (2003) 30 Cal.4th 835, 862; see People v. Santamaria (1994) 8
Cal.4th 903, 911 [recognizing that an apparently inconsistent not true finding may
be the result of mistake, compromise, or lenity].)
D. Instructions on Conspiracy
Defendant contends that the trial court’s instructions to the jury defining the
charged offense of conspiracy omitted part of the specific intent element of that
crime and that, during jury deliberations, the trial court erred in failing to dispel
the jurors’ confusion about the overt act element of conspiracy. He further
contends that these errors denied him his rights under the federal Constitution to
due process, to proof of each element beyond a reasonable doubt, to a fair and
impartial jury trial, and to reliable factfinding in a capital case.
The trial court instructed the jury with two modified versions—one spoken,
one written—of CALJIC No. 6.10 defining the crime of conspiracy. As here
59
relevant, the spoken version stated: “A conspiracy is an agreement entered into
between two or more persons with the specific intent to commit a crime, in this
case alleged to be the crime of murder, the murder of Teresa Holloway, followed
by an overt act committed by one or more of the parties for the purpose of
accomplishing the object of the agreement.” (Italics added.) As here relevant, the
written version stated: “A conspiracy is an agreement entered into between two or
more persons with the specific intent to agree to commit the public offense of
murder, followed by an overt act committed in this state by one or more of the
parties for the purpose of accomplishing the object of the agreement.” (Italics
added.) The written version was given to the jury for its use during deliberations.
As this court has explained, the crime of conspiracy requires dual specific
intents: a specific intent to agree to commit the target offense, and a specific
intent to commit that offense. (People v. Russo, supra, 25 Cal.4th at p. 1131;
People v. Swain (1996) 12 Cal.4th 593, 600.) We have cautioned trial courts not
to modify CALJIC No. 6.10 to eliminate either of these specific intents. (People
v. Marks (1988) 45 Cal.3d 1335, 1345.)
Here, neither of the modified versions of the standard instruction expressly
mentioned both of the required specific intents. The written instruction mentioned
only the specific intent to agree, while the spoken instruction mentioned only the
specific intent to commit the target offense of murder. As defendant points out,
when the jury has received an instruction in both spoken and written forms, and
the two versions vary, we assume the jury was guided by the written version.
(People v. Davis (1995) 10 Cal.4th 463, 542; People v. Crittenden (1994) 9
Cal.4th 83, 138; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.)
Although the trial court erred in modifying CALJIC No. 6.10 to delete
mention of the required specific intent to commit the target offense of murder,
defendant suffered no prejudice. For a conspiracy to commit murder, intent to
60
commit the target offense means an intent to kill. (People v. Swain, supra, 12
Cal.4th at p. 607.) As defendant concedes, the jury’s verdict that defendant was
guilty of the first degree murder of Teresa Holloway necessarily included a
finding that defendant himself had that intent. He argues, however, that the jury
made no similar finding for either Denise Shigemura or Anna Humiston, the other
alleged conspirators. But defendant does not identify any evidence in the record
that could lead a rational juror to conclude that Shigemura and Humiston agreed to
kill Holloway, with the specific intent to agree to do so, but without a specific
intent to actually kill her. Because we find in the record no evidence that could
rationally lead to such a finding, we are satisfied that the instructional error was
harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1,
9; People v. Davis (2005) 36 Cal.4th 510, 564.)
During guilt phase deliberations, the jury sent a note to the trial judge. It
read: “Is the jury merely deciding whether the overt acts alleged actually
occurred, or are we also determining whether or not the acts do indeed meet the
requirements of being overt acts as defined in CALJIC 6.10[?]” The trial court
sent the jury this written response: “As [CALJIC No.] 6.10 states, in order to find
Mr. Jurado guilty of conspiracy, you must unanimously find to be true at least one
of the alleged Overt Acts, as that term is defined in 6.10.” (Italics added.)
Defendant maintains that this response did nothing to answer the jury’s
question, and that there is an unacceptable risk that the jury merely determined
whether the conduct charged as overt acts occurred, without also determining
whether any of the acts was committed in furtherance of the conspiracy. We
disagree. The trial court’s response expressly directed the jury’s attention to the
definition of an overt act in CALJIC No. 6.10, which stated that “ ‘overt act’
means any step taken or act committed by one or more of the conspirators . . . in
furtherance of the accomplishment of the object of the conspiracy.” (Italics
61
added.) That the jury so understood the court’s response is conclusively shown by
the jury’s findings on the overt acts. The jury found “not true” the overt act
allegations that defendant, Denise Shigemura, and Anna Humiston met with
Teresa Holloway at Mark Schmidt’s residence and that they left Schmidt’s
residence with Holloway in Humiston’s car. Because undisputed evidence
established that both of these acts occurred, the jury’s “not true” finding can be
explained only by inferring that the jury was not satisfied beyond a reasonable
doubt that these acts were done in furtherance of the conspiracy.
E. Instruction on Motive
The trial court instructed the jury with this slightly modified version of
CALJIC No. 2.51: “Motive is not an element of either one of the crimes charged
and, therefore, need not be proved. However, you may consider motive or lack of
motive as a circumstance in the case. Presence of motive may tend to establish
that an accused is guilty. Absence of motive may tend to establish that he is not
guilty of a charged offense. You will therefore give the presence or absence of
motive, as you find the case to be, the weight to which you find it to be entitled.”
Defendant contends that this instruction improperly allowed the jury to
convict him of the charged offenses of capital murder and conspiracy based solely
on evidence of motive, and in so doing it violated his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution to due process, a
fair trial, and a reliable verdict in a capital case. He points out that in contrast to
certain other instructions that the trial court read to the jury—relating to
consciousness of guilt based on falsehoods, efforts to suppress evidence, and flight
after a crime—each of which included an admonition that the specified
circumstance was insufficient by itself to prove guilt—the instruction on motive
included no admonition that motive alone was insufficient to prove guilt.
62
Because it challenges merely the clarity of the instruction, and because
defendant did not ask the trial court to modify or clarify the instruction,
defendant’s contention is not preserved for appellate review. (People v. Cleveland
(2004) 32 Cal.4th 704, 750.) Had defendant preserved the contention, we would
reject it on the merits. What we wrote in People v. Cleveland applies with equal
force here: “The court fully instructed the jury on the reasonable doubt standard.
We find no reasonable likelihood the jury would infer from the motive instruction
that motive alone could establish guilt. Moreover, given the strong evidence of
guilt aside from motive, the jury certainly did not base its verdicts solely on
motive.” (Ibid.)
F. Instruction on Lesser Offense
Defendant contends the trial court erred when it instructed the jury, in the
language of CALJIC No. 8.75, that it would not accept a verdict that defendant
was guilty of second degree murder unless the jury also unanimously returned a
verdict that he was not guilty of first degree murder. Defendant maintains that this
“acquittal first” instruction violated his federal constitutional rights to due process
and to a fair and reliable jury consideration of lesser included offenses in a capital
case.
As defendant concedes, this court has repeatedly rejected the same
contention. (E.g., People v. Nakahara (2003) 30 Cal.4th 705, 715.) As we stated
in Nakahara, “[w]e see no reason for reconsidering these decisions.” (Ibid.)
G. Instructions on Consciousness of Guilt
Defendant contends that the trial court’s instructions to the jury on
consciousness of guilt were impermissibly argumentative, permitted the jury to
draw irrational inferences, were potentially misleading, and were unsupported by
the evidence.
63
The trial court instructed the jury that it could infer consciousness of guilt
from efforts to suppress evidence (CALJIC No. 2.06), from flight after a crime
(CALJIC No. 2.52), and from the telling of a falsehood (CALJIC No. 2.03). The
trial court declined defense requests to modify the instructions to state that they
were inapplicable to fix the degree of a crime.
We have repeatedly rejected contentions that these standard jury
instructions on consciousness of guilt were impermissibly argumentative or
permitted the jury to draw irrational inferences about a defendant’s mental state
during the commission of the charged offenses. (E.g., People v. Benavides (2005)
35 Cal.4th 69, 100; People v. Nakahara, supra, 30 Cal.4th at p. 713; People v.
Kipp (1998) 18 Cal.4th 349, 375.) We see no reason to reconsider these decisions.
Because the instructions as given correctly stated the law and did not invite the
jury to draw irrational inferences about defendant’s mental state, the trial court did
not abuse its discretion in declining the defense requests to modify them.
Whenever the prosecution relies on evidence of flight as tending to show a
defendant’s guilt, the trial court must instruct the jury substantially in this
language: “The flight of a person immediately after the commission of a crime, or
after he is accused of a crime that has been committed, is not sufficient in itself to
establish his guilt, but is a fact which, if proved, the jury may consider in deciding
his guilt or innocence. The weight to which such circumstance is entitled is a
matter for the jury to determine.” (§ 1127c.) In this context, flight “requires
neither the physical act of running nor the reaching of a faraway haven” but it does
require “a purpose to avoid being observed or arrested.” (People v. Crandell
(1988) 46 Cal.3d 833, 869; accord, People v. Bradford (1997) 14 Cal.4th 1005,
1055.) “Mere return to familiar environs from the scene of an alleged crime does
not warrant an inference of consciousness of guilt [citations], but the
circumstances of departure from the crime scene may sometimes do so.” (People
64
v. Turner (1990) 50 Cal.3d 668, 695; accord, People v. Bradford, supra, at p.
1055.)
Here, the circumstances of defendant’s departure from the scene of Teresa
Holloway’s murder were sufficient to support an inference that his purpose was to
avoid being observed or arrested, and thus an inference of consciousness of guilt
for her death. Although there was a call box around 20 yards from the culvert in
which Holloway’s body had been placed, defendant did not use the call box to
summon aid after Anna Humiston’s car broke down. Instead, defendant,
Humiston, and Denise Shigemura walked a half-mile to a 7-Eleven Store, along
the way hiding in a tree the scissors jack that had been used to kill Holloway,
before calling a friend for assistance. Defendant’s failure to use the call box, and
the secreting of the murder weapon, support an inference that in leaving the crime
scene defendant acted with a purpose to avoid observation and arrest. The flight
instruction was properly given.
H. Instructions Affecting Burden of Proof
Defendant contends that certain of the trial court’s instructions to the jury
misled the jury regarding the reasonable doubt standard of proof and
impermissibly lightened the prosecution’s burden of proof. He maintains that
these instructions violated his federal constitutional rights to due process, a fair
trial, a unanimous jury verdict, and reliable guilt and penalty determinations.
We have previously rejected each of the claims that defendant makes, and
we decline to reconsider these decisions. Contrary to defendant’s arguments,
CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1, which direct the jury to accept
reasonable inferences and to reject unreasonable ones, do not permit the jury to
base a determination of guilt on something less than proof beyond a reasonable
doubt. (People v. Harris (2005) 37 Cal.4th 310, 351; see also People v. Crew
65
(2003) 31 Cal.4th 822, 847; People v. Nakahara, supra, 30 Cal.4th at pp. 713-
714.) CALJIC No. 1.00, which directs the jury not to “infer or assume” that
defendant “was more likely to be guilty than not guilty” merely because he had
been arrested, charged, or brought to trial, does not undercut the burden of proof.
(People v. Crew, supra, at pp. 847-848; People v. Nakahara, supra, at p. 714.)
CALJIC No. 2.21.2, the standard instruction on willfully false testimony, does not
lighten the prosecution’s burden of proof. (People v. Cleveland, supra, 32 Cal.4th
at p. 751; People v. Nakahara, supra, at p. 714; People v. Maury (2003) 30
Cal.4th 342, 428-429.) CALJIC No. 2.22, the standard instruction on weighing
conflicting testimony, does not undermine the standard of proof beyond a
reasonable doubt. (People v. Cleveland, supra, 32 Cal.4th at p. 751; People v.
Nakahara, supra, at p. 714; People v. Maury, supra, at p. 429.) Finally, CALJIC
No. 8.20, defining premeditation and deliberation, does not suggest that a
defendant must absolutely preclude the possibility of premeditation rather than
merely raising a reasonable doubt. (People v. Nakahara, supra, at p. 715.)
I. Cumulative Effect of Errors at Guilt Phase
Defendant argues that even if no single error requires reversal of the guilt
verdicts, the cumulative effect of the errors at the guilt phase must be deemed
sufficiently prejudicial to warrant reversal of the guilt verdicts. Defendant has
demonstrated few errors, and we have found each error or possible error to be
harmless when considered separately. Considering them together, we likewise
conclude that their cumulative effect does not warrant reversal of the guilt
verdicts.
J. Constitutional Validity of Lying-in-wait Special Circumstance
Defendant contends that the lying-in-wait special circumstance (§ 190.2,
subd. (a)(15)), as interpreted by this court, violates the Eighth Amendment to the
66
federal Constitution by failing to appropriately narrow the class of persons eligible
for the death penalty. “We have repeatedly rejected this contention, and defendant
fails to convince us the matter warrants our reconsideration.” (People v.
Nakahara, supra, 30 Cal.4th at p. 721; see also People v. Vieira, supra, 35 Cal.4th
at p. 303; People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149.)
IV. ISSUES RELATING TO PENALTY
A. Exclusion of Videotape of Interrogation
Defendant contends that the trial court erred in excluding a videotape of his
interrogation by police detectives on May 18, 1991, shortly after his arrest for the
murder of Terry Holloway. He further contends that this error violated his rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution.
As part of its case in mitigation, the defense proposed to have the jury
watch a videotape that was made, without defendant’s knowledge, while he was
being interrogated by police detectives about the murder of Terry Holloway.
During the interrogation, defendant at first denied any involvement in the murder,
but eventually he admitted killing Holloway, and he insisted that he had done it
entirely on his own and that neither Denise Shigemura nor Anna Humiston was
present. He said he killed Holloway because he was in danger and his family was
in danger. He expressed fear that Brian Johnsen had friends in prison who would
kill him or his mother or other family members in retaliation for killing Holloway.
He also expressed concern that he would be perceived in prison as a snitch and
killed for that reason, or that he would have to spend his entire life in prison.
During this part of the interrogation, defendant displayed considerable emotion,
sobbing and at one point grasping an interrogating officer’s hand. The defense
67
argued that the evidence of defendant’s emotional responses was admissible to
show his remorse for the killing.
The prosecution objected that the videotape was inadmissible under the
hearsay rule (Evid. Code, § 1200), because defendant’s emotional displays were
assertive conduct, and also under Evidence Code section 352, because the
evidence’s probative value was substantially outweighed by the risk of undue
prejudice and jury confusion. After viewing the videotape, the trial court
sustained the hearsay objection and excluded the evidence. The court agreed with
the prosecution that defendant’s emotional displays were a form of hearsay and
not within any exception to the hearsay rule. The court also rejected the defense
argument that defendant’s constitutional right to present mitigating evidence in a
capital case overrode the hearsay rule in this instance. The court noted there was
no compelling need for the evidence, because defendant could testify to any
remorse he might have felt, and that the evidence was not particularly trustworthy
as evidence of remorse because on the videotape defendant never articulated any
feelings of sorrow or regret for killing Teresa Holloway, or any sympathy for
Holloway or her family, although he did indicate concern for his own safety and
well-being, and also concern for his mother and for Anna Humiston. Thus, in the
court’s view, it was by no means clear that defendant’s emotional display was in
any way caused by remorse, and it seemed more likely that it was caused entirely
by concern for his own predicament.
The defense raised the issue again after both sides had rested at the penalty
phase and the prosecutor had given his closing argument to the jury. Defense
counsel requested permission to reopen the evidence to play the videotape for the
jury to rebut the prosecutor’s assertion, in argument to the jury, that defendant
“lacked a conscience.” Defense counsel pointed out that during the videotaped
interview defendant said, in response to a question asking whether he had received
68
any injuries in his struggle with Teresa Holloway, “The only injury I got is from
my, just from my conscience.” The trial court denied the request to reopen.
The defense raised the issue a final time after the jury had returned the
penalty verdict of death. In a motion for a new trial, the defense argued that the
trial court had erred in excluding the videotape. To demonstrate prejudice, the
defense submitted declarations by three trial jurors stating that evidence that
defendant lacked remorse for killing Teresa Holloway was an important factor in
aggravation, and that evidence that defendant had an emotional reaction to the
murder and talked about his conscience would have counterbalanced that
evidence. The trial court denied the motion for a new trial.
Defendant is correct that, by themselves, defendant’s emotional displays
were nonassertive conduct, and thus not within the hearsay rule. For purposes of
the hearsay rule, conduct is assertive if the actor at the time intended the conduct
to convey a particular meaning to another person. (Evid. Code, § 225 [defining
statement to include “nonverbal conduct of a person intended by him as a
substitute for oral or written verbal expression”].) For example, a nod of the head
in response to a question calling for a yes-or-no answer, or a gesture pointing to a
particular person when asked to identify a perpetrator, are examples of assertive
conduct. Here, nothing in the videotape suggests that defendant’s emotional
responses were voluntary or that he intended them to convey any particular
meaning to the interrogating officers.
But the defense sought to introduce more than just evidence of the
emotional displays themselves. To explain the significance of the emotional
displays, and particularly defendant’s statement that as a result of the murder he
had received an “injury from [his] conscience,” the defense sought to introduce the
statements defendant made during the videotaped interview. As defendant must
concede, those statements, including assertions and descriptions of his own
69
feelings and other mental states, were hearsay. They were not admissible under
the state-of-mind exception to the hearsay rule (Evid. Code, § 1250) if they were
made under circumstances indicating a lack of trustworthiness (id., § 1252). As
the trial court correctly determined, the circumstance that defendant made his
statements during a postarrest police interrogation, when he had a compelling
motive to minimize his culpability for the murder and to play on the sympathies of
his interrogators, indicated a lack of trustworthiness. In past decisions, we have
upheld the exclusion of self-serving postcrime statements made under similar
circumstances. (People v. Livaditis (1992) 2 Cal.4th 759, 779-780; People v.
Edwards (1991) 54 Cal.3d 787, 820; People v. Whitt (1990) 51 Cal.3d 620, 642-
643.)
We have also rejected the argument that exclusion of this sort of hearsay
evidence violates a capital defendant’s right to a fair trial and a reliable penalty
determination under the federal Constitution. As we have explained, a capital
defendant has no federal constitutional right to the admission of evidence lacking
trustworthiness, particularly when the defendant seeks to put his own self-serving
statements before the jury without subjecting himself to cross-examination.
(People v. Stanley, supra, 10 Cal.4th at pp. 838-840; People v. Livaditis, supra, 2
Cal.4th at p. 780; People v. Edwards, supra, 54 Cal.3d at pp. 820-821; People v.
Whitt, supra, 51 Cal.3d at p. 644.)
In excluding the entire videotape of defendant’s postarrest interrogation,
the trial court did not err under state law, nor did it violate defendant’s rights
under the federal Constitution. The defense never offered to redact the videotape
to show only the nonassertive conduct, and, even if it had done so, any error in
excluding the admissible portions of the videotape was harmless.
70
B. Murder Victim’s Pregnancy
Before defendant’s trial began, the trial court denied his motion to exclude
from the penalty phase any evidence that Teresa Holloway was pregnant when
defendant murdered her. Defendant contends that the ruling was error because the
evidence was irrelevant and unduly prejudicial. He further contends that
admission of the evidence violated his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments.
The trial court did not err in admitting evidence of the murder victim’s
pregnancy at the penalty phase as a circumstance of the offense. The Eighth
Amendment to the federal Constitution permits the prosecution, in a capital case,
to present evidence about the murder victim and the specific harm that the
defendant caused as relevant to the jury’s penalty decision. (Payne v. Tennessee
(1991) 501 U.S. 808, 827; People v. Harris, supra, 37 Cal.4th at p. 351.) In
California, the prosecution may introduce evidence of the specific harm caused by
a defendant’s crime at the penalty phase in aggravation as a circumstance of the
crime (§ 190.3, factor (a)). (People v. Panah, supra, 35 Cal.4th at p. 494; People
v. Fierro (1991) 1 Cal.4th 173, 235.)
Defendant argues that evidence of the pregnancy was irrelevant because,
although the prosecution presented evidence that Terry Holloway told him she was
pregnant, there was also uncontradicted evidence that he did not believe it. This
court has concluded, however, that facts concerning the victim that are admissible
at the penalty phase of a capital trial as circumstances of the crime are not limited
to those known to or reasonably foreseeable by the defendant at the time of the
murder. (People v. Pollock (2004) 32 Cal.4th 1153, 1183; accord, People v.
Roldan, supra, 35 Cal.4th at p. 732.)
We also reject defendant’s argument that the trial court abused its
discretion by not excluding the pregnancy evidence as unduly prejudicial. We
71
have explained the parameters of the trial court’s discretion in these situations in
this way: “ ‘On the one hand, it should allow evidence and argument on
emotional though relevant subjects that could provide legitimate reasons to sway
the jury to show mercy or to impose the ultimate sanction. On the other hand,
irrelevant information or inflammatory rhetoric that diverts the jury’s attention
from its proper role or invites an irrational, purely subjective response should be
curtailed.’ ” (People v. Edwards, supra, 54 Cal.3d at p. 836, quoting People v.
Haskett (1982) 30 Cal.3d 841, 864; accord, People v. Panah, supra, 35 Cal.4th at
pp. 494-495; see also People v. Pollock, supra, 32 Cal.4th at 1180 [evidence
admissible if it “is not so inflammatory as to elicit from the jury an irrational or
emotional response untethered to the facts of the case”].) That in murdering
Teresa Holloway defendant also terminated the life of a healthy 17-week-old fetus
she was carrying was part of the harm caused by defendant’s crime and thus was a
legitimate, though emotional, consideration for the jury in making its penalty
decision. We note also that defendant does not challenge the manner in which the
evidence was presented, and we conclude it was not presented in an unnecessarily
inflammatory way. Therefore, we reject defendant’s claim that the trial court
abused its discretion in admitting evidence of the victim’s pregnancy.
C. Victim Impact
Defendant contends that admission of detailed and emotional testimony
about the impact of Teresa Holloway’s murder on members of her family rendered
his penalty trial unfair and unreliable, in violation of his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. He further
contends that section 190.3, factor (a), which permits introduction of victim
impact evidence as a circumstance of the crime, is unconstitutionally vague, and
72
that retroactive application of case law allowing use of this evidence violates
federal constitutional principles of ex post facto and due process.
We have rejected claims that section 190.3, factor (a), is unconstitutionally
vague insofar as it permits introduction of victim impact evidence as a
circumstance of the crime (People v. Wilson, supra, 36 Cal.4th at p. 358; People v.
Boyette (2002) 29 Cal.4th 381, 445, fn. 12), and that use of victim impact evidence
in trials for capital crimes committed before the United States Supreme Court’s
decision in Payne v. Tennessee, supra, 501 U.S. 808, violates federal
constitutional principles of ex post facto and due process (People v. Brown (2004)
33 Cal.4th 382, 394-395). Defendant does not persuade us to reconsider these
decisions.
Nor are we persuaded that the trial court erred in failing to exclude victim
impact testimony that defendant claims was overly emotional or irrelevant. Three
witnesses testified to the impact of Teresa Holloway’s murder on members of her
family. Carol Holloway, Teresa Holloway’s mother-in-law, testified primarily
about the impact of the murder on Teresa’s young daughter, but also about its
impact on herself. James and Joan Cucinotta, Teresa’s parents, testified mainly
about the impact of the murders on themselves, but also about its impact on their
other two children and on their grandchild. The testimony of these three witnesses
was relatively brief, comprising just 25 pages in the reporter’s transcript. During
their testimony, the defense made no objections to any questions put to the
witnesses, nor did the defense move to strike any of the answers. During a break
in proceedings immediately after the testimony of Carol Holloway, however, the
defense moved for a mistrial or in the alternative to preclude any further victim
impact testimony. Defense counsel pointed out that as the jury was leaving the
courtroom for the break, four of the jurors were “very visibly crying.” The trial
court denied the motions, although it agreed with defense counsel that at least two
73
of the jurors had been in tears, and the trial court added that defendant had been
“crying and sobbing” as well. Later, out of the jury’s presence, the trial court
observed for the record that during the testimony of Teresa Holloway’s parents it
had been watching the four jurors that defense counsel had previously identified as
crying and that it did not notice “nearly as much emotional response on their part,
frankly.”
As examples of testimony that was irrelevant, defendant cites, among other
things, Joan Cucinotta’s testimony that her mother died of cancer shortly after
Teresa Holloway’s death and that her husband lost his job two weeks after
Holloway’s death. By failing to make timely objections during the witnesses’
testimony, defendant forfeited the claim that any of the victim impact evidence
was irrelevant. (People v. Wilson, supra, 36 Cal.4th at p. 357.) In any event, we
are satisfied that all of that testimony was relevant. For example, Joan Cucinotta
explained that because she did not want to upset her mother during her final
illness, she had pretended that Holloway was still alive, which was “very
difficult.” And James Cucinotta explained that he lost his job “pretty much
because of this [meaning Holloway’s death].” Thus, all of this testimony was
relevant to explain the direct impact of the murder on Holloway’s family
members.
Defendant provides examples of testimony he considers overly emotional.
In the testimony of Teresa Holloway’s mother, Joan Cucinotta, defendant cites,
among other things, her statements that “there is nothing worse to me than the
death of a child,” that she lunged at and wanted to hit the detective who told her
Holloway was dead, that she visits Holloway’s grave every week and at first she
would “cry, sobbing, cry and cry, throw [her]self on the grave,” and that
Holloway’s daughter, when she visits the grave, “says a prayer and kisses her
[mother’s] picture.” In the testimony of Holloway’s father, James Cucinotta,
74
defendant cites, among other things, his statements that he and his wife visit
Holloway’s grave every week, that they “couldn’t take a look at her [Holloway]
for the last time because of the condition that she was in . . . [a]nd of course she’d
laid out in the road for a couple days,” that while he was making the funeral
arrangements for Holloway he “had to stuff everything” (meaning suppress his
emotions) and “because of that stuffing, [he] started to do a lot of inappropriate
things,” his “drinking got out of hand,” and he “had to finally go to a treatment
center and get that taken care of,” that as a result of Holloway’s death his son, who
was 34 years old, was “not the same anymore” and was “in a recovery home here
in San Diego,” and that during the first year after Holloway’s death he and his
wife “didn’t even have a holiday in the house,” they “didn’t have a turkey for
Thanksgiving . . . didn’t have a Christmas tree for Christmas.”
This testimony was not dissimilar from, or significantly more emotion-
laden than, other victim impact testimony that has been held admissible. For
example, in Payne v. Tennessee, supra, 501 U.S. 808, the defendant was convicted
of murdering a 28-year-old woman and her two-year-old daughter. At the trial,
when asked how the woman’s three-year-old son had been affected by the murders
of his mother and sister, the boy’s grandmother replied: “ ‘He cries for his mom.
He doesn’t seem to understand why she doesn’t come home. And he cries for his
sister Lacie. He comes to me many times during the week and asks me,
Grandmama, do you miss my Lacie. And I tell him yes. He says, I’m worried
about my Lacie.’ ” (Id. at pp. 814-815.) In People v. Harris, supra, 37 Cal.4th
310, the murder victim’s mother “described how she learned of the murder, and of
the emotional and financial costs involved in planning and attending the funeral.”
(Id. at p. 328; see also id. at pp. 351-352 [holding this evidence properly
admitted].) In People v. Panah, supra, 35 Cal.4th 395, the murder victim’s father
testified that before the victim’s death, her 16-year-old brother “was the family
75
athlete, and was a ‘4.0 student,’ but, following her death, his grades deteriorated,
‘he is drinking a lot and doing drugs,’ and would not talk about his sister but ‘kept
it all inside himself,’ and refused to go to counseling.” (Id. at p. 495.) We
concluded that this testimony was “neither irrelevant nor prejudicial but, in
context, depicted the ‘residual and lasting impact’ he ‘continued to experience’ as
a result of [the victim’s] murder.” (Ibid.) In People v. Boyette, supra, 29 Cal.4th
381, a murder victim’s father “testified and related how close he was with the
victim, how her eight-year-old son had said he wanted to die so he could be with
his mother, how her six-year-old son had nightmares and would telephone wanting
to know where his mother was, and how [the victim] had been in a drug
rehabilitation program and had turned her life around.” (Id. at p. 440; see also id.
at p. 444 [holding the evidence was properly admitted].) As in these cases, we
conclude that the victim impact evidence here “did not surpass constitutional
limits.” (Id. at p. 444.)
The record does not support defendant’s suggestion that after hearing the
victim impact testimony the jurors were so overwhelmed by emotion that they
were unable to make a rational determination of penalty. Of particular
significance, the jury deliberated on penalty for five days before reaching its
verdict. The length of their deliberations rather strongly implies that, rather than
rushing to judgment under the influence of unbridled passion, the jurors arrived at
their death verdict only after a full and careful review of the relevant evidence and
of the legitimate arguments for and against the death penalty.
D. Jail Assault
Defendant contends that the trial erred in overruling his objections to
admission of evidence of his assault on Steven Baldwin, and that this error
76
violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the federal Constitution.
On April 14, 1994, the prosecution notified defendant that it intended to
introduce in aggravation evidence of defendant’s assault on Steven Baldwin,
which had occurred in July 1991, soon after defendant’s arrest. The defense
moved to exclude evidence of the incident on the ground that the notice was
untimely. After a hearing, the trial court denied the motion without prejudice to
its renewal if the trial reached the penalty phase.
Defendant renewed the motion to exclude after the jury returned its guilt
verdicts and made its special circumstance finding. In support of the motion,
defendant informed the court that jail documents listing the inmates who were
housed in the module where the assault occurred and the employees who worked
in that module had been destroyed on or before July 1993, although a report
relating to the incident had been preserved. The trial court denied the renewed
motion to exclude, rejecting defendant’s argument that, in light of the document
destruction, use of the incident in aggravation would violate his constitutional
right to due process of law. Defendant contends the trial court erred in denying
the motions to exclude.
“Section 190.3, factor (b) provides for the admission, during the penalty
phase of a capital trial, of evidence of any criminal activity by the defendant
involving the use or attempted use of force or violence.” (People v. Kraft (2000)
23 Cal.4th 978, 1070.) Section 190.3, factor (b), imposes no time limitation on the
introduction of unadjudicated violent crimes; rather, it permits the jury to consider
a capital defendant’s criminally violent conduct occurring at any time during the
defendant’s life. (People v. Barnett (1998) 17 Cal.4th 1044, 1174; People v.
Williams (1997) 16 Cal.4th 153, 233.) Thus, evidence of violent criminal activity
is admissible even though prosecution of the crime would be time-barred (People
77
v. Williams, supra, at p. 233), the right to a speedy trial is not implicated (People
v. Rodrigues (1994) 8 Cal.4th 1060, 1161), and the defense of laches is not
available (People v. Koontz (2002) 27 Cal.4th 1041, 1087-1088). As we have
explained, the remoteness in time of a prior incident “goes to its weight, not to its
admissibility.” (People v. Catlin (2001) 26 Cal.4th 81, 172.) Defendant asks us to
reconsider these decisions, but he does not persuade us to do so.
Here, as defendant concedes, defendant’s assault on Steven Baldwin was
not remote in time; indeed, it occurred after the charged capital offense, the
murder of Teresa Holloway. Defendant nonetheless contends that the trial court
should have excluded evidence of the incident because the prosecutor’s lack of
diligence in discovering the incident and in providing notice of his intention to
offer evidence of the incident in aggravation resulted in the destruction of relevant
jail records, thereby compromising defendant’s ability to defend against the
charge.
The prosecutor told the trial court that he first learned of the incident in
December 1993 during an interview of Steven Baldwin while preparing the case
for trial. Although defendant argues that the prosecutor could have discovered the
incident earlier, he cites no authority for the proposition that a prosecutor in a
death penalty case has an obligation to promptly and diligently search for all
available aggravating evidence, or that, if such a duty exists, exclusion of evidence
is an appropriate and lawful sanction for its violation. Thus, defendant fails to
persuade us that he suffered any legally cognizable harm as a result of the
prosecution’s failure to discover the incident at an earlier time.
The prosecution is required to notify a capital defendant of its intended
penalty phase evidence “within a reasonable period of time as determined by the
court, prior to trial.” (§ 190.3.) Notice provided before jury selection begins is
generally considered timely, and the purpose of the notice provision is satisfied if
78
the defendant has a reasonable chance to defend against the charge. (People v.
Stitely, supra, 35 Cal.4th at p. 562.) Here, the prosecutor gave notice to defendant
of his intention to introduce evidence of the Baldwin assault 11 days before jury
selection began. Defendant then received, or had already received, a report that
described the incident and included the names of two inmates, in addition to
Baldwin and defendant, who had been present in the module and were questioned
about the incident. The trial court did not abuse its discretion in concluding that
defendant received timely and adequate notice.
Defendant also argues that the incident was inadmissible because it did not
constitute a crime by defendant. Evidence of other criminal activity introduced in
the penalty phase under section 190.3, factor (b), must demonstrate “the
commission of an actual crime, specifically, the violation of a penal statute.”
(People v. Phillips (1985) 41 Cal.3d 29, 72; see also People v. Kipp, supra, 26
Cal.4th 1100, 1133; People v. Boyd (1985) 38 Cal.3d 762, 772.) The prosecution
did not argue that defendant personally assaulted Baldwin, but instead that he
aided and abetted an assault on Baldwin by loudly referring to Baldwin as a
“snitch,” knowing that snitches are commonly the targets of assault in jail. “[A]n
aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful
purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice
aids, promotes, encourages or instigates, the commission of the crime.’ ” (People
v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35
Cal.3d 547, 561.) On the evidence presented, the jury could reasonably conclude
that defendant, acting with the intent to have Baldwin assaulted, and with
knowledge that other inmates would likely do so if told that Baldwin was a snitch,
encouraged or instigated the assault by openly announcing to the other inmates
that Baldwin was a snitch. Defendant’s remark to Baldwin after the assault (“You
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can’t be in this cell”) supports an inference that defendant orchestrated the assault
to achieve his own purposes, intimidation of Baldwin and his removal from the
module. Therefore, we reject defendant’s argument that the evidence was
insufficient to show that defendant violated a penal statute.
E. Weapon Possession in Jail
In regard to the prosecution’s evidence at the penalty phase that defendant
illegally possessed a weapon in the county jail, defendant claims, first, that the
evidence was insufficient to establish that the weapon he possessed was a deadly
weapon within the meaning of section 4574; second, that the trial court
misinstructed the jury regarding the elements of a section 4574 violation; and,
third, that the trial court should not have permitted the jury at the penalty phase to
consider the section 4574 violation as an aggravating circumstance because the
offense does not necessarily involve an actual or implied threat of violence.
Section 4574 makes it a felony for a county jail inmate to possess a “deadly
weapon.” Within the meaning of this penal statute, an object is a deadly weapon if
it has a reasonable potential of inflicting great bodily injury or death. (People v.
Pollock, supra, 32 Cal.4th at p. 1178; see People v. Hughes (2002) 27 Cal.4th 287,
383.)
Arguing that here the prosecution’s evidence was insufficient to establish
that the weapon he possessed had a reasonable potential of inflicting great bodily
injury or death, defendant asserts that the evidence did not show which of several
weapons he possessed and that some of the weapons, such as soap bars in socks,
were incapable of inflicting great bodily injury. We disagree with defendant’s
characterization of the evidence.
Mark Thiede testified, on direct examination, that on September 5, 1993, he
was working as a deputy sheriff at the county jail in San Diego when he saw
80
groups of Black and Hispanic inmates facing off against each other in one of the
tanks. Several Hispanic inmates had steel poles or posts that they were slamming
against the steel bunks and using to make stabbing motions to keep the Black
inmates in another part of the room. He later wrote a report identifying four
inmates “who possessed weapons.” Defendant was one of the four. Asked to
describe “with a little more particularity what type of weapons . . . these inmates
were possessing,” Thiede replied: “The weapons that was used in the riot, they’re
bars about between 12 and 18 inches long, quarter inch in diameter. There was
also socks. They take a sock and they put two, one or two bars of soap in the
socks to make it weighted. You can use that as a clubbing instrument. Thin
pieces about a half inch wide, five or six inches long with tape on the end that you
can sharpen down to a point. Those are I believe the weapons that were found.”
(Italics added.)
Defendant argues that from this testimony the jury could not determine
which weapon, of the several that Deputy Thiede described, he had possessed
during the riot, and thus the jury could not determine whether the weapon satisfied
the section 4574 definition of a deadly weapon. The more likely interpretation of
this testimony, we think, is that defendant was one of four inmates that Thiede saw
wielding the steel poles or posts and that the other weapons were merely found
during a later search of the tank. Moreover, any confusion or uncertainty in this
regard was dispelled by cross-examination. Defense counsel asked: “You never
saw Mr. Jurado, or the person that you identified as Mr. Jurado, that is, the person
in the tank that you said had the pipe, you never saw that individual strike
anybody, did you?” (Italics added.) Thiede replied, “No, I didn’t.” Thus, the
evidence before the jury sufficiently established that defendant possessed one of
the steel objects 12 to 18 inches in length—variously described as poles, posts,
bars, and pipes—that the inmates were slamming against bunks and using to make
81
stabbing motions. As defendant does not dispute, an object of this sort is capable
of inflicting great bodily injury or death, and thus it is a deadly weapon within the
meaning of section 4574.
We next consider defendant’s claim that the trial court misinstructed the
jury regarding the elements of a section 4574 violation. Specifically, the trial
court instructed the jury that in reaching the penalty verdict it could consider
evidence that defendant had engaged in criminal activity that involved the express
or implied use of force or violence or the threat of force or violence. The court
then stated: “And indeed, evidence has been introduced during this phase of the
trial for the purpose of showing and proving that [defendant] committed the
following criminal activity: . . . possession of a weapon in the county jail.”
Defendant contends that this instruction was inaccurate or at least misleading
because it referred merely to “a weapon” rather than “a deadly weapon.”
As defendant recognizes, we considered a similar claim in People v.
Hughes, supra, 27 Cal.4th 287. There, the prosecution introduced evidence at the
penalty phase of a capital trial that the defendant while in a county jail had
possessed “a four-inch, slightly bent but straightened, hard, sharp object with a
loop at the end.” (Id. at p. 381.) The trial court instructed the jury that “ ‘evidence
has been introduced for the purpose of showing that the defendant has committed
the following criminal act: possession of a sharpened instrument while confined
in the county jail . . . .’ ” (Id. at p. 382.) We concluded that the trial court had
erred in instructing in these terms because possessing a sharpened instrument
while confined in the county jail “was, at the time, and without more (that is, a
showing that the object was a deadly weapon), not a crime.” (Id. at p. 383.) The
trial court’s instruction “should have used the words ‘deadly weapon’ rather than
‘sharpened instrument,’ ” an error we characterized as “minor.” (Id. at p. 384.)
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We also concluded, beyond a reasonable doubt, that the defendant was not
prejudiced by the error. We observed that the object the defendant had possessed
qualified as deadly weapon under section 4754. (People v. Hughes, supra, 27
Cal.4th at p. 383.) We reasoned: “To find prejudice, we would need to
hypothesize two things, which tend to be self-canceling: (i) that the jury would
consider the shank, although a sharpened instrument, not to be a deadly weapon,
and (ii) that despite such a finding, the jury nonetheless considered the evidence to
be so important that it affected the penalty determination. [¶] It is quite unlikely
that the jury would find the object to be a sharpened instrument but not a deadly
weapon. But if the jury made that improbable finding, thus minimizing the
seriousness of the evidence, it is also quite unlikely that it would then consider the
evidence to be so important as to control, or even have a significant impact upon,
the penalty determination.” (Id. at p. 384; see also People v. Pollock, supra, 32
Cal.4th at p. 1179.)
Similarly here, we conclude that defendant was not prejudiced by the trial
court’s description of the alleged criminal conduct as defendant’s possession of a
“weapon” rather than a “deadly weapon.” It is quite unlikely that the jury would
view the object that defendant possessed—a steel rod or bar 12 to 18 inches in
length—as a weapon but not a deadly weapon. It is also quite unlikely that if the
jury made such an improbable finding, it would then nonetheless treat the incident
as sufficiently aggravating to have affected the penalty verdict. The combination
of these improbabilities persuades us beyond a reasonable doubt that the
instructional error was harmless.
Defendant also argues that the instruction was erroneous insofar as it
required the jury to treat defendant’s possession of a deadly weapon in county jail
as aggravating without making its own determination that the conduct involved
actual or threatened force or violence. Defendant argues that the instruction
83
precluded the jury from considering any possible innocent explanation for his
weapon possession. We have previously rejected this argument (People v. Gray,
supra, 37 Cal.4th at p. 235; People v. Monterroso (2004) 34 Cal.4th 743, 793),
and defendant does not persuade us to reconsider these decisions.
Finally, we reject defendant’s argument that the trial court should not have
permitted the jury at the penalty phase to consider the section 4574 violation as an
aggravating circumstance because the offense does not necessarily involve illegal
violence. This court has consistently concluded, to the contrary, that a prisoner’s
possession of a weapon is conduct that necessarily involves an actual or implied
threat to use force or violence. (E.g., People v. Hines (1997) 15 Cal.4th 997,
1057; People v. Ramirez (1990) 50 Cal.3d 1158, 1186-1187; People v. Harris
(1981) 28 Cal.3d 935, 962-963.) “The trier of fact is free to consider any
‘innocent explanation’ for defendant’s possession of the item, but such inferences
do not render the evidence inadmissible per se.” (People v. Tuilaepa (1992) 4
Cal.4th 569, 589.)
F. Lack of Remorse
Defendant claims the death judgment must be reversed because the
prosecutor improperly urged the jury to consider defendant’s lack of remorse after
the crime as an aggravating circumstance.
During his argument to the jury at the conclusion of the penalty phase, the
prosecutor began to read the testimony of Christie Medlin about statements
defendant had made to her during telephone calls after the murder of Teresa
Holloway. Defense counsel interrupted and asked to approach the bench, where
he argued that defendant’s postoffense statements were “inappropriate evidence in
aggravation to show lack of remorse,” and that the court should not permit the
prosecutor to make an argument urging the jury to view defendant’s postoffense
84
lack of remorse as aggravating. The court overruled the objection, noting that
defendant’s postoffense statements could properly be used in aggravation insofar
as they constituted circumstantial evidence of his state of mind during the crime.
The prosecutor then quoted defendant’s postoffense statements that “the bitch is
gone” and that he did not care if he had to spend the rest of his life paying for it.
The prosecutor argued that this showed “the state of mind of [defendant] at or
about the time this crime occurred as to his idea of punishment.”
The prosecutor then discussed evidence showing that defendant knew that
killing Teresa Holloway was wrong. The prosecutor mentioned that there were
seven factors in aggravation and mitigation that the jury would be asked to
consider, and that the jury was not merely to count the factors on each side but
was to weight them to determine their “convincing force.” As factors in
aggravation, the prosecutor mentioned and discussed the circumstances of the
crime, including the victim impact testimony, the presence or absence of criminal
activity involving force or violence, and the presence or absence of prior felony
convictions. The prosecutor mentioned and discussed whether the offense was
committed while the defendant was under the influence of extreme mental or
emotional disturbance; whether at the time of the offense defendant had the
capacity to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law, and whether that capacity was impaired by intoxication;
defendant’s age at the time of the crime; and “the last factor,” which was “any
other circumstances which extenuate the gravity of the crime, even though it is not
a legal excuse for the crime, and any sympathetic or other aspect of the
defendant’s character or record that the defendant offers as a basis for a sentence
of less than death.”
In connection with this last factor, the prosecutor discussed the evidence
that the defense had presented during its case in mitigation. During this
85
discussion, the prosecutor made this argument, which defendant now challenges:
“I listened as the defense witnesses testified yesterday for any evidence or
testimony pertaining to the victim. And there was. There was. The defendant’s
grandmother testified, bless her heart, that she not only prays for [defendant] but
she prays for the victim and the victim’s family. What a nice thing. What a
human thing. What a nice person from a nice family. [¶] When she testified to
that I kind of thought back in the evidence that was presented in the guilt phase
and the penalty phase, about the defendant and his view of the victim. After the
murder of Terry Holloway, she had only been in the drainage ditch a matter of
minutes, what was [defendant] doing at Christie Medlin’s house? He was playing
darts. What was he doing the next day with Denise Shigemura while the victim
still lay cold in the drainage ditch? He was having pizza and beer. [¶] And after
he got arrested and he talked to Christie Medlin on the telephone, how did he feel
about the victim at that time, right around the time of the crime? ‘On, on, the bitch
is gone.’ [¶] And when he identified Steve Baldwin as a snitch in the county jail,
what were his words? ‘That’s the guy who told the cops I killed the bitch.’ [¶]
What’s his grandmother doing during this time? She’s praying for the victim. [¶]
Do you see what I mean? He’s not like them. He doesn’t share in their goodness,
he doesn’t share in their compassion, he doesn’t share in their humanity. [¶] I
think those statements that he made in the presence of Baldwin and in the presence
or on the telephone to Christie Medlin tell you who the real Robert Jurado is. All
right out there, very clear and open for you to understand and evaluate.”
Although a prosecutor in a capital case may not argue that a defendant’s
postcrime lack of remorse is an aggravating factor, a prosecutor may, as the
prosecutor did here, argue that lack of remorse is relevant to the evaluation of
mitigating factors. (People v. Pollock, supra, 32 Cal.4th at p. 1186; People v.
Mendoza (2000) 24 Cal.4th 130, 187.) The prosecutor here never suggested that
86
lack of remorse was an aggravating factor, and he did not refer to lack of remorse
during the portion of his argument devoted to the discussion of aggravating
factors. Instead, the challenged argument occurred during the course of the
prosecutor’s review of the defense case in mitigation and the potential mitigating
factors. A reasonable juror likely would have understood the prosecutor’s
argument to be that defendant’s failure to demonstrate any concern for the woman
he had killed meant “that remorse was not available as a mitigating factor and also
that defendant was not entitled to the jury’s sympathy.” (People v. Pollock, supra,
at p. 1186.)
G. Incidents Between Defendant and His Mother
Defendant argues that the trial court should have exercised its discretion to
exclude, as inflammatory and lacking in probative value, the evidence that on one
occasion he pushed and spit on his mother, and on another occasion he approached
with raised arm as if to strike her and threatened to kill her and shoot up the house.
He further argues that admission of this evidence violated his statutory and due
process right that the penalty evidence admitted against him be limited to evidence
relevant to a factor listed under section 190.3, and his constitutional rights under
the Fifth, Eighth, and Fourteenth Amendments to due process, a fair penalty trial,
and reliability in the determination of capital punishment.
We reject the argument that defendant’s conduct toward his mother was not
admissible under section 190.3, factor (b), as criminal activity that involved the
use or attempted use of force or violence or the express or implied threat to use
force or violence. Defendant does not argue that his conduct did not violate a
penal statute, nor does he argue that it did not involve the use or attempted use of
force or violence or the express or implied threat to use force or violence. Instead,
he argues that the evidence was “not the kind of evidence that justified sentencing
87
[him] to execution,” because it is “unfortunately not that uncommon for a teenager
or a nineteen-year-old to have such confrontations with his parents.” But the
admissibility of section 190.3, factor (b), evidence does not depend on how
common or uncommon the criminal conduct is, or whether viewed in isolation it
would be sufficient to justify a death sentence. The evidence met all statutory
requirements for admission under section 190.3, factor (b).
We reject also defendant’s argument that the trial court should have
exercised its discretion under Evidence Code section 352 to exclude the evidence
on the ground that its probative value was substantially outweighed by the
probability that its admission would create a substantial danger of undue
prejudice. As we have explained, Evidence Code section 352 does not give the
trial court discretion to exclude all evidence of a criminal incident that is
admissible under section 190.3, factor (b). (People v. Cunningham (2001) 25
Cal.4th 926, 1017; People v. Anderson (2001) 25 Cal.4th 543, 586; People v.
Sanders (1995) 11 Cal.4th 475, 542-543.)
Nor are we persuaded by defendant’s constitutional arguments, which are
based on the unrealistic perspective of viewing this evidence in isolation from all
the other evidence offered in aggravation and mitigation at the penalty phase,
including the circumstances of the capital offense. In the context of the entire
penalty determination process, we find nothing improper or unfair about allowing
the jury to consider each occasion during defendant’s life when he violated a penal
statute by conduct that involved the use or attempted use of force or violence or
the express or implied threat to use force or violence.
H. Reasonable Doubt Standard
Defendant claims that his death sentence must be reversed because the trial
court did not instruct the jurors to return a death verdict only if they were
88
persuaded beyond a reasonable doubt that the aggravating circumstances were so
substantial in comparison with the mitigating circumstances that the death penalty
was justified. As defendant acknowledges, this court has held that “neither the
federal nor the state Constitution requires the jury to agree unanimously as to
aggravating factors, or to find beyond a reasonable doubt that aggravating factors
exist, that they outweigh mitigating factors, or that death is the appropriate
sentence.” (People v. Fairbank (1997) 16 Cal.4th 1223, 1255.) Defendant urges
us to reconsider this holding in light of the United States Supreme Court’s
decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona, supra,
536 U.S. 584, and Blakely v. Washington (2004) 542 U.S. 296. We have already
done so, and we have concluded that these decisions do not require us to alter our
previous conclusion on this point. (People v. Cornwell (2005) 37 Cal.4th 50, 103-
104; People v. Morrison (2004) 34 Cal.4th 698, 730-731.)
I. Unanimity on Aggravating Circumstances
Defendant contends that the trial court erred in not instructing the jury that
unanimity was required before a particular circumstance could be considered
aggravating. As defendant acknowledges, this court has consistently rejected this
argument (e.g., People v. Gray, supra, 37 Cal.4th at p. 236; People v. Morrison,
supra, 34 Cal.4th at pp. 730-731), and he fails to persuade us to reconsider these
holdings.
J. Aggravating and Mitigating Circumstances
Contrary to defendant’s contention, “[t]he trial court was not
constitutionally required to inform the jury that certain sentencing factors were
relevant only in mitigation, and the statutory instruction to the jury to consider
‘whether or not’ certain mitigating factors were present did not impermissibly
invite the jury to aggravate the sentence upon the basis of nonexistent or irrational
89
aggravating factors.” (People v. Morrison, supra, 34 Cal.4th at p. 730; accord,
People v. Gray, supra, 37 Cal.4th at p. 237.)
Defendant argues, however, that certain instructions given in this case
created an unacceptable risk that the jurors would treat as aggravating a
circumstance that could only be mitigating. First, the trial court modified the
standard jury instruction on penalty factors, CALJIC No. 8.85. After listing the
seven factors that the parties had agreed were relevant to penalty determination in
this case, the instruction stated: “The circumstances in the above list which you
determine to be aggravating are the only ones which the law permits you to
consider.” The instruction also stated, however, that “[t]he absence of a statutory
mitigating circumstances does not constitute an aggravating circumstance.”
Second, during penalty deliberations, the jury sent the trial court a note
with this question: “Can we consider the conspiracy to kill Doug Mynatt a
‘circumstance of the crime,’ as this term is used in CALJIC [No.] 8.85.(a)?” The
trial court replied: “Yes, it can be considered as a ‘circumstance of the crime’
under CALJIC [No.] 8.85(a), as either a circumstance in aggravation or
mitigation.” Defendant suggests that this reply would cause the jury to conclude
that it could consider any of the statutory factors as either aggravating or
mitigating. We disagree. On the same day, the jurors also sent the trial court a
note asking whether section 190.3, factor (k), as described in CALJIC No. 8.85
(“Any other circumstance which extenuates the gravity of the crime even though it
is not a legal excuse for the crime and any sympathetic or other aspect of the
defendant’s character or record that the defendant offers as a basis for a sentence
less than death, whether or not related to the offense for which he is on trial”)
could be either mitigating or aggravating. The trial court replied that this factor
was “mitigating only.” Thus, no reasonable juror could have been misled into
believing that any factor could be either aggravating or mitigating.
90
K. Absence of Written Findings
Defendant claims that California’s death penalty law is unconstitutional
because it does not require the jury to make a written statement of findings and
reasons for its death verdict. This court has consistently rejected this claim (e.g.,
People v. Gray, supra, 37 Cal.4th at p. 236; People v. Cornwell, supra, 37 Cal.4th
at p. 105; People v. Morrison, supra, 34 Cal.4th at pp. 730-731), and defendant
does not persuade us to reconsider these decisions.
L. Cumulative Effect of Errors
Defendant claims that the judgment must be reversed because of the
cumulative effect of errors at both the guilt and penalty phases of his trial.
Defendant has demonstrated few errors at either phase of the trial, and we have
found each error or possible error to be harmless when considered separately.
Considering them together, we likewise conclude that their cumulative effect does
not warrant reversal of the judgment.
V. DISPOSITION
The judgment is affirmed.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN J.
MORENO, J.
CORRIGAN, J.
91
CONCURRING OPINION BY KENNARD, J.
In 1993, in a concurring opinion in a noncapital case (People v. Ceja (1993)
4 Cal.4th 1134), I expressed a “growing concern” that the definition of lying in
wait that this court had earlier adopted in People v. Morales (1989) 48 Cal.3d 527
“may have undermined the critical narrowing function of the lying-in-wait special
circumstance: to separate defendants whose acts warrant the death penalty from
those defendant who are ‘merely’ guilty of first degree murder.” (People v. Ceja,
supra, at p. 1147.) I expressed this concern again in separate opinions in People v.
Hillhouse (2002) 27 Cal.4th 469, 512, and People v. Combs (2004) 34 Cal.4th
821, 869. In none of these cases, however, did I indicate how I would decide this
constitutional issue.
During the same period, without writing separately, I have concurred in
decisions affirming judgments of death based in part on lying-in-wait special
circumstances, including decisions rejecting claims that the lying-in-wait special
circumstance is unconstitutional because it does not adequately narrow the class of
death-eligible defendants. In each of these cases, however, the issue was not
squarely presented because other special circumstances had been found true and
the lying-in-wait special circumstance had no effect on the evidence presented at
the penalty phase. (See Brown v. Sanders (2006) 546 U.S. __ [126 S.Ct. 884];
People v. Combs, supra, 34 Cal.4th 821, 869.) Since I expressed concern about
the lying-in-wait special circumstance in People v. Ceja, supra, 4 Cal.4th 1134,
1
this court has not, until now, affirmed a judgment of death in which lying in wait
was the only special circumstance. In this case, however, no other special
circumstance was alleged, and defendant’s eligibility for the death penalty is based
solely on the jury’s finding that defendant murdered Teresa Holloway while lying
in wait. For this reason, I have taken a careful look at the constitutional issue to
which I alluded in 1993.
Since 1972, the United States Supreme Court has “required States to limit
the class of murderers to which the death penalty may be applied.” (Brown v.
Sanders, supra, 546 U.S. at p. ___ [126 S.Ct. at p. 889].) The court announced
that requirement in Furman v. Georgia (1972) 408 U.S. 238. Justice White’s
concurring opinion in Furman identified the problem in the death penalty systems
of Georgia and other states as the absence of a “meaningful basis for
distinguishing the few cases in which [the death penalty] is imposed from the
many cases in which it is not.” (Id. at p. 313.) In 1980, Justice Stewart’s plurality
opinion in Godfrey v. Georgia (1980) 446 U.S. 420, 427, converted this
description into a requirement: “A capital sentencing scheme must, in short,
provide a ‘ “meaningful basis for distinguishing the few cases in which [the death
penalty] is imposed from the many cases in which it is not.” ’ ”
Over the ensuing years, the decisions of the United States Supreme Court
gradually dispelled the impression that to satisfy the federal Constitution’s
narrowing requirement only a small percentage of murders may be punishable by
death. (See, e.g., Arave v. Creech (1993) 507 U.S. 463, 475.) In 1994, the court
summarized in rather precise terms the federal Constitution’s requirements for
death eligibility in a homicide case: “To render a defendant eligible for the death
penalty in a homicide case, we have indicated that the trier of fact must convict the
defendant of murder and find one ‘aggravating circumstance’ (or its equivalent) at
either the guilt or penalty phase. [Citations.] The aggravating circumstance may
2
be contained in the definition of the crime or in a separate sentencing factor (or in
both). [Citation.] As we have explained, the aggravating circumstance must meet
two requirements. First, the circumstance may not apply to every defendant
convicted of a murder; it must apply only to a subclass of defendants convicted of
murder. [Citation.] Second, the aggravating circumstance may not be
unconstitutionally vague. [Citations.]” (Tuilaepa v. California (1994) 512 U.S.
967, 971-972.) Under California’s death penalty law, the special circumstances
listed in Penal Code section 190.2 function as the “aggravating circumstances”
making a defendant eligible for the death penalty. (Brown v. Sanders, supra, 546
U.S. at p. ___ [126 S.Ct. at p. 892]; People v. Bacigalupo (1993) 6 Cal.4th 457,
467-468.)
The lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)),
as this court defined it in People v. Morales, supra, 48 Cal.3d at page 557,
satisfies the constitutional requirements that the United States Supreme Court
articulated in Tuilaepa v. California, supra, 512 U.S. 967. The special
circumstance applies only to a subclass of murderers, not to all murderers, and it is
not unconstitutionally vague; therefore, it satisfies the federal Constitution’s
narrowing requirement for a death-eligibility factor. (See People v. Moon (2005)
37 Cal.4th 1, 44; People v. Nakahara (2003) 30 Cal.4th 705, 721; People v.
Gutierrez (2002) 28 Cal.4th 1083; see also Morales v. Woodford (9th Cir. 2004)
388 F.3d 1159, 1174-1178, cert. den. sub nom. Morales v. Brown (Oct.11, 2005)
__ U.S. __ [126 S.Ct. 420]; People v. Earp (1999) 20 Cal.4th 826, 904-905;
People v. Sanchez (1995) 12 Cal.4th 1, 60-61.)
KENNARD,
J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Jurado
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S042698
Date Filed: April 6, 2006
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: David M. Gill
__________________________________________________________________________________
Attorneys for Appellant:
Lynne S. Coffin and Michael T. Hersek, State Public Defenders, under appointments by the Supreme
Court, and Mark Hammond, Deputy State Public Defender, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, William M. Wood, Larissa Karpovics Hendren and Marvin Mizell, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael T. Hersek
State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676
Marvin Mizell
Deputy Attorney General
110 W “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2230
Opinion Information
| Date: | Docket Number: |
| Thu, 04/06/2006 | S042968 |
Parties
| 1 | Espinoza-Bojorquez, Edmundo B. (Appellant) Represented by Edmundo Espinoza-Bojorquez The Bristol Square 185 West "F" Street Suite 430 San Diego, CA |
| 2 | State Bar Of California (Appellant) |
| Disposition | |
| Dec 14 1994 | Petition for writ of Review denied |
| Dockets | |
| Oct 28 1994 | Petition for writ of review filed (S.B. proceeding Pending) By: Petnr. Espinoza in Pro per |
| Oct 28 1994 | Note: See S041593 Add'l Matter Pending. |
| Nov 14 1994 | Response by State Bar filed |
| Dec 14 1994 | Petition for writ of review denied |
