Stanford Law School - Robert Crown Law Library

Filed 12/6/07



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S049973

v.

DOUGLAS OLIVER KELLY,

Los Angeles County

Defendant and Appellant.

Super. Ct. No. LA015339



A jury convicted defendant Douglas Oliver Kelly of the first degree murder

of Sara Weir under the special circumstances of robbery and rape murder and with

personal use of a deadly weapon. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 12022,

subd. (b).)1 After a penalty trial, the jury returned a verdict of death. The court

denied the automatic motion to modify the verdict (§ 190.4) and imposed that

sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. FACTS

A. Guilt Phase

1. Overview

On September 15, 1993, 10-year-old Eric A. discovered Sara Weir’s nude

and decomposed body under his bed in the apartment where Eric lived with his


1

All further statutory references are to the Penal Code unless otherwise

indicated.

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mother, Michelle T., and, for a while, defendant.2 The evidence presented at trial

established that defendant had stabbed Sara to death with a pair of scissors several

days earlier.

2. The Evidence

The prosecution presented evidence regarding defendant’s and Sara’s

actions in the weeks and, especially, days before defendant killed her. Defendant,

who apparently had little money and owned no car, frequented a fitness center in

Burbank, where he met and befriended a number of women, including Sara,

Michelle T., and Teri B. Michelle and Teri testified that at first defendant was a

friendly and seemingly caring person. He told them, and they believed him at

first, that he had a wealthy family in Chicago. He also led them to believe he was

a manager or part owner of the fitness center.

Sara, who was 19 years old when she was killed, lived with a friend and

had a job at Warner Bros. Studios. Martha Farwell, Sara’s adoptive mother,

described her as naïve and trusting. During the summer of 1993, she visited the

fitness center quite often, where she met defendant. Defendant became her

personal trainer. One time Sara went with a friend to defendant’s apartment to

look at a dog. Sara told people that defendant was her personal trainer but never

suggested she had any other relationship with him. She mentioned to one friend

that defendant had tried to flirt with her but she was not interested. She had other

boyfriends that summer.

Sara spent the Labor Day weekend with her mother and left to go to her

home the afternoon of Labor Day itself, September 6. One friend was expecting to

hear from her sometime that same day, during the evening at the latest. The next

morning, September 7, shortly after 9:00 a.m., Sara called her place of work and


2

All further dates are in the year 1993 unless otherwise indicated.

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said that “she wasn’t going to be at work today because a friend had committed

suicide and she had to deal with that.” She sounded upset. Sara’s mother testified

that she knew of no such suicide. Sara had made plans with another friend to see a

movie around September 8 and to go to the Hollywood Bowl on September 11.

Neither Sara’s mother nor her friends ever saw or heard from her again until her

body was discovered.

Michelle testified that she and defendant began dating. Eventually,

defendant moved into her apartment at 4950 Laurel Canyon, apartment 110, in

North Hollywood, where she lived with her son, Eric A. The three lived together

in that apartment for about five months until late August. Defendant often spoke

of Sara Weir. He told Michelle that Sara had hired him to do weight training.

At some point, defendant offered to become Teri’s personal trainer, which

she accepted. He also asked Teri to work in his family business, promising that

his mother would pay her when she arrived from Chicago. Teri agreed, and she

believed she had a working relationship with defendant for about two weeks,

although she was never paid. She once told defendant she needed to be paid. He

gave her one of Michelle’s checks, in the amount of $2,000, but the check

bounced.

During this time, defendant also sought to obtain money from

acquaintances. Leticia Busby testified that she met defendant at the fitness center,

where she worked as an aerobics instructor. On August 26, defendant asked to

borrow her credit card so he could take his girlfriend to San Diego for the

weekend. She refused.

Helen Walters also knew defendant from the fitness center. He told her that

he had just received a family inheritance, but he needed some money to rent a car

to go to Disneyland, where he planned to set up a food business. He asked to use

Walters’s credit card, offering to pay off the $300 balance on the card account if

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she allowed him to do so. He showed her his bankbook, which indicated he had

much money, but he also said he did not have a credit card, so he needed to

borrow hers. Walters trusted him and permitted him to use her card. He charged

$900 to her card but never repaid her. She last spoke with him around August 29

or 30. He told her then that he would get her the money, but she never heard from

him again.

Damon Stalworth owns a restaurant. He came to know and to trust

defendant. Defendant gave him “the impression that he had access to cash.”

Around August, Stalworth accepted two personal checks from defendant that were

in someone else’s name, possibly Teri B.’s. He gave defendant cash. “It was like

a loan, just to get cash.” The checks bounced, and defendant never repaid

Stalworth. Teri testified that she did not give defendant permission to write a

check of hers for cash.

On Monday, August 30, defendant asked Teri to come to his apartment on

Laurel Canyon to meet his mother, who was supposedly coming to town. Teri

believed the mother would have money to pay her what defendant owed her. She

went to the apartment shortly after noon, but defendant said his mother had not yet

arrived. Later, when the mother did not appear, Teri began to get concerned and

wanted to leave. She went to the bathroom. When she came out, defendant

assaulted her with a pair of scissors. He forced her into the master bedroom,

where he held the scissors to her throat, drawing blood. Defendant threatened to

kill her. In order to survive, Teri did not resist what followed. Defendant forced

her to disrobe, raped her twice, and sodomized her twice. After that, he poured

champagne and whiskey into two glasses, from which they drank. Then he raped

her again and orally copulated her.

Afterwards, defendant had Teri get dressed, and they drove to a restaurant

in her car, where they stayed for about 15 minutes. Then they drove some more.

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During this drive, around 6:00 to 7:00 p.m., defendant had a conversation with

Michelle on his cell phone. Michelle and defendant argued, and defendant became

quite angry. During this conversation, Teri came to realize that much of what

defendant had said about himself and his family was not true. Eventually, Teri

managed to get away from defendant. She did not report the rape until just before

she testified at trial because, she said, she was ashamed and, due to defendant’s

threats, terrified.

Michelle testified that that same Monday, August 30, she and Eric arrived

home after his football practice sometime around 8:00 p.m. or a bit later. The

apartment was open. “The balcony doors were wide open and the lights were on

and wine glasses, empty champagne bottles were in the house.” They found a

dirty towel and women’s glasses and underwear that were not Michelle’s. After

that, defendant and Michelle spoke on the telephone, but defendant did not return

home until about midnight.

When defendant returned, and while he was still outside, Michelle told him,

“as I had told him previously on the phone, that I didn’t want him to come to the

house . . . .” Defendant kicked the door open. “He almost broke it off the hinges.”

He grabbed Michelle by the neck and started to strangle her with both hands, hard

enough to penetrate the skin of her neck with his fingernails. He spent the night

with her. The next day, August 31, defendant permitted her to go with her son to

his football practice. When she did so, she called the police and defendant was

arrested. The day after that, September 1, she learned that defendant had been

released from custody. The same day, she obtained a restraining order to keep him

from coming to the apartment. Because she was frightened, she went to live with

her sister. She did not return to her apartment again except occasionally to get

clothing.

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The manager of Michelle’s apartment building testified that on August 30,

the door of apartment 110 (Michelle’s apartment) had been kicked in. The next

day, the manager had the door fixed. The day after that she had a new lock put on

the door. She gave Michelle, but not defendant, a key to the new lock. Michelle

testified that a person could reach the apartment’s balcony from the outside.

Karrie Marshall worked at a café inside the fitness center and knew

defendant. She testified that shortly before Labor Day, defendant called her at her

home. He said he was in jail and asked her to help bail him out by obtaining some

money from a friend of his. She declined. Later the same day, defendant called

her again. He said he was out on bail and asked if he could come to her apartment

to pay her some money he owed her. He arrived around 3:00 to 4:00 p.m. She

had a male friend with her. Defendant seemed surprised to see the friend. He did

not have the money and gave no explanation for not having it. After about half an

hour, he left. Around 8:00 that evening, defendant called her again. He said that

he had the money this time and would come to her apartment again in about an

hour. He arrived around 12:30 a.m. that same night and knocked on her door.

Karrie did not let him inside, but she observed him through the peephole. She

asked defendant what he needed. He asked if he could come in. He said,

“Michelle changed the locks on the apartment doors and I need a place to crash.

Can I crash on your couch for a couple hours?” Karrie was alone at this point.

She was scared and “had a bad feeling” about defendant. She did not let him into

the apartment, and defendant left.

Rosell Momon, who also became acquainted with defendant at the fitness

center, testified that shortly before Labor Day he received a call from defendant.

Defendant said he had gotten into an argument with his girlfriend, had been in jail,

had just gotten out, and wanted a ride. Momon picked him up. Defendant said he

thought he might have a restraining order against him. He asked if he could stay

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with Momon for a few days until his girlfriend “cooled down.” Defendant stayed

with Momon for about two days. During that time, defendant occasionally left to

look for Michelle. On Labor Day, Momon drove defendant back to the apartment

on Laurel Canyon. Defendant expressed concern about whether he would be able

to get inside the apartment. Momon observed defendant climb to a balcony to get

into the apartment. The next day, defendant called Momon again. Defendant said

he was “hanging out” with a girl. Defendant said it was not his girlfriend but

another girl. Momon did not know who the girl was.

On Labor Day, Michelle visited her apartment. Nothing about its condition

suggested to her that someone had visited it since she left. Michelle observed

defendant’s briefcase in the apartment. She thought he had left it there when he

was arrested. She looked inside the briefcase and found defendant’s mother’s

telephone number. Michelle called his mother and learned that much of what he

had told her about himself was untrue. The briefcase also contained some of

Michelle’s blank checks with her apparent signature and a piece of paper with her

name written on it three times. Michelle testified she had not signed the checks

but the writing looked somewhat like hers, as if someone was trying to copy her

name.

Defendant’s briefcase also contained some blank checks with Teri’s

apparent signature, Teri’s sunglasses, and Teri’s driver’s license. Teri testified

that she never gave defendant any of her blank checks, and that she had not signed

them. The handwriting on the checks was similar to, but was not, hers. She did

not give defendant permission to possess these items.

Michelle visited her apartment on other occasions after Labor Day. The

next time she went to the apartment, she noticed that the piece of wood she had

placed by the sliding glass door to secure it had been removed. She also observed

a consumed bottle of champagne and some wine glasses on the kitchen counter

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that had not been there previously. This indicated to Michelle that someone had

recently been inside the apartment. Michelle also eventually discovered that some

of her jewelry was missing.

After Labor Day, Michele noticed an unusual odor coming from the

bathroom or hallway area. The odor got stronger over time. Eventually, during

another visit, on September 15, Eric discovered Sara’s body under the bed in his

bedroom.

The body was nude and wrapped in a blanket. Its decomposed condition

indicated that death had occurred some time previously. A plastic bag covered the

head and a baseball helmet belonging to Eric was over the bag. The bag was

secured around the neck by tape that was identical to a roll of tape from a box in

the kitchen. Defendant’s palm print and fingerprints were found on the roll of

tape, the helmet, and the bed in Eric’s bedroom.

The autopsy revealed that Sara had died of a total of 29 stab wounds by a

single weapon, possibly scissors. The body provided no physical evidence of a

sexual assault but, given its decomposed state, this did not mean a sexual assault

had not occurred. A few days after the body was discovered, a pair of

bloodstained scissors was discovered in the box in the kitchen that contained the

roll of tape. The scissors could have inflicted the wounds on Sara’s body.

Michelle testified that she had last left the scissors on the nightstand by her bed.

Teri testified that the scissors were similar to the ones defendant had used to

assault her. The blood on the scissors could not have been Teri’s.

Robert Coty, the manager of an apartment building across the street from

Michelle’s apartment, testified that shortly after Labor Day, he observed some

activity in Michelle’s apartment while looking through a sliding glass window into

the apartment. He saw a shirtless man who appeared to be the man who had been

living in the apartment. He also observed a “Caucasian” person with dark hair

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who appeared to be sitting or kneeling. (Sara’s biological mother was a Canadian

Blackfoot Indian; Michelle is African-American.) The person appeared to be

wearing no clothes. At one point, Coty used the word “she” when referring to this

person, but otherwise he said nothing about the person’s gender, using instead the

neutral word “person.” Coty observed the man “walk around this person, made

like two walk arounds and then right after the second walk around of that person,

he closed up the drapes.” He testified that “the person who was sitting or

kneeling, they were kind of crunched up like they were being dominated, like they

were being scolded or something.”

Shortly after the body was discovered, the police attempted unsuccessfully

to find defendant. Eventually, defendant was detained in Laredo, Texas, on

November 24 while he was attempting to enter the United States from Mexico.

He possessed two of Sara’s checks containing her apparent signature. Sara’s

mother testified that the handwriting on the checks was not Sara’s. Sara’s vehicle,

a Ford Bronco, was found in Mexico. Her purse was missing from her apartment

and was never found.

Jodi D. testified that in December 1987, she was a waitress and defendant a

cook at a restaurant in Florida. One night after work, she was with defendant and

others at another restaurant. She and defendant started talking about relationships,

and especially her relationship with her boyfriend. Defendant seemed sincerely

interested and honest. She trusted him and felt comfortable with him. When the

group broke up, defendant suggested continuing the conversation elsewhere. She

agreed, and they drove to other places. She drove because defendant did not have

a car. During this time, defendant told her he was planning to open a restaurant.

He showed her a restaurant that he said he was going to rename “Mr. Kelly’s.” He

also directed her to a gas station that he claimed to own. She believed him. He

said he wanted to show her a room he rented for when he had to work late. She

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agreed. They parked by a convenience store and walked to a nearby boarding

house. Defendant said he wanted to get some money. She still believed him.

Eventually, they entered one of the rooms. Inside, defendant raped her repeatedly

and took some of her jewelry and her watch. Jodi reported the incident and

defendant was arrested. Later he entered into a plea bargain for a lesser crime than

he was charged with and received “time served.”

Kim V., a native of South Africa, testified that in 1991 she was visiting

Miami as part of a tour of the United States. She met defendant at a youth hostel.

He seemed friendly. He told her he was a chef and could get her a job. They

socialized after that. He gave her the impression that he was well off and did not

have to work because he received a family allowance. One evening, Kim and

defendant went to a couple of bars. Eventually, they went into defendant’s room

at the hostel, where she had left some items. Then defendant refused to let her go.

He covered her mouth with his hand and threatened to kill her if she screamed. He

held a knife to her throat and dragged her toward the bed. He raped her

repeatedly. “Between the rapes” he seized some of her jewelry. Eventually,

defendant fell asleep, and Kim managed to escape, taking her jewelry in the

process. Kim reported the incident, but defendant had left by the time the police

arrived at the hostel, and he was not arrested.

Defendant did not present any evidence at the guilt phase.

B. Penalty Phase

Esther D. testified that in 1984 in New Jersey, defendant raped her

repeatedly. Later she heard that he had been indicted for the crime, but he served

only 364 days in custody pursuant to a plea bargain. After his release, she saw

him in town several times. One time he walked past her and said “he was going to

get me.” Another time he told her “he was going to kill me.”

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Martha Farwell, Sara’s mother, testified about Sara and the impact her

death had on her family. She prepared a videotape of Sara’s life that was played

to the jury.

Defendant did not present any evidence at the penalty phase.

II. DISCUSSION

A. Jury Selection Issues

1. Excusing Two Prospective Jurors for Cause

Defendant contends the court erred in excusing two prospective jurors for

cause over his objection. The court excused the first prospective juror because the

deputy district attorney who was prosecuting this case had previously prosecuted

her son’s uncle on rape charges and obtained a conviction. The prospective juror

said she did not know what the charges against the uncle had been, but she knew

he was in prison at the time of trial. “A party may challenge a prospective juror

for actual bias, defined as a state of mind that would prevent that person from

acting impartially and without prejudice to the substantial rights of any party.”

(People v. Hillhouse (2002) 27 Cal.4th 469, 488.) “[T]he qualification of jurors

challenged for cause [is a] matter[] within the wide discretion of the trial court,

seldom disturbed on appeal.” (Odle v. Superior Court (1982) 32 Cal.3d 932, 944.)

We cannot say the trial court abused its discretion in excusing this juror. A

trial court could reasonably conclude that a prospective juror would be biased

against a prosecutor who had personally prosecuted for rape a man who would

have been her brother-in-law had she married her son’s father. Moreover, any

error was harmless. Generally, error in excusing jurors for reasons not related to

their views regarding the death penalty does not require setting aside the

judgment. (People v. Carpenter (1999) 21 Cal.4th 1016, 1037; People v. Holt

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(1997) 15 Cal.4th 619, 656. “Defendant has a right to jurors who are qualified and

competent, not to any particular juror.” (People v. Holt, supra, at p. 656.)

The court excused the second juror because of his views on the death

penalty. Unlike error in excusing jurors for cause unrelated to their views on the

death penalty, “the erroneous exclusion of a prospective juror because of that

person’s views on the death penalty is reversible per se.” (People v. Cooper

(1991) 53 Cal.3d 771, 809, italics omitted, citing Gray v. Mississippi (1987) 481

U.S. 648.) But we see no error. “The trial court may excuse for cause a

prospective juror whose view on the death penalty would prevent or substantially

impair the performance of the juror’s duties. On appeal, we uphold the trial

court’s ruling if the record fairly supports it, and we accept as binding the trial

court’s determination of the juror’s true state of mind if the juror has made

conflicting or ambiguous statements.” (People v. Cleveland (2004) 32 Cal.4th

704, 735.)

In this case, the prospective juror said some things suggesting that he could

be fair to both sides and could impose the death penalty if appropriate. But, in

response to questioning by the district attorney, he also stated that “morally I’m

opposed to [the death penalty] because I don’t think anybody really has a right to

take another person’s life regardless, and it doesn’t make it any more right for the

government to do it than it is for an individual to do it.” He reiterated, “That’s

morally the way I feel.” In response to the district attorney’s statement that he, the

district attorney, had “trouble with the idea that you would abandon your own

morality,” he said, “I have the same trouble.” He agreed with the prosecutor that

he “might not be the best juror for a death penalty case although excellent for any

other murder case . . . .” The court excused the juror, stating that “the more [the

prosecutor] questioned, it’s clear to me that [the juror] would never vote for the

death penalty.” In light of the juror’s conflicting and ambiguous statements, we

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must accept the trial court’s determination of his true state of mind. As the United

States Supreme Court recently explained, “Deference to the trial court is

appropriate because it is in a position to assess the demeanor of the venire, and of

the individuals who compose it, a factor of critical importance in assessing the

attitude and qualifications of potential jurors.” (Uttecht v. Brown (2007) 551 U.S.

___, ___ [127 S.Ct. 2218, 2224].) No error appears.

2. Prosecutor’s Use of Peremptory Challenges

Defendant contends the prosecutor improperly exercised one peremptory

challenge against one prospective alternate juror because she was African-

American. (See Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978)

22 Cal.3d 258.) The record does not support the contention.

The prosecutor originally accepted the panel of prospective alternate jurors

when two members of the panel were African-American. Then, after defense

counsel exercised a peremptory challenge to one of the non-African-American

jurors, the prosecutor challenged one of the African-American jurors. At this

point, defense counsel objected that the challenge was discriminatory, and the

court held a hearing. The court denied defendant’s objection but invited the

prosecutor to comment.

The prosecutor explained that he exercised the peremptory challenge partly

because the prospective juror indicated she would have difficulty “implementing

. . . the use of aggravating, mitigating factors.” This indicated to him that “she

probably would have some difficulty imposing the death penalty.” Additionally,

he was concerned that she had been a social worker. He explained that “defendant

in this case had early childhood problems without his father being around. I don’t

know if that’s going to come up, but I would suspect defense would bring that out,

and that I think her empathy for that, she chose for a while a path of counseling

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children, helping them out, which I think is a wonderful thing, but I think it may

show a bias or a concern for children in those situations. I thought she would be

biased.” Additionally, he noted that on her questionnaire, “she wrote probably

five times as much as any other juror, which may have just been helpful. May

have been she wanted to be helpful, but I just found it very disturbing. It was just

so odd that a person would be so expressive and redundant and repetitive and

she’d write the same answer three or four or five times. I just felt very strange

about her.”

The second African-American prospective juror became an alternate juror.

Later, she was substituted in as an actual juror and, ultimately, she became the jury

foreperson.

The dispositive question here is whether defendant made a prima facie case

of group bias. To do so, the defendant must show that under the totality of the

circumstances it is reasonable to infer discriminatory intent. (People v. Bonilla

(2007) 41 Cal.4th 313, 341.) Where, as here, it is not clear whether the trial court

used the “reasonable inference” standard, rather than the recently disapproved

“strong likelihood” standard, we review the record independently to determine

whether the record supports an inference that the prosecutor excused a juror on a

prohibited discriminatory basis. (Id. at pp. 341-342.) “In deciding whether a

prima facie case was stated, we consider the entire record before the trial court

[citation], but certain types of evidence may be especially relevant: ‘[T]he party

may show that his opponent has struck most or all of the members of the identified

group from the venire, or has used a disproportionate number of his peremptories

against the group. He may also demonstrate that the jurors in question share only

this one characteristic ― their membership in the group ― and that in all other

respects they are as heterogeneous as the community as a whole. Next, the

showing may be supplemented when appropriate by such circumstances as the

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failure of his opponent to engage these same jurors in more than desultory voir

dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not

be a member of the excluded group in order to complain of a violation of the

representative cross-section rule; yet if he is, and especially if in addition his

alleged victim is a member of the group to which the majority of the remaining

jurors belong, these facts may also be called to the court’s attention.’ (People v.

Wheeler, supra, 22 Cal.3d at pp. 280-281, fn. omitted.)” (Id. at p. 342)

We find nothing in this record to support the conclusion that the prosecutor

excused the African-American prospective juror because of her race. It is true that

defendant is himself African-American, but that fact alone does not establish a

prima facie case of discrimination. Whether his victim, Sara Weir, was a member

of the group to which a majority of the remaining jurors belong is debatable. The

record shows that her biological mother was a Blackfoot Indian. In any event, the

race of the victim, by itself, does not also establish a prima facie case of

discrimination. Here, the prosecutor used only one peremptory challenge against

an African-American. He passed the alternate jurors once with two African-

American jurors remaining, and he never challenged the other African-American

juror. The fact that the prosecutor accepted the jury panel once with both African-

American jurors on it, and exercised the single challenge only after defense

counsel exercised his own challenge, strongly suggests that race was not a motive

behind the challenge. (People v. Cornwell (2005) 37 Cal.4th 50, 69-70; People v.

Reynoso (2003) 31 Cal.4th 903, 926.) Moreover, the prosecutor’s questioning of

the prospective juror was probing, not desultory.

Defendant notes that, during selection of the original jury panel, two

African-Americans, apparently the only two of that group to be called into the jury

box at that stage, were excused for cause, one on the prosecutor’s motion. (The

latter was the prospective juror who was excused because the prosecutor had

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previously prosecuted her son’s uncle on rape charges. [See pt. II.A.1.].) He

argues that this circumstance shows that the “prosecutor was achieving what he

wanted: a jury with few or no African American jurors.” We disagree. Many

prospective jurors are excused for cause. The prosecutor was entitled to challenge

for cause the one juror because of a legitimate concern that she might be biased

against him under the circumstances. As the trial court stated when defense

counsel argued this point at trial, whether it correctly excused that prospective

juror for cause was a separate issue unrelated to whether the prosecutor was acting

discriminatorily. The other prospective African-American juror was excused

pursuant to stipulation because she had been a rape victim, and she said her

emotions would make it too painful for her to be a juror. Defendant asserts that

the prosecutor had “the second African-American prospective juror excused by

stipulation . . . .” In fact, the record shows that defense counsel suggested she be

excused by stipulation. The prosecutor acquiesced in this suggestion, but before

he did so he also stated, “If at all possible I would like to keep her because she

seems very intelligent, very nice and honest, but it does seem like she was tearing

up just talking about the incident.”

Although not required to do so, the prosecutor also stated three race-neutral

reasons for his peremptory challenge. Defendant challenges these reasons in

various ways, but, under the circumstances, we see no reason to doubt the sincerity

of the prosecutor’s explanation. Because the record does not support the inference

that the prosecutor used this single peremptory challenge against an African-

American juror on the basis of her race, the trial court properly overruled

defendant’s trial objection.

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B. Guilt Phase Issues

1. Defendant’s Absence from Proceedings

Defendant was apparently absent from a few conferences regarding legal

matters that were held in the hallway outside the presence of the jury. Defense

counsel was present on all occasions. Defendant contends his absence violated his

constitutional and statutory rights to be present. We disagree.

Defendant complains of five occasions when he was personally absent: (1)

during jury selection when one prospective juror was questioned and ultimately

excused for cause because the prosecutor had personally prosecuted her son’s

uncle; (2) during jury selection when one juror was excused for cause because of

his views regarding the death penalty; (3) during jury selection when his objection

to the prosecutor’s peremptory challenge against the African-American

prospective alternate juror was argued and denied; (4) when the parties and court

discussed the admissibility of evidence that the murder victim had consumed

alcohol on occasions not connected to her death; and (5) when the prosecutor

informed the court and defense counsel that Teri B. had recently stated that

defendant had raped her.

The record does not clearly establish defendant’s absence on these

occasions. It merely indicates that the proceedings in question “were held in the

hallway.” However, the Attorney General does not deny that defendant was

personally absent on those occasions, and we will assume that he was absent.

“Broadly stated, a criminal defendant has a right to be personally present at

certain pretrial proceedings and at trial under various provisions of law, including

the confrontation clause of the Sixth Amendment to the United States

Constitution, the due process clause of the Fourteenth Amendment to the United

States Constitution, section 15 of article I of the California Constitution, and

sections 977 and 1043.” (People v. Cole (2004) 33 Cal.4th 1158, 1230.) Under

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the decisions, “a defendant’s right to be present depends on two conditions: (1)

the proceeding is critical to the outcome of the case, and (2) the defendant’s

presence would contribute to the fairness of the proceeding. [Citations.] Thus a

defendant may ordinarily be excluded from conferences on questions of law, even

if those questions are critical to the outcome of the case, because the defendant’s

presence would not contribute to the fairness of the proceeding. Examples include

the exclusion of a defendant from a conference on the competency of child

witnesses [citation], a conference on whether to remove a juror [citation], and a

conference on jury instructions [citation].” (People v. Perry (2006) 38 Cal.4th

302, 312.)

The occasions on which it appears defendant was excluded in this case all

involved legal questions of the type that we have routinely held do not require

defendant’s personal presence. Defendant claims, in essence, that had he been

present, he could have advised counsel to make better legal arguments. A similar

claim could be made about any occasion involving legal issues. Nothing in this

record suggests that defendant’s presence on these occasions would have made

any difference. Defendant relies on cases in which both the defendant and defense

counsel were excluded from the proceeding. (People v. Ayala (2000) 24 Cal.4th

243, 259-269 [excluding defendant and defense counsel from hearing on reasons

for peremptory challenges was error but harmless]; see also id. at pp. 291-300 (dis.

opn. of George, C. J.) [arguing that the error was prejudicial]; U.S. v. Thompson

(9th Cir. 1987) 827 F.2d 1254.) There is, however, an obvious difference between

excluding both the defendant and his attorney and merely excluding the defendant.

In this case, unlike the cases defendant cites, defense counsel was present on all

occasions and was able to fully represent defendant’s interests.

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2. Admission of Evidence of Uncharged Misconduct

Over objection, the court admitted evidence of three types of uncharged

misconduct by defendant: (1) evidence regarding defendant’s financial dealings

with other women he had met at the fitness center shortly before Sara’s death; (2)

evidence of defendant’s assault on Michelle T.; and (3) evidence of defendant’s

rapes of Teri B., Jodi D., and Kim V. In making its rulings, the court reviewed,

and was guided by, our then recent decisions in People v. Ewoldt (1994) 7 Cal.4th

380 (Ewoldt) and People v. Balcom (1994) 7 Cal.4th 414 (Balcom). The court

also explained to the jury the limited use it could make of this testimony.

Defendant contends the court erred in admitting this evidence.

Evidence Code section 1101, subdivision (a), generally prohibits “evidence

of a person’s character or a trait of his or her character” when it is “offered to

prove his or her conduct on a specified occasion.” Subdivision (b) of that section,

however, provides: “Nothing in this section prohibits the admission of evidence

that a person committed a crime, civil wrong, or other act when relevant to prove

some fact (such as motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake or accident, or whether a defendant in a prosecution

for an unlawful sexual act or attempted unlawful sexual act did not reasonably and

in good faith believe that the victim consented) other than his or her disposition to

commit such an act.”

In general, we have explained that “[t]he admissibility of other crimes

evidence depends on (1) the materiality of the facts sought to be proved, (2) the

tendency of the uncharged crimes to prove those facts, and (3) the existence of any

rule or policy requiring exclusion of the evidence.” (People v. Carpenter (1997)

15 Cal.4th 312, 378-379.) The main policy that may require exclusion of the

evidence is the familiar one stated in Evidence Code section 352: Evidence may

be excluded if its prejudicial effect substantially outweighs its probative value.

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Because substantial prejudice is inherent in the case of uncharged offenses, such

evidence is admissible only if it has substantial probative value. (Ewoldt, supra, 7

Cal.4th at p. 404.) This determination lies within the discretion of the trial court.

(People v. Carpenter, supra, at p. 380.)

In Ewoldt, supra, 7 Cal.4th 380, we discussed specific situations when

evidence of uncharged crimes may be admitted under Evidence Code section

1101, subdivision (b): “[E]vidence of a defendant’s uncharged misconduct is

relevant where the uncharged misconduct and the charged offense are sufficiently

similar to support the inference that they are manifestations of a common design

or plan. [¶] In determining whether evidence of uncharged misconduct is relevant

to demonstrate a common design or plan, it is useful to distinguish the nature and

degree of similarity (between the uncharged misconduct and the charged offense)

required in order to establish a common design or plan, from the degree of

similarity necessary to prove intent or identity.

“The least degree of similarity (between the uncharged act and the charged

offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a

similar result . . . tends (increasingly with each instance) to negative accident or

inadvertence or self-defense or good faith or other innocent mental state, and tends

to establish (provisionally, at least, though not certainly) the presence of the

normal, i.e., criminal, intent accompanying such an act . . . .’ (2 Wigmore,

[Evidence] (Chadbourn rev. ed. 1979) § 302, p. 241.) In order to be admissible to

prove intent, the uncharged misconduct must be sufficiently similar to support the

inference that the defendant ‘ “probably harbor[ed] the same intent in each

instance.” [Citations.]’ [Citation.]

“A greater degree of similarity is required in order to prove the existence of

a common design or plan. . . . [I]n establishing a common design or plan,

evidence of uncharged misconduct must demonstrate ‘not merely a similarity in

20

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the results, but such a concurrence of common features that the various acts are

naturally to be explained as caused by a general plan of which they are the

individual manifestations.’ (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 304,

p. 249, italics omitted.) ‘[T]he difference between requiring similarity, for acts

negativing innocent intent, and requiring common features indicating common

design, for acts showing design, is a difference of degree rather than of kind; for to

be similar involves having common features, and to have common features is

merely to have a high degree of similarity.’ (Id. at pp. 250-251, italics

omitted . . . .)

“To establish the existence of a common design or plan, the common

features must indicate the existence of a plan rather than a series of similar

spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . .

[E]vidence that the defendant has committed uncharged criminal acts that are

similar to the charged offense may be relevant if these acts demonstrate

circumstantially that the defendant committed the charged offense pursuant to the

same design or plan he or she used in committing the uncharged acts. Unlike

evidence of uncharged acts used to prove identity, the plan need not be unusual or

distinctive; it need only exist to support the inference that the defendant employed

that plan in committing the charged offense. [Citation.]

“The greatest degree of similarity is required for evidence of uncharged

misconduct to be relevant to prove identity. For identity to be established, the

uncharged misconduct and the charged offense must share common features that

are sufficiently distinctive so as to support the inference that the same person

committed both acts. [Citation.] ‘The pattern and characteristics of the crimes

must be so unusual and distinctive as to be like a signature.’ (1 McCormick [on

Evidence (4th ed. 1992)] § 190, pp. 801-803.)” (Ewoldt, supra, 7 Cal.4th at pp.

401-403, fn. omitted.)

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Applying these standards in Ewoldt, supra, 7 Cal.4th 380, a prosecution for

committing lewd acts on a child, we upheld the admission of prior uncharged lewd

acts on the complaining witness and her sister. We held “that the evidence was

admissible to establish that the charged offenses were committed pursuant to the

same design or plan used by defendant in committing the uncharged offenses.”

(Id. at p. 386.) In Balcom, supra, 7 Cal.4th 414, a prosecution for rape and

robbery, we upheld the admission of a similar rape and robbery that the defendant

later committed in Michigan against a different victim. We held that “evidence

tending to establish that, soon after the commission of the charged offenses of rape

and robbery, defendant committed a rape and robbery in Michigan in a manner

quite similar to the charged offenses, was admissible to demonstrate the existence

of a common design or plan which, in turn, was relevant to demonstrate that

defendant either employed or developed that plan in committing the charged

offenses.” (Id. at p. 418.)

The trial court did not abuse its discretion in admitting the evidence in this

case. Defendant discusses each act in isolation and argues it should not have been

admitted. But each act did not occur in isolation but as part of a larger pattern, a

pattern that was highly relevant to understanding what happened to Sara Weir.

Viewed as a whole, this evidence shows a remarkably similar and consistent

pattern. Defendant continually lied to and manipulated women including, in

particular, women who, like Sara Weir, he befriended at the fitness center. As a

specific example of the pattern, he continually led them to believe he came from a

wealthy family. He did so consistently to obtain their property. The evidence

shows he could be very charming and, at first, convincing. He also continually

lured women to his home, where he robbed and raped them.

Sara’s death did not occur in a vacuum. She did not survive her encounter

with defendant to tell her story. But, fortunately, many others — Michelle T., Teri

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B., Jodi D., Kim V., Leticia Busby, Helen Waters, Karrie Marshall — did survive

and can tell their tales. Their testimony was critical to the jury’s full

understanding of the circumstances of Sara’s death. The pattern their testimony

established helped the jury to understand how and why Sara came to be in the

apartment with defendant on that fatal occasion. (Her mother described her as

naïve and trusting; the jury could reasonably infer that she also believed

defendant’s stories and was lured to the apartment just like defendant lured other

trusting women to his home.) It also helped the jury to understand what defendant

intended when he assaulted and ultimately killed Sara — both to take her property

and to rape her.

Defendant first challenges the testimony of his financial dealings with other

women he befriended at the fitness center. This testimony was, however, highly

probative. From the evidence at trial, the jury could reasonably conclude that

defendant took Sara’s vehicle, which was found in Mexico after he was arrested

when he was attempting to enter the United States from Mexico; at least two of

her checks, which were found in his possession when he was arrested; and

probably her purse, which was never found. Issues contested at trial, and indeed

still in this appeal, were whether defendant formed the intent to take these items

before or at the time he applied force or fear and, if so, whether the robbery was

merely incidental to the murder. (People v. Green (1980) 27 Cal.3d 1, 54, 61.)

The evidence of defendant’s financial dealings with other women showed that

defendant continually sought to obtain property from the women, and that virtually

nothing that he did to obtain property was an afterthought. This pattern strongly

suggested that defendant took Sara’s property pursuant to a common plan rather

than merely as an afterthought.

Defendant specifically challenges the admissibility of the testimony of

Leticia Busby and Karrie Marshall. Although their testimony was not quite as

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probative as the other evidence, it was also not particularly prejudicial. Evidence

that defendant attempted to borrow Busby’s credit card, albeit unsuccessfully, was

a manifestation of a common plan to obtain money from the women he met at the

fitness center, which, in turn, helps show that his taking of Sara’s property was not

merely an afterthought. Similarly, Marshall’s testimony showed he was

continually manipulating the women he met at the center. The jury could

reasonably infer that defendant was attempting to be alone with Marshall in her

apartment. This was a variation of the usual pattern in which defendant lured

women to his home. The likely explanation for this variation is that Michelle T.

had just excluded him from her apartment, so he had no home of his own to use.

We see no abuse of discretion in admitting this evidence.

Defendant also specifically challenges the admissibility of Damon

Stalworth’s testimony that defendant cashed two personal checks at the restaurant

Stalworth owns that were in someone else’s name — possibly Teri B.’s — and

that later bounced. This testimony, however, was just more of the same pattern.

The jury could reasonably infer defendant’s possession of two of Sara’s checks

when he was arrested was part of that pattern. This testimony was also admissible.

Evidence of defendant’s assault on Michelle T. just a few days before he

stabbed Sara Weir to death in the same apartment was also admissible as part of

the pattern of deception followed by violence. Moreover, as the trial court

recognized, it was highly probative on the issue of identity, particularly in

conjunction with the assault and rape of Teri B. Sara’s body was found in the

apartment defendant had shared with Michelle. The jury could reasonably infer

that she had been stabbed to death inside that apartment. Evidence that a few days

before this stabbing defendant violently assaulted inside that same apartment two

different women he had also befriended at the fitness center was evidence of

“common features that are sufficiently distinctive so as to support the inference

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that the same person committed both [indeed, in this case, all] acts.” (Ewoldt,

supra, 7 Cal.4th at p. 403.) It would have been a remarkable coincidence if,

shortly after defendant violently assaulted two women he befriended at the fitness

center, some different person happened to use that same apartment to assault

another woman defendant had befriended at the fitness center.

The rapes of Teri B., Jodi D., and Kim V., were similarly admissible. All

three showed a remarkably similar pattern — defendant convinced his victims that

he was wealthy, he lured them to his home, and then he raped and robbed them.

The jury could reasonably infer from this evidence that defendant harbored similar

intents — to rape and to rob — when he similarly lured Sara to the apartment and

ultimately killed her. The assault of Teri B. was especially probative, on identity

as well as intent. Not only did defendant rape a woman he befriended at the

fitness center in the apartment where Sara’s body was later found, but he also used

what the jury could reasonably find was the same weapon — a pair of scissors that

was conveniently at hand. These circumstances were distinctive indeed.

Defendant contends there was not enough evidence that he intended to rape Sara

to warrant admission of evidence of the other rapes. As we explain below, the

overall evidence, including the evidence of the other rapes, was sufficient to

permit the jury to find defendant intended to rape Sara. (See pt. II.B.3.) No

reason appears for the trial court to have excluded any of this evidence.

We also conclude the trial court acted within its discretion in finding the

probative value of the evidence was not substantially outweighed by the potential

for undue prejudice. As explained, the evidence had substantial probative value;

indeed, it was critical to the jury’s full understanding of the circumstances

surrounding Sara’s death. Moreover, none of the other misconduct was

particularly inflammatory compared to Sara’s murder. (Ewoldt, supra, 7 Cal.4th

at p. 405.) We see no error.

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Defendant also argues that admitting this evidence violated his federal due

process rights. (See McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.) “We need

not decide to what extent, if any, evidence solely going to character might violate

due process (cf. People v. Falsetta (1999) 21 Cal.4th 903, 921-922), for, as

explained, here the evidence” of defendant’s prior misconduct was highly

probative on several issues at trial. (People v. Steele (2002) 27 Cal.4th 1230,

1246.)

3. Sufficiency of the Evidence

Defendant contends the evidence was insufficient to support a first degree

murder conviction on either a premeditation theory or a felony-murder theory with

either robbery or rape the underlying felony, and to support the robbery and rape

special circumstance findings. “In determining the sufficiency of the evidence,

‘the court must review the whole record in the light most favorable to the

judgment below to determine whether it discloses substantial evidence — that is,

evidence which is reasonable, credible, and of solid value — such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’

(People v. Johnson (1980) 26 Cal.3d 557, 578.) The same standard of review

applies when the evidence of guilt is circumstantial and to special circumstance

allegations. (People v. Valdez (2004) 32 Cal.4th 73, 104-105.)” (People v.

Horning (2004) 34 Cal.4th 871, 901.) We find the evidence sufficient to support

each of the jury’s verdicts.

Defendant argues that the evidence was insufficient to support a finding

that defendant killed Sara in the course of robbing her for purposes of the felony-

murder rule and the robbery-murder special circumstance. There was certainly

evidence that defendant stole Sara’s property. Her vehicle was found in Mexico,

where defendant went at least for a while after he killed Sara and before his arrest

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at the Mexico-United States border. Two of Sara’s checks were on his person

when he was arrested. Moreover, her purse was never found. Defendant also

certainly used “force or fear” (§ 211) on his victim; indeed, he used the ultimate

force — he stabbed her to death. Defendant argues that a reasonable jury had to

find that the force or fear was unrelated to the taking — i.e., it had to find either he

did not take the property from Sara’s “person or immediate presence” (§ 211), or

she gave him the property voluntarily before he used force or fear, or he achieved

the intent to take the property only after he used the force or fear. We disagree.

“ ‘[W]hen one kills another and takes substantial property from the victim, it is

ordinarily reasonable to presume the killing was for purposes of robbery.’ (People

v. Turner (1990) 50 Cal.3d 668, 688; accord, People v. Hughes [(2002) 27 Cal.4th

287] at p. 357.) Murders are commonly committed to obtain money or other

property. (Hughes, supra, at p. 357.)” (People v. Horning, supra, 34 Cal.4th at p.

903.) Defendant notes that often, as to women he befriended but did not lure to

his home, he obtained, or attempted to obtain, their property by guile rather than

force or fear. This circumstance is true, but it does not make the jury’s verdict

unreasonable. Defendant definitely used force or fear against Sara. The jury

could reasonably find that, as with Teri B., Jodi D., and Kim V., defendant lured

Sara to his home and then used force or fear — probably both — to take her

property. Additionally, the jury could reasonably find that at least some of Sara’s

property — for example, at least the keys to her car — was on her person or in her

immediate presence when defendant used force or fear to take it.

Defendant also argues that any robbery was merely an afterthought and

thus was only incidental to the killing. (See People v. Horning, supra, 34 Cal.4th

at p. 904.) We disagree here too. The pattern of defendant’s behavior shows that

little that he did to acquire property from women he befriended at the fitness

center and his other victims was merely an afterthought. He continually sought to

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obtain property from women and often succeeded. The jury could reasonably find

that the intent to steal was at least a concurrent motivation, and that defendant

killed to facilitate the stealing. (Ibid.)

Defendant next argues the evidence was insufficient to support a finding

that defendant killed Sara in the course of raping or attempting to rape her for

purposes of the felony murder and the rape-murder special circumstance. He

observes that Sara’s body provided no evidence of a sexual assault. The

decomposed state of the body when found might readily explain this circumstance.

Moreover, for the special circumstance or felony-murder rule, there need not be an

actual rape; an attempted rape is sufficient. (People v. Kelly (1992) 1 Cal.4th 495,

524-525.) Accordingly, the verdict would be supported if defendant had intended

to rape Sara, but she resisted and he killed her without actually raping her. The

combination of (1) the fact the body was nude when discovered, (2) Coty’s

testimony that he observed a man the jury could reasonably infer was defendant

walk around a person the jury could reasonably infer was Sara while she was

nude, and (3) defendant’s pattern of raping (as well as robbing) women he lured to

his home under similar circumstances provides ample evidence for a reasonable

jury to find that defendant intended to rape Sara when he killed her. Nothing in

this case required the jury to find that Sara was an exception to the pattern, and

that defendant had no sexual intent when he lured Sara to his home. Defendant

cites cases that, “as a group, may be read to establish ‘that the victim’s lack of

clothing . . . is insufficient to establish specific sexual intent.’ (People v. Johnson

(1993) 6 Cal.4th 1, 41.)” (People v. Holloway (2004) 33 Cal.4th 96, 139.) But

here, as in Holloway, supra, at page 139, the finding of an intent to rape rests on

considerably more than the victim’s nudity.

Finally, defendant contends there was insufficient evidence to find that he

premeditated Sara’s killing. The jury’s true findings regarding the rape-murder

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and robbery-murder special circumstances show that the jury found that defendant

killed Sara “in the perpetration of, or attempt to perpetrate . . . rape . . . [and]

robbery,” which itself makes the killing first degree murder. (§ 189.)

Accordingly, we need not decide whether the jury could also have found the

murder was premeditated. (See People v. Chatman (2006) 38 Cal.4th 344, 389

[torture-murder special-circumstance finding made it unnecessary to decide

whether the murder was also premeditated]; People v. Johnson, supra, 6 Cal.4th at

p. 42 [insufficiency of the evidence of rape felony murder was harmless when

evidence supports other theories of first degree murder].)

4. Jury Instructions

Defendant contends the trial court committed several errors in instructing

the jury.

First defendant contends the court “erroneously failed to define rape and

robbery, the two underlying offenses alleged to support the felony murder charge.”

However, the court did define the elements of both rape and robbery. Defendant

recognizes this circumstance. But he argues that, due to the organization of the

instructions and the fact that the court stated that one of the instructions that

preceded the definitions of rape and robbery “applies only to the special

circumstance instructions,” the jury would believe those definitions concerned

only the rape and the robbery special-circumstance allegations and not rape and

robbery as elements of the rape and the robbery felony-murder rule. This claim is

not cognizable on appeal. The actual instructions correctly stated “the law, . . .

and if defendant favored further clarification, he needed to request it. His failure

to do so waives this claim.” (People v. Marks (2003) 31 Cal.4th 197, 237.)

Moreover, we see no error. The trial court used the specific terms “robbery” and

“rape” consistently in discussing both the felony-murder rule and the special

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circumstance allegations. It later defined those terms. It never suggested those

terms had different meanings depending on whether they referred to the felony-

murder rule or the special circumstance allegations. Reviewing the entire charge

of the court, it is not reasonably likely the jury would believe that the definitions it

received of robbery and rape concerned only the special circumstance allegations

and that some different, unspecified, definitions adhered to the felony-murder rule.

(See People v. Young (2005) 34 Cal.4th 1149, 1202; People v. Kelly, supra, 1

Cal.4th at pp. 525-526 & fn. 7) If the jury had thought that some different

definitions might apply to the felony-murder rule, surely it would have asked for

clarification.

Next, defendant contends the court “delivered an erroneous felony murder

jury instruction that eliminated a finding of intent to commit the underlying

felonies.” The court instructed, “The unlawful killing of a human being, whether

intentional, unintentional or accidental which occurs during the commission or

attempted commission of the crime or as a direct or casual [sic: in context

obviously meant to be “causal”] result of robbery and/or rape is murder of the first

degree when the perpetrator had the specific intent to commit such crime. [¶] The

specific intent to commit rape and/or robbery and the commission or attempted

commission of such crime must be proved beyond a reasonable doubt.” (Italics

and boldface added; see CALJIC No. 8.21 (5th ed. 1988.).)3 This instruction is

identical to CALJIC No. 8.21 as it existed at the time of trial except that the Use

Note to the instruction stated that the italicized words and the words in boldface

were supposed to be alternative choices depending on when death occurred. The


3

The written instructions the jury received were identical to the oral

instructions as transcribed in the reporter’s transcript except that the written
instructions included the correctly spelled word “causal” and did not include the
word “or” between the words “direct” and “causal.”

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Use Note contemplated that the court would use one phrase or the other, but not

both.4

Defendant argues that, by using both the phrase in italics and the phrase in

boldface, the court eliminated the requirement that the jury had to find defendant

intended to commit the underlying felonies. Contrary to the Attorney General’s

argument, we believe this contention is cognizable on appeal despite defendant’s

failure to object or request a clarification. Defendant argues the instruction was

not correct in law and omitted an element of the offense. If he were correct, the

error would affect his substantial rights, thus making the claim cognizable.

(§ 1259; People v. Hillhouse, supra, 27 Cal.4th at p. 503.) The argument lacks

merit, however. Defendant constructs a complex method whereby, he claims, the

jury might read this instruction as not requiring an intent to commit the underlying

crime for purposes of the felony-murder rule. But reading the entire instruction in

context, including the last portion of the first sentence (“when the perpetrator had

the specific intent to commit such crime”) and the second sentence, informing the

jury that the “specific intent to commit rape and/or robbery . . . must be proved

beyond a reasonable doubt,” we see no reasonable likelihood the jury would parse

the instruction in a way that did not require the intent to commit the underlying

felony.

Defendant contends the court erred in instructing the jury on first degree

murder because the information charged him only with malice murder under

section 187. The contention lacks merit. (People v. Geier (2007) 41 Cal.4th 555,


4

At the time of trial, the Use Note to CALJIC No. 8.21 (5th ed. 1988) stated,

“If the death occurs substantially contemporaneously with the commission of the
crime, use the first bracketed phrase [i.e., the language italicized as reprinted in the
text above] and delete the second. On the other hand, if death occurs at a later
period, use the second bracketed phrase [i.e., the language in boldface in the text]
and delete the first.”

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591-592; People v. Hughes (2002) 27 Cal.4th 287, 368-370.) To the extent

defendant contends he received inadequate notice of the prosecution’s theory of

the case, we have explained that “generally the accused will receive adequate

notice of the prosecution’s theory of the case from the testimony presented at the

preliminary hearing or at the indictment proceedings.” (People v. Diaz (1992) 3

Cal.4th 495, 557.) Here, the information alleged that the murder was committed

under the special circumstances of murder in the course of robbery and rape, thus

providing notice that the prosecutor would proceed under a felony-murder theory.

(People v. Kipp (2001) 26 Cal.4th 1100, 1131-1132.)

Defendant contends the court erred in failing to instruct on theft as a lesser

included offense of robbery. However, he was not charged with robbery.

“[W]hen robbery is not a charged offense but merely forms the basis for a felony-

murder charge and a special circumstance allegation, a trial court does not have a

sua sponte duty to instruct the jury on theft.” (People v. Valdez, supra, 32 Cal.4th

at pp. 110-111.)

The court gave the standard jury instruction informing the jury that motive

is not an element of the offense, but the jury may consider, for whatever weight it

finds it to be entitled, the presence or absence of motive as tending to establish

guilt or innocence. (See CALJIC No. 2.51.) Defendant argues that this instruction

impermissibly (1) allowed the jury to determine guilt based on motive alone, (2)

lessened the prosecutor’s burden of proof, and (3) shifted the burden of proof to

imply that he had to prove innocence. The first of these arguments “merely goes

to the clarity of the instruction” and hence is not cognizable on appeal. (People v.

Cleveland, supra, 32 Cal.4th at p. 750.) Moreover, the entire argument lacks

merit. (People v. Cleveland, supra, at p. 750; People v. Prieto (2003) 30 Cal.4th

226, 254; People v. Cash (2002) 28 Cal.4th 703, 738-739; People v. Hillhouse,

supra, 27 Cal.4th at pp. 503-504.) “The motive instruction did not itself include

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instructions on the prosecution’s burden of proof and the reasonable doubt

standard, but it also did not undercut other instructions that correctly informed the

jury that the prosecution had the burden of proving guilt beyond a reasonable

doubt.” (People v. Cleveland, supra, at p. 750.)

Defendant argues that various standard instructions, specifically, CALJIC

Nos. 1.00, 2.01, 2.21.1, 2.21.2, 2.22, 2.27, 2.51, 2.52, 2.90, 8.83, and 8.83.1,

“impermissibly undermined and diluted the requirement of proof beyond a

reasonable doubt.” We disagree. (People v. Crew (2003) 31 Cal.4th 822, 847-

848; People v. Maury (2003) 30 Cal.4th 342, 428-429; People v. Boyette (2002)

29 Cal.4th 381, 438-439; People v. Montiel (1993) 5 Cal.4th 877, 941.) Each of

these instructions “is unobjectionable when, as here, it is accompanied by the

usual instructions on reasonable doubt, the presumption of innocence, and the

People’s burden of proof.” (People v. Nakahara (2003) 30 Cal.4th 705, 715.)

C. Penalty Phase Issues

1. Admission of Victim Impact Evidence

The prosecution presented a single witness who provided victim impact

evidence — Sara Weir’s mother, Martha Farwell. Over objection, the court also

permitted the prosecution to show the jury a videotape portraying Sara’s life that

her mother had prepared. Defendant contends (1) the court should not have

admitted any victim impact evidence, (2) the court at least should have curtailed

the mother’s testimony, and (3) the court should not have admitted the videotape.

The first two of these contentions are not cognizable on appeal. Defendant

did not object to the mother’s testimony. Indeed, he expressly stated that the

mother’s own testimony “as to impact of Sara’s life and her passing on her and the

family . . . seems to be permissible by law.” As is the case with the admission of

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any evidence, defendant has forfeited the issue by failing to object at trial. (Evid.

Code, § 353, subd. (a); People v. Robinson (2005) 37 Cal.4th 592, 652.)

Moreover, the trial court would have had discretion to admit Farwell’s

testimony. “Unless it invites a purely irrational response from the jury, the

devastating effect of a capital crime on loved ones and the community is relevant

and admissible as a circumstance of the crime under section 190.3, factor (a).”

(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) “The federal

Constitution bars victim impact evidence only if it is ‘so unduly prejudicial’ as to

render the trial ‘fundamentally unfair.’ ” (Id. at p. 1056, quoting Payne v.

Tennessee (1991) 501 U.S. 808, 825.) Defendant argues that no victim impact

evidence was permissible in this case because the jury already heard evidence

regarding Sara at the guilt phase, substantial other crimes evidence was admitted

at the guilt and penalty phases, and he did not present any evidence himself.

However, no such absolute limitations exist. Permitting victim impact evidence

would have been well within the court’s discretion even if defendant had objected.

Defendant also challenges specific portions of Farwell’s testimony. While

the court has the discretion to limit testimony, none of that given here was so

emotionally charged that the court would have been required to exclude it had

defendant objected. It properly focused on Sara’s life and the pain her death

caused her family and friends. This testimony was rather typical of the victim

impact evidence we routinely permit. (See People v. Lewis and Oliver, supra, 39

Cal.4th at p. 1057.)

Defendant’s challenge to the videotape is cognizable on appeal, as he did

object to its admission at trial. The trial court watched the videotape, then ruled:

“In looking at the tape yesterday, I believe that Mrs. Farwell could testify to

everything that’s contained in that tape. It’s a very compelling tape. I will grant

you that. This is a very compelling case. I think if the People wish to present it, I

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see no objection to it. In doing a[n Evidence Code section] 352 analysis, I think

that it has more probative value than any prejudicial effect. I think what [the

prosecutor] said, what this jury has heard from many other people makes this tape

pale.”

Some courts, although not all, have permitted the playing of videotapes

regarding the victim — but very cautiously. In People v. Prince (2007) 40 Cal.4th

1179, the trial court admitted as victim impact evidence a videotape of an

approximately 25-minute interview with one of the murder victims conducted at a

local television station. In addition, the court admitted victim impact evidence

from several other witnesses. (Id. at p. 1209.) We found no prejudicial error.

“Case law pertaining to the admissibility of videotape recordings of victim

interviews in capital sentencing hearings provides us with no bright-line rules by

which to determine when such evidence may or may not be used. We consider

pertinent cases in light of a general understanding that the prosecution may present

evidence for the purpose of ‘ “reminding the sentencer . . . [that] the victim is an

individual whose death represents a unique loss to society” ’ (Payne v. Tennessee,

supra, 501 U.S. at p. 825), but that the prosecution may not introduce irrelevant or

inflammatory material that ‘ “diverts the jury’s attention from its proper role or

invites an irrational, purely subjective response.” ’ (People v. Edwards [(1991)]

54 Cal.3d [787] at p. 836.)” (People v. Prince, supra, at p. 1288.)

In Prince, we discussed cases that permitted the admission of videotapes.

(People v. Prince, supra, 40 Cal.4th at p. 1288.) These included Whittlesey v.

State (1995) 340 Md. 30 (90-second videotape of the victim playing the piano,

stressing the deference afforded to the trial judge), State v. Allen (1999) 2000

NMSC 2 (three-minute videotape regarding the victim’s life), and State v. Gray

(Mo. 1994) 887 S.W.2d 369, 389 (videotape of the victim’s family at Christmas).

Additionally, Hicks v. State (Ark. 1997) 940 S.W.2d 855 upheld the admission of

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a 14-minute videotape containing about 160 photographs of the victim, his family,

and friends, and narrated by the victim’s brother.

As we discussed in People v. Prince, supra, 40 Cal.4th at pages 1288-1289,

two courts have not permitted the showing of videotapes. In U.S. v. Sampson

(D.Mass. 2004) 335 F.Supp.2d 166, the trial court excluded a 27-minute videotape

consisting of 200 photographs of the victim at various stages of life set to

“evocative contemporary music.” (Id. at p. 191.) We described in detail the

second case (Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330), the case

defendant relies on most heavily in challenging the videotape here. “Reviewing

facts that we characterized as ‘extreme’ (People v. Robinson, supra, 37 Cal.4th at

p. 652), the Texas Court of Criminal Appeals disapproved of similar videotape

evidence in Salazar v. State, supra, 90 S.W.3d 330, finding that in this noncapital

case the trial court had abused its discretion in admitting a 17-minute videotape

tribute to a murder victim. In remanding for an assessment of prejudice, the court

stated in Salazar that ‘the punishment phase of a criminal trial is not a memorial

service for the victim’ (id. at pp. 335-336) and that ‘[w]hat may be entirely

appropriate eulogies to celebrate the life and accomplishments of a unique

individual are not necessarily admissible in a criminal trial.’ (Id. at p. 336.) The

court complained that the trial court had not seen the videotape before it was

played to the jury and consequently was unable to weigh the probative value of the

tape against its prejudicial impact. (Id. at pp. 336-337.) The reviewing court

emphasized the risk of unfair prejudice, noting the video contained many images

from the adult victim’s infancy and childhood. (Id. at pp. 337-338.)” (People v.

Prince, supra, at p. 1289.)

We discussed Salazar v. State, supra, 90 S.W.3d 330, further in Robinson:

“In that murder trial, the court admitted a 17-minute ‘video montage’ tribute to the

murder victim — approximately 140 photographs set to emotional music,

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including ‘My Heart Will Go On,’ sung by Celine Dion and featured prominently

in the film Titanic (20th Century Fox 1997). [Citation.] Reversing a lower

appellate court decision finding the presentation admissible, the Texas Court of

Criminal Appeals remanded for an assessment of prejudice. In so ruling, the state

high court observed, among other things, that ‘the punishment phase of a criminal

trial is not a memorial service for the victim. What may be entirely appropriate

eulogies to celebrate the life and accomplishments of a unique individual are not

necessarily admissible in a criminal trial’ [citation], and that ‘we caution that

victim impact and character evidence may become unfairly prejudicial through

sheer volume. Even if not technically cumulative, an undue amount of this type of

evidence can result in unfair prejudice . . . . Hence, we encourage trial courts to

place appropriate limits upon the amount, kind, and source of victim impact and

character evidence.’ [Citation.]” (People v. Robinson, supra, 37 Cal.4th at p.

652.)

We emphasized in Prince that “[c]ourts must exercise great caution in

permitting the prosecution to present victim-impact evidence in the form of a

lengthy videotaped or filmed tribute to the victim. Particularly if the presentation

lasts beyond a few moments, or emphasizes the childhood of an adult victim, or is

accompanied by stirring music, the medium itself may assist in creating an

emotional impact upon the jury that goes beyond what the jury might experience

by viewing still photographs of the victim or listening to the victim’s bereaved

parents. . . . In order to combat this strong possibility, courts must strictly analyze

evidence of this type and, if such evidence is admitted, courts must monitor the

jurors’ reactions to ensure that the proceedings do not become injected with a

37

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legally impermissible level of emotion.” (People v. Prince, supra, 40 Cal.4th at p.

1289.)5

As noted, we found no prejudicial error in admitting the videotape in

Prince. “Although we caution courts against the routine admission of videotapes

featuring the victim, we do not believe that prejudicial error occurred under the

circumstances of the present case. The videotaped evidence did not constitute

‘ “irrelevant information or inflammatory rhetoric that divert[ed] the jury’s

attention from its proper role or invite[ed] an irrational, purely subjective

response.” ’ (People v. Edwards, supra, 54 Cal.3d at p. 836.) . . . [T]he

videotaped interview of [the victim] did not constitute an emotional memorial

tribute to the victim. There was no music, emotional or otherwise. The tape did

not, as the trial court in the present case initially feared it might, display the victim

in her home or with her family, nor were there images of the victim as an infant or

young child. The setting was a neutral television studio, where an interviewer

politely asked questions concerning the victim’s accomplishments on the stage and

as a musician and the difficulty she experienced in balancing her many

commitments, touching only briefly upon her plan to attend college in the fall and

follow the stage as a profession. If not for the circumstances of her subsequent

murder, the videotape admitted at trial likely would be of modest interest to

anyone apart from [the victim] and her friends and family. The loss of such a

talented and accomplished person is poignant even for a stranger to contemplate,

but the straightforward, dry interview depicted on the videotaped recording was

not of the nature to stir strong emotions that might overcome the restraints of

reason.” (People v. Prince, supra, 40 Cal.4th at pp. 1289-1290.)


5

The first paragraph of the concurring and dissenting opinion transforms this

“caution” into a “limitation.” On the contrary, People v. Prince, supra, 40 Cal.4th
1179, stated no categorical rules.

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We also find no prejudicial error in this case. We have viewed the

videotape. It lasts about 20 minutes. It consists of a montage of still photographs

and video clips of Sara Weir’s life, from her infancy until shortly before she was

killed at the age of 19, narrated calmly and unemotionally by her mother.

Throughout much of the video, the music of Enya — with most of the words

unrecognizable — plays in the background; the music is generally soft, not

stirring. One segment shows Sara singing a couple of songs with a school group,

including “You Light Up My Life.” Part of the time she was singing solo, with

her mother explaining that every student was required to sing solo. The videotape

concerns Sara’s life, not her death. It shows scenes of her swimming, horseback

riding, at school and social functions, and spending time with her family and

friends. The closest it comes to referring to her death is the mother’s saying near

the end, without noticeable emotion, that she does not want to dwell on this

“terrible crime.” There is no mention of the facts of the murder or of defendant.

The video ends with a brief view of Sara’s unassuming grave marker followed by

a video clip of people riding horseback in Alberta, Canada, over which the mother

says this was where Sara came from and was the “kind of heaven” in which she

belonged.

Unlike the situation in Salazar v. State, supra, 90 S.W.3d 330, here the trial

court watched the videotape and exercised its discretion. Moreover, this is not a

case of one witness after another giving repetitive victim impact testimony. Only

the victim’s mother testified about the impact of Sara’s murder. The videotape

supplemented, but did not duplicate, the mother’s testimony. For the most part,

the videotape, including the mother’s narrative, was not unduly emotional and

presented material that was relevant to the penalty determination. It humanized

Sara Weir, as victim impact evidence is designed to do. It contained a factual

chronology of Sara’s life, from her infancy to her death in early adulthood, which

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helped the jury to understand “the loss to the victim’s family and to society which

has resulted from the defendant’s homicide.” (Payne v. Tennessee, supra, 501

U.S. at p. 822.) In People v. Prince, supra, 40 Cal.4th at page 1289, we cautioned

against a presentation that “emphasizes the childhood of an adult victim . . . .”

That case did not involve childhood images, so we did not resolve the question.

Here, the videotape did not emphasize any particular period of Sara’s life but

reviewed all of it. Doing so was relevant and, because the presentation was not

unduly emotional, permissible.

In particular, the videotape helped the jury to see that defendant took away

the victim’s ability to enjoy her favorite activities, to contribute to the unique

framework of her family — she was of Native American descent and adopted into

a Caucasian home — and to fulfill the promise to society that someone with such a

stable and loving background can bring. The videotape further illustrated the

gravity of the loss by showing Sara’s fresh-faced appearance before she died. In

the videotape, Sara appears at all times to be reserved, modest, and shy —

sometimes shunning the camera. Her demeanor is something words alone could

not capture. Such images corroborated evidence at the guilt phase, that could be

considered in aggravation of penalty, suggesting that defendant preyed on Sara’s

naïve and trusting nature. Jurors could reasonably, and relevantly, conclude that

defendant, who betrayed and raped other young women, felt comfortable

exercising the ultimate act of violence and control over someone as vulnerable as

Sara. The viewer knew Sara better after viewing the videotape than before, but the

tape expressed no outrage over her death, just implied sadness. It contained no

clarion call for vengeance. It was longer than some tapes that have been admitted,

but we see no bright-line limit to how long a videotape may be. It is only slightly

longer than the one admitted in Hicks v. State, supra, 940 S.W.2d 855, and is

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actually slightly shorter than the one admitted in People v. Prince, supra, 40

Cal.4th 1179.

Trial courts must be very cautious about admitting such videotape

evidence. We have upheld the exclusion of evidence a defendant offers in

mitigation that was irrelevant. (People v. Monterroso (2004) 34 Cal.4th 743, 778-

779 [trial court properly excluded as irrelevant documentary concerning the life of

a street child in Guatemala]; People v. Nye (1969) 71 Cal.2d 356, 371-372 [trial

court properly excluded a film the defendant offered in mitigation that involved a

paid professional actor].) Similarly, evidence offered in aggravation must be

excluded if not relevant. In this regard, the rules are similar whether the evidence

is offered in mitigation or in aggravation. When offered for either purpose, the

evidence must be relevant to the penalty determination. Nonfactual dramatization

of the evidence in a videotape — in the sense of making a presentation in a

dramatic manner — adds irrelevant factors to the videotape. The videotape must

factually and realistically portray the victim’s life and character and not present a

“staged and contrived presentation . . . .” (People v. Nye, supra, 71 Cal.2d at p.

371.) Trial courts must not permit irrelevant background music or video

techniques that enhance the emotion of the factual presentation. Moreover, the

videotape, even when presented factually, must not be unduly emotional. (People

v. Prince, supra, 40 Cal.4th at pp. 1286-1287.)

In some respects, the videotape here might have contained irrelevant

aspects. Music is not always impermissible. The portion of the videotape

showing Sara’s singing performance seems relevant to the purpose of

demonstrating what she was like. It reflects her demeanor in the difficult situation

her mother described — a shy girl performing solo before her classmates. Her

choice of song to sing at that age and in those circumstances also seems relevant to

forming an impression of the victim. Her musical performance was not

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excessively emotional. But the background music by Enya may have added an

irrelevant factor to the videotape. It had no connection to Sara other than that her

mother said it was some of Sara’s favorite music. The Enya background music

seems unrelated to the images it accompanied and may have only added an

emotional element to the videotape. The portion at the end, showing a video clip

of people riding horseback in Alberta, Canada, over which the mother says this

was the “kind of heaven” in which Sara belonged, was also theatric without

imparting any additional relevant material.

We need not decide whether the court abused its discretion in not ordering

the videotape modified to exclude the Enya background music and the horseback

riding scene at the end, for any error in this regard was not prejudicial. Most of

the videotape was factual, relevant, and not unduly emotional, and the trial court

had discretion to admit it. To the extent it contained aspects that were themselves

emotional without being factual — the background music and the final portion,

perhaps — we are confident that permitting the jury to view and hear those

portions along with the rest of the mostly factual and relevant videotape was

harmless in light of the trial as a whole. These days, background music in

videotapes is very common; the soft music here would not have had a significant

impact on the jury. We see no reasonable possibility these portions of the

videotape affected the penalty determination or, to state the equivalent, any error

was harmless beyond a reasonable doubt. (People v. Gonzalez (2006) 38 Cal.4th

932, 960-961.)

Defendant also contends the victim impact evidence “creates an intolerable

risk of improper comparisons between the victim and the defendant.” We see

nothing in Payne v. Tennessee, supra, 501 U.S. 808, or our own cases, that

prohibits comparing the victim and the defendant. Defendant also asserts that the

evidence created “the danger that racial discrimination will affect the jury’s

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decision.” The claim is specious. Nothing in the videotape, Sara’s mother’s

testimony, the prosecutor’s argument to the jury, or anything else in this trial

suggested the jury should impose the death penalty for racial reasons.

2. Refusal to Give Defendant’s Requested Jury Instructions

Defendant contends the court erred in refusing to give special instructions

the defense requested at trial that would have told the jury that it need not be

unanimous to consider mitigating evidence, that it had the power to choose the

sentence of life solely to show mercy, and that a single mitigating factor could

outweigh a number of aggravating factors. The court did not err. As we have

repeatedly explained, the standard jury instructions the court gave in this case “are

adequate to inform the jurors of their sentencing responsibilities in compliance

with federal and state constitutional standards.” (People v. Barnett (1998) 17

Cal.4th 1044, 1176-1177, and cases cited; see also People v. Smith (2003) 30

Cal.4th 581, 638; People v. Breaux (1991) 1 Cal.4th 281, 314-315.) No additional

instructions were required.

3. Failure to Provide Intercase Proportionality Review

Defendant contends California’s death penalty law is invalid because it

does not provide for intercase proportionality review. We disagree. (Pulley v.

Harris (1984) 465 U.S. 37; People v. Mincey (1992) 2 Cal.4th 408, 476.)

Although we do not provide intercase proportionality review, we “do undertake

intracase proportionality review to determine whether the penalty is

disproportionate to defendant’s personal culpability.” (People v. Steele, supra, 27

Cal.4th at p. 1269.) Defendant does not specifically request intracase

proportionality review, but it would not aid him. A serial rapist, he repeatedly

threatened to kill his victims. Finally, he did kill one. Acting entirely by himself

and for his own purposes, he stabbed to death Sara Weir, a naïve and trusting girl

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who had befriended him. Then he left the body under the bed of the 10-year-old

son of his former girlfriend (who herself had become another of his victims) for

that young child to discover. “[T]he sentence of death is not disproportionate to

defendant’s personal culpability. It does not shock the conscience.” (Ibid.)

4. Other Penalty Contentions

Defendant reiterates many contentions we have repeatedly rejected. “The

jury need not make written findings, or achieve unanimity as to specific

aggravating circumstances, or find beyond a reasonable doubt that an aggravating

circumstance is proved (except for other crimes), that aggravating circumstances

outweigh mitigating circumstances, or that death is the appropriate penalty.

[Citations.] The death penalty statute is not unconstitutional for failing to provide

the jury with instructions of the burden of proof and standard of proof for finding

aggravating and mitigating circumstances in reaching a penalty determination.”

(People v. Morrison (2004) 34 Cal.4th 698, 730-731.) Recent United States

Supreme Court decisions do not undermine these conclusions. (People v. Stevens

(2007) 41 Cal.4th 182, 212; People v. Morrison, supra, at p. 731.) The court need

not “instruct the jury on the presumption of life.” (People v. Prieto, supra, 30

Cal.4th at p. 271.) CALJIC No. 8.88, which the court gave, properly instructs the

jury on its sentencing discretion and the nature of its deliberative process. (People

v. Prieto, supra, at p. 264; People v. Millwee (1998) 18 Cal.4th 96, 161-165;

People v. Jackson (1996) 13 Cal.4th 1164, 1242-1244.) Section 190.3, factor (a),

is not unconstitutionally overbroad, arbitrary, capricious, or vague. (People v.

Guerra (2006) 37 Cal.4th 1067, 1165.) The jury’s consideration of unadjudicated

criminal conduct in aggravation is constitutional, and jury unanimity regarding

such conduct is not required. (People v. Brown (2004) 33 Cal.4th 382, 402.) The

trial court need not delete section 190.3’s sentencing factors that may not apply.

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(People v. Schmeck (2005) 37 Cal.4th 240, 305.) The trial court need not instruct

the jury which factors it may consider only in mitigation. (People v. Maury,

supra, 30 Cal.4th at pp. 443-444.) The use of such adjectives in the sentencing

factors as “extreme” (§ 190.3, factors (d), (g)) and “substantial” (id., factor (g)) is

constitutional. (People v. Avila (2006) 38 Cal.4th 491, 614-615.) Equal

protection principles do not require this court to give capital defendants the same

sentence review afforded other felons under the determinate sentencing law.

(People v. Cox (2003) 30 Cal.4th 916, 970.)

5. Violation of International Law

Contrary to defendant’s contention, a sentence of death that complies with

state and federal constitutional and statutory requirements does not violate

international law. (People v. Tafoya (2007) 42 Cal.4th 147, 199.)

6. Effect of Alleged Error

Defendant contends that if either special circumstance finding is reversed,

we must reverse the death judgment, and that the cumulative effect of the alleged

errors was prejudicial. However, we have reversed neither special circumstance,

and we have found no error to cumulate.

III. CONCLUSION

We affirm the judgment.


CHIN, J.


WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CORRIGAN, J.

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CONCURRING OPINION BY WERDEGAR, J.




The determination whether and to what extent to admit a videotape of the

victim’s life at the penalty phase of a capital case is within the sound discretion of

the trial court. Nevertheless, as the majority recognizes (maj. opn., ante, at p. 38),

we have previously cautioned courts against the “routine admission of videotapes

featuring the victim.” (People v. Prince (2007) 40 Cal.4th 1179, 1289.) We have

recognized the “strong possibility” that a presentation that “lasts beyond a few

moments, or emphasizes the childhood of an adult victim, or is accompanied by

stirring music . . . itself may assist in creating an emotional impact upon the jury

that goes beyond what the jury might experience by viewing still photographs of

the victim or listening to the victim’s bereaved parents.” (Ibid.) For this reason,

trial courts “must exercise great caution in permitting the prosecution to present

victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the

victim.” (Ibid.)

Insofar as the majority opinion, consistent with our pronouncement in

Prince, stands for the proposition that it is an abuse of discretion to admit a

videotape that is unduly lengthy, has elements of theatricality in the use of

evocative music and visions of the victim’s place in the hereafter, and goes beyond

a factual presentation of the victim as she was in life, I concur. Such was the

videotape in this case. As Justice Moreno observes in his separate opinion, it was

more akin to a eulogy than to conventional victim-impact evidence. (Conc. & dis.

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opn. of Moreno, J., post, at p. 6.) The trial court therefore erred in admitting it

without requiring that it be modified.

For the reasons stated by both the majority opinion and Justice Moreno,

however, I conclude admission of the videotape in its entirety was nonprejudicial.

I therefore concur in the court’s judgment.

WERDEGAR, J.

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CONCURRING AND DISSENTING OPINION BY MORENO, J.




“Courts must exercise great caution in permitting the prosecution to present

victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the

victim. Particularly if the presentation lasts beyond a few moments, or emphasizes

the childhood of an adult victim, or is accompanied by stirring music, the medium

itself may assist in creating an emotional impact upon the jury that goes beyond

what the jury might experience by viewing still photographs of the victim or

listening to the victim’s bereaved parents. . . . In order to combat this strong

possibility, courts must strictly analyze evidence of this type and, if such evidence

is admitted, courts must monitor the jurors’ reactions to ensure that the

proceedings do not become injected with a legally impermissible level of

emotion.” (People v. Prince (2007) 40 Cal.4th 1179, 1289.) In this case, the

videotaped eulogy to Sara Weir played for the jury at the penalty phase of

defendant’s trial exceeded every limitation that this court unanimously set forth in

Prince. For that reason, I disagree with the majority’s conclusion that the

videotape was admissible, albeit with “irrelevant aspects.” (Maj. opn., ante, at

p. 41.) In my view, the tape was inadmissible in its entirety and it was error for

the trial court to have admitted it. I further conclude, however, that the error does

not require reversal.

In holding that the Eighth Amendment “erects no per se bar” to the

admission of victim impact evidence, the Supreme Court spoke about two types of

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evidence; evidence that gives the jury “ ‘a quick glimpse of the life’ which a

defendant ‘chose to extinguish’ [citation],” and evidence that “demonstrate[s] the

loss to the victim’s family and to society which has resulted from the defendant’s

homicide.” (Payne v. Tennessee (1991) 501 U.S. 808, 827, 822.)1 The videotape

in this case did not fall into the latter category. The impact of the victim’s death

on her family was presented at length through her mother’s testimony before the

videotape was played. Thus, the videotape falls into the second category

described by Payne, but it went far beyond providing the jury with the “quick

glimpse” of Sara’s life necessary to establish her unique individuality. Rather, it

contained material, and was produced in such a fashion, as to potentially imbue

the proceedings with a “a legally impermissible level of emotion.” (People v.

Prince, supra, 40 Cal.4th at p. 1289.)

As the majority notes, we discussed the issue of the use of videotape victim

impact evidence in Prince where, in response to the defendant’s mitigation

evidence, the prosecution introduced a 25-minute videotape of a television

interview with one of the defendant’s victims, Holly Tarr. (People v. Prince,

supra, 40 Cal.4th at p. 1209.) In light of the specific characteristics of that


1 I am concerned also that in this case the defendant did not introduce any
mitigating evidence at the penalty phase because an analytic linchpin of the
Supreme Court’s analysis in Payne was the premise that the state “ ‘has a
legitimate interest in counteracting the mitigating evidence which the defendant is
entitled to put in, by reminding the sentencer that just as the murderer should be
considered as an individual, so too the victim is an individual whose death
represents a unique loss to society and in particular to his family.’ ” (Payne v.
Tennessee, supra, 501 U.S. at p. 825; People v. Prince, supra, 40 Cal. 4th at
p. 1286.) Of course, victim impact evidence is not rendered inadmissible simply
because a defendant chooses not to put on evidence in mitigation, but where, as
here, the defendant makes clear that he or she is not going to present such
evidence, the trial court should exercise greater caution in admitting victim impact
evidence so as to avoid the possibility of “piling on” such evidence to the point
that it does become unfair.

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videotape, we rejected the defendant’s claim that it went beyond the constitutional

limits of permissible victim impact evidence. We noted that the interview was

filmed by a local news station that was doing profiles “of certain successful local

high school students” a few months before the murder. (Ibid.) “The trial court

excluded portions of the videotape depicting Tarr’s musical performances, because

it determined that this evidence would be cumulative. The interviewer devoted

nearly the entire interview to Tarr’s training and interest in acting and singing,

adding a few questions concerning Tarr’s ability to balance school and artistic

commitments. The tape recording exhibits a young female interviewer and Tarr,

seated in chairs in front of a plain backdrop. There is no music and there are no

cuts to other images of Tarr — the interview is a calm, even static, discussion of

Tarr’s accomplishments and interests that takes place entirely in a neutral, bland

setting. Under ordinary circumstances, the two young women’s discussion would

appear unlikely to invite empathy or emotional response.” (Id. at p. 1287.)

We concluded our discussion in Prince with the cautions to which I refer at

the outset of this opinion regarding the admission of videotaped victim impact

evidence which is, in effect, “a filmed tribute to the victim” that lasts “beyond a

few moments,” or “emphasizes the childhood of an adult victim” or is

“accompanied by stirring music . . . .” (People v. Prince, supra, 40 Cal.4th at p.

1289.) In our analysis, we considered and distinguished two other cases in which

victim impact videotapes had been excluded or found prejudicial, U.S. v. Sampson

(D.Mass. 2004) 335 F.Supp.2d 166 and Salazar v. State (Tex.Crim.App. 2002) 90

S.W.3d 330.

In U.S. v. Sampson, supra, 335 F.Supp.2d 166, the district court, in

explaining why it excluded a 27-minute videotape containing 200 still photographs

of the victim set to evocative contemporary music, including that of the Beatles

and James Taylor, explained: “[A]dmission of the video would have been unfairly

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prejudicial in light of the fact that the jury heard powerful, poignant testimony

about Jonathan Rizzo’s full life and the impact of his loss on his family, and saw

photographs of him in conjunction with this testimony. The video, given its length

and the number of photos displayed, would have constituted an extended

emotional appeal to the jury and would have provided much more than a ‘quick

glimpse’ of the victim’s life. Together with the evocative accompanying music,

the videotape images would have inflamed the passion and sympathy of the jury.”

(Id. at pp. 192-193.)

In Salazar v. State, supra, 90 S.W.3d 330, the murder victim was a

20-year-old man, Jonathon Bishop. In rebuttal to mitigation evidence, the victim’s

mother testified briefly as to impact of his death. His father also testified, but

primarily to lay the foundation for the admission of a “seventeen-minute video

montage of photographs depicting the murder victim’s life.” (Id. at p. 332.)

According to the Texas Criminal Court of Appeals: “This video is an

extraordinarily moving tribute to Jonathon Bishop’s life. It consists of

approximately 140 still photographs, arranged in a chronological montage. Music

accompanies the entire seventeen-minute video and includes such selections as

“Storms in Africa” and “River” by Enya, and concludes with Celine Dion singing,

“My Heart Will Go On,” from the movie Titanic. [¶] Almost half of the

approximately 140 photographs depict the victim’s infancy and early childhood.”

(Id. at p. 333.)

In explaining why the tape was inadmissible, the court said: “Nearly half

of the photographs showed Jonathon Bishop as an infant, toddler or small child,

but appellant murdered an adult, not a child. He extinguished Jonathon Bishop’s

future, not his past. The probative value of the vast majority of these ‘infant-

growing-into-youth’ photographs is de minimis. However, their prejudicial effect

is enormous because the implicit suggestion is that appellant murdered this angelic

4

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infant; he killed this laughing, light-hearted child; he snuffed out the life of the

first-grade soccer player and of the young boy hugging his blond puppy dog. . . .

While the probative value of one or two photographs of an adult murder victim’s

childhood might not be substantially outweighed by the risk of unfair prejudice,

what the State accurately characterizes as a ‘seventeen-minute montage’ of the

victim’s entire life is very prejudicial both because of its ‘sheer volume,’ and

because of its undue emphasis upon the adult victim’s halcyon childhood.”

(Salazar v. State, supra, 90 S.W.3d at p. 337.)

The videotape admitted here was in part strikingly similar to the tape found

inadmissible in Salazar, and, where it differed, was precisely the kind of tape that

we warned against admitting in Prince. First, the parallels: like the victim in

Salazar, who was 20 years old, Sara Weir, at age 19 years, was a very young

adult, but an adult nonetheless who had left home and was living on her own.

However, like the video montage in Salazar, the videotape of Sara’s life is

chronological and dwells on her childhood in a series of evocative scenes

(swimming, getting ready for Halloween, with her cat, Smokey). Both videos are

even set in part to the same type of music, from the performer, Enya.

However, while the video montage of Jonathon Bishop in Salazar consisted

of still photographs, the videotape in this case included considerable video footage

of scenes from Sara’s life with sound. Thus, at one point, Sara is shown as a

young teenager at her junior high school’s talent show singing a solo of the song,

“You Light Up My Life.” Finally, after a closeup of Sara’s grave, the videotape

ends with what is apparently stock footage, depicting a lone horseman riding

against a range of mountains, with the comment by Sara’s mother that this is the

kind of heaven in which she imagines her daughter. Thus, this videotape was

longer than the videotape found inadmissible in Salazar, contained video

5

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footage and not merely still photographs, was accompanied by evocative music

more appropriate to a memorial service, and concluded on a frankly religious note.

If the cautions we expressed regarding this type of evidence in Prince have

any application at all, they must apply to this case. As the court in Salazar

correctly pointed out, “the punishment phase of a criminal trial is not a memorial

service for the victim. What may be entirely appropriate eulogies to celebrate the

life and accomplishments of a unique individual are not necessarily admissible in a

criminal trial.” (Salazar v. State, supra, 90 S.W.3d at pp. 335-336.) The

videotape in the present case is akin to a eulogy, and should therefore not have

been admitted as victim impact evidence.

Having so concluded, however, I further conclude that the error was not

prejudicial. Given the extensive and affecting testimony of the victim’s mother,

the videotape was, at most, cumulative to that testimony. I cannot say that this

additional evidence so inflamed the passions and the sympathy of the jury that the

penalty phase was rendered unfair.

MORENO, J.

6

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Kelly
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S049973
Date Filed: December 6, 2007
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Michael R. Hoff

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Evan Young,
Deputy State Public Defender, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Stephanie C.
Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Evan Young
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Stephanie C. Brenan
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2056

---

Automatic appeal from a judgment of death.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 12/06/2007	42 Cal.4th 763 original opinion 42 Cal.4th 1120a modification	S049973	Automatic Appeal	closed; remittitur issued	KELLY (DOUGLAS) ON H.C. (S161036)

Disposition
Dec 6 2007	Opinion: Affirmed

Dockets
Nov 8 1995	Judgment of death
Nov 13 1995	Filed certified copy of Judgment of Death Rendered   11-8-95.
Mar 29 2001	Order appointing State Public Defender filed   for direct appeal only.
May 10 2001	Received document entitled:   "Notice of transmittal of record appeal" from Superior Court, advising that the record was transmitted to Applt.'s counsel on 4/9/2001.
May 29 2001	Counsel's status report received (confidential)   from State P.D.
Jul 11 2001	Application for Extension of Time filed   By applt. to request corr. of the record. (1st request)
Jul 13 2001	Extension of Time application Granted   To 9/11/2001 to applt. to request corr. of the record.
Jul 30 2001	Counsel's status report received (confidential)   from State P.D.
Sep 6 2001	Counsel's status report received (confidential)   from State P.D.
Sep 6 2001	Application for Extension of Time filed   by applt. to request corr. of the record. (2nd request)
Sep 13 2001	Extension of Time application Granted   To 11/14/2001 to applt. to request corr. of the record.
Nov 9 2001	Request for extension of time filed   by applt. to request corr. of the record. (3rd request)
Nov 9 2001	Counsel's status report received (confidential)   from State P.D.
Nov 16 2001	Extension of Time application Granted   To 1/14/2002 to applt. to request corr. of the record. The court anticipates that after that date only 2 further extensions of time totaling 120 additional days will be granted.
Jan 10 2002	Request for extension of time filed   By applt. to request correction of the record. (4th request)
Jan 10 2002	Counsel's status report received (confidential)   from State P.D.
Jan 15 2002	Extension of time granted   To 3/15/2002 to applt. to request correction of the record. The court anticipates that only one further extension totaling 60 additional days will be granted.
Mar 14 2002	Request for extension of time filed   By applt. to request correction of the record. (5th request)
Mar 14 2002	Counsel's status report received (confidential)   from State P.D.
Mar 19 2002	Extension of time granted   To 5/14/2002 to applt. to request correction of the record. Dep. State Public Defender Young anticipates filing the request in the superior court by 6/2002. Only one futher extension totaling 60 days is contemplated.
May 13 2002	Request for extension of time filed   By applt. to request correction of the record. (6th request)
May 13 2002	Counsel's status report received (confidential)   from State P.D.
May 16 2002	Extension of time granted   To 7/15/2002 to applt. to request correction of the record. Dep. State Public Defender Young anticipates filing the request in the superior court by 7/15/2002. No further extension is contemplated.
Jul 12 2002	Counsel's status report received (confidential)   from State P.D.
Jul 15 2002	Received copy of appellant's record correction motion   (26 pp.)
Sep 12 2002	Counsel's status report received (confidential)   from State P.D.
Nov 12 2002	Counsel's status report received (confidential)   from State P.D.
Jan 7 2003	Counsel's status report received (confidential)   from State P.D.
Jan 24 2003	Record on appeal filed   Clerk's transcript 22 volumes (5339 pp.) and reporter's transcript 19 volumes (3216 pp.) including material under seal; ASCII disks. Clerk's transcript includes 4100 pp. of juror questionnaires.
Jan 24 2003	Appellant's opening brief letter sent, due:   March 5, 2003.
Feb 5 2003	Filed:   One volume of reporter's transcript, proceedings of 1/10/2003. (1 pp.)
Feb 27 2003	Counsel's status report received (confidential)   from State P.D.
Feb 27 2003	Request for extension of time filed   to file appellant's opening brief. (1st request)
Feb 28 2003	Extension of time granted   to 5/5/2003 to file appellant's opening brief.
Apr 29 2003	Request for extension of time filed   to file appellant's opening brief. (2nd request)
Apr 29 2003	Counsel's status report received (confidential)   from State P.D.
May 1 2003	Extension of time granted   to 7/7/2003 to file appellant's opening brief.
Jul 1 2003	Counsel's status report received (confidential)   from State P.D.
Jul 1 2003	Request for extension of time filed   to file appellant's opening brief. (3rd request)
Jul 2 2003	Extension of time granted   to 9/5/2003 to file appellant's opening brief.
Aug 29 2003	Request for extension of time filed   to file AOB. (4th request)
Aug 29 2003	Counsel's status report received (confidential)   from State P.D.
Sep 3 2003	Extension of time granted   to 11/4/2003 to file appellant's opening brief.
Oct 29 2003	Request for extension of time filed   to file appellant's opening brief. (5th request)
Oct 29 2003	Counsel's status report received (confidential)   from State P.D.
Nov 4 2003	Extension of time granted   to 1/5/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling about 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Dec 29 2003	Counsel's status report received (confidential)   from State P.D.
Dec 29 2003	Request for extension of time filed   to file appellant's opening brief. (6th request)
Jan 6 2004	Extension of time granted   to 3-8-2004 to file AOB. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Mar 3 2004	Counsel's status report received (confidential)   from State P.D.
Mar 3 2004	Request for extension of time filed   to file appellant's opening brief. (7th request)
Mar 12 2004	Extension of time granted   to 5/7/2004 to file appellant's opening brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
May 3 2004	Request for extension of time filed   to file appellant's opening brief. (8th request)
May 4 2004	Counsel's status report received (confidential)   from State P.D.
May 7 2004	Extension of time granted   to 7-6-2004 to file AOB. The court anticipates that after that date, only one further extension totaling about 60 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Jul 6 2004	Counsel's status report received (confidential)   from State P.D.
Jul 6 2004	Request for extension of time filed   to file appellant's opening brief. (9th request)
Jul 9 2004	Extension of time granted   to 9-7-2004 to file AOB. After that date, no further extension is contemplated. Extension granted based upon Senior Deputy SPD Evan Young's representation that she anticipates filing the brief by 9-7-2004.
Aug 1 2004	Counsel's status report received (confidential)   from State P.D.
Aug 31 2004	Request for extension of time filed   to file appellant's opening brief. (10th request)
Sep 7 2004	Extension of time granted   to 10/7/2004 to file appellant's opening brief. Extension is granted based upon Senior Deputy State Public Defender Evan Young's representation that she anticipates filing that brief by 10/7/2004. After that date, no further extension will be granted.
Oct 7 2004	Appellant's opening brief filed   (86,113 words; 377 pp.)
Oct 28 2004	Request for extension of time filed   to file respondent's brief. (1st request)
Nov 3 2004	Extension of time granted   to 1/7/2005 to file respondent's brief.
Dec 21 2004	Request for extension of time filed   to file respondent's brief. (2nd request)
Dec 30 2004	Extension of time granted   to 3/8/2005 to file respondent's brief. After that date, only one further extension totaling about 70 additional days will be granted. Extension is granted based upon Deputy Attorney General Stephanie C. Brenan's representation that she anticipates filing that brief by 5/16/2005.
Feb 28 2005	Request for extension of time filed   to file respondent's brief. (3rd request)
Mar 3 2005	Extension of time granted   to 5/9/2005 to file respondent's brief. After that date, only one further extension totaling about ten additional days will be granted. Extension is granted based upon Deputy Attorney General Stephanie C. Brenan's representation that she anticipates filing that brief by 5/16/2005.
May 9 2005	Respondent's brief filed   (69820 words; 225 pp.)
May 24 2005	Request for extension of time filed   to file appellant's reply brief. (1st request)
May 26 2005	Extension of time granted   to 7/29/2005 to file appellant's reply brief.
Jul 25 2005	Request for extension of time filed   to file appellant's reply brief. (2nd request)
Jul 26 2005	Extension of time granted   to 9/28/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon Senior Deputy State Public Defender Evan Young's representation that she anticipates filing that brief by 12/30/2005.
Sep 22 2005	Request for extension of time filed   to file appellant's reply brief. (3rd request)
Sep 29 2005	Extension of time granted   to 11/28/2005 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Evan Young's representation that she anticipates filing that breif by 12/30/2005.
Nov 21 2005	Request for extension of time filed   to file appellant's reply brief. (4th request)
Nov 29 2005	Extension of time granted   to 12/30/2005 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Senior Deputy State Public Defender Evan Young's representation that she anticipates filing that brief by 12/30/2005.
Dec 30 2005	Appellant's reply brief filed   (19,358 words; 81 pp.)
Jun 22 2007	Exhibit(s) lodged   People's exhibit, no. 47.
Jul 6 2007	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the September calendar, to be held the week of September 3, 2007, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Jul 10 2007	Received:   letter from Senior Deputy State Public Defender Evan Young requesting that the court place the case on its calendar no earlier than November, 2007.
Jul 20 2007	Letter sent to:   Senior Deputy SPD Evan Young advising that the court has considered her letter of July 10, 2007, requesting that this case be set for oral argument no earlier than November 2007. Counsel advised, however, that oral argument may be scheduled for either the September or October 2007 calendar session.
Sep 5 2007	Case ordered on calendar   to be argued on October 2, 2007, in Santa Rosa, at 9:00 a.m. special session at the Sonoma Country Day School, 4400 Day School Place, Santa Rosa
Sep 7 2007	Received:   appearance sheet from Deputy SPD Evan Young, indicating 30 minutes for oral argument for appellant.
Sep 13 2007	Argument rescheduled   to be argued in the afternoon session: on October 2, 2007, in Santa Rosa, at 1:30 p.m.
Sep 17 2007	Filed:   respondent's focus issue letter, dated September 14, 2007, including a request for 45 minutes for oral argument.
Sep 17 2007	Received:   appearance sheet from Deputy AG, Stephanie Brenan, indicating 45 minutes for oral argument for respondent.
Sep 18 2007	Request for Extended Media coverage Filed   By The California Channel.
Sep 24 2007	Filed:   appellant's focus issue letter, dated September 19, 2007.
Sep 25 2007	Request for Extended Media coverage Filed   by The Santa Rosa Press Democrat
Sep 25 2007	Received:   Letter from respondent dated September 20, 2007; indicating additional authorities for oral argument.
Sep 25 2007	Received:   letter from State P.D. dated September 25, 2007; indicating additional authorities for oral argument.
Sep 28 2007	Request for Extended Media coverage Granted   The request for extended media coverage, filed by The Santa Rosa Press Democrat on September 25, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 2 2007	Cause argued and submitted
Dec 6 2007	Opinion filed: Judgment affirmed in full   Majority Opinion by Chin, J. ----- joined by George, C.J., Kennard, Baxter, Corrigan, JJ. Concurring Opinion by Werdegar, J. Concurring and Dissenting Opinion by Moreno, J.
Dec 7 2007	Order appointing Habeas Corpus Resource Center filed   Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Douglas Oliver Kelly for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of appellant Douglas Oliver Kelly.
Dec 21 2007	Rehearing petition filed   by appellant (780 words; 4pp)
Dec 21 2007	Request for modification of opinion filed   by the California Public Defender's Association dated December 21, 2007.
Dec 31 2007	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including March 5, 2008 or the date upon which rehearing is either granted or denied, whichever occurs first.
Jan 4 2008	Filed letter from:   Law Offices of Los Angeles County Public Defender, dated January 3, 2008. In support of appellant's petition for rehearing.
Feb 20 2008	Rehearing denied   The request for modification of the opinion is granted. The petition for rehearing is denied.
Feb 20 2008	Opinion modified - no change in judgment
Feb 20 2008	Remittitur issued (AA)
Feb 21 2008	Exhibit(s) returned   to our Los Angeles office for return to superior court.
Feb 21 2008	Related habeas corpus petition filed (post-judgment)   no. S161036.
Feb 29 2008	Received:   receipt for remittitur.
Mar 7 2008	Received:   received acknowledgment of receipt of exhibits from superior court.
May 21 2008	Received:   copy of appellant's petition for a writ of certiorari, motion and declaration in support of motion for leave to proceed in forma pauperis and certificate of service sent to U.S.S.C., on May 20, 2008.
May 29 2008	Received:   letter from U.S.S.C., dated May 23, 2008, advising that petition for writ of certiorari was filed on May 20, 2008; No. 07-11073.
Jul 3 2008	Motion filed (AA)   by HCRC, "Motion for an Order Allowing Counsel to Inspect and Copy Sealed and Confidential Documents in the Record on Appeal"
Jul 30 2008	Motion for access to sealed record granted   Douglas Oliver Kelly's "Motion for an Order Allowing Counsel to Inspect and Copy Sealed and Confidential Documents in the Record on Appeal," filed on July 3, 2008, is granted. The Habeas Corpus Resource Center is granted access to the following sealed materials contained in the record in People v. Kelly (S049973): 1. Order for Appointment of Expert (1 CT 342); 2. Declaration and Order Re Fees for All Court Appointments (1 CT 416-420); 3. Declaration and Order Re Fees for All Court Appointments (1 CT 582-586); 4. Request for Authorization to Incur Expenses for Ancillary Defense Services (2 CT Supp II 490-494); 5. Notice of Motion to Appoint Expert and Order (2 CT Supp II 495-496); 6. Final Accounting for Ancillary Defense Services and Order for Reimbursement (2 CT Supp II 497-501); 7. Sealed Reporter's Transcripts of In Camera Hearings (RT 31-33, 124-126). Counsel must supply the personnel and equipment necessary to undertake the examination and copying of the records, which must occur on the premises of the court. Unless otherwise ordered by this court, the sealed documents described in this order are to remain under seal, and to the extent the parties quote, disclose, or describe these materials in any court papers, those papers must be filed or lodged under seal. George, C.J., was absent and did not participate.
Aug 18 2008	Received:   copy of appellant's "Reply to Opposition to Petition for a Writ of Certiorari" sent to the U.S.S.C. on August 15, 2008.
Nov 10 2008	Certiorari denied by U.S. Supreme Court   Justice Souter would grant the petition for a writ of certiorari. Justice Stevens filed a statement respecting the denial of the petition for writ of certiorari. Justice Breyer filed an opinion dissenting from the denial of the petition for writ of certiorari.

Briefs
Oct 7 2004	Appellant's opening brief filed
May 9 2005	Respondent's brief filed
Dec 30 2005	Appellant's reply brief filed

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